February 2009 - Bar Association of Erie County

Transcription

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Permit No. 416
Vol. 48 | No. 6 | February 2009
Bar Association of Erie County
BULLETIN
w w w. e r i e b a r. o r g
President’s Letter
By Giles P. Manias
Ringing in a New Judicial Year at Welcoming Ceremony
I’ve reached the halfway point of my term and
feel there is so much yet to do. I’ve got the same
feeling in my stomach that I had when I realized
how little time I had before a final exam. I wish I
had a more detailed agenda to gauge for myself,
but things never go as planned and always take a
lot longer to accomplish than you expect.
This organization has reached out in many
directions in order to continue to improve. Here is
a quick review of some of our initiatives.
To Our Membership
We have been reaching out to raise consciousness about “professionalism.” Consciousness-raising is a funny thing. Just when you think you’ve
completely failed, someone actually takes the time
to call or write me out of the blue. The letters and
calls are starting to add up and that’s very reaffirming. Lawyers still stop me on the street to talk
about professionalism or just to wish me luck.
Mostly, the comments come from more experienced lawyers who tell me of the surprised reaction from a young lawyer when told an
adjournment or some other courtesy was being
given willingly. It is very reaffirming for a newer
lawyer to hear from their adversary, “I understand...I’ve been in your situation, too.”
I can’t tell you how happy it makes me to hear
those stories. There may be a small wave (okay
ripples) of awareness growing.
To Our Judges
We are reaching out to our judiciary to examine
their role in the demise and reestablishment of
legal professionalism. Professionalism is not the
same thing as punctuality or preparedness; it
includes them, but the human needs of the participating lawyer should be…no, make that
“must be”…taken into account in setting court
schedules or enforcing them.
The “dignity of the court” refers to more than
just the dignity of the person behind the bench. If
Pictured above at the Judicial Welcoming Ceremony
held on Thursday, January 8 in Erie County Hall are,
left to right: BAEC president Giles P. Manias, Hon.
Sharon S. Townsend, Chief Administrative Judge,
Eighth Judicial District, Hon. John A. Michalek, Hon.
James A.W. McLeod, Hon. Tracey A. Bannister, Hon.
Lisa Bloch Rodwin, Hon. Michael Pietruszka and
BAEC vice president Robert N. Convissar.
Justice Townsend presided over the ceremony, which
is held annually at the beginning of the New Year to
congratulate and welcome newly elected and reelected members of the judiciary to the bench. The
Association’s past presidents welcomed the candidates
and all courts of record were represented.
Photo by Susan L. Kohlbacher
2009 President’s Ball To Be Held at New Art Center
The sparkling new Burchfield Penney Art Center at
Buffalo State College is the venue for this year’s
President’s Ball, which will be held to honor President
Giles P. Manias and the Association’s past presidents.
The black-tie optional gala will take place on
Saturday, March 28 from 6:00 to 10:00 pm.
The freshly unveiled art museum is the perfect place to
pay tribute to our current president, who sidelines as a
professional painter. The event will feature fabulous
food, live music and dancing, and the great fun that
always ensues when you spend a festive evening with
your friends from the bar! Ticket price is $75. Watch
your mail for details or contact Maureen Gorski at 8528687 or mgorski@eriebar.org.
continued on page 20
Governor Nominates Lippman to Serve as Chief Judge
Governor David A. Paterson has
nominated
Judge
Jonathan
Lippman to serve as Chief Judge of
the New York State Court of
Appeals. The Court of Appeals is
the highest court in the State and
the Chief Judge also serves as chief
of the State’s court system.
Lippman
Lippman is currently the Presiding
Justice of the Appellate Division, First Judicial
Department.
If confirmed by the New York State Senate, Lippman
will preside over a Court that disposed of nearly 4,000
matters in 2007, including 185 appeals. He will lead a
judiciary comprised of 1,210 judges, 2,250 Village and
Town Justices, and nearly 20,000 non-judicial court
personnel. The judiciary handles more than four million cases each year.
Lippman has served as Presiding Justice of the
Appellate Division of the Supreme Court, First
Department, since May 2007. He leads one of the most
influential appellate courts in the country, which hears
approximately 3,000 appeals annually from New York
and Bronx Counties. As Presiding Justice, he also sits on
the Administrative Board of the Courts, the policy and
rule making body of the New York State Court System.
Lippman’s career in the court system spans four
decades.
Have-A-Heart
Food Drive
See details on page 15.
continued on page 2
PAGE 2
www.eriebar.org | February 2009
Vol. 48 | No. 6 | February 2009
BAR ASSOCIATION OF ERIE COUNTY
Organized 1887
438 Main Street, Sixth Floor | Buffalo, New York 14202
(716)852-8687 | fax (716)852-7641 | www.eriebar.org
Bulletin correspondence: obrian@eriebar.org
EDITORIAL BOARD
Editor ............................................Bonnie D. O’Brian
Law Editor ....................................Jeffrey A. Spencer
Tax Notes Editor ..........................Gary D. Borek
Art Editor ....................................Hon. David J. Mahoney
(1960-2008)
Editorial Assistant ........................Susan L. Kohlbacher
OFFICERS AND DIRECTORS | 2008-2009
President ......................................Giles P. Manias
Vice President ..............................Robert N. Convissar
Treasurer........................................Dennis J. Bischof
Deputy Treasurer ..........................Laurie Styka Bloom
Executive Director........................Katherine Strong Bifaro
BOARD OF DIRECTORS
Leonard Berkowitz, John V. Elmore, Patrick J. Maloney, Candace K. Vogel,
Jill K. Bond, Robert J. Feldman, Glenn Edward Murray, Shari Jo Reich,
Peter F. Brady, Brian C. Mahoney, Nancy W. Saia, Kathleen M. Sweet.
LIFE MEMBERS
Mark A. Adrian, Carol J. Alaimo, Brian D. Baird, Lynn A. Clarke, William J.
Cunningham, Eric P. Doherty, Victor J. Gagliardi, Sharon Stern Gerstman,
Jean E. Gittler, Donald J. Holzman, Stanley Kwieciak III, J. Eldon Owens,
Lauren D. Rachlin, Jeffrey A. Spencer, James M. Wadsworth.
Would you like to see your name here? See page 11 to find
out how to become a contributing member.
continued from page 1
all the participants in a court proceeding treat each
other with respect and understanding, it dignifies not
only the proceeding, but also dignifies the persons who
display such consideration.
about the lawyers helping others with alcohol abuse,
with depression, or illiteracy? The Bar Foundation
assists lawyers and their families who are having a
multitude of problems. We have lawyers volunteering
to help throughout this community and beyond. Is
there a Board of any charity that doesn’t have multiple
lawyers on it? They are our equivalent of missionaries
or Doctors without Borders.
CONTRIBUTING MEMBERS
Joan Casilio Adams, Peter S. Aiello, Donald A. Alessi, Grace Marie Ange,
Richard J. Attea, Hon. Rosalie M. Stoll Bailey, Stephen E. Barnes, Edwin T.
Bean, Jr., Thomas R. Beecher, Jr., Ronald P. Bennett, Leonard Berkowitz,
David W. Beyer, Richard S. Binko, Richard N. Blewett, Michael M. Blotnik,
Frank J. Boccio, Harold J. Brand, Jr., Peter J. Brevorka, Phillip Brothman,
James E. Brown, T. Alan Brown, Joel Brownstein, David Buch, Sarah Hill
Buck, James P. Burgio, Michael C. Burwick.
John F. Canale, James N. Carlo, John J. Carney, Peter B. Carr, Alan S. Carrel,
Francis X. Carroll, Thomas R. Cassano, Stephen E. Cavanaugh, Ferdinand
J. Ciccarelli, John F. Collins, William B. Collins, Anthony J. Colucci, Jr.,
Robert B. Conklin, Robert N. Convissar, Edward C. Cosgrove, Peter L.
Costa, Paul Crapsi, Jr., Douglas S. Cream, Hon. John T. Curtin, Steven P.
Curvin, Roger T. Davison, Dennis J. Dee, John M. Dempsey, Richard F.
DiGiacomo, Anne C. DiMatteo, Robert G. DiVita, David A. Doll, Dean M.
Drew, Hon. Timothy J. Drury, Marvin T. Dubin, Robert E. Dwyer, Donald B.
Eppers, Leo J. Fallon, Victor N. Farley, Mark G. Farrell, Gabriel J. Ferber,
Michael E. Ferdman, Robert P. Fine, Peter J. Fiorella, Jr., Brian P. Fitzgerald,
Thomas P. Flaherty, Richard E. Forrestel, Sherwood E. Freed, Jeffrey M.
Freedman, Maryann Saccomando Freedman, Robert Friedman, John J.
Fromen.
Thomas J. Gaffney, Arnold B. Gardner, William H. Gardner, Eugene M.
Gaughan, Stuart A. Gellman, Robert M. Goldstein, Wayne R. Gradl,
Josephine A. Greco, Hon. Samuel L. Green, John C. Grennell, Richard F.
Griffin, John J. Gruber, Mark W. Hamberger, F. Bernard Hamsher, Barbara
Ellen Handschu, Thomas J. Hanifin, James P. Harrington, John E. Haslinger,
Mary Louise Hayden, Herbert J. Heimerl, Jr., William R. Hites, Susan S.
Hogan, Edwin P. Hunter, Melvyn L. Hurwitz, David Jay, Norman E. Joslin,
James B. Kane, Jr., Judith D. Katzenelson, Daniel L. Kaye, Christopher C.
Kerr, James J. Kirisits, William J. Kita, Wells E. Knibloe, Christian G. Koelbl
III, Dan D. Kohane, Ellen M. Krebs, Karl W. Kristoff, Thomas E. Krug.
Stephen R. Lamantia, John P. Lane, William E. Lawson, Richard J. Lehner,
William E. Leising, Martin G. Linihan, John N. Lipsitz, Richard Lipsitz,
Arthur A. Lorenzo, Harry E. Lorenzo, William J. Love, Jr., Leo M. Lynett, Jr.
James L. Magavern, Irving C. Maghran, Jr., Mark J. Mahoney, Arthur J.
Maloney, Richard C. Marcus, John Markarian, Mary Dee Martoche, Hon.
Salvatore R. Martoche, Maureen A. McCready, Thomas I. McElvein, Jr.,
Diane J. McMahon, Hon. John A. Michalek, Raymond T. Miles III, Hon.
Joseph D. Mintz, Albert J. Mogavero, Richard E. Moot, Peter J. Murrett, Jr.,
Arthur F. Musarra, Joseph M. Nasca, James M. Nesper, Paul T. Nesper,
Stephen M. Newman, John P. Noble, Anthony M. Nosek, James J. O’Brien,
Thomas E. O’Brien, Robert L. O’Connell, Denise E. O’Donnell, Hon. John F.
O’Donnell, Timothy M. O’Mara, Francis J. Offermann, Jr., William J.
Ostrowski.
Carl P. Paladino, Frank R. Papa, Thomas C. Pares, James A. Partacz, Robert
E. Pearman, Hon. Erin M. Peradotto, Robert H. Perk, Jeffrey A. Perla, Jr.,
Joel M. Poch, Francis B. Pritchard, Samuel G. Puleo, Theodore J. Pyrak,
William T. Quigley, James P. Renda, Mary K. Roach, Earl T. Robinson III, Jay
N. Rosenthal, Marcella Rosinski, Hon. Mario J. Rossetti, Victor A. Rossetti,
Richard P. Rosso, Arthur J. Rumizen, Ross L. Runfola, Louis J. Russo,
Thomas Santa Lucia, Edward J. Schwendler, Jr., Richard B. Scott, Eugene
M. Setel, Donald P. Sheldon, Richard J. Sherwood, Irving M. Shuman,
David Siegel, Louis H. Siegel, Myron M. Siegel, Robert G. Sillars, Richard
Charles Slisz, Charlotte Smallwood-Cook, Oscar Smukler, Isadore Snitzer,
Robert B. Sommerstein, Christopher A. Spence, Gregory Stamm, Robert S.
Stephenson, E. W. Dann Stevens, David G. Stiller, Milton J. Strebel, David
L. Sweet.
Dominic J. Terranova, Phillip A. Thielman, Gordon D. Tresch, Daniel G.
Tronolone, Thomas V. Troy, Frederick D. Turner, Dimitri J. Tzetzo, Peter A.
Vinolus, Joseph C. Vispi, Coleman Volgenau, Dale M. Volker, Matthew X.
Wagner, Jr., James R. Walsh, John B. Walsh, Neil Weinberg, Peter C. Wiltse,
Douglas L. Winokur, Wayne D. Wisbaum, Raymond V. Wylegala, Richard D.
Yellen, George M. Zimmermann, H.A. Terri Zionts.
To Other Bar Associations
We are reaching out to bar associations throughout
our state, our country, and even internationally. We are
sharing our lawyer assistance programs. Our Unlawful
Practice of Law Committee is helping establish similar
committees in other associations around the state, from
as far away as Nassau County. Our former chair,
Nancy Langer, has been named NYSBA chair, and will
be holding a conference here for us to teach other bars
about the role of UPL to benefit and protect their
members.
I know, I sound like a broken record about these topics (translation to younger members: a record was a
large disc upon which only one song was imprinted,
and if it became scratched or cracked, it kept repeating
the same phrase over and over until someone stopped
the record)…but it’s my job to point out who our
heroes are. Many lawyers show up everyday in the
trenches to fight the good fight for others, without getting the big paycheck, simply because it’s the right
thing to do. They are our conscience in action. They
are the lawyer heroes to whom we should look. We are
too frequently the poster child for greed and selfishness. It’s time to “go positive” about what lawyers do.
It starts inside this organization and works outward to
the public.
To Institutions
We are reaching out to UB Law School to offer help
with the Human Rights Center. We are offering to
sponsor a conference of all interested parties regarding
the potential relocation of the law school itself. We are
also offering law student members the opportunity to
participate in our committee meetings.
Reaching Out to Each Other
To Our Community
Besides all the events you are familiar with, the Bar
Association is creating a new event in an attempt to
bring us closer together. We are hopeful that our first
Lawyers Art Exhibit will be held at the County
Courthouse in April. We want as many members as
possible to exhibit their creative side. It is my hope that
we will eventually include music, poetry and more.
Other things we are working on include our popular
ongoing events such as the President’s Ball (see article
on page 1), which will be held for the first time at the
new Burchfield Penney Art Center. Watch this space for
updated information on Law Day competitions and
events, mock trial competitions throughout WNY high
schools, the Erie County Bar Foundation, diversity
Other things we are working on may initially appear
to be unrelated but they all contribute to a common
goal. By helping the public legal services programs survive the economic crisis, we are working for the good of
our community. We are fighting for their survival. How
do you sufficiently recognize the people who work for
LSED, VLP, NLS, and Legal Aid, among others, for
their sacrifices and their social conscience? How do you
keep their spirits up? How do you get them paid when
the money for real human needs dries up or is given to
others?
We want to enlighten the public about the many
lawyers who do public service or pro bono work. What
continued on page 4
Letters to the editor and short articles of general interest to our readers are always
welcome. All materials submitted for publication in the Bulletin are subject to editing
for reasons of style, space and content.
Send all submissions as Word documents to obrian@eriebar.org (preferred) or by mail
to: Bulletin Editor, 438 Main Street, Sixth Floor, Buffalo, NY 14202.
•
DEADLINE
•
•
March 2009 Bulletin D E A D L I N E
•
•
•
The next deadline for ALL Bulletin contributors and advertisers is
Friday, February 6, 2009.
