There's nothing like a good, old-fashioned trusts and estate brawl, especially one involving a prominent family, some of New York's top litigators and a fed-up judge.

At a hearing last week, Justice Eileen Bransten lashed out at Paul, Weiss, Rifkind, Wharton & Garrison's Allan Arffa, the former co-chair of the firm's litigation department and current member of the management committee. 

“Stop interrupting me,” she told Arffa based on a transcript of the proceedings. “You are being very rude. Maybe because I am a woman or something. You know, you are in court. You are in the Supreme Court Commercial Division.”

The judge continued, “Now don't interrupt me again.”

Arffa immediately apologized, but the hearing stayed heated.

A little background on the fight: It's a showdown between members of the Slifka family. The best-known member is Alan Slifka, who died in 2011. The New York Times in his obituary described him as “a New York investment manager who used his fortune to promote harmony among Israeli Arabs and Jews and to give the Big Apple Circus its start.”

He had a twin sister, Barbara Slifka, who is now 88 and has no children of her own. Represented by Arffa, she wants to sell a family-owned property at 477 Madison Avenue in Manhattan for $260 million, with the profits shared among the family members.

Two of Alan's three sons, who are represented by Willkie Farr & Gallagher litigation head Tariq Mundiya, don't want to sell. Instead, they want to keep the building in the family for generations to come, reaping the value of its rent on a long-term basis.

The third son (from a subsequent marriage) is in favor of selling, and is represented by Steven Holinstat of Proskauer Rose.

The building was acquired and developed by Alan and Barbara's father Joseph in the 1950s. He died in 1992. Alan and Barbara were executors of his estate. A key question: Is Barbara still executrix, with managing partner powers over the property? Or was the estate closed after the final accounting in 2001?

The fight is ping-ponging back and forth between New York's Supreme Court and the state's  Surrogate's Court, and seems unlikely to be resolved anytime soon.

In the meantime, Mundiya asked Bransten for permission to take limited depositions of 88-year-old Barbara and another witness who is about 90, “because memories are fading, and we would really like to get some record testament here.”

Arffa cried foul.

“Judge, number one, once again, we get these—what he does is he waits until the end of the argument and makes a request to Your Honor. It hasn't been briefed. It hasn't been litigated. We totally object. He is just harassing our clients,” he said.

When the judge started to respond, Arffa cut her off, earning the rebuke for interrupting.

Arffa in an email said, “At the argument, the judge strongly attacked our client's position. I therefore strongly defended my client, and certainly meant no disrespect to the judge. I was totally stunned by the judge's comments and thought they were not at all warranted under the circumstances.”

He also said his client wants to sell the building in order to donate the proceeds of her share to charity, and that Bransten at the hearing “for the fourth time refused to rule on our and the other defendants' motions to dismiss the case. We've taken an appeal to the Appellate Division from her last two refusals to rule.”

Mundiya declined comment.

Still, the rebuke was somewhat ironic, considering Arffa at the hearing previously complained twice about Mundiya interrupting him—though the transcript doesn't quite back that up.

As in:

1. ARFFA: We do say it only makes sense that way—Tariq, let me finish.
2. MUNDIYA: I did not say anything.

After Bransten seemed inclined to greenlight the depositions, Arffa said he would ask to depose the other side's principle witnesses in return. “We don't think it's fair to have our side harassed with depositions and we can't take depositions of them.”

But those witnesses are in their 50s. “The only reason I am considering it is because one person is 90 years old and the other person is 88 years old,” Bransten said. “Guess what? That makes it slightly different than someone who is 50 years old. Unless you know of a medical condition that would make it imperative to take their testimony.”

 

Shout-Out: A B.I.G. Win for Nixon Peabody

A team from Nixon Peabody fended off a copyright suit against the estate of Christopher Wallace, better known as “The Notorious B.I.G.” or “Biggie Smalls,” over his song “Party and Bullshit.”

The rapper, who died in 1997, was sued by poet Abiodun Oyewole, who created the song “When the Revolution Comes” in 1968 featuring the refrain “party and bullshit.”

The poet also sued Rita Ora and Roc Nation, represented by Davis Wright Tremaine, for her 2012 pop song “How We Do (Party),” which begins, “And party and bullshit/ And party and bullshit.”

U.S. District Judge Alison Nathan of the Southern District of New York assumed for the sake of argument that the phrase “party and bullshit” is a protectable expression, and that the works at issue are substantially similar. But she dismissed the suit because she found the use was fair.

For one thing, she wrote, “both 'Party and Bullshit' and 'Party' transform the purpose of the phrase 'party and bullshit' from one of condemnation to one of glorification.”

Nathan continued, “Defendants' songs are unlikely to 'usurp' the market for 'When the Revolution Comes.' Because, as explained, the allegedly infringing works are different in character and purpose from the original work, it is unlikely that Defendants' target audience and The Last Poets' audience are the same. Even if they are, Defendants' works are significantly different from Oyewole's and thus do not 'provid[e] the public with a substitute for ['When the Revolution Comes'].”

The Nixon Peabody team was led by L.A.-based partners Julian Petty and Staci Riordan.

“It is gratifying to receive such a strong decision that held Wallace's use of the lyrics 'party & bullshit' was transformative fair use, assuming the phrase was protectable in the first instance,” Riordan said in an email. “It is no coincidence that we received what is sure to become an influential decision on music copyright infringement cases.”

 

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