March 2, 2023 – The Honorable James Hudson of the Supreme Court, Suffolk County has dismissed an untimely action brought to enforce $1.55 million in loan guaranties, in BW Patio, LLC v. Barnet, Index No. 202160/2022.   The case was a follow-up to a prior mortgage foreclosure action in which the underlying loans were found to have matured in 2011.  In the 2022 action, the plaintiff was seeking payment on personal guarantees, plus millions in interest.  The defendants moved to dismiss the action on several grounds, including that the action was brought beyond the six-year statute of limitations.  Justice Hudson agreed with the defendants and found that the loans matured in 2011, more than eleven years before the action was commenced on the guarantees, and that the action, having been commenced more than six years after the maturity date, was “time-barred.”  Justice Hudson rejected the plaintiff’s attempt to alter the plain meaning of the parties’ agreements through extrinsic evidence and also found the remaining claims failed to state a viable cause of action.   

February 8, 2023 – The Appellate Division, Second Department, has upheld a dismissal of an easement holder’s claim that the easement was “exclusive” and prohibited the owner of the property from using or widening the road, in Berg v. Cahill.  The action involved an intersection of title and zoning issues, because the plaintiffs were objecting to a proposed residential/golf course development project on the ground that the developer could not use a road to access the property, based on their claim that they held an exclusive easement over the road.  The Court noted that  “truly exclusive” easements are disfavored, and easements “will be deemed nonexclusive ‘unless the opposite intent unequivocally appears,'” before concluding that, in this case, the instruments did “not contain unequivocal language manifesting an intent to create an easement which excluded the fee owner of the trust property.”  The court also rejected the plaintiffs’ arguments that the owner was prohibited from widening the road or that the plaintiffs could claim that the development would interfere with the plaintiffs’ use of the road before the development was put into effect. 

October 2022 – October is National Estate Planning Month and October 17 to 23, 2022 is National Estate Planning week, which started in 2008 when the House of Representatives “estimated that over 120,000,000 Americans do not have up-to-date estate plans to protect themselves or their families in the event of sickness, accidents, or un-timely death” and encouraged “the distribution of estate planning information by professionals to all Americans.”  Despite this 14-year effort to educate Americans about the importance of estate planning, more recent surveys estimate that about two-thirds of Americans still have no estate plan.  Additionally, with the Covid-19 pandemic claiming over a million American lives in just over two years, it is more important than ever to have an estate plan in place.

Many people find reasons to delay addressing their estate planning for reasons such as a lack of assets, lack of knowledge, lack or time or the belief that the process is too expensive.  In the event that a person should pass away without a valid Last Will and Testament in place, however, New York State intestacy laws will dictate the distribution of a decedent’s assets, which may not match what such person’s wishes would be for the distribution of his or her estate.  Having an estate plan in place for distributing assets and memorializing one’s wishes can thus provide a needed relief for a decedent’s loved ones in times of uncertainty and stress.

For the majority of people, preparing an estate plan includes having (at a minimum) a Last Will and Testament, Living Will/Healthcare Proxy, and Power of Attorney in place, all of which should be prepared by legal professionals and are summarized as follows:

1.  Last Will and Testament – The most important estate planning document is the Last Will and Testament. A will directs who is to receive different assets, who is to act as the fiduciary to oversee the administration of the estate and to distribute the assets, and sets forth the parameters and guidance for the fiduciary in administering the estate. A will is a document that only becomes effective upon a person’s death and can be changed by that person at any time during their lifetime as long as the person has the capacity to understand their decisions and actions.

Many people believe that having a will prepared is unnecessary while they are still young, but a will is especially important for parents with young children as it allows them to state their wishes regarding who would manage their assets and care for their children in the event of their death.  While no one wants to think about these issues, addressing them now can provide parents with the comfort of knowing that their wishes will be known in the event of their death and can alleviate some of the stress their survivors might encounter had there not been an estate plan in place.

