Opposition Brief — Lynch v. Flaherty

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& October Term, 2001

ADMINISTRATION PROCEEDING ESTATE OF DEBRA

LYNCH ak’a Debra L. Lynch & Debra Franchi, Deceased,

DEAN LYNCH,

FEB 15 202

OPMICE OF THY EF xp,

| Petitioner,

~ against —

PATRICIA FLAHERTY, LINDA A. KACEWICZ.

AND MICHAEL P. FRANCHI,

Respondents.

On Petition for a Writ of Certiorari to

The New York Court of Appeals.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

SHEILA GINSBERG RIESEL

BLANK ROME TENZER

GREENBLATT LLP

The Chrysler Building

405 Lexington Avenue

New York, New York 10174

(212) 885-5000

-and-

BIRBROWER, MONTALBANO,

CONDON & FRANK, P.C.

67 North Main Street

Of Counsel: P.O. Box 1070

Sheila Ginsberg Riesel New City, New York 10956

Leonard G. Florescue (845) 634-7010

Donald Frank

William Frank Attorneys for Respondents

Stephen McSweeney

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St. Louis West, Inc. (99-42)

NY (212) 684-3117 NJ (201) 863-8133

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QUESTIONS PRESENTED

I. Is a constitutional issue which is not raised in

the trial court preserved for review in the United States

Supreme Court?

II. Is a final judgment of a state court entitled to

Full Faith and Credit in the courts of another state?

II]. | Where a potential beneficiary receives notice

of a state court proceeding and contacts that state court but

then intentionally fails to appear in that proceeding, does the

Full Faith and Credit clause preciude collateral attack of that

court’s decree in another state?

IV. Where collateral attack on a judgment is not

available in the state rendering the judgment, can the

judgment be collaterally attacked in another state?

V. Even if the federal constitutional mandate to

provide Full Faith and Credit does not require the courts of

one state to enforce the judgment of another state, may a state

provide a greater degree of Full Faith and Credit than is

mandated by the constitution? Alternatively, may the second

state enforce the judgment as a matter of comity or under its

own local law?

VI. Does due process preclude determining an

issue solely on papers submitted to a court? Does due process

require a court to hc!d a hearing or to issue a written opinion

responding to every argument made by a party?

VII. Is aclaim to be the administrator of an estate a

property right protected by due process?

VIII. Ifthe Petitioner could not possibly prevail, as a

matter of law, upon a remand of the case, should this Court

grant certiorari?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. ..........::cscescessessesscecescosseseescoseoss, i

PRELIMINARY STATEMENT .....0...cccccccccccsccsssesccccoseoseose l

PROCEDURAL HISTORY, ...cescescessessosscssessessessesvessescesseesess, l

The Massachusetts Probate Proceeding .............ce.ceseseese... 2

The New York Surrogate’s SEE 3

The New York Divorce Action..........c.ccccccscescssesssoeeseosessss. 4

COUNTER-STATEMENT OF FACTS. ......ccccccccccccccccocosceee 6

THE MASSACHUSETTS PROCEEDING ........-ccccccccsooees-.. 6

THE NEW YORK SURROGATE’S AND APPELLATE

BL RAN ae So a 8

PETITIONER’S POSITION IS A TANGLE OF FACTUAL

DEFICIENCIES AND CONTRADICTIONG................. 8

PETITIONER’S CONFLICT OF IN1EPESTS ......00.0.......... 9

POINT I PETITIONER’S CONSTITUTIONAL CLAIMS

WERE NOT PRESERVED FOR REVIEW.......--ccccc0s.-.. 11

POINT II THE POSSIBILITY OF BEING AN ESTATE

FIDUCIARY IS NOT A PROPERTY INTEREST

PROTECTED BY DUE PROCESS ....0.....ccccccscessesseesseee. 12

TABLE OF CONTENTS

(Continued)

Page

POINT III PETITIONER CANNOT USE HIS OWN

FAILURE TO PROPERLY RAISE HIS ARGUMENTS

IN MASSACHUSETTS TO CREATE A DUE PROCESS

CLAS neccsrcercocevceseecesesesvepensnassenedenbionsenniinionsinetastaventes 13

POINT IV PETITIONER’S FAILURE TO PURSUE AN

APPEAL IN MASSACHUSETTS PRECLUDES HIS

COLLATERAL ATTACK IN NEW YORK .................. 14

POINT V DUE PROCESS DOES NOT REQUIRE THAT

A COURT HOLD A HEARING OR ISSUE A WRITTEN

CI ION cccssnscoveoserssosconsinsasiiniitatninntoeersiiamiavenenmtvmaninineapinitien 15

POINT VI NEW YORK CORRECTLY GRANTED FULL

FAITH AND CREDIT TO THE MASSACHUSETTS

DETERMINATION; EVEN IF IT WERE INCORRECT

IN DOING SO, THE SAME DETERMINATION

WOULD BE REACHED UPON COMITY OR

INDEPENDENT STATE LAW GROUNDS ALONE... 16

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Adams v. Robertson, 520 U.S. 83, 117 S. Ct. 1028 (1997) .11

Baker v. General Motors Corporation, 522 U.S. 222, 118 S.

Ct. 657, 139 L. Ed. 2d 580 CR Gata So ht, 18

Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701

CEP ee ettinencnjiepsecdbiniolabididbiciatTieiidlad c. Secik ica 12

CSTE Sitinccionppnidatishoae gest SOIR A. 14

Greene v. WCI Holdings Corporation, 136 F.3d 313 (2nd Cir.

1998) certiorari denied 525 U.S. 983, 119 S. Ct. 448, 142

ce Se UE CO Gaihincha Galashinitlugstdie al 16

Greenwald v. Whalen, 609 F.2d 665 (2nd Cir. 1979) ......... 13

Grossman v. Axelrod, 646 F.2d 768 (2nd Cir. 1981) .......... 12

Loyd v. Loyd, 731 F.2d 393 (7th Cir. (ROR Ear 14

Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S. Ct.

Cad, POE. Oe CE CO a 14

Neto v. Thorner, 718 F. Supp. 1222 (S.D.N.Y. 1989) ........ 16

Sherrer v. Sherrer, 334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed.

NIN shiek a a ae a OP 14

Tennessee v. Sizemore, 200 F.3d 373 (Sth Cir. 2000) ..14, 17

TABLE OF AUTHORITIES

Page

Neiman v. City of New York, 133 A.D.2d 743, 520 N.Y.S.2d

FB CAG EGG. TSGT) cccovocresccoceseevevsevcepevevceoesevceseoeovencosooses 11

New York CPLR, 5401 ( P.3 )

Will of Brown, 120 Misc. 2d 799, 466 N.Y.S.2d 988 (Surr. Ct.

indeticisbdedveimieueclishnitarnimmledvereer 15

Westchester Co. 1983)

vii

TABLE OF CONTENTS

TO APPENDIX

mee

Page

Appendix 1 — Letters From Dean Lynch to Mr.

Frank, Dated March 29, 201 and to the

Appellate Division, Dated March 29, 2001 ............ la

Appendix 2 - Transcript of Proceedings Before

Weiner, J., Rockland County Supreme

Court, on January 11, 1996 ......cccccccscseccececcesesceseeces, 4a

Appendix 3 — Affirmations of Joseph P.

McGlinn, Sworm to June 16, 1998 and

August 1, 2000 and Preliminary Report of

Successor Guardian Ad Litem Orville H.

Mann, Jr., Dated September 15, 2000.............cc000-. 28a

Appendix 4 — Chronology of Key Events /

Documents in the Estate Proceedings...................... 4la

Appendix 5 — Letter From Dean Lynch to the

Clerk — Middlesex Probate and Family

Court, Dated November 16, 1998 ..........cccccccccccceceee. 45a

Appendix 6 — Memorandum of Decision of

Massachusetts Probate Court, Dated June

15, 1999 and Decree, Dated June 29, 1999........... 47a

Appendix 7 — Affidavit of Richard W.

Renehan, Sworn to January 14, 2002...........000.000.. 49a

ecm cad

PRELIMINARY STATEMENT

Respondents, the executors of the estate of Deborah

Lynch, respectfully submit this brief in Opposition to the

application for a writ of certiorari by Petitioner, Dean Lynch,

an attorney, appearing pro se. The Petition is without merit

and, in fact, it is based on significant misstatements of both

law and fact.

This application for certiorari is founded upon four

primary misapprehensions of the law by Petitioner. First, a

party cannot create a due process claim by his own deliberate

refusal to appear before a court. Second, no one has a

“property right” to be the administrator of an estate and,

hence, even if the remainder of Petitioner’s claims made any

legal sense, there would be no constitutional issue presented

because he was not deprived of any property right by the

decisions below. Third, domicile is a question of fact, and a

state has jurisdiction to oversee the probate of an estate if the

decedent was domiciled there at the time of her death,

irrespective of the decedent’s marital status, and irrespective

of whether or not the state has personal jurisdiction over

potentially interested parties. Fourth, a “limited appearance”

relates to personal jurisdiction over a party. A potential

objectant to a Will is not a party to a probate proceeding, and

one who wishes to make a limited appearance must present

actual evidence of the jurisdictional defect to the court —

something which Petitioner failed to do.

PROCEDURAL HISTORY

There are two direct!» velewant legal proceedings here

and a third of significance for the Court to completely

understand Petitioner’s claims and motivations.

The Massachusetts Probate Proceeding

The first direct proceeding was the admission to

probate in Massachusetts of a Will executed there on June 28,

1995 by Deborah Lynch, the decedent. ' At the time of her

death, Ms. Lynch had been a domiciliary of Massachusetts for

approximately two years.

There is no question but that Petitioner received notice

of the Massachusetts proceeding as he admits the same

throughout his Petition. Petitioner claims to have made a

special appearance in Massachusetts but that is a procedural

non sequitur. Personal jurisdiction over Petitioner was, and

is, irrelevant to whether or not the Will could be probated in

Massachusetts. The only issues on a probate proceeding are

the domicile of the decedent, and the presence or absence of

the customary defenses of “lack of capacity” etc. ?

