Nassau Lawyer May 2016 - Nassau County Bar Association

Transcription

The Journal of the Nassau County Bar Association
May 2016
Vol. 65, No. 9
www.nassaubar.org
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LAW DAY 2016 AWARDEES
OF NOTE
NCBA Member Benefit - I.D. Card Photo
Obtain your photo for Secure Pass Court
ID cards at NCBA Tech Center
Only For New Applicants
Cost $10 • June 7, 8 & 9
9 a.m. – 4 p.m.
PLEASE NOTE: Existing Secure Pass
holders do not need new photos and can
now renew online at the OCA website
www.nycourts.gov/attorneys/registration/
securepass.shtml
NCBA COMMITTEE MEETING CALENDAR
Page 22
PETER T. AFFATATO COURT EMPLOYEE
OF THE YEAR LISA PORTEUS
(Left to right) Hon. Denise Sher, Nassau
County Supreme Court; Court Employee
of the Year Lisa Porteus, Principal Court
Reporter, Nassau County Courts; and Hon.
Thomas A. Adams, Administrative Judge,
Courts of Nassau County.
EVENTS
ANNUAL BLOOD DRIVE
Wednesday, June 1, 2016
12:30-6:30 p.m. at Domus
Details pg. 21
NCBA AND NAL
INSTALLATION OF OFFICERS
Tuesday, June 7, 2016 • 6 p.m. at
Domus
Details on page 6
ANNUAL COMMITTEE CHAIR
MEETING
Thursday, June 9, 2016
5:30 p.m. at Domus
All 2016-2017 Committee Chairs and
Vice Chairs are asked to attend
NCBA BOARD OF DIRECTOR
ORIENTATION
12:30 p.m. at Domus
All 2016-2017 Board members are invited
to attend
THOMAS MALIGNO PRO BONO ATTORNEY OF THE YEAR JONATHAN PRESS
(Left to right) NCBA Board Member Gregory Lisi and NCBA Vice President Stephen
Leventhal, NCBA Co-Chairs, Access to Justice Committee; Thomas Maligno, Executive
Director of the William Randolph Hearst Public Advocacy Center and Director of Pro Bono
and Public Service, Touro College Jacob D. Fuchsberg Law Center (for whom the award
is named); Pro Bono Attorney of the Year Jonathan Press, and NCBA Director of Pro
Bono Attorney Activities Gale D. Berg.
LIBERTY BELL AWARDEE ROBERT BERNSTEIN
Lois Schwaeber, The Safe Center LI and member of the Law Day Subcommittee, with
Liberty Bell Awardee Robert Bernstein, The Wheatley School Team Coach for the NYS Mock
Trial Tournament in Nassau County, and volunteer for The Safe Center LI. (Photo at right)
NCBA DOMUS OPEN GOLF OUTING
Monday, June 20, 2016
Eisenhower “The Red”
Registration 12pm • Shotgun Start 1pm
Golf and BBQ - $195pp
BBQ Only - $75pp
5:30 p.m. at the Carltun
Call Jody Ratner for Details
(516)747-4070 x226
See Insert to Register
More than 380 Attorneys,
Leading Law Firms Honored at
Second Annual Access to Justice
Recognition Reception
WHAT’S INSIDE
By Valerie Zurblis
MATRIMONIAL/FAMILY LAW
The Preliminary Conference Order in
Matrimonial Actions: Something’s
Got to Give
Page 3
The Closed Courtroom: Familial Privacy
vs. Public Interest
Page 5
Charging Liens: Stipulate and
So Order
Page 6
A Family Court “Rescue”
Page 7
The Clear and Unequivocal Elements
of Civil Contempt
Page 8
Upholding a Prenuptial Agreement:
Husband’s Conduct May Be Callous,
But Not Overreaching
Page 9
GENERAL
Diminished Chance of Survival or Cure
as Proximate Cause in Medical
Malpractice
Page 13
Creditor’s Rights Against Estates and
Estate Beneficiaries
Page 16
BOOK REVIEW
The Ex, by Alafair Burke
Page 26
UPCOMING PUBLICATIONS
COMMITTEE MEETINGS
Thursday, May 12, 2016 12:45 at Domus
Thursday, June 9, 2016 12:45 at Domus
Photos by Henry Guerra
The Nassau County Bar Association, The Safe Center LI and
Nassau Suffolk Law Services recognized 380 volunteer attorneys and 27 top law firms for their dedication to provide Access
to Justice to low income Nassau residents. All together, 6,900
hours of pro bono legal services and consultations were provided to 7,000 families, an economic impact of $1.7M. From
left are Steven Leventhal, NCBA Vice President and Access to
Justice Committee Co-Chair; Alan Rutkin, Partner at Top Large
Law Firm Rivkin Radler; Veronica Renta Irwin, Top Small Law
Firm/Solo; Heath Berger, Partner, Top Medium Law Firm Berger
Fischoff & Shumer LLP; NCBA President Martha Krisel; and
Gregory Lisi, NCBA Board Member and Co-Chair, Access to
Justice Committee. (Photo by Hector Herrera)
Each year, hundreds of attorneys volunteer pro bono legal services, consultations, guidance and
referrals to address crucial legal
needs of thousands of lower income
Nassau residents in crisis, providing security and relief for some of
the most basic necessities of life.
On April 6, more than 380 lawyers who volunteered at programs
offered by the Nassau County Bar
Association (NCBA), The Safe
Center LI (TSCLI) and Nassau
Suffolk Law Services (NSLS), as
well as 27 top law firms most dedicated to pro bono, were acknowl-
CONFIDENTIAL HELP IS AVAILABLE
TO LAWYERS AND JUDGES
alcohol or drug use, depression or
other mental health problems
Call Lawyer Assistance Program
1-888-408-6222
edged and honored at the Second
Annual Access to Justice Pro Bono
Recognition Reception.
“I am incredibly proud of the
volunteer attorneys who work with
NCBA and its sister not-for-profit
legal service partners to ensure
access to the civil justice system,”
remarked NCBA President Martha
Krisel.
The idea for the recognition
reception came from the Access to
Justice Committee, a joint effort of
the NCBA, TSCLI and NSLS and
other legal service providers, working together to coordinate assistance, strengthen the core of volunSee RECEPTION, Page 24
2
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May 2016
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Nassau Lawyer
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Matrimonial/Family Law
Nassau Lawyer
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May 2016
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The Preliminary Conference Order
in Matrimonial Actions: Something’s Got to Give
Often, divorce clients’ first experience
with the Court is at the Preliminary
Conference, which they are required to
attend. At the Conference, they curiously observe their respective attorneys filling out pages of a document
and, sometimes, arguing over the various provisions. Ultimately, asked to
sign the document, the clients query
counsel, “What is
this again?” As it
turns out, what
this is and what
this was designed
to be—this preliminary conference document
that emerges into
the Preliminary
Conference
Order—are not
the same. The
Jane K. Cristal
discrepancy
between the theoretical purpose of the Preliminary
Conference Order and the actual, practical consequences of the Order needs
to be investigated.
A Preliminary Conference Order
contains basic information about the
matrimonial case, including, in part,
representations relating to income,
work, assets and insurances in play;
statuses of motions; requests for the
appointment of appraisers or experts of
one kind or another; and, most importantly, the financial discovery schedule. The purpose of the Preliminary
Conference and Order is to make Court
appearances more meaningful and the
progression of the case itself more
streamlined. After all, the Preliminary
Conference Order is entitled to the
same weight and dignity as any other
Order of the Court. In fact, the Order
itself provides (with some variations in
language) that:
The parties and counsel are reminded that this document is a Court
Order requiring compliance and
that sanctions shall be imposed,
when warranted, in the event of
noncompliance. Counsel are directed to supply their respective clients
with a copy of this order.
In practice, however, the Preliminary
Conference Order is essentially treated
as a mere information-gathering form
that both sides may disregard, paying
no heed to the ordered discovery deadlines. Even more problematic is the circumstance where one side’s good-faith
efforts at compliance are frustrated
by the adversary’s strategic non-compliance with the Order, defiance of
which appears to yield no significant
consequences.
As a result, the Preliminary
Conference Order is not as effective as
it was designed to be. Agitated clients,
forced to take precious time off from
work or juggle child care arrangements and pay for hours of their attorneys’ time for numerous court appearances, demand an explanation why
dates, ordered by the Court, are simply
disregarded. The culture of leniency
regarding the enforcement of the discovery deadlines on the Preliminary
Conference Order results not only in
confused litigants but also in necessitated motion practice which further
taxes the already strained resources of
both the Court and the parties.
In Kihl v. Pfeffer, writing for a unanimous Court, former Chief Judge Judith
Kaye declared that that “[i]f the credibility of court orders and the integrity
of our judicial system are to be maintained, a litigant cannot ignore court
orders with impunity.”1 Although these
principles have since been repeated by
the Court of Appeals in several significant decisions that, read together, con-
stitute a campaign against a practice
that disregards deadlines,2 New York
litigants still disregard court-ordered
discovery deadlines and courts still
frequently forgive a party’s repeated and contumacious failure to comply with ordered compliance. Indeed,
despite the issue being called out and
addressed by former Chief Judge Kaye
in 1999, and repeatedly reiterated by
the Court of Appeals in the years
following, the problem nevertheless
persists.
In 2010, the Court of Appeals again
confronted the issue of litigants ignor-
ing discovery orders with impunity in
Gibbs v. St. Barnabas Hospital.3 In
Gibbs, the Court of Appeals ultimately reversed a supreme court decision
that refused to strike a pleading upon
violation of the terms of a conditional
order of preclusion. The result in Gibbs
is hardly unusual; yet, Gibbs is significant for the Court’s recognition of the
frustration that all members of the
bar, litigants and the public encounter
in response to “chronic” non-compliance with court-ordered discovery.
See MATRIMONIAL, Page 11
n
Nassau Lawyer
Nassau
Lawyer
This Time, It Is About the
Bricks and the Mortar
During a Board of Directors meeting at which the
agenda included a vote to move forward with securing
a construction loan to preserve our beautiful home,
Board Member Beth Pessala opened the meeting with
the traditional toast to Domus.
In doing so, Beth referred to
our long-standing NCBA mantra
that Domus is “more than just
bricks and mortar.” In this case,
however, Beth aptly noted that
the prospective vote was, in fact,
very much about the bricks and
mortar of Domus.
President John McEntee, in
keeping with the professional and
fair manner in which he presided over each and every meeting
during his presidency, structured
the agenda item to allow each
and every member of the board
an opportunity to comment, question or discuss the structure of
Martha Krisel
the loan, its terms and conditions
and its necessity, in advance of the vote. Passion danced
with practicality and the combination resulted in a board
vote to move forward with the obligation and undertaking. With the assistance of our construction management
team, we selected GreenBuild Construction Group Inc.
and Domus is well under construction.
This major project is replete with decisions and
dilemmas, and in gratitude to Board Member Kevin
McDonough taking the lead at the weekly construction
meetings, I have selected Kevin as this year’s recipient
of the President’s Award. The President’s Award is presented to an NCBA member who I have identified as an
individual upon whom I could rely with an easy heart,
and Kevin more than meets this criteria.
Construction is generally complex and unpredictable
and this project is no exception. Standard and acceptable
wood treatment in the 1980’s, during which the Domus
kitchen extension was erected, is now understood to
destroy the structural integrity of wood, and Domus has
been severely impacted by this flaw. In addressing the
infrastructure, additional expensive work had to be performed and it ultimately eliminated in the grandfathering of existing structural work; this resulted in change
orders. All work is in full compliance with the New York
State Building Code and all approvals from Garden City
and municipal officials have been obtained.
Mindful both at the time of the board vote, and, as
we continue with this construction project of the future
From the
President
The Official Publication
of the Nassau County Bar Association
Mindful both at the time of the board
vote, and, as we continue with this
construction project of the future
repairs necessary for Domus and not
covered by the original construction
loan, we have established the Steven J.
Eisman Memorial Building Fund.
repairs necessary for Domus and not covered by the original construction loan, we have established the Steven
J. Eisman Memorial Building Fund. The effort is well
underway with law firms, businesses and individuals
generously contributing to the fund. All contributions
will be made to the Nassau Bar Foundation, and as
such are tax deductible. All contributions will be fully
acknowledged in the Nassau Lawyer, on the website and
through specific recognition at Domus.
The committee has set up a structure for donors and
donations, which follows:
President
Martha Krisel, Esq.
Vice President
Steven G. Leventhal, Esq.
Treasurer
Elena Karabatos, Esq.
Secretary
Richard D. Collins, Esq.
Executive Director
Keith J. Soressi, Esq.
Editor-in-Chief
Christopher J. DelliCarpini, Esq.
Associate Editors
Rhoda Y. Andors, Esq.
Anthony J. Fasano, Jr., Esq.
Proofreader
Allison C. Shields, Esq.
Editor/Production Manager
Sheryl Palley-Engel
Assistant Editor
Valerie Zurblis
Photographer
Hector Herrera
May Editorial Staff
AMOUNT
TERMS
Benefactor
$25,000 or more
Up to five years
Titanium
$15,000 or more
Up to three years
Platinum Plus
$12,500 or more
Up to three years
Platinum
$10,000 or more
Up to three years
Gold
$ 7,500 or more
Up to three years
Silver
$ 5,000 or more
Up to two years
Bronze
$ 2,500 or more
Up to two years
Upcoming Focus Issues
June 2016
Patron
$ 1000 or more
Up to two years
July/August 2016
Nancy E. Gianakos, Esq.
Focus Editor
Rhoda Y. Andors, Esq.
Ellin Regis Cowie, Esq.
Christopher J. DelliCarpini, Esq.
Stephen Donaldson, Esq.
Anthony J. Fasano, Jr., Esq.
Kenneth J. Landau, Esq.
Thomas McKevitt, Esq.
Jeff H. Morgenstern, Esq.
David Torreblanca, Esq
Health Care
Education/Constitutional Law
We welcome your donations and assure you that every
penny will be put to good use exclusively for the future
of our Domus. I hope to see you at our Annual Dinner
Dance on May 14, at which we will honor NCBA Past
President John R. Dunne, a leader in our field and a
wonderful friend to the NCBA and to Long Island.
As always, questions, comments, complaints are welcome and encouraged at mkrisel@optonline.net.
Monday,
June
20,
2016
NCBA
Domus
Open
Monday,
June
20,
2016June 20, 2016
Monday,
June
20,
2016
Monday,
Monday,
June
20,
2016
Eisenhower
“The
Red”
Eisenhower “The Red”
“The
Red”
Eisenhower
“The
Red” “The Red”
Eisenhower
“The
Red”
Monday,Eisenhower
June
20, 2016
Eisenhower
“The
Red”
Eisenhower
GolfGolf
- $195
pp pp
- $195
Eisenhower
GolfGolf
- $195
pp“The
Golf
$195
pp Red”
-- -$195
$195
pp
Golf
pp
September 2016
Real Estate/Municipal Law
Committee Members
Christopher J. DelliCarpini, Esq., Chair
Rhoda Y. Andors, Esq., Co-Vice Chair
Anthony J. Fasano, Jr., Esq., Co-Vice Chair
Deborah S. Barcham, Esq.
Gale D. Berg, Esq.
Sean E. Campbell, Esq.
Deanne Marie Caputo, Esq.
Ellin Regis Cowie, Esq.
Marc G. DeSantis, Esq.
Stephen Donaldson, Esq.
David J. Friedman, Esq.
Nancy E. Gianakos, Esq.
Michael R. Gionesi, Esq.
Robert S. Grossman, Esq.
Sharon Kovacs Gruer, Esq.
Adrienne Flipse Hausch, Esq.
Charles E. Holster III, Esq.
Arielle S. Howe, Esq.
Anthony F. Iovino, Esq.
George M. Kaplan, Esq.
Kenneth J. Landau, Esq.
Michael J. Langer, Esq.
Douglas M. Lieberman, Esq.
Dennis M. Lyons, Esq.
Cheryl Y. Mallis, Esq.
Angelica Marie McKessy, Esq.
Thomas McKevitt, Esq.
Daniel McLane, Esq.
Jeff H. Morgenstern, Esq.
Marian C. Rice, Esq.
Daniel W. Russo, Esq.
Rayne M. Sassower, Esq.
Michael A.H. Schoenberg, Esq.
Meryl D. Serotta, Esq.
Thomas G. Sherwood, Esq
Allison C. Shields, Esq.
Christina H. Singh, Esq.
Andrij V.R. Szul, Esq.
David Torreblanca, Esq.
Eric Anthony Zeni, Esq.
GOLF
GOLF
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INCLUDES:
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driving driving
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our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its
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Golf - $195 pp
15th & West Streets, Mineola, N.Y. 11501
Phone (516) 747-4070 • Fax (516) 747-4147
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May 2016
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Nassau Lawyer
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May 2016
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The Closed Courtroom:
Familial Privacy vs. Public Interest
The policy of the State of New York
is that courtrooms be open to the public. Transparency in the application
of the law is promoted to foster confidence in the judicial process and thereby dispel public perception of “special”
treatment for the celebrity, high profile
and financially advantaged. However,
“equal justice for all,” in custody proceedings, is not without consequences.
The media seizes upon this policy argument bolstered by the First
Amendment to maintain unfettered
access to trials,
criminal
and
civil, as well as
court filings and
transcripts. News
travels at the
speed of the internet where unsavory
websites
abound, feeding
the
insatiable
global
hunger
Nancy E. Gianakos for gossip. The
free press with a
willing ally who
leaks information “selectively” to gain
advantage in litigation encounters
no obstacle, the courts hamstrung by
“prior” restraint considerations. Once
“news” is dispensed via the worldwide
web, there is virtually no effective
retraction. Even were the parents to
enter into a contract of confidentiality
and nondisclosure, there is no guarantee that proceedings involving them
and their children would be closed
to nonparties under the current law.
Privacy in personal affairs is not presumed under the existing law.
Nowhere are unintended consequences of New York’s open door policy more
apparent than in custody proceedings.
It is counterintuitive that the intimate
details of a child’s familial relationship
would not be protected from public
scrutiny, yet in many cases that is the
upshot of the current statutory scheme
under New York law. The burden is
put upon a parent or attorney for the
child to convince a court to close the
courtroom door.
Authority of a court to close proceedings to nonparties, including the
media, is set forth in the Domestic
Relations Law, DRL § 235(2) and the
Uniform Rules for the Family Court,
Rule 205.4(b).
DRL § 235(2): If the evidence on
the trial of such an action or proceeding be such that public interest requires that the examination
of the witnesses should not be
public, the court or referee may
exclude all persons from the room
except the parties to the action
and their counsel, and in such case
may order the evidence, when filed
with the clerk, sealed up, to be
exhibited only to the parties to the
action or proceeding or someone
interested, on order of the court.
Rule 205.4(b): The general public
or any person may be excluded
from a courtroom only if the judge
presiding in the courtroom determines, on a case-by-case basis
based upon supporting evidence,
that such exclusion is warranted
in that case. In exercising this
See CLOSED, Page 10
n
May 2016
n
Nassau Lawyer
The Bar Association of Nassau County and the
Nassau Academy of Law
Cordially Invite Members and Their Guests to Attend the
2016 Installation of NCBA and NAL
Officers and Directors
Tuesday, June 7, 2016 at 6 p.m.
at the Home of the Association.
At that time it will be our pleasure to welcome Hon. Thomas A. Adams,
Administrative Judge, Nassau County and Hon. Peter B. Skelos,
Partner, Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP
who will administer the oaths of office.
