BAEC Bulletin - July/August 2025

| July/August 2025 | BAEC Bulletin

BAEC Bulletin | July/August 2025 |

FROM STAGE TO COURTROOM: TOM RIZZO’S 100-YEAR ENCORE BY DIANE M. LAVALLEE, RETIRED PROSECUTOR

ed that Colangelo would receive the decedent’s interest in an LLC he created, however, Carlson was to receive the sum of $350,000 when a parcel of real property owned by the LLC was sold. It should be noted that prior to the decedent’s death, Carlson gave the LLC $100,000. Colangelo was also designated as Trustee of the Living Trust and as legatee of the decedent’s or the trust’s in- terest in the LLC; however the Trust provided that it was the “Grantor’s sincere wish and desire that [Colangelo], provide a stream of income, not to exceed the sum of [$350,000] in total to [Carlson]. Both the Will and the Trust had similar in terrorem clauses. Trust clause in question read: In the event that any heir, distributee, beneficiary, agency, organization or other individual (“challenger”) shall contest any aspect of this Trust, or the distribu- tion of the Grantor’s assets pursuant to his Last Will, inter vivos Trust Agreement, beneficiary designations or non-probate beneficiary designations, or shall attempt to set aside, nullify, contest, or void the dis- tribution thereof in any way, then the Grantor directs that such rights of such challenger shall be ascer- tained as they would have been determined had that challenger predeceased the execution of this instru- ment and the Grantor, without living issue. The Trust Agreement left the decedent’s residence to Carlson as well. Colangelo did not make any distributions from the trust to Carlson and claimed in a letter prepared by coun- sel to Carlson that the decedent had used precatory language regarding the stream of income and that the decedent’s estate did not funds to pay Carlson. Colan- gelo demanded that Carlson release Colangelo from all liability and waive her rights to the stream of income, in exchange for the transfer of the decedent’s residence to Carlson. After attempts to work things out with Colan- gelo, Carlson commenced an action in Supreme Court, seeking an order compelling Colangelo to distribute the residence to Carlson, and a declaration that Carlson was a 50% owner of the LLC, based upon a contribution of $100,000 which Carlson had made to the LLC, and a direction that Carlson was entitled to the $350,000 income stream from the LLC. Colangelo claimed that Carlson had violated the In Ter- rorem clause and had thereby forfeited her interests in the Trust. Carlson took the position that she was merely seeking a construction of the Trust Agreement, and to enforce the Trust provisions for her. Supreme Court held that Carlson had violated the In Terrorem clause and had forfeited her interests in the Trust. The Appellate Division affirmed that holding. The New York Court of Appeals granted Carlson leave to appeal.

On appeal the majority of the Court of Appeals held that Carlson was merely seeking to enforce the Trust provisions as written, that she did not violate the In Terrorem clause, and that she was entitled to summary judgment, in part and the case was remitted for further consideration on the matter of whether the language in the Trust surrounding the stream of income was precatory. The majority relied the basic rule in New York that while In Terrorem clauses are enforceable, the are not favored and must be strictly construed. The majority determined that Carlson was mere- ly seeking to enforce the provisions of the Trust Agreement favoring her and none of her causes of actions contested the legality of the Trust or any of the Trust’s bequests. The response of the dissenting 12-page opinion could be summarized: “This is not how in terrorem clauses work, nor how they have been enforced.” All told, nine judges – one in Supreme Court, five in the Appellate, and three at the Court of Appeals – held that Carlson had violated the In Terrorem clause; while only the four in the majority at the Court of Appeals said she had not violated the clause. A caution to Will and Trust drafters to take great care in drafting such clauses.

The Bar Revue was a variety show created and performed by lawyers and judges to roast lawyers and judges. There was always a lot of material to work from. It was an annual event that ran from 1982 until 1999. Last month, several alumni of the Bar Revue Show reunited to celebrate a milestone of a fellow performer: Attorney Tom Rizzo turned 100

years old on June 27, 2025. And he is still practicing law.

Tom had a lifetime of experiences before he became an attorney. As a child, he wanted to play drums. His father, a musician and past president of the American Federation of Musicians Local 92, said no. He brought Tom to a local band who said they needed a bass player. Theirs had been drafted. So at 17 years old, Tom took up the bass. His father went to Wurlitzer and bought him a brand new bass. A month later, Tom was bringing it home, draped across the back seat of his dad’s car, with its neck sticking out the window. Unfortunately, the driveways were narrow, particularly by his neighbor’s bay window. SMACK! The bay window hit the bass and snapped the neck. His father brought the bass back to the manager at Wurlitzer, whom he knew. The manager looked it over and said, “Hmm, looks like it’s defective” and gave Tom a new bass. “It’s good to have friends in high places,” recalled Tom. By 1949, Tom had it all. He had served in WWII, come home and finished college. He was pre-med, hoping for a career that would be financially rewarding. He had taken an accelerated course schedule and graduated as a biology major in two years. “What a waste of time!” Tom said. “I really hated science.” On a happier note, he had also married “Jini” and they had their first of seven children. Tom was working fulltime for the Harold Austin Orchestra at the famous Dellwood Ballroom during the winters and the Crystal Beach Boat and Ballroom in the summers. He had gained a national audience on radio programs and later started his own band, the Tic Toc Timers. Tom also became a member of the WBEN radio orchestra and worked on two TV shows

weekly. “I was making so much money, I was ashamed,” Tom remembered. “Talk about bubbles.” Then came the Taft Hartley Act. “Radio and TV stations were no longer required to have a stand-by orchestra. I lost my job. I was invited to play bass in a band but after having been a bandleader, I didn’t want to do that. I started playing weddings and bar mitzvahs.” One of those bar mitzvahs was for a boy named Stuart Shapiro. Fast forward many years. Tom stopped playing music fulltime and ran his own business on Bailey Avenue. He and Jini raised their children. One day, in his 50’s, Jini “dragged” Tom to a lecture about vitamins. The presenter was a doctor. He was asked a legal question, and Tom was surprised to hear the doctor answer. “He had been a lawyer then became a doctor. He inspired me to do something new.” At 55 years old, Tom took the LSATs and applied to law school. Even his children didn’t know he was going to apply. His son, Gary, said we were “shocked. We didn’t even know he had applied to law school until he got accepted.” “I didn’t want anyone to know in case I fell on my (face),” Tom admitted. He got into a school in Florida and transferred to UB in 1980. Coincidentally, his daughter Nancy had graduated from Albany Law the year before. At UB Law School, Tom sat next to another student in contracts class. Soon after, they learned they were both musicians. They became friends and after graduation, played together in the Bar Revue. They began referring work to each other. They now share office space. That student was Stuart Shapiro.

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