Instead, of raising these arguments in court, Petitioner

simply wrote to the Massachusetts court claiming (falsely)

that Respondent’s Massachusetts counse] (when presenting

the Will for probate) had misrepresented the decedent’s

marital status. One presumes that Petitioner’s argument is

that decedent (if still married to Petitioner at the date of her

death) could not have a different domicile than his. ’

Decedent executed three Wills - December 1, 1993 (in Rhode

Island), January 3, 1994 (in New Jersey) and June 28, 1995 (in

Massachusetts). It is the third Will which was admitted to

probate in Massachusetts.

It is irrelevant for that purpose whether Massachusetts had

personal jurisdiction in the /nternational Shoe sense overt

Petitioner or over decedent’s minor daughter.

In fact, New York (which Petitioner claims is the relevant State)

allows a wife to have a different domicile than her husband's.

However, the decedent’s marital status is irrelevant both to

domicile and to the jurisdiction of the probate court. The only

relevant issue is where decedent was domiciled when she

died.

Petitioner does not deny that he received notice of the

Massachusetts court’s intention to hold a hearing on the

appropriate objections to probate of the decedent’s Will in

that state. Nor does he deny that he deliberately failed to

appear before that court to make his objections, such as they

were.” The Massachusetts probate court, accordingly,

admitted the 1995 Will to probate, finding that Petitioner had

not made the appropriate objections.

Significantly, Petitioner failed to appeal that decision

and, under Massachusetts law, he cannot collaterally attack it.

See Point IV.

The New York Surrogate’s Proceeding

Rather than appeal in Massachusetts, Petitioner,

instead, requested that the New York Surrogate’s Court (New

York’s probate court) find that decedent’s Wills were invalid,

and grant him letters of administration over decedent’s estate.

This action is a collateral attack on the Massachusetts

determination. This is the second directly relevant judicial

proceeding in this Court.

Landsford v. Landsford, 96 A.D. 2d 832, 456 N.Y.S. 2d 583 (2™

Dept. 1983). See also New York Domestic Relations Law § 231

(McKinney’s 1999).

Petitioner engages in numerous attacks on the integrity and

competence of the courts in both New York and Massachusetts,

e.g. referring to the New York Court of Appeals’ actions in this

case as “a mockery of the rule of law”.(See, e.g. pages 22-23 of

the Petition.)

The New York Court initially dismissed Petitioner’s

application because he had failed to include copies of the

prior Wills. He amended his pleading bu’ referred to, and

annexed, only two of the three Wills that decedent had

executed. The missing one was the 1994 Will which was

prepared by Petitioner’s friends and executed in Petitioner’s

presence. ° The New York Court learned of the second Will

only from Respondents.

Ultimately, the New York Surrogate dismissed

Petitioner’s claims because of the prior Massachusetts

decision and New York’s Appeliate Division affirmed on the

basis of Full Faith and Credit.

Petitioner then sought reargument from the Appellate

Division or, alternatively, leave to appeal to the New York’s

highest court, the Court of Appeals. Both motions were

denied. The Court of Appeals denied Petitioner’s motion for

leave to appeal. This Petition for certiorari ensued.

The New York Divorce Action

The third proceeding is the divorce action between

Petitioner and decedent. That action is still pending in the

same Appellate Division in New York. On January 11, 1996,

approximately six months after the 1995 Will probated in

Massachusetts was executed in that State, a stipulation was

Petitioner originally denied knowing of this Will and then

recanted when confronted with an audio tape showing his

presence during its preparation and at its execution. See

Appendix 1.

It is this failure to apprise the Court of the 1994 Will’s existence

which is the basis of the disciplinary proceeding against

Petitioner in New Jersey. (See Petition, page 21)

entered into on the record in the New York Supreme Court

(the trial court with jurisdiction over divorce matters) in

Petitioner’s presence and with his cooperation. (See

Appendix 2 for the transcript of this proceeding). In court,

that day, decedent testified to the grounds for divorce, without

objection from Petitioner, the decedent’s divorce counsel

moved for the court to grant the divorce and the motion was

granted. ° Certain provisions of the stipulation (relating only

to the parties’ child) were contingent upon approval by a

guardian ad litem. Ultimately, the first and second guardians

both approved those provisions as modified. “ These last

events occurred four years after decedent’s death.

Nonetheless, despite the fact that the court had held the

marital action open for those four years, it ruled that the

matrimonial action had abated when decedent died.

That determination is currently on appeal to the

Appellate Division in New York and was argued on January

29, 2002. Petitioner’s claim that Massachusetts had no

jurisdiction is founded primarily on his false and irrelevant

claim that Respondents’ counsel misrepresented decedent’s

marital status to the Massachusetts court. If the New York

Appellate Division finds that Respondent and decedent were

divorced, even that spurious claim would fail.

If Petitioner truly believes that decedent was incompetent to

make the 1995 Will (a claim he has made in every court,

including this one), then he committed a fraud on the New York

divorce court when he entered into that stipulation.

Petitioner refers this Court to the first law guardian’s preliminary

report (Petition, p. 20) but fails to mention the later reports by

both law guardians which reach a contrary conclusion and are

critical of Petitioner's motives. See Appendix 3.

COUNTER-STATEMENT OF FACTS

The facts of this case are significantly different from

those asserted by Petitioner. For the Court’s convenience, @

chronology of key events is attached as Appendix 4.

THE MASSACHUSETTS PROCEEDING

The decedent was 4 domiciliary of the State of

Massachusetts at the time of her death on September 5, 1996.

Decedent’s 1995 Will was filed with the Middlesex County

Probate and Family Court on July 22, 1997. The nominated

executors under the Will, Respondents herein, commenced

probate proceedings in that Court and duly served all

interested persons--including Petitioner--by November 4,

1998.

On November 6, 1998, Petitioner filed a petition for

Letters of Administration in Rockland County, New York,

alleging the invalidity of only two of decedent’s prior Wills

and concealing the existence of the Will executed at his

behest. (See footnote 5.)

Petitioner wrote to the Massachusetts Court on

November 16, 1998 acknowledging that he knew of the

commencement of the Massachusetts proceedings and

requesting that the Court either recognize that it lacked

jurisdiction over him, or, in the alternative, set the matter

down for a full hearing. On January 21, 1998, Petitioner filed

a Notice of Special Appearance and Affidavit of Objections

to Petition in the Massachusetts Court.

On June 3, 1999, both the Court and Respondents’

counsel gave notice to Petitioner that the Court would hold a

pretrial conference on June 15, 1999. The Court specifically

stated that the case might be ordered to immediate trial on

that date if it appeared that one party, through a failure to

appear at the conference or otherwise, would not present a

case. [The Court should note that Petitioner requested a

hearing in his November 16, 1998 letter. See Appendix 5).

On June 10, 1999, Petitioner wrote a second letter to

the Massachusetts Court acknowledging receipt of the Court’s

Notice and Order, and objecting that the Court did not have

jurisdiction over him. Petitioner stated in his letter that he

had made a “special appearance” to contest jurisdiction, and

would not attend the conference.

On June 14, 1999, Petitioner sent a third letter ® by

facsimile to the Massachusetts Court stating that he would not

appear on June 15", and requesting that the Court take no

action until his Petition for Letters of Administration in New

York was resolved.

Petitioner failed to appear on June 15, 1999 and

Justice Boorstein admitted decedent’s 1995 Will to probate,

based on the submissions of Respondents and the fact that no

proper or evidentiary objections were interposed. > Judge

Boorstein expressly and properly rejected Petitioner’s

personal jurisdiction argument by noting that it was irrelevant

to whether Massachusetts could probate the 1995 Will.

As a lawyer, Petitioner had to know that such letters are not

evidentiary, and that even if he were correct that decedent was

not domiciled in Massachusetts, the court could not consider or

act on them.

A review of Petitioner's Appendix F shows that Respondents’

Massachusetts counsel, on that occasion, fairly advised the court

of Petitioner’s legal positions.

Justice Boorstein further noted that Petitioner had

failed to raise the conventional objections as to domicile,

undue influence, lack of capacity or improper execution, and

specifically found that he would not present a case.

(Appendix 6) Petitioner never appealed the Massachusetts

Decree and, as noted, it is not subject to collateral attack.

Petitioner received notice of the Massachusetts

conference date and deliberately failed to appear because he

was concerned that a decision on the merits in Massachusetts

would have precluded him from proceeding in New York and

because he claimed he could not have received a full and fair

hearing in Massachusetts. (Petition, p. 19)

THE NEW YORK SURROGATE’S

AND APPELLATE DETERMINATIONS

On September 8, 1999, the New York Surrogates

Court dismissed Petitioner’s application and that decision was

affirmed by the New York Appellate Division on Full Faith

and Credit grounds. That determination is the subject of this

Petition.

PETITIONER’S POSITION IS A TANGLE OF

FACTUAL DEFICIENCIES AND CONTRADICTIONS

Petitioner stated that he failed to disclose the January

1994 Will because he “knew” it had been revoked by the

subsequent June 1995 Will. This statement, of course, makes

no sense, since it is in direct contradiction of Petitioner’s

swom contention that the June 1995 Will is invalic. If the

June 1995 Will were invalid, then the January 1994 Will

would not have been revoked and would, itself, be valid.

Petitioner told the New York court that the June 1995

and December 1993 Wills were invalid because the decedent

lacked testamentary capacity. '° Nevertheless, in January

1996, about six months after the June 1995 Will was

executed, Petitioner appeared before the same New York

Judge to whom he later alleged the decedent’s incapacity,

entered into a contract with decedent in open court, and

allowed her to testify without objection in the divorce

proceeding. (See Appendix 2)

Petitioner has never offered any credible evidence to

establish his incapacity claim. He does not allege specific

facts demonstrating an impaired state of mind at the time of

the execution of the 1993 and 1995 Wills. His “proof” of this

claim is a single entry on an unauthenticated death certificate

that was never admitted into evidence by any court. Even if

Petitioner had presented this document to a Court it would in

no way constitute competent evidence of Petitioner’s claims.

Petitioner never presented anything at all “supporting”

his claims of undue influence and duress.

