Court Criticizes BNY Mellon's Actions in Mercer Estate Litigation -- Novick & Associates

Aug 12, 2015, 08:00 ET from Novick & Associates, P.C.

HUNTINGTON, N.Y, Aug. 12, 2015 /PRNewswire/ -- Suffolk County Surrogate Court Judge John M. Czygier Jr. has repeatedly issued decisions in the litigation between Howard and David Mercer, the sons of renowned East Hampton sculptor Norman J. Mercer, and BNY Mellon in which he raised serious concerns about the bank's conduct. Below are excerpts from some of those decisions.

  • In his May 27, 2014 Decision, Judge Czygier noted that the court-appointed guardian ad litem characterized the testimony of Joseph Samulski during his deposition as "evasive and clearly unresponsive" (emphasis added). The Judge also noted the fiduciaries' continued resistance with respect to all aspects of discovery. Joseph Samulski is the Chief Fiduciary Officer of BNY Mellon Wealth Management.
  • In his August 29, 2012 Decision, the Judge noted "This court finds the behavior of the fiduciaries troubling on a number of levels, including the possible editing of the corporate fiduciary's (BNY Mellon) guidelines prior to providing same to the Mercer sons' counsel and the somewhat lackadaisical regard for the treatment of tangible personalty in apparent deference to Carol Mercer's wishes…"
  • In its December 14, 2012 Decision, the Court noted "Unfortunately, the fiduciaries in this case (BNY Mellon, Carol Mercer and Martin Newman) have demonstrated a resistance to providing demanded discovery. In spite of their repeated assertions that they have turned over thousands of documents in compliance with demands served upon them, their argument in these papers that material is not discoverable for what may ultimately be legitimate reasons, when prior responses have indicated that the documents provided are the only ones in its possession, is an example of the course this litigation has taken, resulting in significant motion practice and more than one application for contempt."
  • In its July 10, 2014 Decision, Judge Czygier commented "The court has taken note of the attorney's fees incurred in connection with this estate. Indeed, prior decisions issued warnings to counsel, specifically, Moritt Hock and Hamroff, LLP, [counsel for the fiduciaries] of the possibility of disgorgement…the court is deeply concerned about the continuing charges." The Court then directed that "no further legal fees may be charged against this descendant's estate and any trusts flowing therefrom pending further order of this court."
  • In its December 9, 2014 Decision, the Court expressed its concern that the animus between the fiduciaries (BNY Mellon, Carol Mercer and Martin Newman) and the beneficiaries may have resulted in the possibility that the reluctance of the fiduciaries to pursue the claim[s] on behalf of the Mercer Trusts "may prevent the trusts from recovering a significant judgment…"

Recently, Donald Heberle, the new head of BNY Mellon Wealth Management, refused to attend a meeting to discuss the differences between the Mercers and the bank. As a result, the litigation will continue.

Donald Novick, Novick & Associates, P.C.
(631) 547-0300

SOURCE Novick & Associates, P.C.