Brooklyn Surrogate's Court 2005

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Tuesday, April 26, 2005

Fate of Surrogate's Position May Be Decided in Summer

New York Law Journal - April 26, 2005

By Daniel Wise

THE NEW York Court of Appeals has set June 9 as the date it will hear oral argument on Brooklyn Surrogate Michael H. Feinberg's appeal to overturn the recommendation of the state Commission on Judicial Conduct that he be removed from the bench.

The date is several months earlier than many experts anticipated and makes it likely that if Surrogate Feinberg loses his appeal, and his job, his replacement will be chosen this year.

Court watchers had anticipated that the Court of Appeals would not have heard the case until September and no replacement could have been selected until the 2006 election.

But Surrogate Feinberg's new lawyer, Henry M. Greenberg of the Albany office of Greenberg Traurig, asked the Court of Appeals to schedule the argument in June, and the Court agreed.

Mr. Greenberg declined to comment.

In February, the commission voted 6-3 to recommend that Surrogate Feinberg be removed for routinely approving excessive fees for Louis R. Rosenthal, a longtime friend and counsel to the public administrator in Brooklyn.

Pending its determination, the Court of Appeals has suspended Surrogate Feinberg with pay.

There are several potential contenders to succeed the surrogate should the Court sustain his removal, political sources say. They are Brooklyn Justices Bruce Balter and Lawrence S. Knipel; Brooklyn Civil Court Judge Margarita Lopez Torrez; and Helene E. Blank, a Brooklyn-based practitioner.

Should the Court sustain his removal before Aug. 8, under state law, Surrogate Feinberg's successor will be chosen this year, according to Lee Daghlian, spokesman for the State Board of Elections.

The Court is likely to issue its ruling before it goes into summer recess, which would be about July 15, according to Gary Spencer, the Court's spokesman.

If the ruling goes against Surrogate Feinberg, there are two possibilities depending upon the timing of the decision.

A ruling before July 7 means candidates would be required to submit the required number of petition signatures and to compete in the Sept. 13 primary for the nomination. The primary petition period starts on June 7 and ends July 14.

Should the Court rule after July 7, but before Aug. 8, party leaders would be authorized to select their party's candidates to run in the Nov. 8 general election. Independent candidates could also run in the general election. The petitioning period for independent candidates runs from July 12 to Aug. 23.

The conduct commission recommended Surrogate Feinberg's removal on the strength of its finding that he routinely approved fees for Mr. Rosenthal of more than 6 percent of the value of the estates of persons who died without wills. The commission found that a 6 percent ceiling on fees was used in other boroughs and agreed to under a pact negotiated for Brooklyn between Surrogate Feinberg's predecessor and the state Attorney General's Office.

Mr. Rosenthal, as counsel to Brooklyn Public Administrator Marietta Smalls, was responsible for processing the estates of persons who die without wills and have no close relative to wind up their affairs.

The commission found that Mr. Rosenthal received a total of $9 million, which was $2 million more than he would otherwise have been paid.

Justice Albert Tomei, who in March was appointed interim Surrogate by Chief Administrative Judge Jonathan Lippman, has removed Mr. Rosethal, but allowed him to finish any cases he was working on.

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