Probate Administration | Wrongful Actions
There are certain basic legal requirements when a person transfers property, conveys a power of attorney or establishes a plan for the distribution of an estate. Among the most important are:
- The person must have appropriate legal capacity
- The person must not have been subject to “undue influence”
In the Matter of Wechsler, a 2015 opinion from the New York County Surrogate’s Court, specifically addresses both of these issues.
Lewis Wechsler died in February, 2006, survived by his wife of 30 years and two adult children from a previous marriage. In the probate proceedings to settle his estate, a will executed in November 2004 was offered to the court. That will placed all his property into trust for the lifetime benefit of his wife, with his children designated as beneficiaries upon her death. The deceased had executed five prior wills, the first in 1992, with the same provisions.
During the probate proceedings, however, it was discovered that most of the property that would have passed through the will had been transferred to the decedent’s wife through a serious of transactions, starting in June, 2005. This included the execution of a power of attorney in favor of the wife, as well as the transfer of individually owned property to jointly held property. The executor asked the Surrogate Court to compel the wife to turn over property, alleging that the decedent lacked capacity to make property transfers or execute a power of attorney, and that the wife had exerted undue influence to bring about the property transfers. The wife asked the court to dismiss the executor’s motion, arguing that there was insufficient evidence of lack of capacity.
As a general rule, legal capacity refers to the ability to understand both the nature of a transaction or agreement, as well as its consequences. In Wechsler, the executor introduced evidence indicating that the decedent had been admitted to the hospital the day before he executed the first transfer of property to his wife (in June, 2005). Notes from that admission state that he “was becoming more confused recently,” and diagnosed him with a “waning mental status,” indicating that he occasionally mistook his daughter for his wife. Other documentation from that visit described him as “forgetful” and prone to lapses in short-term memory.
The wife contended that the confusion and disorientation demonstrated that day were a one-time occurrence, citing other assessments that the decedent was “alert and oriented” and able to communicate his needs.
The court ruled that the determination of whether the deceased had the necessary capacity to execute the first transfer was a factual issue that needed to be (and had not been) resolved. Accordingly, the court denied the motion to dismiss. However, because the executor had introduced no evidence suggesting that the decedent experienced the same capacity issues when the other property was transferred, the court ruled that all transfers except the first one were valid. (NOTE: The executor had introduced expert testimony from a medical professional alleging incapacity at the time of the other transactions. The court rejected that testimony, citing the fact that the expert had never personally examined the decedent or discussed his condition with attending nurses or physicians).
As stated by the court in Wechsler, undue influence requires a showing of influence that amounted to “moral coercion.” That influence must have “restrained independent action” and must have led the decedent to do something which was “against his free will and desire.”
The court concluded that there were genuine issues regarding whether or not the wife exerted undue influence. The medical record indicated that he was in extremely poor health and suffering from depression at the time of the transactions. Evidence also showed that the wife was integrally involved in all the transactions. She drafted some of the letters requesting property transfers and also brought documents to the decedent, so that he could sign them from his hospital bed. In addition, the court was troubled by the fact that the decedent had used the same attorney to handle all prior estate planning (the executor), but that attorney had not been consulted before these transactions.
Because the court perceived that there were still factual issues to be resolved regarding the question of undue influence, the court denied the wife’s motion to dismiss the action.
At the Law Office of Bonnie Lawston, P.C. , we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 to set up a free initial consultation.
A Brief Look Back and Look Forward at Websites
It’s a fact that the world of web design and websites is ever changing. New improvements in design and technology emerge all the time.
Can you imagine growing up without being able to browse the web or carrying a cell phone with you everywhere you go?
Many of us can. But for the new generations such as iGen and Gen Z, born between 1995 and 2012, it’s unimaginable. Not having a mobile phone, not being able to jump online or text or visit a social media site is a foreign concept.
The Evolution of Web Sites and Web Design
It’s been more than 20 years since computer scientist and CERN engineer Tim Berners-Lee launched the first web page in 1990.
Today, web development has moved beyond the realm of computer science alone. Fields like graphic design and marketing have become an integral part of website development evolution.
How important is it for websites to be mobile friendly?
