May 2011 - The Suffolk County Bar Association

Transcription

THE
SUFFOLK LAWYER
THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION
Vol. 27 No 8
May 2011
website: www.scba.org
DEDICATED TO LEGAL EXCELLENCE SINCE 1908
When you go to listen to a motivational speaker you never expect to
find out that they’ve lived their
entire life trying to overcome negativity. Motivational speakers are
excellent at being, well, positive.
Listening to them inspires a natural
desire to be just like them, overly
Laura Lane
positive. And they seem oftentimes
bigger than life, but that’s o.k. too – as long as we can
leave motivated to change our own lives.
What a relief it was to hear motivational speaker Jon
Gordon’s confession that his upbringing was not a walk in
the park, that he struggled with career changes, was once a
professional complainer, and gasp, that he spent much of
his life trying to overcome being a negative person.
Mr. Gordon, the speaker at the Suffolk County Bar
Association’s May Membership Appreciation event succeeded in holding everyone’s attention and he fielded several tough questions as well. In fact, truth be told, at the
conclusion of his presentation when he asked if anyone
had any questions, it took people a few minutes to
respond. They had to first come back to earth and leave
the ‘positive zone’ they’d entered listening to Mr. Gordon.
That’s quite an accomplishment to have over a large group
of people.
The author of five international best sellers, including
The Energy Bus, which he brought along with him for
INSIDE…
MAY 2011
YEAR
IN REVIEW
Committee News...8-9, 11-12, 14-15, 18-20
Year in Review at the SCBA...................5
Meet your SCBA Colleague....................3
Law Firm Partnerships.........................11
Abraham Lincoln’s Thoughts.................6
Photo credit: Laura Lane
_____________
By Laura Lane
Photo credit: Arthur Shulman
Motivational Speaker Inspires SCBA Members
SCBA President Sheryl Randazzo and motivational speaker
Jon Gordon.
Mr. Gordon autographs his book that an SCBA member
purchased.
purchase, Mr. Gordon is a success story. His books have
been featured on CNN, NBC’s Today Show and in Forbes,
Fast Company, O Magazine, The Wall Street Journal and
The New York Times.
President Sheryl Randazzo has been one of Mr.
Gordon’s biggest fans for some time even giving his book,
The Shark and the Goldfish to those who attended her
installation last June. She couldn’t have asked for anything better than having Mr. Gordon as the speaker for
Membership Appreciation.
“What matters most is that he says something today that
will inspire you to take action tomorrow,” Ms. Randazzo
said right before introducing Mr. Gordon. “He will share
several messages that will speak to every one of us.”
Mr. Gordon, who grew up on Long Island, went to law
school for a year and a half before changing his career
path. Even so, he said he had an appreciation for what
lawyers do.
His book, The Energy Bus, is based on his own personal struggles with negativity.
“You have a choice between two roads, the positive
road and the negative road,” Mr. Gordon said. “Our bus
can’t be on two roads at the same time. Once you take the
positive road everything will change.”
PRESIDENT’S MESSAGE
FOCUS ON
Thanks All of You
For the Honor of a
Lifetime
____________________
By Sheryl L. Randazzo
THE YEAR
IN REVIEW
SPECIAL EDITION
Huntington Lawyer’s Club ...................10
Sheryl L. Randazzo
SCBA photo album...........................16-17
As my term comes to an end, I am asked by many, “Are you glad you did
it?” the “it” being to serve as SCBA President. My answer is a resounding
“yes.” It is often followed by numerous other questions, such as – “Are you
exhausted?” “Are you glad the year is over?” and “Do you know what you are
going to do with all of the free time you get back?” These questions are also
answered by me with a pretty clear yes as well.
Through the past six years on the Executive Committee, I have had the privilege of working with committed colleagues and fellow leaders, meeting
countless enthusiastic and forward thinking individuals, and getting to know
so many extraordinary people throughout our county and state. My professional career and personal life have been, and will continue to be, enriched by
so many of these relationships, and for that I am truly fortunate. As President
of the SCBA, I have sought to remain humble and hardworking on behalf of
our association. I have endeavored to represent our membership to the best of
my abilities in connection with issues impacting our profession and the community more generally. I have tried to be present, to participate, and to meaningfully engage on the SCBA’s behalf, and to bring others along with me as I
have done so. While busy everyday with association related activities, there
are several I am personally most proud of. Commitment to the efforts of the
Task Force created this past June to determine if and how the SCBA should
Legal Articles
Bench Briefs .............................................4
Commercial Litigation .........................20
DMV........................................................21
Second Circuit Briefs ............................21
Academy News .......................................32
Among Us .................................................7
Calendar: Academy ...............................32
Calendar: SCBA ......................................2
CLE offerings.........................................24
Future Lawyers Forum .........................14
Freeze Frame..........................................16
(Continued on page 27)
BAR EVENTS
Annual Meeting
Monday, May 2, 6 p.m., Bar Center
Election of officers, awards of recognition and Golden
and Diamond Anniversary awards
$30 per person. Buffet dinner.
Defensive Driving
Thursday, May 5, 6 – 9 p.m., Bar Center
Call the Bar Center for reservations.
$60 pp., $70 same day reservation.
Dinner included.
SCBA Pro Bono Foreclosure Settlement
Project Luncheon
A special thank you for attorney volunteers.
Friday, May 6, 1 p.m.,, Bar Center.
Reservations required.
Installation Dinner Dance
Friday, June 3,
Cocktails 6 p.m., program 7:15 p.m.
Hyatt Regency Wind Watch Hotel, Hauppauge
Reservations required. Call the Bar Center.
Ducks Game
Thursday, June 23
5 p.m. picnic, 7 p.m. game
Long Island Ducks take on the Camden Riversharks
Bethpage Ballpark
Tickets are $30 apiece and include a pre-game barbeque
at picnic grounds. Call the Bar Center.
2
THE SUFFOLK LAWYER — MAY 2011
Suffolk County
Bar Association
560 Wheeler Road • Hauppauge NY 11788-4357
Phone (631) 234-5511 • Fax # (631) 234-5899
E-MAIL: SCBA”SCBA.ORG
Board of Directors 2010-2011
Sheryl L. Randazzo............................................................................................President
Matthew E. Pachman................................................................................President Elect
Arthur E. Shulman ............................................................................First Vice President
Dennis R. Chase ...........................................................................Second Vice President
William T. Ferris................................................................................................Treasurer
Donna England ..................................................................................................Secretary
Hon. W. Gerard Asher .............................................................................Director (2011)
Annamarie Donovan ................................................................................Director (2011)
Joseph A. Hanshe.....................................................................................Director (2011)
George R. Tilschner.................................................................................Director (2011)
Derrick J. Robinson .................................................................................Director (2011)
Cheryl F. Mintz........................................................................................Director (2012)
Lynn Poster-Zimmerman .........................................................................Director (2012)
Richard L. Stern.......................................................................................Director (2012)
Kerie Pamela Stone..................................................................................Director (2012)
Michael J. Miller .....................................................................................Director (2013)
Hon. William B. Rebolini........................................................................Director (2013)
Wayne J. Schaefer....................................................................................Director (2013)
Thomas J. Stock.......................................................................................Director (2013)
James R. Winkler .............................................................Past President Director (2012)
Ilene S. Cooper ................................................................Past President Director (2013)
Sarah Jane LaCova .............................................................................Executive Director
r
a
d
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e
l
a
C
OF
April 2011
19 Tuesday
20 Wednesday
21 Thursday
25 Monday
26 Tuesday
28 Thursday
29 Friday
MAY 2011
2 Monday
3 Tuesday
5 Thursday
6 Friday
9 Monday
10 Tuesday
11 Wednesday
12 Thursday
14 Saturday
17 Tuesday
18 Wednesday
23 Monday
25 Wednesday
All meetings are held at the Suffolk County Bar
Association Bar Center, unless otherwise specified.
Please be aware that dates, times and locations may
be changed because of conditions beyond our control.
Please check the SCBA website (scba.org) for any
changes/additions or deletions which may occur.
For any questions call: 631-234-5511.
“The purposes and objects for which the Association is established shall be cultivating the science of jurisprudence, promoting reforms in the law, facilitating
the administration of justice, elevating the standard of integrity, honor and
courtesy in the legal profession and cherishing the spirit of the members.”
Important Information from the Lawyers Committee on Alcohol & Drug Abuse:
Thomas Moore Group
Twelve-Step Meeting
Every Wednesday at 6 p.m., Parish Outreach House, Kings Road - Hauppauge
All who are associated with the legal profession welcome.
LAWYERS COMMITTEE HELP-LINE:
631-697-2499
We wish to Acknowledge those who contributed to the
Lawyer Assistance Foundation
Donors
Jane and Joe LaCova
Purpose
In memory of Dr. Albert Sherwyn
High School Scholarship Fund
Lynne Adair Kramer
In memory of Dr. Albert Sherwyn
Walter & Annamarie Donovan
In memory of our son, Frank Joseph
Walter & Annamarie Donovan
To honor our children, Adele and Walter III,
who always make us proud
ASSOCIATION MEETINGS AND EVENTS
Commercial & Corporate Law Committee, 5:30 p.m., Board Room
Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.
Health & Hospital Law Committee, 5:30 p.m., Board Room.
Professional Ethics & Civility Committee, 5:30 p.m., Board Room.
Board of Directors, 5:30 p.m., Board Room.
Surrogate’s Court Committee, 5:30 p.m., E.B.T. Room.
Solo & Small Firm Practitioners, 5:00 p.m., Board Room.
Intellectual Property Law Committee, 6:00 p.m., Board Room.
Annual DLWP Dinner, 6:00 pm-11:00 pm, Crest Hollow
Country Club, Woodbury. Call Dennis Chase for reservations,
631-348-7500.
SCBA’s Annual Meeting, 6:00 p.m., Bar Center, $30 per person.
Election of Officers, Directors and Members of the Nominating
Committee. Awards of Recognition, Golden Anniversary Awards and
Annual SCBA High School Scholarship Award. Special recognition
to Officers and Directors of the SCBA and Academy of Law whose
terms have expired. Register on line at marion@scba.org
Bench Bar Committee, 6:00 p.m., Board Room.
Municipal Law Committee, 6:00 p.m., Board Room.
Defensive Driving Course, 6:00 p.m. to 9:00 p.m., Registration and
Dinner start at 5:30 p.m., Bar Center. $60/person (SCBA members,
staff and family) $70/person for same day registration).
Receive 10% discount on all vehicle liability, PIP and collision
insurance premium for three years and a four point reduction on
driving record. Register on line at marion@scba.org
Special Luncheon to Recognize Pro Bono Attorney Volunteers,
1:00 p.m., Bar Center.
Executive committee, 12:30 p.m., Board Room.
Insurance & Negligence- Defense Counsel Committee, 5:30 p.m.,
E.B.T. Room.
Education Law Committee, 1:00 p.m., Board Room.
Pro Bono Foundation, 745 a.m., Board Room.
Criminal Law Committee, 5:30 p.m., E.B.T. Room
SCBA’s Animal Law Committee & Suffolk Academy of Law present
the Third Annual Dog Day Afternoon Agility Expo and Pet Fair,
10:00 a.m. to 4:00 p.m., St. Joseph’s College, 155 W. Roe Boulevard,
Patchogue. $10 per car.
Surrogate’s Court Committee, 5:30 p.m., Board Room.
Labor & Employment Law Committee, 8:00 a.m., Board Room.
Solo & Small Firm Practitioners Committee, 5:00 p.m., Board Room.
Board of Directors meeting, 5:30 p.m., Board Room.
Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.
Professional Ethics Committee, 5:30 p.m., Board Room.
THE
SCBA
Our Mission
SUFFOLK LAWYER
Publisher
LAURA LANE
Long Islander Newspapers
in conjunction with
The Suffolk County Bar Association
Editor-in-Chief
DOROTHY PAINE CEPARANO
The Suffolk Lawyer is published monthly, except for the months of
July and August, by The Long Islander Newspapers under the auspices
of The Suffolk County Bar Association.© The Suffolk County Bar
Association, 2011. Material in this publication may not be stored or
reproduced in any form without the express written permission of The
Suffolk County Bar Association. Advertising offices are located at The
Long Islander, LLC, 149 Main Street, Huntington, NY 11743, 631427-7000.
Academy News
Leo K. Barnes, Jr.
Eugene D. Berman
John L. Buonora
Dennis R. Chase
Elaine Colavito
Send letters and editorial copy to:
Ilene S. Cooper
The Suffolk Lawyer
Justin Giordano
560 Wheeler Road, Hauppauge, NY 11788-4357
Fax: 631-234-5899
Website: www.scba.org
Robert M. Harper
David A. Mansfield
Craig D. Robins
E.Mail: scbanews@optonline.net
or for Academy news: editor@scba.org
Frequent Contributors
The articles published herein are for informational purposes only. They do not reflect the opinion of The Suffolk County
Bar Association nor does The Suffolk County Bar Association make any representation as to their accuracy. Advertising
contained herein has not been reviewed or approved by The Suffolk County Bar Association. Advertising content does
not reflect the opinion or views of The Suffolk County Bar Association.
