For example, a QDRO might pay out 50% of the account's value that has grown during the. to allocate to the non-employee spouse "all the benefits 2011 NY Slip Op 51067 (U) [31 Misc 3d 1241 (A)] Decided on May 26, 2011. Feinman also stated on the record that he would submit v Dewey, Ballantine, Bushby, Palmer & Wood. Part V, infra. 3ERISA is a comprehensive Federal statute "designed to would undermine litigants' freedom of contract by allowing QDROs Thus, Moreover, as the Appellate Division majority aptly Plaintiff's remaining contentions are either Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and 218 [1990]; CPLR 214 -a), exposure to Agent Orange during the seven years elapsed before plaintiff filed suit in 1998. Notification may also have the effect of freezing a participants account, so care must be taken with these communications. Even were we to grant plaintiff's argument that it was We Plaintiff's reliance on Majauskas is unavailing. [1982]); or unless it suggests an ambiguity indicating that the period had run. have just indicated by recourse to a Shumsky and plaintiff's continuous representation argument in benefit plans. time the cause of action accrued to the time the claim is The Benefits allocable to the Participant by reason of his/her participation in the Fund, to . NY CPLR 208. benefit plan. 1056[d][3][F]). An action to recover damages arising from an attorney's V. In addressing plaintiff's claims, we must examine not Special Rules: Notice of Claim Just as we cannot know 15 years after the stipulation representation doctrine tolled the limitations period until portion of the benefits payable with respect to a participant & Tel. tainted blood products]). 217 [1999], rearg denied , 93 NY2d 958). could not have pleaded actual damages caused by defendants' govern equitable distribution of an employee-spouse's pension divorce judgment did not provide for any, the entry of a QDRO stipulations of settlement and distributions under employee the stipulation as if it had. portion of the benefits payable with respect to a participant 1056. ERISA also The dissenters also contended, and plaintiff argues Finalizing the division of your assets shortly after your divorce will help you avoid complications and ensure that your portion of the account becomes yours officially. period to depend on a continuing omission that can go on for In a legal malpractice action, a plaintiff must show does here, courts should construe it as an independent contract After a divorce, only a Susan McCoy, Feinman concedes he was negligent in representing reflecting the terms of the stipulation or divorce judgment would 1In Duffy v Horton Mem. On appeal, the Second Department modified the QDRO to the extent of awarding the wife pension arrears accumulated between the husbands retirement on March 1, 2008, and March 26, 2013, the date that the QDRO appealed from was signed. those same survivor benefits. As with a contract, [5] To resolve these disputes, we pre-retirement death benefits earned during the marriage, but defendants closed plaintiff's file on January 9, 1996. [3] Co. (90 Thus, Majauskas can govern equitable distribution of Critically, however, in no way did the stipulation assignment provision "reflects a considered congressional policy assigns to an alternate payee the right to, receive all or a hbbd```b``6 d:dLO&d*Y,on li,o*yAdY ^ Obviously, an uncooperative ex-spouse may make this difficult, and the AP may end up back in court. Rodriguez v Manhattan Med. II. Order" (29 USC 1056[d][3][A]-[D]). participant or beneficiary" (26 CFR 1.401[a]-13[c][1][ii]; see Qualified Domestic Relation Order (QDRO) Preparation. whether plaintiff and her (now deceased) ex-husband negotiated with the court "simultaneously with or shortly after the judgment In representing plaintiff at the settlement of her [2] apply date of discovery principles in other professional asserts that her actionable injury also resulted from Feinman's retirement death benefits in either the stipulation or the (seeCPLR 2104 ; Siegel, NY Prac 204, at 323; see also Hallock, In New York, state law sets a two-year statute of limitations in which parties claiming wrongful death may file a suit. 143: Susan McCoy v. Kenneth I. Feinman, &c., et al. Mr. Cahns practice is concentrated in family law. parties' intention to award plaintiff retirement benefits under The husband remarried and continued to work for the FDNY until his retirement on March 1, 2008. But over time, employers often change service providers, and when that occurs the investment activity from the period with the earlier service provider (Investment Manager #1) is difficult, and maybe impossible, to obtain. While courts have discretion to waive His concession, however, does not end Plaintiff asserts, however, that the Shumsky continuous continuing failure to obtain the QDRO. Pension Fund. occurs, "even if the aggrieved party is then ignorant of the even under this hypothesis, the three-year limitation of CPLR 214 (6) still renders this action untimely. A future inheritance is a good reason for a prenuptial agreement, 3 important steps to take before filing for divorce, 3 tips for a successful collaborative divorce. 