“Mobile-first indexing means Google will predominantly use the mobile version of the content for indexing and ranking. Historically, the index primarily used the desktop version of a page’s content when evaluating the relevance of a page to a user’s query.”
Web Perseverance’s New Websites
While trends come and go, consumers want designs that reflect their company’s values. We’ve worked to make our websites unique and authentic. Here are a few recent examples:
- Restoration Dry Cleaners. The branding for the new site incorporated much happier images. We shifted the focus from damaged materials to restoration of prized possessions. By replacing fire and smoke images and damaged articles with happy people, bright and colorful wardrobes and other images, we changed the look and feel of the site. Branding shifted from “damaged” to “restored.”
- The Van De Water Law Firm and Sackstein, Sackstein & Lee, LLP websites incorporate hero images (large full width image at the top of the website). The viewer meets the attorneys at first glance. This emphasis brings a more personal experience to the viewer when visiting the website.
- Anna’s Fried Dough is another new site we launched. We worked with the client’s existing logo to bring a colorful and fun feel to the site. The company initially introduced its product through concession stands at fairs but now it offers wholesale purchase as well.
- Poseidon Irrigation grabs the viewer’s attention through its colorful logo over a sprinkler system background video with spraying water. It’s a colorful and eye-catching site where viewers receive great visuals of the product’s use.
Are you looking to boost your internet marketing? Keep up with the times and reach out to us.
Author: WebPerseverance: Cindy J. Silver
Serving Flushing, Queens, Brooklyn, Bronx, New York City, Long Island and Garden City
Author: Sackstein Sackstein & Lee.LLP
Medical malpractice occurs when there is a failure to follow generally accepted medical practices, which results in harming a patient. Consequently, patients may experience injury, illness and in the most severe cases, death. However, not every injury that a patient suffers during medical treatment is caused by medical malpractice. An experienced attorney can evaluate the circumstances under which injury occurred and determine whether grounds exist for a medical malpractice lawsuit. Proving that a practitioner deviated from standard practice typically requires an investigation and testimony by a medical expert or experts.
At Sackstein Sackstein & Lee, LLP, we have the resources to consult with and retain medical experts who can testify to support the facts underlying a medical malpractice claim. Without an experienced lawyer to evaluate your suspicions, you probably would not know, or at least you would not be certain whether medical malpractice had occurred. In some cases, malpractice is blatant, but in other cases, it may be subtle and more difficult to prove.
Common Types of Medical Malpractice Cases
Some types of medical malpractice are more common than others. We represent clients in malpractice cases that are caused by the following:
- Anesthesia errors. Anesthesia errors can result from the failure to monitor drug reactions and oxygen levels or from incorrect dosages or the failure to assess using a particular anesthesia based on a patient’s known allergies.
- Failure to monitor. Before and after surgeries and other medical treatments, physicians and nurses must monitor vital signs, ensure proper hydration and nutrition and take other precautions for patients.
- Hypoxia and asphyxia injuries. Failing to properly monitor the fetus can lead to low oxygen levels and result in hypoxia or asphyxia, which can have serious repercussions.
- Delivery room errors. Failure to perform a C-section in a timely manner, improper use of forceps and other errors during delivery can harm babies during childbirth.
- Bedsores due to nursing home negligence. If untreated, bedsores can lead to serious infection. However, good hygiene and moving patients regularly can usually prevent bedsores.
- Medication errors. Incorrect dosages, mixing up medicines with similar names or prescribing the wrong medication for a patient are a few examples of medication errors.
- Surgical errors. Operating on the wrong patient, the wrong body part or leaving a medical instrument inside the body are surgical errors that can adversely affect patients.
- Medical errors due to failure to diagnose or misdiagnosis. Failing to diagnose or misdiagnosing cancer, heart disease or other severe illnesses can lead to worsened conditions or fatality.
- Birth injuries. Newborn babies can suffer from nerve damage, brain damage and other serious injuries when doctors fail to follow proper medical standards during childbirth.
- RSD/CRPS. Regional Sympathetic Dystrophy (RSC) or Complex Regional Pain Syndrome (CRPS) is a disorder that causes pain, swelling and limited motion. In some cases, it can result from medical negligence.