Petitioner’s Conflict of Interests

There is a fundamental problem with granting

fiduciary status to Petitioner--the relief he sought from the

New York Court. Petitioner has stated his intention to

exercise an alleged spousal right of election against

decedent’s estate, should it be determined that he was the

spouse of the decedent when she died, and to attack the

probated Will. (See e.g. Petition, page 21) While Petitioner

™ Of course, the 1994 Will, executed in Petitioner’s presence, was

signed after decedent was supposedly incompetent. The internal

contradictions in Petitioner's story are many and evident.

claims to be waging this litigation for the sake of his daughter

(Petition, pages 20-22 and 27) the fact is that the Will leaves

virtually everything to that daughter. Where is the advantage

for her in Petitioner’s proposed attack on the probated Will?

Thus, Petitioner’s interests are in direct opposition to

those of his daughter. Under New York law, that alone

disqualifies Petitioner from being appointed the administrator

even if New York had not properly dismissed the application

in light of the Massachusetts decree.

Both guardians ad litem in New York recognized that

fact. Petitioner misstates the guardians’ position to this

Court. (Petition. p. 20) In fact, neither guardian agreed with

Petitioner and both questioned his motives. (Appendix 3)

Petitioner also fails to explain why his claims could

not have been protected in Massachusetts if he produced

evidence that decedent was not a Massachusetts domiciliary

or that she was incompentent when she executed the 1995

Will, or by asserting ‘his elective share and the daughter’s

rights in that State. In Appendix J of his Petition (a 1994

newspaper article), Petitioner claims that a 1992 New York

law permits him to attack certain trusts if he is the widower.

(Petition p. 21) Petitioner only reveals his lack of

understanding of the law. Prior to 1992 a decedent in New

York could “defeat” his spouse’s elective share by providing

in his Will a trust with a corpus equal to 1/3 of the estate. It is

that rule which was abrogated. After that change, a trust

created by the decedent will not defeat the right of election.

Where Petitioner loses his way is in his confusion of the

difference between a trust created by the decedent and those

created by third-parties - which is the case with the trusts

here. Third-party created trusts, under New York law, are

simply not part of the decedent’s estate and therefore are not

subject to the surviving spouse’s elective share, and, thus,

New York law would not avail Petitioner.

POINT |

PETITIONER’S CONSTITUTIONAL CLAIMS WERE

NOT PRESERVED FOR REVIEW

At page 10 of the Petition, Petitioner states that his

claim of a denial of due process “was raised to the Appellate

Division”. By his own admission, Petitioner’s due process

claims were not presented to the New York Surrogate’s

Court. Neither of the two New York appellate courts made

any reference to Petitioner’s due process claims. Under those

circumstances this Court assumes that the constitutional issue

was not properly presented. Adams v. Robertson, 520 U.S.

83, 86, 117 S. Ct. 1028, 1029 (1997).

New York appellate courts will not entertain issues

not raised at trial. Neiman v. City of New York, 133 A.D. 2d

743, 520 N.Y.S. 2d 31 (2 Dept. 1987); Martin Mechanical

Corporation v. P. J. Carlin Construction Co., 132 A.D. 2d

688, 518 N.Y.S. 2d 166 (2™ Dept. 1987). Accordingly,

Petitioner’s constitutional claims were not preserved for

review in this Court and the Petition must be denied.

POINT Il

THE POSSIBILITY OF BEING AN ESTATE

FIDUCIARY IS NOT A PROPERTY INTEREST

PROTECTED BY DUE PROCESS

When reduced to its essence, Petitioner’s complaint is

that he is not the person who has the fiduciary responsibility

for administering decedent’s estate. It is that fiduciary status

that Petitioner seeks to parlay into financial gain for himself

by attacking the Will and the trusts created for decedent’s

benefit by her family. (Petition, p. 21) However, there is no

necessity that Petitioner be decedent’s administrator before

raising any or all of his claims as to the validity of the Wills,

or the propriety of administration of the estate, or the

marshalling of the estate’s assets, or his or decedent’s

daughter’s claims against the estate under the Will, in

intestacy, or as surviving spouse or guardian of the child.

Even if the estate were administered in New York, it

is only the underlying claims that might constitute property

rights, and Petitioner would still have had to prove his

entitlement thereto.

It is only the possibility of being decedent’s

administrator that Petitioner has conceivably lost. That

contingency cannot possibly rise to the level of “property” or

of a property right protected by the Due Process clause.

Property is defined by looking to underlying state law. Board

of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709

(1972); Grossman v. Axelrod, 646 F. 2d 768, 770-71 (2" Cir.

1981). In New York far more concrete claims such as

“prospective [Medicaid] reimbursement payments” and an

“interest in [maintaining] a particular rate of reimbursement”

have been held not to be “property”. Hurlbut v. Whalen, 58

A.D. 2d 311, 317, 396 N.Y.S. 2d 518 (4" Dept. 1977);

Greenwald v. Whalen, 609 F. 2d 665, 668 (2™ Cir. 1979).

POINT III

PETITIONER CANNOT USE HIS OWN

FAILURE TO PROPERLY RAISE HIS

ARGUMENTS IN MASSACHUSETTS TO

CREATE A DUE PROCESS CLAIM

Petitioner’s objection to Massachusetts’s exercise of

jurisdiction is twofold: (1) there was a “fraud” '' on the

Massachusetts court and (2) there was no personal jurisdiction

over him. Petitioner admits that he did not raise either claim

at the Massachusetts hearing. Rather he wrote letters and

filed documents making his claims, but deliberately failed to

appear at the hearing (of which he had ample notice), and

offered no evidentiary proof whatsoever of any of his claims.

It has consistently been held, in these circumstances,

that any claimed due process issue has been waived. In Loyd

v. Loyd, 731 F. 2d 393 (7 Cir. 1984), also involving a

collateral attack on a determination made in another state’s

probate court, the widow was given notice of the proceeding

The Court will have noted that the document to which Petitioner

refers at page 6 of the Petition (his Appendix F) quite simply has

nothing whatsoever to do with Petitioner’s claims of fraud.

At this juncture we must respectfully assert a point of personal

privilege. Petitioner falsely accuses Respondents’ counsel,

Richard W. Renehan, of having “admitted” to lying to the

Massachusetts Court (Petition. p. 6) Attorney Renehan’s

affidavit (attached hereto as Appendix 7) states that he (1) made

no misrepresentations to the Massachusetts Court, and (2) has

never told that court that his statements to it were untrue.

and she chose not to place her proof before the court. Under

those circumstances, functionally identical to those here, the

Seventh Circuit held that there was no denial of due process.

The Court noted that due process requires only notice

reasonably calculated to apprise the interested parties of the

pendency of the action and that those parties have an

opportunity to present their objections. Loyd, ibid. at 400;

Mullane v. Central Hanover Bank, 339 U.S. 306, 314, 70 S.

Ct. 652, 657, 94 L. Ed. 865 (1950). See Sherrer v. Sherrer,

334 U.S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429 (1948), [“If

respondent failed to take advantage of the opportunities

afforded him, the responsibility is his own [it will not]

provide a basis for subsequent attack in the courts of a sister

State ...”]; Underwriters National Assurance Company v.

North Carolina Life and Accident and Health Insurance

Guaranty Association, 455 U.S. 691, 709-10, 102 S. Ct. 1357,

1369, 71 L. Ed. 2d 558 (1982); Wozniak v. Conry, 236 F. 3d

888, 890 (7" Cir. 2001) certiorari denied 121 S.Ct. 2243, 150

L.Ed.2d 231 (U.S. June 11, 2001) [“one who has spurned an

invitation to explain himself can’t complain that he has been

deprived of an opportunity to be heard.” (emphasis in

original)] and Tennessee v. Sizemore, 200 F. 3d 373, 381 (5"

Cir. 2000).

POINT IV

PETITIONER’S FAILURE TO PURSUE AN APPEAL

IN MASSACHUSETTS PRECLUDES HIS

COLLATERAL ATTACK IN NEW YORK

Petitioner chose not to appeal the Massachusetts

decision in that state. Thus, that determination was no longer

subject to collateral attack in Massachusetts (Bloom v. Bloom,

337 Mass. 480, 482, 150 N.E. 2d 24, 26 (1958)). Therefore,

Petitioner has no right to attack the determination collaterally

either in New York or in this Court. Coe v. Coe, 334 U.S.

378, 384, 68 S. Ct. 1094, 1096, 92 L. Ed. 1451 (1948);

Sherrer v. Sherrer, above.

Even if the New York courts had applied New York

law, as Petitioner wishes, they would have reached the same

conclusion. In Massachusetts mere publication of notice of a

probate proceeding is considered valid notice to the world.

This is so even where fraud is alleged. Farquhar v. New

England Trust Co., 261 Mass. 209, 212, 158 N.E. 836, 838

(1927). That rule dovetails completely with the decision of

New York’s highest court in Matter of Horton, 217 N.Y. 363,

367, 111 N.E. 1066 (1916). See also see Will of Brown, 120

Misc. 2d 799, 802, 466 N.Y.S. 2d 988, 991 (Surr. Ct.

Westchester Co. 1983). As Petitioner had actual notice of the

Massachusetts proceeding and indeed communicated with the

court about it, a priori, he has no standing to bring a collateral

attack on the Massachusetts decree in New York.

POINT V

DUE PROCESS DOES NOT REQUIRE

THAT A COURT HOLD A HEARING

OR ISSUE A WRITTEN OPINION

Petitioner’s claims were dismissed by the New York

courts on papers and without holding a formal adversarial

hearing on his claims that due process obligated the courts to

hold a hearing on his claims as to the “fraud” on the court in

Massachusetts and to write a formal opinion rejecting his

arguments. '? However, a court has no due process obligation

to hold a hearing. The only requirement is notice and an

Ironically, at page 8 of his Petition he claims that Justice Weiner

had extensive “personal knowledge of the facts and

circumstances”.

Opportunity to be heard. As Petitioner was the claimant in

New York, obviously, he had notice. In this Court he fails to

recognize the distinction between an opportunity “to be

heard” and a hearing. All that due process requires is the

opportunity to raise one’s arguments to the court, which

petitioner had. Greene v. WCI Holdings Corporation, 136 F.

3d 313, 315-16 (2™ Cir. 1998) certiorari denied 525 U.S.

