BAEC Bulletin - July/August 2025

| July/August 2025 | BAEC Bulletin

BAEC Bulletin | July/August 2025 |

DEATH & TAXES BY PETER J. BREVORKA AND JILLIAN E. BREVORKA

federal causes of action were unfounded, not viable, or so undeveloped as not to provide grounds for relief, and thus not likely to succeed. Before determining whether there was a sufficient likelihood of success on the merits of the state law claims, though, the Court analyzed whether it should exercise supplemental jurisdiction over those claims. The Court observed that, when pendent jurisdiction over state claims exists, as was the case here, and the federal claims may be dismissed, a district court’s “discretion to decline supplemental jurisdiction is available only if founded upon an enumerated category of subsection 1367(c).” In reviewing those categories, the Court found no impediment to continuing to exercise jurisdiction over plaintiffs’ state Article 78 claim. The Court reasoned that the state law claim is “so related to” the federal claims that “they form part of the same case or controversy;” none of the enumerated categories under section 1367 (c) applied; and judicial economy, convenience, fairness, and comity all favored retaining jurisdiction. In sum, the Court held, “even if plaintiffs’ federal claims were dismissed prior to trial, this was ‘one of the rare cases in which the court should exercise its pendent jurisdiction despite dismissal of plaintiffs’… federal cause[s] of action.’” In turn, regarding the likelihood that plaintiffs would succeed on the merits, the Court found that there was no rational basis for defendant to have denied the exemption request. Finding also that plaintiff would suffer reparable harm absent an injunction, and that the balance of equities tipped in plaintiff’s favor, the Court granted the motion for a preliminary injunction. Americans with Disabilities Act In Harper v. Charter Communications, 21-cv-760-GWC (May 21, 2025), plaintiff sued her employer for failing to provide her with a reasonable accommodation for certain disabilities in violation of the Americans with Disabilities Act (“ADA”). Plaintiff alleged that defendant denied her request to work from home from 2017 until 2020, when New York mandated that most employees work from home due to the COVID-19 pandemic. After the pandemic restrictions were lifted, defendant launched a work from home program the criteria of which plaintiff met and which plaintiff has availed herself of ever since. Defendant moved for summary judgment, arguing that the claim now was moot and that it complied with the ADA by providing plaintiff with other reasonable accommodations. The Court denied the motion, holding first that plaintiff’s claim was not moot simply because she was able now to work from home. The relief plaintiff requested is different than the relief she has been provided both because the present work from home program is contingent upon meeting certain eligibility criteria and because she

is seeking monetary damages. The Court next found that triable issues remained concerning whether defendant had provided a reasonable accommodation when it denied plaintiff’s initial request to work from home. Based on the evidence presented, the Court found a jury could conclude that defendant failed to provide such a reasonable accommodation because she did not “enjoy equal benefits and privileges of employment as were enjoyed by… other similar situated employees without disabilities.” Another triable issue was whether the accommodation requested by plaintiff was reasonable. According to the Court, a jury could find that working in the office, as opposed to from home, was not an essential function of plaintiff’s job, especially given the strong evaluations she had received since working from home and other facts pertaining to defendant’s subsequent work from home program. Motion to Seal Settlement Documents In Wyatt v. Kozlowski, 19-cv-159-EAW-LGF (May 6, 2025), plaintiff brought a wrongful death action against multiple employees of the Erie County Sheriff’s Department and the parties ultimately reached a settlement. The parties then jointly moved to seal any reference to the settlement amount, attorneys’ fees, or any item or figure that could be used to calculate the settlement amount. In considering the motion, the Court observed that it is required to undertake a three-part analysis. First, it must determine whether the document is a “judicial document.” Next, if it is, the Court must determine the weight of the presumption in favor of public access that attaches. Finally, the Court must consider whether competing considerations outweigh the presumption. In performing this analysis, the Court did not hesitate to find that documents submitted in connection with a motion for approval of a settlement—as is required in a wrongful death action like this—are judicial records to which a strong presumption of access applies. The Court then found that the parties’ motion did not provide ample support to seal the information subject to the motion because, among other things, the motion was not supported by a memorandum of law as required by the Court’s Local Rules of Civil Procedure (which alone was a basis for denial of the motion). In addition, the fact that the parties settled the case relying on the settlement remaining confidential did not alone justify granting the motion to seal. As a result, the motion was denied, but the denial was without prejudice to the filing of a “properly supported” renewed motion to seal within 14 days “that is narrowly tailored and provides a thorough explanation of why the presumption of public access has been overcome.”

Carlson v. Colangelo, 2025 WL 1127765 (April 2025) Carlson v. Colangelo is one of the very rare instances in which a trust and estate case made it all the way to the New York Court of Appeals. Not only did the case earn a full opinion by the Court, but it resulted in a 4-3 decision, with a very aggressive dissent. The trust at issue contained an In Terrorem clause, and the major issue in the case was whether the action brought by the trust beneficiary against the trustee violated the In Terrorem clause, or, was merely an action to interpret and enforce the terms of the trust. Spoiler Alert: The majority held that the action was merely to interpret and enforce. But, before we discuss the case, we need to relate our experience in preparing to write this column. In short: DON’T TRUST AI. The majority and dissenting opinions in the Carlson case are relatively long, generat- ing a total of about 33 double-spaced pages. With the increasing usage of AI by attor- neys for everything from research and to drafting, and more and more stories being published about the pitfalls of relying on AI, we thought it might be interesting to see how AI would summarize the decisions. We put the following search request into a well-known legal research provider with AI research capabilities: “Summarize the New York Court of Appeals majority opinion and the dissent in Carlson v. Colangelo.” The response we got was stunning. The opening line to the AI response read: “The New York Court of Appeals majority in Carlson v. Colangelo held that the plaintiff’s claim for intentional infliction of emotional distress was not sufficiently supported by the facts presented.” The AI response went on to discuss intentional inflicting of emotional distress and cited several cases deal- ing with that tort. It also discussed the alleged dissenting opinion dealing with inten- tional infliction of emotional distress. Interestingly, the AI response did not offer any citation to Carlson v. Colangelo . Carlson v. Colangelo has absolutely nothing to do with intentional infliction of emo- tional distress, and the opinions in the Court of Appeals nowhere mention that tort. We then revised the search request to read: “Summarize the New York Court of Ap- peals majority opinion and the dissent in Carlson v. Colangelo, 2025 NY Slip OP 02264.” That generated a response which discussed the real case and the issues about In Terrorem clauses, and whether the clause in this case was violated, or, whether the beneficiary’s action was merely to obtain an interpretation of the trust agreement and enforcement of the provisions for the beneficiary. That revised re- sponse included reference to a citation ___ N.E. 3d ___(2025). Both AI responses included the following admonition: “The above response is AI-gen- erated and may contain errors. It should be verified for accuracy.” Turning now to a discussion of this case and the decision from the Court of Appeals. The decedent was survived by his romantic partner Kristine Carlson (“Carlson”), who was the primary beneficiary of his Living Trust, and by his daughter, Crissy Colange- lo (“Colangelo”), from an earlier romantic relationship. The decedent’s estate plan provides for both Carlson and Colangelo. Colangelo was named the Executor in the decedent’s Will and was both the principal and residual beneficiary under the Will. That said, the decedent’s Will was intended to be a pour-over Will into his revocable living trust. The Will did provide that if the Trust was deemed invalid or not in exis- tence, then Carlson was to receive the decedent’s residence. The Will further provid-

PETER J. BREVORKA Partner, Hodgson Russ LLP

JILLIAN E. BREVORKA Partner, Hodgson Russ LLP