To Advertise in
The Suffolk Lawyer
Call
(866) 867-9121
The Suffolk Lawyer
USPS Number: 006-995) is published monthly except July and August by Long Islander, LLC, 149 Main
Street, Huntington, NY 11743, under the auspices of the Suffolk County Bar Association. Entered as periodical class paid postage at the Post Office at Huntington, NY and additional mailing offices under the Act
of Congress. Postmaster send address changes to the Suffolk County Bar Association, 560 Wheeler Road,
Hauppauge, NY 11788-4357.
3
Employer Obligations in the Social Media Age
__________________
By Seth M. Weinberg
Negligent hiring and negligent retention are two closely related torts that are
based heavily on an employer’s knowledge of the behavior of its employees.
These twin torts have evolved in an age
when most information was out of an
employer’s reach. The world has changed
at a much faster rate than the law has.
Now, unlike when these torts first developed, information is not only easily
accessible, but it is also cheaply accessible. This may lead to a duty being placed
on employers to search the internet for
information about their prospective and
current employees.
Prior to the internet age, defendants in
negligent hiring and retention cases had
mounted successful defenses by arguing
there was no reasonable way for them to
know of their employee’s potential to
injure third parties. Even if such information was available, it was so expensive to
obtain that it was unreasonable to do so.
As the internet has developed, access to
information has increased, while costs
have decreased.
The next wave of litigation in negligent
hiring/retention will not involve the relationship between the parties, but will
reformat the discussion of what information an employer should reasonably know
both before hiring a person and while
they employ them. The new paradigm
will not revolve around the ability to
access information, as it was before the
internet age, but whether or not an
employer has a duty to obtain information
from easily accessible and cheap sources.
The elements of negligent hiring are:
• The defendant’s employee behaved in a
tortious manner
ground checks would have a
• The employer had knowledge
chilling effect on business.
of facts that would cause a reasonable prudent person to furThe Twin Torts in the
ther investigate
• That the employer could reainternet age
sonably have anticipated that
At least one court has applied
the employee’s history would
the pre-internet restatement
indicate likely injury to others
approach to an internet age fact
• Defendant failed to use reasonpattern. In Doe v. XYC
able care in hiring the employee Seth M. Weinberg Corporation, 887 A.2d 1156,
N.Y. PJI 2:240.
2005 (N.J. App. Div. 2005) the
court imposed a duty on an employer who
The elements of negligent retention are:
allowed its employee to access child
• The defendant’s employee behaved in a pornography on a company computer. In
tortious manner
this case, the employee not only viewed
• The employer had knowledge of facts child pornography on the company comthat would cause a reasonable prudent puter, but also transmitted pornographic
person to further investigate
photographs of his stepdaughter. The
• That the employer could reasonably child’s mother sued the employer for neghave anticipated that the employee’s ligent retention. After reviewing the
conduct would indicate likely injury to employer’s knowledge of the employee’s
others
activities, the employer’s ability to monitor
• Defendant failed to use reasonable care the employee’s activities, and the employin retaining the employee
er’s choice not to intervene, the court held
N.Y. PJI 2:240
that the employer owed plaintiff a duty.
The Twin Torts in the typewriter age
Stevens v. Lankard, 31 A.D.2d 602 (N.Y.
App. Div. 2d Dep’t 1968), is a prime example of how pre-internet practices could be
used as a shield to employers. In this case,
an employer who conducted regular prehiring background checks was not aware of
a prospective employee’s prior conviction
for sodomy in Pittsburgh Pennsylvania.
The only negative history the defendant
employer was aware of was a report that
the employee purchased alcohol for
minors. The employee then sexually
assaulted a young customer, and his
employer was sued for negligent
hiring/retention. The case was dismissed
because the court concluded that forcing a
duty on employers to do detailed back-
Returning to [Restatement] § 317,
all of the requirements for liability in
that section are present here. The
servant was ‘using a chattel of the
master’ and the master both ‘knows
or has reason to know that he has the
ability to control his servant’ and
‘knows or should know of the necessity and opportunity for exercising
such control.’ Under these circumstances, a risk of harm to others was
‘reasonably within the master’s
range of apprehension.’
XYC Corp., 887 A.2d at 1168.
What is perhaps more interesting than the
outcome of this case, is the analytical
Meet Your SCBA Colleague
_____________
By Laura Lane
You appear to always have been
involved in some way in family law?
Why did you choose it? I always had an
interest in family law because it has a feel
good component. Once in a while you get
a glimmer of, ‘I did do something good.’ I
also like the stress of being on trial; I like
the adrenaline.
Your journey to becoming an attorney
began when you decided to be a paralegal. Actually I thought of it before that.
They had just started showing televised
trials and I watched them everyday. I
thought of going to law school but I didn’t
know how to finance it. I decided to
become a paralegal first and went to
school for that.
Then what happened? I worked as a
paralegal for criminal attorney Andrea
Lannak, after college and was with her for
10 years. She really was instrumental in
supporting me to go to law school. She
kept encouraging me, telling me I was
smart. Actually being a paralegal ended up
being a great foundation for me. I got to
know a lot of people at the courthouse and
the bar association.
Andrea kind of paved the way for you
to be able to go to law school didn’t
she? Yes, she adjusted my schedule so I
could go to law school. She was my
mentor. And Andrea is why I became
interested in family law. She let me help
her prep trails; it was just the two of us.
She got me involved in politics, would
take me to Criminal Bar Association
functions. She was very active and
pulled me into her world. She always
brought me up to her level, treated me as
her contemporary.
Do you mentor anyone now? No I
wouldn’t say that but I am the go-to person. I’m always available to have things
run by me, always accessible. People call
me and ask me questions. And it helps me
too, makes me a better lawyer.
You had planned to go into practice
with Andrea but didn’t. What happened? When I was in my last year of law
school Andrea decided to retire. She
referred me to Peter Caronia which ended
up being the only interview that I went on.
I went to work for Reynolds, Caronia,
Gianelli & Hagney and was asked to
become a partner after only five years.
A woman becoming a partner was a big
deal then, right? They are one of the best
firms in Suffolk County so yes it was, and
I was the only woman at the time at the
firm.
But then your life changed unexpectedly soon after. I got pregnant with my first
daughter in 2006 and resigned in 2007. I
approach taken by the court. The XYC Corp.
court was able to make a high-speed internet
peg fit into a typewriter style hole. Courts
may take such an approach in the future.
What if an employee had a
Facebook.com page, in which he wrote
about himself, “my name is John Doe and
I’m an alcoholic. I work for ABC trucking, and odds are I can beat you in a fist
fight.” Or just before leaving a bar in a
company car posts a “tweet” from his cellular phone that says “Just finished beer 6
and I’m driving home.” What happens
when the employee drives a company car
while drunk? Under the logic of XYC, a
court could allow such a case to go to a
jury. The employee used the employer’s
car, and a plaintiff would argue that had
the employer simply typed the employee’s
name into Google he would have known
that the employee drove drunk on prior
occasions and should have taken action.
Prior to the age of the internet and
social media, it was difficult, if not
impossible, to search an employee’s
background in a cost effective manner.
This has changed. What used to be an
onerous task can now be attempted with
nothing more than a smart phone. As
employees post more information about
their personal lives on social media sites
that could warn an employer of problems
down the road, courts and juries may
start to ask why the employer did not
take the less than 5 minutes to search for
a Facebook or Twitter account. This
potential exposure to litigation should be
considered by businesses of all types and
sizes when looking for new employees
and evaluating current ones.
Note: Seth M. Weinberg is an Appellate
Associate with the firm of Lewis Johs
Avallone Aviles, LLP. www.lewisjohs.com.
Dawn L. Hargraves,
a family and matrimonial law
litigator, thought she would be a stockbroker. Then she fell in love
with the law.
opened my own practice then and I
became of counsel to partners at Reynolds
Caronia, Gianelli, Hagney, LaPinta &
Quatela.
Now you have two young daughters.
How do you do it? I’m not afraid to ask
for help. And you have to be organized –
makes the ship sail sooner. I also have a
great husband who has supported my decision to go back to work.
What would you be doing if you weren’t
an attorney? I’d still be a philanthropist.
I do things now quietly. It’s not a good
deed when you tell somebody. Sometimes
I help friends, sometimes strangers. I’ve
taken on clients pro bono that were crying
while standing on line at the Clerk’s
Office. Actually I always have three pro
bono cases at a time. That’s one type of
philanthropy that I do.
You’ve been a member of the SCBA for
a long time. I joined as a law student
member and was the liaison between
Touro and the SCBA.
Why would you tell people to join the
SCBA? It promotes a community
among lawyers. Not only are we practicing together in the halls of courthouses
but we’re together at the bar. It adds a
social aspect to it that I think is important; promoting camaraderie among us.
Clients may not see that as a benefit but
Dawn L. Hargraves
I think it is.
How? It makes practice more efficient.
Instead of running to court we’ll make a
phone call to each other first. It could
avoid the making of a motion for example.
What else are you passionate about
besides the law? My daughters, Kate and
Kimberly and my family. Being an older
mom you put it all into perspective. I don’t
think there’s anything better than being a
mom.
4
Caps Not Enacted in Albany
The New York Center for
Neuropsychology
& Forensic Behavioral Science
Dr. N.G. Berrill, Director
[ Over 20 Years \
Providing Consultation to Attorneys
& the Courts on Psycho-legal Matters
• Criminal Cases: Competency Issues, Criminal
Responsibility, Extreme Emotional Disturbance, Risk
Assessment, Sex Offender Workups & Dispositional
Planning
• Matrimonial & Family Court Cases:
Custody/Visitation, Neglect/Abuse, Termination,
Delinquency, Family Violence, & Adoptions
_______________
By Craig Purcell
Medical Indemnity Fund for
birth related neurological
The good fight put up by the
injuries created
New York State Bar Association
The legislature and the goveragainst major medical malpracnor did agree that a fund should
tice reform, and supported by
be created to cover the cost of
many other associations includfuture medical care for those
ing the Suffolk County Bar
infants that have been found by
Association, resulted in a budget
a jury, court or through a settlebeing passed on or about April 1
ment to have sustained a birthwhich did not contain some of Craig T. Purcell related brain injury due to medthe more draconian provisions proposed ical malpractice. “Qualified Plaintiffs”
by the governor.
will not receive funds from the defendants
Most significantly, the $250,000 cap on in the medical malpractice lawsuit for
non-economic damages in medical mal- future medical expenses; instead, they will
practice cases did not become part of the be reimbursed for medical expenses by the
budget that was adopted, and therefore fund, or their provider will be reimbursed
was not enacted into law. Of equal impor- by the fund.
tance, three CPLR amendments proposed
While this fund was opposed by the
by the governor concerning expert wit- New York State Bar Association, SCBA
nesses in medical malpractice cases were and other groups, the governor and the
not enacted. These provisions would have legislature came to an agreement that it
required a lawyer commencing a medical would be part of the budget. Our undermalpractice action to file a certificate of standing of the new law is that hospitals
merit indicating that he or she had will be assessed and required to make
received opinions from specialists in the contributions to create the fund. The inifield of each individual defendant. This tial budget for this fund will be $30 milwould have required, for example, an lion for the fiscal year beginning April 1,
opinion from a surgeon if one of the 2011. The fund will be replenished on a
defendants was a surgeon, from an anes- yearly basis.
thesiologist, if one of the defendants was
One of the interesting provisions with
an anesthesiologist, and so forth. In addi- respect to the fund is that if 80 percent of
tion, the governor’s proposal requiring its assets have been depleted during the
that all experts in medical malpractice fiscal year, no new applications will be
cases be deposed was not enacted. Finally, taken and the claimant who was turned
the requirement that the expert’s identity away will continue to seek damages
be revealed was also defeated. These three through the court system as if the fund had
changes would have made it extremely not been created.
difficult for lawyers to afford to take malAlso of import is that the governor’s
practice cases because of the incredible proposal gave the Commissioner of the
additional expenditure involved in expert Department of Health complete discretion
fees, and would have also made physi- as to whether to accept a child into the
cians reluctant to serve as experts.
• Civil Cases: Competency Issues, Head Trauma,
Sexual Harassment, Discrimination, Immigration,
BENCH BRIEFS
_________________
By Elaine Colavito
& Post-Traumatic Stress Disorders
SUFFOLK COUNTY
SUPREME COURT
Honorable Paul J. Baisley, Jr.
Comprehensive Diagnostic &
Treatment Services
26 Court Street, Suite 912, Brooklyn, NY 11242
718-237-2127
45 North Station Plaza, Suite 404, Great Neck, NY 11021
516-504-0018
139 Manhattan Avenue, New York, NY 10025
212-280-3706
WWW.NYFORENSIC.COM
Traverse hearing ordered; if purported
service of summons and complaint was
defective it could not be cured by the
subsequent service of an amended pleading.