Please join us for a Reception following the Installation.
The proposed slate of officers include:
OFFICERS
Martha Krisel - President
Steven G. Leventhal - President-Elect
Elena Karabatos - Vice President
Richard D. Collins - Treasurer
Dorian R. Glover - Secretary
DIRECTORS
Andrea M. Brodie
Lisa A. Cairo
Christopher J. DelliCarpini
Maureen Dougherty
Mark E. Goidell
Martha V. Haesloop
Kevin P. Mulry
Daniel W. Russo
Thomas B. Wassel
NASSAU ACADEMY OF LAW
Mili Makhijani - Dean
Thomas J. Foley - Associate Dean
Daniel W. Russo - Assistant Dean
There is no charge for this event;
Jaime D. Ezratty - Assistant Dean
however, reservations are required.
RSVP by
Anthony Michael Sabino- Assistant Dean
June
1, 2016
Mary P. Giordano - Secretary
(516)747-4070 x226 or
Terrence L. Tarver - Treasurer
events@nassaubar.org
Christine T. Quigley - Counsel
SA
U COU
NT
S
VOLUNTEER ATTORNEYS NEEDED
R
IO
BA
Founded
1899
AS
N
Y
NA
6
SOCIA
T
OPEN HOUSE
3:00 - 7:00 p.m.
The Nassau County Bar Association, Nassau/Suffolk Law Services and The Safe Center
invite all attorneys to volunteer for an OPEN HOUSE.
Any Nassau resident can come to the Bar Association’s headquarters located at the
corner of 15th & West Streets in Mineola with questions and meet with an attorney.
Attorneys knowledgeable in any of the areas of law enumerated below
are needed to meet with these residents to provide information.
Attorneys DO NOT provide legal representation.
Attorneys are needed between the hours of 3 -5 and 5-7p.m.
to answer questions in the following specialties:
Ÿ Bankruptcy
Ÿ Divorce & Family Issues
Ÿ Employment
Ÿ Mortgage Foreclosure & Housing
Ÿ Senior Citizen Issues
Ÿ Superstorm Sandy
Supported by First National Bank of Long Island
Volunteers please contact
Gale D. Berg at (516)747-4070 or
gberg@nassaubar.org
Charging Liens:
Stipulate and So Order
The Second Department recently
handed down a decision in the case
of Charnow v. Charnow involving the
law surrounding charging liens.1 While
a summary of this decision could give
an attorney the impression that there
is a new legal
principle on the
enforcement of
charging liens,
the decision itself
actually just reiterates an existing
legal principle on
the enforcement
of charging liens.
What
remains
after this decision
is a need to clariJohn P.
fy that very legal
Whiteman III
principle on the
enforcement of charging liens depending upon the form which the charging
liens take.
Historically, a charging lien was a
special lien, originally a common law
right, against monies recovered for a
client by the attorney’s efforts in litigation.2 A charging lien was regarded as
an equitable assignment to the attorney of the funds produced by his or her
efforts that constituted a “first lien”
enjoying “paramount priority” over
other claims.3 The underlying purpose
of the law governing charging liens was
to protect the attorney against the
knavery of a client, including but not
limited to fraud and collusion.4
The Legislature has codified and
extended the common law charging
lien.5 Judiciary Law §475 provides
that, from the commencement of an
action or a special proceeding in any
Court, or the service of an answer
containing a counterclaim, the attorney who appears for a party has a lien
upon the client’s cause of action, claim
or counterclaim.6 In other words, a
charging lien automatically comes
into existence upon such commencement or service, without the need for
further filing or notice.7 An attorney’s
participation in a matter at any point
as counsel of record is a sufficient
predicate for invoking the statute’s
protection.8
Judiciary Law §475 goes on to provide that the lien attaches to any judgment, final order or determination in a
client’s favor and the proceeds thereof
in whatever hands they may come and
that the lien cannot be affected by any
settlement between the parties before
or after that judgment, final order or
determination.9 The justification for
the charging lien is that the attorney
created the proceeds out of which he
or she is being paid, and those proceeds are ultimately under the control
of the Court, which will see that no
injustice is done to its own officers.10
The charging lien attaches to distributive awards as well as to counsel
fee awards to the client or the client’s
subsequent counsel, but it does not
attach to an award of child support
or to an award of alimony or maintenance.11 If the outgoing attorney has
a charging lien upon the proceeds of
a client’s case, that outgoing attorney
may trace those proceeds into the
hands of a third person and can even
hold incoming counsel responsible for
distributing payment to the client and
frustrating the outgoing attorney’s collection of fees.12
Above all else, Judiciary Law §475
is remedial in character and should be
construed liberally in aid of the object
sought by the Legislature, which was
to furnish security to attorneys by giving them a lien upon the subject of the
action.13 But Judiciary Law §475 is not
the only source from which a charging
lien may take shape. A charging lien
may also arise by stipulation between
the attorney and a client, with a stipulated charging lien being distinct from
a statutory charging lien such that
they have dramatically different consequences.
The first distinction involves the
determination of the charging lien. On
one hand, a statutory charging lien is
fixed by the court on a quantum meruit
basis using the reasonable value of
the attorney’s services in the action.14
Among the factors for a court to consider in determining the amount of such
a charging lien are the difficulty of the
matter, the nature and extent of the
services rendered, the time reasonably
expended on those services, the quality of the performance by counsel, the
It is hoped that any
matrimonial attorney
reading this article will
come away with a clearer
and fuller understanding
of the law surrounding all
charging liens
qualifications of counsel, the amount at
issue and the results obtained (to the
extent known).15
A stipulated charging lien, on the
other hand, is fixed by the attorney and
a client at an amount that is mutually
agreed upon between them.16 Where
the amount of a charging lien has
been fixed by agreement, execution is
appropriate on the judgment for the
agreed upon amount.17 The rationale is
that, if a stipulated charging lien is to
have meaning and effect, it could only
have been executed for the purpose of
fixing the amount of the lien, and a
client’s challenge to the reasonableness
of the attorney’s fee would be a belated,
unconvincing attempt to circumvent
the clear language and manifest purpose of their stipulation.18
The second distinction, and the impetus for this article, involves the enforcement of the charging lien. Generally, a
charging lien will be available to the
extent that an equitable distribution
award reflects the creation of a new
fund by the attorney greater than the
value of the interests already held by a
client.19 Where the attorney’s services
do not create any proceeds, but consist
solely of defending a title or interest
See LIENS, Page 7
Nassau Lawyer
n
May 2016
n
7
A Family Court “Rescue”
I was elected to the Nassau County
Court in 2003, after serving as an
Assistant District Attorney and then
as a principal court attorney for ten
years prior. I eagerly began my judicial
career in January 2004 with an assignment in the Nassau County Family
Court.
That
court,
like most family courts, was
and still is a
hectic and overburdened place
where
people
come looking for
solutions to real
and often complex problems. Of
all of the courts
that I ultimately
Hon. David
found myself in,
J. Ayres
it was the rawest, realest of
them all. My calendars were regularly
bursting at the seams and it was often
a chore just to get through the day
without regard to what tomorrow held.
The nearly impossible challenge was to
spend the needed time on a particular
case or problem, given the sheer volume of matters that would come across
my bench on a day-to-day basis.
I left the bench in 2014 and have
been in private practice ever since. It is
in that context that I recount the story
of my encounter with what appeared
to be a troubled 13 year-old-girl, Naila
Amin.
There I was, watching my younger
kids jump around in a hotel pool in
Boston on a recent trip to visit my oldest at school, when I received the email
from my secretary:
Good afternoon:
A lady named Naila Amin called
to speak with you. She said that
she was the person you “rescued
from Pakistan years ago.” She
said she is now a political activist and works in Washington DC,
and wanted to thank you and to
speak to you.
I read it, tried to process it, thought
about all of those odd emails I have
received over the years about long lost
relatives wanting to leave me millions,
but found myself distracted by the pool
hijinks going on in front of me and forgot about it.
Upon my return to the office, I
re-read the email and became curious.
With the help of Google, I quickly
learned about Naila Amin and realized that she was real, her plight was
real, her call was real and I would
soon learn that her gratitude was real.
Using the timeline that was recounted in the various news stories that I
found, it became clear to me that I had
encountered this young lady very early
on in my judicial career, sometime in
2004.
I called the number that she left,
introduced myself to the young lady
that answered and was immediately
met with, “Judge Ayres, it’s you; I
found you! Thank you, thank you, and
thank you for saving my life!” I could
hear the emotion and sincerity in her
voice as I immediately tried to slow
her down and assure her that she was
giving me far too much credit than I
deserved for the brief interaction that
we had shared more than 10 years
earlier. She was having none of it. She
carefully explained to me how the fact
that I had signed a temporary order
of supervision removing her from her
parents and placing her in a group
home in the custody of the Nassau
County Department of Social Services
had saved her life. I asked her why she
thought this was so, and she then told
me about the harrowing journey she
was enduring at that time and about
her life since our encounter.
When she was 8 years old and on
a family visit to her native Pakistan,
her parents allowed her to become
engaged to her 21-year-old first cousin.
When she was 11, she was married
to that same cousin on another trip
to Pakistan and was left to live her
life married to a man that she did not
know, did not love and was far too
young to be married to even if she did.
She returned to the United States with
her parents in 2004 for a brief visit,
during which time she ran away from
them in order to avoid being brought
back to the forced marriage and constant rape at the hands of her cousin
and with the blessing of her parents
who were simply following a century’s
old cultural norm. It was during this
period that the case was brought to
the Family Court by DSS and they
presented Naila to me as a young and
uncontrollable runaway. They asked
me to sign a temporary order of supervision because they believed her to be
just another troubled 13-year-old, and
not someone who was trying to save
herself. Ignorant to the real reasons
behind her runaway behavior, I signed
the order and placed Naila in a group
home. It was the right action for the
wrong reason. It was the one and only
time that she appeared in front of me.
For me, it was a forgotten moment in
time in an otherwise forgettable day.
To hear her tell it, she remembers
every second of it. She remembered
the Beanie Baby bear that was given
to her by court staff that she still
has today. And she remembers her
encounter with a young judge who
was just passing through family court,
and who treated her with respect and
was, according to her, the first person
who was ever nice to her in America.
Imagine that. I just ripped you away
from your parents and put you in a
place that you thought was a mental
institution and you were thanking me
for being so nice. Predictably, she ran
away from that home and others, leading to the issuance of warrants for both
her and her parents. It was the order of
supervision and the warrants that followed that ultimately saved her. They
popped up when her parents tried to
visit the country again after taking her
back to Pakistan and led to them being
detained at JFK airport and charged
with kidnapping her. It was the beginning of the end of her forced marriage.
Fast forward to March 17, 2016.
There I was, an invited guest standing on the steps to the entrance of the
United Nations in New York City and
being greeted by a now 27-year-old
woman as she jumped from a cab on
First Avenue. We entered the United
LIENS ...
be heard to complain that the attorney’s
efforts did not create a new fund greater
than the value of the interests already
held by the client.22 In other words, a
stipulated charging lien would attach
where the parties already own their
marital residence jointly as tenants by
the entirety and the attorney’s representation of either party results in the client
retaining his or her existing one-half
interest in that property, with the sale
of the property having converted it from
realty into dollars.
It is hoped that any matrimonial
attorney reading this article will come
away with a clearer and fuller understanding of the law surrounding all
charging liens, particularly the principles which distinguish the stipulated charging lien. One, a stipulated
charging lien provides an attorney with
a “first lien” of “paramount priority”
upon the subject of the matter for the
amount agreed to by the client without a quantum meruit analysis. Two,
a stipulated charging lien permits an
attorney to enforce against a client’s
marital residence, even if the attorney’s services only resulted in the sale
of the property and the client retaining
one-half of the proceeds. Three, an
attorney with a stipulated charging
lien should still submit it to the court
to be “so ordered” such that it has the
force and effect of any other order of
the court and preserves the possibility
of contempt as a punishment for its
violation.23 It is now incumbent upon
the matrimonial attorney reading this
article to incorporate those principles
into his or her practice by arranging for
clients to stipulate to charging liens,
thereby providing enhanced security
for the collection of his or her fees.
Continued From Page 6
already held by a client, there would
be no charging lien on that title or
interest.20
The Second Department just reaffirmed those legal principles in the case
of Charnow v. Charnow, which held
that there is no equitable distribution
fund to which a charging lien can attach
where the parties already owned their
marital residence jointly as tenants
by the entirety and the attorney’s representation of the wife resulted in the
client retaining her existing one-half
interest in that property, even though
the sale of the property converted it
from realty into dollars.21
However, Charnow v. Charnow and
the supporting cases cited therein
involved statutory charging liens under
Judiciary Law §475. The law is equally
clear that, where the attorney’s charging
lien comes about by a stipulation, not
by Judiciary Law §475, a client will not
John P. Whiteman III is an associate at
Joseph Law Group, P.C. and practices
Matrimonial and Family Law exclusively. He can be reached at 516-542-2000
or jwhiteman@josephlawpc.com.
1. Charnow v. Charnow, 134 A.D.3d 875 (2d Dept.
2015).
2. Levitas v. Levitas, 96 Misc.2d 929 (Sup. Ct.,
N.Y. Co. 1978).
3. Goldenstein v. Goldenstein, 28 A.D.2d 962 (1st
Dept. 1967); Spinello v. Spinello, 70 Misc.2d 521
Nations together where I sat in awe
for the next several hours listening to
Naila, as well as other brave young
women, speak to a room of thousands
at the 60th Session of the Commission
on the Status of Women. The program,
entitled “Women and Girls: From
Adversity to Hope” featured Naila
Amin, college student, child bride survivor and activist telling her story to
the world.
This is not a story about me or Naila
Amin or this one case. She has a wonderful story to tell and I encourage
you all to hear it. But it is her story
to tell. The takeaway of this story,
to me, is this: There are hundreds of
courts throughout this country where
the sheer volume of cases can overwhelm even the most conscientious
and well-meaning judges, court staff
and attorneys. This story should serve
as a reminder to those hard working
and mostly well-meaning public servants of the importance of what they
do every day on every case, even the
most insignificant cases and moments
that scatter the landscape of every
court calendar. This seemingly meaningless blip on the chronology of a judicial career, this one tiny case buried
amidst the tens of thousands of other
cases and issues and disputes that
came across my bench, was anything
but meaningless to that young girl.
For her, it was a defining moment
in her life. For me, even though I did
not know it at the time, it was one of
the defining moments for my career in
public service. And for those who toil
in those courts throughout all of those
hectic days when the crush of cases
seem like too much to bear, I hope this
story will serve as a poignant reminder
that it’s not what you think you did
that defines your work, it is what the
people who come before you think you
did that matters most.
Hon. David J. Ayres (Ret. JCC) was a Nassau
County Court Judge from 2004-2014. During
his term he also served by designation as
an Acting Family Court Judge and Acting
Supreme Court Justice. He is now Managing
Partner at Barket Marion Epstein & Kearon,
LLP in Garden City.
(Sup. Ct., Nassau Co. 1972).
4. Freihofner v. Freihofner, 8 Misc.3d 1020(A)
(Sup. Ct., Westchester Co. 2005).
5. Rodriguez v. City of New York, 66 N.Y.2d 825
(1985).
6. Judiciary Law §475.
7. Resnick v. Resnick, 24 A.D.3d 238 (1st Dept.
2005).
8. Rodriguez, supra.
9. Judiciary Law §475.
10. Matter of Desmond v. Socha, 38 A.D.2d 22
(3rd Dept. 1971); Tunick v. Shaw, 45 A.D.3d 145
(1st Dept. 2007).
11. Cohen v. Cohen, 160 A.D.2d 571 (1st Dept.
1990); Haser v. Haser, 271 A.D.2d 253 (1st Dept.
2000); Rosen v. Rosen, 97 A.D.2d 837 (2d Dept.
1983).
12. Drezin v. Delisser, 17 Misc.3d 706 (Sup. Ct.,
Bronx Co. 2007).
13. Tunick, supra n.10.
14.
Resnick, supra n.7; Antonmarchi v.
Consolidated Edison Co. of New York, 678
F.Supp.2d 235 (S.D.N.Y. 2010).
15. Antonmarchiu, supra n.14
16. Resnick, supra n.7.
17. Antonmarchiu, supra n.14
18. Resnick, supra n.7.
19. Moody v. Sorokina, 50 A.D.3d 1522 (4th Dept.
2008).
20. Theroux v. Theroux, 145 A.D.2d 625 (4th
Dept. 1988).
21. Charnow, supra n.1.
22. Memmo v. Perez, 63 A.D.3d 472 (1st Dept.
2009).
23. Freihofner, supra n.4.
8
n
May 2016
n
Nassau Lawyer
The Clear and Unequivocal Elements
of Civil Contempt
In El-Dehdan v. El-Dehdan1 the Court
of Appeals, in affirming the Appellate
Division, Second Department,2 explicitly clarified the elements of civil and
criminal contempt. In doing so, the
Court of Appeals resolved some inconsistencies in case law, and held that
“wilfulness” is not an element of civil
contempt.
Pursuant
to
Judiciary Law §
753(A), “[a] court
of record has
power to punish, by fine and
imprisonment, or
either, a neglect
of violation of
duty, or other
misconduct, by
which a right or
remedy of a party
Marie F.
to a civil action
McCormack
or special proceeding, pending
in the court may be defected impaired,
impeded or prejudiced.”3 “A motion to
punish a party for civil contempt is
addressed to the sound discretion of
the court.”4 El-Dehdan reiterates that
in order to prevail on a motion for
civil contempt, the moving party must
establish by clear and convincing evidence the following elements:
“[f]irst it must be determined
that a lawful order of the court,
clearly expressing an unequivocal mandate was in effect.
Second [it] must appear, with
reasonable certainty, that the
order has been disobeyed. Third,
the party to be held in contempt
must have had knowledge of the
court’s order, although it is not
necessary that the order actually
have been served upon the party.
Fourth, prejudice to the right of
a party to the litigation must be
demonstrated.5
The underlying Appellate decision in
El-Dehdan reminds us that “Once the
movant establishes a knowing failure
contempt where a person is guilty of
‘[w]ilful disobedience to [the court’s]
lawful mandate’ or ‘[r]esistence wilfully offered to [the court’s] lawful mandate.’”9 In contrast to civil contempt,
the movant does not have to establish
that his or her rights have been prejudiced.10 The burden of proof in criminal contempt is beyond a reasonable
doubt.11
The uncertainty as to the element of
wilfulness may have arisen as a result
of certain language in prior case law.
