Q: I would like to keep a handgun in my home for self-defense, but a City ordinance provides that no person shall possess any firearm unless he is the holder of a valid registration certificate.  The Code then prohibits registration of most handguns.

I feel that the handgun ban has left me vulnerable to criminals.  I am told that our city's handgun murder rate has actually increased since the ban was enacted and that we now face one of the highest murder rates in the country.

A: The law is generally that a right to keep firearms for private self-defense is so fundamental that the Constitution's guarantee of due process includes it, so as to warrant federal protection from state regulation.

In theory, one could argue that, unlike the Constitution's rights of free speech, free press, assembly and petition – a right of private self-defense does not comprise a necessary part of the democratic process.  Similarly, unlike the Constitution's religious protections, its protection against unreasonable searches and seizures, its insistence upon fair criminal procedure, and its protection against cruel and unusual punishments – a right of private self-defense does not significantly protect individuals from mistreatment at the hands of a majority.

But the courts do not accept this argument, and a state law that seeks to prohibit registration of most handguns is highly susceptible to a constitutional challenge.  The solution for a city might lie in having some registration requirements, but making them less severe.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: I live in a two-family house.  When a blizzard comes, I always wait ‘til the snow stops falling.  Then I go to the sidewalk and make a path with my shovel.  Afterwards, I sprinkle salt on the path.  One day, while the snow was still falling, my neighbor came out walking her dog.  She slipped and fell: says it’s my fault that there was ice underneath the snow.  Let me add that there had been no snow for two entire days prior to this incident.

A: The law is that an owner of real property, even if required by municipal ordinance to remove snow or ice from the sidewalk, is not liable in tort for injuries sustained by a pedestrian who slips and falls on an accumulation of snow or ice that is natural.  You are exposed to tort liability only if you previously made the sidewalk more hazardous – by carrying out some attempts at snow removal with negligence.

To raise what lawyers call a ‘triable issue’, your neighbor must show that, on a prior occasion, you were so negligent in attempting to remove snow that the ice on which she fell was the result.  Her speculation will not be enough.  This rule goes for other forms of snow removal, too, e.g. snow plowing.  The evidence must show (a) that the ice was the result of a prior snowfall and (b) that you carried out the prior snow shoveling with negligence.

To prevent the formation of ice, you always sprinkle salt.  That being the case, it is highly unlikely that you either created or heightened the hazardous condition.  Unless there is a detail that you have left out, your neighbor would have no case.  I hope that her lawyer will tell her so.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2010-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: Wearing his white sneakers, and feeling very good, my husband left a methadone clinic, entered a subway station, fell off a subway platform and was struck by a train.  From the time we entered, to the time he was found motionless on the tracks, two trains had passed through.  But I did not actually see him fall.

A: Your attorney will need a lot more information.  On what track was he discovered?  Did both trains use that track?  It is virtually certain that the second train must have hit your husband.  With regard to the first train, you will want to determine whether it had already passed through.  Bear in mind that mere hitting is not enough: you must prove that the hitting was done with negligence.

Suppose that a transit-authority ‘incident report’ indicates that the second operator saw some white sneakers.  Was this as he was entering the station?  If so, your attorney will try to prove that the operator had sufficient time to engage his emergency brake.  In rebuttal, the defendant may argue that the train’s headlights would not have illuminated the sneakers so early.

On the other hand, suppose that what appear to be bloodstains were discovered on cars of the first train, while none were discovered on the second.  If the operator of the first train had no time to see your husband, then this is bad news.  However, perhaps the apparent bloodstains were merely grape juice or rat blood.

Your attorney will hope to convince the jury that the Transit Authority was negligent and that its negligence was a proximate cause of the injuries.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2017-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: I was struck by a vehicle owned and operated by a driver for a delivery service, which had an agreement with a supermarket to make home deliveries for customers of the supermarket.  He was delivering groceries for the supermarket at the time of the accident.  Who should I sue?

A: The most critical factor would appear to be control of the method and means of doing the work.  Relevant factors include whether the driver worked at his own convenience, was free to engage in other employment, received fringe benefits, was on somebody’s payroll, and was on a fixed schedule.

Suppose that the driver worked for the delivery service six days per week, from 10:00 a.m. to 7:00 p.m., that he was required to call a supervisor employed by the delivery service when he could not report to work, that he wore a t-shirt provided by the delivery service, and that he had a two-way radio provided by the delivery service.  Such evidence indicates that the delivery service indeed controlled the means and method of the driver’s work.

Suppose that the driver did not know the names of any of the supermarket’s managers, that he had no contact with them, and that the supermarket’s managers did not control the hours that the driver worked or how he made deliveries.  Such evidence indicates that the supermarket did not control the means and method.