- Hospital errors. Errors that occur during hospitalization sometimes include surgical errors, emergency room errors, a failure to diagnose or misdiagnosis.
At Sackstein Sackstein & Lee, LLP, we can investigate medical malpractice claims involving a wide scope of medical practitioners: general practitioners, nurses, surgeons, anesthesiologists, radiology technicians and other types of medical professionals in specialized fields.
Were You a Victim of Medical Malpractice?
You can find out by sitting down with one of our attorneys. Discuss the details of your medical injury in a free consultation and explain why you suspect malpractice was involved. Handling medical malpractice cases requires extensive skills and access to medical experts. At Sackstein Sackstein & Lee, LLP, our attorneys have decades of experience and the necessary resources. Your case matters to us. Find out how we can help.
Call us toll free at 888.519.6400, or contact us in Garden City at 516.248.2234, or in Flushing-Queens, Brooklyn or the Bronx at 718.539.3100. You can also fill in our contact form, and we will get in touch with you.
We know you take your injury seriously, and so do we.
“Our Family Helping Yours Since 1952”
A+ Rating with Better Business Bureau
A Step-by-Step Approach to Build a Stronger Small Business
Author: Patrick Bergen, Compass Operations
It’s an essential part of the American dream—owning and operating your own business, calling your own shots, reporting to no one but yourself. But it’s also common knowledge that running a small business is a risky proposition—about half of all new business enterprises make it five years and little more than half of those last another five years. The reason many such companies fold?—failing to have a plan to facilitate and manage growth. As a general rule, the small businesses that do survive are the ones that take intentional and well-conceived steps to ensure that operations are continually growing, andthat they have the procedures in place to effectively respond to that growth. If you have what you believe is a sound business opportunity, but you’re struggling to keep momentum moving forward, here’s a step-by-step checklist to help you grow your business:
Step #1—Identify What Makes You Different
If you can’t determine why your customers should come to you (as opposed to the competition), neither will your customers. What makes you different? Why would someone choose to purchase your goods or services? Maybe you are able to compete more effectively than others on price. Maybe your product has proprietary features that set you apart from the competition. Determine what your “value proposition” is and focus your energy there. Don’t try to compete in areas where you can’t.
Step #2—Know Who Your Customers Are and Target Them ::Read More
Step #3—Establish Meaningful Metrics::Read More
Step #4—Know Where You Can Expect Most of Your Revenue::Read More
Step #5—Learn from Your Competition::Read More
Step #6—Stick with Your Strengths::Read More
Step #7—Invest in People
Your employees are your greatest asset. Don’t waste precious resources on a modern warehouse or fancy offices, unless you’ve already built a solid and loyal team of motivated and dedicated workers. It’s better to hire fewer employees at first, but pay them a little bit more. You’ll get the work done and you’ll build a committed team. If your employees know that you will pay them a fair wage when times are good, they’ll often be willing to stick with you when times are lean.
Step #8—Be Willing to Delegate
A common problem with small growing companies is the concentration of decision-making and strategy among a very small group of people. By doing so, you get less perspective and learn of fewer options for moving forward. Instead of trying to do everything yourself, you are better served to bring in talented people and let them do their jobs. The less time you have to spend with the nuts and bolts of your product or service, the more time you can spend strategically positioning your business for growth.
ADA Non-Compliance and The Beyonce Website Lawsuit
Non-compliance with the ADA (American with Disabilities Act) has farther-reaching effects than many business owners might realize. Recently, a blind woman filed a lawsuit against the owners of the Beyonce.com website.
Details of the Beyonce Website ADA Lawsuit
According to the Hollywood Reporter, the lawsuit alleges that visually impaired users do not have equal access to the website’s products and services.
The plaintiff in the lawsuit, Mary Conner is a New York resident who is totally blind. She is not able to browse the site and get information. Why? The images do not provide text equivalents. There are also no dropdown menus and navigation links that are accessible for her. She also cannot use a keyboard instead of a mouse to browse the site.
The class named in the lawsuit is “all legally blind individuals in the United States who have attempted to access Beyonce.com and as a result have been denied access to the enjoyment of goods and services offered by Beyonce.com, during the relevant statutory period.”
