After Born Children Statute Not Extended to "After Known" Children

COURT RULES NON-MARITAL CHILDREN ARE NOT ENTITLED TO ANY RIGHTS UNDER AFTER-BORN LAW

In a January 25, 2010 entry in the New York Trusts and Estate Litigation blog, Farrell Fritz partner, Eric Penzer, Esq., reports on Matter of Gilmore, 1/19/2010 NYLJ 21 (col 1), a case in which I drafted opposition as the ward of an infant, to a motion by putative distributees to the decedent's estate.  The purported non-marital children sought a determination of their status and a distributiuon as "after known" or "after ackonwledged" children pursuant to a novel theory involving an expansion of the "after born" statute codified in EPTL 5-3.2.

The movants, Andrea and Malverick Hofler, alleged that after the decedent executed his will on June 24, 1996, he underwent DNA tests in 2005 and 2006 which revealed to him for the first time that he was their biological father.  Although the Hoflers were in fact born long before the execution of decedent's will, they claimed that non-marital children, only known or acknowledged by their father after execution of his will, should be accorded the same presumption of inadvertent disinheritance as an after-born child and extended the same rights.

In concluding that the movants did not have any rights pursuant to the after born statute, the Court stated that the statute itself speaks clearly of a "child born after the execution of a last will" (EPTL 5-3.2 [a]).  Nonetheless, the putative distributees argued that the meaning should have be extended to a non-marital child who is known or acknowledged by a decedent only after execution of his will.  To the contrary, the Court held that it is not at liberty to conjecture about, add to or subtract from words having a definite and plain meaning.  The Court stated in no uncertain terms that if it were to engraft exceptions where none exist it would constitute a trespasses by a court upon the legislative domain (City of Buffalo v. Lawley, 6 AD2d 66 [4th Dept 1958]; McKinney's Cons. Laws of NY Book 1, Statutes, §76).  When, as here, a statute is free from ambiguity and its sweep unburdened by qualification or exception, a court must apply the language as it is written (Zaldin v. Concord Hotel, 48 NY2d 107 [1979]; 2 A Sutherland, Statutory Construction [7th ed.] §46:1).

The 2007 amendment to EPTL 5-3.2 specifically restricts a non-marital child's entitlement to "a non-marital child, born after the execution of a last will."  Accordingly, the Court held that it may not ignore a statute's language in an effort to derive or construct a legislative intent that could easily have been articulated by the Legislature when it drafted the [amendment].  "'The court will not exceed its authority by reading the [claimant's] language into the statute‘" (New York State Crime Victims Bd. v. T.J.M. Productions Inc., 176 Misc 2d 777, 785 [Sup Ct, New York County 1998]; affd 265 AD2d 38 [1st Dept 2000]; see also 97 NY Jur 2d, Statutes, §104).  Accordingly, the Court concluded that the Hoflers were not entitled to any rights under the after-born statute (EPTL 5-3.2).

The Preliminary Conference

Almost every action filed in state court becomes the subject of a preliminary conference, which is commonly known as a "PC."  The preliminary conference is governed by Uniform Trial Court Rule section 202.12.  That rule states, in pertinent part, that the matters to be considered at the preliminary conference include: a) where appropriate, simplification and limitation of factual and legal issues; b) establishment of a timetable for completion of disclosure consistent with the requirements of Differentiated Case Management (unless otherwise shortened or lengthened by the court); c) addition of other necessary parties; d) removal to a lower court where appropriate and e) other matters that the court may deem relevant such as a date for filing a Note of Issue, and a closure date for dispositive motions.  Finally, at that time the court will schedule a compliance conference at which time the parties are to return to court.

A preliminary conference can be scheduled by the court at any time sua sponte.  but it is most often scheduled at the request of a party upon the filing of such request along with a request for judicial intervention ("RJI"), in a case which has not previously been assigned to an IAS judge.  Pursuant to subdivision (b), the conference shall be scheduled not more than 45 days from the date the request for judicial intervention is filed, unless the court orders otherwise.

The initiation of motion practice concerning discovery in unassigned cases was the impetus for the writing of this entry.  The most frequent scenario invloves a plaintiff that fails to serve discovery and/or a bill of particulars in response to demands that accompany a defendant's answer.  In which case, the apparently uninformed defendant ultimately resorts to a motion to compel a response under CPLR 3124 and/or 3042(c).  The foregoing motion practice is an imprudent use of both the attorney's time and client's resources.  Pursuant to Trial Court Rule 202.8(f), the aforestated motion will be procedurally converted into a preliminary conference which, in accordacne with section 202.12, must be scheduled for a date no more than 45 days after the chosen motion return date.

Accordingly, where the motion is propounded instead of the service and fliling of a request for a PC and RJI, the attorneys for the moving defendant will have advanced plaintiff's cause by incurring the cost of the RJI, in addition to an unnecessary motion filing fee.       

Daylight saving time returns Sunday

Don't forget to advance the time on your clocks one hour before going to bed tonight. The idea behind daylight saving time is to save energy and lightbulb hours by allowing the sun to appear an hour later in the morning when most are asleep anyway.  As warmer weather is in the near future, daylight saving time benefits us by stretching daylight later into the evening.  You'll have more daylight at the end of your workday, but there are some statistics which suggest that the change is not without  serious negative effects.  