Call Susan Kohlbacher at Bar Headquarters for more information, 852-8687.
PAGE 3
February 2009 | www.eriebar.org
Annual Supreme Court
Admissions Scheduled
bench and bar in the news
This “members only” column is published
each month to share news and information
among BAEC members. Submissions should be
limited to 100 words and will be edited for space
and other considerations.
Bench & Bar in the News is reserved to
announce items such as: new members of a law
firm; name change or relocation; formation,
merger, or new affiliation of law practice(s);
change in job status; and professional appointments, honors, or awards. Announcements
which do not fall into these categories may be
published in the Bulletin as paid advertisements.
Paul F. Jones, a partner with
Phillips Lytle LLP, was named 2008
Defense Trial Lawyer of the Year by the
Defense Trial Lawyers of Western New
York and the recipient of the Robert M.
Kiebala Memorial Award. The award is
given to an attorney who “promotes
Jones
the highest standard of trial conduct
through member education and advocating the defense
position in civil cases.” Jones is a founding member, former director and president of the group.
Richard F. Griffin, counsel to
Kavinoky Cook LLP, has been named
to the Steering Committee for the
25th Anniversary Celebration of the
Best Lawyers in America, to he held
next April in Atlanta, Georgia. Griffin
is one of 62 lawyers selected for the
Griffin
committee. The event will honor
1,397 lawyers from the United States who have been
listed in Best Lawyers since its first publication in
1983. Griffin is listed in the fields of alternative dispute
resolution, commercial litigation, personal injury litigation and product liability litigation, and is himself
among the 1,397 lawyers to be recognized.
Hon. Joseph S. Mattina, Retired
Supreme Court Justice and
Surrogates Court Judge, has been
reappointed to a three-year term on
the board of directors of the Roswell
Park Cancer Institute by Senate
Majority Leader and President Pro
Mattina
Tem, Dean G. Skelos. Mattina currently serves as chief executive officer of Counsel
Financial Services in Williamsville and as an adjunct
professor at the University at Buffalo.
DePaolo
John P. DePaolo of the Bouvier
Partnership, LLP has been elected to
a three-year term as director of the
Defense Trial Lawyers Association of
Western New York. DePaolo is a trial
attorney who has been admitted to
practice in Massachusetts and New
York since 1990. He has been with
the Bouvier Partnership since 2001.
Cohen & Lombardo, a 70-year-old law firm based in
a historic home designed by E.B. Green on Elmwood
Avenue in Buffalo, has opened a satellite office located at
4140 Sheridan Drive in Amherst. This marks the first suburban office for the firm, which has had its sole office in
the city since its inception in 1939. The new location is
expected to offer more convenient access to the firm’s suburban clients and currently employs three full time staff
members, with plans to hire additional lawyers and office
staff in the near future.
John J. Jablonski, a partner at
Goldberg Segalla LLP, co-authored
an article entitled “A Litigation
Necessity: Electronically Stored
Information (ESI) Review Tools,”
published in the Defense Research
Institute’s October 2008 issue of For
Jablonski
The Defense. Jablonski consults with
Fortune 500 companies about pre-litigation planning,
record retention policies and implementation of legal
holds.
Steve Suneson has been named a
partner at Kavinoky Cook LLP.
Suneson has been practicing law
since 2000 and joined Kavinoky
Cook LLP as an associate in 2004.
His areas of practice include corporate planning and governance, corSuneson
porate finance, mergers and acquisitions, commercial contracts and other general corporate law.
“Observing oral arguments at the Supreme Court” is
the number one alternative for “expanding the mind
and improving one’s practice,” according to
Washington Lawyer magazine. The United States
Supreme Court is “distinctly American in concept and
function,” as former Chief Justice Hughes observed,
noting that it is only very rarely that one can observe
an entire branch of the federal government in action.
The Bar Association of Erie County has been organizing and scheduling in-person admissions to the
United States Supreme Court Bar for several years. Bar
Association members are admitted in open court before
all nine justices and listen to oral argument.
Participants routinely express a high degree of satisfaction with the program and consider it to be a very valuable experience.
This year’s excursion to Washington, D.C. is set for
Monday, April 20, 2009. Interested applicants must
be admitted to practice for three years, free from any
adverse disciplinary action, and sponsored by two
members of the U.S. Supreme Court Bar. A $200 fee is
required. Those interested in participating are encouraged to contact Dennis J. Bischof, program coordinator,
at 630-6500.
Further details are available at:
www.Supremecourtus.gov (Information)
www.supremecourtus.gov/bar/barapplication.pdf
(Application)
www.supremecourtus.gov/bar/barinstructions.pdf
(Instructions)
www.NYCourts.gov/AD4
(Certificate of good standing)
Supreme
Court
Justice
Christopher J. Burns recently
delivered the keynote address to the
U.S. Army 277th Quartermaster
Company at its annual Military Ball.
Based in Niagara Falls, the members
of the unit have served in Iraq and
Burns
Afghanistan. Burns’ speech focused
on the theme of civilian recognition and appreciation of
the soldiers’ sacrifice in the performance of their duties.
Kyle C. DiDone has joined the Buffalo law firm of
Rupp, Baase, Pfalzgraf, Cunningham & Coppola
LLC. Marco Cercone and Johanna Dash have
been named partners with the firm. A graduate of the
University at Buffalo Law School, DiDone practices in
the areas of commercial litigation and collections law.
Cercone is a litigation attorney who focuses on commercial and first-party litigation. He also received his
J.D. from the University at Buffalo Law School. Dash
is a litigation attorney who focuses her practice
on insurance coverage and insurance defense.
She received her J.D. from the Syracuse University
School of Law.
The Company of
Lawyer Referral
& Information Service
More than 5,000 new clients
are referred to members
of the LRIS each year.
If you’re not already a member, call
852-3100 today to become one.
The Lawyer Referral & Information
Service…one more way
that the Bar Association is good
for your practice.
The Erie County Bar Foundation exists
to provide a helping hand to lawyers in need.
The need may be based on medical problems,
job loss, emotional difficulties, family
crises or many other situations. No person
or problem is categorically excluded.
If you need assistance – or know a friend
or colleague who does – please call Kelly
Bainbridge at 628-4892. All services are
individualized and completely confidential.
It’s great to belong to something this good.
PAGE 4
citations
awareness, and the list goes on … our fantastic staff
can accomplish just about anything.
By Jeff Spencer
EXPIRATION ELABORATION
The Court of Appeals has held that an employee contract expired by its own terms, and that the employee
became an “at will” employee not protected by the
terms of the contract. (Goldman v. White Plains Center
for Nursing Care, LLC, et al., 11 NY3rd173, 867
NYS2nd 27, 10/16/08)
VACCINATION DEFENSE VICTORIOUS
A medical malpractice suit based upon conditions
arising out of a child’s vaccination has been dismissed
based upon the National Child Vaccine Injury Act,
which protects those who administer vaccines to children. (Crucen v. Leary et al., __AD3rd__, 867 NYS2nd
49, 10/30/08)
ASSAULT SUIT GETS BOOT
Plaintiff failed to establish that her assailant was an
intruder who gained entrance to defendant’s building
through a negligently maintained entrance. (Schuster v.
Five G. Associates, LLC, et al., __AD3rd__, 867
NYS2nd 65, 11/6/08)
COURT WON’T BEND ON LEAVE TO AMEND
Leave to amend a complaint was denied where the
plaintiff failed to give a reasonable excuse for the delay.
(Brooks v. Robinson, __AD3rd__, 867 NYS2nd 133,
11/5/08)
SETTLEMENT AUTHORITY SACKED
An attorney was found to have lacked authority to
enter into a settlement with the insurance company
and the general release and stipulation of discontinuance were vacated. (Blakney v. Leathers, __AD3rd__,
867 NYS2nd 145, 11/5/08)
TIME LINES REFINED
An action based on alleged faulty construction or
design of a lighting project accrued upon the completion of the construction, and not when the injury
occurred or when the defect was discovered. (Heritage
Hills Society, LTD. v. Heritage Development Group,
__AD3rd__, 867 NYS2nd 149, 11/5/08) A cause of
action on a promissory note payable in installments
accrues on the date of each installment. (SCE v. ACH,
__AD3rd__, 867 NYS2nd 140, 11/5/08)
FIB WON’T FOIL RECOVERY
An employee’s submission of a fraudulent Social
Security card will not preclude the worker from recovering damages for lost wages as a result of a workplace
accident. (Coque v. Wildflower Estates Development,
__AD3rd__, 867 NYS2nd 158, 11/12/08)
ARBITRATION ELEVATION
The standards for vacating an arbitrator’s award are
concisely reviewed in Mtr. of Teamsters Local 814 v.
County Van Lines, Inc., __AD3rd__, 867 NYS2nd 190,
11/12/08.
DEALING WITH DISCOVERY DEFICIT
Striking a pleading for failure to disclose is appropriate only where the failure to comply was willful and
contumacious. (Comprehensive Care of New York, P.C.,
v. Manuel A. Romero, P.C., __AD3rd__, 867 NYS2nd
207, 11/12/08)
SLIP TIPS AND STUMBLE BUMBLES
A pedestrian’s case alleging a trip over a utility’s sidewalk metal grating was dismissed in Di Sanza v. City
of New York. (11NY3rd 766, 867 NYS2nd 26)
Factual issues precluded summary judgment where
plaintiff allegedly slipped on snow and ice. (Figueroa v.
West 170th Realty, Inc., et al., __AD3rd__, 867
NYS2nd 86, 11/13/08)
A claim base on an alleged trip on a wheel stop in a parking lot was dismissed, the court noting that it was readily
observable. (Giambruno v. Wilbur F. Breslin Development
Corp., __AD3rd__, 867 NYS2nd 202, 11/12/08)
MATRIMONIAL MERRY-GO-ROUND
A mother was not required to present the father with
a formal demand for child expense reimbursement
where said procedure was not set forth in the parties’
Separation Agreement. (Brink v. Brink, __AD3rd__,
867 NYS2nd 94)
A 1099 tax form was improperly issued to former
wife for her share of husband’s commissions pursuant
to equitable distribution. (Sorrentino v. Pearlstein,
__AD3rd__, 867 NYS2nd 113)
DEED DOWNFALL
Trial court’s finding that transferor may have signed the
deed, but did not intend to transfer the property was
upheld by the Appellate Division in Olympus Servicing,
L.P. v. Lee et al., __AD3rd__, 867 NYS2nd 196.
There are so many new things and old things that we
are doing that make me think that there is nothing we
can’t take on. But of course, there are limits. Hence, the
feeling in my stomach. The real limit is your interest
and participation in all of these activities. They are for
you and your fellow lawyers. So once again, I ask [see
“broken record”], let us know what you think. Who
cares what I think? Give us your ideas or complaints or
whatever. Show up! Participate and get to know your
multi-faceted colleagues. They are great people to
spend time with. They are smart; they are funny; they
are good-hearted real people…just like you. It just
might help to make being a lawyer in western New
York a little better. Just a little.
Once we do that, I can stop sounding like a broken
record and get rid of this feeling in my stomach. [B]
PAGE 5
PUBLIC EMPLOYEES
western district case notes
By Paul K. Stecker and Kevin M. Hogan
EMPLOYMENT LAW
In Gordon v. Kaleida Health (08-CV-378S,
11/25/08) and Hinterberger v. Catholic Health System,
Inc. (08-CV-380S, 11/24/08), employees of two health
care systems brought nearly identical claims against
their employers under the New York Labor Law
(“NYLL”) and the Fair Labor Standards Act (“FLSA”)
seeking unpaid wages and overtime pay resulting from
various workplace policies. The defendant employers
moved to dismiss on the grounds that plaintiffs’ complaints did not satisfy the pleading requirements of
Rule 8, Fed. R. Civ. P.; that Section 301 of the Labor
Management Relations Act (“LMRA”) preempted the
NYLL claims and precluded the FLSA claims by reason of the parties’ collective bargaining agreements;
and that plaintiffs were precluded from bringing a class
action because New York law does not permit recovery
of penalties in a class action.
The court granted the motion in part and denied it
in part, holding first that plaintiffs had satisfied Rule 8
because the complaint specifically referenced the
NYLL and the FLSA and the employers’ policies at
issue. Although Section 301 of the LMRA preempts
state law claims based solely on rights created by collective bargaining agreements, the court held that
plaintiffs’ claim that they worked during unpaid lunch
periods was based on an independent statutory right
under the NYLL, but that plaintiffs’ claims for unpaid
wages and overtime based on work before or after regular shifts or for training had no independent basis in
the NYLL and thus were preempted by the LMRA.
The court found no similar preclusion of the FLSA
claims arising under the defendants’ workplace policies
because the FLSA confers independent statutory rights
to wages and overtime for all of the workplace scenarios alleged in the complaints. Finally, the court held
that, although the NYLL provides for liquidated damages (or penalties) that are prohibited in a class action
under CPLR 901(b), plaintiffs could still bring a class
action so as long as they waived their claims to such
damages and provided notice to potential members of
the class of their right to opt out in order to pursue a
liquidated damages claim.
ERISA
In Vonhagn v. Corning Incorporated (06-CV-6469L,
11/25/08), the court granted defendants’ motion for
summary judgment upholding as not arbitrary and
capricious a plan administrator’s determination that
plaintiff was not entitled to short-term disability benefits. Among other issues addressed in the decision, the
court held that the administrator could rely on the
opinion of an independent medical reviewer who had
not examined the plaintiff, even though the reviewer’s
opinion conflicted with that of her treating physician.
NEGLIGENT MISREPRESENTATION
In Ridge Seneca Plaza, LLC v. BP Products North
America (06-CV-6333CJS, 12/15/08), a shopping
plaza owner sued an environmental engineering firm
that had prepared a Phase I environmental assessment
report. The engineering firm had contracted with and
performed the review for a prior prospective purchaser
of the shopping plaza who subsequently assigned its
purchase contract to plaintiff and supplied the plaintiff
with a copy of the report. The court granted the engineering firm’s motion for summary judgment dismissing plaintiff’s claims for negligence and professional
malpractice because the plaintiff did not allege facts
showing that it had either actual privity of contract
with the engineering firm or a relationship so close as
to approach that of privity.
In Kamholtz v. Yates County (08-CV-6210, 12/3/08),
the court granted a motion to dismiss by the county
and county officials who were sued by a sheriff’s
department investigator. Among other holdings, the
court dismissed plaintiff’s First Amendment retaliation
claim on the ground that statements he made during a
staff meeting related to the scope of his employment
and were not protected speech by a citizen on a matter
of public concern; dismissed plaintiff’s “class-of-one”
equal protection claim on the ground that such claims
are unavailable to public employees; and dismissed
plaintiff’s §1983 claim on the ground that no constitutional violation was committed against him.
[B]
PAGE 6
tax notes
By Gary D. Borek
Taxes & Divorce: The Alimony Deduction
The rules seem simple enough. The payor of alimony
can deduct it on his or her federal income tax return.
The recipient of alimony must include it as income on
his or her tax return. Child support payments are not
deductible by the payor and are not includible in the
recipient’s income for federal tax purposes.
When the parties take inconsistent positions on their
respective income tax returns, the IRS will open an
audit of the tax returns of both parties. With respect to
deductions for alimony, the IRS routinely claims both
parties are in error by denying the deduction claimed
by the payor and also including the payment in the
gross income of the recipient. In those “whipsaw” situations, if both parties appeal to the Tax Court, then the
IRS claims it is a mere stakeholder and allows the parties to fight it out in a consolidated case. The Internal
Revenue Manual even provides that the IRS might file
appeals in both cases if the losing party in the Tax
Court files an appeal. See Internal Revenue Manual §
36.2.6.2.3.3 (08-11-2004). Inevitably, the Tax Court
renders several dozen decisions each year dealing with
the alimony, child support, and property settlement
distinctions and the resulting tax consequences.