Both as a wise precaution and for reasons of strategy, I imagine that your attorney will name all three – the driver, the delivery service or the supermarket – as defendants.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2019-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: I was only sixteen.  At a dude ranch, I decided to go horseback riding.  A horse wrangler gave us instructions, and accompanied us.  At the end, during the dismount, Roy instructed me to lean on him.  When I did, my leg made contact with Nelly’s side.  She became jittery and jumpy.  Roy moved away from me and towards Nelly’s head, to tame her.  His moving caused Nelly to move away; I was left with nothing to grab onto, and fell.

A: The defendant will surely claim that it is immunized by the doctrine of ‘primary assumption of the risk’, under which participants in a sporting activity assume commonly-appreciated risks inherent in the activity.  An assessment of whether you assumed a risk depends on (a) its openness and obviousness, (b) your skill and experience, (c) your conduct, and (d) the ranch’s conduct.

In one well-known case, an adult was a show manager for a saddle-horse association.  She had just completed the tallying of some scores and was headed toward the announcer's booth.  Before crossing the track, this manager admonished someone to put a bridle on her horse.  Instead, the horse took off galloping – and minutes later struck the manager.  The Court held that the manager, as an experienced participant in competitive horse shows, was aware of the dangers associated with horses and assumed the risk of being injured by a horse at the racetrack.

Here, the ranch will claim that, aware of the risks associated with horseback riding, you assumed the risk of falling from your horse if the animal would make a sudden and unintended move.  Your attorney will forcefully respond that you were a novice.  Moreover, you should not have been provided with so nervous a horse, the wrangler should have handled the situation better, and his conduct unreasonably increased the risks.  Clearly, you were confronted with a dangerous condition over and above the usual dangers that are inherent in horseback riding.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2019-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: Aunt Hallie just passed away from this vale of tears.  The will bequeaths to me all her stocks, bonds and securities.  Her house, in which she had resided for many years, and the furniture therein, go to some young ladies who had resided with my aunt prior to her demise.  The lasses were substituted as beneficiaries in the place of a former companion.

The companion had lost favor, and most probably without any omission, neglect of duty or fault on her part.  Borne down with suffering and the weight of a painful disease, my aunt may have magnified her companion's faults, mistaken her character and misconstrued her kind acts and motives.

The young ladies had been close to the family for a long time, they had been kind to my aunt in her last illness, and I do not think that they made any particular effort to supplant the companion in the affections of my aunt.  She used to tell me that the girls were the life of the house.

A: The law is OK with the promptings of affection, the desire of gratifying the wishes of another, the ties of attachment arising from kinship and the memory of kind acts and friendly offices.  The law is not OK with the resistless power that the strong sometimes exercise over the weak and infirm, and that cannot be resisted, so that the will was caused by force or fear.  From what you tell me, there was no undue influence.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: In Father’s will, he left Mother one dollar.  The remainder was left to my childless brother, now deceased, and me.  Mother elected against Father's will and then settled with his estate – agreeing (a) to accept twelve percent of the estate in full settlement of all her claims and (b) to leave “intact and without change” her own Last Will and Testament.  In Mother’s settlement agreement, the lawyers made no mention of Totten trusts, trust accounts, inter vivos transfers or gifts.

Mother's own will bequeaths a sum of money to the church and to a friend – with the residue and remainder to us two children, or to her grandchildren per stirpes in the event we predecease her.

Now, Mother has left this world, too.  It turns out that, after the signing of the settlement agreement, she opened several Totten trusts in trust for various charities.  I say that these Totten trusts violate the spirit, if not the letter, of the agreement: they are invalid.

A: A Totten trust is also known as a ‘payable on death’ account.  Your mother placed money in a bank account with instructions that, upon her death, the balance should pass to the charity.  These funds are not subject to probate.

Given that the agreement itself is silent as to Totten trusts, and that only a change of your mother’s will is forbidden, it is extremely unlikely that a court will ‘read-in’ a prohibition against Totten trusts.  No court will squeeze out, from a mere no-change-in-will promise, a host of other pledges.

Despite this settlement agreement, during her lifetime, your mother could spend her money as she wished: it is not so outrageous that she saved it as she wished.  When drawing up the settlement agreement, your attorney should have indicated that, essentially, a truck could be driven through it.  Even if he or she did not, you cannot rely upon a court to clean up this kind of a mess, if such it be.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: My grandmother's will established one trust for me and one for my cousin.  Each trust was funded with one half of the residuary estate.  Now, my cousin has died, without issue and never having exercised any power of appointment.  Under the terms of my grandmother's will, the assets of my cousin's trust have poured over into mine.  Upon reviewing the condition of my cousin’s trust, I think that the Bank should better have diversified her portfolio.

A: Under the Surrogate's Court Procedure Act, fiduciaries such as executors and trustees have an obligation to account for their actions.  Ordinarily, executors account at the conclusion of estate administration, while trustees account when the trust is terminated or when they cease to serve.  Where a trust is managed over a lengthy period, the trustee often accounts periodically.  In a case like this, you should have gotten notice of accountings even for your cousin’s trust.