According to a letter to the editor of the New England Journal of Medicine, the change has health consequences demonstrated by the number of serious heart attacks increasing by as much as 10 percent during the first three workdays after the start of daylight saving time.  The effects of transitions were consistently more pronounced for people under 65 years of age than for those 65 years of age or older.  According to an  article in the Los Angeles Times, traffic accidents spike by as much as 11 percent on the first Monday after the clocks are sprung forward.  On Wall Street, economists say sleep-deprived traders often produce large negative returns on that following Monday, once estimated at $31 billion. 

The most plausible explanation for the findings is the adverse effect of sleep deprivation on cardiovascular health. According to the authors of the journal letter, their data suggests that vulnerable people might benefit from avoiding sudden changes in their biologic rhythms.  Ordinarily, Monday is the day of the week associated with the highest risk of acute myocardial infarction (heart attack), with the mental stress of starting a new workweek.  The further deprivation of sleep can be the cause of the increased activity seen.  Accordingly, doctors suggest taking it easy this weekend and making sure that you're well rested before the change officially occurs at 2 a.m. on Sunday, March 14.  

Irrespective, entirely to the dismay of law firm management everywhere, the greatest concern is not that attorneys will lose an hour of sleep this weekend - but a precious billable hour. 

NYC Agrees to $657 Million Settlement For WTC Rescue Worker Suits

According to The New York Times, the Ground Zero injury settlement was announced yesterday by WTC Captive Insurance Company.  The Captive Insurance Company an entity created with a $1 billion federal grant that provides insurance coverage to the City of New York and its debris-removal contractors.  The Ground Zero injury settlment agreement in the sum of 657.5 million dollars is scheduled to be presented to Southern District Court Judge Alvin Hellerstein in Manhattan today for approval.  According to Associated Press reports, Judge Hellerstein has said that he favored a settlement, but planned to analyze it carefully to make certain that is fair. 

I believe that it goes without saying that the settlement must be fair and equitable before the Court issues an Order approving the terms.   

California Court Holds That Non-Party Witness Statements Are Not Privileged

Although this blog was primarily intended to discuss New York civil litigation, in this entry I'm discussing a California appellate decision because I find that it has a profound impact on discovery rules and could be persuasive authority for a further broading of pre-trial discovery in other jurisdictions.

In Coito v. Superior Court, 10 C.D.O.S. 2697, a divided California appellate court ruled on Thursday that non-party witness statements which are either recorded or documented in writing by attorneys or their representatives aren't privileged work product and, therefore, are subject to pre-trial discovery. 

In the lower court, Stanislaus County Superior Court Judge William Mayhew relied on a decision by the Third District appeallate court in Nacht & Lewis Architects Inc. v. Superior Court (McCormick), 47 Cal.App.4th 214, as authority to deny plaintiff's attorney's demand for the recorded statements of four juveniles who witnessed the drowning death of a 13-year-old boy in 2007.

Contrary to the holding in Nacht & Lewis, the majority in Thursday's ruling held that the "weight of authority" states that written and recorded statements taken by attorneys aren't work product, but rather "classic" evidentiary material.  "They can be admitted at trial as prior inconsistent statements, prior consistent statements or past recollections recorded," Justice Betty Dawson wrote in Coito.  "Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use."  Justcie Dawson referred to the decision in Nacht & Lewis as "cursory."  "It contains no analysis to support [its] language and fails entirely to acknowledge the long line of contrary precedent," Justice Dawson wrote.  "Neither does it consider nor weigh the purposes of the work-product privilege and the Civil Discovery Act."

In dissent, Justice Stephen Kane argued that he felt witness statements recorded by attorneys constitute "qualified" work product, which remains undiscoverable unless a court determines that denial of discovery unfairly prejudices the party seeking it.  However, Justice Kane wrote that, "a per se rule of absolute protection goes too far."  Accordingly, Justice Kane would have preferred to remand the case to give the trial court judge an opportunity to consider whether discovery was warranted under the qualified work-product privilege.  "Requiring such a showing strikes a fair balance between the competing statutory policies of protecting work product and allowing liberal discovery," Kane wrote.  Justice Kane noted that the California Supreme Court, the state's highest court, has not weighed in on the issue in this case and therefore urged it to do so.  "Clarifying the scope of the work-product privilege in this context," he wrote, "is important for legal practitioners and in propria persona litigants (those representing themselves in court without assistance of an attorney, at least "on the record."  Often abbreviatd to "in pro per").

The majority, concurring and dissenting opinions all require more analysis and discussion.  However, the general rule in New York is that non-party statements are materials prepared in anticipation of litigation and therefore not subject to disclosure.  See, DeGourney v. Mulzac, 287 A.D.2d 680, 732 N.Y.S.2d 97 (2d Dep't 2001); Volpicelli v. Westchester County, 102 A.D.2d 853, 476 N.Y.S.2d 623 (2d Dep't 1984); Bush v. E. H. Cottrell, Inc., 33 A.D.2d 983, 307 N.Y.S.2d 284 (4th Dep't 1970).  The apparent rationale has been that a party should not be required to disclose that which they obtained through the investment of their own time, effort and money.  Unless these non-party witnesses have become unavailable, there is no reason why the party seeking the statements can't contact the witnesses and perform their own investigation.  If the non-party witnesses evade or refuse to cooperate, a reasonable inference can be drawn that their testimony will not be favorable to that party.  Even in the instance of evasiveness or refusal, the non-party subpoeana remains as that party's device to obtain the testimony sought.  Moreover, the subpoena on notice is arguably more just and equitable given that the adverse party has an opportunity to cross-examine the witness.