The Controlling Statute
IRC § 215(a) allows a deduction for alimony paid by
a taxpayer. IRC § 71(a) states that gross income
includes alimony received by a taxpayer. For purposes
of both sections 215(a) and 71(a), alimony is defined
by IRC § 71(b)(1) as any cash payment if:
(A) such payment is received by (or on behalf of)
a spouse under a divorce or separation instrument,
(B) the divorce or separation instrument does not
designate such payment as a payment which is
not includible in gross income under this section
and not allowable as a deduction under section
215,
(C) in the case of an individual legally separated
from his spouse under a decree of divorce or of
separate maintenance, the payee spouse and the
payor spouse are not members of the same household at the time such payment is made, and
(D) there is no liability to make any such payment
for any period after the death of the payee spouse
and there is no liability to make any payment (in
cash or property) as a substitute for such payments after the death of the payee spouse.
IRC § 71(b)(1)(A) - Payments Under
a Matrimonial Document
To qualify as alimony, the payment must be made
under a divorce or separation instrument. See IRC §
71(b)(1)(A). See also § 71(b)(2) which defines
“divorce or separation instrument.” This requirement
was at issue in Crompton v. Commissioner, T.C.
Summary Opinion 2008-102 (08-13-2008) in which
the taxpayer deducted alimony payments he made to
his ex-spouse after she had re-married. His ex-spouse
did not include those payments in her gross income.
The controlling state law (Delaware) provided that
the obligation to make alimony payments ceased on the
re-marriage of the recipient. The taxpayer was not
aware that his ex-spouse had remarried. The IRS took
the position that all alimony payments made by the
taxpayer after the re-marriage of his ex-spouse did not
qualify as alimony under IRC § 71(b) because they
were no longer required by the divorce decree in accordance with state law.
The court held for the taxpayer on the rationale that
it would not delve into the validity of the obligation to
make the stated alimony payments. The court ruled
that it was sufficient that the divorce decree required
those payments to be made, even if such a requirement
had become unenforceable due to the re-marriage of
the recipient ex-spouse.
IRC §71(b)(1)(B) - Designation
as Non-Alimony
IRC § 71(b)(1)(B) allows the parties or the court to
designate as “non-alimony” payments that might otherwise qualify as alimony. Although such a designation
need not mimic the statutory language to effectuate
such a designation, it must be a “clear, explicit, and
express direction.” See Estate of Goldman v.
Commissioner, 112 T.C. 317, 323 (1999), affd. without published opinion sub nom. Schutter v.
Commissioner, 242 F.3d 390 (10th Cir. 2000).
In Proctor v. Commissioner, 129 T.C. 92 (2007) the
taxpayer deducted as alimony the payments he made
to his ex-spouse from his retirement pay. The payments
were specified as a “property settlement” in the divorce
decree, but they otherwise qualified as alimony payments under IRC §71(b)(1). The IRS argued that the
designation as a “property settlement” was sufficient to
designate the payments as non-alimony under IRC §
71(b)(1)(B). The Tax Court disagreed on the rationale
that labels attached to payments are not controlling,
and that merely designating payments as a “property
settlement” was not a sufficiently “clear, explicit and
express designation.”
In Fields v. Commissioner, T.C. Memo. 2008-207
(08-28-2008), the divorce agreement stated that the
payments at issue would be “tax free” to the recipient.
Although the court held that the payments at issue
were a property settlement rather than deductible
alimony, the court did not rely solely on the “tax free”
designation. The court also looked to the entire structure of the agreement to determine that the payments at
issue were a property settlement rather than alimony.
In light of cases like Proctor and Fields, the only way
to insure that IRC § 71(b)(1)(B) will be given effect is
to mimic the language of the statute and perhaps refer
directly to the statute. Thus, if the recipient expects
payments to be received tax free then he or she should
insist that the decree state “the forgoing payments are
not to be includible in gross income of the recipient
under IRC § 71 and are not allowable as a deduction
to the payor under IRC § 215, in accordance with IRC
§71(b)(1)(B).”
IRC § 71(b)(1)(C) - Separate Households
IRC § 71(b)(1)(C) excludes from the definition of
alimony payments made between spouses who are living in the same household. For example, in Ohrman v.
Commissioner, T.C. Summary Opinion 2008-123
(2008), the taxpayer was denied an alimony deduction
because he continued to live in the same house as his
ex-spouse while paying her alimony under a decree of
separate maintenance.
The “same household” rule, however, does not apply
to alimony paid in accordance with a mere separation
agreement. For example, in Benham v. Commissioner,
T.C. Memo. 2000-165, the taxpayer and his spouse
entered into a separation agreement while their divorce
action was pending. Under the separation agreement
the taxpayer was allowed to continue living in the marital residence and was required to pay his wife monthly alimony of $2,000 and monthly child support of
$700. The IRS audited his return and disallowed the
deduction for the alimony payments because he was
living in the same household during the years at issue.
The court, however, sided with the taxpayer, pointing out that IRC § 71(b)(2)(C) did not apply to taxpayers with mere separation agreements:
A payment may be “alimony” if it is a cash payment “under a divorce or separation instrument.”
Sec. 71(b)(1)(A). A divorce or separation instrument can be any of three types: (1) A decree of
divorce or separate maintenance; (2) a written
separation agreement; or (3) a decree requiring
payments for support or maintenance, other than
a decree of divorce or separate maintenance. See
sec. 71(b)(2). The separate household requirement of section 71(b)(1)(C) applies by its terms
continued on page 8
PAGE 7
lost in (techno) space
By Martha Buyer
Cybersquatting and Number Hoarding
Not everything associated with new technology is
new (or good). Just before Christmas, a judge in the
U.S. District Court for the Northern District of
California issued a decision awarding Verizon a whopping $33.15 million default judgment against
OnlineNIC, a company whose business is as a registrar
of domain names, for cybersquatting.
“Cyber-what?????????” I hear you asking yourself.
Cybersquatting, according to dictionary.com, is the
registration of a commercially valuable Internet
domain name, as a trademark, with the intention of
selling it or profiting from its use. For example, if someone secured the domain name (the part of the Web
address between www. and .com or .org,)
www.marthabuyer.com, not because he or she had any
ties or plans to use it, but strictly for the purpose of selling it to me, the person who secured the Web address
would be guilty of cybersquatting (In fact, I own the
domain name, and use it).
Glossing over? Stay with me for a few more paragraphs before you start scanning for weekly condo
rentals in Belize.
Cybersquatting has been illegal since 1999, when the
Anti Cybersquatting Consumer Protection Act (ACPA)
was passed and signed into law. (It is codified at 15
U.S.C. 1125 (d)). The purpose of the law is to provide
owners of trade and service marks with toothy legal
remedies against defendants who obtain domain
names that are either secured “in bad faith” or “for
profit” that are either identical or sufficiently close to
existing trade and service marks so as to create confusion or diminish the value of those [existing] marks.
Under the Lanham Act as amended, (15 U.S.C.
§1125 et seq.) these three circumstances must be present in order for a violation to occur:
• The trademark owner’s mark must be unique and
famous;
• The person who owns the domain name which
includes or implies the mark must have acted in
bad faith to profit from the mark; and
• The domain name and trademark must be either
identical or confusingly similar.
Key phrases here include “bad faith” and “to profit.”
It was the obligations of these terms that cooked
OnlineNIC’s Christmas geese – all 663 of them! The
current case, officially known as Verizon v. OnlineNIC,
No 5:2008cv02832 (N.D. Calif.), involved OnlineNIC’s
registration of 663 domain names which were either
identical or fiercely similar to names which are covered
by Verizon trademarks. Included among those domain
names which OnlineNIC registered were “myverizonwireless.com,” “verizononline.com,” and “iphoneverizonplans.com,” among 660 others. The damages
assessed were based on a fine of $50,000 per violation.
In addition, according to one source, Online NIC has
close to 900,000 domain names that resemble the
names of well known companies and products.
The problem was not that OnlineNIC had registered
these domain names incorrectly, but rather that it did
so in clear violation of existing trademark law. Given
the few domain names that were cited previously in
this note, it is obvious that since Verizon’s trademarks
are clearly valuable to Verizon, OnlineNIC, among others who have taken similar actions with other wellknown corporate monikers, sought to use at least some
of the domain names it registered for profit, in clear
violation of the Lanham Act.
Owning Domain Names for Sales Purposes
Poses Risks
While it remains unlikely that Verizon will collect any
of its court-awarded $33.15 million, the fact that a
default judgment was entered against OnlineNIC, coupled with the apparent great lengths that the defendant’s owners and employees have gone to provide
false contact information to the registrar of domain
names (clearly reflecting bad faith), the decision should
put a chill down the spine of any individuals whose
business has been built upon ownership of domain
names acquired for the sole purpose of selling them to
an entity whose name or products are frightfully similar to the domain name in question.
Although addressed under a different set of rules and
regulations, the sale of vanity toll-free numbers is also
illegal. So as much as you may want to have 1-800BFLOBLS dial into your call center, and as much as
PAGE 8
Tax Notes
only to an individual legally separated under a
decree of divorce or of separate maintenance.
The court also pointed out that the IRS regulations
contemplated this distinction:
If the spouses are not legally separated under a
decree of divorce or separate maintenance, a payment under a written separation agreement or a
decree described in section 71(b)(2)(C) may
qualify as an alimony or separate maintenance
payment notwithstanding that the payor and
payee are members of the same household at the
time the payment is made.
See 26 CFR § 1.71-1T.
IRC § 71(b)(1)(D) - Termination on Death
The fourth and final requirement of IRC § 71(b)(1)
is the “termination on death” provision of IRC §
71(b)(1)(D). It is not a “termination on remarriage”
requirement. It only requires termination on the death
of the recipient. Payments that continue after the death
of the payor can still qualify as alimony.
More importantly, the termination at death requirement can be met by either a provision in the divorce
instrument or by operation of law. There was a time
when the law required that the termination of death
requirement be specified in the divorce instrument but
in 1986, Congress amended IRC § 71(b)(1)(D) to
remove the requirement that a divorce instrument
expressly state that the liability terminates upon the
death of the payee spouse. See Tax Reform Act of 1986,
Pub. L. 99-514, sec. 1843(b), 100 Stat. 2853.
Consequently, IRC § 71(b)(1)(D) is satisfied if the liability ceases upon the death of the payee spouse pursuant to a divorce instrument or by operation of law.
ment to payments between them. Leaving the tax
issues of alimony, child support, and property settlements out of the divorce instrument merely imposes
additional costs on the parties that could be avoided by
addressing those issues in the divorce instrument.
For example, in the Proctor case cited above, the
alimony payments at issue were to be made from the
taxpayer’s military retirement benefits in accordance
with the Uniformed Services Former Spouses’ Act.
That act provides that such payments terminate on the
death of the recipient spouse. Therefore, those payments met the termination on death requirement of
IRC § 71(b)(1)(D).
The divorce instrument should also provide for
recovery of expenses when a party incurs expenses
because of another party’s failure to follow the specified tax characterizations of the divorce instrument.
This most often happens when one party treats a payment inapposite to the terms of the divorce instrument,
thereby causing the IRS to commence an audit of both
parties’ tax returns. If the IRS treats the situation as a
“whipsaw” then the innocent party might need to proceed to the Tax Court (and maybe even on to an appeal
to the Circuit Court of Appeals) to protect his or her
interests.
[B]
In contrast, in Stedman v. Commissioner, T.C.
Memo. 2008-239 (10-27-2008), the taxpayer was
ordered to pay his ex-spouse’s attorney’s fees through
monthly payments from his Civil Service Retirement
System benefits. The IRS disallowed the taxpayer’s
claimed alimony deduction for those monthly payments. The divorce decree was silent as to whether
such payments would terminate on the death of the
recipient spouse. Although the court could find no
definitive answer in the applicable state law, it concluded that it was more likely than not that payment of
an award of attorney fees would not terminate on the
death of the ex-spouse, and thus such payments were
not deductible as alimony.
CONCLUSION
The computer age has given the IRS the ability to
quickly and easily cross check the tax returns of exspouses to determine if they are giving consistent treat-
Plans Underway for Statewide Mock Trial Tournament
By Melissa A. Foti, Chair
Young Lawyers Committee
As most of you are aware, the Bar
Association of Erie County is once
again participating in the statewide
high school mock trial competition.
This year’s hypothetical problem is a
libel case involving a news story written by a high school student journalist who allegedly
defamed the school principal. A mandatory orientation
was held recently for this year’s participating schools.
Presenters at the meeting were: BAEC President Giles
Manias, Oliver Young and Craig Bucki on behalf of
NYSBA’s Law, Youth and Citizenship Committee’s
mock trial sub-committee, BAEC executive assistant
Sharlene Hall and myself.
Annually, we have had the participation of 34+ different teams. The first rounds of the competition are
initial preliminary competitions, followed by rounds
which eliminate half of the participating teams until
our region has only four teams remaining. Of those four
teams, one will progress to the New York state finals.
We will be looking for volunteers to judge the preliminary and final rounds.
Having participated as an attorney coach and a
judge in the past, I have found this program to be both
personally and professionally rewarding. I encourage
your involvement in this most worthwhile program. We
look forward to another successful year in bringing this
exceptional program to local youth. As always, thank
you for your support and participation.
On a final note, good luck to Sharlene Hall as we
wish her all the best with her new arrival! BAEC
Director of Development, Marie Boccio will be this
year’s staff mock trial coordinator while Sharlene is out
on maternity leave.
PAGE 9
Law Line Educates
Public on Legal Issues
Since 1997, The Law Line has engaged the
minds of thoughtful western New Yorkers who
tune in to WNED-AM (970) at 10:00 on
Saturday mornings. Host Mike Desmond talks
to lawyers and judges from our legal community on wide-ranging topics related to the law.
The program provides a valuable public service
that reaches about 4,000 listeners each week.
We appreciate the time that the following
members of our Association have taken to educate the public about legal matters by volunteering their time to appear on The Law Line.
Members are listed in order of appearance.
Charles Beinhauer and
Frank R. Vavonese
Crisis Planning – Assets Can
Always be Preserved
Daniel D. Shonn, Jr.
Guardianships, Health Care
Proxies and Living Wills
Jerome D. Carrel
Real Estate Transfers as a
Planning Tool
John F. Leone
Powers of Attorney
Joseph A. Ables, Jr.
Pre-Planning for Skilled Nursing
Care
The Law Line is underwritten by the Erie
County Bar Foundation and the Lawyer
Referral and Information Service of the BAEC.
If you would like to appear as a guest on the program, please contact Maureen Gorski at 8528687 or by e-mail at mgorski@eriebar.org.
What Does
Professionalism
Mean to YOU?
Professionalism rests on a foundation of
values that have marked the traditions of
our bar for generations. We want to hear
your thoughts, ideas and perspectives on
what professionalism means to you. Send
your letters to obrian@eriebar.org. The
letters will be published in a series of
Bulletin articles and possibly in a separate
booklet as well.