To the extent that you were given an accounting, the court will rule that you have already had a full and fair opportunity to raise objections relating to the Bank's obligations as executor or trustee to diversify your cousin’s assets.  A fiduciary is entitled to finality.  Nothing in the SCPA provides you with a ‘second bite of the apple’ – where you have already been afforded the opportunity to litigate the essence of your objections in a prior judicial settlement proceeding.

If you previously got full disclosure in an accounting, then you should have objected at that time and are barred from doing so after the settlement of the account.  Under certain circumstances –for example, where the Bank procures a decree settling an account through fraud – you may move to set aside the prior decree.  Gather all facts, and bring them to your lawyer.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: In her will, my birth mother gives stock to two of my four children and her cottage to me – along with some cash and half of the residuary estate.  The other half goes to her sister-in-law.  My doctor has just advised that my time is limited.

A: Unless this will is revised, your children’s attorney will need to argue that New York’s anti-lapse statute applies: that you are considered “issue” of your birth mother, and so the gift of cash and a half of the residuary estate does not lapse but vests in your four children.  The point will be that by naming you – the adopted-out child – as a beneficiary under her will, your birth mother altered your status from stranger to “issue” for the purposes of the anti-lapse statute.

Ordinarily, adopted children and their children are strangers to their birth relatives, and thus are excluded from class gifts.  Your point will be that your stranger status ceased when your were named in the will: your birth mother made you a non-stranger, with respect to the anti-lapse statute.

Although the courts of New York agree with this position, your birth mother’s attorney, in drawing up her will, does a far better job for the client in asking her, explicitly, what she wants to happen in case you predecease her.  Such a question is far better addressed in advance than left to the courts.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: My mother died, and my father re-married. At the time of his own death, we believed that he had died intestate, but two months later, his second wife found a 50-year-old four-page document in my father’s closet.  I would like to have that document probated as his will.

It is signed by three witnesses. One was my father's attorney: he had billed my father for professional services rendered in preparation of a will. The two other witnesses worked in my father's medical office.

The only surviving attesting witness has been deposed.  She recognizes her signature at the end of the will and remembers living at the address listed next to her signature.  However, she has no memory of the will signing.  Handwriting experts have authenticated my father's signature and that of his attorney.

A: Given the second wife's discovery of the will, the invoice from the attorney-drafter, the signature of the supervising attorney, the admissions of the attesting witness, and the authentication of the signatures by a handwriting expert, you have a good chance at getting this will admitted to probate.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2012-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: I was a teacher, living at home and getting older.  My family said that he wasn’t suitable, but I married him anyway.  At that time, both my sisters stated in the presence of our mother that I should never have “one cent of our money.”  My mother responded that she continued to love me.  “She is my child, and should have her share of the property.”

Afterwards, my mother visited among people in the vicinity of my home, and she could have talked to me, had she desired to do so.  That never happened.  Finally, a few days before her death, I visited her twice.

My mother was a strong and resolute woman.  Eventually, she ceased to work and came to decline.  When it came time to draw up a will, I understand that the attorney asked my mother specifically in regard to me, and discussed the matter of discriminating against me with my mother.  “She has made me more trouble than all the other children I ever bore.  At last she married a man she knew the family all objected to, and my heart was broken.  She shall never have a dollar that I worked to save.”

A: I am afraid that your sisters had the right to use any reasonable and legitimate argument to induce your mother to make her will in a particular way.  The giving of advice and the use of argument and persuasion do not constitute ground for avoiding a will made by a competent testatrix.  A will cannot be avoided because of undue influence – unless it appears that the influence exerted was so potent at the time the will was made as to overcome the power of the testatrix to act freely and upon her own volition.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

Q: When the will was executed, my father was 82 years of age, addicted to alcohol and blind.  He lived with me and was dependent on me for many personal services.  My two brothers, both heads of families, with slender means of support and alcoholics, were disinherited.

My father had resisted going to live with me until forced to do so by the fact that my brothers’ families were broken up by domestic troubles.  As a last resort, he had gone to live with me.

A: Your father's property was his own.  The law does not force a testator to be just, or to recognize natural claims upon his bounty.  So long as the will is his own, and not another's, it must stand.  If the will was unjust, that may have been the natural character of your father – even if he was unjust to your brothers for the very shortcomings that he himself had.

Age, blindness, drunkenness, inconsistency with previously-expressed intention, injustice in the disposition of the estate, dependence on the chief beneficiary, and the influence of your constant presence, do not necessarily spell undue influence.  Especially if the will was drafted by a lawyer freely chosen by your father, the law requires evidence of direct pressure in order to find undue influence.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2011-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878