Bonnie Lawston-LiEstate Attorney by cjleclaire
Long Island Estate Attorney,Estates,Trusts Administration,Litigation
Jan 05, 2016 | 47200 views | 0 0 comments | 376 376 recommendations | email to a friend | print | permalink

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Matter of Van Patten—Undue Influence
by cjleclaire
Feb 15, 2019 | 23624 views | 0 0 comments | 718 718 recommendations | email to a friend | print | permalink

Probate Administration | Wrongful Actions

There are certain basic legal requirements when a person transfers property, conveys a power of attorney or establishes a plan for the distribution of an estate. Among the most important are:

  • The person must have appropriate legal capacity
  • The person must not have been subject to “undue influence”

In the Matter of Wechsler, a 2015 opinion from the New York County Surrogate’s Court, specifically addresses both of these issues.

The Facts

Lewis Wechsler died in February, 2006, survived by his wife of 30 years and two adult children from a previous marriage. In the probate proceedings to settle his estate, a will executed in November 2004 was offered to the court. That will placed all his property into trust for the lifetime benefit of his wife, with his children designated as beneficiaries upon her death. The deceased had executed five prior wills, the first in 1992, with the same provisions.

During the probate proceedings, however, it was discovered that most of the property that would have passed through the will had been transferred to the decedent’s wife through a serious of transactions, starting in June, 2005. This included the execution of a power of attorney in favor of the wife, as well as the transfer of individually owned property to jointly held property. The executor asked the Surrogate Court to compel the wife to turn over property, alleging that the decedent lacked capacity to make property transfers or execute a power of attorney, and that the wife had exerted undue influence to bring about the property transfers.  The wife asked the court to dismiss the executor’s motion, arguing that there was insufficient evidence of lack of capacity.


As a general rule, legal capacity refers to the ability to understand both the nature of a transaction or agreement, as well as its consequences. In Wechsler, the executor introduced evidence indicating that the decedent had been admitted to the hospital the day before he executed the first transfer of property to his wife (in June, 2005). Notes from that admission state that he “was becoming more confused recently,” and diagnosed him with a “waning mental status,” indicating that he occasionally mistook his daughter for his wife. Other documentation from that visit described him as “forgetful” and prone to lapses in short-term memory.

The wife contended that the confusion and disorientation demonstrated that day were a one-time occurrence, citing other assessments that the decedent was “alert and oriented” and able to communicate his needs.

The court ruled that the determination of whether the deceased had the necessary capacity to execute the first transfer was a factual issue that needed to be (and had not been) resolved. Accordingly, the court denied the motion to dismiss. However, because the executor had introduced no evidence suggesting that the decedent experienced the same capacity issues when the other property was transferred, the court ruled that all transfers except the first one were valid. (NOTE: The executor had introduced expert testimony from a medical professional alleging incapacity at the time of the other transactions. The court rejected that testimony, citing the fact that the expert had never personally examined the decedent or discussed his condition with attending nurses or physicians).

Undue Influence

As stated by the court in Wechsler, undue influence requires a showing of influence that amounted to “moral coercion.” That influence must have “restrained independent action” and must have led the decedent to do something which was “against his free will and desire.”

The court concluded that there were genuine issues regarding whether or not the wife exerted undue influence. The medical record indicated that he was in extremely poor health and suffering from depression at the time of the transactions. Evidence also showed that the wife was integrally involved in all the transactions. She drafted some of the letters requesting property transfers and also brought documents to the decedent, so that he could sign them from his hospital bed. In addition, the court was troubled by the fact that the decedent had used the same attorney to handle all prior estate planning (the executor), but that attorney had not been consulted before these transactions.

Because the court perceived that there were still factual issues to be resolved regarding the question of undue influence, the court denied the wife’s motion to dismiss the action.

Contact the Law Office of Bonnie Lawston, PC

At the Law Office of Bonnie Lawston,  P.C. , we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online  or call us at 631-425-7299  to set up a free initial consultation.