PAGE 10
Lost in (Techno) Space
Contributions to the Erie County Bar Foundation provide an excellent
vehicle for recognizing and honoring members of our profession.
there is someone who is dying to sell you that number
because he/she’s been looking for a taker for years, the
sale of a number is also clearly prohibited (See 15
U.S.C. 501). The practice of number hoarding and
brokering is a clear violation of FCC rules, and the
entity attempting to sell the vanity number has no
more right to sell it than it does to that shiny new car
in your neighbor’s driveway. What’s particularly interesting is that there is no penalty for the purchase of a
toll-free vanity number. It’s the selling of the number
that poses the problem.
As such, if a client is approached by someone offering
to sell the client the vanity telephone number that he or
she has been dreaming about, perhaps the client needs
to get a life. Beyond that, however, in order to play by
the letter of the law, the attorney or client should advise
the seller to return the number to the available pool of
toll-free numbers. While the client will not be subject to
a penalty or sanctions for buying the number, the seller
is at considerable risk, particularly if the seller is offering the number under terms that the buyer, who could
blow the seller in to the FCC for hoarding, considers
onerous.
The enforcement mechanism (47 U.S.C. 501 et
seq.), which does have teeth, is applicable. However,
threatening the seller, or engaging in any conduct
which could be construed or perceived as even
remotely extortional, has severe implications for all
parties even though such conduct may not be per se
illegal. Phrases like “seller’s proposal has given the
buyer serious concerns about the propriety of the
transaction” suggest the severity of the situation, but
do not cross the line. Actual threats made by the buyer
regarding its intended actions as a consequence of
seller’s dealings could be extremely troublesome for
both the buyer and its agents.
In summary, it is illegal to sell domain names and
phone numbers. What’s new, particularly on the
domain name side, is that the sale - or the attempted
sale - can be very costly.
[B]
Memorial gifts to the Foundation become a lasting tribute to the entire
legal profession, as funds are used exclusively to assist attorneys and
promote understanding of our legal system.
The Foundation gratefully acknowledges
the following contributions:
In Honor of Melinda Saran,
Recipient of the Women Lawyers
of Western New York 2008 Woman
of the Year Award:
Lindy Korn
In Honor of Richard F. Griffin, upon
the occasion of his being named
Honorary Chair of the VLP & LSED
Anniversary Gala:
Maryann Saccomando Freedman
In Honor of the election of Tracey
Bannister as NYS Supreme Court
Justice:
Dan D. Kohane
Stephen R. Lamantia
In Memory of Marshall Freedman
(Brother of Jeffrey M. Freedman):
Raymond L. Fink
In Memory of Raymond J.
McNamara:
Mark R. McNamara
In Memory of John Cegielski:
Roger T. Davison
In Memory of John J. Cotter, Jr.:
Douglas P. Hamberger
James F. Granville
Joseph F. Saeli, Jr.
Mary Moorman Penn
Michelle Parker
Paula & Terry Newcomb
In Memory of Mark G. Hirschorn:
Alan Birnholz
Lynn & James Gauthier
Paul D. Pearson
Roger T. Davison
In Memory of Roy R. Cesar:
Christopher C. Willett
Thomas V. Troy
In Memory of Stanley Grossman:
Jennie M. Muscarella
In Memory of Adelbert
Fleischmann:
Coleman Volgenau
James N. Carlo
Peter J. Brevorka
Richard B. McCormick & Lindy Korn
In Memory of Alvin M. Glick:
Dennis P. Cleary
In Memory of J. Gregory Hoelscher:
Andrea L. Sammarco
Gerald T. Walsh
James F. Granville
Michelle Parker
In Memory of Charles F. Van
Volkenburg:
Coleman Volgenau
David Gerald Jay
David R. Pfalzgraf
Joel L. Daniels
Philip H. Magner, Jr.
In Memory of Martin P. Violante:
James F. Granville
In Memory of Paul Ivan Birzon:
Marilyn A. Hochfield
In Memory of Hon. David J.
Mahoney:
David J. Murray & Carrie L. Smith
Raymond L. Fink
Stephen R. Lamantia
Terry D. Smith
In Memory of Dolores Nicosia
(Wife of Frank Nicosia):
Stephen R. Lamantia
In Memory of Murray J. Grashow:
Sunil Bakshi
In Memory of Clarence E. Sprague:
Mark W. Warren
In Memory of Joan & John Condon:
Diane M. LaVallee
In Memory of my Father, Edward M.
Semple:
E. Michael Semple
In Memory of Hon. Norman J. Wolf, Jr.
(Father of Kristen Barnes, Brother of
Frederick Wolf and Michael Wolf):
Coleman Volgenau
Diane F. Bosse
Hon. James B. Kane, Jr.
James N. Carlo
Jim & Mary Shea
Roger T. Davison
Warren M. Emerson
In Memory of Robbie Lee Billingsley:
In Memory of William R. Brennan:
Geralyn A. Schiffler
Mark R. McNamara
In Memory of John E. Dickinson:
Hon. H. Kenneth Schroeder, Jr.
In Memory of Barbara Karalus
(Mother of Susan Karalus):
Eileen J. Katz
In Memory of my Father, Howard M.
Curran:
Hon. John M. Curran
In Memory of F. Lambert Haley:
Jim & Mary Shea
Philip H. Magner, Jr.
In Memory Hon. Frederick M.
Marshall:
John F. Canale
In Memory of my Parents, Thomas G.
Ralabate & Lena Ralabate:
Joseph M. Ralabate
In Memory of John L. Kirschner:
Lawrence J. Gallick
Raymond L. Fink
Stephen R. Lamantia
Terry D. Smith
In Memory of my Mother, Albertine
McCready:
Maureen A. McCready
In Memory of John T. “Jack” Frizzell:
Michelle Parker
Peter J. Battaglia
Roger T. Davison
In Memory of Edith Boller
(Mother of Hon. M. William
Boller):
Nesper, Ferber & DiGiacomo, LLP
Thomas I. McElvein, Jr.
In Memory of Hon. John A. Dillon:
Noralyn A. Dillon
In Memory of Frank Miller (Father
of Thomas Wojciechowski):
Paula & Terry Newcomb
In Memory of Donald Cook:
Richard Braden
In Memory of Michael J. Rooth:
Richard C. Pohlman
Stephen R. Lamantia
In Memory of W. Barry Mallon, Jr.:
Geralyn A. Schiffler
Susan J. Egloff
In Memory of John W. Condon, Jr.:
Roger T. Davison
Tracey J. Palmer
In Memory of Marie Rogers
Bernhardi:
William C. Bernhardi
In Memory of Francis Whitcher:
Thomas V. Troy
In Memory of Kevin P. Maloney:
Dennis P. Cleary
In Memory of Sam Perla:
Raymond L. Fink
In Memory of Arnold Weiss:
In Memory of Grover James:
Hon. H. Kenneth Schroeder, Jr.
In Memory of James S. Keysa:
Stanley Jay Keysa
In Memory of Helen Murdough,
Recipient of the Bar Association
of Erie County’s 1985 Special
Service Award:
Michelle Parker
In Memory of Alan J. Cooper:
Terry D. Smith
In Memory of Ann LoCicero (Wife
of Nicholas LoCicero):
Louis M. Cacciato
In Memory of Richard Kulick:
Ronald Willig
In Memory of Hon. Edgar
NeMoyer:
Kenneth A. Manning
In Memory of A. Watson Bray
(Brother of John R. Bray and
Uncle of Stephen N. Bray):
Mortimer & Maryanne Sullivan
In Memory of Anthony J. Hojnacki:
James D. Schultz, Jr.
PAGE 11
in the public service
By Robert M. Elardo, Managing Attorney
Volunteer Lawyers Project, Inc.
As 2008 drew to a close and 2009 began, a cruel
irony was hitting programs like the Erie County Bar
Association Volunteer Lawyers Project (VLP) and others that provide civil legal services to low income people. The economic downturn is affecting everyone.
People’s retirement accounts are shrinking at alarming
rates, there is a foreclosure crisis and too many people
are losing their jobs.
Everyone sees those effects. In legal services, though,
what we see is that increasing numbers of people qualify financially for our services (based upon 125 percent
of the poverty level). In addition, those who qualify for
our services have increasing numbers of legal problems
per person. They are losing their jobs and need help
with unemployment benefits. They are losing their
health insurance. They are not able to pay their bills
and are getting collection calls or being sued, getting
evicted or foreclosed, and may be considering bankruptcy.
Think about how financial problems can cause stress
in middle class families. Double or triple it for lowincome families. They end up with Family Court problems or divorce.
Everyone sees the huge government bailout for
banks and automakers, but where is the bailout for low
income people? Instead of a bailout, what we see is
New York state imposing cuts in some of our existing
contracts and not refunding others. The total New
York state funding cut in 2008-09 to legal services programs across the state stands at 55 percent less than
2007-08. The future looks even bleaker. Governor
Paterson announced a budget proposal in December
that includes NO funding for civil legal services.
Civil legal services providers face a stark reality.
Before the economic downturn and before the state
funding cuts, more than 80 percent of low-income New
Yorkers’ civil legal needs went unmet. Without immediate intervention, that already dismal number will continue to climb to even higher and more unacceptable
levels.
Another reason that cutting funding for legal services
does not make sense is that providing funding for civil
legal services is cost effective in at least three major
ways. First, according to data from the New York IOLA
Program, civil legal services programs in New York
generate almost 93 cents in client financial benefit for
every dollar of funding that the programs receive.
Become a
Contributing Member!
The BAEC bylaws confer “contributing member” status on any member who resides or maintains an office in
Erie County and elects to pay an additional $40 in annual
dues to help support Association programs. Contributing
members have the same rights and privileges as regular
members and “such additional rights and privileges as
the board of directors shall bestow,” including special
recognition in the Bulletin, annual dinner program and
other publications.
Second, not only is this an incredible return upon
investment, but putting extra money into the hands of
low-income people immediately stimulates a wide
variety of sectors of the local economy. Low-income
people cannot afford the luxury of saving. Peter R.
Orzag, Congressional Budget Office Director, wrote,
“To boost cost-effectiveness further, policymakers
would need to focus on lower-income households and
those with difficulty borrowing. The studies of the
2001 tax rebate suggest that such lower-income and
credit-constrained recipients increased their spending
substantially more than the typical recipient.”
Third, civil legal services programs generate millions
of dollars in state and local taxpayer savings by helping
clients to avoid homelessness (which puts people into
shelters); keeping kids out of the expensive foster care
system; and helping people to develop other income
sources so that they can avoid welfare benefits.
Please let our elected officials know that you believe
Pictured at the gala, left to right, are BAEC president Giles
P. Manias, LSED past president Gayle L. Eagan, LSED executive director Karen L. Nicolson and honorary chair of the
gala Richard F. Griffin.
the state should continue to fund civil legal services!
Also, please be generous when you hear from us this
spring when our 2009 Law Firm Fundraising
Campaign gets underway. All gifts are greatly appreciated during these challenging times.
LSED/VLP Anniversary Gala
The Volunteer Lawyers Project (VLP) and Legal
Services for the Elderly, Disabled or Disadvantaged
(LSED) held their joint anniversary gala at the Hyatt
PAGE 12
In the Public Service
Regency Buffalo. VLP was celebrating its 25th anniversary and LSED its 30th. It was a great success for both
programs and a lot of fun for all who attended.
Richard Griffin served as Honorary Chair of the
Gala. That was a great thrill for me since Dick had
been a driving force behind the creation of VLP 25
years ago. He was also on LSED’s first board of directors. Michele Sterlace-Accorsi was the chair of the event
and she worked tirelessly to make it a success.
It was a festive evening with great food, drink and
music. The headline act was John & Mary and the
Valkyries. They are internationally acclaimed local
musicians and they put on a wonderful show. The
opening act was also a local musician, 12-year-old
Erin Sydney Welch. She played a combination of original and cover tunes and executed them all beautifully
– sounding way beyond her tender years.
There were also many great auction items ranging
from Sabres’ tickets to original artwork. I want to
thank LSED for partnering with us on this event. We
also want to thank Phillips Lytle (Gold Sponsor) and
Hodgson Russ (Bronze Sponsor) for sponsoring the
event. Special thanks also go out to everyone who took
out an ad in the gala program and/or donated auction
items. For a complete listing of gala sponsors and
advertisers, please visit our Web site at
www.ecbavlp.com.
VLP Pro Bono Awards
Prior to the gala, VLP and LSED held a small joint
reception to recognize our current and prior presidents.
LSED paid tribute to Thomas Keefe, Gayle Eagan, R.
Peter Morrow, the late Hon. Elloeen Oughterson,
Lauren Rachlin, and Marshal Breger. VLP recognized
Philip Perna, Jean Powers, Katherine Bestine, Mark
Pearce, Howard Berger, Garry Graber, Linda
Kaumeyer, George Cownie and Richard Griffin.
VLP also presented 2008 Pro Bono Awards to the
following people and law firms:
Jennifer P. Stergion ~ Attorney of the Morning
(Landlord-Tenant)
Barbara R. Ridall ~ Bankruptcy
Keith B. Schulefand ~ Divorce
James C. DeMarco III ~ Family Court
Jill A. Apa ~ Immigration
Claire T. Sellers ~ In-House Volunteer
Phillips Lytle, LLP ~ Large Law Firm Award
Jeffrey Freedman Attorneys at Law ~ SmallMidsize Law Firm Award
Matthew B. Herdzik, Jr. ~ VLP V.I.P. Award
Mindy L. Marranca ~ VLP V.I.P. Award
I want to thank the award winners and everyone who
has assisted VLP and our clients. You can read more about
the award winners and their accomplishments by visiting
our Web site at www.ecbavlp.com.
[B]
Photos by Matt Chandler provided courtesy of Buffalo Law Journal
Hon. Sharon S. Townsend, left, and Richard F. Griffin, right,
congratulate David J. McNamara, managing partner with
Phillips Lytle LLP, on receiving VLP’s Large Firm Pro Bono
Award. Phillips Lytle was also a gold sponsor for the
event.
Former LSED president Thomas F. Keefe is pictured above
with BAEC president, Giles P. Manias, at left, and Richard F.
Griffin at right.
VLP managing attorney Robert M. Elardo and LSED
executive director Karen L. Nicolson are all smiles at
the joint anniversary gala celebrating three decades
of successful service.
PAGE 13
Using Tech Tools to Communicate with Clients,
Counsel and Courts
first-class mail.
Case status reports can be e-mailed. I now scan and
e-mail many documents to clients that I mailed or
faxed in the past. Most clients don’t have fax machines
in their home, and workplace fax machines are rarely
confidential. I now save time and expense by scanning
and e-mailing pre-printed forms to clients. That way,
the client can print, sign and mail it to me within an
hour.
To send a token of my appreciation to people who
refer a client to me, I go online to order merchandise or
a gift certificate for books, steaks, etc. A gift certificate
may also be e-mailed to the recipient, who may place
an online order for the gift of their choice.
By Glenn Edward Murray
“What we have here is a
failure to communicate.”
~ PRISON GUARD IN THE MOVIE
“COOL HAND LUKE”
Communication failures cause problems by reducing
effectiveness and efficiency. I can’t say I’m a great communicator, but I have made progress by experimenting
with the latest technology.
After practicing law for 25 years, I denounce the old
adage “You can’t teach an old dog new tricks.” I say:
“Even old dogs can use new tools.” Here are some ways
I’ve learned to communicate better.
Tech Tools
E-MAIL ~ When I obtain a phone number, I ask if
e-mail may also be used to communicate. Another way
of obtaining e-mail addresses is to include a friendly
invitation in initial written correspondence: If you
would like to receive future correspondence by e-mail,
please send an e-mail to me at gemesq@mac.com; otherwise I will continue to send correspondence to you by
More courts are now online, and not just the largest
ones. The clerk of the Persia Town Court recently
offered me the court’s e-mail address to send my
Notice of Appearance.