For example, in Matter of McCormick
v. Axelrod, the Court of Appeals stated that “the element which serves to
elevate a contempt from civil to criminal is the level of willfulness with
which the conduct is carried out”12
In El-Dehdan, the Court of Appeals
clarified the meaning of this language,
stating that “the contemnor must have
a consciousness that reflects an awareness of the act that is other than
unwitting conduct.”13 Part of the confusion regarding the element of willfulness also may be attributed to the
language in Family Court Act § 454
which permits the Court to impose a
jail term “where the court finds that
the party ‘has willfully failed to obey
any lawful order of support.’”14 Matters
which fall under the purview of Family
Court Act § 454 thus require proof of
wilfulness. In any event, the Court of
Appeals now has eliminated the uncertainty and has made it clear that “[w]
ilfulness is Not a Required Element of
Civil Contempt.”15
As to the particular elements of civil
contempt, the movant must first establish that the order in effect was clear
and unequivocal. In Rienzi v. Rienzi,
the movant did not meet this burden as
the judgment of divorce “relating to the
defendant’s obligation to pay her the
sum of $60,000, pertaining to a prior
tax refund did not provide any time for
payment and therefore, did not constitute a clear and unequivocal mandate”16 Similarly, in Wolfe v. Wolfe, the
judgment “did not set forth any time
An order can be deemed clear and unequivocal even
if the amount the party failed to pay is not a sum
certain, as a party can be adjudged in contempt
for failure to pay child support, even if credits for
payments made must be calculated.
to comply with a clear and unequivocal mandate, the burden shifts to
the alleged contemnor to refute the
movant’s showing, or to offer evidence
of a defense, such as inability to comply with the order.”6
Contempt In Matrimonial Actions
Additionally, in matrimonial actions,
DRL § 245 requires that for the movant
to prevail on a civil contempt motion
for “default in paying any sum of
money as required by the judgment
or order,”7 the movant must establish that “resort to other, less drastic
enforcement mechanisms had been
exhausted or would be ineffectual.”8
As to criminal contempt, “a court
may impose punishment for criminal
frame for the reimbursement of transportation costs” and thus the delay in
reimbursement “did not constitute the
violation of a clear and unequivocal
mandate.”17
An order can be deemed clear and
unequivocal even if the amount the
party failed to pay is not a sum certain,
as a party can be adjudged in contempt
for failure to pay child support, even
if credits for payments made must be
calculated. For instance, in Farkas
v. Farkas,18 the Trial Court held that
the husband was in civil contempt for
failure to pay maintenance and child
support arrears, less a credit for sums
paid pursuant to a pendente lite order.
The Appellate Court in Farkas implicitly found that such an order was clear
and unequivocal (the Trial Court was
reversed on other grounds: there was
no specific finding by the Trial Court
with regard to defeating, impairing,
impeding or prejudicing the rights or
remedies of a party).19
In Ashmore v. Ashmore,20 the
Appellate Court reached a similar result and stated, “[t]he plaintiff
demonstrated that the defendant violated a clear and unequivocal court
order as required by the judgment [The
Appellate Court determined that there
was an error in calculating the amount
of arrears, modified the amount of the
money judgment, but upheld the contempt finding].21
Prejudice
With regard to the element of prejudice, it must be established by the
movant. Failure to pay an amount
owed for child support and maintenance can constitute prejudice. In
Ashmore, the Court stated, “the defendant had violated a clear and unequivocal court order by failing to pay child
support and maintenance as required
by the judgment of divorce, thereby
prejudicing the plaintiff’s rights.”22
Other violations can also constitute
prejudice. In Hinkson v. DaughtryHinkson, the Court stated, “the evidence indicated that due to the plaintiff’s contemptuous conduct [in failing
to transfer his interest in the former
marital residence to the defendant], the
defendant’s loan commitment expired
and she was forced to negotiate a new
loan at a higher interest rate, thereby
sustaining actual loss.”23 The moving party must specifically allege and
prove that the contemptuous conduct
resulted in prejudice to the movant,
and the Court must expressly make
such a finding in order for a party to be
held in civil contempt.24
Enforcement and Compliance
As to alternative enforcement measures, it is not necessary that a movant
establish that he or she attempted to
implement all alternative enforcement
measures prior to filing a motion for
contempt. The movant is not required
to exhaust all enforcement remedies
before seeking to hold a party in contempt; “[t]he ineffectual nature of
alternatives to contempt need not be
determined with a high degree of certainty, Domestic Relations Law § 245
requires only that ‘it appears presumptively’ that payment cannot be otherwise enforced.”25
Once the elements of contempt have
been established, “the burden shifts to
the alleged contemnor” to establish “an
inability to comply with the order.”26
“[V]ague and conclusory allegations...
of inability to pay or perform” will
not suffice to meet this burden.27 The
“courts have required a more specific
showing of the contemnor’s economic status.”28 Moreover, the contemnor
will not be able to demonstrate an
inability to pay where it was created
by the contemnor’s own conduct, such
as self-imposed loss of employment.29
Therefore, in demonstrating an inability to pay, it is important to present
specific and detailed evidence of the
contemnor’ current economic circum-
stances. Evidence should be presented
that any loss of employment or reduction in income was not self-imposed.
Furthermore, if loss of employment
created the inability to comply with the
order, evidence of a diligent job search
should be presented.30
Willfulness Not Required
In El-Dehdan, the Court of Appeals
provided much needed clarity with
regard to the elements of civil contempt, and has put to rest the confusion that arose with regard to the concept of “wilfulness.” As the Appellate
Division, Second Department pointed
out “[c]ourts do not even agree on
how many ‘l’s’ are in the word.”31 The
Court of Appeals has set forth, clearly
and unequivocally, the elements of
civil contempt and has made it clear
that “wilfulness,” no matter how it is
spelled, is no longer an element of civil
contempt.
Marie F. McCormack is a Court Attorney
Referee in the Supreme Court, Matrimonial
Center, and previously served as a Court
Attorney in Family Court. Prior to joining the
Court System, she was engaged in private
practice.
1. El-Dehdan v. El-Dehdan, 26 N.Y.3d 19 (2015).
2. El-Dehdan v. El-Dehdan, 114 A.D.3d 4 (2d
Dept. 2013).
3. Judiciary Law § 753(A); El-Dehdan, 26 N.Y.3d
at 28-29 (citations omitted).
4. El-Dehdan, 114 A.D.3d at 10.
5. El-Dehdan, 26 N.Y.3d at 29 (internal quotation marks and citations omitted).
6. El-Dehdan, 114 A.D.3d at 17 (citations omitted).
7. Dom. Rel. Law §245.
8. El-Dehdan, 114 A.D.3d at 23 (quoting
Capurso v. Capurso, 61 A.D.3d 913, 914 (2d
Dept. 2009)).
9. Id. at 11 (quoting Judiciary Law §750(A)(3),
(4)).
10. Id. at 11 (citations omitted).
11. Matter of Rolon v. Torres, 121 A.D.3d 684,
685 (2d Dept. 2014)(citation omitted).
12. Matter of McCormick v. Axelrod, 59 N.Y.2d
574, 583 (1983)(citations omitted); McCain v.
Dinkins, 84 N.Y.2d 216, 226 (1994).
13. El-Dehdan,, 26 N.Y.3d at 35 (internal quotation marks and citations omitted).
14. El-Dehdan, 114 A.D.3d at 24 n.3 (quoting
Fam. Ct. Act § 454(3) (citation omitted)).
15. El-Dehdan, 26 N.Y.3d at 33. (emphasis in
original).
16. Rienzi v. Rienzi, 23 A.D.3d 447, 449 (2d
Dept. 2005).
17. Wolfe v. Wolfe, 71 A.D.3d 878 (2d Dept.
2010).
18. 209 A.D.2d 316, 319 (1st Dept. 1994).
19. Id. at 319.
20. Ashmore v. Ashmore, 114 A.D.3d 712, 713
(2d Dept. 2014).
21. Id. at 714.
22. Id. at 713-714 (citations omitted).
23. Hinkson v. Daughtry-Hinkson, 31 A.D.3d
608, 609 (2d Dept. 2006).
24. Judiciary Law § 753[A]; El-Dehdan, 26
N.Y.3d at 28-29; Farkas, 209 A.D.2d at 319.
25. Farkas, 209 A.D.2d at 318 (quoting Dom.
Rel. Law § 245).
26. El-Dehdan, 114 A.D.3d at17; El-Dehdan, 26
N.Y.3d at 35.
27. El-Dehdan, 26 N.Y.3d at 36 (quoting Matter
of Storm, 28 A.D.2d 290, 294 (1st Dept. 1967).
28. Id. (citing Yeager v. Yeager, 38 A.D.3d 534,
534-535 (2d Dept. 2007)).
29. Cf. Matter of Kainth v. Kainth, 36 A.D.3d
915, 916 (2d Dept. 2007); El-Dehdan, 26 N.Y.3d
at 36.
30. Kainth, 36 A.D.3d at 916; El-Dehdan, 26
N.Y.3d at 36.
31. El-Dehdan, 114 A.D.3d at 24 n.1 (quoting Lawrence N. Gray, Criminal and Civil
Contempt, 2d Ed. § 1.21 at 96 (2012)).
Nassau Lawyer
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9
Upholding a Prenuptial Agreement: Husband’s
Conduct May Be Callous, But Not Overreaching
In Gottlieb v. Gottlieb1 a panel from
the First Department upheld the provisions of a prenuptial agreement
described by the majority as “callous”
but nevertheless enforceable as the
wife failed to show that the agreement
was the result of overreaching and
that the terms were manifestly unfair.
Clearly grappling
with the underlying issues and
standards
to
be applied, the
Court split 3-1-1.
Justice Richter
wrote for the
majority. Justice
Saxe wrote a concurring opinion
that presents a
Michael DiFalco novel conceptual approach to
determining challenges to prenuptial agreements. And
Justice Feinman dissented because
the Supreme Court’s decision resulted
from summary judgment motions and,
in the dissent’s view, issues of fact
existed as to whether overreaching
occurred.
A Pre-Nuptial Agreement
Post-Children
At issue was a prenuptial agreement
that resulted from on-and-off negotiations that spanned over a year-and-ahalf, during which the parties had their
first child and conceived their second.
The husband, a hedge fund manager
worth over $100 million at the time
the prenuptial agreement was executed—which he had nearly doubled in
the years since—reduced his offer 12
times during the negotiations. The wife
accepted these reductions and ultimately signed the agreement against the
explicit advice of counsel.
Essentially, the agreement provided
for the parties to retain any assets not
owned jointly as separate property, the
husband was required to pay the wife
$300,000 for each year of the marriage,
with interest, which resulted in the wife
receiving approximately $1.5 million as
a distributive award. The husband was
required to procure an apartment meeting certain explicit conditions on the
Upper East Side of Manhattan in which
the wife could live with all expenses paid
with the children until they reached
majority. Also, the husband would have
been required to pay $12,500 of monthly
maintenance if either of the children
had been under the age of 4, but otherwise the wife waived maintenance.
The agreement also ensured that the
husband left a specified percentage of his
estate to the children, in trust.
The wife moved for summary judgment seeking, inter alia, to set aside the
entire prenuptial agreement, arguing
that it was the “product of overreaching by the husband that resulted in
manifestly unfair terms.” Notably, the
wife explicitly disclaimed that she was
not seeking to “invalidate the agreement based on unconscionability, coercion, duress or fraud.” Judge Gesmer
dismissed the wife’s counterclaim to
set aside the entire prenuptial agreement. However, on the wife’s challenge to the maintenance provisions, the
the general rule that most prenuptial
agreements will be upheld.
An Unconscionability Standard?
Supreme Court denied dismissal and
reserved that issue for trial. Both parties appealed these summary judgment
determinations.
With respect to the equitable distribution provisions, the wife relied exclusively on the Christian2 standard, in
which the Court of Appeals held that “an
agreement between prospective spouses
can be set aside where it is shown to be
the product of fraud, duress, overreaching resulting in manifest unfairness, or
other inequitable conduct.” Christian
presents a two-pronged test, which is
specifically concerned with matrimonial
agreements. First, the party challenging
the agreement must show that there
was overreaching in the execution and, if
that is established, they must show that
the terms of the agreement are “manifestly unfair.” To demonstrate overreaching in the execution, “the challenging party must show overreaching in the
execution, such as the concealment of
facts, misrepresentation, cunning, cheating, sharp practice, or some other form of
deception.”
Given the special relationship of trust
and confidence between spouses and
prospective spouses, courts have deemed
there is a fiduciary relationship and
accordingly “courts have thrown their
cloak of protection” over prenuptial and
post-nuptial agreements and have been
more willing to set them aside compared
to an ordinary contract.3
The Christian Standard
For its part, the majority focused on
the circumstances surrounding the execution of the agreement which resulted
from over a year-and-a-half of negotiations, noting that the wife was “an
active participant in the negotiations”,
and that she “ignored the advice of her
own independent counsel and signed
it.”4 Although the court noted that the
husband’s refusal to marry the wife,
who was pregnant twice during the
negotiations, “might be viewed as some
as callous,” they found no issue of fact
existed as to whether the husband had
engaged in overreaching.
The wife’s argument that she was
in the “precarious position of negotiating as an unmarried mother” did not
find any purchase with the court even
though the wife signed the agreement
just a few weeks after learning that
she was pregnant for the second time
during the ongoing prenuptial negotiations.
Moreover, although her condition was
confirmed in affidavits submitted by
two medical professionals, the majority determined that the wife’s claims
regarding her depression and anxiety
failed to establish that she “was incapable of understanding the agreement or
the consequences of executing it.”
Even though the court held that there
was a lack of overreaching which would
require further inquiry, in light of the
dissenting opinion, the majority ana-
The husband, a hedge
fund manager worth over
$100 million at the time
the prenuptial agreement
was executed—which he
had nearly doubled in the
years since—reduced his
offer 12 times during the
negotiations.
lyzed the second prong of the Christian
standard and determined that the wife
failed to show that the property distribution provisions of the agreement were
manifestly unfair. The majority also
dispensed with the wife’s two claims of
fraud even though she disclaimed those
counterclaims in her summary judgment motion.
The sanctity surrounding prenuptial
agreements appeared unsettled in the
past few years, particularly following
the Second Department’s decisions in
Petracca and then Petrakis.5 At the
time, commentators raised concerns
about what appeared to be a nascent
trend and how practitioners could guard
against challenges in drafting and negotiating prenuptial agreements.6 By
thoroughly refuting and responding to
the counterpoints made in the concurring and dissenting opinions, the
majority opinion clearly underlines
In his concurring opinion, Justice
Saxe argues that the majority and
dissent should not have applied the
Christian standard, which is “not the
correct analytical framework”7 in which
to analyze the property division provisions of prenuptial agreements. Rather
than applying Christian, he argues that
equitable distribution provisions of prenuptial agreements should be judged
by the statutory standard contained in
DRL 236(B)(3) which establishes that
agreements should be upheld as long as
they are “in writing, subscribed by the
parties, and acknowledged or proven in
the manner required to entitle a deed
to be recorded.”8 He concludes that
Christian “was concerned only with
separation agreements between spouses, and its reasoning applied only to
married couples who enter into separation agreements.”9 Notably Christian
was decided in 1977, three years before
the legislature imposed the statutory
scheme of equitable distribution.
Building upon his concurring opinion
in Anonymous from December 2014,
Justice Saxe begins with the clear statement of fact that the standards of review
enunciated in DRL 236(B)(3) contain a
“heightened standard” for maintenance
and child support in prenuptial agreements, but not with respect property
division.10 The concurring justice concludes that the Christian analysis would
apply a heightened standard to property division agreements with Christian’s
“‘manifest unfairness’ component
approximating the ‘fair and reasonable’
component of the statute’s maintenance
standard, while Christian’s ‘overreaching’ component approximates the (procedural) ‘unconscionability prong of the
statutes’ standards for judging maintenance provisions.”11
Justice Saxe offers an analytical
approach that would sharply steer the
enforcement of prenuptial agreements
in the opposite direction from historical
precedent. As one of the cornerstones
of his argument that Christian does
not apply to affianced couples, but only
to married couples, Justice Saxe cites
to Obergefell, for the proposition that
“marriage fundamentally alters the
legal status of the couple, creating new
legal rights and obligations that are
not present for a non-married couple.
Among those rights and obligations is
the obligation to give, and the right to
receive, the utmost good faith, fairness
and loyalty that is the essence of a fiduciary duty.”12
Noting that although a fiduciary relationship may arise between nonmarried
parties, the concurrence found that no
such relationship existed between these
parties, focusing on the husband’s tactics during the negotiation, “his treatment of her demonstrated the converse,
the complete absence of a relationship of trust and confidence.”13 Justice
Saxe suggests that absent a “bright-line
rule” that the engagement manifests
a fiduciary relationship, courts cannot
ascertain at what precise point such a
See PRENUPTIAL, Page 10
10
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Nassau Lawyer
CLOSED ...
inherent and statutory discretion,
the judge may consider, among
other factors, whether:
(1) the person is causing or likely
to cause a disruption in the proceedings;
(2) the presence of the person is
objected to by one of the parties,
including the law guardian, for a
compelling reason;
(3) the orderly and sound administration of justice, including the
nature of the proceeding, the privacy interests of individuals before
the court, and the need for protection of the litigants, in particular the children, from harm,
requires that some or all observers
be excluded from the courtroom;
(4) less restrictive alternatives to
exclusion are unavailable or inappropriate to the circumstances of
the particular case.1
Coupled with this statutory authority, a court sits as the preeminent par-
interested therein, except jurors,
witnesses, and officers of the court.
The presumption set forth by this
Rule is not irrefutable; public access
is not an absolute.4 Specific exceptions
in addition to those enumerated exceptions in the Judiciary Law §4 have
been recognized. Most importantly,
DRL §235(2) which pertains to custody
proceedings is one of several statutory
recognized exceptions.
Notably, other statutory exceptions
for “closed” proceedings include child
support proceedings, Family Court
Act §433(a), and paternity proceedings, Family Court Act §531, issues
that could arise in the context of a
custody proceeding, further supporting
judicial discretion to permissibly close
proceedings.5 Exceptional circumstances warranting closure notwithstanding the rebuttal presumption of open
courtrooms pursuant to Judiciary Law
§4 may exist where more than embarrassment of the children is indicated,
such as to protect minor children from
trial testimony regarding paternity.6
In exercising its discretionary power
to close courtrooms to nonparties , the
years expressed the harm that may
result to these children if exposed to
intense media scrutiny, the Court had
presented an evidentiary basis to close
proceedings. The Appellate Division
in P.B. v C.C., reversing the trial
court, noted that detailed affidavits
had been submitted revealing allegations of alcohol and drug abuse as well
as domestic violence and that the trial
would involve questions of the care and
supervision of the children.
Both parties in P.B. v C.C. sought
the closed courtroom. It is not always
the case that both parents seek privacy
for their family. Public humiliation of
a celebrity-parent is an unfortunate
tactic utilized to gain advantage in custody litigation. Proceedings involving
a celebrity or nationally known figure
virtually assure media attention. One
only need recall the publicity generated surrounding Brinkley – Cook.
In that instance, despite the efforts
of the father and attorney for the
child to close proceedings to nonparties, the courtroom doors remained
open. Imagine the impact upon their
children reading daily news reports
The negative impact of divorce upon a family and especially the children, is indisputable; let alone, a divorce played out in the media. There is hardly a conceivable
instance where a battle waged over a child’s custody justifies public scrutiny.
ent to do what is best for the interest
of the child.2 Historically, courts have
exercised the parens patriae power to
uphold custodial rights of non- parents
against biological parents and resolving conflicted familial relations all in
the “best interests of the child”.3
However, in exercising its statutory
power under DRL §235(2) and Rule
205.4(b) and its parens patriae power,
a court must also be cognizant of the
presumption of an “open trial” set forth
in New York State Judiciary Law §4 :
The sittings of every court within
this state shall be public, and every
citizen may freely attend the same,
except that in all proceedings and
trials in cases for divorce, seduction, abortion, … criminal sexual
act …. or filiation, the court may,
in its discretion, exclude therefrom
all persons who are not directly
PRENUPTIAL ...
relationship forms. However, that is
precisely what the majority did in its
analysis of the circumstances of this
particular couple. Responding to the
argument, but declining to speculate
on all affianced couples, the majority
determined that the parties were in
fact fiduciaries, having a child together, expecting another and having lived
together for three years.