The requested injunction would require that Parkwood Entertainment, Beyonce Knowle’s management company make the site accessible to blind and visually impaired customers based on the ADA. The lawsuit also seeks compensation for damages for its class members who have been subjected to unlawful discrimination.
Web Accessibility and the ADA
The lawsuit regarding Beyonce.com is not the only lawsuit that has been filed against website owners who were non-compliant with the ADA. As we mentioned in an earlier blog article, more than 240 class action lawsuits have been filed against businesses for ADA non-compliance based on inadequate website accessibility (according to law360.com).
What Can You Do to Ensure Your Website Is ADA Compliant?
Business News Daily article states that no definite legal guidelines outlining ADA compliance exist for websites. However, website owners should make a good faith effort to incorporate features that would make your site more reasonably accessible.
Some of suggested features include:
- Alt tags for images, videos and audio files. A blind web user cannot see an image. However, web software will read the image description contained in the alt tag used for the image, video or audio file.
- Text transcripts. Transcripts for video and audio content can help the hearing impaired.
- Organized layout. Organize the navigation menus, links and buttons so they are user friendly throughout the site.
At Web Perseverance, we use a website plug-in that increases website accessibility for disabled web viewers. Web Perseverance is an internet marketing company. You can see the plugin logo on this site. It looks like the wheelchair handicap logo and is located at the bottom left of your screen. Click on it, and it will display various boxes with features that help make our site more user friendly for disabled viewers.
- A keyboard key
- Bigger cursor
- Increased contrast
- Larger text
- Desaturate (the button removes color from graphics and images)
- Highlight links
- Legible fonts
- Read page (audio software button that reads the words in the navigation, content text and tag information on the page)
Do You Have Questions About ADA Website Compliance?
We are glad to answer your questions and can discuss putting this plug-in on your website. Contact a NY Internet marketing specialist today.
What Circumstances Indicate Misdiagnosis or a Failure to Diagnose?
Unfortunately the failure to diagnose and misdiagnosis are common problems and have become even more so since medical practice has become very specialized. Today there are far more names for medical conditions and diseases than ever before along with a plethora of available treatments.
An article appeared in the Washington Post in 2013 entitled “Misdiagnosis is more common than drug errors or wrong-site surgery.“ Studies in the article stressed the degree and extent of damage that misdiagnosis and failure to diagnose have caused for patients.
Various reports revealed the following statistics:
- Safety experts reported that missed, incorrect and delayed diagnoses have likely affected 10 to 20 percent of medical cases
- Out of 583 diagnostic mistakes reported, 28 percent were life threatening, or resulted in permanent disability or death
- Fatal diagnostic errors in U.S. intensive care units equaled the 40,500 deaths resulting annually from breast cancer
- Errors often involved common diseases such as pneumonia and urinary tract infections
- Of the pneumonia and urinary tract infection errors, 87 percent had the potential of causing severe harm and inevitable death
An associate professor at Johns Hopkins School of Medicine stated that misdiagnosis “happens all the time.” It is a “hidden part of the iceberg of medical errors.”
What Are Some Underlying Causes of Wrong or Missing Diagnosis?
While each case is different, there are some common errors that are repeated often enough to form a pattern.
In some cases the practitioner simply fails to follow up on test results.
Some medical surroundings are more predisposed for error, such as emergency rooms. ER doctors do not know the patients; they have not followed their medical history the way a family physician has. In the ER interruptions are common along with time constraints to deal with the problem.
In addition to hospitals, primary care doctors are also at risk for diagnostic errors. Sometimes doctors fail to broaden the differential diagnosis. In other words, they do not consider a number of underlying reasons that could cause a set of symptoms.
Failure to study and analyze diagnostic errors has made it an area that is lacking information for correction. Some medical leaders have pointed to the fact that the healthcare system has become increasingly fragmented and medicine as a field has become increasingly complex. High-tech tests are replacing doctor’s skills in performing hands-on diagnosis.
Do You Have Questions About Medical Malpractice?
Our attorneys at Sackstein Sackstein & Lee, LLP are glad to answer your questions.
Author: Christopher L.Van De Water
How to ask for and get the raise you deserve
The holidays are a time of financial giving, but that doesn’t mean all companies will be giving out bonuses, or even raises for that matter.