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Can Your Family Have Access to Your E-Mail after Your Death?
by cjleclaire
Feb 23, 2018 | 40272 views | 0 0 comments | 710 710 recommendations | email to a friend | print | permalink

In today's electronic world, the idea of property has changed dramatically. In the past, when you were putting together an estate plan, the only intangible property that might be a part of it was certain types of securities. Now, however, you can have e-mail accounts, online subscriptions, social media passwords and other digital assets. Recognizing the importance of digital property, the New York legislature recently enacted laws setting forth the rights of potential heirs to such property.

In Matter of Serrano, 2017 NY Slip Op 27200, (Sur. Ct., New York County, June 14, 2017), the court addressed the issue of whether the fiduciary of an estate had a statutory right to access to online  passwords and other digital data, so as to "inform friends of [the decedent's] passing…and close any unfinished business." The judge allowed disclosure of contacts and calendar information from the deceased's Google account, but denied access to the content of the e-mails in the Google account, reasoning that the contacts were necessary for the administration of the estate. Under the recent New York law, the custodian of electronic records (here Google), can be required to disclose to the personal representative of an estate a "catalogue of electronic communications sent or received by a deceased user." The statute defines "catalogue of electronic communications" to include only the identity of any person with who the deceased had an electronic communication, the time and date of that communication, and the e-mail address of that person.

In a more recent Surrogate Court opinion, a fiduciary's request for access to the contents of a decedent's Google account was denied. In Matter of White, 2017 NYLJ, October 3, 2017, at p. 25, the court expressed concern that allowing "unfettered access" to digital property had the potential to involve the unnecessary disclosure of sensitive or confidential information, unrelated to the administration of the estate. The court concluded that, when evaluating a request for access to digital data, there must be a balancing of interests—the interest of the fiduciary to properly administer the estate, and the interest of the deceased in his or her privacy. Accordingly, the court followed the precedent in Serrano, allowing disclosure of contact information only.

The estate administration process can be complex and confusing. It's important to have a strong and knowledgeable lawyer to guide you through the process. Attorney Bonnie Lawston offers more than 20 years of experience to clients in Nassau County and Suffolk County.

Contact the Law Office of Bonnie Lawston for all your Probate and Estate Administration matters. 


To set up a free initial consultation, contact us by e-mail or call us at 631-425-7299 or 24/7 at 855-479-4700) for an appointment.

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Surrogate Court Gives Lifetime Promise Priority Over Will
by cjleclaire
Feb 16, 2018 | 36597 views | 0 0 comments | 1151 1151 recommendations | email to a friend | print | permalink

Perhaps the most common way to transfer property upon death in the State of New York is through a valid will or trust.   What happens, though, if you’ve entered into a binding contract to transfer certain property to a specific beneficiary under you will, but the terms of the document convey it to someone else? Which document takes priority?

The Surrogate Court for Nassau County looked at this specific legal issue in Schwartz v. Bourque, 2017 NY Slip Op 31621 (U)(Sur. Ct., Nassau County, June 14, 2017), concluding that a person who enters into a valid contract to transfer property upon death may not subsequently agree to transfer the property to another person, either while still alive or in a will.

In the Schwartz case, the dispute centered on title to the real property where the decedent and two subsequent generations resided. Initially, the deceased (Mother) was the sole owner of the property, but executed an agreement in 1978 that allowed her daughter (Daughter) to live on the property for as long as she desired, provided she paid the “carrying charges” on the residence. The agreement also promised to convey full legal title to the Daughter in the Mother’s will.

The 1978 agreement was amended six years later, with the preparation and execution of a new agreement and a deed, immediately conveying a one-half interest in the property to the Daughter. In 2012, however, the Mother executed a new deed, attempting to transfer the remaining one-half interest in the property to her granddaughter (Granddaughter). The Daughter objected to the conveyance, arguing that it violated the 1978 agreement. The Granddaughter claimed that the 1984 agreement superseded the 1978 agreement and, because it contained no clause regarding the transfer of the property by will, that clause was no longer valid.