If, as suggested in the concurring
opinion, equitable distribution provisions were to be determined by the
common law standard of “unconscionability,” then the party challenging
the agreement must demonstrate both
“procedural unconscionability” and
“substantive unconscionability.” Here,
the concurring justice determined that
the wife failed to show an “’absence
of meaningful choice’ that constitutes
overreaching or procedural unconscio-
Court is charged with balancing public
interests, on the one hand “…the right
of access of the public and the press to
judicial proceedings, [and on the other
] the …interest in protecting children
from the possible harmful effects of
disclosing [harmful information] to the
public.”7 Similar to child protective
proceedings, the controlling consideration here is the best interest of the
children.8
In the Matter of P.B. v. C.C.,9 closure
was warranted to avoid further damage to the children in a custody dispute
where media scrutiny was involved.
The harm to the children must be
more than speculative to defeat the
open door policy. Relying upon the
nonparty affidavits of the children’s
school principal, private tutor, school
psychologist, an independent psychologist and an attorney, all of whom
had involvement with the children for
about the details of the salacious affair
of their father (a well-known architect)
with a toy store employee in their
Hamptons’ community, the whispered
gossip in restaurants and shops they
frequented and the level of hostility
between their parents exacerbated by
a press ready to capitalize upon a
woman scorned.
A court may be reluctant to grant
closure where alternative protective
measures are available which the court
deems sufficient to provide privacy,
such as an “anonymous” caption, as
in Anonymous v. Anonymous10 There,
Court denied closure. This alternative
of an “anonymous” captions is not automatic nor is it readily granted and its
efficacy is not assured.
Where there is a “compelling public
interest” concerning a family other
than a parent’s notoriety, closure may
also be more difficult to attain. In
nability.”14 Further, he notes that the
wife failed to establish substantive
unconscionability because the “substantial disparities of wealth” between the
parties was disclosed when the agreement was made and the wife was “not
being left destitute.”
limitations and scrutiny beyond that
afforded contracts in general.”15
The dissent diverges from the majority primarily because of the procedural
posture and accordingly would remand
for a trial. In closing, Justice Feinman
responds vigorously to a comment in
the concurrence in which Justice Saxe
wonders “whether prenuptial agreements should now be relegated to the
dust bin”16 by reiterating that there
are simply facts in dispute in the existing record as to whether there was
overreaching and whether the agreement was manifestly unfair.
A Factual Issue?
From its perspective, the dissent
finds a “sufficiently compelling alternative reading of the record” which
should not be resolved on summary
judgment, but should rather be determined at a trial by a factfinder, noting that there were “several instances of highly questionable conduct” on
the husband’s part that may support
a finding of overreaching. As in the
majority’s opinion, Justice Feinman
applies the Christian standard, agrees
with the majority that there is a fiduciary relationship and in fact cites to
Petrakis to support the proposition
that “agreements addressing matrimonial issues have been subjected to
Going Forward
It is clear from the majority’s opinion—in combination with the lively
counterpoints made in the concurrence and the dissent—that prenuptial
agreements are not yet to be relegated to the dustbin. Once its findings
and holdings are unpacked, Gottlieb’s
detailed analysis is a veritable treatise
of the standards to be applied and the
Sprecher v. Sprecher,11 the Court determined that the public interest in the
cult membership of the parents and
the impact of the membership upon
the children was a matter of public
interest warranting that the courtroom
remain “open.” Precedent dictates that
the closing of judicial proceedings must
be consistent with the “public interest”
and not the special interests of the
litigants.
And so, in each instance, the court
as gatekeeper must determine if the
public’s right to know supersedes the
privacy rights of parents and their
children. The negative impact of
divorce upon a family and especially
the children, is indisputable; let alone,
a divorce played out in the media.
There is hardly a conceivable instance
where a battle waged over a child’s
custody justifies public scrutiny. In
effectuating this state’s policy of open
courtrooms as it pertains to custodial
proceedings, public curiosity about the
familial lives of the rich and famous
must be distinguished from a legitimate public interest.
Nancy E. Gianakos is a Partner at Albanese
& Albanese in Garden City, practicing exclusively in matrimonial and family law in the
New York metropolitan area; admitted in
CT (1981), NY (1993) and NJ (1992); and is
a member of the NYSBA, Nassau County
Matrimonial and Family Law Committees,
the American Family Law Inns of Court, the
International Association of Collaborative
Professionals, and is former chair of the
NCBA Publications Committee and co-editor
of the Nassau Lawyer.
1. The Uniform Rules for Family Courts §
205.4(b) has been applied to custody disputes in
Supreme Court. See e.g., Anonymous v Anonymous, 263 A.D.2d 341, 343 (1st Dept. 2000).
2. Finlay v Finlay, 240 N.Y. 429 (N.Y. 1925).
3. Matter of Waldron, 13 Johns 418, Supreme
Court of Judicature of New York (1816).
4. Kent v Kent, 810 N.Y.S.2d 160 (1st Dept. 2006).
5. Adoption of John Doe, 16 Misc.3d 714 (Surr.
Ct., N.Y. Co. 2007).
6. See McKinney’s CPLR § 235 Commentary
C235:2 at p.529.
7. Matter of Katherine B., 189 A.D.2d 443, 450
(2d Dept. 1993).
8. See DRL § 240(1)(custody); Matter of Suffolk
Co. DSS v. James M., 83 N.Y.2d 178 (1992)
(dispositional hearing in a child protective
proceeding).
9. 223 A.D.2d 294, 647 N.Y.S.2d 732 (1st Dept.
1996).
10. See, Anonymous v. Anonymous, 158 A.D.2d
296 (1st Dept. 1990).
11. N.Y.L.J., June 21, 1988, p. 2 col.6 (Sup. Ct.,
N.Y. Co.)
arguments to be made on either side in
litigating the enforceability of prenuptial and postnuptial agreements.
Michael DiFalco is a matrimonial attorney
with the law firm of Mary Ann Aiello, P.C.
and is also a Co-Chair of the New Lawyer’s
Committee at the NCBA.
1. Gottlieb v. Gottlieb, 25 N.Y.S.3d 90 (1st Dept.
2016).
2. Christian v. Christian, 42 N.Y.2d 63 (1977).
3. Id. at 72. See Petracca v. Petracca, 101 A.D.3d
695 (2d Dept. 2012).
4. Gottlieb, 25 N.Y.S.3d at 97.
5. Petracca, supra; see Cioffi–Petrakis v. Petrakis,
103 A.D.3d 766 (2d Dept. 2013).
6. See Alton L. Abramowitz, Live by the Prenup,
Die by the Prenup!, N.Y.L.J., Aug. 29, 2013 at 3,
col. 1
7. Gottlieb at 105.
8. NY Dom. Rel. Law § 236.
9. Gottlieb at 107.
10. Anonymous v. Anonymous, 123 A.D.3d 581
(1st Dept. 2014).
11. Gottlieb at 107.
12. Obergefell v. Hodges, 135 S.Ct. 2584 (2015);
Gottlieb, 25 N.Y.S.3d at 109.
13. Gottlieb at 110.
14. Id. at 111.
15. Petrakis, 103 A.D.3d at 767.
16. Gottlieb, 25 N.Y.S.3d at 113.
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MATRIMONIAL ...
The failure to comply with deadlines not only impairs the efficient
functioning of the courts and the
adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement
remedies to respond to the delinquent conduct of members of the
bar, often to the detriment of the
litigants they represent. Chronic
noncompliance with deadlines
breeds disrespect for the dictates
of the Civil Practice Law and Rules
and a culture in which cases can
linger for years without resolution.
Furthermore, those lawyers who
engage their best efforts to comply
with practice rules are also effectively penalized because they must
somehow explain to their clients
why they cannot secure timely
responses from recalcitrant adversaries, which leads to the erosion
of their attorney-client relationships as well. For these reasons, it
is important to adhere to the position we declared a decade ago that
“[i]f the credibility of court orders
and the integrity of our judicial
system are to be maintained, a
litigant cannot ignore court orders
with impunity.”4
The Court of Appeals concluded its
lengthy decision in Gibbs by declaring: “In reaching this conclusion, we
reiterate that ‘[l]itigation cannot be
conducted efficiently if deadlines are
not taken seriously, and we make clear
again, as we have several times before,
that disregard of deadlines should not
and will not be tolerated.’”5
It is clear that a Preliminary
Conference Order may form the basis
for relief under CPLR § 3126.6 In
2011, Justice Robert A. Bruno, citing
to Gibbs, denied a litigant’s application
to, inter alia, vacate the Note of Issue,
schedule the depositions of the parties
and allow for additional document discovery.7 Justice Bruno reasoned:
Defendant’s failure to avail itself
of the appropriate procedural remedies and sleep on its rights is no
excuse for failing to comply with
court orders. To allow this type
of lackadaisical conduct will only
encourage and add to more delays
and expenses to litigants anxious
to conclude their matrimonial
action and add additional work to
a judicial system that is already
over taxed.8
A number of factors contribute to
the Court’s ostensibly tolerant treatment of discovery schedule violations,
among them: the sheer volume of cases
pending before the Court; the budgetary constraints and security concerns
that no longer permit working through
lunch or past 5:00 p.m.; the overlap of
legal issues, psychological overlays and
judicial responsibility to provide legal
protection to its wards, the children of
the marriage; and the long-standing
philosophy that adversarial counsel
on soft discovery deadlines, the Court
may, in its discretion, give a particular case some breathing room. When
one side is compliant with deadlines,
however, then the other must likewise
be, unless a reasonable basis for seeking extensions is offered. The Court’s
flexing its muscle in the latter instance
would greatly benefit the court system
by lessening both its burdens as well
as those of the Bar. It seems axiomatic
that instilling certainty of the consequences that will result from a failure
to adhere to the ordered discovery
deadlines will lead to a reduction in
litigation delays, including fewer, but
more meaningful, Court appearances.
work out discovery issues without the
need for court intervention.
This discussion is not to suggest
that the Court’s compassion for attorneys and litigants be abandoned. On
the contrary, effective judicial management on a case-by-case basis is
invaluable to effective litigation practices. Instead of a sharp change in custom, the Court’s sage judicial guidance
could be directed to fostering a concerted effort between the Bench and Bar to
change the expectation of unjustified
delays in discovery. For example, certainly, where opposing counsel agree
Jane K. Cristal is the founder of Jane K.
Cristal, PC in Mineola (jcristal@cristallaw.
com) and has devoted herself to the practice of matrimonial and family law for more
than 29 years. She is a member of the NCBA
Matrimonial and Family Law Committee
and is appointed to the NYSBA Family Law
Section Legislation Committee.
1. Kihl v. Pfeffer, 94 N.Y.2d 118, 123 (1999).
2. Wilson v. Galicia Contracting & Restoration
Corp., 10 N.Y.3d 827 (2008); Andrea v. Arnone,
Hedin, Casker, Kennedy & Drake, Architects &
Landscape Architects, P.C., 5 N.Y.3d 514 (2005);
Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d
725 (2004); Brill v. City of New York, 2 N.Y.3d
648 (2004).
3. Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74
(2010).
4. Id. at 81 (quoting Kihl, 94 N.Y.2d at 123).
5. Id. at 83 (quoting Andrea, 5 N.Y.3d at 521).
6. John R. Souto Co. v. Coratolo, 293 A.D.2d 288
(1st Dept. 2002).
7. Fahrbach v. Fahrbach, 31 Misc. 3d 1238(A)
(Sup. Ct. Nassau Co. 2011).
8. Id.
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Diminished Chance
of Survival or Cure as
Proximate Cause in
Medical Malpractice
The issue of whether a doctor’s negligence is more likely than not a proximate cause of a plaintiff’s injury is usually for the jury to decide. In medical
malpractice cases involving a delayed
diagnosis of cancer, it will suffice to
present competent evidence that the
negligent delay
caused the plaintiff
additional
pain and suffering, further treatment, or a diminished chance of
survival or cure
due to progression of the cancer.1
In Polanco v.
Reed the plaintiff,
Alan W. Clark
who was previously treated for
breast cancer, alleged the defendant
committed malpractice in failing to
timely notify her of positive lymph
node findings on a PET Scan suspicious
for metastatic disease.2 A second PET
Scan six months later showed progressive findings. The plaintiff alleged
the six-month delay in learning the
results of the PET scan and diagnosis
of metastatic breast cancer recurrence
caused increased breast pain, progression of the disease as manifested by the
increased size of the lymph nodes, lung
surgery, a reduced chance of recovery
and 10% diminution in her life expectancy.
The First Department held that
the Motion Court erroneously decided issues of fact. Where oncology
experts present competing opinions on
causation, particularly about the progression of the disease, there is an
issue of fact for the jury to decide.3
Whether a diagnostic delay affected a
patient’s prognosis is typically an issue
of fact that should be presented to the
jury.
In Hughes v. New York HospitalCornell Medical Center, medical expert
testimony that a two-week delay in
testing or referring the patient who
was coughing up blood to a lung specialist was responsible for additional
suffering and a diminished chance of
survival or death, which was earlier
than it might have been (Mr. Hughes
died from advanced lung cancer a mere
six weeks after his initial hospital
discharge) was sufficient to reverse
dismissal of the complaint as a matter
of law and grant a new trial.4
The Second Department noted that
the jury may have reasonably inferred
that the cancer was spreading rapidly,
and there was no evidence that starting treatment two weeks earlier would
of had no effect. It is possible to conclude that a few more weeks or months
of life were possible but for the omission. Further, the court states that it
cannot be said with absolute certainty
that Mr. Hughes would not have had a
chance to survive even longer given his
age and active life style.
In Calvin v. New York Medical
Group, P.C. the Second Department
affirmed a jury verdict for the plaintiff
(ultimately sustaining $667,775) based
on expert testimony that malpractice
resulting in a two-week delay in the
diagnosis of high grade non-Hodgkins
lymphoma was a cause of death several
days after the diagnosis.
The court found that the plaintiff’s
expert witnesses established that the
defendant doctor’s departures from
good and accepted standards of medical
care were a substantial factor in causing the decedent’s death, “The plaintiff
simply had to show that “it was probable that some diminution in the chance
of survival had occurred.”5 Here, the
jury’s choice to give more credence to
the plaintiff’s expert witness was a fair
interpretation of the evidence.
In Scanga v. Family Practice
Associates of Rockland, P.C. the Second
Department affirmed the denial of summary judgment to the doctors where
there was no showing that a three- to
four-month delay in the diagnosis of
decedent’s colon cancer was not a substantial factor in shortening the length
of the decedent’s life. Although defendants’ medical expert opined that the
cancer was “unresectable” regardless
of when diagnosed and that “beginning
chemotherapy 3 or 4 months earlier
would have had an insubstantial effect
on how long plaintiff would live or on
the quality of his remaining days,” it
failed to establish that the delay was
not a substantial factor in shortening
the length of Scanga’s life.
The Second Department in Jump
v. Facelle reversed the lower court’s
setting aside of the verdict in favor of
the plaintiff and reinstated the verdict
finding the plaintiff’s expert’s testimony tends to establish that the negligent
11- or 12-hour delay in performing
surgery increased the harm to the
decedent by infection and decreased his
chances of survival. There is also evidence that the decedent became septic
over the 1-hour period of delay.
The court held there was legally
sufficient evidence of causation stating
that in cases like these, the plaintiff’s
expert need not quantify the exact
extent to which a particular act or
omission decreased a patient’s chances
of survival or cure, as long as the jury
can infer that it was probable that
some diminution in the chance of survival had occurred.6
More recently, in Goldberg v.
Horowitz, the Second Department, in
reversing dismissal of the action by the
court below pursuant to CPLR 4401,
held that:
“A plaintiff’s evidence of proximate cause may be found legally sufficient even if his or her
expert is unable to quantify the
extent to which the defendant’s act
or omission decreased the plaintiff’s chance of a better outcome or
increased the injury, “as long as
See MALPRACTICE, Page 26
Hon. JosepH CoVeLLo
Mediator, arbitrator,
and speCiaL Master
Justice Covello brings 30 years of experience, divided almost evenly between the
private practice of law and service as a judge, to his mediation and arbitration
practice. Prior to his appointment to the Appellate Division, Justice Covello served
as a trial judge in the Supreme Court, Nassau County; on the Appellate Term for
the Ninth and Tenth Judicial Districts; and as a trial judge in the District Court,
Nassau County. He was known as a very successful settlement judge in the trial
courts. His diverse career background as a trial lawyer and insight as trial and
appellate judge serves well to help litigants resolve a wide array of civil disputes.
Since leaving the bench in 2011, Covello has become one of the most popular and
successful neutrals in New York. He was voted a "Best Individual Arbitrator" by
lawyers in the New York Law Journal 2013-15 survey. Justice Covello concentrates
his ADR practice on the resolution of substantial personal injury, wrongful death,
labor law, insurance coverage, professional malpractice, construction and
commercial matters. His broad experience handling complex litigation, personal
injury, trial and appellate matters instills confidence during the mediation process,
as Justice Covello helps the lawyers and their clients craft settlements.
Resolute Systems, LLC
MEdIAtIoN, ARbItRAtIoN & AdR CoNSuLtINg
Long Island: 1-516-222-0688
90 Merrick Avenue, Suite 200, East Meadow, NY 11554
Manhattan: 1-212-967-6799
370 Lexington Avenue, Suite 702, New York, NY 10017
www.CovelloMediation.com
LIBN—CLE centerfold Master Page —MARCH 2016
n May 2016 n Nassau Lawyer
Paper
size 23” x 15”; image size 21.25 x 13.875
14
May 2016
MAY 12
Dean’s Hour: Taking Care of Business: Entity
v. Individual Representation
With the NCBA Ethics Committee
Sign-in 12:30: Program 1:00-2:00PM
1 credit ethics
Chris G. McDonough, Esq., McDonough &
McDonough, Garden City; Omid Zareh, Esq.,
Chair, NCBA Ethics Committee
MAY 12
After I Do: A Primer on Handling
Matrimonial Cases
In Collaboration with The Safe Center LI, and
Nassau Suffolk Law Services
Sign-in 2:30 p.m.; Program 3– 8PM
Light Supper included
5 credits professional practice
Carolyn D. Kersch, Esq., Alisa J. Geffner,
Esq., Samuelson Hause Samuelson Geffner &
Kersch LLP, Garden City; Elena Karabatos,
Esq., Schlissel Ostrow Karabatos, PLLC,
Garden City; Robert C. Mangi, Esq., Mangi &
Graham LLP, Westbury; Kieth I. Rieger, Esq.,
Rieger & Fried LLP, Garden City; Moderator:
Mary Ann Aiello, Esq., Dean, Nassau Academy
of Law; Mary Ann Aiello PC, Garden City
This program is designed to take attorneys
through the key steps of handling a
matrimonial case from retainer to trial. NAL is
waiving tuition for those that commit to taking
a pro-bono case through The Safe Center LI or
Nassau Suffolk Law Services before Nov 30,
2016. Attendees will be billed the applicable
registration fee if there is no commitment to
taking a case before deadline. If you prefer not
to commit to a case, registration fees for
program will be $150 Member/ $200 NonMember. Domus Scholar not applicable.
MAY 13
Advanced Mediation: Moving Towards
Mastery
With the NCBA Alternative Dispute Resolution
Committee and the NCBA Mediation and
Arbitration Advisory Council
8:30 a.m. - 4:30PM
5 credits professional practice; 1 credit ethics
Domus Scholar not applicable.