As people age and their family and wealth grows, protecting their assets may become increasingly important.  In addition to ensuring that assets are passed according to one’s wishes, a Last Will and Testament is an important component of tax planning. With the current federal estate tax exemption due to end in 2025, the maximum amount of assets that will be free of estate tax may decrease, and a Last Will and Testament can provide for ways to minimize or avoid such taxes.  In addition to contemplating tax changes in a Last Will and Testament, individuals in high tax brackets may look to other options such as creating trusts and gifting to ensure that their families are protected from a large tax bill upon their death.

Finally, with so much of our daily activities now being conducted over the internet, a Last Will and Testament can also specifically provide for a decedent’s fiduciary to be able to access such decedent’s online information, such as bank accounts, investment accounts, credit cards, and smartphones.

2.  Living Will/Health Care Proxy – A living will and health care proxy provides guidance to family and medical doctors in the event of an emergency where patients are unable to make decisions regarding their own care. In the event of catastrophic events or terminal illness, by appointing an agent to make healthcare decisions and setting forth firm wishes and thoughts about end-of-life care, the burden is lifted from family members who may be debating different treatment options. Highly specific situations can also be addressed, including the usage of life-saving, artificial breathing technology that is crucial to surviving an extreme Covid-19 related illness. With the changing state of medicine, these documents can also address video visits and telehealth in the event that the appointed agent is unable to meet with treatment providers in person. This document can also contain a HIPAA release to allow doctors and treatment providers to discuss medical information with the appointed agent.

3.  Power of Attorney – While a health care proxy allows an agent to make treatment-related decisions on a patient’s behalf, a power of attorney allows an agent to make certain financial and legal decisions on a living person’s (referred to as the “principal”) behalf. In the event of a loss of competency or an emergency, such as a broken arm that prevents writing, or an instance where travelling outside the state or country prevents the principal from being able to handle a financial or legal situation, an agent can step in and ensure that decisions are made in the principal’s best interests. Without a power of attorney, managing the principal’s financial and legal affairs can require the time-consuming and costly effort of going to the courts and asking to be appointed as guardian.  The New York form of Power of Attorney was revised in 2019, and some financial institutions may resist accepting old forms that they may consider outdated. The new form combines the previously separate gifting provisions with the basic form provisions.  These provisions can be especially important when it applies to qualifying for benefits, including Medicaid or financial assistance programs.

4.  Financial Planning. In addition to the three key documents discussed above, another aspect of estate planning involves the management of financial assets. Transfer-on-death and joint bank accounts with rights of survivorship will automatically transfer the assets on the death of the owner. Homes that are owned jointly with rights of survivorship will pass automatically to the surviving owner, and homes that are owned by married couples as tenancies by the entirety will pass automatically to the surviving spouse. These options can be valuable tools as they effectively transfer assets on the date of death without having to pass through a probate or administration proceeding. Having access to these assets immediately can assist surviving loved ones with funeral planning, bill paying, and other necessary expenses.

For many people, retirement accounts comprise the bulk of their assets. IRAs, Roth IRAs, 401k accounts and other retirement and pension accounts allow for the assets in such accounts to be automatically transferred to beneficiaries by allowing the owners of such accounts to specifically name beneficiaries when completing the forms relating to such accounts. It is important to keep retirement account beneficiaries up to date in order to ensure that the assets in such accounts are distributed in accordance with the account owner’s wishes, and life events such as a marriage or divorce will often require updating beneficiary designations.  Additionally, the passage of the SECURE Act in 2019 significantly changed the rules applying to retirement benefits, particularly in those cases where benefits are being left to beneficiaries other than a surviving spouse. Professional advisors can help ensure that the named beneficiaries will not be subject to any adverse consequences as a result of the passage of the SECURE Act.

August 15, 2022 – William Watson Esseks, one of the firm’s founders, has died at the age of 88.  He had practiced law on Eastern Long Island for 54 years, most of that period for the firm that he formed in 1965 and still bears his name.