In David Jannetti v. Sebonac
Associates, LLC, Index No.: 28866/10,
decided on February 4, 2011, the court
granted the defendant’s motion for an
order pursuant to CPLR 3211(a)(1), (7),
and (8) dismissing the complaint to the
extent of referring the matter for a traverse hearing. In rendering its decision,
the court noted that plaintiff commenced
this action for specific performance of an
alleged contract to purchase real property
in August 6, 2010. Plaintiff purportedly
served defendant the same day by delivery of the summons and verified complaint and notice of pendency on “Nicole
Russo,” alleged in the affidavit of service
to be the “managing agent or general
agent” of defendant. Thereafter, on
September 8, 2010, defendant, by counsel
interposed a pre-answer motion to dismiss the complaint pursuant to CPLR
3211(a)(1), (7), and (8)on the basis of
documentary evidence, failure to state a
cause of action, and lack of personal jurisdiction. On September 10, 2010, plaintiff
purported to serve an amended complaint
on defendant’s attorney by regular mail,
and on September 21, 2010, plaintiff purported to serve an amended complaint on
defendant pursuant to Limited Liability
Company Law §303 by delivery of the
summons and amended verified complaint to the Secretary of State. Defendant
thereupon moved to dismiss the amended
verified complaint, asserting the same
grounds as in the first motion. Defendant
further asserted that the purported amendment of the complaint was a nullity and
that the two purported attempts at service
of the amended complaint were insufficient to confer jurisdiction over the defendant. The court ordered a traverse hearing
noting that if the purported service of the
summons and verified complaint was
defective, then it could not be cured by
the subsequent service of the amended
pleading, even if the subsequent service
was within the 120-day period of CPLR
§306 b.
Plaintiff’s motion granted to the extent
that plaintiff was entitled to an adverse
inference charge at the time of trial as a
result of defendant’s spoliation of evidence; plaintiff manifestly disadvantaged
by the inability to conduct an inspection of
the physical evidence.
In Dawn Marie Lentz v. Nic’s Gym
Incorporated, Index No. 23445/05, decided on June 30, 2010, the court granted
plaintiff’s motion to the extent that plaintiff was entitled to an adverse inference
charge at the time of trial as a result of
defendant’s spoliation of evidence.
Defendant was further directed to reim(Continued on page 23)
5
YEAR IN REVIEW
Photo credit: Barry Smolowitz
OCTOBER 2010
Every year is packed full of interesting
moments at the Suffolk County Bar
Association. There’s always a great deal
of fun, camaraderie, and educational
opportunities available for everyone to
enjoy. Below I’ve listed but a sampling of
some of the events that members enjoyed
this past year. If you missed them, remember that it’s never too late to become
involved at the SCBA.
--- Lane
Administrative Judge H. Patrick Leis III
joined Suffolk District Court Judge John
Toomey, Jr., who will run the court, Rep.
Steve Israel (D-Huntington), Hon. Judy
Harris Kluger, Chief of Policy and Planning,
New York State Courts, and Philip
Moschitta, Director Northport VA Medical
Center at the dedication of the new court.
Support for the new Veterans Court was
evident by the standing room only crowd
that included so many veterans.
JUNE 2010
held its annual Judiciary Night on Oct. 12
at the Hamlet Wind Watch Golf &
Country Club in Hauppauge. This event is
scheduled to honor and acknowledge, in a
small way, the enormous contribution
Suffolk County’s Judiciary makes to our
community.
The theme of this year’s celebration was
Octoberfest, which translated into an
evening of good food, good beer and good
company. It was an evening where members of the bench and bar could renew old
acquaintances and converse in a relaxed
and congenial atmosphere.
FEBRUARY 2011
NOVEMBER/DECEMBER 2010
SEPTEMBER 2010
MAY 2011
MARCH 2011
Photo: Office of SC District Administrative Judge
Members of the Suffolk County Bar
Association and friends celebrated the dedication and extraordinary commitment of
eight volunteer attorneys at the SCBA Pro
Bono Foundation Recognition Night held
at the Watermill Restaurant.
“This evening we will celebrate the
accomplishments and exemplary work of
Suffolk County volunteer attorneys who
have donated more than one million-dollars
worth of legal service to the under represented,” said Pro Bono Foundation
Managing Director and SCBA Second Vice
President Dennis R. Chase. “The Suffolk
County Bar Pro Bono Foundation’s
strength springs from the many talents and
professional dedication of the attorneys
who have truly distinguished themselves
by providing representation to clients who
have nowhere else to turn for legal help.”
Mr. Chase said that “Honoring those
attorneys demonstrating a genuine commitment to pro bono legal services not
only serves as role models for their colleagues, moreover, when examining their
individual motivation for doing so, there is
a common theme . . . the joy they derive
from their ability to assist those in dire
need and the heartfelt thanks they receive
from being able to do so.”
sponsored a judicial swearing-in and robing ceremony on January 10 for 11 members of the Suffolk County Judiciary at
Touro Law Center in Central Islip. A
standing room crowd of dignitaries and
well wishers were in attendance to mark
the momentous occasion.
Sheryl Randazzo, president of the
SCBA and host of the ceremony, welcomed the members of the bench, dignitaries, colleagues, their families, friends
and well wishers.
Although each judge’s accomplishments were diverse, a common thread ran
through their responses - gratitude, and
plenty of it. From political leaders to running mates, campaign managers, mentors,
parents, family and friends - all received
their due. The judges all said they were
pleased to be serving the public and would
wear the black robes with pride.
Even though they came from different
legal backgrounds when broken down to
their most common denominator, each of
the 11 re-elected or newly elected judges
shared something very serious – a strong
love for the rule of law and for justice.
“Weary and feeling small,” to quote
Simon and Garfunkel, might be an apt
description of many a new lawyer.
Struggling over a motion, deciphering a
convoluted statute, or taking timid first
steps into the courtroom, the newly admitted may find themselves awash in fatigue
and afloat in diminished confidence. But
help was available at the SCBA. Ferris and
Kunken, the Academy’s “Simon and
Garfunkel,” the novice attorney’s “bridge
over troubled water,” eased the minds of
those traversing the shaky path from law
school to law practice.
Stephen Kunken and William Ferris
have served as chairs of the Academy’s
“Bridge-the-Gap Program for New
Lawyers” for more than a decade. They
brought their years of experience as
skilled practitioners to those who attended
a two-day, 16-credit, transitional training
program featuring a faculty of highly
regarded lawyers and judges who not only
shared their inestimable skills and insight,
but exuded empathy and concerned kindness for the newly admitted.
It was a glorious day by all accounts.
Captain Amanda Cash skippered the stalwart band of fishing devotees aboard the
Osprey V, a 65 foot private fishing boat.
The captain and her experienced crew
baited the hooks and a record number
(about 300) of porgies, blues and sea bass
were caught - and that’s no fish story.
JANUARY 2011
Meanwhile, at Rock Hill Country Club,
golfers teed off and competed in individual
contests and tests of skill. Awards were
presented at the evening’s sumptuous banquet which featured lobsters, clams, mussels, chicken and corn on the cob.
The course was in excellent condition
and the tournament produced a record number of players who took up the challenge.
The theme was leadership on Thursday,
June 3 at the gala evening celebration
when Sheryl L. Randazzo was sworn in as
the 102nd President of the Suffolk County
Bar Association.
Justice Leis administered the Oath of
Office to Ms. Randazzo who said that six
years ago she asked him if he would do
the honor of swearing her in when the
time came to be inducted President.
After thanking Justices Sgroi and Leis,
members of Judiciary, officials, dignitaries, colleagues, family, and friends, the
newly inducted President Randazzo said
that the focus of the year ahead will be
“celebrating our membership.”
APRIL 2011
The SCBA rang in the holidays by hosting a wonderful holiday party at the bar
center. Festival holiday decorations
adorned the Great Hall including a beautifully decorated Christmas tree. Members
enjoyed the evening with family and
friends.
Suffolk County veterans facing criminal
charges will soon be the beneficiaries of a
problem-solving court created to offer onsite support and access to the needed services that can change their lives.
The Veterans Court, a judicially supervised treatment court, was officially
announced during a very well attended ceremony on Feb. 7 at the Cohalan Court
Complex. Suffolk County District
Jon Gordon, the speaker at the Suffolk
County Bar Association’s May Membership Appreciation event succeeded in holding everyone’s attention and he fielded
several tough questions as well.
The author of five international best
sellers, including The Energy Bus, which
he brought along with him for purchase,
Mr. Gordon is a success story. His books
have been featured on CNN, NBC’s Today
Show and in Forbes, Fast Company, O
Magazine, The Wall Street Journal and
The New York Times.
President Sheryl Randazzo has been
one of Mr. Gordon’s biggest fans for some
time even giving his book, The Shark and
the Goldfish to those who attended her
installation last June. She couldn’t have
asked for anything better than having Mr.
Gordon as the speaker for Membership
Appreciation.
6
Applying Legal Strategies to Destroy a Legacy
What
was Abraham Lincoln thinking?
______________
By Bruce Seger
This spring marks the sesquicentennial of the beginning of the Civil
War. Special ceremonies are taking
place to commemorate the soldiers
who served during that war. None
sacrificed more than the Afro
Americans who during the Civil War
Bruce
endured rejection, discrimination
and injustices beyond the usual suffering of war.
Many of them are interred in private and public
cemeteries throughout Long Island including
the National Cemetery, Farmingdale, Suffolk
County, New York. What was Lincoln thinking
that motivated his decisions during this horrific
period in our history?
Prior to his presidency, Lincoln indicated his
views concerning slavery in several telling statements. In response to the Kansas Nebraska Act
(1854) which opened the possibility of the expansion of slavery in the Midwest, Lincoln delivered
a three hour speech expounding the moral and
legal reasons for the unjustness of slavery.
In 1855, Lincoln wrote the following to
Joshua Speed who many considered his closest
friend, “As a nation, we begin by declaring that
‘All men are created equal.’ We now practically read it “all men are created equal, except
negroes.” In his “House Divided” Speech
(1858), Lincoln states, “I believe this government cannot endure permanently half slave and
half free.” In 1860, one of the platforms on
which Lincoln ran was to not expand slavery.
What was Lincoln thinking?
That the concept of slavery was unjust.
In his inaugural address in March 1861,
Lincoln proclaimed that he had “no purpose,
directly or indirectly, to interfere with
the institution of slavery in the states
where it exists” or of repealing the
Fugitive Slave Law.
upon his person the brass letters, U.S.; let him
get an eagle on his button, and a musket on his
shoulder and bullets in his pocket, and there is
no power on earth which can deny that he has
earned the right to citizenship.”
That he needed to appease the citizens of southern states, especially
Seger
Border States and also many
Northerners who were not interested in fighting for the emancipation of persons of
African descent. (Stephen B. Oates, Lincoln
biographer states that Lincoln had consistently held an antislavery stand, but was concerned that an emancipation policy would
“ignite a racial powder keg in the Northern
states, and possibly cause a civil war in the
rear.”)
At the beginning of the war in April 1861,
free black men attempted to enlist in the Union
Army, but Lincoln and the War Department
would not permit it. If necessary they could
invoke a federal law passed in 1792 that barred
black men from bearing arms for the U.S. Army.
That allowing the enlistments would cause
Border States to secede. Even though the
1792 federal law was ignored in previous U.S.
wars, it would serve a purpose, if necessary.
Black abolitionists, such as Frederick
Douglass pressured the government from the
onset for the inclusion of black men in the war
effort. The abolitionists believed that in so
doing, it would be difficult to ultimately deny
them citizenship.
Douglass said, “Once let the black man get
That the social climate far outweighed the
wishes of abolitionists. The overall response
of all states had to be considered. The expedient course was to refuse their enlistments.
In August 1861, the 37th Congress passed,
and Lincoln signed, the First Confiscation Act
which allowed for the seizure of Confederate
property including slave property which was
being used for the war effort. By December
1861, Congress reopened the issue of confiscation because the first act needed more specificity and extension. Congress debated the issue of
confiscation for six months and finally, in July
1862, the Second Confiscation Act was passed.
Its content permitted the Union government to
seize all real and personal property of anyone
taking up arms against the Union government,
aiding the rebellion directly or offering aid or
comfort to the Confederates. It further called
for the immediate liberation of all slaves who
escaped to Union lines and authorized the president to employ black men in the suppression of
the rebellion in any manner he deemed best.
Before Lincoln would sign the Act into law, he
made it clear to Congress that he would veto the
legislation if they did not include a joint
explanatory resolution stating that property
seized could not be kept beyond the lifetime of
those found in violation of the law. The resolution was included and Lincoln signed the act.
That permanent seizing of one’s property
Thank you Foreclosure Settlement Project
The Suffolk County Bar Pro Bono Foreclosure Settlement Conference recognizes
and pays special tribute to Tracy Harkins who covered 18 court appearances this
month. Ray Lang who has been volunteering since the Project’s inception covered
11 court appearances this month. The Project would also like to acknowledge the
special volunteers who have stepped up to the plate to represent the people of
Suffolk County who have been impacted by the foreclosure crisis:
Susan Beckett
James Corcoran
Howard Grafstein
Richard Lavorata
Brenda Morales
Grace Morales
Karen Napolitano
Mark Needlemar
Jason O’Hare
Eric Sackstein
Janice Sheas
Glenn Warmuth
Ivan Young
Thank you to our new Administrator Erin Young and Barry M. Smolowitz who
continues to administer the Project. The Project will be hosting a special luncheon
on Friday, May 6th, 2011 at 1:00 p.m. in the Great Hall of the Bar Center.