According to recent surveys by several finance and staffing firms, while monetary holiday bonuses are expected to increase in value this year, bonuses, overall, are becoming more scarce. In a poll of 500 U.S. companies, 63 percent of hiring managers say their company plans to give employees a bonus, the survey notes. That’s down from 75 percent in 2017.
Whether or not you end up among the growing number of workers who won’t get a bonus this year, your holidays can still be happy. Here are five effective steps to take to ask for, and get, a raise:
Do your research and come prepared
First things first: If you want a raise, you’ll have to do your homework. Set realistic expectations about what your salary increase might look like and understand why you deserve it.
To gauge your market value, try using a salary calculator. These tools can offer insight by measuring your pay against your experience and position and comparing it to the wages of your peers across the country. Keep in mind, though, the estimates rely on self-reported numbers and can’t take into account your specific circumstances.
Document your achievements and noteworthy projects
Start by identifying any tasks you’ve taken charge of that were unanticipated when you began the job or any additional responsibilities you’ve taken on.
If you’ve received notable recognition or awards, note that too. This could help your manager better understand the value of your work and your importance to the team.
Find the right time to approach your manager
Be sure you ask for a raise at the right time, not just because you need the money or because “you just heard the guy in the next cubicle is making $5,000 more than you,” bestselling author and CNBC contributor Suzy Welch says.
According to a LinkedIn report, January is one of the top months when employers give out raises. Thus, preparing your pitch in December could be a smart move.
Initiate the dialogue
Once you’ve done your research, you can initiate a conversation with your manager. Instead of bringing up the issue in passing, schedule a formal meeting and come ready to break down exactly why you deserve that raise!
Be sure to focus on why you deserve it, not just why you need it.
Keep in mind, dollars and cents aren’t the only possible form of compensation. Ask about perks and benefits such stock options, a more flexible schedule, including telecommuting.
Finally, show your appreciation
Clearly assert why you deserve a raise but don’t get pushy. If your boss doesn’t feel you deserve a raise yet, don’t get mad. Ask what steps you can take to earn one.
If there just isn’t room in the budget to pay you more at the moment, make clear that you understand and, again, could be willing to talk about other kinds of perks and compensation. This could make the conversation more collaborative and open the door for a follow-up soon.
Even if you don’t walk away with everything you want, odds are you’ll feel good about being assertive. Remember, lots of job seekers and employees are too anxious to try to negotiate, but those who ask for more are usually more successful.
Why Is Legal Help Vital for Catastrophic Injuries?
People who suffer from catastrophic injuries are typically saddled with exorbitant medical costs, lost income and other financial hardships. However, if someone else was at fault for causing your injury, you may have legal grounds to recover compensation.
What is a catastrophic injury?
Catastrophic injury means “consequences of an injury that permanently prevent an individual from performing any gainful work.”(42 USCS § 3796b)
Such injuries are extremely severe. They often result in long-lasting medical conditions that require multiple surgeries, rehabilitation and other long-term treatment. The disability is permanent and in some cases also results in a shorter life expectancy. Aside from financial hardship, the emotional impact can be overwhelming.
What are some examples of catastrophic injuries?
Examples of catastrophic injuries often include:
* Burn injuries. Burn injuries can disrupt the proper functioning of other bodily systems. They can also result in severe disfigurement or scarring.
* Traumatic brain injury. A traumatic brain injury can significantly alter an individual’s quality of life, resulting in speech difficulties, impaired cognitive functioning or even partial or complete paralysis. The victim may end up in a coma for long periods of time or suffer permanent brain damage.
* Spinal cord injuries. Spinal cord injuries can cause partial paralysis (paraplegia, which is paralysis from the waist down) or complete paralysis (quadriplegia, which is paralysis from the neck down).
* Fractures. There are varying degrees of severity of fractures. All fractures should be considered as catastrophic injuries.
* Neck injury. Spinal fracture or herniated discs can result in extreme pain and make it difficult to hold a job or function normally.
* Back injury. Back injuries that affect the spinal cord or nervous system can result in loss of bowel control or bladder control. It can also cause impotence.
* Amputations. Accidental loss of limb or severe injury that makes amputation necessary leaves a person in a disabled state.