983, 119 S. Ct. 448, 142 L. Ed.2d 402 (1998) held that the

dismissal of a proceeding (as occurred here) without an oral

hearing did not violate due process. “The opportunity to be

heard orally on questions of law is not an inherent element of

procedural due process, even when substantial questions of

law are involved.” See also Wozniak v. Conry, 236 F. 3d 888,

890 (7"" Cir. 2001) holding that “due process does not require

that a formal, adversarial hearing precede every decision

affecting property.”

POINT VI

NEW YORK CORRECTLY GRANTED FULL FAITH

AND CREDIT TO THE MASSACHUSETTS

DETERMINATION; EVEN IF IT WERE INCORRECT

IN DOING SO, THE SAME DETERMINATION

WOULD BE REACHED UPON COMITY OR

INDEPENDENT STATE LAW GROUNDS ALONE

It is settled law, which Petitioner does not dispute, that

a court’s jurisdiction to administer an estate is solely

dependent upon the decedent’s domicile on the date of death.

Section 3-5.1 (b) (2) of the Estates, Powers and Trusts Law

(EPTL) of the State of New York provides that the law of the

decedent’s domicile at his death controls both the

testamentary and intestate disposition of the decedent’s estate.

Neto v. Thorner, 718 F. Supp. 1222, 1224 (S.D.N.Y. 1989).

It is the rendering State, not the forum state, whose law is

used to determine if Full Faith and Credit should be accorded

a judgment. Tennessee v. Sizemore, 200 F. 3d 373, 378 (5"

Cir. 2000). In Matter of Horton, 217 N.Y. 363, 367, 111 N_E.

1066 (1916) the court held that a probate proceeding in

another state was “conclusive” if it could not be collaterally

attacked in that other state. (217 N.Y. at 367). See also Will

of Brown and Point IV, above.

Petitioner also fails to appreciate the fact that there are

two purely non-constitutional bases upon which the New

York courts could have chosen to follow and give precedence

to the Massachusetts decision. Petitioner makes two separate

legal errors. First, Petitioner assumes that a court cannot

grant Full Faith and Credit to any determination which is not

strictly entitled to it. However, Full Faith and Credit is only a

minimum requirement of our republican form of government.

No constitutional bar precludes a state court from applying

Full Faith and Credit more broadly than it is required to do by

the Constitution. In Underwriters National Assurance

Company above this Court said that a court “may” inquire

into jurisdiction before giving Full Faith and Credit to a

judgment. (455 U.S. at 705, 102 S. Ct. at 1357). This Court

did not say that the court “must” do so.

Thus, even if Petitioner were correct in his assertion

that the Massachusetts determination was not strictly entitled

to Full Faith and Credit, there was no constitutional error

when the New York courts chose to afford full faith

recognition to that determination. '°

Petitioner’s partial quotation from New York CPLR 540] (p. 3)

is misleading and the statute does not comport with his claims.

In fact, that section is merely a definition of a “foreign judgment”

and says nothing about whether a judgment not precisely fitting ~~

that definition can have preclusive affect in New York.

lec

Second, even if Full Faith and Credit did not apply

and it was improper to afford such recognition to the

Massachusetts decree, nonetheless, the New York courts

could have honored the Massachusetts determination on the

basis of comity. Ehrlich-Bober & Co. v. University of

Houston, 49 N.Y. 2d 574, 427 N.Y.S. 2d 604, 404 N.E. 2d

726 (1980); Will of Brown, above. Simply put, no

constitutional issue arises. '“

Petitioner’s arguments based upon alleged New York public

policy are also misplaced. In Baker v. General Motors

Corporation, §22 U.S. 222, 233, 118 S. Ct. 657, 663-64, 139 L.

Ed.2d 580 (1998) this Court noted that its “decisions support no

roving ‘public policy exception’ to the Full Faith and Credit due

judgments.” (emphasis in original)

WHEREFORE, the Petition for Certiorari should be

denied.

Respectfully submitted,

Blank Rome Tenzer Greenblatt LLP

The Chrysler Building

405 Lexington Avenue

New York, New York 10174

(212) 885-5000 —

Birbrower, Montalbano, Condon

& Frank, P.C.

67 North Main Street

P.O. Box 1070

New City, New York 10956

(845) 634-7010

Co-counsel for Plaintiff-Appellants

Of Counsel:

Sheila Ginsberg Riese

Leonard G. Florescue

Donald Frank

William Frank

Stephen McSweeney

a a oatlienla

No. 01-1038

In The

Supreme Gourt of the

United States

October Term, 2001

ADMINISTRATION PROCEEDING ESTATE OF DEBRA

LYNCH a/k/a Debra L. Lynch & Debra Franchi, Deceased.

DEAN LYNCH,

, Petitioner,

— against —

PATRICIA FLAHERTY, LINDA A. KACEWICZ.

AND MICHAEL P. FRANCHI,

Respondents.

On- Petition for a Writ of Certiorari to

The New York Court of Appeals.

APPENDIX

Appendix 1 la

Dean Lynch Letters

[Pages la— 3a]

Dean Lynch

Attorney at Law

3-29-2001

Dear Mr. Frank:

In light of Mr. Uscher's “refreshed” recollection and that

being the case, I believe I owe you an apology for my

comment to you after the oral argument of 11-17-2000. It

appears under the facts and circumstances of those years, |

was “that stupid” in January, 1994.

Please accept my apology.

Very truly yours,

2a Appendix 1

Dean Lynch Letters

3-29-2001

Appellate Division, Supreme Court

Second Judicial Department

State of New York

45 Monroe Place

Brooklyn, NY 11201

Att: James Edward Pelzer, Clerk of the Court

Re: Estate of Debra Lynch

Docket No. 1999-09132

Dear Mr. Pelzer:

There is currently pending a Motion for Reargument which

was returnable March 2, 2001. Included with my response

was an Affidavit from Arthur Uscher, Esq. dated March 1,

2001.

I was advised today that Mr. Uscher's Affidavit at Par. 7 is in

error as to his recollection. Therefore, I enclose for filing an

Amended Affidavit from Mr. Uscher dated March 29, 2001.

It is noted that Mr. Uscher states that “ I reviewed the tape.

again and find I was mistaken in my recollection that Dean

Lynch arrived '...shortly after the execution....' The tape

shows that Dean arrived before the Will was executed.”

I would point up to this Court that Mr. Uscher's original

“recollection” was mine as well. The tape saying otherwise,

would demonstrate that my recollection of the events of that

day, January 3, 1994, may have been in error as well.

I continue to believe the 1994 alleged will is and has always

been a “red herring” and has absolutely no bearing on the

Appendix | 3a

Dean L>-~h Letters

If this Court disagrees that the issue of the 1994 alleged will

is a “red herring”, I would respectfully request that the motion

be held in abeyance until a Copy and transcript of said tape

can be obtained and reviewed by the Parties and the Court.

Thank you for your attention to this matter.

Respectfully submitted,

Dean Lynch

Pro Se

cc: William Frank, Esq.

Arthur Uscher, Esq. wo/enc.

da Appendix 2

Transcript of Proceedings on January 11, 1996

[Pages 4a — 27a]

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ROCKLAND

ORIGINAL

DEBRA LYNCH,

Plaintiff,

-against-

Index No. 1109/95

DEAN LYNCH,

Defendant.

Rockland County Courthouse

New City, New York

Thursday, January 11, 1996

BEFORE:

THE HON. ALFRED J. WEINER,

Justice of the Supreme Court.

-APPEARANCES:

SHAYS, KEMPER

Attorneys for Plaintiff

276 Fifth Avenue - Suite 306

New York, New York 10001-4509

BY: KENNETH D. KEMPER, ESQ.,

-and-

STANLEY D. HEISLER, ESQ.,

Of Counsel

DEAN LYNCH, ESQ.,

Defendant Appearing Pro Se ;

1 Kalisa Way - Suite 202

Appendix 2 Sa

Transcript of Proceedings on January 11, 1996

Paramus, New Jersey 07653-0159

BURKE & McGLINN, ESQS..

Guardian Ad Litem

100 Washington-Avenue

Suffern, New York 10901

BY: JOSEPH P. McGLINN, ESQ., Of Counsel

Ellen L. Guardiano,

C.S.R., Senior Court Reporter.

6a Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

THE.COURT OFFICER: Remain seated,

please; come to order.

THE COURT: This matter has been

scheduled for trial for -- I believe it was

scheduled two days ago and there have been

continuing discussions between the parties,

both in chambers and out of chambers and the

Court has been advised by counsel for the

Plaintiff that the parties wish to place a

stipulation on the record at this time.

Counsel may proceed.

MR. KEMPER: First, I would like to

thank your Honor for your Honor’s assistance

in helping us resolve what has been a very

difficult matter. And I'd also like to thank

your Honor for bringing in, a guardian who also

made very constructive suggestions in helping

us to dispose of this.

I would like you, Debra and Mr. Lynch to

listen to this very carefully.

CONN UN hh WN —

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NSOUVMIAAWEWNKO

22 It is stipulated and agreed between the

23 parties as follows: The Defendant withdraws

24 his answer to the verified complaint and the

25 Plaintiff withdraws her second cause of action

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Appendix 2 7a

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

and agrees to proceed on her first cause of

action for constvuctive abandonment.

The juégsment of divorce to be entered

herein will not be entered until confirmation

of the stipulation of settlement which is .as

follows:

1. The Plaintiff agrees to transfer her

interest in the marital residence located at

101 Greenbush Road, Tappan, New York to the

Defendant by deed and the Defendant agrees to

transfer his interest in the Worcester

condominium owned by the parties to the

Plaintiff.

2. The Plaintiff waives her interest in

equitable distribution and for a distributive

award with respect to the residence and

Defendant's law practice and any other assets

of the Defendant. The Defendant waives his

interest in equitable distribution or ty way

of distributive award with respect to

Plaintiff's separate property and any

appreciation thereto.

3. The Defendant will receive and own

all of the contents of the marital residence

— et

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Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

at 101 Greenbush Road, Tappan except for the

agreed-upon list of property as follows, which

shall be the possession of the Plaintiff and

may be removed on 20 day's notice:

Those items are paintings by the

Plaintiff, an antique painting at the front

door, her mother's jewelry, Christmas dishes,

Madeline's Christmas dress, linen closet,

Madeline's baby book, photo albums, a jewelry

box, a Lladro ballerina statue, sculptures

made by steel or in good shape, garden winter

sweater and a heart sweater and the pictures

to be retained, to be excluded, by the

Plaintiff, are pictures of boats and water

scenes, a portrait of the, husband and a

self-portrait of the Plaintiff which has been

given to her daughter. Also remaining is a

handmade paper artwork and a plexiglass

display case which was in the marital

residence and will go to the parties’

daughter.