New York State Bar Association President Stephen Younger and other
distinguished members of the Bench and Bar, court personnel and members from the
Touro faculty and law students will be joining us to congratulate
the many people who are involved in this project.
~LaCova
Ballpark Fun
Join the Suffolk County Bar Association for an
exciting night of baseball on Thursday, June 23, as
the Long Island Ducks take on the Camden
Riversharks at Bethpage Ballpark. Tickets, which
are $30 apiece, include admission to the game and
a pre-game barbeque at the picnic grounds at 5 p.m.
To reserve your tickets, contact Jane LaCova at (631)
243-5511. Tickets are expected to sell out quickly.
Reserve your tickets today for this popular event.
D
AVOI
MALPRACTIC
E
Law Offices of David M. Sperling
Advisory Opinions Detention Cases Federal Appeals
David Sperling • Viviana Medina • H. Raymond Fasano (of Counsel)
ATTENTION: DEFENSE ATTORNEYS
Supreme Court now requires that defendants be advised
of immigration consequences of their plea.
Padilla V. Kentucky, 559 U.S. — 2010
35 years of experience in Deportation/Removal cases
Offices in Huntington Station and Central Islip
631-232-9555 • www.davidsperlinglaw.com • sperlinglaw”gmail.com
7
SIDNEY SIBEN’S AMONG US
On the Move…
Stanley B. Klimberg has joined
Ruskin Moscou Faltischek, P.C. as partner. He will serve as a member of the
firm’s Energy and Construction Law
Practice Groups.
Andrea Tsoukalas has become a partner at Forchelli, Curto, Deegan, Schwartz,
Mineo, Cohn & Terrana, LLP.
Rose Farrell Lowe has joined the
Garden City law firm of Jaspan
Schlesinger LLP as Of Counsel with the
Tax Certiorari and Condemnation Law
Group. She will continue to specialize in
Eminent Domain, Real Property Valuations
and Land Use Planning.
George Demos, a former candidate for
US Congress in New York’s First District,
has joined Tsunis Gasparis Lustig & Ring.
His practice focuses on internal corporate
investigations, white collar criminal matters, and general complex litigation.
Congratulations…
Congratulations to Pamela J. Nornes,
a partner at DePinto Nornes &
Associates, LLP upon receiving her
LL. M. degree in Taxation.
Alan E. Weiner, partner emeritus at Holtz
Rubenstein Reminick, is being honored with
the New York State Society of Certified
Public Accountants Distinguished Service
Award for his exceptional work, vision, and
contributions to the accounting community.
Alan J. Schwartz, from the
Law Offices of Alan J. Schwartz,
P.C., a small, full service law
firm in Garden City has been
elected to the Board of Directors
and as Vice President of the
Accountant Attorney Networking Group [AANG].
Turley, Redmond, Rosasco &
Rosasco, LLP and Daniel J.
Hansen of the Law Offices of
Daniel J. Hansen hosted a
Webinar titled “9/11 Zadroga Act
Claims: What You Need to Know
About the Victims Compensation
Fund” on March 26.
Congratulations to Hon. Jacqueline M. Siben
Sharon N. Berlin, of Lamb &
Hertha Trotto, District Court
Barnosky, LLP, was one of the
Judge & Acting County Court Judge,
lecturers on the topic “Social Media
retired, on her special recognition at the
Issues in the Workplace” at the 21st
Suffolk County Judicial Committee on
Annual Law in the Workplace ConferWomen in the Courts celebration on April 1,
ence on Feb. 4 sponsored by the Suffolk
2011. The committee also paid a special
County Bar Association.
tribute to the Hon. Betty Weinberg Ellerin,
Rita Fishman Sheena, of Lamb &
Chair of the New York State Judicial
Barnosky, LLP, participated as a panelist
Committee on Women in the Courts.
at a program at Hofstra Law School on
careers in municipal law on Jan. 19.
Russell I. Marnell was once again
named one of Long Island’s Top Legal
Eagles in the area of Divorce Law in the
March 2011 issue of Pulse Magazine.
Announcements,
Achievements &
Accolades…
The Honorable James Hudson has
been appointed the Supervising Judge of
the Criminal Term, Suffolk County, Tenth
Judicial district. Originally elected to the
bench in 2001, Judge Hudson was reelected to the County Court bench this
year and has served as an acting Supreme
Court Justice since 2005.
Troy G. Rosasco from the law firm
Mara N. Harvey , of Lamb &
Barnosky, LLP, presented to the Long
Island Attendance and Professional
Teachers’ Association on the topic of residency on Jan. 19.
Hon. Michael F. Mullen, of Lamb &
Barnosky, LLP spoke on “Four Irish
Nobel Prize Winners” at the Huntington
Lawyers’ Club on March 16.
Managing
Partner
Joseph
N.
Campolo, from Campolo, Middleton &
McCormick, LLP, has been appointed to
the Task Force of the Stony Brook
Children’s Hospital.
Russell I. Marnell co-authored an article published in the March 16, 2011 issue
of The New York Law Journal entitled
Come One Come All
Join the SCBA at our 103rd annual
Installation Dinner Dance on Friday, June
3, at 6 p.m. at the Hyatt Regency Wind
Watch Hotel in Hauppauge. Cocktails at
6 p.m., program, dinner and dancing begin
at 7:15 p.m.
Highlights of the evening will include
the installation of the President, Directors
and Dean of the Academy of Law and the
presentation of the President’s and
Director’s Awards. Join us and dance to
the music of Pierre Lisnade, Hart to Hart
Entertainment. $125 pp. Black tie optional. For reservations, call Marion at (631)
234-5511 ext. 230.
8
Full Consideration Given to Ethical
Questions at Monthly Meetings
_______________________
By Patricia Meisenheimer
DUFFY & POSILLICO AGENCY INC.
Court Bond Specialists
BONDS * BONDS * BONDS * BONDS
Administration • Appeal • Executor • Guardianship
Injunction • Conservator • Lost Instrument
Stay • Mechanic’s Lien • Plaintiff & Defendant’s
Bonds
Serving Attorneys since 1975
Complete Bonding Facilities
IMMEDIATE SERVICE!
1-800-841-8879 FAX: 516-741-6311
1 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts)
NYC Location: 108 Greenwich Street, New York, NY 10006
Diana C. Gianturco
ATTORNEY AT LAW
P.O. BOX 419
LONG BEACH, NY 11561
Tel: 888-805-8282
Fax: 516-706-1275
Text: 321-480-1678
APPEARANCES IN
QUEENS COUNTY
E-mail: DianainQueens”aol.com
The basic tenet of the Professional
Ethics and Civility Committee is to maintain the integrity, skills and competency
of the legal profession by providing guidance relative to ethical questions that
arise in our everyday practice. The importance of professionalism in an adversary
system cannot be understated. Under the
New York Rules of Professional Conduct
it is the lawyer’s obligation to assert the
client’s position in an adversary system,
while maintaining the highest ethical
standards.
As a self-governing profession, it is
sometimes difficult to know how to
approach a problem that arises while maintaining the highest standards of professionalism and civility on a day-to-day basis.
Our membership can turn to the
Professional Ethics and Civility Committee
at any time to request an opinion on ethical
situations that may arise. The goal of our
committee is to promote the fundamental
core values of the legal profession by providing our membership with guidance on
an ethical situation by issuing advisory
opinions on proposed attorney conduct,
giving informal answers to ethical questions and integrating Ethics and Civility
education through CLE programs that have
value and significance to the practicing
attorney.
Recognizing the need to promote civility
and professional behavior, our committee is
Patricia
Meisenheimer
Hon. Caren
Loguercio
Professional Ethics and
Civility Committee
Patricia Meisenheimer and
Hon. Caren Loguercio, Co-Chairs
FOCUS ON
YEAR IN
REVIEW
SPECIAL EDITION
dedicated to coordinating educational programs to provide substantive and practical
advice. A highlight of the year is our annual Ethic’s Movie Night to be held on July
20th. During an evening of camaraderie,
fun, collegiality and animated round table
discussions, based on popular movie clips,
our colleagues are provided with exceptional ethical presentations from members of
Health and Hospital Law Committee
Fulfills Big Agenda
___________________
By William McDonald
This year the Health and Hospital Law
Committee (“HHLC”) saw solid performance from its core members, which culminated in a very successful and informative CLE seminar in January addressing
medical billing and the interplay between
patients, providers and payers. Like a
Hershey’s Kiss packs a big taste of chocolate in a little package, our small but active
committee fulfilled a bigger agenda and put
on a second CLE in April focusing on
Palliative Care and New York’s new
Palliative Care Information Act. Our
Palliative Care CLE allowed our committee
to expand its focus beyond its traditional
emphasis on medical billing issues, which
attracted new members interested in helping
the committee grow.The increased participation in the Palliative Care CLE featured
a physician from Stony Brook Hospital as
well as a retired CEO and RN from a local
hospice. In the coming year I hope to
increase the HHLC’s contact with the
local medical professional community. I
also plan to explore the feasibility of the
Suffolk Academy of Law receiving
accreditation to provide continuing education credits for accountants and physicians
as well. This would allow a committee
like the HHLC, which has a multidisciplinary focus, to attract a broader audience
for future CLE presentations. This could
provide the dual benefits of increasing
revenue for the SAL as well as increasing
networking opportunities for SCBA members.For 2011 and 2012, I encourage any
member of the SCBA to come and learn
about the HHLC. I’d like to see the committee take the next step and put on a
grand event to rival those staged by any
other bar association in the state. Suffolk
County is a first class county. It has world
class beaches and fishing; the Montauk
William McDonald
Thomas J. Force
Health and Hospital Law
Committee
William McDonald and
Thomas J. Force, Co-Chairs
FOCUS ON
YEAR IN
REVIEW
SPECIAL EDITION
lighthouse was the first federal construction project; Grumman built the F-14
Tomcat in Calverton; so there is no reason
why Suffolk cannot be a leader in healthcare. The healthcare industry is the largest
single employer on Long Island, and it
dominates current political and financial
discourse. Multidisciplinary efforts have
become the strategy to compete nationally, as evidenced by the proposed think
tank comprising Brookhaven National
Laboratory, Stony Brook University, and
Cold Spring Harbor Laboratory to compete with the Silicon Valley. The SCBA
has the membership to stage a multidisciplinary event, like a healthcare ball or
other high visibility event, that can bring
together medical professionals, pharmaceutical companies, medical device manu(Continued on page31)
Celebrating Women
______________
By Jane LaCova
Nearly 500 people gathered at the
Melville Marriott for the program “Ready,
Set, Lead! Empowering Women in the
Political Process,” to celebrate Women’s
History Month, and to improve
“Herstory.” The event, which was hosted
by the Nassau and Suffolk Women’s Bar
Associations and the Nassau and Suffolk
County Bar Associations included the
signing of a proclamation by the honored
guests and a panel that included, CNN
Reporter Sandra Endo; founder of the
White House Project and author of
“Closing the Leadership Gap: Add
Women Change Everything,” Marie
Wilson; and all Suffolk County major
party leaders, John Jay LaValle,
Republican Chairperson, Frank MacKay,
The members of the the Ready Set Lead
Planning Committee including Jane
LaCova.
Independence Chairperson, Rich Schaffer,
Democratic Chairperson, and Edward
Walsh, Conservative Chairperson.
The proclamation was signed on
There to mark there day were John Jay LaValle, Chair of Suffolk County’s Republican
Party, Barbara Gervase, President of the Nassau County Women’s Bar Association, Shar
Sugarman, President of the Suffolk County Women’s Bar Association, Linda Kevins,
Committee Chair, Edward M. Walsh, Chair, Suffolk County Conservative Party, Marie C.
Wilson, honored guest, founder and President Emeritus of The White House Project,
Richard H. Schaffer, Chair, Suffolk County Democratic Party, and Sandra Endo, CNN correspondent and moderator.
Appellate Practice Committee Active As Ever
___________________
By Glenn P. Warmuth
The Appellate Practice Committee is a
group dedicated to helping each other work
out the unique issues and challenges that
occur while practicing in the Appellate
Courts. It is not uncommon for members of
our committee to reach out to each other via
email to ask questions and raise issues, particularly when there are looming deadlines.
