Long Island

A court-appointed evaluator in 2013 found that State Sen. Tom Croci, who chairs the Senate Ethics Committee, had “taken advantage” of his elderly aunt for his own financial benefit and recommended that the court reject Croci’s attempt to control her assets.
The evaluator’s findings preceded the settlement of a bitter family dispute that required Croci to resign as his aunt’s financial trustee and to sign over to her the title to a $450,000 Alexandria, Virginia, town house she had purchased for him in 2005. In turn, his aunt agreed to send the Nassau District Attorney’s Office a letter withdrawing “any and all complaints” she’d made against Croci.
Croci’s aunt is Adele Smithers, a Mill Neck heiress and philanthropist known for her contributions to addiction research and treatment. The evaluator made her findings during a court action that Croci brought in Nassau County seeking to have Smithers declared mentally incapacitated and to be named her property guardian, a designation that would have given Croci broader authority over her finances.
Though Croci alleged that his aunt’s mind was failing and that she was being preyed upon by an adult son, the evaluator concluded otherwise. Smithers’ mind was intact, the evaluator found, and it was Croci, not the son, who had exploited her for his own “pecuniary gain.” Smithers, who accused Croci and a second trustee of ignoring her requests for funds — in one instance for a wheelchair — told the evaluator that her nephew’s lawsuit was nothing more than an attempt to “control her money.”
In a statement Wednesday, Croci, an attorney and U.S. Navy reservist who has served in Afghanistan and was Islip Town supervisor when he brought the proceeding, told a reporter that he always acted in the best interest of Adele Smithers.
“You have my guardianship petition I filed to protect my aunt,” Croci said. “It was honest and complete the day I signed it, under oath. And it is honest and complete now.”
Voters knew nothing of the case in 2014, when Croci, a Republican, won a seat in the State Senate. That’s because Nassau Supreme Court Judge Arthur Diamond issued an order that sealed the case file from the public. Newsday unearthed partial case records during reporting for a forthcoming series that examines whether Long Island’s state court judges have adhered to sealing rules that were established in part to protect the public’s interest in open courts.
Newsday found that Diamond, who this year was given responsibility for overseeing all guardianship proceedings in Nassau, failed to meet the standard that the state mental health law establishes for sealing guardianship cases.
Diamond declined to be interviewed.
Newsday contacted Croci’s office last year and again last month in regard to the case, but got no response until this week. In his statement, Croci said that he was “not permitted to comment” further because of the sealing order. Croci’s attorney, David A. Smith, also said the order barred his client from talking. Croci’s office said he has moved to have the order rescinded so that he could speak more fully.
Not all legal experts believe that a sealing order prohibits litigants from discussing a case. A New York University law professor and legal ethicist, Stephen Gillers, said sealing orders direct clerks of courts not to disclose case records, whereas gag orders, which are rare in civil litigation, limit the freedom of the parties to discuss a case.
“A sealing order is not a gag order; a gag order is not a sealing order,” Gillers said.
Until age and Parkinson’s began to take a toll, Smithers, who is now 83, lived an influential life in the spotlight. She was married to R. Brinkley Smithers, an investment banker’s son who established the country’s largest foundation dedicated to the research and treatment of alcoholism. He died in 1994. Adele Smithers helped run the foundation and other organizations with similar goals and led the board of directors of the National Council on Alcoholism and Drug Dependence.
A feisty Smithers fought a public battle in the late 1990s with St. Luke’s Roosevelt Hospital Center for control of a renowned addiction treatment center her husband had endowed. The center had helped prominent figures such as John Cheever, Joan Kennedy, Truman Capote, Darryl Strawberry and Doc Gooden.
In 2011, according to court filings, a trust was created for Smithers to hold a “substantial portion of her assets.” There were two trustees: Smithers’ longtime attorney, Charles F. Gibbs, and her nephew, Croci. Smithers, according to the terms, could not alter the trust without a trustee’s consent.
The same year the trust was created, Croci was elected Islip supervisor after campaigning on his record of military service. His resume includes positions in naval intelligence and experience as a senior duty officer in the White House Situation Room of President George W. Bush. He now chairs the state Senate’s Veterans, Homeland Security and Military Affairs Committee.
Croci, who is running for re-election this fall, was appointed chair of the Senate Ethics Committee in June 2015 during a leadership shake-up following the indictment of then-Majority Leader Dean Skelos. It’s the committee’s responsibility to investigate alleged violations of Senate rules and policies by members. It last held hearings in 2009.