Daniel Weitz, Esq., Deputy Director of the
Division of Professional and Court Services /
State ADR Coordinator, New York State
Unified Court System; Program Coordinators:
Nassau Academy of Law, Mary Ann Aiello,
Esq., Dean; Erica B. Garay, Esq., Co-Chair,
NCBA ADR Committee; Meyer, Suozzi, English
& Klein, P.C., Garden City ; Loretta M.
Gastwirth, Esq., Co-Chair, NCBA ADR
Committee; Meltzer, Lippe, Goldstein &
Breitstone, LLP, Mineola. Marilyn K. Genoa,
Esq., Chair, NCBA Mediation and Arbitration
Advisory Council; Genoa & Associates, P.C.,
Old Brookville
MAY 16
Rise ‘n’ Shine (Out to Lunch)
The Valuation Process: All Things
Considered When Valuing a Business
Lunch 12:30-1:00; Discussion 1-2PM
Optional CLE credit available @ $30.
Program is free to attend. Must pre-register.
Harold L. Deiters III, CPA/ABV/CFF/
MAFF, Partner, Baker Tilly LLP, Melville;
Moderator: Joseph A. DeMarco, Esq.,
Schlissel Ostrow Karabatos, PLLC, Garden City
MAY 16
Obergfell: The Supreme Court Pronounces
the Right for All to Marry
5:30-7:30PM
2 credits professional practice
Carolyn D. Kersch, Esq., Alisa J. Geffner,
Esq., Samuelson Hause Samuelson Geffner &
Kersch LLP, Garden City; Cory H. Morris,
Esq., Huntington
MAY 17
Dean’s Hour: Stop in the Name of the Law!
Lawful Approach or Stop of Vehicles
With the NCBA Criminal Court Law & Procedure
Committee
1 credit professional practice or skills
Hon. Andrew M. Engel, Nassau County
District Court
MAY 17
Openings and Summations
With the NCBA Plaintiff’s Roundtable Committee
5:30-7:30PM
2 credits professional practice or skills
David J. Dean, Esq., Sullivan Papain Block
McGrath & Cannavo, P.C., Garden City; Ben
B. Rubinowitz, Esq., Gair Gair et al., New
York; Moderator: Terrence Tarver, Esq., Chair,
NCBA Plaintiff’s Roundtable Committee
MAY 18
Nassau Academy of Law and the American
Heart Association
Annual Trusts & Estate Conference
Continental Breakfast 8:00-8:30a.m.; Program
9:00-11:00 a.m.
Panelists: Nassau County Surrogate Hon.
Margaret C. Reilly; Paul S. Lee, JD, LLM,
Northern Trust Company, New York
Optional 2 credit CLE/CPE credit available at
additional fee. Must pre-register. For
registration or more information, please call
212.878.5923 or to register online,
www.heart.org/longislandestateconference
JUNE 2
JUNE 22
Dean’s Hour: Dewey & LeBoeuf Trial:
Lessons to be Learned for Complex Trials and
Law Firm Ethics
1 credit ethics
Michael A. Scotto, Esq., Garden City;
Anthony Michael Sabino, Esq., Sabino &
Sabino, P.C., Mineola
Dean’s Hour: Limited L
Recent Developments in
Drafting
With the NCBA Commerc
Sign-in 12:30: Program 1:00
1 credit professional pr
Professor Ronald J. Co
Deane School of Law, Pr
Associate Dean for Dista
University; Thomas J. M
Chair, NCBA Commerci
Anthony Michael Sabin
Sabino, Mineola
JUNE 8
Dean’s Hour: Show Me the Money: How to
Enforce Child Support Obligations
Diane M. Dwyer, Esq., Tabat, Cohen, Blum &
Yovino, P.C., Garden City
JUNE 9
Dean’s Hour: Conflicts of Interest
With the NCBA Ethics Committee
1 credit ethics
Chris G. McDonough, Esq., McDonough &
McDonough, Garden City; Omid Zareh, Esq.,
Chair, NCBA Ethics Committee
JUNE 15
Dean’s Hour: Insider Trading: Not A TV
Show, But the Real Law
Professor Ronald J. Colombo, Maurice A.
Deane School of Law, Professor of Law and
Associate Dean for Distance Learning, Hofstra
University; Anthony Michael Sabino, Esq.,
Sabino & Sabino, P.C, Mineola
JUNE 15
TECHing Your Solo/Small Firm Practice to
the Next Level: A Comprehensive Guide to
Starting, Growing and Maintaining Your Own
Firm
With the NCBA General/Solo/Small Firm Practice
and the Technology and Practice Management
Committees
5:30-8:30PM
2 credits professional practice or skills; 1
credit ethics
Gary Port, Esq., Chair, General/Solo/Small
Firm Practice Committee; Deborah E.
Kaminetzky, Esq., Chair, NCBA Technology &
Practice Committee; Adam Zalta, President,
Atlaz Computers and Consulting, Lawrence;
Additional speakers TBA
PA
TRA
A
SUP
Included in t
paperwork
To purchas
Pr
Nassau Lawyer
Liability Companies:
n the Law and
cial Litigation Committee
00-2:00PM
ractice or skills
olombo, Maurice A.
rofessor of Law and
ance Learning, Hofstra
McNamara, Esq.,
ial Litigation Committee;
no, Esq., Sabino &
-John M. Zenir, Westbury
Spring into CLE at the
Nassau Academy of Law!
ARTICLE 81 GUARDIANSHIP
COURT EVALUATOR
RECEIVER
GUARDIANS AD LITEM
PPLEMENTAL NEEDS TRUSTEE
•By Check: Make checks payable to NAL and mail with form to NAL, 15th and West Streets, Mineola, NY 11501
•By Credit Card: FAX completed form with credit card information to 516-747-4147
•Seminar Reservations Online: www.nassaubar.org >MCLE>Calendar, Reservations
Seminar Reservation Form
Date
Seminar Name
May 12
DH: Taking Care of Business
May 12
After I Do: A Primer on Handling Matrimonial
May 13
May 16
P
Please contact the Academy at
516.747.4464 to purchase
Domus
Scholar
TOTAL
NonE Credits Member Member Circle
1
$30
$40
$0
18B
~
5.0
5
$150
$200
N/A
~
Advanced Mediation : Moving Towards Mastery
5.0 1.0
6
$200
$250
$200
~
Obergefell: Supreme Ct. …Right for All to Marry
2.0
2
$80
$115
$0
~
May 17
DH: Stop in the Name of the Law
1.0
1
$30
$40
$0
$40
May 17
2.0
2
$80
$115
$0
~
June 2
DH: Dewey and LeBoeuf Trial
1
$30
$40
$0
~
June 8
DH: Show Me the Money
1
$30
$40
$0
~
June 9
DH: Conflicts of Interest
1
$30
$40
$0
~
June 15
DH: Insider Trading
1
$30
$40
$0
~
June 15
TECHing Your Solo/Small Practice to Next Level 2.0 1.0
3
$115
$155
$0
~
June 22
DH: Limited Liability Companies
1
$30
$40
$0
~
1.0
1.0
1.0
1.0
1.0
1.0
SEMINAR RESERVATION TOTAL:
CD and DVD Order Form
P
Modern Day Slavery: Human Trafficking
3.0
Stop in the Name of the Law
1.0
CD/DVD
TOTAL CD/DVD
NonE Credits Member Member Seminar Code
3
115/130
150/175
6TRADE0302
1
40/55
75/80
DH051716
3
1
115/130
40/55
150/175
75/80
6CRIME022516
DH040716
Ethics of Prosecuting a Criminal Case
3.0
Ethics
E is for Escrow
1.0
Arbitration
Deflategate: A New Danger to Arbitration
1.0
1
40/55
75/80
DH050416
Health
The Times They Are A-Changing : Marijuana
3.0
3
115/130
150/175
6TIMES0229
Estate
Another Evening with the Surrogates
2.0
2
75/95
110/130
6EVENING0419
General
CPLR Update 2015
2.5 0.5
3
115/130
150/175
5CPLR0304
3.0
3
115/130
150/175
6BANK050916
1.0 1.0
2
75/95
110/130
6SUCCESS0114
2.0
2
75/95
110/130
6SUCCESS0119
1.0
1
40/55
75/80
DH050516
E-Filing in Nassau County
1.5
1.5
40/55
75/80
DH022916
Get Planning: Business Plans for Attorneys
1.0
1
40/55
75/80
DH030316
Bankruptcy Intersection of Bankruptcy, Article 81..Estate
Business Succession : Pt 1 : Ethical/Insurance
Law Firm
Business Succession : Pt 2 : Financial/Tax
Management Collection of Legal Fees
Real
Property
Family &
Mat Law
Plaintiff
Insurance
2.0
2
75/95
110/130
6CLOSURE0127
Avoiding Closings Nightmares
2.5 0.5
3
115/130
150/175
5AVOID1102
Anti-Social Media in Family Court
2.0
2
75/95
110/130
6MEDIA0405
Anatomy of a Mortgage Foreclosure Action
Obergefell…Right for All to Marry
2.0
2
75/95
110/130
6MARRY0516
Recent Decisions…Labor Law
2.0
2
75/95
110/130
6LABOR0420
2.0
2
75/95
110/130
6OPEN051716
Navigating ERISA
2.0
2
75/95
110/130
6LIENS0204
Insurance Law Update 2015
1.5 0.5
2
75/95
110/130
5INS1026
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Nassau Lawyer
Creditor’s Rights Against Estates
and Estate Beneficiaries
Although this discussion may not
be popular at cocktail parties or social
events with friends, creditor’s rights
exist. As a practitioner in the field of
Elder Law and or Trusts and Estates
Litigation
you
will find that
opportunities
will arise to represent creditors.
Creditors are professionals seeking reimbursement for goods
and or services.
Creditors can be
a single mother,
struggling midMichael Puma
dle class father,
brother, sister,
successful corporation providing services to the elderly, and or businessperson. Practitioners should strive to
focus on what rights these individuals
have to payment for his or her time,
effort, and expertise. Avoid the stigma,
the optics, and dive in.
The most important questions a
practitioner should ask when taking on
a creditors claim against an estate are:
When were letters of administration or
testamentary issued; and do you want
to file the claim in Surrogate’s court or
in civil court (i.e., Supreme Court)?
First, when meeting with the client,
determine whether they have taken
any steps to try and collect on and
how much time has passed without
payment. If the client is a small business, time may be a significant factor.
If the debt is large enough, it can have
a substantial impact on the lives of
the small business owner and his or
her family. Furthermore, the estate
may have already been distributed.
This leaves the client with no remedy
against the fiduciary under circumstances described below.
If a creditor does not present a claim
within seven months from the time
that letters have been issued to a
fiduciary,1 and the fiduciary has no
knowledge of the claim, the fiduciary will not be responsible for assets
distributed to legatees (beneficiaries
under a will) or distributees (beneficiaries of a decedent dying without
a will) prior to the claim being presented.2 This includes letters issued
to the Preliminary Executors and or
Temporary Administrators. Therefore,
practitioners should move very quickly
to provide the estate fiduciary with
notice of the claim to ensure that the
fiduciary will be held responsible for
any distributions made prior to paying
the creditor.3 Although a creditor and/
or practitioner sitting on their hands
may prevent a cause of action against
the fiduciary if the distribution is made
in good faith, it does not prevent a
creditor from tracing the assets to a
beneficiary and bringing a cause of
action against the beneficiary for payment of the debt.4
After determining when and whether a fiduciary (i.e. Executor and or
Administrator of the estate) has been
appointed, the practitioner must provide notice to that fiduciary. Providing
proper notice to a fiduciary is outlined
in detail under The Surrogates Court
and Procedure Act.5 Any notice must
strictly comply with the statute.6 The
notice must be in writing, contain a
statement of the facts upon which the
claim is based, and the amount of the
claim. Although not initially necessary, it is good practice to have the
client prepare an affidavit describing
the amount owed and whether payments have been made to offset the
claim. This will prevent an additional
step later in the process whereby a
fiduciary demands such an affidavit as
of right pursuant to statute.7 After the
notice has been prepared the fiduciary
must be served personally and or by
certified mail (return receipt). If the
fiduciary is not served, the notice will
not be sufficient.
Once proper notice has been given to
the fiduciary, the fiduciary can choose
to allow the claim or reject the claim.
To illustrate this further, it requires
a deeper understanding of §1806. This
section specifically discusses the allowance and or rejection of claims made
by creditors. This article will focus
exclusively on deemed rejection. Once
a claim has been made, the fiduciary
can reject the claim in whole or in part
and give the reasons for such rejection
to the creditor. More likely, the fiduciary will not respond to the claim at all.
In this case, the claim is deemed rejected after the expiration of 90 days from
the time that proper notice had been
served on the fiduciary.8 After 90 days
have elapsed, the claimant (creditor)
has sixty days from that time to file a
claim in any court with subject matter
jurisdiction. The next logical question
becomes what happens after the expiration of time. ? Does the expiration
of sixty days prevent a creditor from
moving forward on the claim?
According to SCPA § 1810 “Nothing
. . . shall prevent a claimant from
commencing an action . . . at law or in
equity provided that where a claim has
been presented and rejected or deemed
rejected pursuant to 1806 in whole or
in part the action must be commenced
within 60 days after such rejection.”
In the very next sentence, the statute
reads, “Failure to bring such action
within 60 days shall not, however, be
deemed a waiver of claimant’s right to
a jury trial.”
See ESTATES, Page 17
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Nassau Lawyer
n
May 2016
n
17
CANVAS & WINE April 2016
ESTATES ...
The statute can leave a practitioner
scratching his or her head. In fact,
when read, the statute appears to
bar any claim if it is not filed 60
days after the claim is rejected and
or deemed rejected. Then, in the very
next sentence, the statute does not
forfeit the creditor’s right to a jury
trial. Thankfully for the client, nothing could be further from the truth; in
fact, the client can still bring an action
against the estate’s fiduciary, but only
in Surrogate’s Court.9.
As alluded to earlier, be aware of
the client’s needs. If the client needs
the debt satisfied immediately, then
the sixty (60) day time frame becomes
extremely important. If the claim is not
filed in a civil court within sixty days
from the deemed rejection (90 days
after notice of the claim has been given
to the estate fiduciary without affirmative rejection) the client’s right to do
so is entirely extinguished. If the time
frame passes without initiating a cause
of action against the fiduciary in a civil
court, the client is left with bringing
the action in Surrogates Court. It is
important to note that no other unique
statute of limitations category exists
for creditors’ claims. Beyond what has
been referenced, the claims are subject
to traditional statute of limitations
restrictions and exceptions listed in
Article Two of the N.Y. C.P.L.R.10 If
the notice of claim is not filed, the
statute of limitations does not begin to
run under §1806. Therefore, depending
on the type of claim and action, the
practitioner may never want to serve
the notice and simply file the claim in
a civil court when they are prepared.
In the alternative, the practitioner can
wait to serve the notice (within seven
months of the fiduciaries appointment)
after being prepared to file the action
in a civil court.
Although the creditor may have
given up his or her right to file a civil
claim, the prospects of receiving payment quickly are not much rosier in
the civil realm. First, the client will
have to undergo litigation costs that
may end up cutting substantially into
the claim. Secondly, even with a judgment the estate fiduciary may not pay
the claim and or wait until the judicial
settlement of the estate which could
take several more months. In that case,
if payment still has not been made, the
client would have to go through the
process of executing the judgment.
Again, the client would see additional
costs and no immediate relief.
If the claim is relegated to the
Surrogate’s Court, a creditor waiting
for payment may petition the court
for a compulsory accounting and or to
allow the claim.11 In doing so, the court
can compel the fiduciary to procure
judicial settlement of the account. If
the fiduciary does not provide a final
accounting, the creditor may petition
the court to suspend and or remove
the fiduciary who does not provide the
accounting.12 If the fiduciary fails to
appear and or fails to comply with the
order to account, the court may grant
several different remedies.13 One such
remedy is to revoke the fiduciary’s
letters, then a new fiduciary will be
The most important
questions a practitioner
should ask when taking on
a creditors claim against
an estate are: When were
letters of administration
or testamentary issued;
and do you want to file the
claim in Surrogate’s Court
or in Civil Court.
appointed and the court can order the
newly appointed fiduciary to take and
state the account of the disqualified
fiduciary. This process will not happen overnight because of the delays in
court proceedings and the opportunities the fiduciary may have to purge
any contempt for failure to comply with
a court order. However, this appears to
be one of the best vehicles for obtaining
a judicial settlement of the account and
obtaining payment from the estate.
In short, creditors may experience
significant time and cost in collecting a debt from an estate. However,
that should not discourage the creditor
from seeking payment, unless the cost
to acquire the payment would exceed
the debt. Practitioners need to make
smart decisions based upon client’s
needs when deciding where to file a
claim. If the practitioner is not pre-
pared, he or she can severely hamper
their clients’ interests. Finally, practitioners should give the creditor realistic expectations. Prepare the client
for a process that will make the debt
difficult to collect from fiduciaries that
do not wish to pay or simply are not
attentive to the estate’s obligations. By
staying on top of the claim, employing
smart litigation strategies, and being
attentive and realistic with the client,
the practitioner can take significant
steps to ensure a positive outcome and
experience for both the client and the
practitioner.
Michael Puma is an Associate with the Law
Office of Sharon Kovacs Gruer, P.C. and
formerly served as an Assistant District
Attorney for Nassau County.
1. SCPA §103(21).
2. SCPA §1802.
3. SCPA §1811.
4. EPTL § 12-1.1. See In re Swaab, 40 Misc. 2d
767 (Surr. Ct. N.Y. Co. 1963).
5. SCPA § 1803.
6. See U.S. Bank N.A. v. Lax, 26 Misc.3d 1230(A)
(Sup. Ct., Kings Co. 2010) (stating, that ‘certainty
in the administration of estates’ requires that ‘the
statutes on the presentation of claims’ be ‘strictly
construed.’) citing Ulster Co. Savings Inst. V.
Young, 161 N.Y.2d 23, 33 (1899)).
7. SCPA §1803(1).
8. SCPA §1802.
9. See In re Headlee, 25 Misc3d 1227A (Surr.
Ct., Dutchess Co. 2009) citing Homemakers, Inc.
v. Williams, 131 A.D.2d 636 (App Div. 2d 1987)
and Lazan v. City of New York, 213 A.D.2d 381
(2d Dept. 1995).
10. See In re Friedgood, 524 NYS2d 777 (2d
Dept. 1988).
11. SCPA §§ 2205,1809.
12. SCPA §§ 711, 719.
13. SCPA § 2206.
18
n
May 2016
n
Nassau Lawyer
We Care
Please join us for
The WE CARE Fund
21st Annual
Golf and Tennis Classic
Monday, July 25, 2016
Tam O’Shanter Golf Club
Brookville, NY
Format: Shamble
The Mill River Club
Oyster Bay, NY
Format: Play your own ball
Honoring:
Harold L. Deiters III
We Acknowledge, with Thanks,
Contributions to the WE CARE Fund
Donor
In Honor Of
Donor
In Honor Of
Dana Finkelstein
Layne Faith, daughter of John & Vanessa
DiMascio, Jr.
Stephen Gassman
Layne Faith, daughter of John & Vanessa
DiMascio, Jr.