After reviewing the facts, the court ruled that a subsequent contract will only replace and render a prior contract void under one of two circumstances:

  • The subsequent contract contains specific language voiding or superseding the earlier agreement—the court found that it did not
  • The contracts covered exactly the same subject matter—the court found that they did not, as one made a promise of a testamentary disposition and the other did not

Because the Granddaughter could not show that the 1984 agreement superseded the 1978 agreement and revoked the promise to convey the property to the Daughter in the Mother’s will, the Granddaughter was not legally entitled to any interest in the property. Accordingly, the 2012 deed was not valid.

It’s obvious from the facts of this case that an estate matter can become extremely complicated. It’s critical that you have an experienced, knowledgeable and capable lawyer to protect your interests. Probate and Estate Administration Attorney Bonnie Lawston brings more than two decades of hands-on experience in estate litigation to clients across Nassau County and Suffolk County on Long Island, New York.

Contact the Law Office of Bonnie Lawston for all your Probate and Estate Administration matters. 

At the Law Office of Bonnie Lawston, we offer experienced estate litigation counsel to individuals across Suffolk County and Nassau County. Contact our office online  or call us at 631-425-7299 or 24/7 at 855-479-4700, to set up a free initial consultation.

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Court Limits Scope of Release Involving Estate and Trust Accounting
by cjleclaire
Feb 08, 2018 | 35047 views | 0 0 comments | 1111 1111 recommendations | email to a friend | print | permalink

It’s pretty common procedure for a fiduciary to a trust to obtain a release, with the objective of waiving the fiduciary’s obligation to provide an accounting of the assets of the estate and trust. A recent opinion from the Surrogate Court in New York County casts some doubt on the potential validity of such releases.

In Matter of Ingraham, NYLJ, June 16, 2017, at p. 28 (Sur. Ct., New York County), the court considered the validity of a receipt and release and ruled that it did not absolve the trustee from the legal responsibility to provide an accounting. In Ingraham, a successor trustee had filed a petition with the Surrogate Court asking that the former trustees submit an accounting. One trustee complied with the request, but the other trustee objected, citing both the language of the trust document, which she argued relieved her from any obligation to provide an accounting; and releases that had been signed and executed by the trust’s grantor and by the other trustee.

According to evidence entered during the proceeding, the document signed by the grantor released the trustee from “any and all claims related in any way to her role as trustee,” other than claims arising as a result of fraud or willful misconduct. The document also included a provision waiving the right to a formal accounting of the trust. The other trustee had executed a similar release.

The court, however, found that that trustee could not use the release to avoid the duty to provide an accounting, citing two specific reasons:

  • The release specifically reserves the right to seek relief if there are allegations of willful misconduct or fraud
  • The duty to provide an accounting is a fundamental aspect of any fiduciary relation, an essential part of a trustee’s duty

The court also concluded that, even if the released waived the grantor’s right to an accounting, it was not legally binding on the other trustee, successor trustees and trust beneficiaries. Furthermore, the court rejected the argument that the trust document waived the requirement that trustees provide an accounting, concluding that the trust document only waived the obligation to provide periodic accountings, not the requirement that there be a final accounting.

When you’re involved in an estate or trust administration dispute, it’s essential that you have knowledgeable, skilled and experienced legal representation. Estate and Probate Attorney Bonnie Lawston has protected the rights of individuals in trust and estate matters on Long Island for more than 20 years.

Contact Probate and Estate Administration Attorney Bonnie Lawston for all your Probate and Estate Administration matters.