In early February 2013, Smithers took her dissatisfaction with Gibbs and Croci to the courts when she filed an action in Manhattan, accusing them of managing her money “in a manner that was inconsistent with her wishes,” going so far, she claimed, as to deny her request for a new wheelchair. 
Gibbs did not respond to phone calls.
A week after Smithers filed her lawsuit in Manhattan — which was discontinued later — Croci filed his action in Nassau seeking to be named his aunt’s property guardian, which would have given him additional power over her assets. Croci brought the proceeding a month after Smithers informed him in writing that he’d have to begin making payments on the Virginia town house. Under the terms of an agreement struck in 2005, Croci took title to the property and Smithers assumed the role of lender on a $450,000 mortgage. Croci was to make regular payments to Smithers, but he didn’t. Until her request, Smithers had forgiven them.
In his filing, Croci said his aunt was being exploited by her son Christopher Smithers and his wife, who’d moved to Adele Smithers’ 47-acre Mill Neck estate, Goose Point, in 2012. Croci alleged that the couple had drug and alcohol problems and had long manipulated Adele Smithers for financial gain. Now, he said, they had turned Adele Smithers against him to get at more of her money.
The court-appointed evaluator, Nassau attorney Maria Begley, rejected Croci’s characterization of the relationship between Christopher Smithers, his wife and Adele Smithers. Courts appoint independent evaluators such as Begley to protect the subjects of guardianship proceedings. Evaluators review documents, conduct interviews, and report their findings and recommendations to judges.
In her report to the court, Begley found that while Smithers was suffering from Parkinson’s — a physical disability — she was mentally lucid. Croci’s disagreement with her choices, she wrote, “does not constitute grounds for a guardianship.” She wrote that the heiress told her “this lawsuit was really about money, that she had money and so did her son, Christopher. Further, that Thomas [Croci] wanted to control her money and he would not give up control of her revocable trust.”
In court records, Christopher Smithers admitted having an alcohol abuse problem. Begley, however, found that he was in active recovery and had been since moving to Mill Neck in 2012. An attorney for Christopher Smithers stated in court papers that Croci’s allegation that his wife had drug and alcohol abuse issues was “simply false, scandalous and malicious.”
Croci “made up stories about my wife abusing alcohol and drugs and he disparaged me because I had been in treatment for alcoholism in the past, but I had been and am sober for many years,” Christopher Smithers said in an interview. “His plan blew up.”
He further stated that “Croci betrayed his duties as trustee and engaged in self-dealing, then he wanted more.”
In his application to the court, Croci described a rapacious son who’d reduced his mother to a state of misery. Begley, however, found Adele Smithers to be living in an “immaculate” home and pleased to be surrounded by her immediate family, particularly her four grandchildren. “I find no basis,” Begley wrote, for Croci’s “claim that the home is an abusive and unstable environment.”
Croci, in his application, pointed to Smithers paying a substantial mortgage on a property in Malibu, California, for her son as an example of her being fleeced. Croci, however, did not divulge that Adele Smithers was forgiving the debt on his Virginia town house, which was generating monthly rental income of $1,600.
He also did not mention that in 2010 his father had purchased a Florida home from Adele Smithers for $475,000 that she’d paid $830,000 for in 2005, according to case records, or that a cousin had purchased a South Carolina property from Smithers in 2011 for $140,000 that had been listed for more than $1 million.
Begley concluded that Croci’s actions and those of another relative of Adele Smithers, a sister who lived part of the year at the Mill Neck property, had been “self-serving.” Both Croci and the sister, Begley wrote, “had taken advantage of Adele for their own pecuniary gain.”
Croci signed the settlement agreement in April 2013, a week after the evaluator’s report was completed. 
The settlement required Croci to resign his position as Smithers’ trustee. Gibbs also had to resign. The settlement also mandated that Croci return to Smithers a painting by Eugène Boudin, a 19th century French marine artist whose works have been auctioned by Christie’s for as much as $1.5 million. 
In addition, Croci conveyed the Alexandria property’s title to his aunt. From that point on, rental income from the tenant who was living at the property was to be paid to Smithers.
Smithers, in turn, agreed to inform the Nassau District Attorney’s Office that she was withdrawing “any and all complaints” she’d made against Croci. Available records are silent on the extent and exact nature of those complaints.
In May 2013, a month after he finalized the settlement, Croci announced that his Navy unit was being mobilized and was headed to Afghanistan. He returned in July 2014, and that month announced his run for the State Senate.
With Tom Brune and Yancey Roy