Many of our members have extensive appellate experience, in both civil and criminal
cases, and they are always willing to answer
questions. Everyone is welcome to attend
out meetings.Our monthly meetings feature
short presentations given by committee
members on various topics followed by an
open discussion forum. Recent presentations have included: a presentation by cochair Michael Kruzynski on Appellate
Division statistics and rates of reversal for
the various departments; a presentation by
Paula Warmuth on motion practice in the
Appellate Division focusing on a sample of
366 motions decided in the Appellate
Division Second Department over a period
of four days; and an account by Kenneth
Cooperstein of his recent successful argument in the Court of Appeals in Matter of
Kese Industries v Roslyn Torah Foundation,
15 NY3d 485 (2010). The Hon. Emily
Pines, Justice of the Supreme Court, is
scheduled to appear at our April 4, 2011
Glenn P. Warmuth
Appellate Practice Committee
Glenn P. Warmuth and
Michael Kruzynski, Co-Chairs
More Than 40 Years Of Significant Experience In:
CONDEMNATION, TAX CERTIORARI, ZONING,
LAND USE LITIGATION, COMMERCIAL
AND REAL PROPERTY LITIGATION
Flower, Medalie
& Markowitz
FOCUS ON
YEAR IN
REVIEW
SPECIAL EDITION
meeting to discuss various topics including
the effect of appeals on litigation in the
Commercial Division. Our open discussions
have featured diverse topics including:
appeals from orders to show cause; methods
of expanding the appellate record; in-house
printing versus professional appellate print(Continued on page 19)
24 E. Main Street Suite 201
Bay Shore, NY 11706
(631) 968-7600 Fax: (631) 665-4293
9
10
Huntington’s Proud Heritage
_________________
By Cornell V. Bouse
The Huntington Lawyers Club, at one
time dying as the last of a breed, is now
stronger than ever. Today the club, which
was founded in 1934 by lawyers of
Huntington intending to bring a few colleagues together on a monthly basis with
an outward agenda of learning and sharing
ideas and tactics on the practice of law,
accomplishes so much more. Its success
lies in its creation of an uniquely-knit circle of members who enjoy socializing
together in a less than formal setting to
compare legal stories, life experience and
opinions by listening to guest speakers,
colleagues, and, of course, themselves.
Now, 77 years later, and with a membership that is more than 200 strong, not
much has changed in that regard. The
Club’s forefathers would be proud.
Over 50 lawyers’ clubs existed on Long
Island, in the early part of the twentieth
century, most of which were based upon a
specific town or geography. The
Huntington Lawyers’ Club is the last of its
kind remaining in Suffolk County, with
only one lawyers’ club left standing in
Nassau County. Over the decades, the
Huntington Lawyers Club went through
various struggles but always managed to
continue even during difficult moments in
history including the Depression,
giving the club the character it is
a world war, numerous economic
famous (or infamous) for. Within
downturns, drastic changes in the
the last six months alone over 20
practice of law and the formation
new members have joined which
of countless alternative profesis credited to the recent positive
sional organizations.
apparent changes in the club. The
The club has gone through a
group’s appreciation has been
renaissance in the last year
reaffirmed of the value of connectreturning to an appreciation of
ing with colleagues and jurists on
the value of its history and the Cornell V. Bouse
a social level at fine dining venues
high ideals that go with it. We’ve
within the Town of Huntington.
left behind the stale days of low budget
In February, our dinner was held at
meals at often embarrassing establish- Oheka Castle for the first time with famed
ments and returned to a platform of speak- criminal defense attorney Ben Brafman as
ers and dinner locations that demonstrate our guest speaker sharing his experience,
the high standards of our club reflecting tactics and entertaining war stories.
our pride and the values that our members Included in attendance at the Oheka event
and guest speakers deserve. In doing so, were two Appellate Division judges,
former members have returned, new mem- numerous jurists from Suffolk County
bers have joined for the first time and gen- together with four judges who attended
eral interest in the club has grown.
from Nassau County. The evening was
The drive, design, and perpetual life of the extremely well spirited. Our most recent
Huntington Lawyers Club is based in part meeting was on the eve of St. Patrick’s
on bringing in new and young lawyers who Day held at the Huntington Country Club
have a zest and enthusiasm in different areas where the Hon. Michael F. Mullen told
of practice to help them realize that they live tales of the Irish. Judge Mullen gave an
or work in perhaps the greatest township on intriguing talk that special evening on Irish
Long Island. That, coupled with perpetuat- heritage and history together with humoring the existing membership of sitting ous anecdotes and poems holding memjudges, long-timers, medium-timers, and ber’s and guest’s attention to the very end.
some characters who may never leave, the The common thread at these and all of the
club remains vibrant, spirited and diverse dinners over the past year, as in the club’s
Creating Your Own Sacred Space
_____________
By Amy Chaitoff
Ever wonder if
placing your furniture in a certain
direction or organizing your work
and home space in a
certain design pattern could change
Amy Chaitoff
your mood, increase your energy flow, or even reduce
your stress level? Come to our next
Healthy Life Series Program and you
will learn how to create balance and
order in your office and in your life
through the centuries old eastern practice of Feng Shui. Special guest speaker
Victoria Elizabeth Houslanger M.A.,
will be discussing “The Art of Feng
Shui: Sacred Homes and Healing
Spaces” on Wednesday, June 8, from 4
to 6 p.m. in the Board Room.
Attendees will learn all about the
practice of Feng Shui as the Ancient
Art of creating harmony in your environment through placement and an
understanding of space. Mrs.
Houslanger will also discuss the basic
principles of Feng Shui which encompasses physical form of land, lot,
structure, room, the function of space
and the individual who resides there
and how to focus on the “chi” or energy of the client and the space in order
to create the perfect sacred space for
each individual.
After the discussion, there will be an
opportunity to relax and network with
Mrs. Houslanger and other like-minded
SCBA colleagues over wine and
To Advertise in
The Suffolk Lawyer
Call
(866) 867-9121
cheese. But space is limited, so pre-registration is strongly encouraged. The
cost is $15.00 for pre-registrants (if
received by June 6th) and $20.00 thereafter. You can register by contacting
Marion at (631) 234-5511 x230.
most proud days of the past, is good-spirited socializing across all lines with the
clever twist of wit and humor - nobody
taking themselves too seriously.
Huntington Lawyers’ Club with its
resilient nature will continue for many
decades and, while perhaps testing itself
on occasion, through the camaraderie and
spirit it carries as a badge of honor, will
carry on in its original design.
Note: Cornell V. Bouse is the current
president of the Huntington Lawyers’ Club,
the immediate past president of the
Criminal Courts Bar Association of Nassau
County, and serves on the Judicial
Screening Committee of the Suffolk County
Bar Association.
The Huntington Lawyers’ Club
hosts monthly dinner meetings and
will be having its Annual Judiciary
Night and Installation of Officers on
Wednesday, June 15, 2011 at the
Head Of The Bay Club where
Harvey G. Lockhart. Esq. will be
sworn in as its next President.
Attorneys and Judges interesting in
attending or joining the Club should
contact Treasurer Glen Suarez at
(631)239-6100.
Pachman And LaCova Attend
BLI Leadership in Chicago
About the Speaker:
Victoria Elizabeth Houslanger M.A.
Certified Feng Shui Consultant,
Professional Organizer, Reiki
Master
Mrs. Houslanger has studied the
healing arts for over 25 years. She
began her studies in Massage
Therapy in California and continued
her education to include a Bachelor
of Arts in Health Sciences and a
Masters degree in Health Education
& Administration. Victoria is fluent
in various forms of meditation
including; Vipassana, Psychic
Healing, Hatha Yoga, Angel Prayers,
Native American Sweat Lodges,
Vision Quests, Buddhist Chanting,
Breathwork, and Jewish Spirituality.
She owned and operated a healing
massage practice, in the Bay Area
for many years. Mrs. Houslanger is
a professor at Metropolitan Institute
of Interior Design and serves as a
mentor for students at The Sheffield
School of Interior Design in the
Feng Shui Program. Victoria
Elizabeth Houslanger is available
for consultations in Feng Shui, meditation and Spiritual Growth. She
teaches Feng Shui, Meditation and
Energetic Healing.
President Elect Matt Pachman and Exec Director LaCova
President Elect Matt Pachman and
Executive Director Jane LaCova joined
over 300 other emerging leaders of
lawyer organizations from across the
country at the American Bar
Association’s Bar Leadership Institute
(BLI) on March 10-11. The BLI is held
annually in Chicago. It offers incoming officials of local and state bars,
special focus lawyer organizations and
bar foundations the opportunity to confer with ABA officials, bar leader col-
leagues, executive staff and other
experts on the operation of such associations.
Mr. Pachman and Ms. LaCova
joined ABA President Stephen N. Zack
of Miami, FL and ABA President Elect
William T. (Bill) Robinson III of
Florence, KY in sessions on bar governance, finance, communications and
planning for Mr. Pachman’s upcoming
presidential term.
- LaCova
11
Tort Reform - Preparing For the Approaching Storm Negligence & Medical Malpractice Actions
_________________
By J. David Eldridge
Tort reform; they’ve talked about it for as
many years as I can remember.
They’re done talking.
Seeking to tackle the various shortcomings
of our tort system in one fell swoop, Albany
has finally mustered the courage to grab this
political tiger by the tail and figured out a host
of new ways to protect us from the lurking
dangers hiding in the medical shadows.
From capping damage awards to codifying
the discovery rule, creating new pleading
requirements to regulating contingency fees,
our legislative brethren have drafted a slew of
new bills in their attempts to reform our existing tort system. We even have the New York
State Legislature relying on the results of
Zogby polls in dictating their legislative agendas, with sweeping laws that will affect every
citizen of the state for years to come.
The following bullet points provide a brief
snapshot of some of the proposed bills headed our way, followed by more detailed analysis and information for each; these bills, if
passed, will:
∙ require counsel to obtain a doctor’s affidavit before commencement of an action stating that there are reasonable medical grounds
for the suit, and a certificate of merit by counsel stating that at least one such medical professional has been consulted and the attorney
has concluded that there is a reasonable basis
for the action;
∙ repeal the definition of “non-economic
loss” and replace it with definitions for
“noneconomic damages” and “actual economic damages;”
∙ cap non-economic damage awards in
negligence actions at $250,000.00;
∙ alter the statute of limitations for medical, dental or podiatric malpractice to two
years and six months from the time when a
person knows or reasonably should have
known of the alleged negligent act or omission and knows or reasonably should have
known that such negligent act or omission has
caused an injury;
∙ amend CPLR §3101 to remove the
exception that allows the omission of the
names of medical, dental or podiatric experts
from production materials concerning experts
testifying at trial;
∙ amend CPLR §1601 to make equitable
share regardless of whether a defendant was
less than 50 percent liable, determined in
accordance with the relative culpability of
each defendant;
∙ amend CPLR §3101 to require that the
report contain a complete statement of all
opinions to be expressed by a party’s expert,
the basis and reasons therefore, the data or
other information considered by such person
in forming the opinions, any exhibits to be
used as a summary of or support for the opinions, the qualifications of the person, including a list of all publications authored by the
person during the preceding ten years, the
compensation to be paid for the person’s consideration of data or other information and for
his or her testimony, and a listing of any other
cases in which the person has testified as an
expert at trial or by oral deposition within the
preceding four years. Additionally, this bill
requires a party to produce such expert for an
EBT, and violation of these provisions shall
J. David Eldridge
Justin Block
Legislative Review
Committee
J. David Eldridge and
Justion Block, Co-Chairs
FOCUS ON
YEAR IN
REVIEW
SPECIAL EDITION
(Contined on page 28)
Interpersonal And Psychological Considerations In Law Firm Partnerships
________________________________
By John P. Bracken and Dan Berger
Formation of partnerships is fairly common among attorneys. Formation of enduring partnerships that flourish is much less
common. This article will address:
∙ How a new partnership can take steps to
prevent problems in the future
∙ How a troubled partnership can resolve
its conflicts and begin to work more collaboratively
∙ How a “good” partnership can become
even better
In the course of interviewing attorneys
for this article it became clear that the
biggest impediments to the formation and
continuation of law firm partnerships are
essentially psychologically based. While
this seems to be the case in other areas of
business as well, of particular significance
for attorneys, is that they have had years of
training and experience in the law. They
seem, however, to have less training and
experience in the cooperative and collaborative factors that are required for successful interaction with their attorney
partner(s). Indeed, the lawyer’s training
and experience tends to emphasize becoming a zealous advocate for the clients, able
to confront and overcome adversaries.
Non-lawyers tend to view lawyers as gladiators jousting with each other. However,
successful partnerships require attorneys to
develop their soft skills in order to discuss,
talk and hear each other; using a different
mode of interaction and communication
from that used in the courtroom.
Formation of the partnership
Lawyers forming a partnership must
consider many important factors. By
addressing these at the outset of discussions, problems can be avoided later.
Why are you forming a partnership? This
may sound like a simplistic question, but the
answers are at the core of why partnerships
encounter problems. Without doubt, different attorneys have varying ideas and motivation to form a partnership. In-depth discussion, characterized by difficult questions
such as those that follow, is mandatory.
What about money? What does money
mean to the partners? How much? How
will the income be distributed? Billable
hours? Equal division of funds, based upon
production of income, generating clients,
or some combination of the foregoing?
While money may not always be the root of
all evil, it has powerful implications for
most people and most partnerships.
What area or areas of law do you wish to
practice? Not only the areas of concentration, but how do you see yourselves as professionals? What type of clients do you
want to draw? For example, do you wish to
have a practice that emphasizes “cutting
edge” law, a practice that emphasizes expe-
rience, or a practice
primarily comprised of
repetitive and common
but important activities
such as debt collection,
residential real estate
transactions or simple
wills. Some attorneys
enjoy the intellectual
challenge of “cutting John P. Bracken
edge”
law
and
immerse themselves in the newest and latest
areas of the law. Others prefer building up
experience based on years of practice, while
others would like to get the job done each
week, go home, and not have to deal with
long hours.