INTERNET RESOURCES
DMV and TVB ~ I mostly represent DWI defendants and during my intake interview, I use the DMV
database to print a driver abstract. For charges in the
Buffalo Traffic Violation Bureau, I enter a not guilty
plea and schedule a hearing online.
To share information obtained from the Internet, I
simply e-mail the Web site address (URL). For example, when questioned about the DMV Drinking Driver
Program, I often e-mail the online link to the DMV
brochure, which lists the program criteria and the limits of conditional license privileges.
Maps and Photos ~ Maps are helpful to review the
scene of the alleged offense. At my intake interview, I
often display and print maps from www.google.com.
It’s as simple as selecting the “maps” option and typing the address in the template. Satellite and street
views are also available. The maps and views can be
sent to others by e-mailing the Web site address (URL)
or as an image attachment.
As the old adage says, “A picture is worth a thousand
words.” I often have photos taken of the scene of the
alleged offense, which can easily be downloaded and
printed for court exhibits. Photos admitted into evidence may be displayed to the jury on a monitor. For a
non-jury trial in some courts, a laptop computer may
be used to show the photo to the witness, judge and
opposing counsel.
Weather ~ When weather conditions are an issue,
climate conditions may be obtained from www.wunderground.com and a variety of other Web sites.
Templates ~ For letter reports to clients, I utilize
word processing templates to save time composing
reports to explain the status of the case. These too can
be e-mailed to the client.
I once dictated letters and pleadings before waiting
for others to type them. I then marked my edits to be
typed by others and waited for them to be returned for
my final proofing. This was often repeated several
times, sometimes over the course of several days. Now,
without leaving my chair, I open a template, edit,
proof, print for my file and then e-mail, fax or print the
document and an envelope. I also print the postage
PAGE 14
Using Tech Tools
1
stamp. I configured my computer and my multifunction device (printer, fax, scanner) to do all these tasks
without leaving my chair.
Call Forwarding ~ For greater accessibility when
my office is closed, incoming calls are forwarded to my
cell phone. This instantly alerts me to the call. My
iphone shows the forwarded caller ID, and allows me to
visually review the calls. If anyone whose name and
number is in my contact list calls my office phone, the
caller’s name is displayed when forwarded to my
iphone.
When I call from my iphone, my cell phone number
is masked to keep it private. Lawyers I know who give
their cell phone number to clients come to wish they
had not. I tell clients, “Just call my office and if I’m not
in, the call will be forwarded to me.”
When I am away from my office, my assistant emails phone messages to me. I can touch on the caller’s
number, displayed in hypertext in the e-mail on my
iphone screen, to automatically dial the number left by
the caller. Now that’s a real “smart phone.”
Client Contacts and Case Notes ~ It’s frustrating
not to have contact information available outside the
office. A local lawyer who does not handle DWI cases
recently received a call at 2:00 a.m. from his friend,
who asked if he should blow in the Breathalyzer. My
home number was not in the lawyer’s cell phone, so he
told his friend to call my office later that morning. If
the lawyer had my home or office number in his cell
phone, I would have been contacted and recommended taking the breathalyzer test. In that case, the DWI
charge was dismissed, but the breathalyzer refusal
resulted in mandatory permanent license revocation.
I always have contact information with me at all
hours, wherever I am, because my iphone is synchronized to my office address book. When I add or edit
information on either my computer or my phone, it
wirelessly synchronizes with the other device.
I suppose a doctor who failed to document phone
calls, diagnostic findings and treatment, or who wrote
notes on scraps of papers for eventual filing would be
considered negligent or inefficient in documenting professional services rendered. To better document file
activity, I find it convenient to make chronological
notes on my computer or iphone, which are wirelessly
synchronized with each other. Every client contact card
has a diary which is always with me. This also saves
time filing or retyping every scrap of paper I write on.
Client notes are periodically printed for the case file.
Text Messaging ~ If the client fails to appear in
court as scheduled, it might be most efficient to text the
question “Where R U?” The response can be covertly
viewed even in the courtroom.
Youthful clients will think you are old-fashioned (in a
bad way!) if you say: “Oh, I never figured out how to
text message.”
Video Conferencing ~ I always thought video conferencing was for Fortune 500 companies and mega
law firms. Most new computers are equipped with
webcams. I recently had my first videoconference with
a client in Virginia. Seeing each other made our contact
more personal. I can also use this technology to visually coo at my granddaughter in Far Rockaway. I don’t
need an IT specialist for this; my webcam-equipped
laptop can conference with anyone whose computer
has a webcam. My newest desktop computer at home
has a built-in webcam and for my older office computer, I bought a webcam accessory for about $60.
Calendar ~ I finally took the plunge and entered my
calendar into my iphone. When leaving the Hamburg
Town Court, I read an e-mail from my secretary that a
potential client called. To respond, I simply:
• touched the number in the iphone e-mail for
automatic dialing of caller’s phone number;
• displayed my calendar while talking to the caller;
and
• scheduled an appointment and entered it in my
iphone calendar.
Within minutes, my office computer was wirelessly
synchronized with the calendar entry. This avoided a
message to return a call when I returned to my office.
Moreover, it avoided the delay in returning the call.
If I receive an e-mail with an event date, I simply
click on to add it to my calendar without any scrolling
or typing.
Be Safe and Considerate
It is stupid and dangerous to review e-mail and messages when driving. I confess I have done that waiting
at stoplights, but my resolution is to be safe and pull off
the highway to review messages, return calls and take
notes. Cell phone use violations (VTL § 1229) are not
moving violations, but they are reported to insurance
companies.
When in court, ensure that the phone ringer is off. A
Buffalo City Court judge destroyed a beeping pager
and a Niagara Falls City Court judge jailed over 30
spectators when a cell phone rang. Most phones can be
set to vibrate as an alert that a message has been
received that needs to be heard outside the courtroom.
Exchange Professional Information Online
I mostly handle criminal law and the majority of my
cases are DWI defense. By signing up for a listserv, I
receive e-mails with defense questions and answers
from colleagues around the country. With a single click,
my e-mails to the group are automatically sent to hundreds of other group members. This system also helps
with lawyer referrals, such as when I asked whom I
might recommend to defend a DWI for a friend’s son,
charged in Peoria, Illinois. I have also had cases
referred to me though the listserv.
For Buffalo-area DWI issues, I created my own
group, which has over 100 members. It includes
notices of new legislation and case law and allows
group members to ask and answer group questions.
Prosecutors and judges are not allowed to join my
group so group members may comment about cases
without fear of reprisal.
Experiment!
Ask yourself: “What do I need to save time and
money and to better communicate?” The hardware
and software is not as expensive or technical as you
may think.
Here’s a list of hardware and software that will allow
you to use all the features described in this article:
imac (computer/monitor)
$1,200
iphone
200
Dymo Twin Turbo
180
(to print labels and stamps)
Multi-function printer / fax / scanner
(Canon PIXMA MX 300)
29
Time machine (500GB back up)
100
$1,709
Oh, and don’t forget a savvy personal assistant
…priceless!
Every Macintosh computer includes software to create a Web page and be your own webmaster. Mine is at
www.glennmurraylaw.com. I don’t pay a dime for a
webmaster and can edit and update my Web page
whenever I want.
If your firm has an Internet technology (IT) specialist on staff, you might show him or her this article and
ask: “Can you explain why is this old-guy, one-man
law firm better equipped to communicate than I am?”
For a comparison of Macintosh with PC computers,
see “Two lawyer-experts duke it out over the greatest
quandary of the new century.” (ABA Journal, March
2008)
And if you think I am just an aberrant Macintosh
nerd and your PC system communicates as well or better than mine, I double-dog dare you to publish an
article explaining how you think your tech tools are
superior.
Editor’s Note: As this issue went to press, Glenn
Murray answered a question about this article –
instantly – from his i-phone on a beach in the
Bahamas. A DUI criminal defense attorney in WNY for
over 20 years, Murray is a member of the National
College for DUI Defense. He is the author of Collateral
Consequences of Criminal Conduct (NYSBA, 1992)
and Criminal Law Slanguage of New York 4th
(LexisNexis Publications, 2006). See www.glennmurraylaw.com for further information or contact him at
gemesq@mac.com.
PAGE 15
Is There A Statute Of Limitations For Filing A QDRO?
By Paul W. Wolf
Whenever parties in a divorce
divide a pension, a Qualified
Domestic
Relations
Order
(QDRO), needs to be filed with the
pension plan. Several cases have
addressed the issue of when a
QDRO is required to be filed and
what happens with arrears, when a
QDRO is filed after pension payments have begun. In
Duhamel v. Duhamel, 772 N.Y.S. 2d 437, the Appellate
Division upheld a Monroe County Supreme Court decision in 2004.
In Duhamel, the ex-wife filed a QDRO 16 years after
the divorce and the ex-husband objected, arguing that
a QDRO must be filed within a six-year statute of limitations from the divorce settlement. The court in
Duhamel denied the ex-husband’s argument on the
basis that an agreement was made at the time of the
divorce to share the pension; therefore, to impose a
limitation period for filing a QDRO would provide an
unjust windfall to a former spouse and artificially truncate a negotiated agreement.
I recently had a case where the parties in a divorce
settlement agreed that the ex-wife would receive a
Majauskas share of the ex-husband’s pension. The
divorce settlement occurred in 1991. The ex-husband
In Memoriam
“Memory is a way of holding on
to the things you love,
the things you are, the things you
never want to lose.”
~ Kevin Arnold
began collecting his pension in January of 2006 and the
ex-wife retained me in February of 2007 to prepare the
QDRO necessary to obtain her share of the pension.
The QDRO did not become effective until April of
2007 and the ex-husband refused to pay the $21,000
in arrears owed to his ex-wife for the pension payments
she did not receive from January 2006 until April of
2007. The ex-husband argued that the delay in filing
the QDRO was the fault of the ex-wife and that she
was not entitled to arrears.
Judge Frederick Marshall rendered a decision ordering the ex-husband to pay the ex-wife $21,000 in
arrears for the payments that were not shared prior to
the QDRO becoming effective. In his decision, Judge
Marshall referenced an earlier case that he decided on
the same issue, Furminger v. Furminger, 299 AD2d 864
(4th Dept. 2002).
While there is not a statute of limitations for filing a
QDRO, the best course of action is to encourage your
clients to begin the QDRO process as soon as possible
after the divorce to avoid having to deal with the issue
of arrears.
Paul W. Wolf is a sole practitioner who concentrates
his practice on drafting QDROs. He is willing to
answer member questions about QDRO’s and he can be
reached at 874-6447 or paulwolf2@gmail.com. [B]
THINGS YOU NEED
TO KNOW
County Increases Recording Fees
Effective January 12, 2008, the New York
State Legislature has authorized and the Erie
County Legislature has approved an increase
in the cost of recording per page from $3 to $5
and acknowledged the cover page as an additional page of the document.
As a result of the above increases, the cost of
recording a single-page document in the Erie
County Clerk’s Office will be $50 (including
the cover page), rather than $43, plus $5 for
every additional page.
As a result of the increases in recording fees,
the cost of filing a Lis Pendens (Notice of
Pendency) will be $60 plus $.50 per mark-off.
2009 “Have A Heart” Food Drive
C o n c l u d e s
o n
F e b r u a r y
1 4 t h
We will participate in the “Have A Heart” Food Drive.
Firm Name ______________________________________________________________
Contact Person __________________________________________________________
Address ________________________________________________________________
______________________________________________________________________
______________________________________________________________________
We wish to honor the memory of the following members of our Bar Association. Memorial
gifts to the Erie County Bar Foundation are
an excellent way to remember friends and
colleagues, as gifts are used for the benefit
of the entire profession.
Alexander J. Russ
Charles F. Van Volkenburg
Arnold Weiss
Hon. Norman J. Wolf, Jr.
Adelbert Fleischmann
Phone Number __________________________________________________________
Fax Number______________________________________________________________
E-mail Address____________________________________________________________
Kindly complete and return this form to:
Michael Billoni , Food Bank of Western New York
91 Holt Street • Buffalo, New York 14206 • Telephone No. 852-1305
PAGE 16
Are Medical Recovery “Liens” An Anachronism?
By J. Michael Hayes
In the October 2008 Bulletin,
there was an article by Federal
Attorney General, Robert Trusiak,
attempting to “justify” Medicare’s
right to recover their medical costs
upon a personal injury recovery.
In the December 2008 Bulletin,
there was another lengthy article
by a local practitioner, Jeffrey J. Signor, discussing the
difficulties in resolving Medicare “liens” and offering
suggestions to make the practitioner’s gauntlet less
onerous.
In the January 2009 Bulletin, there was an article
written by Ralph Visano and Thomas Etzel, attorneys
with the State Insurance Fund, proactively justifying
Workers’ Compensation “lien” claims, concluding that
they are “inviolate.” They specifically assert that the
“carrier’s lien ‘is enforceable against the entire amount
of the recovery’…(albeit after subtraction of attorneys’
fees…).”
It is fascinating to read enthusiastic rationalizations by
vested interests in defense of the status quo even when it
may not be to their maximal monetary advantage. The
goal of all of these attorneys on behalf of their principals
is to continue to recoup significant money from plaintiffs
out of personal injury recoveries without expending any
effort or assuming any risk on their part.
The perceived “threat” is that the federal government, the state, counties and insurance carriers are
afraid that they will lose revenues. If they could merely adjust their perceptions from “entitlement” to pursuing their own claims of subrogation, they could create jobs and more work and potentially net more revenue for their employers.
This transition has already begun in the private
health care field. Intervention is becoming standard
with carriers retaining counsel of their choosing and
compensating them according to their own dictates as
opposed to a statute or the standard plaintiff’s retainer. The federal government, state, counties and insurance carriers have thousands of attorneys and staff in
their employ already monitoring these claims. If it
means more revenues and more jobs, these entities are
certainly capable of adapting.
History of Worker’s Compensation
Recovery
The foundation of Workers’ Compensation goes back
to 1922 when the statute was enacted in New York. At
that time, New York was a contributory negligence
state. That meant that if an injured worker recovered
in a third party action, the defendant had to be held
wholly at fault. In percentage terms, that translated to
100 percent responsibility. Plaintiff ’s culpability
always had to be zero. If any fault was attributable to
a plaintiff, there was no recovery. That also meant that
if there were a recovery for personal injuries, the compensation was full, total and not reduced.
In a like manner, at the time the Workers’
Compensation statute was enacted in 1922, juries rendered only “general verdicts.” If a plaintiff were fortu-
nate enough to make a recovery, it came in the form of
a single lump sum. That award was presumed to
include all items of claimed damage, past and future
personal injuries as well as all past and future lost
wages and medical expenses.
The Modern Era
While Workers’ Compensation Law §29 has been
essentially constant in form and substance, laws that
existed relative to tort actions in 1922 have changed
substantially. Comparative negligence came into existence in 1973 in New York with Dole v. Dow Chemical
Co., 30 NY2d 143, 331 NYS2d 382 (1973).
Legislatively, comparative negligence was formally
enacted by Article 14 of the CPLR in 1975. These
changes impact all personal injury cases. Routinely
now, verdicts and even settlements are reduced by considerations of comparative fault. In fact, it is the rare
case that does not incorporate a reduction for fault of
the claimant in one form or another.