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Keeping Your Ex Spouse from Being Administrator of Your Estate
by cjleclaire
Dec 19, 2017 | 29329 views | 0 0 comments | 698 698 recommendations | email to a friend | print | permalink

In most situations, the last person you would want to give the authority to administer your estate would be a former spouse. In fact, to avoid such a contingency, it’s a fairly common practice for parties to a divorce to include language in the divorce decree prohibiting either from acting as administrator of the other’s estate. A ruling from the Albany Surrogate’s Court, however, has demonstrated the importance of careful estate planning to ensure that such a result does not ensue. Here’s what happened.

In the Matter of Walsh, Jr., the deceased had a child who had priority to serve as the administrator of his estate, but the child was still a minor. Because the child could not serve as administrator, the court needed to appoint a fiduciary. The decedent’s ex-wife, mother to the child, successfully petitioned the court to be the legal guardian of the child. Once she became the legal guardian, she also had authority and became the administrator of the estate.

In response to the appointment of the ex-wife as administrator of the estate, the deceased’s brother filed a motion with the court to remove her, citing the divorce decree, which specifically stated that neither party would serve as executor or administrator of the other’s estate. The court, however, ruled against the brother, concluding that the ex-wife was not serving personally and individually as administrator, but rather as guardian of the minor child.

The upshot of the decision? You need to be very careful when you designate who will act as your administrator, and you are best served to identify specific successor administrators, in the event your primary choice is unwilling or unable to serve.

At the Law Office of Bonnie Lawston, we have extensive experience representing individuals facing similar concerns. We can provide a thorough analysis of your estate planning and implement measures to ensure that your wishes are honored.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 or 24/7 at 855-479-4700to set up a free initial consultation.

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What Happens If You Can’t Locate a Will?
by cjleclaire
Aug 16, 2017 | 29056 views | 1 1 comments | 672 672 recommendations | email to a friend | print | permalink

So you spend the time and money to carefully plan out your estate and you prepare and execute a will that ensures that your property goes exactly where you want it to. Once you’ve made it official, you put the original copy of your last will and testament with your other important papers, in a file cabinet in your home or study.

That could be a big mistake! In the state of New York, if the original copy of your last will and testament cannot be located after your death, there’s a high likelihood that it won’t be admitted during the probate proceedings, even if you can find a copy. That’s because, in New York, if a will was known to be in the decedent’s possession, but cannot be found, there’s a presumption that the will was revoked. That presumption can only be overcome by affirmatively showing that:

  • The will has not been revoked
  • The will was properly executed
  • The provisions of the will are clearly and distinctly proven by either two credible witnesses or by a copy of the will shown to be true and complete

As a practical matter, overcoming the presumption of revocation is extremely difficult, as it can be challenging to prove conclusively that the decedent did not revoke the will.

A 2015 decision by the Queens County Surrogate upheld this presumption. In Matter of Massimo, testimony indicated that the deceased was known to have an original copy of his last will and testament, as well as a codicil, in a Federal Express envelope in his sock drawer. At his death, however, family members could not find the original copies of either document, but were able to find photocopies. It was also proven that one family member, who had the motive and opportunity to destroy the original will, had entered the decedent’s residence.

The court, following established New York law, found a presumption that the will and codicil had been revoked. The court further concluded that, absent concrete evidence that a family  member had destroyed the original will, the presumption that the decedent had voluntarily revoked it could not be overcome.

This office has been successful under certain circumstances to probate a copy.  There is a series of steps or requirements that one must meet in order for the Court to accept a copy.   For example,  if the original Will was known by another disinterested person to be in the possession of the testator,  had seen it recently, discussed it with the Testator and the home where the Will was kept was destroyed by a storm or fire.  Under limited circumstances, a copy may be admitted to probate.

Our office can evaluate your case and determine if such a proceeding is appropriate or it an intestacy proceeding is necessary.   Should you have any questions, please contact our office to speak with an attorney or our staff.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 or 24/7 at 855-479-4700to set up a free initial consultation.