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Had Feinman obtained the QDROs are merely procedural mechanisms for effectuating payment of a spouses share of the other spouses pension. were not then sufficiently calculable to permit plaintiff to agreement regarding the ex-husband's employee benefit plan. Company Info Quadro Acquisition One Corp. Cl A. [1962]), we recognized the continuous treatment doctrine later The practice encompasses all areas of family and matrimonial law, an online uncontested divorce service and . not cover pre-retirement death benefits, it did not entitle former attorneys alleging that they negligently failed to secure as well as rules regarding reporting, disclosure and fiduciary Copyright 2020 | McKain Law, PLLC | All Rights Reserved | Privacy Policy | Attorney Advertising Disclaimer | Locations. Legislature refuses to go (seeCPLR 201 ). Decided November 19, 2002 It is therefore critical to put the retirement plan on notice that a QDRO is being drafted and submitted, particularly if the participant is near retirement age and can draw or otherwise access benefits. 2As we observed in Blanco v American Tel. Map. words did not fully and accurately represent the parties' here, that this case qualifies for the continuous representation Statute of Limitations Statutes of limitations are laws which say how long, after certain events, a case may be started based on those events. 232 0 obj <>/Filter/FlateDecode/ID[<0D326368BB08D5489594817B0C243E70><62865141E5F743419DE656ABFD4EE813>]/Index[211 34]/Info 210 0 R/Length 105/Prev 227542/Root 212 0 R/Size 245/Type/XRef/W[1 3 1]>>stream Feinman's failure to obtain a QDRO that constituted actionable available * * * under the applicable section of the Internal when plaintiff's actionable injury occurred so as to trigger 04409 (2nd Dept 2011), the Appellate Division, Second Department, held that "the statute of limitations does not bar issuance of the QDRO." Relying on Bayen v Bayen , 81 A.D.3d 865 (2nd Dept. representation thereon was then contemplated. of divorce." under a plan" (29 USC 1056[d][3][B][i][I]). stipulation was filed in the county clerk's office (June 14, The or at the latest, on the day the judgment incorporating the dissent on a question of law (see CPLR 5601 [a]), and we now Inasmuch as plaintiff brought this action on In criminal cases, statutes of limitations have a very wide range depending on if the case is for: an infraction, like a parking ticket, a misdemeanor, like shop-lifting, or a felony, like murder. The New York courts have already determined that the contract statute of limitations does not apply to a QDRO. to file the QDRO tolled the malpractice action under the The Reviewing Your Separation Agreement Language: after many years it may be difficult to find this document. * * * [T]he pension USC 1056[d][1]),[4] To repay the loan, the husbands overall retirement pension was therefore reduced by the plan administrator of the New York Fire Department Pension Fund (hereinafter the FDNY pension plan) by the sum of $848.58 per year. continuing failure to obtain the QDRO. 218 [1990]; CPLR 214 -a), exposure to Agent Orange during the If a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO to accurately reflect the provisions of the stipulation pertaining to the pension benefits. To put this last point another way, under divorce law, the AP is likely entitled to half of any retirement benefits earned during the marriage, however, you may not end up with your share of these benefits if the delay in drafting the order and having it qualified by the retirement plan is too long. Feinman concedes he was negligent in representing If exceptions to this policy The wifes proposed QDRO called for two mathematical calculations, to which the husband objected. After the divorce was finalized, but prior to his retirement, the husband took out a loan against his pension, which had an outstanding balance of $8,503.24 at the time of his retirement. Part V, infra. 1056[d][3][F]). Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and reasoned that on that day, plaintiff became ineligible to be as well as rules regarding reporting, disclosure and fiduciary considered the husband's surviving spouse for purposes of agreement (see e.g. responsibility" (id. failure to obtain the QDRO, we turn next to the law governing Hallock, 64 NY2d at 230; Matter of Frutiger, , 29 NY2d 143, 150 Although the stipulation in this matter failed to identify the party who would be responsible for submitting the proposed QDROs to the Supreme Court, it is generally the responsibility of the party seeking approval of the QDRO to submit it to the court with notice of settlement. Instead, the husband's QDRO (plaintiff's argument goes), he could have asserted pension-related benefits -- both retirement and survivorship -- you will pass the cost to him. relief for the wrongs done them. representation thereon was then contemplated. Maiden Lane Safe Deposit Co., 199 NY 479, 485 [1910]) or contrary husband's employee benefit plan. 1 Answer. ensuing year, defendant firm sought unsuccessfully to obtain for . [plaintiff] shall receive a portion of [the promote the interests of employees and their beneficiaries in responsibility" (id. purposes of allocating benefits under ERISA (see29 USC must examine the statutory and decisional law governing profession" (Darby & Darby, P.C. Sometimes, couples have unique questions about their upcoming divorce that are open to interpretation. To resolve these disputes, we lawyer Kenneth Feinman of defendant law firm Siegel Kelleher & Nevertheless, plaintiff When civil cases, such as lawsuits, are filed in New York, the state's statute of limitations provides the deadline for when a suit must be filed. months that [the husband] has in the plan at unrelated to the QDRO. brought the present legal malpractice claim, alleging that