In the modern era, the practice of a jury issuing a
“general verdict” has totally disappeared. Now, due to
legislative enactments and case law, itemized verdicts
are the required norm. The Appellate Courts routinely
adjust jury awards for specific items of damage and
leave others as they were rendered. Jury awards for
future damages including lost wages are statutorily
modified by CPLR 50-a and 50-b which were enacted
in 1985. Article 16 of the CPLR has effected many
cases relative to apportionment and, therefore, monetary payments since 1986. These changes often result
in an injured plaintiff collecting less than the full jury
award or even less than the full value of his injuries and
losses.
It is a recognized principle that the Workers’
Compensation carrier has the right to start its own
action to recover its expenditures if an injured worker
does not bring his own action. (Workers’ Compensation
Law §29.2) It would appear that these questions are
rarely, if ever, broached because where there is a viable
third party claim, there is invariably a plaintiff’s attorney willing to pursue the personal injury claim.
In such instances, plaintiffs’ attorneys fully reimburse the Workers’ Compensation carrier for its expenditures such that those carriers tend to be satisfied with
this arrangement. If other coverage is involved, such as
Medicare, it either takes a credit or holiday or a
Supplemental Needs Trust is established that accounts
for those future obligations. The attorney makes two
fees arising out of the same claim and, essentially, for
the same amount of work. Attorneys, therefore, are
comfortable with an arrangement whereby they take
the full one-third from the injured client and another
one-third from the Workers’ Compensation carrier’s
recovery. In fact, everyone generally seems to be comfortable with this procedure and practice except, perhaps, the injured party whose recovery is reduced by
each additional claimant and whose attorney is working for and being compensated by both sides.
Hypothetically Speaking…
As an abstract exercise, in view of the changes in the
law since 1922, let it be assumed that a claimant does
not make a third party claim. The Compensation carrier decides to exercise its right of subrogation and
brings its own action to recover its medical and wage
expenditures. The question is “Which laws may apply
and which may not?”
Under the basic laws of subrogation, a subrogee
stands in the shoes of the injured party. Winkelmann v
Excelsior Ins. Co., 85 NY2d 577, 626 NYS2d 994
(1995). Obviously, the Compensation carrier would be
required to prove culpability on the part of the alleged
tort feasor. A subrogee generally, under the laws of
comparative negligence, may only recover the percentage share of damages for which the defendant was
responsible. If it were determined that a defendant was
65 percent responsible, would he, nevertheless, be obligated to pay the full 100 percent of the claim? Which
law would apply, that from 1922 or 2009?
Continuing the analogy, assume a jury concluded,
found and set forth on an itemized verdict sheet. (PJI
2:301 SV 1) that some of the medical treatment for
which the Workers’ Compensation carrier paid expenses was not actually related to or necessitated by the
accident. What if the jury did not agree as to the extent
of past lost wages and made an award of less than had
been paid by Workers’ Compensation? Under New
York law, a tort feasor is only obligated to pay for his
percentage share of the damages he actually or “proximally” causes. Would the defendant tort feasor, nevertheless, be obligated to repay all those expenditures in
full because Workers’ Compensation Law §29 decrees
that the carrier is entitled to full reimbursement?
Ethical Considerations
Compensation carriers routinely demand that plaintiff’s counsel negotiate on behalf of their interests as
well as on behalf of his own client. All these takings
from plaintiffs personally are justified as a “balancing
of interests” and “cost containment measures” as
between the government, workers, insurers, employers
and, inferentially, the plaintiffs’ own attorneys.
This would, indeed, appear to be a very delicate
“balancing act” as lawyers are ethically required
“Within the Bounds of the Law” [DR 7-102] to
Represent a “Client Zealously” [DR 7-101]. Those
Rules would seem to suggest that though an established
entity may have a “claim,” attorneys are ethically
required to examine the predicates of that claim closely and may not dissipate their clients funds absent the
claim being proven bona fide. In the realm of these
“liens vs. subrogation rights,” there often is an aggregate offer which invariably must be divided in a manner that satisfies both claimants. The attorney receives
contingent compensation from both the client, the
plaintiff, and the Workers’ Compensation carrier.
PAGE 17
Implications of New ADA Amendments
By Bruce A. Goldstein
& Arthur H. Ackerhalt
Goldstein
Effective January 1, 2009,
amendments to the Americans
with Disabilities Act will negate
several U.S. Supreme Court decisions. Those decisions, as followed
by lower courts, have interpreted
the ADA in a manner that excludes
individuals Congress intended to
place within the protections of the
Act (particularly related to discrimination in the workplace).
The ADA defines a “disability”
as (1) a physical or mental
impairment that substantially
limits one or more major life activities; (2) a record of such an
impairment; or (3) being regarded
Ackerhalt
as having such an impairment.
Rejecting a trilogy of Supreme Court decisions from
1999, the ADA amendments require that the definition
of a “disability” be construed in favor of broad coverage of individuals. The statute now requires that a
determination of disability be made without considering mitigating measures, such as medication, medical
supplies, appliances, prosthetics, hearing aids and
mobility devices.
Rather, it provides that the ameliorative effects of
assistive technology, reasonable accommodations, and
auxiliary aids or services should not be considered in
determining whether an impairment substantially limits a major life activity. The new amendments also provide that determinations of whether an impairment
substantially limits a major life activity be made without regard to learned behavior or adaptive neurological
modification (or, said another way, notwithstanding an
individual’s capacity or efforts to overcome an impairment).
There are a number of other changes to what “substantially limits” a major life activity. One prominent
change provides that even an impairment that is
episodic or in remission (such as peanut allergy,
asthma, etc.), is a disability if it would substantially
limit a major life activity, when active.
Congress also broadened the scope of what is meant
by “major life activities.” In addition to a non-exhaustive list of well recognized activities, such as seeing,
hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working, the
law now explicitly includes the operation of a major
bodily function, including functions of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine
and reproductive functions.
Domestic Violence
is NEVER Okay.
Domestic abuse doesn’t discriminate. It happens within all age ranges, ethnic backgrounds,
and financial levels. If it happens once, it will
happen again. The abuse may occur during a
relationship, while a couple is breaking up, or
after a relationship has ended.
Despite what many people believe, domestic
violence is not due to an abuser’s temporary
loss of control over his or her behavior. In fact,
violence is a deliberate choice made by the
abuser in order to take control of a spouse or
partner.
Look What You Made Me Do! In spite of
the abuser’s efforts to “blame the victim,”
domestic violence is NEVER your fault. If you
or a loved one are suffering, help is just a phone
call away. Please call 852-1777 in complete
confidence today to be referred to a colleague
who can help.
Don’t Suffer in Silence.
Let Us Help You Find Your Voice.
Congress also reinstated the reasoning in a 1987
Supreme Court decision providing protections for persons “regarded as” disabled. The amendments protect
individuals subjected to discrimination because of an
actual or perceived physical or mental impairment,
whether or not the impairment actually limits, or is
perceived to limit, a major life activity.
Over the past decade, Supreme Court decisions (and
their progeny) have restricted the ability of employees
(who initially must timely exhaust administrative
remedies) to access relief under the ADA. These restrictions, both procedural and substantive, subsequently
reduced the opportunity for successful discrimination
claims. It can be anticipated that the amendments will
now facilitate an employee’s (and other individuals’)
ability to seek the Act’s protection at both the administrative and judicial levels.
[B]
The Role Stress and Anxiety
Play in the Legal Profession
By Daniel T. Lukasik
Lawyers suffer from clinical
depression at an alarming rate. I
have been a litigator for over 20
years and I am one of them. In the
beginning of my career, however, I
didn’t suffer from depression. But
I did have trouble managing the
stress of my practice. Over time,
this constant stress developed into anxiety. I started
feeling like I couldn’t control everything. I would go to
bed fearing what problems and disasters were to confront me the next morning. After years of this, the pendulum swung. I went, more and more, from states of
anxiety to states of depression. Why did this happen? It
took me a long time to understand.
Depression develops because of a complex interplay
of genes, neurochemistry, emotional history and personality. Recently, scientists have been focusing in on
the connection between stress and anxiety and the role
they play in producing and maintaining depression.
This subject should be of great concern to lawyers who
frequently report feeling stressed or burned out in their
practices.
“Stress” is anything in our environment that knocks
our bodies out of their homeostatic balance. The stress
response is the physiological adaptations that ultimately reestablish balance. Most of the time, our bodies do adapt and a state of balance is restored.
However, Dr. Robert Sapolsky, an expert on stressrelated illnesses, warns: “If stress is chronic, repeated
challenges may demand repeated bursts of vigilance. At
some point, this vigilance becomes overgeneralized,
leading us to conclude that we must always be on
guard – even in the absence of stress. And thus the
realm of anxiety is entered.” (Scientific American,
Robert Sapolsky, Ph.D., Volume 289, No. 3, September
2003 at p. 88)
Stress went on too long in my own life as a litigator.
I had, indeed, entered the realm of anxiety. For me, this
anxiety felt like I had a coffee pot brewing in my stomach 24/7. I became hypervigilant; each of the files on
my desk felt like ticking time bombs about to go off.
Over time, the litigation mountain became harder to
climb as the anxiety persisted over a period of years.
Dr. Sapolsky states: “If the chronic stress is insurmountable, it gives rise to helplessness. This response,
like anxiety, can become generalized: a person can feel
they are at a loss, even in circumstances that she can actucontinued on page 20
PAGE 18
Are Medical Recovery “Liens” An Anachronism?
The question posed is whether there are any disciplinary guidelines relative to these practices? The
Disciplinary Rules provide that an attorney “shall
decline simultaneous representation if it is likely to
involve the lawyer in representing different interests.”
DR 5-105(a). “A lawyer who represents two or more
clients shall not make or participate in the making of
an aggregate settlement of or against the clients.” DR
5-106; cf. new Rules of Professional Conduct, Rule
1.8:(g). Finally, “a lawyer shall not accept compensation for legal services from other than the client.” DR
5-107.
Ahlborn Implications
There has been much discussion of the decision and
application of Arkansas Department of Health and
Human Services v. Ahlborn, 547 US 268 (2006) to various “lien” statutes. Ahlborn specifically was directed at
Medicaid. The decision effectively overruled the decree
in the New York Medicaid statute (Social Services Law
§104 b) that the entire amount of “any verdict, decision, decree, judgment, award or final order” was subject to the county’s “lien” for the county’s medical
expenditures. That concept had been the “law” in New
York and is specifically set forth in the statute and
Calvanese v Calvanese, 93 NY2d 111, 688 NYS2d
479(1999) and Gold v United Health Services
Hospitals, 95 NY2d 683, 723 NYS2d117 (2001). In
Workers’ Compensation, the same result accrues as the
statute likewise provides that the proceeds of any third
party “recovery shall be deemed for the benefit of such
fund.” Granger v. Urda, 44 NY2d 91, 404 NYS2d 319
(1978).
Ahlborn recognized that claims for personal injuries
and claims for medical expenses are separate claims.
The Pattern Jury Instructions has recognized that fact
for many years. The question that the Establishment is
struggling with today is whether they can pigeonhole
Ahlborn solely to the Medicaid realm or whether its
analysis (as well as the PJI and all the case law surrounding damages) extends to other areas of subrogation.
The authors of the January 2009 Bulletin article
make reference to Judge NeMoyer’s decision in Scheer
v. New York State Insurance Fund. That decision does
not address the points raised here. Scheer concerns a
Workers’ Compensation case that resulted in a global
settlement and a global release signed by the plaintiff.
Releases should be tailored to the specifics of each individual case. The sole question before that court was
whether the recovery could be apportioned or whether
the carrier was entitled to full reimbursement. Under
the facts and circumstances of that case and with the
speculation/evidence presented, Judge NeMoyer followed the traditional path.
Further Analysis
Workers’ Compensation Law §29 is a “subrogation”
statute. That statute provides that the carrier has the
right to initiate its own independent action if the
injured party does not. If that were to occur and the
carrier pursued its subrogation claims for medical
expenses and lost wages, would it not be obligated at
trial to prove those specific damages by competent evidence? If a carrier was to pursue an independent action
under its subrogation authority, would it be granted a
dispensation for comparative fault or would verdict be
reduced and apportioned pursuant to the legislature’s
mandate in Article 14. As a subrogee, one would rationally conclude that the carrier would be governed by the
laws of the state of New York regarding comparative
negligence, proximate cause and itemized verdicts as
they exist today, 2009, not as they existed in 1922.
No New York courts, to date, have considered this
archaic statute in these terms. No courts have considered the impact of these statutes on a bare subrogation
claim of this sort by a carrier. The simple fact is that
this 1922 statute and its application are obsolete and
outdated. All the arguments and all the cases cited fail
to apply and, in fact, ignore New York law as it exists
today. They fail to consider or take into account comparative negligence. They fail to consider itemized verdicts. They ignore the companion section §29.2 that
details the method the carrier follows when independently initiating a subrogation claim. They fail to
extrapolate the analysis set forth in Ahlborn. When they
do (cases are pending in the courts), the appellate
process will certainly become involved.
Finally, they fail to consider the potential for conflicts
of interest in handling both the personal injury and
Workers’ Compensation claims as an attorney is clearly representing two claimants arising out of the same
incident, negotiating an aggregate settlement and taking a fee from each.
Conclusion
These issues and potential problems could be eliminated by simply severing the claims. Compensation
carriers have counsel on staff so they would experience
no hardships. Since the statute dictates the fee schedule, selected counsel would not be prejudiced. In fact,
if the counsel were on salary, then the carrier or the
state could keep the attorney fees thereby increasing its
recovery over what is taken in at present. If such claims
were severed, it might become necessary for counsel for
the Workers’ Compensation carriers to explain to the
courts why comparative negligence (both common law
and legislatively decreed) should not apply to their
subrogation claims. They may need to explain to the
courts why their client should be exempt from proving
proximate cause and why, if it comes to it, that they
should not be bound by jury determinations. Those
issues are for subsequent argument and determination.
There is no prejudice that accrues if the compensation recovery case is severed from the personal injury
case. Conflicts of interest are eliminated and the carrier is in a position to recover one-third more than if it is
handled independently. This could be the best of both
worlds and would eliminate potential conflict of interests claims against plaintiffs’ attorneys.
[B]
Are You An Attorney
Struggling With
Depression?
If so, you’re definitely not alone. A recent
Johns Hopkins study of 108 occupations found
that lawyers topped the list of those who suffered
from depression. Attorneys were found to suffer
from depression at a rate of four times that of the
general population.
Depression is a treatable illness and the right
combination of medications and therapies can
significantly improve the quality of life for those
who suffer from it.
Help and support are just a phone call away.
The Buffalo Support Group for Lawyers with
Depression meets monthly to share stories and
fellowship. The group meets on the second and
fourth Friday of each month (except holidays). Meetings are held at Bar Headquarters, 438
Main Street, Sixth Floor, at 12:30 pm and lunch is
provided. There is no need to pre-register.
If you or a colleague are struggling with
depression, there is no need to suffer in silence.
For further information, visit www.lawyerswithdepression.com or contact Kelly Bainbridge at
628-4892. All calls are strictly confidential. We
invite you to join us and share your story.
PAGE 19
Guardianship Proceedings Under Article 81 of the Mental Hygiene Law:
Recent Changes in the Law and their Effect on AIPs
By Aven Rennie
Editor’s Note: This is the third
article in a series about guardianship proceedings under Article 81
of the Mental Hygiene Law. The
first article (Bulletin, Dec. 2006),
pgs. 17, 20) gave an overview of
guardianship proceedings; the
second article (Bulletin, Nov.