Hon. John G. Marks
Alexander & Luca, grandsons of Linda Caliendo
Hon. Anthony J. Falanga
Margaret M. Kane
Hon. John G. Marks,
Linda Caliendo & Chris Gomoka
Peter Panaro
Hon. Andrea Phoenix
Patrick J. Purcell
Jean M. Roncallo
Hon. Denise L. Sher
Kimberly Snow
Nikolaos Liakonis
Conrad & Gertrude Scheige
Martin Stallone
Ray Mineo
Margery J. Small, mother of
Support Magistrate, Adam E. Small
Eugene Schaffer
Leland Beck
Robert Sack
Margery J. Small, mother of
Support Magistrate, Adam E. Small
In Memory Of Edward J. Marks, brother of Hon. John G. Marks
Baker Tilly Virchow Krause, LLP
Roland P. Brint
Joanne & Frank Gulotta, Jr.
Alan B. Hodish
Marc C. Gann, Esq.
Collins Gann
McCloskey & Barry PLLC
In Memory of Hon. Allan L. Winick
Eugene S. Ginsberg
Hon. Angela Iannacci & James Baydar
Christopher T. McGrath
Pegalis & Erickson, LLC
Hon. Denise Sher
Peter B. Skelos
Stephen Gassman Award Recipients:
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In Memory of Ellen Weisenberg, wife of Hon. Harvey Weisenberg
Samuel J. Ferrara
Peter B. Skelos
Hon. Arthur D. Spatt
A Division of Assured SKCG, Inc.
www.WeCareGolf.com
For complete event information,
sponsorships, Journal ads and
WE CARE, part of the Nassau Bar
Foundation, NCBA’s charitable arm, assists
children, the elderly and others in need,
through countless projects and donations. REGISTRATION
The WE CARE Golf & Tennis Classic was founded by Stephen W. Schlisel in 1996.
Checks made payable to Nassau Bar Foundation-WE CARE
SAVE THE DATE
Tuesday, August 2, 2016
Mets/Yankees Game
(tkt. includes a $30 food/merchandise voucher
throughout the stadium!)
$150 pp
Proceeds will fund children’s tickets
for the Ducks Game
For information contact:
Jody Ratner (516)747-4070 ext. 226 or Ken Marten (516)747-5800
Contributions may be made by mail:
NCBA Attn: WE CARE
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Many thanks to
Ellen Birch, Realtime Reporting
and
Regina Vetere, CBS Coverage
for their extraordinary efforts on behalf of
Dressed to a Tea and WE CARE
Nassau Lawyer
LAWYER LIT
n
May 2016
n
19
The Ex, by Alafair Burke
Book Review by Rhoda Yohai Andors
“[F]iction may be made to resemble
the reality of criminal law practice.”1
This is the closing statement of
Professor Alafair Burke’s 2015 article,
Got a Warrant?: Breaking Bad and the
Fourth Amendment, which explores the
benefit of using pop culture in teaching
criminal procedure. Professor Burke’s
statement applies equally well to her
2016 novel, The Ex, her most recent
work of crime fiction, in which the gritty
realities of criminal law practice are the
framework for her compelling tale.2
Remarkably, Alafair Burke is both
a Professor of Law at the Maurice
A. Deane School of Law at Hofstra
University, where she teaches criminal
law and criminal procedure,3 and a
New York Times bestselling author,
with ten previous crime novels to her
credit, including two series with female
protagonists: Samantha Kincaid,
a Portland Oregon deputy district
attorney, and Ellie Hatcher, a New York
City detective.4
Alafair’s main character and narrator
in The Ex is Olivia Randall, who is,
in the author’s words, “one of the best
criminal defense attorneys in New York
City.” Olivia reluctantly defends her
clean-cut ex-fiancé after he is arrested
for a triple homicide, because she owes
it to him, and she believes him to be
innocent. Or is he? The suspense is so
powerful that you will not be able to
resume the practice of law until you find
out.
Crime Fiction: Background and
Popularity
Lawyers have been writing crime
fiction for centuries. In fact lawyers
invented the genre, according to legal
researchers.
Crime fiction first appeared in
1650, when “[a]ctual cases presented
as stories were first brought together
by a German lawyer and poet, Georg
Harsdorffer,…in A Gallery of Horrible
Tales of Murder.5 In 1735, a French
lawyer, Francois Gayot de Pitaval,
compiled the “hugely popular” Famous
and Interesting Cases,...“22 volumes [of]
the more memorable cases from several
centuries of French wrong-doing...”6
A later editor of the volumes wrote: “I
have taken care to arrange the material
in such a way that the reader cannot
spot at once how a case will end and
what verdict will be pronounced. He
remains in a state of uncertainty during
the development of the action, and in
that way, I believe each case will become
more gripping ... The reader will remain
curious up to the final page.”7
“Detective fiction” (or the “mystery”),
a sub-genre of crime fiction, began
with Edgar Allen Poe’s 1841 story, The
Murders in the Rue Morgue.8 In Poe’s
tale, the keenest powers of observation
and extraordinary analytical abilities of
Monsieur C. Auguste Dupin are applied
to solving two gruesome murders
reported in the evening Gazette.
Although all of Paris considers the
murders an “insoluble mystery,” Dupin
observes “clews” that the police and
the narrator have overlooked: a voice
without words; a broken nail; a ribbon
with a sailor’s knot. He thereby deduces
that the murderer is an orangutan, as
revealed near the story’s end.9
“Throughout the nineteenth century
and the early twentieth
perspective. One gets the
century, England had
impression that a crime
a dominant position in
is committed, the police
detective fiction. No American
either get their man or
detective even came close to
they don’t, and then the
matching the towering figure
defense goes to work trying
of Sherlock Holmes.”10 By
to prevent a conviction.
1933, however, Americans
The story that’s rarely told
had their own towering
is the prosecutor’s. A bad
figure, criminal defense
prosecutor can blow a good
attorney Perry Mason, with
case through incompetence
the publication of lawyer Erle
or apathy or press a bad
Stanley Gardner’s first novel,
case out of blind ambition.
The Case of the Velvet Claws. The Ex
Prosecutors are entrusted
In all, Gardner wrote 81
with a tremendous amount
Author: Alafair Burke
Perry Mason novels, which
of power and responsibility.
2016
were recast into movies, a
Doing the job well requires
Harper
television series, a comic strip
incredibly hard work and
Hardcover
and even a board game.11
good judgment.15
List price: $18.10
By 2007, Alafair was
Between 1920 and 1976, the
living in New York City, and
novels of Agatha Christie, the
creating new characters for
Queen of Crime, featuring the
her crime novels who were
dapper Hercule Poirot and
New Yorkers.
the seemingly bewildered Miss Marple,
outstripped Perry Mason in popularity.
The Ex
As of 2010, “[a]ccording to a number
As The Ex begins, a triple homicide
of sources, her books…[had] sold more
has already occurred in lower
than two billion copies, making her the
Manhattan. The police have detained a
most widely read novelist in history.”12
In the article, Illegal Fictions: Mystery suspect, Jack Harris, who turns out to
be the ex-fiancé of the narrator, criminal
Novels and the Popular Image of
defense attorney Olivia Randall. Sweet,
Crime, the co-authors comment that
detective fiction is currently “read either conventional Jack, as Olivia remembers
him, could never commit murder.
aggressively or shamefacedly by nearly
Yet the police are certain Jack
everyone…Mysteries, thrillers, and
is guilty of the crime. They believe
courtroom dramas are very often at
Jack’s motive is revenge. One of the
the head of the best-seller lists…[T]he
three homicide victims was a wealthy
“whodunit” is a cultural phenomenon...
father whose son committed a mass
And because detective stories naturally
shooting several years ago in Penn
deal with crimes and criminals (mostly
murder of all sorts), this form of popular Station. The first person the son shot
was Jack’s wife. The media has been
literature must tell us something about
portraying Jack’s wife as a heroine and
cultural understandings of crime, and
Jack as a hero, as he recently led the
about attitudes toward crime, criminal
survivors of the Penn Station massacre
justice, and the law.”13
in a wrongful death suit against the
Alafair Burke, A Life Of Crime
shooter’s billionaire father. Jack’s
According to Alafair Burke’s website,
hero status makes his innocence more
her immersion in crime began in her
credible. On the other hand, Jack’s
childhood, in the late 1970’s, when the
alibi for the triple murders is flimsy.
police in her new hometown, Wichita,
He explains in an “interview” with a
Kansas, announced that a serial killer,
police detective, after he voluntarily
who had murdered seven women and
goes to the police without counsel, that
children, was stalking children in her
he was coincidentally in the vicinity of
neighborhood. The news was terrifying.
the triple homicides for a rendezvous
Alafair read everything she could find
with a mysterious and beautiful woman
on the murders, imagining she could
he met on the internet, but he knows
figure out the identity of the killer. She
practically nothing about her. A realistic
found comfort in reading crime fiction,
“transcript” of the detective’s interview
from Nancy Drew to Agatha Christie,
with Jack is the opening text of the
where crimes were always solved by the
novel, and a “transcript” of a criminal
end of the story.
court proceeding appears near the end
The talent for writing fiction runs in
of the book. The incorporation of these
Alafair’s family. Her father is the author “legal documents” in the novel makes
James Lee Burke, a celebrated crime
the criminal law aspects of The Ex all
novelist, whose novel, The Lost Get-Back the more authentic.
Boogie was nominated for a Pulitzer
Olivia thinks and acts like an
Prize upon its publication, in 1986.14
authentic defense lawyer. She is a
After Alafair graduated from Stanford woman at home in criminal law, who
Law School, at the top of her class,
speaks the raw language of police
she worked for five years as a Deputy
detectives as easily as she argues the
District Attorney out of a police precinct, law before the court. When she finds
in Portland, Oregon. In 2003, Alafair
that Jack is not “free to leave” the police
wrote her first crime novel, Judgment
station and is about to be transported to
Calls, based, in part, on her experiences
a holding cell, she zealously argues for
as a prosecutor. In an interview related
his release with the ADA assigned to the
to Judgment Calls, Alafair explained
case.
her uncommon legal perspective in that
“You need more than proximity to
novel.
the scene to charge someone with
[T]he role of the prosecutor
murder.”
is fascinating and relatively
“Motive, means and opportunity.
unexplored territory. Most accounts
Trial summation 101, Olivia.”
of the criminal justice system both
“Except I don’t hear anything going
fictionalized and not tend to tell
towards means. Where’s the gun?...”
the story of a trial from the defense
I pushed once more. “Come on, you
know Boyle doesn’t have this thing
locked and loaded. You really ready
for this to hit the news? Do you even
have the GSR [gunshot residue]
results?”
Later, at Jack’s bail hearing, Olivia
spars with the assigned ADA.
“This was an especially heinous
and dangerous crime,” Chandler
droned in a high-pitched monotone.
There was a reason Chandler was
assigned to arraignments instead of
jury trials… “The defendant had a
long-standing vendetta against the
victim…”
“Objection to the word vendetta,
Your Honor…” I’d made the
objection for the sake of the
considerable number of reporters
in the courtroom. I did not want to
leave the impression that we were
accepting the prevailing narrative
about the reasons for this shooting.
Olivia is an astute observer and
investigator. When the DA delivers
17 large boxes of files to her firm
in discovery, she notices that many
duplicate documents have been
included, and realizes that exculpatory
Brady material has been buried in the
files.. . At the end of The Ex, Olivia, of course,
deduces the identity of the murderer.
This reviewer could not predict the
outcome, and even veteran readers of
crime novels may not recognize the
clues along the way.
In conclusion, the key ingredients of
crime fiction, from its origin in 1650
through its development in The Murders
in the Rue Morgue, are still being cooked
up by modern crime fiction writers:
murder offstage before the story begins;
the criminal case; press coverage of the
crime; an investigator who misses no
detail; buried clues; and, the befuddled
police, all creating a state of suspense
and uncertainty in the reader, until the
investigator’s final revelation of the
murderer’s identity. The Ex is true to
form.
Rhoda Yohai Andors, an Associate Editor of
Nassau Lawyer and former student of Alafair
Burke, practices employment law and is an
Associate at Steven J. Moser, P.C. She can be
reached at ryandors@alumni.princeton.edu.
1. Alafair S. Burke, Got a Warrant?: Breaking Bad
and the Fourth Amendment, ___ Ohio St. J. Crim.
L. 191, 210 (2015).
2. Alafair Burke, The Ex (2016).
3. http://law.hofstra.edu/directory/faculty/fulltime/
burke/.
4. In this article, unless otherwise cited, the source
for the author’s statements about her books and
biographical information is her website: http://
www.alafairburke.com.
5. Marlyn Robinson, Collins to Grisham, A Brief
History of the Legal Thriller, 22 Legal Studies
Forum 21, 21-22 (1998).
6. Id. at 21-22.
7. Id.
8. Lawrence M. Friedman and Issacher Rosen-Zvi,
Illegal Fictions: Mystery Novels and the Popular
Image of Crime, 48 UCLA L. Rev. 1411, 1415
(2001).
9. Edgar Allen Poe, Murders in the Rue Morgue
(1841).
10. Friedman, supra n.9, at 1419.
11. Robinson, supra note 6, at 29-30.
12. Joan Acocella, Queen of Crime, The New
Yorker (August 16, 2010).
13. Friedman, supra n.9, at 1411-1412.
14. http://jamesleeburke.com/about-the-author/.
15. https://www.bookbrowse.com/author_
interviews/full/index.cfm/author_number/1181/
alafair-burke.
20
n
May 2016
n
Nassau Lawyer
Pro Bono Attorney of the Month
Adele S. Deerson
BY GALE D. BERG
This month, the Nassau County Bar
Association is privileged to recognize
Adele S. Deerson as the Pro Bono Attorney of the Month for her dedication to the
Nassau County Bar Association (NCBA)
Mortgage Foreclosure Project and Senior
Clinic.
Adele is an accomplished attorney who
has been practicing law for over seventy years. She graduated Magna Cum
Laude from Brooklyn Law School with a
JSD in 1949 and a JD in 1946. She will
be honored at the 117th Nassau County
Bar Association’s Annual Dinner Dance
for her years of practicing law. During
her career, she has been a Professor at
New York Institute of Technology, since
1968 until her recent retirement in 2014,
served as an Arbitrator on Commercial
Cases for the American Arbitration Asso-
ciation, been appointed by the New York
State Department of Insurance to serve
as a Permanent No Fault Arbitrator and
has managed her own private practice
since 1949. As if that were not enough,
she also mentors middle school children
at the Westbury Middle School and still
maintains a small private practice for
those clients who refuse to have anyone
else represent them.
Since retiring from teaching, instead
of enjoying her leisure time, she spends
numerous hours each month volunteering at both the NCBA Foreclosure Clinic,
where she counsels homeowners facing financial crisis and at the NCBA
Senior Clinic counseling those who need
assistance with their issues involving
seniors, whether for themselves or their
parents. She is always willing to assist
those in need of guidance and to offer
reassurance. Ms. Deerson takes the time
to address the concerns of our attendees
and works with them to determine their
needs and objectives. At the Mortgage
Foreclosure Clinic, she counsels individuals on foreclosure defense and other loss
mitigation options relating to residential
foreclosures. In addition to these clinics, which are held twice monthly, she
appears at the NCBA table, in the New
York State Supreme Court, Foreclosure
Part for mandatory conferences to help
homeowners who need representation
for the day.
She has two children, five grandchildren and one great grandchild who is the
“apple of her eye.” When told that she
was the Pro Bono Attorney of the Month
and asked about her reason for doing
For Nassau Lawyer
pro bono, she stated, “It is flattering,
and I am grateful for the honor of being
‘Pro Bono Attorney of the Month’. The
obvious and truthful answer is that the
practice of law for seventy years and my
wonderful family have fulfilled my life,
a life which has been very kind to me.
I have loved every minute of my career.
Therefore, I continue to ‘give back’ by
doing Pro Bono work.”
She has been included in numerous
publications including Who’s Who in
American Law and Who’s Who in American Women, as well as many others
over her long career. Adele Deerson is a
member of the New York State Bar Association, Bar of the Federal District Court
for the Eastern District of New York, and
the Bar of the United States Supreme
Court. She practices in Floral Park, New
York and handles cases throughout the
New York metropolitan area.
Her insight and knowledge continue
to give peace of mind to those less fortunate. For her example, we are proud to
acknowledge her generosity and service
to the community, by designating Adele
S. Deerson as the Pro Bono Attorney of
the Month.
Attorneys interested in working on the
Mortgage Foreclosure Project or have any
questions can call Gale D. Berg at the Nassau
County Bar Association or e-mail her at
gberg@nassaubar.org. Interested in working
on the Senior Clinic contact Demi Tsiopelas
or email her at Dtsiopelas@nassaubar.org.
Thank you to our Corporate Partners
2015-16
Toast to Domus
The Toast to Domus is a continuing
column that highlights the thoughtful words of NCBA members as they
pay tribute to Domus, the home of the
Association.
Business, Personal, Medical, Life, Professional Liability Insurance
Recently, I’ve had the opportunity to
interview several members, including
past presidents, of the Bar Association.
When asked the question what is the
best thing about Domus, the answer
has consistently been, the members,
the people, that is what makes this
place a home.
Joe Ryan said “Domus is more than
a Bar Association. It is a fraternal
organization where we develop long
standing personal relationships that
enrich our lives and enjoyment of practicing law.”
When we look back through the
years, from the formation of the
Nassau County Bar Association in
1899 with just 17 founding members,
to the acquisition of Domus in 1929, to
today, we see that it truly is the people
that have made this place more than
just a building of bricks and mortar.
We defend those that cannot afford
counsel. We argue for legislative
change not just for the laws of today,
but in the hopes of a better tomorrow.
We promote diversity. We forge links
with the community. We have taken
stances on wars and we have fought
for justice, inside and outside of the
court room. Through it all, it is the
people that are remembered.
Domus stands here today because
of the people within it. We welcome
new members with open arms at such
events as BBQ at the Bar. We applaud
the models on the runway at Dressed
to a Tea. We laugh with the children
at Gingerbread University. It is all of
these events, events that forge friendships and bring members together,
that keep the lights blazing at Domus.
Looking back, it is amazing how far
we’ve come and how Domus has been
our home all along the way, from a
room of 17 white men, to a county of
thousands of members of all different
backgrounds, beliefs, and practices.
And yet, these differences are not barriers, but are key to developing new
ideas and pushing the development
of law.
Here is to Domus, in the hopes that
this home continues to develop relationships, enrich our lives, and push
all of us to recognize the enjoyment of
practicing law. To Domus.
— Jennifer Koo,
Board of Directors meeting,
April 12, 2016
Co-Chair, New Lawyers Committee
Member of the NCBA History
Task Force
Nassau Lawyer
n
May 2016
n
21
In Brief
Manhattan has announced
Farrell Fritz, P.C. partthat Kelly D. Schneid has
ner and NCBA Immediate
joined the firm as an associPast President John P.
ate in the firm’s Litigation
McEntee has been appointed
practice group. She focuses
by the Chief Administrative
her practice on appellate,
Judge of the State of New York
commercial and real estate
as a member of the New York
litigation.
State Independent Judicial
Qualification Commission for
Nancy E. Gianakos, partthe Tenth Judicial District. ner at Albanese & Albanese
The Commission investigates
LLP of Garden City, NY was
the qualifications and backrecognized as a recipient of
ground of candidates seeking
Marian C. Rice the first Annual Judge Gail
judicial office in Nassau and
Prudenti Top Women in Law
Suffolk Counties and determines whether candidates are highly Award, presented by Hofstra University
qualified, qualified, or not qualified to School of Law, Center for Children,
Families, and the Law in recognition of
serve as judges. her service as a role model for the next
Forchelli, Curto, Deegan, Schwartz, generation of women.