4. The Court, on consent, will appoint

Joseph McGlinn of Burke & McGlinn as guardian

for the property of the child, Madeline Susan

Appendix 2 9a

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

Lynch, age eight. Mr. McGlinn will undertake

an investigation to ascertain the value of all

remainder interests in --

THE COURT: Excuse me, ’ hate to .

interrupt, but just for one second, maybe you

should indicate that he's appointed as

guardian ad litem. He's not been appointed

guardian of the property.

MR. KEMPER: Fine.

THE COURT: .If the parties wish to

subsequently --

MR. KEMPER: Fine, Judge.

THE COURT: -- the parties may consent

to him being appointed as guardian of the

property.

MR. KEMPER: Being appointed as-guardian

ad litem in this proceeding Mr. McGlinn will

undertake an investigation to ascertain the

value of all remainder interests in

inalienable trusts of Debra Lynch and the 1/4

of 1% interest in the Sea Breeze property

owned by Madeline Lynch, all whether held

directly or indirectly. The guardian ad litem

shall have authority to obtain information,

10a

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SBRORSSCOIANAWDHN

Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

review and hire experts to determine the value

of the interest. The guardian shall report to

the Court with recommendations as to the

proposed stipulation of settlement renouncing

Madeline's remainder interests in the

inalienable trusts and her 1/4 of 1% interest

in Sea Breeze as to whether the child's best

interests are being served by the renunciation

of her rights. If approved by the Court, a

judgment shall issue respecting the

renunciation of those rights.

The proposed settlement in exchange for

the renunciation as as follows: A $1,000,000

irrevocable trust will be created for the sole

benefit of Madeline Lynch with the income only

payable to Debra Lynch as hereinafter set

forth. This trust to be funded with an

initial payment of $400,000 to be paid within

60 days of approval by this Court of the.

settlement with the remaining funds to be

contributed at the rate of at least $100,000

per annum to be guaranteed by letter of credit

from a reputable banking institution. The

trustee of the trust shall be the U.S. Trust

Appendix 2 lla

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

Company in New York which shall also manage

the portfolio of the trust COrpus.

The fee of Joseph McGlinn, Esquire as

guardian ad litem shall be paid as ultimately

determined by this Court. All income from the

trust shall be paid during her life to

Debra Lynch for her Support and maintenance.

If the necessary and appropriate expenses of

Debra Lynch exceed the annual income of the

trust the trustee shall advance future trust

income to meet those expenses and then

accumulate income thereafter to make up for

any expenses advanced so that ultimately the

principal amount of $1,000,000 remains

inviolate. !

The trust shall have the right, upon

application, to pay for the college and

graduate school expenses of the child

Madeline. The trust shall accumulate all

other income except the income from the trust

shall be payable to Madeline Lynch after her.

21st birthday. Principal distributions along

with accumulated income from the trust shall

be paid to Madeline at the rate of 25% at age

12a Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

21, 25% at age 25, 25% at age 30 and 25% at

age 35. If Madeline dies with issue, prior to

completion of payments, .any unpaid payments

shall go equally to said issue and if Madeline

dies without issue any unpaid payments shall

go to a foundation for the benefit of children :

such as Hale House or other similar charity.

The current custody order in effect

shall be entered as a final order along with

the visitation orders now .in existence,

provided, however, that the visitation bond

order by Justice Kenneth Rudolph on May 25,

1995 shall be vacated forthwith and the bond

that has been posted shall’ be returned.

Given the financial and other personal

circumstances of the parties each of the

parties waives maintenance and Defendant

waives receipt of child support to the fullest

extent permitted by law and agrees to accept

what is provided in the Child Support

Standards Act as the minimum payment payable,

which is the amount of $25 monthly, as and for

child support. The New Jersey action pending,

between the parties shall be withdrawn along

on AUN hWN

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Appendix 2 13a

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

with the appeal and the current order with

respect to the opening and access to the safe

deposit box of the Plaintiff shall be

dismissed.

Your Honor, that completes the

stipulation of the parties.

THE COURT: Off the record.

(There was a discussion held off the

record)

MR. KEMPER: . It has been agreed by the

parties that in the event the report of the

guardian ad litem approves the renunciation of

Madeline's residuary rights { the parties agree

that there will be commenced in the

Surrogate's Court in this County a proceeding

seeking to have Mr. McGlinn appointed as

guardian of the property of the child for

further approval by the Surrogate’s Court of

the settlement and renunciation of rights.

THE COURT: Off the record.

(There was a discussion held off the

record)

MR. KEMPER: I'll call Debra Lynch to

the witness stand. .

l4a

“©

Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

THE COURT: If it's easier for her( she

can sit nght there. It's not necessary for

her to step up.

DEBRA LYNCH the Plaintiff herein, having

been first duly sworn, was examined and

testified as follows:

THE COURT: Please state your name and

address.

MS. LYNCH: Debra Lynch, 16 Westcliff

Road, Weston( Massachusetts.

THE COURT: Thank you very much.

MR. KEMPER: Mrs. Lynch, you are the

Plaintiff in this proceeding; is that correct?

MS. LYNCH: Yes.

MR. KEMPER: And were you and Mr. Lynch

married in a religious ceremony on the Ist day

of August, 1981 in Weston, Middlesex County,

Commonwealth of Massachusetts?

MS. LYNCH: Yes.

MR. KEMPER: And ever since you and he

have been husband and wife; is that correct?

MS. LYNCH: Yes

MR. KEMPER: And for more than two years

prior to the commencement of this action

CUMAIDMAWHK OS

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WW NO

No NO

Appendix 2 15a

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

continuously was Mr. Lynch a resident of the

State of New York?

MS. LYNCH: Yes.

MR. KEMPER: And did you and Mr. Lynch

live within the State of New York as husband

and wife?

MS. LYNCH: Yes.

MR. KEMPER: Is there one child of your

marriage, a daughter, Madeline, born August

31, 1987?

MS. LYNCH: Yes.

MR. KEMPER: And is it true that no

decree of divorce, annulment or separation has

been obtained by you against Mr. Lynch or by

him against you in any Court of competent

jurisdiction of this state or any other state,

territory or dependency of the United States or in

any foreign country?

MS. LYNCH: Yes.

MR. KEMPER: And is it true, to the best

of your knowledge, that no other action is now

pending between you and Mr. Lynch for a

divorce, annullment or separation in the

Courts of New York or in any other state or

l6a

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Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch- 12

territory or dependency of the united States

or in any foreign country?

MS. LYNCH: Yes.

MR. KEMPER: And were both you and

Mr. Lynch over the age of 18 at the time that

this divorce action was commenced?

MS. LYNCH: Yes.

MR. KEMPER: And will you take all steps

within your sole power, prior to entry of a

judgement of divorce, to remove any barriers

to Mr. Lynch's re-marriage?

MS. LYNCH: Yes.

MR. KEMPER: Now commencing in or about

the fall of 1992 and continuing to the present

time did Mr. Lynch wilfully refuse to engage

in marital relations with you despite your

requests that he engage in marital relations?

MS. LYNCH: Yes.

MR. KEMPER: And was his refusal to

engage in marital relations by you not caused

by any physical impediment on his behalf?

MS. LYNCH: Yes.

MR. KEMPER: And was his action in that

regard unjustified in all respects?

Ce Le ON Oe ee

roe 7 ™

OCO~IYNADMA BwWPh

Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

MS. LYNCH: Yes.

MR. KEMPER: And has that abandonment of

you continued for more than a year prior to

the commencement of this action?

MS. LYNCH: Yes.

MR. KEMPER: And do you ask that this

Court grant you a Judgement of divorce and

further provide you with the relief agreed to

in the stipulation that we placed upon the

record settling this proceeding?

MS. LYNCH: Yes.

MR. KEMPER: Now you've had a chance to

hear me read the Stipulation and agreement; is

that correct?

MS. LYNCH: Yes.

MR. KEMPER: And you've had an

opportunity to review it with me and with

Mr. Heisler?

MS. LYNCH: Yes.

MR. KEMPER: And you've also had an

opportunity over the last several days to

discuss it with your. father who is present?

MS. LYNCH: Yes.

MR. KEMPER: And with your sister Linda

17a

18a

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Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-,

who is present?

MS. LYNCH: Yes.

MR. KEMPER: And your sister Patty?

MS. LYNCH: Yes.

MR. KEMPER: And you rely on their

advice and wisdom and counsel in assisting you

to make these determinations?

MS. LYNCH: Yes.

MR. KEMPER: And did you make this

agreement of your own free wil 1?

MS. LYNCH: Yes.

MR. KEMPER: And no one forced you to do

anything?

MS. LYNCH: Yes.

MR. KEMPER: Or made you any promises to

make you enter into this if you did not want

to; is that correct?

MS. LYNCH: Yes.

MR. KEMPER: And you're satisfied that

this takes adequate care of your daughter?

MS. LYNCH: Yes.

MR. KEMPER: Now you have not taken

today any alcohol or medication which would

impair your judgment; is that correct?

Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

MS. LYNCH: Yes.

MR. KEMPER: And you're doing this of

your own free will?

MS. LYNCH: Yes.

MR. KEMPER: I have no further questions

of the witness, your Honor.

THE COURT: Mr. Lynch, do you have any

questions?

MR. LYNCH: I have no questions.

THE COURT: I'd just like to ask you,

Ms. Lynch do you have any questions of the

Court at this time?

MS. LYNCH: No.

THE COURT: Are you satisfied with the

stipulation that has been entered into?

MS. LYNCH: Yes.

MR. KEMPER: Do you want me to do

voir dire of Mr. Lynch or do you want to do

it?

Why don't you do it? He can be sworn

from his seat.

DEAN LYNCH, the Defendant herein, having

been first duly sworn, was examined and

testified as follows:

19a

20a Appendix 2

Transcript of Proceedings on January 11, 1996

l -Lynch v Lynch-

2 THE COURT: please state your name and

3 address for the record.