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NY Sen. Tom Croci’s family dispute hidden in sealed files

Pol’s family dispute hidden in sealed files

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NY Sen. Tom Croci's family dispute hidden in sealed files

Newsday

In guardianships, how can judges balance privacy and the public interest? 
The most publicized guardianship case in state history, which involved socialite and philanthropist Brooke Astor and her son, Anthony D. Marshall, serves as an instructive example. 
Astor, afflicted by Alzheimer’s, was the focus of a bitter fight when her grandson charged that his father, Astor’s son, was bilking the centenarian and turning a blind eye to her living conditions and deteriorating health. Marshall disputed the claim. 
Several press organizations sought access to Astor’s sealed guardianship file, and in 2006 Manhattan Judge John E.H. Stackhouse opened the case to the public, save for specific documents such as Astor’s medical records. 
In doing so, he stressed the benefits of openness to the justice system, that confidentiality is supposed to be the exception under the law, and that he was bound by case law to be selective in what he kept under seal. 
“Less restrictive alternatives to full closure,” Stackhouse wrote in his decision, “should be employed whenever possible.” 
In a later criminal proceeding, Marshall was convicted in 2009 of having looted his mother’s fortune.

Sealed vs. open: The Astor case

INGUARD0916

Dysfunction is evident even in the state guardianship system’s most visible and elementary features, raising questions about what’s hidden from public scrutiny. 
While directing the Brookdale Center for Healthy Aging at Hunter College, Jean Callahan and then staff attorney Raquel Romanick examined how closely guardians in 14 New York counties adhered to financial reporting requirements – a basic measure of adequate fiscal stewardship. 
Guardians are supposed to file their first reports, called accountings, within 90 days of being appointed. Callahan’s review found that first filings in Nassau were on average 111 days late, in Suffolk 162 days. In 22 percent of Nassau case files and 29 percent of files in Suffolk, no financial accounting was found. 
And that’s in unsealed cases that Callahan, now an attorney at Brooklyn Legal Aid, could see. What’s happening in sealed cases is unknown. 
“Are the guardians reporting? Callahan asked. “Is anybody looking at the report?”

Review of guardians finds financial reports lag

A Manhattan money manager has pleaded guilty to a charge of <a href="/topics/Insider_Trading">securities fraud</a> related to a $4-million land development deal on Long Island, prosecutors said. 
 William Landberg, founder of West End Financial Advisors Llc, made the plea on Friday in U.S. District Court for the Southern District of <a href="/topics/New_York_%28state%29">New York</a> in Manhattan. 
 The case against him included a total of $8.7 million of misspent investor funds, court documents said. 
 Landberg obtained the $8.7 million from a German bank, WestLB, by falsely claiming he would carry out real estate and franchise store transactions in Florida and Alabama, in addition to the Long Island development deal, prosecutors said. 
 Landberg in 2009 requested nearly $4 million from WestLB "to fund a loan to develop real property on Long Island," records show. 
 "However," court documents said, "upon receiving the $3.948 million loan, Landberg misappropriated most of the money and used it for the <a href="/topics/Benefit_%28designer%29">benefit</a> of other funds and for himself." 
 He used $2 million to pay for separate investment commitments, "paid $350,000 to investors as purported earnings on their investments, and diverted over $100,000 to his own personal accounts," according to the criminal complaint in the case. 
 Landberg couldn't be reached for comment. His lawyer, Michael Bachner, said, "The money Mr. Landberg received from the bank as advances was used for the <a href="/topics/Benefit_%28designer%29">benefit</a> of the funds he managed, and not for his personal enrichment." 
 Court documents, filed by the office of U.S. Attorney <a href="/topics/Preet_Bharara">Preet Bharara</a>, gave no details on the Long Island project. Landberg entered his plea on Friday before U.S. Judge Laura Taylor Swain in Manhattan. Sentencing will be in March, Landberg's attorney said.

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