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The Right to Discovery in Probate Litigation
by cjleclaire
Jan 20, 2017 | 33521 views | 0 0 comments | 1123 1123 recommendations | email to a friend | print | permalink
by Bonnie Lawston

When someone dies with a will in New York State, that person’s estate must generally be “settled” through filings and proceedings overseen by the probate court. Referred to as probate, this process can often be done without the need for litigation. However, when there are issues about which executors and heirs disagree, probate litigation may be the only way to resolve the dispute.

An essential part of the litigation process is what is known as “discovery.” The discovery phase of a trial is that period where all parties seek to obtain (and are usually required to share) all evidence related to the matters in dispute. Discovery can be accomplished in a variety of ways, through depositions, through the production of relevant documents, and through answers to written questions, known as interrogatories. A couple recent opinions handed down by the Surrogates courts have specifically addressed and clarified the rights of discovery in probate contests.

Matter of Shure

In an opinion handed down in early December, 2016, the Manhattan Surrogates Court confirmed that a third party had to disclose information to allow potential estate beneficiaries to determine whether an executor had breached a fiduciary duty. In Matter of Shure, a co-executor asked the Surrogate Court to compel Chase Bank to provide certain information that involved the estate, information that included reference to internal bank procedures. The co-executor cited SCPA (Surrogate’s Court Procedure Act)2103, which allows discovery of documents and testimony to confirm or deny the existence of assets or property that might belong to an estate. The court recognized Chase Bank’s need to maintain confidentiality of its internal policies, so allowed the co-executor access to the information, but required that the parties enter into a confidentiality agreement.

Estate of Melendez

In this opinion, released in November, an executor sought discovery of documents related to the deceased’s purported spouse, who had attempted to exercise a spousal right of election to the estate (see our blog on the right of spousal election in New York). The executor had alleged that the right of election could not be exercised because of the existence of a prenuptial agreement signed by the alleged spouse. The court held that discovery of passport and border crossing records was reasonable.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation.

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Videotaping the Execution of a Will
by cjleclaire
Jan 13, 2017 | 30063 views | 0 0 comments | 1029 1029 recommendations | email to a friend | print | permalink
Author: Bonnie Lawston

It's not uncommon, in New York and other jurisdictions, for dispossessed or unhappy heirs to allege that a will was executed under duress or undue influence. What if you videotape the execution of the will, so that there's visual evidence to support the assertion that the decisions regarding disposition of property were entered into knowingly and voluntarily?

While a video recording of the actual event of executing a will can be introduced as evidence in proceedings to determine the validity of the will, it's important to start with the understanding that visual evidence is not totally objective of infallible. Consider that ten people can witness the same accident and have ten different descriptions of what happened. Nonetheless, if you are considering videotaping the execution of a will, here are some factors to consider.

The Videotape May Not Be Allowed as Evidence

The decision to allow the videotape into evidence is solely at the discretion of the court. The court may not consider it relevant to the matters being litigated. The court may conclude that the videotape provides no credible evidence of capacity or intent.

The Court Must Have Reason to Believe that the Tape is Authentic

You will probably need to bring witnesses into to court to testify that they were present when the video was taken. In legal terms, this is known as establishing a proper foundation for the evidence. The court must have some basis for believing that the tape is what it is alleged to be.

The Court Must Have Confidence that the Tape Has Not Been Altered

In addition, the court may have concerns about the "chain of custody" of the videotape. The court will want reasonable assurances that the video presented was actually taken at the time represented and that the videotape has not been altered or tampered with between the recording and its presentation as evidence. Accordingly, it may be necessary to document when and where the recording took place, where the videotape was secured immediately after the recording, who had access to the tape while it was secured, any movement of the tape (along with who moved it) and how it got to court.

Of course, there are no assurances that the video recording will have any impact on the outcome of the dispute. A judge or jury may watch the video and come away with a completely different perception of the events than intended.

Contact the New York Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation.