Bill was born in Englewood, N.J. and grew up in Tenafly, N.J. and New Rochelle, N.Y. His father was a lawyer in the United States Department of Justice and in private practice in New York City. His mother raised Bill and his three siblings. Bill’s family spent summers in Center Moriches, where he was first introduced to the wonders of Long Island’s East End, which became the center of his personal and professional life.

Bill attended New Rochelle High School and then Oberlin College, where he met his wife, Dorothy Clark Esseks, who passed in 2017. He majored in government and spent a college semester at American University in Washington D.C. Bill graduated from New York University School of Law in 1959.

Bill was fond of telling younger firm attorneys the story about how he had a government law job lined up after law school in Washington, D.C., but one of his father’s colleagues gave him advice that would change his path:  “If you want to learn how to really practice law, be a country lawyer for a few years.  You can always come back to D.C.”  Bill took the advice, moved to Riverhead in 1959 with Dorothy, but never left. That year, he joined Griffing, Smith & Tasker, practicing in Riverhead and Greenport until 1965, when he formed the firm Tooker Tooker & Esseks.  He worked for the next 48 years mostly from the firm’s Main Street office in Riverhead (which remains the firm’s primary office to this day), but could usually be found on Fridays at an office he kept in Water Mill.   Bill was a senior member of the firm, whose name had changed over the years and was called Esseks Hefter & Angel at his retirement in 2013.

Over more than a half century, Bill left an indelible mark on the East End’s legal community and its landscape.  He focused on land use and planning issues, representing owners and local governments in controversies over real estate development.  He represented his clients in many fora, from zoning boards and town boards to the highest courts in the state and nation. He argued seven cases before New York’s highest court, winning six.

Bill was an avid reader and devoted himself early on to the cause of public libraries, serving on the board of the Riverhead Free Library and chairing the library’s building committee for the construction of its first building. He was also on the board of the Suffolk County Cooperative Library System and active in the American Library Association. He was a champion of public funding of and public access to books and knowledge.  One of his favorite cases near the end of his career was his successful representation of the East Hampton Library in its hard-fought effort to expand its children’s wing.

Bill was a dedicated runner for many years, completing innumerable 5k and 10k races locally as well as several half marathons. He also loved to sail and spend time on the water and often remarked that it made no sense to travel in the summer when this was the prettiest place in the world. Bill and Dorothy were also avid dancers, whirling each other across dance floors all around the world on their travels.

Bill is survived by daughter Katherine; son James and his husband Rob Ornstein; son David and his wife Katy Stokes; grandchildren William and Eloise Esseks; and brother John Dixon Esseks and his wife Molly Esseks, of Lincoln, Nebraska.

Donations in Bill’s memory can be made to the Friends of the Riverhead Free Library.

A memorial service will be held this fall.  For more information, please email eha@ehalaw.com

June 30, 2022 – In the ongoing “truck beach” dispute between several homeowner associations and the Town of East Hampton, the Supreme Court, Suffolk County (Hon. Paul J. Baisley, Jr.) has issued an order on June 30, 2022 finding the Town of East Hampton and the Trustees of the Town of East Hampton “guilty of civil and criminal contempt of the Appellate Division, Second Department’s decision of February 2, 2021 and this court’s modified judgment entered April 12, 2021”.  As a penalty, the court issued the maximum fine of $239,000 against the Town and Trustees and directed them to pay the associations’ attorney’s fees.

The underlying Appellate Division decision had found that the associations owned a 4,000-foot stretch of beach in Amagansett and that the Town and Trustees did not have the power to issue permits allowing members of the public to use the associations’ beaches.  The Supreme Court then granted a judgment with an injunction restricting the Town and Trustees from issuing “permits purporting to authorize their holders to operate and park vehicles” on the associations’ beaches.

After holding a hearing, the Supreme Court concluded “that the Town Code still permits vehicles on plaintiffs’ properties and that the Town has continued to issue permits allowing permit holders to drive on Truck Beach,” in derogation of the injunction.  In a scathing rebuke of the Town and Trustees, the court found that they “have clearly demonstrated an appallingly studied indifference and deliberate disobedience to the lawful and unequivocal orders of this court and the Appellate Division.”