4 MS. LYNCH: Dean Lynch, 101 Greenbush

5 Road, Tappan, New York.

6 MR. KEMPER: Mr. Lynch, you've heard the

7 stipulation entered into on the record today?

8 MR. LYNCH: Yes.

9 MR. KEMPER: And you've had an

10 opportunity to consu!t with your own

11 independent counsel with respect thereto?

12 MR. LYNCH: Yes.

13 MR. KEMPER: And. :you are an attorney;

14 are you not, sir?

15 MR. LYNCH: In the State of New Jersey,

16 yes.

17 MR. KEMPER: And you've had a chance to

18 reflect upon the various terms which we've

19 negotiated over the course of the last three

20 days, I believe?

21 MR. LYNCH: Yes.

22 MR. KEMPER: And are you satisfied with

23 the terms of that agreement?

24 MR. LYNCH: Yes, I am.

25 MR. KEMPER: Are you entering into this

CONIA MW A Wp

)

Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

agreement of your own free wil]?

MR. LYNCH: Yes.

MR. KEMPER: .And is it true that no

promises have been made to you other than the

agreements made in the stipulation which has

been placed on the record?

MR. LYNCH: Just the agreement here.

MR. KEMPER: And you have not taken

today any drugs or alcohol which would affect

your judgment or prevent you from entering

12 freely into this agreement; is that correct?

MS. LYNCH: No.

MR. KEMPER: Your Honor, I would move

for a judgement of divorce in the Plaintiff's

favor --

THE COURT: I just want to --

MR. KEMPER: -- incorporating--

THE COURT: Off the record.

(There was a. discussion held off the

record)

MR. KEMPER: I would move at this time

for a judgement of divorce incorporating by

reference the terms of the stipulation that we

placed upon the record and providing for that

21a

22a

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Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

to survive. I would ask that the Court retain

continuing, jurisdiction of this matter and

leave this matter further open awaiting the

report of Mr. McGlinn with respect to the

matters that have been assigned to him so that

we can finally conclude this proceeding.

I would also ask that your Honor sign

forthwith an order directing the County Clerk

to release the bond which is now held by the

Rockland County Clerk.

THE COURT: Mr. Lynch, did you

understand the. application that was just made?

MR. LYNCH: Yes. As to the release of

the visitation bond.

THE COURT: Well, no. That was the

second part of the application. It was a

two-part application. |

MR. LYNCH: The first part, yes,

concerning Mr. Lynch awaiting the outcome as

to the settlement of the guardian ad litem;

otherwise, the divorce is final as to those

issues.

THE COURT: Would the Reporter read back

the application, please?

ahah eek ah ee a aR

iter

COMDIDMNARWNHHK OS

NM NN HN bo

On BWNH —

Appendix 2 23a

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

(Record read)

THE COURT: o you understand the

application that's been made?

MR. LYNCH: Your Honor, what I

understood is what we have in the stipulation,

that the judgement of divorce will not be

entered until the confirmation that we've

agreed to. If the incorporation of that --

THE COURT: Just go a little slower.

MR. LYNCH: If the incorporation that

we're entering, the divorce, enters that

language, which is the second paragraph of the

stipulation, the judgement of divorce will not

be entered until confirmation of the

stipulation of settlement, which is follows:

So as-far as the issue that your

Honor -- we discussed in chambers, the issue

of fault, that issue has been resolved as to

the divorce going forward but the issues that.

need to be confirmed are the application of

the settlement is my understanding of the

facts. And as to the second issue, as to the

release of the visitation bond, I have no

objection.

24a

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—

— ©

Ns a

Owownznan & WW WN

NNN N WN

UM & WN =

Appendix 2 :

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

THE COURT: Based upon your

understanding is there any opposition to the

application?

MR. LYNCH: There is --

THE COURT: Both parts of the

application.

MR. LYNCH:' The part of the application

that the judgment will not be entered itself?

THE COURT: Right.

MR. LYNCH: Until confirmation is

completed?

THE COURT: That is the understanding of

the Court.

MR. LYNCH: And that, I confirm, is what

my understanding is as well.

THE COURT:-- You have no opposition?

MR. LYNCH: I have no opposition- to

that.

THE COURT: And you have no opposition

to the bond being released?

MR. LYNCH: No, your Honor.

THE COURT: Or vacated?

MR. LYNCH: No, your Honor.

THE COURT: Is there anything further?

Sak Oe: Rice oe

ANE Y Oe

SCUOMNIADWNARWH HOS

NM NM NH bh bo

aA BWh —

Appendix 2 25a

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

MR. KEMPER: No, Judge.

THE COURT: I just want to mention --

MR. KEMPER: I would like your Honor, on

the record, to grant the application for the

divorce so we've got that done.

THE COURT: The application is granted.

I just wanted to mention, Mr. Lynch,

that you have Spent a great deal of time

before this Court in chambers with. counsel,

alone and you are an attorney who practices in

the State of New Jersey, you're not being

presently represented by counsel, I did

recommend to you this morning that you seek. to

consult with an attorney acquaintance of

yours -- who is that, please? ~

MR. LYNCH: I had spoken with a.

Mr. Ciganek; I didn't get ahold of him.

THE COURT: You attempted to call up

Mr. Ciganek this morning.

I also recommended to you that you -- |

certainly recommended to you this morning that

you get an attorney to represent you, that you

Should not represent yourself in this matter:

is that correct?

26a

Appendix 2

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

MR, LYNCH: That's -- absolutely,

THE COURT: And you've chosen to speak

to someone on the telephone --.

MR. LYNCH: Yes, your Honor.

THE COURT: -- you attempted to reach

another attorney but you did decide of your

own volition to proceed unrepresented this

morning by another attorney; 1s that correct?

MR. LYNCH: Yes, your Honor.

If your Honor would like me to state

what my understanding is and have Mr. Kemper

confirm it, I'd.be happy to.

THE COURT: I don't think that's

necessary. I don't think it's necessary.

All right. That will conclude the

proceedings —today.

The court reporter shal! prepare a

transcript of the stipulation; the costs shall

be borne equally by the parties. The Court

shall be provided with a copy of same and a

copy shall be provided for Mr. McGlinn, who is

acting as guardian ad litem and the case will

be adjourned for 30 days for calendar purposes

only so that Mr. McGlinn can commence and

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ene tina ti ati a. CES Gi gS ERE ae SAI age ee wed

‘ m WIG ETA ERR yee ys BRST RN Ni Sea TET AA Pk ERR Du Wk MODE Dips Se ake ——

” TERN PRAGA AIRE SE IA IR i SURG aie ‘Veins

Appendix 2 “27a

Transcript of Proceedings on January 11, 1996

-Lynch v Lynch-

complete his investigation and file his report

with the Court. If the report is filed prior

to 30 days the Court will bring the matter in

for a conference as well as a Statement by the

guardian ad litem. If for some reason’ there's

some delay, then Mr. McGlinn wil] advise the

Court as to the circumstances of the delay and

the Court will determine whether or not the

matter should come in within the thirty-day

period or not.

Off the record.

(After an off-the-record discussion the

proceedings were adjourned)

18 THIS IS TO CERTIFY THAT THE

FOREGOING IS

19 A TRUE AND CORRECT TRANSCRIPT OF THE

WITHIN

20 PROCEEDINGS.

23 ELLEN L. GUARDIANO, C.S.R..

R.P.R.

25 Dated: January 12, 1996

28a Appendix 3

McGlinn Affirmations

[Pages 28a — 35a]

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ROCKLAND

--------- | X

DEBRA LYNCH,

Plaintiff,

-against- AFFIRMATION IN RESPONSE

TO CROSS MOTION

| Index No. 1109/95

DEAN LYNCH,

Defendant.

--- X

Joseph P. McGlinn attorney duly admitted to practice law

in.the State of New York hereby affirms that the following

statements are true under the penalty of perjury.

I am the Guardian ad Litem for Madeline Lynch in the

above captioned action and make this affirmation in response

(not necessarily in opposition) to the cross motion submitted

by affidavit of William Frank, Esq. To paraphase my last

resort as Guardian ad Litem I do not oppose the procedure of

establishing a trust fund for my ward in exchange for a

renunciation of her interest in the various trusts—I do not

recommend that the trust be established in the sum of $1

million. It is my opinion that the one-fifth interest in the trust

now owned by Madeline Lynch has a value far in excess of

$1 million. The simple problem today is the mechanics of

establishing the value of Madeline Lynch's interest and the

procedure for payment of the expenses in connection with the

valuation.

Appendix 3 29a

McGlinn Affirmations

If the opinion of the court on these various motions is

that the actions have abated then no further Steps will be taken

in connection with the trusts and Madeline Lynch will

continue to have a 20% interest therein.

If it is the opinion of the court that the actions have

not abated then the valuation of the trusts for-

Proposed figure o

Settlement trust no

tablishment of the

procedure will have to be established

for the valuation of the various trusts for the Purpose of

placing a settlement figure that hopefully will be acceptable

to the undersigned as well as the court.

» wale " awe - 43 MUS GUE SS! steed gar aad” Me eA a RR ae ws ng Re sai

EP tte Se AE LN LOG alla PLEAS GAUSS Se ok ee ”

30a Appendix 3

McGlinn Affirmations

Independent auditors/accountants will be required to

review the books and records of the various properties of each

trust in order to determine their value. This will more than

likely require the appraiser to inspect the books and records

and the various properties themselves in New England, all at

a considerable expense.

Interestingly, of all the papers submitted on the recent

motions, none of the motions contain any suggestion as to the

source of the funds to cover the expenses in placing value on

the various trusts.

In the last two and one half years your deponent has

spent more than 100 hours in this litigation and has expended

the sum of $1,300 for one accountant’s opinion, which formed

the basis of my recommendation to disprove the $1 million

settlement trust.

If negotiations are to continue on behalf of Madeline

Lynch with the Franchi family members (the other

remainderpersons of the trusts), then a method has to be

determined as to the source of the funds to pay the expenses

of an appraiser. It is my suggestion that the trusts themselves

be the source of these funds.