2007, pgs. 17, 18) focused on the role of the court evaluator and a decision (Mtr of Heckl, 44 AD2d 110, 840
NYS2d 516 (4th Dept 2007) holding that an alleged
incapacitated person (AIP) has no statutory duty to
meet with a court evaluator. This article describes recent
changes in the law governing the effect of the appointment of a guardian on the AIP’s rights and powers
(MHL §81.29(d)), a guardian’s power after an AIP’s
death to make funeral arrangements and pay “other
charges of an emergent nature” (MHL §81.34), and a
guardian’s duty to account for assets thereafter and his
ability to reserve amounts for some purposes if notice is
given (new MHL §81.44).
The statutory and decisional framework for an AIP’s
right to assert the confidentiality of his or her medical
records and the court’s power to override an AIP’s objection in certain circumstances also are covered.
Effect of Appointment (§81.29)
Section 81.29 reserves to an AIP all powers and
rights not specifically granted to his guardian. It also
provides that the appointment of a guardian is not
“conclusive evidence” that an AIP lacks capacity for
other purposes, such as drawing a will. Subsection (d)
authorizes a court to modify or revoke various instruments executed by an AIP before a guardian was
appointed, if the court finds that the AIP was incapacitated at the time the instruments were executed or if
an agent of the AIP breached a duty. The list of instruments includes: an “appointment, power, or delegation” under GOL 5-1501, 5-1505 or 5-1506, or any
“contract, conveyance, or disposition during lifetime or
to take effect upon death...” The amendment, which
took effect July 7, 2008, now provides that a court may
not invalidate or revoke a will or codicil while the AIP
is alive.
Funeral Arrangements and Other Emergent
Charges (§81.34)
This section governs the issuance of a decree approving a petitioning guardian’s request for release and discharge. Effective Jan. 3, 2009, as amended, the section
authorizes the guardian to pay funeral expenses and, in
the absence of a personal representative of the AIP’s
estate, to pay estimated estate and income tax charges as
well as “other charges of an emergent nature.” This section permits the guardian to function in essence as the
estate representative when there is no one else to act.
New Post-Death Proceedings (§81.44)
Effective Jan. 3, 2009, this new section sets out
notice and escrow provisions upon an AIP’s death.
Within 20 days, the guardian must serve a “statement
of death” upon the court examiner, upon any personal
representative appointed for the estate, or, if there is
none, upon the personal representative designated in
the AIP’s will or trust instrument, if known, and upon
the public administrator. The guardian must also file
the statement and an affidavit of service with the court.
Within 150 days of the AIP’s death, the guardian
must serve a “statement of assets and notice of claim”
upon the personal representative, if any, or the public
same objection is raised to the admission of live testiadministrator. The guardian may retain property to
mony by health care providers.
secure “any known claim, lien or administrative costs”
Is such evidence admissible over objection? The law
of the guardianship, and must deliver the balance to
directs that incapacity findings not be diagnosis driven,
the late AIP’s appointed personal representative or, if
but be based instead on observable functional limitathere is none, to the public administrator. Any dispute
tions (evidenced by an inability to engage independover the retained amount must be
ently or effectively in the activities of
decided by the Surrogate with jurisdaily living). MHL §81.02(b). The law
diction over the AIP’s estate. This
also provides, however, that the court
amount can be retained by the
shall consider evidence of “any physical
guardian pending the settlement of
illness,” “any mental disability[,] alcothe guardian’s final report and
The law directs that
holism or substance dependence,” and
account, unless the guardian moves
“any medication with which the person
incapacity findings
the court for an order upon notice to
is being treated and their effect on the
the person to whom the estate propernot be diagnosis
person’s behavior, cognition and judgty is deliverable and the court examinment” in assessing capacity. MHL
driven, but be based
er allowing complete turnover.
§81.02(c). The Mental Hygiene Law
“”
instead on observable
Also within 150 days of death, the
does not expressly override CPLR
guardian must file his final report with
§4504(a). Decisional law is divided on
functional limitations.
the county clerk and then proceed to
the propriety of admitting such evijudicially settle the final report upon
dence over objection.
notice to all parties under MHL
When an AIP has no family member or friend to pro§81.33(c), including the person to whom the guardianvide information about medical and mental conditions
ship property was delivered. The 150-day deadline
contributing to or causing functional limitations, medmay be extended only by court order.
ical evidence is generally the only source of such inforAdmissibility of Medical Records
In contested Article 81 proceedings, AIPs through
their counsel sometimes object to the petitioner’s introduction of evidence found in medical records relating to
capacity or the duration of a condition affecting capacity, in reliance on CPLR 4504(a), which codifies the
health care provider/patient privilege.
In most cases, prior to the contested hearing, the
court evaluator will have assessed the need to review
medical records in order to get a clearer picture of the
AIP’s condition and circumstances, and will in most
cases have obtained an order permitting such access
upon notice to the AIP under MHL §81.09(d). The
court evaluator’s report in such cases will include references to medical and mental conditions that contribute to functional limitations and lack of insight. If
the court evaluator recommends a guardian, and the
AIP disagrees, a contested hearing follows.
At the hearing, the report is admissible only if the
court evaluator is sworn and subject to cross-examination. MHL §81.12(b). The AIP or his counsel will
sometimes object to the inclusion of medical record evidence in the report, even when the court evaluator has
viewed medical records with court permission. The
mation. The courts balance the AIP’s right to confidentiality against the need for relevant and reliable evidence needed to assess capacity. Some cases admit
such evidence, see, e.g., Mtr of Karen P, 254 AD2d 530,
678 NYS2d 802 (3d Dept 1998); Mtr of Goldfarb, 160
Misc2d 1036, 612 NYS2d 788 (Suffolk Co 1994); Mtr
of St. Luke’s Hosp. (John Doe), 6/1/94 NYLJ 27 (Col.
4). See also In re Kufeld, 51 AD3d 483, 859 NYS2d 119
(1st Dept 2008) (court evaluator’s motion to review
medical records and retain independent examining
medical and psychiatric expert when granted waived
physician-patient privilege), and others do not. In re
Bess Z, 27 AD3d 568, 813 NYS2d 140 (2d Dept
2006); In re Marie H, 25 AD3d 704, 811 NYS2d 708
(2d Dept 2006) (admitting crisis-team medical testimony not arising in consensual treatment situation, but
excluding other physician-patient privileged information); Mtr of Rosa B-S, 1 AD3d 355, 767 NYS2d 33
(2d Dept 2003); In re Kang Yun Yu, 14 Misc3d 448,
824 NYS2d 882 (NY Sup 2006); and see In re
Guardian of Derek, 12 Misc3d 1132, 821 NYS2d 387
(NY Surr 2006) (SCPA 1750-a; affidavits attesting to
developmental disabilities of adult proposed ward were
inadmissible without his consent).
[B]
PAGE 20
Bench & Bar
The Role Stress and Anxiety Play in the Legal Profession
Segalla
Gerber
Laurie
Thomas F. Segalla, Daniel W. Gerber and
Robert D. Laurie, partners with Goldberg Segalla
LLP, recently presented a seminar in Bermuda entitled
“Blueprint for Successful U.S. Claim Resolution.” The
seminar was designed to provide a primer on U.S. litigation. Topics included: techniques available to an
excess carrier to contain a loss in the lower layers of a
program; avoiding undue exposure on arbitration
claims; and bad faith exposure in the cedant-reinsurer
relationship.
Amherst Town Justice Mark G.
Farrell recently delivered a keynote
address on Gambling Treatment
Court at the annual meeting of the
National Association for Gambling
Studies in Australia in Adelaide,
Australia. Farrell discussed the role of
Farrell
the gambling court as a therapeutic
judicial intervention in the criminal justice system.
While in Australia, Farrell also presented a series of
lectures and workshops in support of the government’s
efforts to explore the establishment of a Gambling
Treatment Court in the Commonwealth. Farrell
currently operates the only Gambling Treatment Court
in the world, having initiated its operation in
August 2001.
[B]
2009 President’s Ball
ally master.” (Ibid). Helplessness is a pillar of a depressive
disorder. It becomes a major issue for lawyers because we
aren’t supposed to experience periods of helplessness. We
often think of ourselves as invulnerable superheroes who are
the helpers and not the ones in need of help. Accordingly,
lawyers often don’t get help for their depression and feel
ashamed if they do.
between this ancient defense mechanism and depression. When confronted with a threat – whether real or
perceived – this response kicks in and floods our bodies
with powerful hormones that propel us into action.
This was an essential survival device for our ancestors
who lived in the jungle and would have to flee beasts
that were trying to eat them or fight foes that were trying to kill them.
Too Stressed, Too Anxious, Too Often
Lawyers don’t face these types of real life-or-death
threats. Instead, lawyers perceive life-or-death threats
in their battles with opposing counsel while sitting in a
deposition or sparring in the courtroom. Our bodies
respond as if they were being chased by that hungry
lion. Accordingly, the stress response can be set in
motion not only by a concrete event but by mere anticipation. When humans chronically and erroneously
believe that a homeostatic challenge is about to come,
they develop anxiety.
Many lawyers do not appreciate this connection
between their stress and anxiety and the risks they pose
for the development of clinical depression. Indeed, the
presence of co-morbid anxiety disorders and major
depression is frequent and, according to some studies,
as high as 60 percent. Maybe this connection helps
explain the studies which find such high rates of
depression for lawyers. In many ways, we are too
stressed and anxious too much of the time. The human
body was not designed for such punishment. Dr.
Richard O’Connor, author of the best-selling book,
Undoing Perpetual Stress: The Missing Connection
Between Depression, Anxiety and 21st Century Illness
(Berkley Trade, 2006), states that depression “is stress
that has gone on too long” and that many people with
depression have problems dealing with stress because
they are not “stress resilient.” Not because of some
central character flaw or weakness, but because of a
complex interplay between genetics and one’s experience over a lifetime. This interplay is played out daily
for lawyers in how their bodies and brains deal with
stress and anxiety.
Our bodies haven’t changed much in the last ten
thousand years. We have a wonderful defense mechanism wired into our nervous system called the fight-orflight response. Dr. Sapolsky, in his acclaimed book,
Why Zebra’s Don’t Get Ulcers (Holt Paperback; 3rd
edition, 2004), walks us through the connection
Over time, this type of chronic anxiety causes the
release of too much of the powerful fight-or-flight hormones, cortisol and adrenaline. Research has shown
that prolonged release of coritisol damages areas of the
brain that have been implicated in depression, the hippocampus (involved in learning and memory) and the
amydala (involved in how we perceive fear).
If we as litigators don’t learn better ways to deal with
stress and anxiety, we expose ourselves to multiple triggers that can cause and/or exacerbate clinical depression. It is in turning and facing those things which
make us stressful and anxious that we provide ourselves with the best protection against depression.
Editor’s Note: If you or a colleague may be suffering
from anxiety and/or depression, help is readily available. Simply call 852-1777 in complete confidence or
see page 18 of this issue for information about the
Committee for Lawyers with Depression.
Special thanks to the following sponsors
for helping underwrite this event:
2009 PRESIDENT’S BALL
SPONSORS
Gold Sponsors
Avalon Document Services
Counsel Press, LLC
Forge Consulting, LLC
Jack W. Hunt and Associates, Inc.
M & T Bank
Settlement Professionals, Inc.
Law Firm Sponsors
Brown Chiari LLP
Cellino & Barnes, P.C.
HoganWillig
Hurwitz & Fine, P.C.
Lewis & Lewis, P.C.
Nixon Peabody LLP
Law Day and Annual Dinner Award Nominations Sought
The Bar Association is still accepting nominations for
this year’s Law Day and Annual Dinner awards.
LAW DAY AWARDS
Our annual Law Day luncheon and awards ceremony marks the culmination of months of law-related
educational activities, including the high school Mock
Trial Tournament, poster contest and public speaking
engagements.
Our long-standing Law Day tradition involves honoring local attorneys and non-attorneys who have distinguished themselves in service to the law and the
ideals of the Constitution. The Bar Association presents
several awards on Law Day, including the:
Liberty Bell Award
Special Service Award
Police Officer Award
Justice Award
Media Award
How to Nominate a Candidate for a Law
Day Award
Nomination forms for candidates for all the Law Day
Awards are available from Maureen Gorski at 8528687, Ext. 18 or mgorski@eriebar.org. The deadline
for receipt of nominations is February 6, 2009.
ANNUAL DINNER AWARDS
Each year at the Annual Dinner, the BAEC recognizes lawyers and judges who have made outstanding
contributions to the Association, the legal community
and the profession.
Winners are selected by nominations sent from the
membership to the Awards Committee. The board of
directors reviews the recommendations of the Awards
Committee and makes the final determinations. Please
consider submitting your nomination(s) for the following awards:
Lawyer of the Year Award
Outstanding Jurist Award
Charles H. Dougherty Civility Award
Special Service Award
Award of Merit
How to Nominate a Candidate for an
Annual Dinner Award
Nomination forms for each of the awards are available by calling Maureen Gorski at 852-8687, Ext. 18
or mgorski@eriebar.org. Completed forms should be
forwarded to Robert J. Feldman, Awards Committee
Chair, at the Bar Association office. The deadline for
receipt of nominations is March 6, 2009.
Further details and award criteria are available from
the Bar Association office.
PAGE 21
Correspondence from Kent, Our Sister City in Great Britain
By Jonathan Smithers, President, Kent Law Society
I read recently that a Nobel prize-winning physicist
once said that “in order to make an apple pie from
scratch, first you have to create the universe,” which
was not just witty but also insightful. As president of
Kent Law Society, I try to inject new ideas when writing articles for our newsletters, addressing meetings
and representing the Society. In truth it would be
almost impossible for any ideas to be “new.” What I am
actually seeking to do is to keep the traditions of our
historic society (now 190 years old) alive and well, perhaps presenting a new slant or spin – as the politicians
would have it – on what activities we can create and
what benefits we can provide for our members.
In the December issue of this publication, your president wrote about his trip to the convention in Lille and
the links between our societies. In my previous column,
published in that same newsletter, I wrote about the
cooperation between local law societies within our
county so it is not just him that is saying it!
Giles mentioned his co-panelist, Bob Heslett, the
president-elect of the Law Society of England and
Wales. I cornered him recently whilst wearing my presidential medal so that you could see what he looked
like. Bob takes over as the president of the National
Law Society in July of 2009 and will leave the profession through what is already shaping up to be a very
Welcome
New Members
The author, Jonathan Smithers, is pictured above at right,
with Robert Heslett, president of the Law Society of
England and Wales.
challenging time. The credit crunch, collapse of the
housing market and tough commercial trading conditions will be difficult for many lawyers but, as I have
said in previous columns, some of us have been around
for a long time and - despite any short term pain - are
determined still to be here for many years to come!
Directory Deadline is March 1, 2009!
As we plan the 2009-2010 edition of the Bar Association’s Directory
of Attorneys and the Courts, we remind all attorneys that it is our
goal to publish the most accurate, up-to-date information possible.
• Attorneys whose addresses, telephone/fax numbers and/or e-mail addresses have
changed since the last issue must notify the Bar Association of the changes before
March 1, 2009.
• Unless we are notified of a change, the listing shown in the 2008-2009 Directory will
be used. Please note that we no longer publish an addendum to the Directory so any
changes received after March 1 will not be published until the following year.
• Changes must be made in writing. Please use the form below (or the form on
page 5 of the 2008-2009 Directory) to submit your changes.