What about pro bono work? What about
helping indigent clients? Every lawyer has
an obligation to perform pro bono activities. What about Bar Association activities
and continuing legal education? How about
political activities? These activities may be
seen not only as a way of building a practice but also as a means of contributing to
society and the profession. How do these
issues reflect personal and ethical views of
the prospective partners?
How will the practice be managed and
how will business decisions be made? How
will the firm market itself? Will everything
be decided by consensus or will a managing partner make decisions? What are the
expectations regarding hours worked?
What are the expectations of the amount of
income to be generated by each partner and
what is the effect, if any,
on each partner’s draw or
guaranteed income?
What is the psychological compatibility of the
partners? This is a complex area and perhaps the
most common one to
sabotage the partnership.
Dan Berger
We all have a core personality that underlies
our day-to-day functioning and interaction
with others. Assessing this is a fundamental requirement of partnership formation
and the one that clearly requires a professional. We all tend to see ourselves in our
own subjective and biased way. Getting an
independent professional to evaluate the
attorneys and determine how their personalities will mesh can prevent much grief
down the road. This is a well-established
area with competent professionals available with whom consultation would be
well advised.
Here’s an example: Roberto and Simon
crossed paths professionally over the years
and got to know each other. They began discussing merging into a partnership and met
several times. Simon is married and has 3
children; Roberto is single. Roberto does not
mind working long hours and, while he
wants to earn a good living, he does not feel
the same financial urgency that Simon does.
Another difference is that Simon might be
described as an aggressive individual who
(Contined on page 22)
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I’m looking for the lawyer that handled
any will or estate affairs for:
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of Ridge, NY
If you are that special someone,
or have information leading to him/her,
please call Joanne Dana immediately!!
(information only; no solicitations)
631-689-3201; JDana821@aol.com; 516-818-8254
12
Supreme Court Committee Committed to Reducing Burden on Court
__________________
By Scott Middleton
After several meetings, the Supreme
Court Committee feels that the resounding
problem facing the bench and bar in
Supreme Court here in Suffolk County is
by far the workload facing our judges.
Conservative estimates show each civil
judge having at least 1,300 motions on
their desks right now. This, coupled with
the number of cases assigned to each judge
(these numbers include numerous foreclosure actions), creates a problem for the
bench no matter how many extra hours and
late nights they put in. This in turn hurts
practitioners and litigants alike.
An idealistic solution, albeit an unrealistic one, would be to have a full complement of judges pursuant to statute and for
each judge to be given 1.5 to 2 law secretaries. Given the fiscal condition our state
is currently in, this is impossible. So in
response to the overwhelming volume of
motions inundating the judges here in
Suffolk County, we must first turn to ourselves to find potential solutions to try and
alleviate the problems we’re facing.
The committee feels that we must try to
reduce the burden on the court. First, we
should reach out to all of the judges in
Supreme Court to attempt to implement
some simple changes that may result in an
immediate reduction in the number of
motions. Secondly, where preliminary
conference discovery motions are brought,
practitioners could simply request a PC
and address the matters there. Third, once
a PC has been requested, before bringing a
discovery motion, judges could require a
pre-motion teleconference where the
issues could be discussed in a brief, but
productive, telephone call resulting in a
further order. Finally, Compliance
Conferences could be used to actually conference a case and set down outstanding
discovery in a so ordered stipulation
instead of simply adjourning the conference. Failure to comply with any of these
additional orders beyond the PC would
make for a much more compelling motion
to preclude an uncooperative party.
Secondly we could utilize the “Reserve
Calendar” as an opportunity to have meaningful court mandated mediation of cases.
If this could be accomplished without
additional cost to the state or practitioners
it may be productive. A similar system is
already set up in New York County and
seems to provide some positive results. We
could mirror this program by using law
secretaries or institute a pro bono program
of our own where local attorneys act as
mediators. This could positively impact
the number of cases that must go to trial by
resolving cases that should settle before
jury selection.
Once we institute some changes on our
own, I believe we will be in a much better
position to take our case to our representatives in Albany. We should utilize the
approach that it is unfair to the residents of
Suffolk County and our clients that our
judges and court personnel are suffering as
a result of much heavier case loads than in
neighboring counties.
Note: Scott Middleton has focused on
representing clients in personal injury
matters for more than 20 years. He graduated from Stony Brook University followed
by Brooklyn Law School. After graduating
from law school, he began practicing law
at a well known and respected insurance
defense firm. Scott’s experience has
included representing individuals, and
defending small and large corporations, as
well as municipalities in a wide array of
Hon. William
Rebolini
Scott Middleton
Supreme Court Committee
Scott Middleton and
Hon. William B. Rebolini, Co-Chairs
FOCUS ON
YEAR IN
REVIEW
SPECIAL EDITION
personal injury matters including general
negligence cases, wrongful death, medical
malpractice, labor law, product liability
and architect and engineer cases.
Highlights From The Labor And Employment Law Committee
___________________________
By Sima Ali and Brian Conneely
This is an exciting time for our committee
because of all of the many changes in the
legal landscape in this area of law and also
the many and varied activities of our committee.
For example, this past week the EEOC
issued new regulations enforcing recent
amendments to The Americans With
Disabilities Act (“ADA”). Similarly, on
April 9, 2011 the Wage Theft Prevention
Act went into effect in New York State
requiring compliance by most New York
employers. Further, the United States
Supreme Court just issued new decisions
expanding the scope of retaliation for discrimination and labor complaints, as well
as liability of employers for discriminatory
actions of certain employees.
The committee also organized and presented a Law in the Workplace Conference
on February 4, 2011, which was well
attended. It received numerous favorable
evaluations from attendees. At the Law in
the Workplace Conference the most recent
trends in this area of law were discussed
and highlighted with an overview of recent
cases in Employment Law and recent
developments in the Public Sector. The
trends analyzed included the increase in
regulation of wage and hour matters and
an increase in wage and hour litigation
especially with regard to opt-in collective
actions under the Fair Labor Standards
Act, and class actions under state law; and
a discussion of how technological
advances have impacted workplace law.
On the technology front, Justice Emily
Pines cautioned litigators of the need to be
aware of all of the changes and rules related to e-discovery and spoliation of evidence. Additionally, technology has
changed the nature of work and how it
relates all aspects of the employment relationship especially in the area of commercial litigation. Speakers at the Conference
analyzed current drug testing and social
media issues in the workplace, as well as
the impact of technology on restrictive
covenants and non-compete litigations.
On the labor law front, in addition to the
public sector overview, there was a separate session addressing arbitrations, and
retirees’ health benefits in the public sector. Further, other speakers at the conference discussed the interplay between various discrimination and employment statues, namely the ADA, leave statues such as
the Family Medical Leave Act and worker’s compensation statutes.
Our committee holds monthly meetings
on current topics of interest involving
labor and employment law. Prior topics
have included development and dissemination of drug testing policies, legal issues
related to social media, using social media
as a marketing tool, and liabilities related
to holiday parties. In addition to prior discussions and presentations, upcoming
committee meetings will address issues
involved in the mediation and arbitration
of employment law disputes, as well as tax
and accounting issues related to settlements and severance agreements. Our
committee meetings also provide a forum
for practitioners to discuss specific or current issues relating to their practices.
Suffolk County Bar Association members
are welcome to attend our committee
meetings or conferences on labor and
employment law.
Note: Sima Ali is the owner and principal attorney of the Huntington based Ali
Law Group, P.C. and the president of Ali
Consulting Group, LLC. She is a labor and
employment law attorney specializing in
labor and employment law, human
resources consulting, litigation support
and representative services.
Brian S. Conneely is a partner at Rivkin
Radler LLP in the firm’s Employment and
Labor Law Practice Group. Mr. Conneely
has more than 30 years of experience in
employment and employment discrimina-
Brian S. Conneely
Sima Ali
Labor & Employment Law
Committee
Sima Ali and
Brian S. Conneely, Co-Chairs
FOCUS ON
YEAR IN
REVIEW
SPECIAL EDITION
tion litigation in federal and state courts
as well as before federal, state and local
agencies. A former law clerk for a United
States District Court Judge, he also has
extensive litigation experience in noncompete, trade secret, ERISA, partnership,
fiduciary and shareholder disputes and litigations.
BRAND NEW
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13
14
FUTURE LAWYERS FORUM
Take a Bow Touro
_________________
By Sarah Valente
While economic concerns overwhelm
the minds, spirits, and wallets of our communities, many citizens’ rights are being
effectively taken and denied without due
process or compensation for lack of economic means.
With thousands of
Americans out of work and struggling to
provide for their families and themselves
on unemployment wages, it comes as no
surprise that attorneys’ fees are last on the
list of budgeted expenses. These are the
times when law schools and their students
play integral roles in preserving the livelihood of fellow citizens.
Touro Law Center, over the past several
years, has, with the help of its students, staff
members, non-profit organizations, and
government grants, taken numerous initiatives to bridge this gap within its own community – Suffolk County. To this end, Touro
Law developed the William Randolph
Hearst Public Advocacy Center and sponsors clinics, and the Suffolk Bar/Touro Law
Pro Bono Foreclosure Assistance Project,
amongst other programs.
The William Randolph Hearst Public
Advocacy Center is the first of its kind for
law schools nationwide. Developed by
Touro in 2007 “to have an impact on social
justice, legal training and the lives of
countless individuals in and beyond the
local community,1” the center, located
within the law school, provides offices for
local non-profit agencies in
student in the Civil Rights Clinic
exchange for opportunities for
claimed the best part about the
Touro law students to work
clinic is the opportunity to
alongside these agencies in
improve writing skills. “The
addressing problems facing the
professor really walks us
local community. Currently 15
through each issue and provides
agencies are members of the cenus with guidance every step of
ter, including , the Empire Justice
the way,” she explained.
Center, the Health and Welfare
The Suffolk Bar/Touro Law
Council of Long Island, the
Pro
Bono Foreclosure Assistance
Sarah Valente
Suffolk Chapter of the New York
Project is a prime example of the
Civil Liberties Union, and the Long Island good that comes from people helping peoAdvocacy Center.
ple, specifically attorneys helping law stuTouro also sponsors clinics. These clinics dents. Through this project, developed by
offer pro bono legal representation to veter- Touro’s Real Estate Society and operated in
ans and other individuals in the areas of conjunction with the Suffolk County Bar
Family Law, Mortgage and Foreclosure, Association, Touro Law students, with the
Bankruptcy, Not-for-Profit Corporation Law, guidance of practicing attorneys, provide
Elder Law, and Mental Disability to senior members of the Suffolk community facing
citizens and non-profit organizations.2 foreclosure with legal representation and
Under the close supervision of clinical pro- assistance to ultimately save their homes.
fessors, students are given opportunities to While gaining hands-on experience and
dive into real legal cases, produce real legal legal skills training, law students are touchdocuments, and even at times be part of cases ing the lives of fellow community members
that set new standards in the law.
affected by the devastation of economic
Peggy Zabakolas, a 2L full-time day hardship.
student, described her “hands-on” experiThese and other initiatives have not only
ence in the Mortgage and Foreclosure provided community members with the
Clinic as “beneficial because I not only legal assistance they need and cannot
learn the law, but actually deal with clients afford, but have also provided Touro law
on a daily basis. I have had the opportuni- students with the hands-on experience and
ty to develop relationships with clients and networking opportunities needed to sucgo to court on their behalf. My clients rely ceed in the legal profession.
on me,” she said.
“My experience enabled my textbook to
Paulette Brown, a 3L part-time evening come to life,” said Despina Manoloudas, a
3L full time student, referring to the Civil
Rights Clinic. “It wasn’t theory anymore –
it was practice.”
For practicing attorneys, “time is
money,” but for Touro students, each hour
of pro bono legal service brings a local
member of society who cannot afford legal
representation one step closer to reclaiming their rights – one step closer to justice
– and brings each student one step closer
to being the best attorney s/he can be.
Take a bow Touro Law Center, the dedication and commitment of your staff and
students has brought hope in justice to
local residents and to a growing number of
citizens nationwide.
Note: Sarah Valente is a third year part
time evening student at Touro Law Center
with an undergraduate degree in elementary
education from St. John’s University. She is
currently the secretary of the Environmental
Law Society and hopes to pursue a career in
education law. Ms. Valente can be reached
at sarah.valente1@gmail.com.
1 Touro Law: About Touro Law – William
Randolph Hearst Public Advocacy Center,
http://www.tourolaw.edu/AboutTouroLaw/?pa
geid’57 (last visited April 5, 2011).
2Touro Law: About Touro Law – Legal
Services for the Community, http://www.tourolaw.edu/AboutTouroLaw/?pageid’52 (last visited April 5, 2011).