Mineo & Terrana, LLP proudly
announced that partner Brian R. Sahn Franchina & Giordano, P.C. proudly
of the firm’s Real Estate Practice Group announces that NCBA Past President
was selected as one of the Top Ten Emily F. Franchina, Mary P. GiorLegal Eagles (Real Estate) for 2016 dano and Maria DeMarco Begley,
on Long Island by LI Pulse Magazine. have been selected as recipients of
Partners, Mary E. Mongioi (tax, the first Annual Judge Gail Prudenti
trusts and estates and corporate), Top Women in Law Award, presented
Andrea Tsoukalas (zoning, land use, by Hofstra University School of Law,
environmental and municipal law), and Center for Children, Families, and the
associates, Stephanie Alberts (tax, Law in recognition of their service as
trusts and estates) and Danielle B. role models for the next generation of
Gatto (litigation and employment and women.
labor), have been selected as recipients
of the first Annual Judge Gail Prudenti The firm of Capell Barnett Matalon
Top Women in Law Award, presented & Schoenfeld LLP, with offices in
by Hofstra University School of Law, Jericho and New York City, is pleased
Center for Children, Families, and the to announce that Yvonne R. Cort has
Law in recognition of their service as joined the firm as a Partner. Yvonne
role models for the next generation of focuses her practice on IRS and NYS
tax controversies.
women.
Jaspan Schlesinger LLP is pleased to
announce that Judge Jeffrey Lebowitz
(Ret.) has been appointed by Governor
Cuomo to Chair the Second Department
Judicial Screening Committee. As
a member of the Committee, Judge
Lebowitz will assist in evaluating the
qualifications of candidates for appointments or designations to judicial office
in New York State. The law firm of Moritt Hock & Hamroff
LLP with offices on Long Island and
Troy Rosasco, a partner at Turley,
Redmond, Rosasco & Rosasco, LLP, was
inducted as a Fellow in the National
College of Workers’ Compensation
Lawyers at the organization’s annual
dinner in New Orleans on March 12,
2016.
Donnalynn Darling, Chair of Meyer
Suozzi’s Personal Injury and Education
Law practices, received the first Judith
Bloch Award from Variety Child
Learning Center (VCLC) in Syosset for
her vision in founding the Education
Law practice and her legal work in
requiring school districts to provide
learning disabled children with appropriate educational supports. Guercio & Guercio, LLP is pleased
to announce that Christopher F.
Mestecky and Anthony J. Fasano
have been selected to the 2016 New
York Metro Rising Stars list by Super
Lawyers.
Jennifer Cona, elder law attorney and managing partner of Genser Dubow Genser & Cona and Roseanne Beovich, senior associate attorney at the firm, were recipients of
the first Annual Judge Gail Prudenti
Top Women in Law Award, presented
by Hofstra University School of Law,
Center for Children, Families, and the
Law in recognition of their service as
role models for the next generation of
women.
W. Schlissel, and Elena Karabatos,
Partners Jennifer Rosenkrantz,
and Lisa Schoenfeld, and Of Counsel
Arnold S. Klein are 2016 NY Metro
SuperLawyers;
Partner
Joseph
DeMarco, and Associates Hillary
Reinharz and Jeanine Rooney are
2016 NY Metro Rising Stars.
The Nassau Lawyer welcomes submissions
to the IN BRIEF column announcing news,
events and recent accomplishments of its
members. All submissions must be made as
Word documents. Due to space limitations,
submissions may be edited for length and
content.
PLEASE E-MAIL YOUR SUBMISSIONS TO:
nassaulawyer@nassaubar.org with subject
line: IN BRIEF
The In Brief column is compiled by Marian
C. Rice, a partner at the Garden City law firm
L’Abbate Balkan Colavita & Contini, LLP
where she chairs the Attorney Professional
Liability Practice Group. In addition to representing attorneys for nearly 35 years, Ms.
Rice is a Past President of NCBA.
Schlissel,
Ostrow,
Karabatos,
PLLC(“SOK”) is proud to announce that
their partner Stephen W. Schlissel
has been reappointed to the Board
of Governors of the New York State
Attorney-Client Fee Dispute Resolution
Program which he has served on since
its inception, established in 2002. In
addition, SOK has the distinction of
having every attorney selected as a
SuperLawyer in some form. This prestigious accolade recognizes every attorney
of the eight-member boutique matrimonial firm. Founding Partners Stephen
LAWYERS’ AA MEETING
Nassau County Bar Association
1st Wednesday of the month
For more information call
516-512-2618
Annual Wednesday, June 1, 2016
Blood Drive 12:30 – 6:30 p.m.
NCBA 2016 Annual Blood Drive
YOU CAN BE A HERO!
If true love is giving without expecting anything in return, then surely giving blood for those in need is an act of
true love. Show your love for others by
participating in the blood drive hosted
annually by the Association, at Domus
on Wednesday, June 1 from 12:30 6:30 p.m.
Why another blood drive? Blood is
a highly perishable item, so Long Island Blood Services must replenish
their supply continually. They provide
whole blood, red cells, and platelets to
hospitals and other medical facilities
throughout the Island. Their pros will
be here all afternoon on June 1, ready
to collect both whole blood and red
cells. Type “O Negative” blood - from the
Universal Donor - is in particular demand. Our goal this year is to make a
total of at least 60 donations. Typically,
this requires 70-75 potential donors to
step forward. Will you be one of them?
If you haven’t donated before, then
this is a nice place to start. We always
have some fun together at the Drive.
Squeamish about needles? Aren’t we
all, a little? Here’s a tip from veteran
donors: Look the other way . . .
The Community Relations and Public Education Committee organizes this
Drive as a service to Association members. However, it is open to all, and we
will be promoting it in the surrounding community, too. If your office does
not hold its own blood drive, then why
not piggyback on ours? New York employers are required to provide leave
time for their employees to give blood.
https://www.labor.ny.gov/formsdocs/wp/
LS703.pdf.
To make an appointment to donate
your pint of the valuable lifesaving fluid, please contact Blood Drive Chairperson Patricia Miller at pmiller575@
aol.com or (516) 503-0981. We hope to
see you at the Drive on Wednesday,
June 1. On behalf of blood recipients
everywhere, thanks. We love you, too.
Eligibility Criteria:
Must have valid ID with signature and photo
Minimum weight 110 lbs.
Between 16 & 75 years of age
(16 year old must have parental permission,
Age 76 and over need doctor’s note)
No tattoos in the past 12 months
Eat well (low fat) and drink fluids
Questions about your eligibility? Call 1-800-688-0900.
To schedule an appointment, contact Patricia Miller, Esq.
pmiller575@aol.com or call (516)503-0981
15th & West Streets, Mineola, NY 11501
516-747-4070
22
n
May 2016
n
Nassau Lawyer
Committee Reports
District Court
Meeting Date: 4/12/2016
Chair: Mitchell Hirsch
Guest speaker Nassau County
District Court Judge Scott Fairgrieve
delivered a presentation about recent
cases of interest to landlord-tenant
practitioners. Discussions were also
held regarding various issues, including a requested amendment to the
rules to eliminate mandatory arbitration in no fault cases and the formation of a sub-committee to review
current District Court forms in use.
New Lawyers
Co-Chairs: Jennifer Koo and Michael
DiFalco
Speakers Jaime Ezratty and John
Stellakis delivered a lecture, with
optional CLE credit, entitled “Basics
of Landlord/Tenant Law”, including
areas of interest such as the difference
between non-payment and holdover
proceedings, petitions, service issues, defenses, retaliatory evictions, the warranty of habitability and how
the law applies with Section
8 cases.
Plaintiff’s
Roundtable
lecture on opening statements and summations.
Alternative Dispute
Resolution
Co-Chairs: Erica Garay and
Loretta M. Gastwirth
Chair: Terrence L. Tarver
Discussions were held
about the new NCBA ADR
Michael J. Langer Panel Rules for mediation and arbitration, the
The Plaintiff’s Roundtable
training requirement and
Committee held its April
upcoming opportunities for media2016 meeting in conjunction with
tors and arbitrators, and updates
the Nassau Academy of Law which
from the NCBA ADR Advisory and
featured speaker, Brian J. Shoot,
Promotional Council. A representative
Esq., who presented a lecture on the
of the Lawyer’s Assistance Program
“Recent Decisions Concerning Sections Committee also attended and gave a
200, 240, and 241(6) of the Labor
presentation about its services to the
Law.”
legal community.
Upcoming meeting scheduled for
On May 13, 2016, the ADR
Tuesday, May 17, 2016, from 5:30
Committee, along with the Nassau
to 7:30 p.m., in conjunction with the
Academy of Law, will present a 6-hour
Nassau Academy of Law, at which
program of continuing education for
time David J. Dean, Esq., and Ben B.
mediators who serve on court mediation rosters. In addition to the other
Rubinowitz, Esq., will deliver a CLE
portions of the program, Loretta
Gastwirth, Erica Garay and David
Abeshouse will deliver a panel discussion entitled “Sealing the Deal” which
will focus on ensuring that parties
have enforceable settlement agreements.
On May 19, 2016, the ADR
Committee will co-sponsor a luncheon meeting with the Bankruptcy
Committee, the second half of a program on mediation in the bankruptcy
courts, which will explore pre-mediation
statements and mediation disputes.
Upcoming meeting scheduled for
Thursday, June 16, 2016.
The Committee Reports column is
compiled by Michael J. Langer, a
partner in the Law Offices of Kenneth
J. Weinstein, P.C. Mr. Langer is a
former law clerk in the United States
Court of Appeals for the Second
Circuit, and a former Deputy County
Attorney in the Office of the Nassau
County Attorney. Mr. Langer’s practice
focuses on matrimonial and family
law, criminal law and general civil
litigation.
NCBA Committee Meeting Calendar • May 16 - June 28, 2016
Questions? Contact Stephanie Pagano (516) 747-4070 spagano@nassaubar.org
Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change.
Check website for updated information: www.nassaubar.org
ATTORNEYS/ACCOUNTANTS
Monday, May 16, 2016
12:30 p.m.
Leslie Tayne
CIVIL RIGHTS
Tuesday, May 24, 2016
12:30 p.m.
Jason Starr
WOMEN IN THE LAW
12:30 p.m.
Martha Haesloop
GENERAL/SOLO/SMALL FIRM
PRACTICE
12:30 p.m.
Gary Port
TAX LAW
12:30 p.m.
Noelle Geiger
ALTERNATIVE DISPUTE
RESOLUTION/BANKRUPTCY
JOINT MEETING
Thursday, May 19, 2016
12:30 p.m.
Loretta Gastwirth/Erica Garay
ADR
Holly Holecek Bankruptcy
SURROGATE’S COURT ESTATES
& TRUSTS
5:30 p.m.
John Graffeo/Lori Sullivan
INTELLECTUAL PROPERTY
Monday, May 23, 2016
12:30 p.m.
Ariel Ronneburger
COMMERCIAL LITIGATION
12:30 p.m.
Thomas McNamara
MUNICIPAL LAW/REAL
PROPERTY LAW JOINT MEETING
12:30 p.m.
Lisa Cairo/Liora BenSorek Municipal Law
Mary Mongioi/Kevin
McDonough Real Property
VETERANS & MILITARY LAW
Wednesday, May 25, 2016
12:30 p.m.
Steven Raiser
CORPORATION BANKING AND
SECURITIES LAW
8:30 a.m.
Kate Heptig
TECHNOLOGY & PRACTICE
MANAGEMENT
12:30 p.m.
Deborah Kaminetzky
ELDER LAW SOCIAL SERVICES &
HEALTH ADVOCACY
6:00 p.m.
Saundra Gumerove/Maureen
Rothschild DiTata
HOSPITAL & HEALTH LAW
8:30 a.m.
J. Kemp Hannon
COMMUNITY RELATIONS &
PUBLIC EDUCATION
12:45 p.m.
Ira Slavit
APPELLATE PRACTICE
Tuesday, June 7, 2016
12:30 p.m.
Donna Aldea
EDUCATION LAW
12:30 p.m.
Candace Gomez
ASSOCIATION MEMBERSHIP
12:45 p.m.
Adam D’Antonio
MATRIMONIAL LAW
5:30 p.m.
Rosalia Baiamonte
PUBLICATIONS
12:45 p.m.
Rhoda Andors/
Anthony Fasano, Jr.
SENIOR ATTORNEY’S
12:30 p.m.
Bruce Hafner
DISTRICT COURT
12:30 p.m.
Jaime Ezratty
LABOR & EMPLOYMENT
12:30 p.m.
Christopher Marlborough
WOMEN IN THE LAW
12:30 p.m.
Martha Haesloop
ALTERNATIVE DISPUTE
RESOLUTION
12:30 p.m.
Loretta Gastwirth/Erica Garay
TECHNOLOGY & PRACTICE
MANAGEMENT
5:30 p.m.
Deborah Kaminetzky
ELDER LAW SOCIAL SERVICES &
HEALTH ADVOCACY
12:30 p.m.
Saundra Gumerove/Maureen
Rothschild DiTata
INTELLECTUAL PROPERTY
12:30 p.m.
Ariel Ronneburger
VETERANS & MILITARY LAW
12:30 p.m.
Steven Raiser
Nassau Lawyer
NCBA
Sustaining Members
n
May 2016
n
23
Surrogates From 7 NY Counties
Come Together For NAL Seminar
2015 - 2016
Every year thousands of attorneys renew their
membership in the Nassau County Bar
Association. In addition to dues, some
members show their appreciation to the
NCBA by making a special contribution and
become a Sustaining Member.
The NCBA is grateful for these individuals who
strongly value the Nassau County Bar
Association’s mission and its contributions for
the betterment of the legal profession.
Hon. Merik R. Aaron
Martin P. Abruzzo
Mary Ann Aiello
Mark E. Alter
James P. Barrett
Ernest T. Bartol
Jack A. Bennardo
James D. Bennett
Neil R. Cahn
Ralph A. Catalano
Alan W. Clark
Leonard S. Clark
Richard D. Collins
Anthony C. Curcio
James C. Daly
Joseph G. Dell
Alfred DiGirolomo, Jr.
John P. DiMascio
Steven J. Eisman
Charo Ezdrin
Howard S. Fensterman
Samuel J. Ferrara
Patrick Formato
Lawrence R. Gaissert
Domingo R. Gallardo
Marc C. Gann
Louise E. Genussa
Eugene S. Ginsberg
Frank Giorgio, Jr.
John J. Giuffre
David M. Glick
Lisa Golden
Avigail Goldglancz
Douglas J. Good
Hon. Frank A. Gulotta, Jr.
Andrew J. Hirschhorn
H. William Hodges
Alan B. Hodish
James P. Joseph
Elena Karabatos
Elizabeth S. Kase
Stephanie M. Keating
Hon. Susan T. Kluewer
Martha Krisel
Donald F. Leistman
Jonathan C. Lerner
Steven G. Leventhal
James N. Licalzi
Gregory S. Lisi
Gloria Lomeli
Robert G. Lucas
Peter J. Mancuso
Michael R. Martone
Robert A. McDonald
John P. McEntee
Christopher T. McGrath
Christina G. Milone
Anthony J. Montiglio
Linda G. Nanos
Hon. Michael L. Orenstein
Joseph J. Perrini
Gary Petropoulos
Kenneth J. Ready
Joan Lensky Robert
Edward T. Robinson
Anne Rosenbach
Lee Rosenberg
Hon. Marie G. Santagata
Stephen W. Schlissel
Hon. Peter B. Skelos
Ira S. Slavit
Hon. Arthur D. Spatt
Michael F. Sperendi
Jill C. Stone
Joseph B. Strassman
Sanford Strenger
Robert G. Sullivan
Hon. Joy M. Watson
Dana L. White
Elliot C. Winograd
Gerald P. Wolf
Kathleen Wright
To become a Sustaining Member
Please contact the NCBA Membership Office
(516)747-4070
Back by popular demand, Surrogates from seven counties in New York came together
at the Nassau County Bar Association on April 19th for the Nassau Academy of Law
(NAL) CLE program, “Another Evening with the Surrogates.” More than 230 attorneys
attended this sold-out event, which featured a round table discussion on procedural and
substantive processes involved in Surrogate’s Court practice.
Seated from left: Hon. Rita Mella, New York County; Hon. Nelida Malave-Gonzalez,
Bronx County; Hon. Margaret C. Reilly, Nassau County; Hon. A. Gail Prudenti, Former
Chief Administrative Judge of the State of New York. Standing from left: Dennis Wiley
and Sally Donahue, co-vice chairs, Nassau County Bar Association Surrogate’s Court
Estates & Trusts Committee; Hon. Brandon Sall, Westchester County; Hon. Peter J.
Kelly, Queens County; Hon. John M. Czygier, Jr., Suffolk County; Hon. Robert J. Gigante,
Richmond County, and Lori A. Sullivan and John Graffeo, co-chairs, NCBA Surrogate’s
Courts Estates and Trusts Committee. (Photo by Henry Guerra)
NCBA New Members
We welcome the following new members
Attorneys
Khaldoon Qubain
Peter Ginsberg
Gleason & Koatz, LLP
Ginsberg & Bianco, LLP
Kelly Dana Schneid
Alan C. Kestenbaum
Moritt Hock & Hamroff LLP
Weil & Kestenbaum
John E. Westerman
Matthew A. Leonhardt
Westerman Ball Ederer Miller
D’Angelo Law & Associates, PC
Zucker & Sharfstein, LLP
Diane Matero
Students
Law Office of Diane Matero
Christopher F. Mestecky
Joseph Ciullo
Shane S. Hassin
Dorothy Kong
Guercio & Guercio, LLP
Arsalan A. Memon
Matthew Alan Miller
Kaitlin A. Ramkelawan
Michael M. Premisler
Carla Aa Pinto
Kaitlyn Wells
Memoriam
Hon. Allan L. Winick
24
n
May 2016
n
Nassau Lawyer
The Importance
of our ‘Non-Legal’
Partners to the Pro
Bono Cause
By Gail Broder Katz
On April 6, 2016, the Access to Justice
Committee in conjunction with the Nassau
County Bar Association, The Safe Center
LI and Nassau Suffolk Law Services held
the Second Annual Pro Bono Recognition
Reception to honor and thank all those who
serve the less fortunate in our communities. At the event, our ‘non-legal’ providers/
partners were also recognized for their contributions to the pro bono effort. After all,
volunteer/pro bono service is not limited to
attorneys. We are often in need of the assistance of other professionals in a variety of
disciplines. At last year’s event, and again
this year, we honored Real Time Reporting
and Ultimate Process and Attorney Services,
Inc. for the tremendous assistance and support they provided (and continue to provide)
to our clients and their pro bono attorneys.
At this year’s Reception, we were thrilled
to add the accounting firm of Baker Tilly
and Harold L. Deiters III, a partner at the
firm, to the list of ‘non-legal’ providers. One
of our pro bono attorneys is representing a
Safe Center client, Ms. X, in a bitter and contentious divorce. The client’s very wealthy
husband was extremely violent and abusive
throughout the marriage. Ms. X was positive that Mr. X had transferred large sums of
money (marital property) in violation of the
automatic orders prohibiting such activity
during the pendency of a matrimonial action.
He continually lied to the courts about his
financial position, even pleading poverty to a
Support Magistrate so he that he could have
an 18B attorney provided to represent him.
