Due to the necessity to rescue the wife of the Chief Administrative Judge Michael V. Coccoma from sanctions for frivolous conduct and attorney discipline, the Appellate Division 3rd Department (Judges Garry, Lahtinen, Rose and Devine) made the following brand new law:
(1) it is now not sanctionable for attorneys to CONCEAL the death of their clients and resulting abatement of jurisdiction from the court. So, go ahead, colleagues, if your client dies, file new motions and prosecute them as if nothing happened - the Appellate Division claimed that it is not sanctionable, even if you, like Ellen Coccoma did, affirmatively claim to your opponent after your client's death that:
- decedent's children are suing on the basis of a valid power of attorney of the decedent (while POA expire at the grantor's death);
- that calling the decedent to a deposition (while opponent does not know that the party has actually died) is "harassment" of the decedent - I do not know how a decedent can be harassed, but obviously, Ellen Coccoma does.
(2) if a retired judge, like retired Broome Surrogate's Court Judge Eugene Peckham, presides before retirement over a case and then joins as a partner the law firm - and representation - of a party in that same case, and does that while the retired judge is appointed as a Judicial Hearing Officer into the same court, that behavior is not sanctionable conduct for the retired judge or his law partners; so now, dear retired judges - you can engage in this disqualified representation to your heart's desire, the main thing though is not to announce that you joined the law firm representing a party as a law partner, because that's how Eugene Peckham got caught, yet was never sanctioned - and never even mentioned in the Appellate Division's decision;
(3) It is now allowed for private attorneys to use courthouses to conduct depositions for the benefit of their private clients, at no cost to the attorney or to the private clients. YAHOO, ladies and gentlemen, let's rush to courthouses and demand their use (for free) for private depositions in our cases. The rule must equally apply to pro se parties, since it is a precedent.
(4) it is now allowed for judges to order the use of courthouses for the benefit of private attorney's depositions, at no cost to the private attorney or the attorney's private clients - at taxpayers' expense. Attention sitting judges - YOU CAN DO IT now! You can order private use of the public courthouse building at taxpayers' expense to attorneys and parties of your choice, so go ahead, apply this precedent!
(5) Children of a person who would have been a distributee had he survived the death of the person whose death triggers the distribution, but who did not survive such death, are now distributees in their own right, even though their parent is not. This one is hard to digest, but this rule was made because:
- Now retired justice of the Appellate Division 3rd Judicial Department drafted the will in question, but made it so obscure and convoluted that the straight reading of the will would have required clients of Judge Coccoma's wife Ellen Coccoma to lose.
This is what was the ruling of the Appellate Division on this issue:
"Given that "[a] distributee is a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution," however, plaintiffs do have a contingent interest in East River (EPTL 1-2.5; see EPTL 1-2.16, 4-1.1 [a] ). They are therefore entitled to assert claims relating to waste by the life tenant and his agents, including Homestead, and seek an accounting for their actions at East River (see RPAPL 1501 ; SCPA 103 ; 2201; Matter of Gaffers, 254 App Div 448, 451-452 )."
Now, IF the children had a separate and distinct interest in the East River property, they had it long before their father died and could pursue it at any time - but they chose not to, because, as the Bill of Particulars says, they proceeded exclusively on their father's POA, and not on their own individual claims as "contingent remaindermen", and they cannot pretend that the Bill of Particulars never existed.
The remedy in such a situation is to INTERVENE into the lawsuit on their own behalf and FILE an intervening pleading, after PAYING an additional Index No. fee.
Moreover, the Intervening lawsuit must be served - and in my client's case (my client is a corporation), served upon the Secretary of State. Nothing like that ever happened.
So, how did the Appellate Division 3rd Department rescue Ellen Coccoma's clients?
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