Assuming an appraiser determines that figure in

excess of $1 million is an inappropriate sum for Madeline

Lynch to renounce her remainder interest, there is no

assurance that this sum will be acceptable to the “plaintiff” or

the plaintiff's estate--assuming there is one. This brings up

the next question as to who is the spokesperson for the

deceased plaintiff and who is (are) the true party (parties) in

interest in the litigation. Clearly William Frank does not

represent Debra Lynch -- she is deceased. At the present time,

upon information and belief, no fiduciary has been appointed

for Debra Lynch and there has been no indication as to the

value of the estate of Debra Lynch.

Any resolution of this litigation by way of the.

establishment of a settlement trust for Madeline Lynch will

Appendix 3 3la

McGlinn Affirmations

In reality what is Proposed by way of settlement of

the divorce action is a purchase of Madeline’s interest in the

trusts by or on behalf of the other remainderpersons.

(1) An appraiser/accountant/financial analyst

be designated (preferably upon consent of

all parties).

(2) That fees be advanced (presumably from

the trusts themselves) to pay all fees and

disbursements incurred by your deponent

to date.

(3) That funds be set aside and Segregated for

the payment of Professional fees in

connection with the appraisal.

(4) If your deponent and representatives of the

plaintiff can agree on a settlement trust

figure, that the Settlement figure be

delivered in escrow to William Frank, Esq.

I point out that in the event the action has abated,

Madeline Lynch continues with her 20% interest in the trust

and/ or in the event the parties cannot agree on a trust

32a Appendix 3

McGlinn Affirmations

settlement figure, Madeline Lynch would continue to be a

20% owner of the various trusts. Her interest in the trusts

could be enforced by the appointment of a guardian of her

property in the State of Massachusetts—presumably her

father, Dean Lynch.

Joseph P. McGlinn

Sworn to before me this

16" day of June 1998

Dated: June 16, 1998

Patricia K. Meehan

Notary Public, State of New York

No. 01ME5063427

Qualified in Rockland County

Commission Expires July 22, 1998

Appendix 3 33a

McGlinn Affirmations

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ROCKLAND

PATRICIA F LAHERTY, LINDA A.

KACEWICZ, and MICHAEL P. FRANCHI,

as Executors of the Estate of DEBRA LYNCH,

Index No. 1109/95

Plaintiffs,

-against-

DEAN LYNCH,

Defendant,

AFFIDAVIT OF GUARD AD LITEM IN

OPPOSITION TO RELIEF REQUESTED IN

ORDER TO SHOW CAUSE

STATE OF NEW YORK )

COUNTY OF ROCKLAND) ss.:

Joseph P. McGlinn, being duly sworm deposes and

says;

I am the Guardian ad Litem for Madeline Lynch in the

above captioned matrimonial action. This affidavit is made in

response to the relief requested in the Order to Show Cause to

the relief requested in the Order to Show Cause signed by

Hon. William E. Sherwood, JSC and dated August 1, 2000. In

my capacity as Guardian ad Litem for Madeline Lynch |

oppose the relief requested in the Order to Show Cause.

The court rendered a decision/order dated, July 17,

2000 granting the plaintiffs motion for the entry of a

judgment of divorce nunc pro tunc upon the condition that the

34a Appendix 3

McGlinn Affirmations

trust for the benefit of Madeline Lynch has been established

and funded. I am in agreement with that decision.

Whether or not the defendant agreed or did not agree

"with plaintiff's request" is not the issue. The issue is whether

or not the plaintiff is entitled to a judgment of divorce nunc

pro tunc.

The so called “modifications to the stipulation” are all

for the benefit of Madeline Lynch and are otherwise simply

necessary draftsmanship issues to have the trust established.

Obviously 100% of the terms of the trust were not dictated

when the action was: settled on January 11, 1996. The

proposed trust has undergone various language revisions over

the past several years.

To clarify the record, Paragraph 4 of defendants —

affidavit submitted in support of the order to show cause

incorrectly quotes me. The substance of my conversation with

Mr. Lynch on July 20,2000 was that. if he believed the court

to be in error that he first attempt to proceed by letter and not

by order to show cause.

Clearly the defendant consented to the entry of a

judgment of divorce in open court on January 11,1996 (see

settlement stipulation).

Since my ward is not renouncing any interest in the

various Franchi family trusts there is no reason, at this stage,

to ascertain values.

Whatever interests Madeline Lynch has in the trusts,

she continues to retain. Whatever interest she may have in her

mother’s estate she continues to retain.

Appendix 3 35a

McGlinn Affirmations

WHEREFORE, it is respectfully requested that the relief

requested in the order to show cause dated August 1, 2000 be

denied.

~ Joseph P. McGlinn

Sworn to before me this

1* day of August, 2000

Patricia K. Meehan

Notary Public, State of New York

No. 01ME5063427

Qualified in Rockland County

Commission Expires July 22, 2001

36a Appendix 3

Report of Orville H. Mann, Jr.

[Pages 36a — 40]

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ROCKLAND

PATRICIA FLAHERTY, LINDA A.

KACEWICZ and MICHAEL P. FRANCHI

as Executors of the Estate of DEBRA LYNCH,

Plaintiff,

-against- PRELIMINARY REPORT OF

SUCCESSOR GUARDIAN

AD LITEM

Index No. 1109/95

DEAN LYNCH,

Defendant, pro se.

I was appointed Successor Guardian ad litem in the

above entitled divorce action to represent the interests of

Madeline Lynch pursuant to Order of this Court dated August

16, 2000.

A Motion for an Order directing entry of a Judgment

of Divorce

in the above action was brought on by the Plaintiffs

by Notice of Motion dated January 13", 2000. By virtue of

this Court’s Order dated August 22", 2000 vacating an earlier

Order of the Court dated July 17", 2000, the Plaintiffs’

Motion is still pending and is returnable September Ya

2000.

Since my appointment as Successor Guardian | have

reviewed a tremendous number of documents pertaining to

this case. It has been a daunting task to assimilate all of the

facts and issues set out in the pleadings, motions, affidavits,

reports and other documents filed in this case and as of this

Appendix 3 37a

Report of Orville H. Mann, Jr.

date I am not completely satisfied that | have all the

information I need to properly represent the interests of my

ward. I have not yet reviewed, for example, the Federal

Estate Tax Return filed in the Estate of Debra Lynch,

(although the contents of the return were summarized for me

into my possession and reviewed Mr. McGlinn’s files, notes

and memoranda on this case. There may be some thoughts

and insights set down by Mr. McGlinn in those records which

would be helpful to me. | do feel, however, that I have

assimilated enough of the facts of the €ase to represent the

interests of my ward in connection with the pending motion.

In this connection, I would like to thank Dean Lynch, Esq.

and Wiliam Frank, Esq. for their help in familiarizing me

with the facts in this case and providing me with copies of

some of the documents pertaining to the case. I would also

like to thank Robert Berliner, Esq. for assembling all the files

for me and providing a quiet space at the Courthouse for me

to review those files.

It is my position that the Plaintiff's motion for entry of

a Judgement of Divorce Should be granted. But for the

unilateral modification of the Stipulation of Settlement

waiving the requirement that the infant renounce her interest

in various family Trusts, it seems clear from the cases cited

by Plaintiffs that Debra Lynch is entitled to a Judgment of

Divorce. The transcript of the Stipulation of Settlement at

page 21. shows that the application for the divorce was

granted wit the consent of Mr. And Mrs. Lynch subject to

approval by the then Guardian ad litem. Although the then

Guardian ad litem initially disapproved of the settlement,

after the Plaintiffs waived the requirement that the infant

renounce her interest in the family Trusts, the Guardian

38a Appendix 3

Report of Orville H. Mann, Jr.

changed his position and submitted an Affidavit to the Court

swom to August 1, 2000 supporting the granting of the

Plaintiff's Motion for entry of a Judgment of Divorce nunc

pro tunc. Mr. McGlinn makes the point in his Affidavit that

the modification to the Stipulation was for the benefit of

Madeline Lynch. Not only is that true, but it also appears to

me that the waiver by the Plaintiffs clearly benefits Dean

Lynch, Esq. or at least does not harm or prejudice him. Mr.

Lynch currently has the sole legal obligation for his

daughter’s support. Waiver of the renunciation improves his

daughter’s financial position, thereby indirectly benefiting

Mr. Lynch.

Mr. Frank in his Affirmation dated August 10", 2000

summarizes the arguments as to why the modification should

not defeat the plaintiffs mght to entry of a Judgment of

Divorce and the arguments seem persuasive to me. To argue

that a modification in the Stipulation that not only does not

harm the Defendant, but actually benefits him, should be the

basis for denying the Plaintiff the divorce which both parties

had previously stipulated to and had been granted by the

Court, elevates form over substance.

Assuming this Court grants the Plaintiffs’ Motion,

there are difficult issues remaining which need to be resolved

pertaining to the funding of the Million ($1,000,000.00)

Dollar settlement. I disagree with Mr. Frank that the source

of the funds comprising the Million ($1,000,000.00) Dollar

Trust are irrelevant. Mr. McGlinn makes the point in his

Affidavit of January 19", 2000 that he opposes the procedure

for the establishment of the Trust because it was not clear to

him where the money would come from to fund Trust. The

fact that the source of the funds used to fund the Trust is

relevant as far as the infant is concerned can be demonstrated

by the following examples:

Appendix 3 39a

Report of Orville H. Mann, Jr.

Assume that the Estate of the deceases was Seven

Hundred and Fifty Thousand ($750,000.00) Dollars

at the time of her death on September 5", 1996.

Estate have appreciated so that the total value of the

Estate at the present time is One Million

funded only with the One Million ($1,000,000.00)

Dollars from the Estate, Madeline benefits only to the

extent of Seven Hundred and Fifty Thousand

($750,00.00) Dollars or fo put it another way,

Madeline is funding the Trust with Two Hundred and

Fifty Thousand ($250,000.00) Dollars of her own

Assume for the moment that the money or part of the

money to fund the Trust comes from family Trusts of

which Madeline is a potential discretionary

beneficiary. If the Trustees of those Trusts contribute

funds to make up the One Million ($1,000,000.00)

Dollars for Madeline, they might be disinclined to

consider Madeline for further discretionary

distributions from the Trusts. Again, Madeline is in

effect funding her own Trust to the extent that she

loses out on possible future discretionary

distributions from the Trusts.

40a Appendix 3

Report of Orviile H. Mann, Jr.