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Protecting Your Right as a Spouse in a New York Estate
by cjleclaire
Sep 08, 2016 | 44701 views | 0 0 comments | 3036 3036 recommendations | email to a friend | print | permalink

Author: Bonnie Lawston

A Spouse’s Right of Inheritance in New York

Under New York law, when a married person dies, the surviving spouse has a “right of election,” a statutory right to receive either $50,000 or 1/3rd of the estate, whichever is larger. However, as set forth in an opinion from the New York Appellate Division in 2010, that right can be jeopardized if there are concerns about the mental capacity of the decedent at the time of the marriage.

In Matter of Berk, 2010 NY Slip Op 02139 [71AD3d883], testimony indicated that the deceased, Irving Berk, had executed a will in 1982, naming his two sons and four grandchildren as sole beneficiaries. Some 15 years later, Judy Wang was hired as his permanent caretaker, as he was wheelchair bound and his memory was failing. Wang cared for him for the nearly a decade, as his physical and mental health declined. According to witnesses, by 2005 he had difficulty recognizing his sons when they came to visit. Nonetheless, Wang and Berk were married in June, 2005, in a civil service, when he was 99 and she was 47. Neither party wore a wedding ring and the marriage was not disclosed to Berk’s sons until the day before his funeral, in June, 2006. As Berk had not amended his will to include any provision for Wang, she filed a petition seeking to exercise her right to the statutory elective share as his legal spouse.

The trial court found that Wang had met the requirements of the statute by demonstrating that she was Berk’s surviving spouse at the time of his death. Because Wang had met the statutory test, the court determined that there were no facts that needed to be determined by a jury and issued a summary judgment ruling in Wang’s favor.

Berk’s sons appealed the summary judgment ruling, arguing that the marriage was a sham. Under the spousal election law, the election may be invalidated if the marriage was annulled. The sons argued that, because of undue influence and fraud, the marriage could not be legally binding. The appellate court overturned the summary judgment, finding that a jury could in fact determine whether Wang knew that Berk lacked the mental capacity to enter into a marriage and had deliberately taken unfair advantage of him by marrying him. The court also concluded that, should the jury find that Wang had wrongfully married Berk with the intention of securing a portion of his estate, the marriage could be ruled invalid and the spousal election could be denied.

The appellate court’s decision makes it clear that the spousal right of election may be at risk when the deceased has Alzheimers’ or some form of dementia. At the Law Office of Bonnie Lawston, we can protect your rights, whether you seek to exercise the right of election or want to prevent someone from wrongfully asserting a spousal right of election.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation.

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Can You Be the Executor of an Estate in New York if You Don’t Live in the State?
by cjleclaire
Oct 31, 2014 | 43062 views | 0 0 comments | 937 937 recommendations | email to a friend | print | permalink
Posted on by BonnieLawston

If your loved one has died in New York, with a valid will, trust or estate plan there, but you live in another state, you may be uncertain if you can, or if you want to, serve as executor, administrator or trustee from another part of the country. To answer the first question, New York does allow a non-resident to serve as executor or administrator of an estate within the state.

However, just because the law allows you to serve as an executor does not mean that you must. You always have the right to decline to serve. However, just because you live in another part of the country does not mean that it must be difficult or complicated to serve as executor. In many instances, you can fulfill all your duties without ever having to travel to the state. Typically, you attorney can:

  • Take care of all paperwork necessary to get you appointed as executor
  • Appear on your behalf at all hearings or proceedings
  • Prepare and file all documents necessary to initiate and settle the estate
  • Prepare and file an accounting of all debts and assets of the estate
  • Secure valuations of property, when necessary
  • Notify all interested parties, including creditors and potential beneficiaries
  • Ensure that all final debts and obligations of the estate are satisfied
  • Verify that all necessary tax filings are completed
  • Oversee the orderly distribution of the assets of the estate in accordance with the terms of the will

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online  or call us at 631-425-7299 or C 855-479-4700 to set up a free initial consultation. We can be reached 24/7.

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