Commercial & Corporate Law Committee Encouraged by Joint Committee Meetings
_____________________
By Marilyn Lord-James
The 2010-2011 year for the Commercial
and Corporate Law Committee has passed
probably similar to our colleagues’ committees at the Suffolk County Bar
Association – entirely too quickly and
with much remaining to be done. Despite
juggling hectic work schedules and family
life, enduring a parade of snowstorms, and
dealing with the usual complement of
unavoidable, last-minute emergencies, our
committee members still managed to keep
our meetings lively and interesting and
always educational.
We strive to keep the format friendly,
relaxed and informal, and our goal is to
provide a forum in which all are free to
join the conversation, whether to have a
particular question answered or just to
enjoy the interaction of like-minded colleagues with similar interests. We encourage everyone – not just committee members – to come to our meetings full of
questions about current matters they may
be struggling with, and to take advantage
of the wealth of knowledge possessed by
our members.
While we usually try to pick a theme, or
a line of cases to discuss, sometimes, we
simply have “open mike night,” in which
members are encouraged to bring up particular issues they would like to discuss.
The issues raised are as wide-ranging as
the practice of law, sparking lively discussion and spirited debate, and everyone
comes away with a greater awareness of
the topic and the applicable law, which can
only help us all become better advocates
for our clients.
Not Among Our Law School Goals
UNMANAGEABLE STRESS ● CLINICAL DEPRESSION ●
ALCOHOL DEPENDENCY ● SUBSTANCE ABUSE ●
SLEEPLESS NIGHTS ● PHYSICAL DYSFUNCTION ●
Sound familiar? You’re not alone.
Lawyers rank first in incidence rate for clinical depression among 105 professions surveyed. Do you need help or do you just want to talk about it?
The Lawyer Assistance Foundation and Lawyers Helping Lawyers
Committee of the Suffolk County Bar Association can help. We can provide
necessary assistance, whether a sympathetic ear or a referral for professional
assistance when necessary.
There is no charge. No stigma. Everything will be kept strictly confidential.
Interested?
Call:
Rosemarie Bruno (631)979-3480,
Arthur Olmstead (631) 754-3200 from the
Lawyers Helping Lawyers Committee;
Barry L. Warren, Managing Director of
The Lawyer Assistance Foundation (631) 265-0010;
Jane LaCova, Executive Director, Suffolk
County Bar Association – (631) 234-5511, Ext. 231.
Let Us Help You.
We endeavor to present topics of interest
to our members, requesting input from
them to guide us in selecting topics and
speakers. We also recognize that attorneys
face many demands on their time, and so
must carefully choose the activities that
will make the best use of that precious
time. Therefore, we and many other committee chairs, are taking steps to make
committee meetings as productive as possible, by coordinating joint meetings on
topics of mutual interest.
For instance, in January, we collaborated
with the Creditors Rights Committee presenting a joint, CLE-optional program on
the basics of debt collection, featuring
Elliott Portman, a member of Roe, Taroff,
Taitz & Portman, LLP. In November, members Paula and Glenn Warmuth contributed
a wealth of information on the “Truth In
Lending Act,” sharing research and a number of papers they prepared for a successful
appeal to the Second Department.
In February, Lisa Azzato of the
Alternate Dispute Resolution Committee
gave us a presentation on the commercial
division mediation program. We are
presently in contact with the Suffolk
County Supreme Court’s commercial division judges in an effort to coordinate a
date on which all three judges will be
available to attend a joint meeting of the
ADR and Commercial & Corporate Law
committees to discuss this important alternative to litigation.
In March, Bill McDonald of the Health
& Hospital Law Committee visited us, and
we discussed organizing a program concerning regulatory issues pertaining to –
and differing among – various business
entities. We also met in March with members and chairs of several other committees to discuss preparing a joint program
on “going green,” which will address matters of interest to attorneys practicing in
real estate, municipal law, land use, zon-
Marilyn Lord-James
Commercial & Corporate
Law Committee
Marilyn Lord-James and
Cheryl F. Mintz, Co-Chairs
FOCUS ON
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SPECIAL EDITION
ing, environmental law and, of course,
commercial and corporate law.
We are very excited about these and
other upcoming programs, and hope that
our members and our colleagues on other
committees will continue to give us their
valuable advice and suggestions on matters of interest to them. In that way, we can
plan programs that will best serve the
members of the Suffolk County Bar
Association, and enjoy the rewards that
come from sharing knowledge.
Note: Marilyn Lord-James is the cochair of the Commercial and Corporate
Law Committee with Cheryl Mintz. Ms.
Lord-James is an associate with the firm
of Bracken Margolin Besunder LLP concentrating in litigation, and is the secretary and an officer of the Suffolk Academy
of Law.
15
Judicial Artists, Musicians, Novelists
_____________________
By Hon. Joan M. Genchi
While attending Hofstra Law School I
managed to complete my Masters Degree
in Art and put on my Masters Thesis Show.
I painted. I drew. I photographed.
Then, I began the practice of law (creatively). I continued to paint, draw and
photograph (creatively). After practicing
law for 18 years as a sole practitioner, I
became a judge…I continued to paint,
draw and photograph. However, soon after
putting on the robes, I learned that I could
no longer sell my work. Moreover, after
reading the Rules Governing Judicial
Conduct, it seemed to me that it was questionable whether or not I could display my
work publically in a gallery, library, restaurant or web site.
This quandary gnawed at me. What to
do? Finally, and after much procrastination,
I sent an inquiry to the Advisory
Committee on Judicial Ethics seeking their
guidance. It took the committee several
months but they issued a seven page opin-
ion. After reading their opinion it was clear
that they had reviewed all the committee’s
prior opinions on this and similar issues
and spent a considerable amount of time
discussing and revisiting the committee’s
previous position. The committee then
issued a well reasoned opinion. Golly gee,
was I smiling after reading the opinion!
In part, Opinion #09-192/09-231 states:
“…And the judge who is an artist may,
for example, allow a gallery or other public or private entity to exhibit his/her art
work, and he/she may participate in juried
and non-juried art shows on an occasional
basis, assuming he/she must be present at
such shows. The judge may also exhibit
his/her art work on the internet at a gallery
or public place with limitation if his/her
presence is not required while the art work
is displayed. In addition, the judge may
place his/her art work for sale on commission with an art gallery.
With respect to selling art work on commission, we note that the committee previously has advised that a judge may engage a
publisher and/or a marketing firm to act as an
intermediary to sell his/her works of fiction
(see Opinions 06-105; 99-145 (Vol. XVIII)
We view the proposed activity as analogous.
However neither judge may allow
his/her creative activities to interfere with
the proper performance of his/her judicial
duties (see 22 NYCRR 100.3; 100.3(A);
100.4(A)(3); 100.4(B) and may not use the
prestige of their offices to promote their
creative works (see 22 NYCRR 100.2).
Further, in the event that either judge
receives compensation in excess of
$150.00, he/she must comply with the
reporting requirements set forth in section
100.4(H)(2) of the Rules Governing
Judicial Conduct…”
Mark Fass of The New York Law Journal
picked up on this opinion and printed a
story under the headline “Judges Can Take
Pay For Some Artistic Activities, Panel
Says.” In part Mr. Fass in his article states,
“ The impact of the decision remains to be
seen, as New York’s judiciary is not particularly well known for breeding or attract-
ing artists. A court spokesman could not
name any painters or photographers on the
state bench…”
Elsewhere in the committee’s opinion
and relating to musicians…“Thus, the
judge who wishes to pursue part-time
employment as a solo musician may do so
only occasionally, for a fee, for family,
friends, neighbors, and others who are
unlikely to appear in the judges court…”
I for one am happy to report that Suffolk
County boasts three judges who pursue
artististic endeavors: Hon. Ralph Gazillo is
a novelist. I believe that his book, The
Dark Shield is being published. Hon.
Arthur Pitts, an accomplished pianist is
occasionally engaged by a local establishment to entertain their patrons. I am currently showing my artwork at various galleries, restaurants and have entered several
juried and non-juried art shows.
I for one am thrilled that the rules have
been interpretated by the committee in
such a way as to allow me to enjoy my
“artistic” side.
Two Committees Come Together to Benefit From Joint Presentations
_____________________
By Vincent J. Messina Jr.
The Real Property Committee met jointly
with the Municipal Law Committee on
March 10 to hear from several distinguished
members of the Suffolk County Bar
Association who are actively engaged in
various aspects of zoning and land use practice. John Leo, Huntington Town Attorney,
William Wexler, Chairman of the Town of
Islip Zoning Board of Appeals, and Eric
Russo, partner in VanBrunt, Juzwiak &
Russo, P.C. comprised the panel, which was
moderated by Anthony Guardino, Esq.,
partner at Farrell Fritz, P.C.
The outstanding turnout for this meeting was indicative of the superb caliber
of the panel who graciously took time to
benefit our members with observations
and insights into making and presenting
applications to zoning boards of appeals
in Suffolk County. In addition to providing copies of relevant statutes, local
forms, and recent decisions, panel members entertained questions from committee members about various issues relevant in practice before their respective
Town’s ZBA, as well as those which
highlighted the differences in process in
various jurisdictions. Panel participants,
as well as committee members, also
shared anecdotes about their own personal experiences before various zoning
boards which illustrated the best (and,
sometimes, worst) of practices and presentations before such boards. In addition, panelists also spoke to committee
members both in small groups and on an
individual basis after the meeting, providing a rare opportunity to discuss this
area of practice with experts in the field
on a one-to-one basis.
Attendees represented the gamut of both
experienced and recently admitted private
practitioners as well as current and former
municipal attorneys. Significant insight was
provided by Town Attorney Leo and
Chairman Wexler into the weight given by
the zoning boards to various factors, and the
preferences as to presentations in their
respective jurisdictions, as well as valuable
suggestions with respect to preparation for
hearings.
The joint committee meeting format has
proven to be a tremendous success for the
Real Property Committee and the
Municipal Law Committee, whose respective co-chairs are hopeful of continuing
such meetings and presentations. In the
last several months, at another joint meeting, the committees benefited from a presentation from Pamela Greene, Director of
Suffolk County’s Division of Real
Property Acquisitions and Management.
Ms. Greene also provided attendees with
numerous forms and publications, as well
as outlining the process and procedure for
the redemption of parcels of real property
to which tax deeds were taken by the
County of Suffolk.
On behalf of all the co-chairs of the Real
Property Committee and the Municipal
Law Committee, our sincere thanks is
extended to Town Attorney Leo, Chairman
Wexler, Director Greene, and Messrs.
Russo and Guardino for taking the time to
address our committees and providing us
with information that will benefit each and
every committee member in their land use
practices.
The Real Property Committee and
Municipal Law Committee co-chairs welcome any suggestions for future meeting
topics, as well as input to any other aspect
of how they can serve the Suffolk County
Bar Association membership.
Note: Vincent J. Messina Jr. is a partner
in the firm of Sinnreich Kosakoff &
Messina, LLP, located in Central Islip,
New York, where a significant portion of
his practice is devoted to land use and
related litigation in the trial courts,
Appellate Divisions, and Court of Appeals.
He is a former Town Attorney of the Town
of Islip, a position he held for approximately 13 years. He is the current co-chair
of the Real Property Committee, a past cochair of the Municipal Law Committee of
the Suffolk County Bar Association, and
has lectured on a variety of issues for the
Suffolk Academy of Law.
Irwin Izen
Vincent J. Messina, Jr.
Real Property Committee
Vincent J. Messina Jr. and
Irwin Izen, Co-Chairs
John Denby
Marie E. Knapp
Municipal Law Committee
John Denby and
Marie E. Knapp, Co-Chairs
FOCUS ON
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SPECIAL EDITION
Reaffirmation Agreements – An EDNY Year in Review
Court reluctant to permit untimely reaffirmation after case closed
________________
By Craig D. Robins
Craig D. Robins
FOCUS ON
YEAR IN
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SPECIAL EDITION
We’ve seen a year’s worth of caselaw
in the past four months in the Eastern
District of New York regarding the retention of vehicles after bankruptcy through
either reaffirmation or the assumption of
lease agreements.
Yet all of them had to do with one issue
– all involved an application made by the
debtor’s attorney to reopen a consumer
case to reaffirm a vehicle loan (or assume
a vehicle lease) which had not been done
on a timely basis while the case was
open.
In this month’s column, I will review
this year’s caselaw in our district concerning reaffirmation agreements and
briefly touch upon some basics about
reaffirmation agreements as they apply to
motor vehicles.
What is a Reaffirmation
Agreement?
Filing bankruptcy has the effect of discharging most debts including obligations on car loans and leases. In a reaffirmation agreement, the debtor voluntarily agrees to remain obligated on a debt
that would have otherwise been discharged. In a lease assumption agreement, the debtor agrees to be obligated
on the lease.
Under
the
2005
Bankruptcy
Amendment Act (BAPCPA), car financing companies, after some aggressive
lobbying, obtained extra protections that
they had not previously enjoyed. Prior
to 2005, debtors enjoyed a “ridethrough” in which they could ride
through the bankruptcy and keep their
vehicles without reaffirming them as
long as they stayed current on their vehicle loan payments.
