History of Hostility, New York Court-style...(MORE, CLICK HERE)

NY Lawyer's "Vexatious Conduct" Gets Client Axed as Executor...MORE.........

New York Lawyer
November 8, 2007

By Mark Fass
New York Law Journal

The "vexatious conduct" of the attorneys in the distribution of a woman's estate has led to the disqualification of their client as executrix of the estate.

The complex familial dispute began with the intestate death of 83-year-old Roseanna DeLaune, in 1997. Pursuant to statute, her sister, Paula M. Venezia, was appointed administrator; her heirs included her disabled nephew, William Pennington III.

Ms. Venezia hired her childhood friend from Manhattan's Little Italy, attorney Alfred Sica, to serve as counsel. He in turn hired the firm now known as Vaneria & Spanos.

In 2003, Ms. Venezia, 85, died, leaving the entirety of her own million-dollar estate to the same nephew, Mr. Pennington. She nominated her goddaughter, Joanne Zaccaria, to serve as executrix. Ms. Zaccaria, who had no role in the disbursement of the first estate, hired the same counsel - Mr. Sica and Vaneria & Spanos.

Meanwhile, over the intervening six years, the administration of Ms. DeLaune's estate had devolved into what Mr. Sica later termed "combat" between himself and Mr. Pennington.

Loath to let history repeat itself, Mr. Pennington objected to Ms. Zaccaria's appointment, based in part on her selection of the attorneys he crossed swords with following the death of his first aunt.

Brooklyn Surrogate Margarita Lopez Torres has granted the petition, disqualifying Ms. Zaccaria from overseeing Ms. Venezia's estate. The surrogate cited the "vexatious conduct" of Ms. Zaccaria's chosen attorneys during the administration of the previous estate.

"To permit Zaccaria to serve as executor, along with her chosen counsel of Vaneria & Spanos and Alfred Sica, Esq., would be detrimental to this estate," Surrogate Lopez Torres held in Estate of Venezia, 2100/2003.

"Because of the excessively hostile and bitter relationship between the nominated fiduciary, her counsel and Pennington, the appointment of Zaccaria as fiduciary . . . would have the practical effect of rendering the bequests of decedent to her nephew a nullity, as this estate would surely be taken down the inevitable road to further combative litigation," she said.

Ms. DeLaune died on Jan. 1, 2003, shortly after turning 83. In the present decision regarding Ms. Venezia's estate, Surrogate Lopez Torres summed up the acrimony of those proceedings.

"The testimony shows that Alfred Sica, in his capacity as co-conservator in the DeLaune estate, failed to communicate with Pennington as to the progress of the conservatorship where Pennington testified that Sica 'stopped being responsive to my inquiries,' nor were they responsive to his concerns," she wrote.

In the DeLaune case, Mr. Sica denied the then-indigent Mr. Pennington's request for a disbursement that would allow him to retain counsel, according to the decision. Mr. Pennington, who suffers from several disabilities, sought the appointment of a guardian to defend his interests, which Mr. Sica also opposed.

But in the Venezia matter, Surrogate Lopez Torres wrote, "in the instant proceeding when Pennington had sufficient funds to retain competent counsel, Zaccaria's counsel argued that Pennington's disabilities required that a guardian ad litem be appointed, in a transparent attempt to prevent Pennington from litigating with them."

Seeking to avoid a reprise of the prior conflict and newly able to afford counsel, Mr. Pennington objected to Ms. Zaccaria's appointment.

In March 2004, Surrogate Michael Feinberg granted Mr. Pennington's motion for summary judgment.

Four months later, the Appellate Division, Second Department, reversed, and following the removal of Surrogate Feinberg by the Court of Appeals for awarding $8.6 million in fees to a friend, remitted the case to Surrogate Lopez Torres to determine "whether such friction and hostility would interfere with the proper administration of the estate."

History of Hostility

After an evidentiary hearing, Surrogate Lopez Torres ruled that "this court is required to answer this question resoundingly in the affirmative." The court cited numerous instances of Mr. Sica's "vexatious conduct" toward Mr. Pennington.

"The court notes that Sica described his relations with Pennington as 'combat' . . . The hostility is also demonstrated by counsel for Zaccaria in failing to turn over documents from the DeLaune estate for years after Pennington was appointed fiduciary," the judge wrote.

She noted that "in addition to his continued holding of over $50,000 in DeLaune estate funds in escrow, [Sica] admitted to depositing an IRS refund check for $105,000 . . . without any authority to do so well after Pennington was appointed fiduciary."

Surrogate Lopez Torres also cited Ms. Zaccaria's decision to hire Mr. Sica and Vaneria & Spanos for the administration of the estate, as well as her contention that she would not direct her attorneys "to do anything differently than the way they've conducted themselves thus far."

"While a testator's choice of fiduciary is entitled to deference, it cannot be at great expense to the overriding intention of decedent's testamentary plan," Surrogate Lopez Torres wrote. "It certainly could not have been decedent's intent to see her entire fortune squandered on legal fees in order to vindicate the appointment of her choice of fiduciary."

Mr. Sica said that he was disappointed with the decision.

"I've been practicing law over 50 years," he said. "I don't get involved in 'vexatious conduct.' I don't know how she came to that conclusion. It puzzles me."

Mr. Sica's co-counsel, Dimitrios Spanos, called the decision "extra-judicious, heavy-handed and unjustified." He cited several "omissions and distortions" on which to base a possible appeal, including the surrogate's refusal to allow the firm to resign to avoid Ms. Zaccaria's disqualification, as well as the lack of the "longstanding hostile relationship" between her and Mr. Pennington cited by the decision.

Mr. Pennington is no longer represented by counsel. His most recent attorney of record was David G. Keyko of Pillsbury Winthrop Shaw Pittman.