The Bar Association
of Erie County is pleased
to welcome the
following new members:
Benjamin K. Ahlstrom
Robert M. Albert
Mary Beth Bush
Marie A. Butchello
Elizabeth Y. Callahan
Mary Connally
Lindsay Corbett
Timothy Crotty
Jordane-Christine Fura
Timothy P. Heald
Thomas A. Lambert
Alisha D. Legette
Katherine E. Marcolini
Richard J. Morrisroe
Marisa Villeda
Jamie B. Welch
Jon P. Yormick
• The Directory listings include one e-mail address per attorney. Please note that
we list only e-mail addresses, not URLs.
• For the first time this year, we will also include listings for members who reside
outside the Eighth Judicial District.
Name ____________________________________________________________________________________________
Firm
____________________________________________________________________________________________
Address __________________________________________________________________________________________
City/State/ZipCode ________________________________________________________________________________
Telephone Number (Ext.) __________________________________________________________________________
Fax Number ______________________________________________________________________________________
E-Mail Address ____________________________________________________________________________________
Date Admitted to NYS Bar ________________________________________________________________________
Please check the appropriate explanation:
❐
This is a new listing.
❐
This replaces the listing on page #___ (of the 2008-2009 Directory).
❐
This is an addition to the listing on page #___ (of the 2008-2009 Directory).
❐
Delete the listing on page #___ (of the 2008-2009 Directory).
Explanation:
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
Name of person submitting changes (and phone number):
________________________________________________________________________________
________________________________________________________________________________
Complete and mail or fax this form to:
438 Main Street, 6th Floor
Buffalo, New York 14202-2992
Fax: 716/852/7641
It’s great to belong to something this good.
PAGE 22
ERIE INSTITUTE OF LAW
PROVIDING CONTINUING LEGAL EDUCATION FOR YOUR PROFESSIONAL ADVANTAGE
PLEASE NOTE: The Erie Institute of Law is unable to issue partial credit for seminars, except for multiple session programs such as the Tax and
Leadership Institutes. If you have questions about whether a program qualifies for partial credit, please call Mary Kohlbacher at 852-8687.
Date/Time/Location
Topic
CLE Credits
Monday, February 2, 2009
9:00 a.m. - 4:30 p.m.
Metro Toronto Convention Centre
Toronto, Ontario, Canada
When the Butterfly Flaps its Wings:
Cross-Border Litigation in Your Practice
(Live Seminar)
6.5 credits
$395–$445
visit www.oba.org
to register
Friday, February 6, 2009
9:00 a.m. - 1:00 p.m.
Hyatt Regency Buffalo
Two Fountain Plaza
Critical Stages: Golden Opportunities
Pretrial Hearings and Jury Selection
Techniques for the Criminal Law Practitioner
(Live Seminar)
4.5 credits
$70 members
$100 non-members
Wednesday, February 11, 2009
1:00 p.m. - 2:00 p.m.
Adelbert Moot CLE Center
Bystander, Victim, Attorney: Your Role in
the Domestic Violence Epidemic
(Noonday Lecture)
1.0 credit
$20 members
and non-members
Thursday, February 12, 2009
9: 00 a.m. - 1:00 p.m.
Hyatt Regency Buffalo
Two Fountain Plaza
Americans in Canada:
Cottaging, Traveling or Working
(Live Seminar)
4.5 credits
$70 members
$100 non-members
Wednesday, February 18, 2009
1:00 p.m. - 2:00 p.m.
Adelbert Moot CLE Center
Best DWI Defenses
(Noonday Lecture)
1.0 credit
$20 members and
non-members
Friday, February 20, 2009
12:30 p.m. - 5:00 p.m.
Genesee County Courts Facility
Grand Jury Room, 2nd Floor
Route 63 and 5, Batavia, NY
The Divorce of Mr. & Mrs. Average
(Live Seminar)
4.5 credits
$75 seminar
$85* seminar and lunch
*If signing up for lunch, please note time - 11:45 a.m.
Mail or fax to: Erie Institute of Law • 438 Main Street, Sixth Floor, Buffalo, New York 14202
ERIE INSTITUTE OF LAW
Price
(716) 852-8687 • Fax (716) 852-7641
Name ______________________________________________________________________________________________________
REGISTRATION FORM
Please register me for the following
Erie Institute of Law sponsored events:
Firm ______________________________________________________________________________________________________
1. ________________________________________
Address
__________________________________________________________________________________________________
2. ________________________________________
City ________________________________________________________ State ____________ Zip ________________________
3. ________________________________________
Phone ___________________________ Fax __________________________ E-mail
Enclosed is my check in the amount of $ ____________________❐ Visa
Cancellation Policy: If you are unable to attend a
seminar, for which you have already registered, call
Mary Kohlbacher at 852-8687 ext. 15. For a full
refund, notice of your cancellation must be received
before the date of the program. Registrants who are
pre-registered and fail to attend will receive course
materials in lieu of a refund.
__________________________________
❐ MC
Card Number ______________________________________________________________ Exp. Date ______________________
Cardholder Signature ________________________________________________________________________________________
PAGE 23
LISTEN, LEARN & EARN!
In today’s competitive, fast-paced legal environment, effective time management is essential.
Take advantage of the Erie Institute of Law tape library and start earning your CLE credits when the time is convenient for you.
The Erie Institute of Law offers many of our most popular CLE seminars on compact disc, as well as on cassette tape and videotape.
All of our seminars are professionally edited and are accompanied by a full set of written course materials.
Among our most recent selections:
Advocacy Goes to the Movies
Product code 2130
4.5 CLE credits: 1.0 Ethics, 3.5 Skills
Presented on September 12, 2008
Available on Audiotape, CD and DVD
With the aid of movies, this seminar explores
advocacy from pretrial preparation through closing
argument. Trial work is theater work, and, from the
movies, you can learn trial techniques for how to
deliver your case theory in an interesting and
convincing way that will engage your audience –
the judge and jury. With clips from 4-star films, this
presentation examines the strategic and ethical dos
and don’ts of advocacy as well as the principles and
practical tools for successful pretrial and trial
practice. Along the way, attendees will learn about
the real cases that inspired many of the films.
This highly entertaining and informative seminar
includes these topics:
•
•
•
•
•
•
•
•
•
How to develop the screen play that will guide
your storytelling during pretrial and trial advocacy;
How to edit out harmful information from the
screen play with motions and objections;
Techniques for pretrial advocacy, with an
emphasis on preparing and deposing witnesses;
Preparation and rehearsal of witnesses;
How to tell the case’s story, particularly during
opening statement;
A cross-examination methodology that works;
Techniques for presenting your experts and
cross-examining theirs;
Ethical pitfalls for advocates, and
The art of closing argument.
Get Me Condon
Product code 2131
1.0 CLE credit: 0.5 Ethics, 0.5 Skills
Presented on November 12, 2008
Available on Audiotape or CD
One of Buffalo’s preeminent trial lawyers, John
Condon, had been scheduled to present a Noonday
Lecture on November 12, 2008. When Mr. Condon and
his wife were killed in a tragic automobile accident,
his colleagues decided that the lecture should still be
held in his memory and as a special tribute to him.
John Condon enjoyed a nationwide reputation in
the field of criminal defense. He was known for the
thoroughness of his trial preparation techniques
and the tenacity of his examinations. At the height
of his career, an article appeared locally in recognition
of his extraordinary reputation as counsel for
countless high profile defendants. The caption of
the piece appropriately read “Get Me Condon.”
This program emphasizes trial skills and client
relations, as Mr. Condon had originally intended.
Presenters include noted Buffalo attorneys
Terrence M. Connors, Joseph M. LaTona,
Rodney O. Personius, Joseph V. Sedita and
Michael S. Taheri.
Settling Your Personal Injury Case and
Sleeping at Night Part II: Remedies for
Sound Sleep
Product code 2132
4.5 CLE credits: 1.0 Ethics, 3.5 Practice
Management/Professional Practice
Presented on December 4, 2008
Available on Audiotape or CD
How it Works
Passes are available in books of six for $350 ~ six seminars for the price of five. Attach a pass when you mail
your advance registration form, or bring the pass with
you when you register at the door. If you intend to use
the pass for a walk-in registration, please be sure to call
ahead and confirm the date, location and available
seating. The seminar pass will cover your registration in
full. Guaranteed.
Simply stated, the Bar Association of Erie County CLE
Passbooks give you the opportunity to attend highquality, convenient, half-day educational programs at a
bargain rate. One pass buys any half-day seminar for
only $58 ($12 off the regular seminar price). If you
want to minimize your CLE expenses and maximize
educational experiences for yourself or your firm, then
the CLE Passbook program is for you. The passbook
guarantees the reduced price of $58 for any half-day
seminar for the next two years, despite any fee increases during that time period.
Ethics Goes to the Movies
Product code 2133
4.0 CLE credits: Ethics
Presented on December 12, 2008
Available on Audiotape, CD and DVD
This highly entertaining and informative seminar
addresses:
•
•
•
•
•
•
•
•
•
Lawyer discipline;
Confidentiality and the use of technology;
Inadvertent disclosure;
Client billing;
Supervision and supervisory issues;
Conflicts of interest;
Outsourcing, use of vendors and temporary
employees;
Dealing with court employees; and
Researching ethics.
Each seminar is priced as follows
(unless otherwise stated):
Back in February of 2008, this program explored a
variety of concepts and issues that impact the
settlement of a personal injury case. A checklist of
the pitfalls and land mines of liens, public benefits
and private subrogation was included.The scenario
remains the same: You’re about to settle your client’s
personal injury case against the defendant(s) and
now, other entities claim an interest in the settlement
pie. The questions that need to be asked include:
What claims are you required to address? What are
those claims? Can you preserve some public benefits
for your client and still accept the settlement?
We’ve Got Your Ticket to Savings!
Save money every time
you use a seminar pass.
This presentation provides many of the answers to
those questions, including an update on the recent
developments in lien laws and subrogation claims,
including Workers’ Compensation, Medicare SetAsides, APIP and Medicaid, and the manner in which
to address the restrictions imposed by various state
and federal public benefits laws.
The passes are completely transferable and can be
shared with other members of your firm, including staff
members and paralegals. If you are a sole practitioner,
you can share the passes with other practitioners.
Guidelines
Passbooks are valid for two years from the date of purchase and are not replaceable if lost. No cash refunds
are available for unused or expired passes. Each pass is
valid for admission to any half-day BAEC CLE seminar.
There is no limit to the number of passbooks an individual or firm can purchase, but all passes must be used
within two years from the date of purchase, or they
become void. If a scheduling conflict arises after you
have registered for a seminar, just inform our office 48
hours in advance of the program, and we will return
your pass for future use.
CD/Audiotape: $70 BAEC members, $100 non-members
To order, please send check payable to:
The Erie Institute of Law
438 Main Street, Sixth Floor
Buffalo, New York 14202
Be sure to include your name and address for mailing purposes;
add $5 shipping and handling for each tape purchased. Tapes are
mailed via UPS, no P.O. boxes please. To order by phone using your
Visa or MasterCard, call Mary Kohlbacher at 852-8687.
If you haven’t received your copy of our most recent
CLE catalog, please call Mary Kohlbacher at 852-8687.
CLE Passbook Order Form
Please send me _____ seminar passbooks
(one book of six passes: $350)
Total: $ _________________
Name: _________________________________________
Firm Name: ____________________________________
Address: _______________________________________
City: ___________________________________________
State: __________________ Zip: ___________________
Phone: _________________________________________
E-mail: _________________________________________
[ ] Check enclosed; Payable to the Erie Institute of
Law 438 Main Street, Sixth Floor, Buffalo, NY 14202
[ ] Visa
[ ] MasterCard
Credit Card #: __________________________________
Exp. Date: ______________
Signature:______________________________________
PAGE 24
Guardians of the Clock Tower by Glenn Edward Murray
ALL MEETINGS HELD IN THE BAR CENTER, 438 Main Street, Sixth Floor, unless otherwise noted.
The Adelbert Moot CLE Center is also located at 438 Main Street, Sixth Floor.
FEBRUARY 2009
MONDAY 9
TUESDAY 17
FRIDAY 20
Unlawful Practice Committee
12:15 p.m. - Bar Center, Brennan
Room
Harry G. Meyer, Chair
Corporation Law Committee
12:15 p.m. - Ronald J. Battaglia, Jr.
Young Lawyers Committee
12:15 p.m. - Adelbert Moot CLE
Center
Melissa Ann Foti, Chair and Pietra G.
Lettieri, Co-Chair
MONDAY 2
Professional Ethics Committee
12:15-p.m. - Bar Center, Brennan
Room
Thomas S. Wiswall, Chair
TUESDAY 3
Matrimonial & Family Law
Committee
12:15 p.m. - 25 Delaware, 5th Floor
Catherine E. Nagel, Chair
WEDNESDAY 4
Legal Nurse Consultants Committee
12:15 p.m. - Cynthia E.
Wojciechowski, Chair
TUESDAY 10
Board of Directors
8:00 a.m. - Giles P. Manias, President
Labor Law Committee
12:15 p.m. - Sean P. Beiter, Chair
Real Property Law Committee
Center
W. Clark Trow, Chair
WEDNESDAY 11
Health Care Law Committee
12:15 p.m. - Lisa McDougall, Chair
WEDNESDAY 18
Erie County Bar Foundation
8:00 a.m. - T. Alan Brown, President
Appellate Practice Committee
12:15 p.m. - Bar Center, Arbitration
Room
Marilyn Hochfield, Chair
Federal Practice Committee
12:15 p.m. - Anna Marie Richmond,
Chair
Intellectual Property, Computer &
Entertainment Law Committee
Room
Ellen Swartz Simpson, Chair
THURSDAY 5
THURSDAY 12
THURSDAY 19
Negligence Committee
Center
William A. Gersten, Chair
Criminal Law Committee
12:15 p.m. - Rodney Personius, Chair
Admission to the Bar Committee
12:15 p.m. - Stephen R. Lamantia,
Chair
Practice & Procedure in Surrogate’s
Court Committee
12:15 p.m. - Bar Center, 12th Floor
Catherine T. Wettlaufer, Chair
FRIDAY 6
Commercial & Bankruptcy Law
Committee
Center
Beth Ann Bivona, Chair
March Bulletin Deadline
FRIDAY 13
Committee for the Disabled
12:15 p.m. - Janet L. Bensman, Chair
Practice & Procedure in Family Court
Committee
12:15 p.m. - Part 14, Erie County
Family Court
Kristin Langdon Arcuri, Chair
MONDAY 23
Alternative Dispute Resolution
Committee
12:15 p.m. - Patricia H. Potts, Chair
Banking Law Committee
12:15 p.m. - Location to be
announced
Timothy P. Johnson, Chair
TUESDAY 24
Board of Directors
8:00 a.m. - Giles P. Manias, President
Elder Law Committee
Center
Charles Beinhauer, Chair
THURSDAY 26
Environmental Law Committee
Center
R. Hugh Stephens, Chair
Human Rights Committee
Room
Alan J. Bozer, Chair
Practice & Procedure in Justice Courts
Committee
12:15 p.m. - Bar Center, Arbitration
Room
Jeffrey F. Voelkl, Chair
Municipal & School Law Committee
12:15 p.m. - Herbert J. Glose, Chair
MONDAY 16
Office Closed for Presidents’ Day
Committee on Veterans and Service
Members Legal Issues
12:15 p.m. - Bar Center, Brennan Room
Jennifer P. Stergion, Chair
www.eriebar.org

February 2009 - Bar Association of Erie County

Transcription

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