February 22, 2022 – The Supreme Court, Suffolk County (Hon. Christopher Modelewski) has upheld a zoning board’s decision and rejected certain neighbors’ Article 78 proceeding in Porges v. Village of Westhampton Beach Zoning Board of Appeals.  The neighbors had commenced the proceeding to seek to annul the zoning board’s decision, which had granted the applicant variances to allow some additions to be built on the waterfront Dune Road property.   The neighbors’ challenge centered around some language in a prior zoning board decision, which the neighbors claimed limited the owner’s ability to seek variances in the future.  The court rejected the neighbors’ claim and found that the zoning board’s decision “was rational and supported by evidence in the record.”

July 28, 2021 — The Supreme Court, Suffolk County (Hon. William J. Condon) has dismissed an action for specific performance of a $22 million real estate agreement, in Real-X Realty, LLC v. Crest Bellport, LLC, Suffolk Index No. 606831-2021.   The property was owned by two co-owners, each with a 50% interest.  The prospective purchaser brought an action to to enforce a contract that was signed only by one of the co-owners, even though the signature line for the second owner was left blank.  The court found that the partially-signed document was unenforceable, “because the signature of only one party to a non-severable contract is insufficient to create an enforceable agreement that would bind all.”

June 16, 2021 — The Supreme Court, Suffolk County (Hon. Joseph C. Pastoressa) has granted summary judgment and awarded the seller of a hotel property the downpayment of $360,000 as liquidated damages, in Front & Third, LLC v. Blue Flag Capital, LLC, Index No. 606169/2020.  The decision involved an application of the rules regarding the establishment of a “time of essence” closing in New York.  As the court found, the seller in this case properly established a time of essence closing by providing the purchaser with notice and a reasonable time to close.  The purchaser’s failure to appear at the closing therefore amounted to a default, entitling the seller to retain the downpayment.

The firm is pleased to announce that Elizabeth L. Baldwin has joined the firm as counsel..  Beth brings extensive municipal, land use, and real estate experience to the firm, having served as both Village Attorney for the Village of East Hampton and Assistant Town Attorney for the Town of East Hampton.  During her 12 years as a municipal attorney, Beth counseled two Village of East Hampton administrations through the beginning and height of the Covid-19 pandemic, and she served two Town of East Hampton administrations, representing the Town’s Zoning Board of Appeals, successfully defending over a dozen Article 78 proceedings, representing the Town in most of the Town’s real estate transactions, and drafting legislative initiatives for the Town Board.  Beth will be working with the firm’s municipal, land use, and real estate practice groups.

April 21, 2021 — Six years in the making, the Village of Westhampton Beach began construction of a new municipal sewer system to serve its downtown Main Street.  The Village’s system will connect to the County’s wastewater treatment facility located at Gabreski Airport, furthering the goal of shared services and saving millions of dollars in construction costs.

The new sewer system will benefit water quality by eliminating 5,000 pounds of nitrogen from its bay.  It will also provide new opportunities for the Village’s downtown, including  apartments above Main Street shops and expanded dining opportunities.

The Village successfully pursued and obtained nearly $11 million in grants from the NYS DEC, the NYS Environmental Facilities Corporation and the Southampton Town Community Preservation Fund, covering most of the costs of construction.

The new sewer system project follows and builds upon the benefits from the recently-completed downtown revitalization project.  As the Village’s Mayor, Maria Z. Moore, noted, “All of the environmental quality features incorporated into our recently completed Main Street Reconstruction Project including new drainage, hydrodynamic separators to filter rain runoff, permeable pavers and LED lighting, combined with the positive effects we can expect from the sewer system will go a long way towards improved water quality and protecting our environment.”

EHADP counsel, Stephen R. Angel and Anthony C. Pasca, who have served as Village Attorneys since 2014, helped shepherd the Village through both the downtown revitalization and sewer system projects.