Although I agree with the establishment of the Trust

for my ward as part of the settlement, I would like to

understand where the money is coming from which will be

used to fund the Trust or, alternately, where the money is not

coming from, and whether the source of the funding of the

Trust is in the best interests of my ward.

Dated: September 15, 2000

Respectfully submitted

Orville H. Mann, Jr., Successor Guardian ad litem

Appendix 4 4la

Chronology of Key Events/Documents

[Pages 41a -— 44a]

ADMINISTRATION PROCEEDING

ESTATE OF DEBRA LYNCH

CHRONOLOGY OF KEY EVENTS/DOCUMENTS

9/5/96 Debra Lynch died, domiciliary of

Massachusetts

7/22/97 Last Will and Testament dated June 28, 1995

filed in Middlesex County Probate and Family

Court

10/20/98 Massachusetts counsel 80€s to above Probate

Court to commence Probate proceedings, for

appointment of Temporary Executors - court

clerk assigns date of appearance for

appointment of Temporary executors:

November 24, 1998

10/20/98 Patricia Flaherty executes affidavit as

petitioner for appointment as Temporary

executrix

11/4/98 Executors serve all interested _parties

(including Dean Lynch) with Notice of Motion

for appointment of Temporary executors

11/6/98 Dean Lynch files Petition for Letters of

Administration in Rockland County Surrogates

Court. - alleges that the decedent's 2 prior wills

of Dec. 1993 and June 1995 are invalid.

11/16/98 Dean Lynch writes to Clerk of Massachusetts

Probate Court. Acknowledges commencement

of Probate Proceedings therein, and requests

42a

11/19/98

11/23/98

11/24/98

11/25/98

1/21/99

02/22/99

3/1/99

3/8/99

Appendix 4

Chronology of Key Events/Documents

Court to recognize its lack of jurisdiction, set

the matter down for a full hearing.

Petition (NEW YORK) dismissed for failure to

annex wills.

Dean Lynch files Amended Petition for Letters

of Administration, annexing copy of above 2

wills, and swearing to existence of no other

wills after conducting due, diligent search.

Temporary Executors appointed in

Massachusetts Probate Court

Original certificate of appointment of

temporary executors by Massachusetts Probate

Court filed' with Rockland County Surrogate

Dean Lynch files Notice of Special

Appearance and Affidavit of Objections to

Petition in Massachusetts Probate Court

Motion to extend appointment of tem

executors granted by Massachusetts Probate

Court

Copy of extension of appointment as

temporary executors in Massachusetts filed

with Rockland County Surrogate

Motion to extend appointment of temporary

executors granted by Massachusetts Probate

Court

Appendix 4 43a

Chronology of Key Events/Documents

3/23/99 Copy of extension Of appointment as

temporary executors in Massachusetts filed

with Rockland County Surrogate

3/29/99 Dean Lynch files Second Amended Petition

for Letters of Administration

/8/99 Temporary Executors of Estate of Debra

Lynch move in Rockland County Surrogates

Court to intervene and to dismiss Amended

Petition and Second Amended Petition for

Letters of Administration

5/17/99 Motion to extend appointment of temporary

executors filed with Massachusetts Probate

Court; service of same on Dean Lynch

/3/99 Letter by Massachusetts counsel to Dean

Lynch advising him that the Massachusetts

Probate Court has ordered a pretrial conference

for June 15, 1999 and that Court will be

sending notice to all parties

6/3/99 PreTrial Notice & Order issued by

Massachusetts Probate Court and sent to Dean

Lynch. - Notice & Order Stated that the case

might be ordered to immediate trial on the date |

of the Pre-Trial.

6/10/99 Dean Lynch writes to Massachusetts Probate

Court. stating: “I am in receipt of the Pre-Trial

Notice & Order dated June 3, 1999 as to the

above captioned matter.” In said letter, Mr.

Lynch advises Court that it has no jurisdiction

over him or his daughter, and that he had made

Appendix 4

Chronology of Key Events/Documents

Asks Court to

6/14/99

6/15/99

9/8/99

a “special appearance” to contest jurisdiction.

He state that he would not attend any such

conference due to his "special appearance.”

take no action until issues are litigated in New

York.

Dean Lynch writes again to Massachusetts

Probate Court (sent by Fax)- advises Trial

Dept. that he will not be appearing on June 15,

1999; that the Rockland County Surrogates

Court has not yet made a decision as to his

Petition for Letters of Administration, and that

based on principles of conflict of laws, the

Estate process, having been commenced earlier

in time in NEW YORK must be resolved first

in NEW YORK. Requests that Court take no

action until then, and advised that he means no

disrespect by his failure to appear.

Massachusetts Probate Court. admits Will to

Probate and grants appointment of Executors

of the Estate

NEW YORK Proceeding for Letters of

Administration dismissed for lack of

jurisdiction as Will admitted to Probate and

executors have been appointed.

Appendix 5 45a

Dean Lynch Letter to Probate Court

[Pages 45a — 46a]

11-16-98

Clerk of the Court

Middlesex Probate and Family Court

208 Cambridge Street

East Cambridge, Massachusetts 02 141

Re: Estate of Debra Lynch

Docket No. 97P3465

Dear Clerk:

I am the husband of Debra Lynch and father of Debra's

daughter Madeline, who is 11 years old.

I understand from the enclosed copies of letters from Mr.

McGlinn dated 11-9-98 and Mr. Frank dated 11-13-98 that

my in-laws have retained the firm of Lourie & Cutler to

probate an alleged “Wil]” of my wife. I have not been served

with any papers as to any action in your Court either as

surviving spouse or guardian of Madeline.

I also enclose copy of letter sent to you on 9-13-96 from

David Howe, Esq. as to this matter which it appears you have

chosen to disregard.

I can only assume that the false death certificate with the

misrepresentations of Mrs. Flaherty dated 9-9-96 was used to

file in your Court. Not only was Debra not “divorced” but she

was not a resident of “Weston, Middlesex. Mass.” Your Court

has no jurisdiction over this matter and any acts are and will

be ultra virus.

I enclose for your review copy of my Petition for Letters of

Administration which has been filed in Rockland County,

46a Appendix 5

Dean Lynch Letter to Probate Court

New York. In order to give you a clear picture of the facts and

circumstances of the situation I also enclose copies of letters

to the Appellate Division-Second Judicial Department, and

Surrogate where jurisdiction is properly placed. In addition, |

enclose the “Statement of Facts” from the Appellate Brief to

give you a point of reference as to the facts in time starting in

1981.

It is respectfully requested that your Honorable Court

recognize it's lack of jurisdiction, or in the alternative set the

matter down for a full hearing as to the issue of jurisdiction

including the factual findings as to competency and

residency.

I would point up that in light of the fact I have not been

served that any action by your Honorable Court is in violation

of the due process clause of the United States Constitution.

Please act accordingly.

Respectfully submitted,

Dean Lynch

Husband of Debra Lynch, pro se

cc wo/enc.; Appellate Division-Second Judicial Department

Hon. Alfred J. Weiner

Lourie & Cutler

William Frank, Esq.

Shays, Kemper

Joseph McGlinn, Esq.

Appendix 6 47a

Decision and Decree of Massachusetts Probate Court

[Pages 47a — 48a}

COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT

PROBATE AND FAMILY COURT DEPARTMENT

MIDDLESEX DIVISION DOCKET NO. 97P3465

IN RE: ESTATE OF DEBRA LYNCH

MEMORANDUM OF DECISION

Respondent, Dean Lynch, the objecting party having

failed to appear for pre trial on June 15, 1999: and

Respondent having sent a letter to the Trial

Department of this Court dated June 10, 1999 in which he. a

lawyer by profession, raises the issue of the jurisdiction of

this court when the issue, if any, whether or not the court has

jurisdiction over Respondent; and

The pre trial notice having specifically stated that the

case may be ordered to immediate trial on the date of pre trial

if it appears to the court that one party, through a failure to

appear at the Pre Trial Conference or otherwise will not

present a case;

the respondent not having raised the conventional

objections, viz the issue of domicile or invalidity of the will

due to undue influence, lack of Capacity or improper

execution, the court finds that he will not present a case and

thus orders that the Will be allowed and the executors be

appointed.

6/15/1999 s/ acs:

Date Beverly Weinger Boorstein

Judge of Probate and Family Court

48a Appendix 6

Decree

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Appendix 7

Renehan Affidavit

[Pages 49a — 50a]

IN THE

SUPREME COURT OF THE UNITED STATES

ADMINISTRATION PROCEEDING

ESTATE OF DEBRA LYNCH

a/k/a Debra L. Lynch & Debra Franchi,

Deceased

Dean Lynch

Petitioner

Patricia Flaherty, Linda A. Kacewicz,

and Michael P. Franchi,

Respondents

AFFIDAVIT OF RICHARD W. RENEHAN

1. I am an attorney licensed to practice in the

Commonwealth of Massachusetts, and a shareholder in the

Boston Jaw firm of Hill & Barlow, located at One _

International Place, Boston, MA 02110.

Z. I am also a member of the Bar of the United

States District Court for the District of Massachusetts, for the

Court of Appeals for the First Circuit, and of the Supreme

Court of the United States (admitted as of 1971).

3. This affidavit is submitted in response to the

untrue allegations made at pages six and seven of the Petition

for Writ of Certiorari filed by Petitioner Dean Lynch, an

attorney who is proceeding pro se. In that affidavit Mr.

Lynch imaccurately states that I made a

“misrepresentation...that Petitioner was the ‘ex-husband’ and

that Decedent had been living in Massachusetts for ‘two years

Appendix 7

Renehan Affidavit

after the divorce’”; and he also inaccurately states that |

admitted to the Court that these statements were untrue.

4. First, my statement to the Court that Petitioner

was the ex-husband of the Decedent was accurate as of the

date made because as of that date the Surrogate Court in New

York (in open court) had issued a decree of divorce based on

the parties’ Agreement for Divorce. The divorce decree was

not entered due to the death of the Decedent.

Second, the Decedent had been living in

Massachusetts for one year, eight months and a week, or

approximately two years prior to her death on September 5,

1996.

I never stated to the Court that my statements were

untrue.

Signed under the pains and penalties of perjury this 14th day

of January, 2002.

Richard W. Renehan

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.