* Eye injury. Partial or complete blindness due to injury is life changing and can be incapacitating.
* Organ damage. Impact during an accident can injure internal organs, such as the spleen, liver, kidneys, liver, pancreas, colon and bladder. Depending on the extent of damage, it can impair the functioning of a number of bodily systems, diminish quality of life and in some cases eventually result in death.
Have you suffered from a catastrophic injury?
When your injuries are catastrophic and you believe another party was at fault, consult with an attorney as soon as possible and find out about your legal rights to recover compensation. The Law Offices of David R. Lewis offers a free consultation to discuss your injury and determine the prospects of suing for damages.
What Does the New Sexual Harassment Training Require?
Author: Stephen D. Hans & Associates
By now, hopefully many employers in New York have become aware of the new sexual harassment training laws that went into effect on October 9, 2018. Under the new law, all New York employers, no matter how many employees you have, are required under State law to establish a sexual harassment training policy.
New York State has published a tool kit that explains the guidelines employers must follow. Some employers already had established sexual harassment policies prior to the new law. Others may not have any sexual harassment policy in place. In either case, you must comply with the government’s new requirements.
If you’re uncertain about whether your policy is compliant or not, it is wise to consult with an experienced employment defense attorney. The probability is high that most employers are missing parts of the new law in their policies.
Sexual Harassment Training Tool Kit Guidelines
A checklist for sexual harassment training must meet (or it can exceed) the following minimum training standards. Training must:
- “Be Interactive (see the model training guidance document for specific recommendations);
- Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
- Include examples of unlawful sexual harassment;
- Include information concerning the federal and state statutory provisions concerning sexual
- harassment and remedies available to targets of sexual harassment;
- Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
- Include information addressing conduct by supervisors and additional responsibilities for supervisors.”
It is common have questions about the new guidelines and how to apply them. The specific details of what some of the minimum training standards require are not clear to many employers.
Stephen Hans & Associates can answer your questions and help you understand exactly what is required and how to even exceed the minimum standards. We offer seasoned legal guidance based on decades of employment law defense experience.
Thousands of Employees Worldwide Protest Google’s Handling of Sexual Harassment
The Google Walkout on November 1, 2018 in protest of sexual harassment was a worldwide event. The largest gathering of protesters, numbering in the thousands, occurred in Silicon Valley, California where Google Headquarters is located.
In addition, The New York Times reported that workers protested internationally in Singapore, Hyderabad, Berlin, Zurich, London, Chicago and Seattle, to name a few locations. New York also had a large number of protesters. An estimated 3,000 people gathered to protest in a city park.
Since the #Metoo movement began a year ago, sexual harassment has topped the list in anti-discrimination movements. A number of states have passed stricter laws to prohibit sexual harassment, and New York has passed the most stringent sexual harassment training laws in the nation.
What Was the Main Protest Focus in the Google Walkout?
The New York Times published an article on Oct 25, 2018 about the resignation of the creator of Android software, Andy Rubin in 2014. At that time, he left Google with a $90 million exit package and no public disclosure of sexual misconduct.
Google Chief Executive Sundar Pichai and Larry Page, co-founder of Google and the chief executive of the parent company, Alphabet issued apologies. According to a Wall Street Journal article on the walkout, Pichai stated that Google no longer makes payouts to employees who are dismissed due to sexual harassment. He also stated, “Moments like this show we didn’t always get it right. We are listening to employees, which is why today is important.”
Another point of contention among the protesters was Google’s mandatory arbitration requirement in employee contracts. Employees who were protesting submitted a letter to the company that stated they wanted Google to remove mandatory arbitration and allow sexual harassment lawsuits, the way the Microsoft Co. and Uber had done during the past year.
A letter to the CEO also requested that the board of directors include an employee representative and that Google’s Chief Diversity Officer report directly to the CEO.
Google has been known for its open relationship with employees where debate is encouraged and employees enjoy many perks that come with their jobs.
Do You Have Questions about Employment Law?
Having anti-sexual harassment policies in place has become vitally important for employers in many different industries and countries around the world.
If you have questions, our attorneys at Stephen Hans & Associates are glad to advise regarding your concerns.