While Ms. X’s attorney was able to locate
some of the funds, it was clear that a forensic accounting expert was needed. Because
Mr. X had deprived Ms. X of access to any
marital funds she did not have the ability
or resources to try to find the transferred
money. Fortunately, upon hearing of this
situation, Mr. Deiters offered his services
free of charge. He performed a detailed
forensic accounting of Mr. X’s business and
was able to prove and demonstrate that not
only did Mr. X transfer marital funds to
another bank account, but that bank account
was in another country! He traced the funds
to their ultimate destination, a bank in the
Middle East. Mr. Deiters’ work uncovered
a substantial sum of money that, but for
his efforts, would have vanished from the
‘marital pot’. Ms. X is extremely grateful for
Mr. Deiters’ assistance and he deserves to be
commended for his efforts.
The volunteer attorneys do a tremendous
job of representing the indigent citizens of
Nassau County. But the representation
often requires more than the legal services
provided by our volunteers: service of process, court transcripts, translation of documents, and accounting services are often necessary parts of a case. The clients’ resources
are limited, if not non-existent, and so the
generosity of our ‘non-legal’ providers is often
a crucial component to the outcome of a case.
Their assistance adds a whole other welcome
dimension to the pro bono effort. It is gratifying to see the legal and other professional
communities working together for the sole
purpose of improving the lives of our friends
and neighbors in Nassau County.
Gail Broder Katz, Esq. is the Pro Bono
Project Coordinator for The Safe Center LI
(formerly Nassau County Coalition Against
Domestic Violence.) She can be contacted at
GBroderKatz@tscli.org or 516-465-4700 for
information about the Project and how you
can help.
“The premise of this recognition is to honor those attorneys and law firms
that place the highest priority on helping society and those less fortunate.”
Greg Lisi, Access to Justice Committee Co-Chair
RECEPTION ...
teer attorneys through education
and professional development, and
provide information on free and
reduced fee legal resources to the
public. “The premise of this recognition
is to honor those attorneys and
law firms that place the highest priority on helping society
and those less fortunate, and to
encourage more attorneys and law
firms to provide pro bono services,”
said Access to Justice Committee
Co-Chair Greg Lisi. “This year we
had an increase of about 100 more
pro bono attorneys.”
Steven Leventhal, NCBA Vice
President and Access to Justice
Committee Co-Chair, remarked,
“Helping people in need is, of
course, the ultimate goal. As attorneys, we recognize a duty to assist
those less fortunate in their efforts
to obtain justice. The Long Island
law firms and attorneys that we
recognize are leaders in this public
service.”
Honorees are determined by the
amount of pro bono hours recorded by NCBA, TSCLI and NSLS.
Attorneys are encouraged also to
indicate their law firms when volunteering, to ensure the hours are
counted for recognition in 2016.
The complete list of honorees
is on page 25, and a menu of pro
bono opportunities is on this page.
Want to get involved?
The Access to Justice Committee
has compiled a list of local
non-profit organizations in need of
legal pro bono services. Attorneys
who would like to learn more about
any opportunity should contact the
organization directly.
PRO BONO OPPORTUNITIES
IN NASSAU COUNTY
Bankruptcy Clinics
These clinics are held every other
month. Volunteer attorneys provide guidance to those considering
bankruptcy, screening for referral
to Pro Bono attorneys for filing of
Chapter 7 petitions. This is a limited engagement, though participating attorneys may also be referred
cases. CONTACT:
Nassau/Suffolk Law Services
Susan Biller, Esq., 516-292-8100,
sbiller@wnylc.com
Guardianships - Article 81
MHL proceedings - Attorneys
must be Part 36 eligible
Opportunities exist for the position of counsel to the Alleged
Incapacitated Person (AIP) representing their interest in the court
hearing; court evaluator who serves
as an arm of the court and conducts an investigation reporting
on the circumstances of the AIP as
they relate to the facts alleged in
the petition; and Guardian to the
AIP if they are found to be incapacitated, requiring visiting the ward
during the year at their home or in
their facility and reporting annually on the ward’s condition both
personally and financially.
CONTACT:
516-747-4070
and/or ADEA. Representation may
be for the duration of the litigation
or for a limited purpose such as
mediation or for trial only. Pro
bono counsel must join the Court’s
pro bono panel in order to be
considered for appointment. The
application can be found at:
https://www.nyed.uscourts.gov/
forms/pro-bono-panel-application. Completed applications may
be returned to Alyce Goodstein,
Pro Se Staff Attorney, US District
Court, EDNY, 100 Federal Plaza,
Central Islip, NY 11722 or at
alyce_goodstein@nyed.uscourts.gov.
CONTACT:
Alyce Goodstein, Esq., 631-7126060, alyce_goodstein@nyed.
uscourts.gov
Landlord/Tenant
Attorney-of-the-day Project
Volunteer attorneys provide legal
assistance to low income residents
at eviction proceedings and guidance with regard to other landlord-tenant issues.
CONTACT:
Roberta Scoll, Esq., 516-292-8100,
rscoll@wnylc.com
Mortgage Foreclosure/Sandy
Recovery Joint Consultation
Clinics
These Clinics run twice a month
from 3-6 p.m. Attorneys perform
20-30 minute consults and provide legal guidance, including real
estate, insurance, contractor and
bankruptcy issues. This is a limited engagement and attorneys do
not follow cases.
CONTACT:
Gale D. Berg, Esq., 516-747-4070,
gberg@nassaubar.org
Federal Court – EDNY
Long Island Courthouse
Mortgage Foreclosure
Settlement Conferences
Opportunities exist to represent
indigent litigants in pending litigation in the EDNY’s Long Island
Courthouse. Cases typically
involve civil rights claims brought
pursuant to Section 1983 or
employment discrimination claims
arising under Title VII, the ADA
Conferences are held Mondays,
Tuesdays and Wednesdays from
9:30 until noon at Supreme Court.
Free legal advice is provided for
anyone in Court without representation, and attorney volunteers join
an NCBA staff member for each
session. This is a limited engage-
ment and attorneys do not follow
cases.
CONTACT:
Gale D. Berg, Esq., 516-747-4070,
gberg@nassaubar.org
The Safe Center LI
The Safe Center LI seeks volunteer attorneys to assist victims of
domestic/dating abuse, elder abuse,
andor rape/sexual assault with
legal advocacy, consultations, and/
or representation, with issues arising from the abuse.
CONTACT:
The Safe Center LI
Lois Schwaeber, Esq., 516-4654700
Senior Citizen Consultation
Clinics
These Clinics run once a month
and volunteers consult with senior
citizens and offer legal guidance
on elder issues. This is a limited
engagement and attorneys do not
follow cases.
CONTACT:
Demi Tsiopelas, 516-747-4070, dtsiopelas@nassaubar.org
Student Mentoring Program
Volunteer attorneys mentor middle
school aged children identified by
education professionals as “at risk.”
Attorneys meet with children at 8
a.m. for 45 minutes, every other
week.
CONTACT:
Demi Tsiopelas, 516-747-4070, dtsiopelas@nassaubar.org
Volunteer Lawyers Project
The Project staff refers a variety of
legal matters to private volunteer
attorneys. The most common areas
referred include matrimonial, landlord-tenant, personal injury and
bankruptcy issues.
CONTACT:
Susan Biller, Esq., 516-292-8100,
sbiller@wnylc.com
AtoJ Recognition 2016- FP ad
4/22/16
Nassau Lawyer
2015 ACCESS TO JUSTICE
PRO BONO
RECOGNITION
Law Firms
Ranked by pro bono service
Large Law Firms
Rivkin Radler LLP
Rosicki, Rosicki & Associates, PC
*Abrams, Fensterman, Fensterman,
Eisman, Formato, Ferrara
& Wolf, LLP
*Forchelli, Curto, Deegan, Schwartz,
Mineo & Terrana, LLP
Farrell Fritz, P.C.
Jaspan Schlesinger LLP
Meyer Suozzi English, & Klein, PC
Ruskin Moscou Faltischek, PC
Medium Law Firms
Berger Fischoff & Shumer, LLP
John P. DiMascio & Associates
Silverman Acampora, PC
Schlissel Ostrow Karabatos, PLLC
Horing Welikson and Rosen P.C.
Gassman, Baiamonte, Betts, PC
Stagg, Terenzi, Confusione
&Wabnik, LLP
Small Law Firms/Solo
Veronica Renta Irwin, Esq.
Joseph Law Group/
John P. Whiteman III, Esq.
Rudi DeWinter, Esq.
Jon Michael Probstein, Esq.
Evelyn Kalenscher Kirschenfeld, Esq.
Janet Connolly, Esq.
George Frooks, Esq.
Daniel Bannen, Esq.
Jon Press, Esq.
Susan Ackerman, Esq.
Nancy Silber Cohen, Esq.
John Zenir, Esq.
Non-Legal Service Providers
Baker Tilly
Realtime Reporting
Ultimate Process Service
SPECIAL RECOGNITION
Robert Sugarman, Esq. (posthumously)
*Tied for third
Thank You to Our Sponsors
GOLD
Abrams, Fensterman, Fensterman,
Eisman, Formato, Ferrara & Wolf, LLP
Berger, Fischoff & Shumer, LLP
Farrell Fritz, P.C.
Forchelli, Curto, Deegan, Schwartz,
Mineo & Terrana, LLP
Martha Krisel, Esq.
Realtime Reporting
Rivkin Radler LLP
Ruskin Moscou Faltischek, P.C.
SILVER
The Safe Center LI
SPONSOR
Steven G. Leventhal, Esq.
May 2016
n
25
Recognizing Attorneys’, Judges’ and Law Firms 2015
pro bono volunteerism to help low-income and vulnerable
persons to gain access to the civil justice system.
Individual Honorees
Robin Abramowitz
Susan Ackerman
Michael Adges
David Adhami
Francine Adler
Marjorie Adler
Yvette Aguiar
Anand Ahuja
Mary Ann Aiello
Janet Alpert
Gary Alpert
Stanford M. Altschul
Stanley P. Amelkin
Irene Angelakis
Michael Angiulo
Howard Arber
Michael Aronowsky
Caren Bailey
Sarah Baird
Moya Ball
Daniel Bannen
Michael Barcham
Matthew Bastin
Annabel Bazante
Maria DeMarco Begley
Ilene Behar
Jeffrey Benjamin
Richard Benson
Heath Berger
John Bermingham
Meredith Bettenhauser
Lisa Biondo
Arlene Boas
Allan Botter
Karen Brand
Jeanne Breiter
Howard Brill
Maxine Broderick
Andrea Brodie
Michael Brofman
Lynn Brown
Adam Browser
Eilleen Buckley
Russell Burcheri
Sandra N. Busell
Teresa Butler
William A. Cadel
John Campana
Michael C. Cannata
Catherine Carlson
John Carvella
Hillary Casper
Jeffrey Catterson
Lauren Chartan
Miriam Chocron
Tae Ethan Choi
Michael Ciaffa
John Coco
Scott Cohen
Alexandra Cohen
Martin Cohen
Neil Cohen
Janet Connolly
Ellin Cowie
Adam Crowley
Bernadette Crowley
Margaret Crowley
Michelle Cuevas
Anthony Curcio
Adam D'Antonio
Eleanor Darienzo
Donnalyn Darling
Jay Davis
Rudolph De Winter
Adele Deerson
Joseph A. DeMarco
Michael Detrano
n
Lino Diaz
Michael DiFalco
Diana DiLeonardo
John DiMascio, Jr.
John DiMascio, Sr.
Byron Divins, Jr.
Krista E. Dobbins
Neil Doherty
Matthew Domanick
Maureen Dougherty
Karen M. Dowd
Diane Dwyer
Lewis Edelstein
Leor Edo
Hon. Dorothy Eisenberg
Hon. Anthony Falanga
Joanne Fanizza
Crysti Farra
Bruce Feinstein
Craig Feldherr
Lily Feng
Marcia Field
Laurice Firenze
Gary Fischoff
Brian Fishkin
Michael Fishman
Ward Fitzpatrick
Roberta Fox
Sarah Freeman
Edward A. Fregosi, Jr.
Michael Fried
William Friedman
George Frooks
Neil Galfunt
Mary Gallagher
Marc C. Gann
Prem P. Ganshani
Jeffrey B. Garber
Stephen J. Gassman
Hon. C. William Gaylor III
Stuart Gelberg
Samantha Gellman
Daniel Gerson
Farimah Ghaffari
Ken Gillespie
Annilus Gilot
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26
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Nassau Lawyer
was “substantial,” a verdict in her
favor would be justified.”
In sum, in similar cases counsel for
plaintiff should request a juror instruction that proximate cause or a substantial factor may be found if the jury
finds that defendant’s conduct diminished plaintiff’s chance of a better
outcome or increased the injury even if
plaintiff’s expert is unable to quantify
the exact extent to which such chance
of survival or cure was diminished.16
MALPRACTICE ...
evidence is presented from which
the jury may infer that the defendant’s conduct diminished the
plaintiff’s chance of a better outcome or increased [the] injury”7
Also delay of 24 hours in recommending surgery diminished chance
for better outcome or increased injury;8 delay of 24 hours in C-section
was a substantial factor9; and finding four-minute delay in performing
C-section a substantial factor.10
Most recently, in Luna v. Spadafora,
the Second Department affirmed a
$6.8 million jury verdict in favor of
the plaintiff against the defendants
finding that there was a valid line of
reasoning and permissible inferences
from which the jury could have rationally concluded that the physicians
departed from good and accepted medical practice and that the 13-month
delay in obtaining a biopsy to diagnose
plaintiff’s thyroid cancer proximately
caused her to have a worsened prognosis or decreased 10-year survival rate.
The court concluded that “where
both sides present expert testimony in
support of their respective portions, it
is for the jury to decide which expert’s
testimony is more credible.11
Denial of summary judgment was
affirmed by the Third Department in
Provost v. Hassam, based on expert
affidavits that defendant committed
malpractice in not timely performing a
breast biopsy causing an eight-month
delay in the diagnosis of plaintiff’s
cancerous mass. Further, said expert
opined with a reasonable degree of
medical certainty that had the cancer been timely diagnosed, plaintiff’s
tumor would have been much smaller and she would not have suffered
metastasis to the axillary lymph node.
The expert further opined that a timely
diagnosis would have increased plaintiff’s chances for long term survival.
Thus, this expert raised a factual issue
for the jury to decide.
In Feldman v. Levine the Second
Department reversed the court below
and reinstated a $1.2 million verdict
in favor of the plaintiff based on malpractice causing a delay in the diagnosis and treatment of plaintiff’s lung
cancer. There was evidence to conclude
that the negligent delay in diagnose
caused plaintiff pain and suffering,
diminished her chance of survival and
hastened her death.12 The court stated
that the oncological issues presented
by the competing causation experts,
namely the rate of progression of decedent’s cancer, do not involve the type
of novel methodology requiring a Frye
hearing.13 The experts’ disagreement
as to whether the lung cancer was
present and could have been diagnosed during plaintiff’s treatment with
defendant prior to the diagnosis of
Stage IV lung cancer was a jury issue.
Moreover, the medical literature cited
by plaintiff supported the methodology
used by plaintiff’s expert to estimate
the progression of decedent’s cancer.
In Schaub v. Cooper the First
Department reversed summary judgment for the defendant, holding that
plaintiff’s experts did not concede that
decedent’s cancer was incurable after
June 1999 but only that her chances
for survival had decreased. Factual
questions remained as to whether
defendant’s delay in testing or refer-
Alan W. Clark, is a trial attorney Board
Certified in Professional Medical Liability
by the ABPLA, and a sustaining member of
AAJ, NYSTLA, NYSBA, NCBA, and SCBA,
with offices in Levittown and New York City.
Comments may be sent to awc@awclaw.com.
ring the decedent to a specialist diminished her chances for survival.
In essence, plaintiff’s expert oncologist created a fact issue by opining
that the 10-month delay in diagnosis
of plaintiff’s gastric cancer caused the
cancer to progress from a Stage 1A
cancer(as it had not spread to the
liver0 with a 78% five-year survival
rate, to a Stage IV cancer, which at the
time had a 7% five-year survival rate.
The court held that the defendant
did not meet his initial burden of
proof and we cannot conclude that the
delay in testing or referring decedent
was not responsible for a diminished
chance of survival or death which was
earlier than it might have been.
In Borawski v. Huang a malpractice
case for delayed diagnosis of stomach
cancer, the Appellate Court reversed
dismissal of plaintiff’s Complaint at
the close of the evidence and granted
plaintiff a new trial. 14
The court held:
Where, as here, a failure to treat is
alleged, the plaintiff simply must
show that “‘it was probable that
some diminution in the chance of
survival had occurred’”15
In Stewart v. New York City Health
& Hospitals Corporation the First
Department reinstated a plaintiff’s
verdict holding that loss of even a
5-10% chance of conceiving naturally
as testified to by defendant’s expert
was sufficient to prove causation and
allow the jury to find a verdict of
$500,000 in favor of the plaintiff (the
amount was reduced to $300,000).
The Appellate Court, disagreeing
with court below holds as follows:
“Thus plaintiff did not, as defendant contends, have to prove that
defendant’s negligence “deprived
[her] of the ability to conceive and
bear children naturally.” Rather,
plaintiff merely had to prove
that defendant’s negligence was
the proximate cause of the loss
of plaintiff’s right fallopian tube
and that such negligence deprived
her of a substantial possibility of
that ability. And if the jury found
that she lost even a 5 to 10 percent chance of having a successful
pregnancy as a result of sexual
intercourse and that this chance
1. Polanco v. Reed, 105 A.D.3d 438 (1st Dept.
2013); Hughes v. New York Hospital-Cornell Med.
Ctr., 195 A.D.2d 442 (2d Dept. 1993); Stewart v.
NYCHHC, 207 A.D.2d 703, 704 (1st Dept. 1994);
Calvin v. N.Y.Med Group, P.C., 286 A.D.2d 469 (2d
Dept. 2001); Scanga v. Family Practice Assocs. Of
Rockland, P.C., 302 A.D.2d 443 (2d Dept. 2003);
Luna v. Spadafora, 127 A.D.3d 933 (2d Dept. 2015).
2. 105 A.D.3d 438.
3. Feldman v. Levine, 90 A.D.3d, 477 (1st Dept.
2011).
4. 195 A.D.2d 442.
5. Mortensen v. Memorial Hosp., 105 A.D.2d 151
(1st Dept. 1984); Jump v. Facelle, 275 A.D.2d 345
(2d Dept. 2000); Provost v. Hassam, 256 A.D.2d 875
(3d Dept. 1988).
6. Fridovich v. David, 188 A.D.2d 984 (3d Dept.
1992). See also Mortensen and Provost, supra n.5.
7. Goldberg v. Horowitz, 73 A.D.3d 691 (2d Dept.
2010)(quoting Alicea v. Ligouri, 54 A.D.3d 784, 786)
(2d Dept. 2008)(citations omitted).
8. Dockery v. Sprecher, 68 A.D.3d 1043 (2d Dept.
2009).
9. Alicea, 54 A.D.3d 784.
10. Flaherty v. Fromberg, 46 A.D.3d 743 (2d Dept.
2007).
11. People v. Miller, 91 N.Y.2d 372 (Court of
Appeals 1998).
12. Schaub v. Cooper, 34 A.D.3d 268 (1st Dept.
2006).
13. Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).
14. Borawski v. Huang, 34 A.D.3d 409 (2d Dept.
2006).
15. Id. (quoting Calvin v. New York Med. Group,
286 A.D.2d 469, 470 (2d Dept. 2001))(citations
omitted).
16. Gagliardo v. Jamaica Hosp., 288 A.D.2d 179
(2d Dept. 2001).
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Nassau Lawyer May 2016 - Nassau County Bar Association

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