However, under BAPCPA, if a debtor
does not redeem or reaffirm a car loan
pursuant to Bankruptcy Code § 524, the
lender can eventually repossess the
vehicle. That’s because almost all car
loan agreements contain boilerplate
language that deem bankruptcy as a
default under state law, even if the car
owner is current with payments. When
there is a default, a lender, under state
law, can repossess.
Should a debtor reaffirm a car
16
Motivational Speaker Comes to the SCBA
Photo by Arthur Shulman
Children of SCBA members enjoyed the Music Class for Children and Parents led by
Mike Soloway of North Shore Musikgarten.
Photo by Laura Lane
Photo by Laura Lane
FREEZE FRAME
Honoring Retiring Supreme Court
Justice Robert W. Doyle
Photos by Arthur Shulman
Read our article, “The Personal Injury Attorney’s Survival Guide
to the New Anti-Subrogation Law” in the NYSTLA publication,
The Bill of Particulars.
Call today to discuss how our firm
can clear the hurdles for you!
17
18
Surrogates Court Committee Active
_______________
By John J. Roe, III
The Surrogates Court Committee has
been meeting regularly during this bar
association year. In response to the new
Federal Estate, Income, and Gift Tax Law,
and the use of Disclaimers, a joint meeting
of the Tax Law, Elder Law and Estate
Planning, and Surrogates Court committees
was held on January 20, 2011. Attendance
was excellent and written materials were
handed out by the speakers.
The committee has discussed new laws
enacted by the New York State Legislature
and signed into law including
laws expanding the definition of who is a
“marital child,“ changing the items allowable to a surviving spouse as a set off under
EPTL 5-3.1, expanding pet trust duration
to the life of the affected pets, adding palliative care provisions to the Public Health
Law, and the Family Health Care
Decisions Act setting forth the order in
which persons (including a “Domestic
Partner”) can make health care decisions
for an individual who can no longer do
so. The revised (again) statutory form of
Power of Attorney was the subject of a presentation. The reaction of those present
seemed to be that the new form made it far
more difficult for clients to understand and
more expensive to the clients.
CLE programs presented by Bank of
America and U.S. Trust (Rick Chalifoux
and Ray Radigan) and twice by Surrogate
John M. Czygier, Jr. were full of information and practical advice. Ethics for attorneys and fiduciaries is a “hot” topic and
the malpractice liability exposure of attorneys has been changed in view of the
recent Court of Appeals case, Schneider v.
Finman, decided on June 29, 2010.
Upcoming meetings will feature Donald
Novick (Do’s and Don’ts in the Surrogates
Court) and Scott McBride (Undue
Influence). The Annual Dinner will be
held in June in honor of Surrogate Czygier
and the Acting Surrogates, Judges Gary J.
Weber and Stephen L. Braslow. We hope
all Surrogates Court Committee members
will attend the upcoming meetings and the
Annual Dinner. Thanks for your participation and thanks to the staff at the bar association offices without whose help we
could not provide timely information to the
Bar Association members and the members of the committee.
Note: John J. Roe, III is a partner of Roe
Taroff Taitz & Portman LLP with offices at
One Corporate Drive, Bohemia, NY
11716. He is a former director of the
SCBA, a former chair of the NYSBA
General Practice Section and a member of
the ABA. Mr. Roe is the Bellport Village
Justice, a Vice President of the Suffolk
County Boy Scout Council, Secretary of
the Patchogue Business Improvement
District, Chair of the Investment Board of
the Congregational Church of Patchogue,
and Secretary of the Rotary Club of
Bellport.
John J. Roe III
Surrogate’s Court
Committee
John J. Roe III and
Brett A. Haefeli, Co-Chairs
FOCUS ON
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SPECIAL EDITION
Elder & Estate Planning Committee is Not Just for Elder Law Attorneys
________________
By Steven A. Kass
Knowledge….networking... did you ever
realize how your practice may intersect with
Steven A. Kass
Kim M. Smith
Elder Law & Estate
Planning Committee
Steven A. Kass and
Kim M. Smith, Co-Chairs
FOCUS ON
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SPECIAL EDITION
the Elder Law and Estate Planning Bar?
Elder Law and Estate Planning attorneys
need knowledge of, or have to interact with
attorneys in the areas of Special Education,
Real Estate, Personal Injury/Medical
Malpractice/Negligence, Immigration, Tax,
Estate and Administration, etc.
The Elder Law & Estate Planning
Committee, co-chaired by Kim Smith,
Esq., and myself, provides its members
and the Suffolk County Bar Association
with topnotch monthly committee meetings and CLEs, providing cutting edge
and pertinent knowledge for our practices
of law.
At our opening meeting of the year on
September 15, 2010, our committee
members learned about a beneficial
Community Medicaid program that would
enable our institutionalized clients to
return home. The program is known
as the Nursing Home Transition Diversion
Waiver Program. Our speakers were
Glenn Campbell, Esq., the Co-Executor of
the
Suffolk
Independent
Living
Organization (SILO) and Joan Barbieri,
RN, RRDS, the Director of Waiver
Programs at SILO. Just think of the clients
you
could
have
assisted
to
date, if you attended the meeting.
During our October meeting the committee dissected the latest form of Power
of Attorney effective September 1, 2010.
Committee
members
used
their
Collective IQ to provide input on how to
modify the form, so that it better meets our
clients’ needs.
On March 9, the Elder Law and Estate
Planning Committee had a joint meeting
with the Surrogate’s Court Committee, the
Tax Law Committee and the Suffolk County
Estate Planning Council. Our speakers were
the Honorable John M. Czygier, Judge of
the Surrogate’s Court - Suffolk County, and
also Raymond Radigan, Esq., and Richard
Chalifoux, Esq., both of U.S. Trust / Bank
of America. The panel provided a dynamic
presentation and Q&A, to the sixty-plus
attendees on “The Role of Fiduciaries.”
This event was important for all attorneys
who prepare Wills and Trusts, or act as
Executors and Trustees. Attendees were
able to interact directly with the panel during the presentation, and the panel member
stayed late after the program answering
questions. Attendees left the presentation
with practical knowledge of the topic, and
views from the bench.
Our committee has exciting plans for the
April and May meetings. And don’t miss
Thanking All of You For the Honor of a Lifetime
address the legal rights of same sex couples
is an endeavor I believe was long overdue
from a professional association that is committed to protecting the legal rights of all
citizens. (The Task Force has not yet completed its work, but I remain hopeful it will
do so before my term’s end.) Creation of
the Working Parents Committee, and supporting its emerging membership which
seeks to better integrate work and life
responsibilities, is something I view as a
move in a positive direction. Exposing our
members to healthy life alternatives
through our ongoing Healthy Life Series,
which has positively impacted many who
have attended its various segments, has
also been something I was pleased to have
enabled. Interestingly, it was while attending the Jon Gordon membership appreciation event (the most genuine highlight of
my term), that I was reminded that the
measure of value in how we spend our time
is in direct proportion to the extent to
which use of our time is related to our “purpose.” So I asked myself, what was my
purpose in serving as SCBA President,
why did I want to do this in the first place,
and have I fulfilled that purpose. Humbly, I
believe I have. When I returned to New
York after law school to practice, I did not
have a job and I did not personally know
even one lawyer in the state. I had ideas
about what I wanted to do as a lawyer, and
some ideas about how I could possibly do
it, but, needless to say, it was not my best
planned juncture. To reach my goals, I recognized the necessity of association, and I
joined everything. But when the dust and
craziness of trying to figure it all out settled
down, it was in the Suffolk County Bar
Association that I recognized my professional community. My purpose in being a
leader at the SCBA was to enhance the
association’s sense of community to its
out on the Annual Tri-County
Guardianship Dinner on June 21, where
we honor the judges and guardianship
clerks in the Guardianship Parts of
Suffolk, Nassau and Queens Counties.
Come down and join us for our meetings, and make the most of your membership and your time. You won’t regret it.
Note: Steven A. Kass is a solo practitioner in the Law Office of Steven A. Kass, P.C.,
located in Melville, where he concentrates
in the fields of Elder Law, Estate Planning
and Special Needs Planning. In addition,
he is the Co-Chair of the Elder Law and
Estate Planning Committee. He can be
reached at skass”stevenkass.com.
Kim M. Smith, is solo practitioner in
Islandia where she practices in the areas of
Elder Law, Trust & Estates, Guardianship,
Medicaid and Special needs planning. Ms.
Smith is currently serving her second year of
a two year term as Co-Chair of the Suffolk
County Bar Association’s Elder Law and
Estate Planning Committee and is a frequent
lecturer at the bar association. Kim M. Smith
is also serving as the current Vice President
of Programs for the Suffolk County Women’s
Bar Association and has been nominated
President for the 2011 term.
(Continued from page 1)
members. The theme of the year, as if one
was really needed, was “in celebration of
membership.” I have ventured to welcome
new members of all ages, to engage members at all experience levels, and to help our
association fulfill the needs of its members
professionally and beyond. I believe that is
what a healthy community does for its
members. And though I may not be able to
quantify the success of such an undertaking, I am able to say, based upon having
been told by many of you, that I have
accomplished my purpose. And fulfilling
that purpose, which is beyond “why be an
SCBA President,” is personal to me and
shall continue beyond the term of any
office I may hold. I have heard from many
of my predecessors that one year is too
short to accomplish all that you set out to
do during a term as President of the SCBA.
That may be true from a project-oriented,
goal-setting point of view, but I believe one
year is just long enough. The SCBA is not
and has never been about one leader’s
goals, and the SCBA’s system of leadership
has served it well for over 100 years. I am
grateful for my brief and very humbling
experience of having been at its helm.
There are many people to thank for all
that they have done with and for me in this
truly exciting, life changing and amazing
year, and thank them I will in my own way
and my own time. Right now I would like
to thank each and every one of you, the
members of the SCBA, for all you have
done for me this year and well before.
Thank you for your support, encouragement, confidence, patience, expressions of
gratitude, ideas, commitment and kind
words. And if I owe no such thanks to you
for any of those reasons, thank you for
humoring me. It has truly been an honor of
a lifetime –
Respectfully, Sheryl L. Randazzo
19
Immigration Committee Active
___________
By Eric Horn
The Immigration Committee of the
Suffolk County Bar Association has had
an active year. In August our committee
volunteered at the El Salvadoran consulate
in Brentwood and volunteered our legal
services to the large El Salvadoran community in Suffolk County. This program
was primarily to help people renew their
Temporary Protected Status (TPS) applications, particularly those who were
unsure if they qualified for this benefit.
However, we also assisted many individuals to determine if they were eligible for
permanent residence, able to reopen
removal orders, and in other ways, as well.
The Consular General, his staff, and the
vast number of people who came for the
benefit of our legal advice were extremely
appreciative of our efforts.
This past September we conducted an
extremely well-received seminar jointly
with the criminal defense bar that was
geared to persons who practice criminal
defense law. The Immigration Committee
planned this seminar initially last spring
and the Criminal Law Committee was
eager to join. The seminar was inspired by
the landmark Supreme Court decision
Padilla v. Kentucky, obligating criminal
defense practitioners to advise their clients
that any guilty pleas they take can have
immigration consequences if they are not
United States Citizens. A seminar presented by the Immigrant Defense Project, their
speakers Issac Wheeler, Josh Epstein and I
discussed a wide variety of information
criminal practitioners needed to know not
only within the Padilla decision itself, but
much basic terminology was explained to
the audience. We discussed the duty criminal practitioners now have to advise their
clients about the consequences of their plea
before it is entered, but we also focused on
the reality that pleas that took place before
this decision could now be vacated if the
immigrant client was not informed of the
possible immigration consequences of the
criminal conviction. On behalf of the criminal bar, Michael Gajdos informed private
practitioners how they could vacate their
client’s old criminal convictions.
This seminar was so well received that
we will be presenting another seminar
with the Immigrant Defense Project
geared to the criminal defense bar on May
26. This seminar, titled Immigration Law
Every Criminal Practitioner Needs to
Know, is an important program for both
criminal and immigration attorneys who
have clients who are not United States
Caps Not Enacted
fund. The bill that actually passed permits
the child’s physician to make the initial
determination subject to review by the
Commissioner of Health.
This entire fund for neurologically
impaired infants caused by birth-related
incidents is a brand new concept and has
little precedence anywhere in the country.
Accordingly, the Commissioner of Health
will be enacting administrative standards
and regulations as time goes on.
We are not out of the water yet
On April 2 I presented the report of the
committee I chair for the New York State
Bar Association, the Committee on the
Tort System, to the House of Delegates of
the NYSBA. The House of Delegates
adopted my committee’s report overwhelmingly at its meeting, even though
several of the provisions we had opposed
were not adopted by the legislature. The
officers of the NYSBA thought it was
important that the committee’s report
opposing almost all of the changes be
adopted so that the association would
have a position approved by the House
that they could disseminate in the event of
future proposals.
Along those lines, the governor has
already set up another panel of “experts”
to look into tort reform, as well as other
issues. Among them is a move to cap
municipal liability awards. This is something that Mayor Bloomberg has been
advocating and even suggested to members of the NYSBA at its annual meeting
in January when he gave the keynote
address. At this point, the NYSBA is gearing up to comment on any proposals that
emanate from this new group, known as
the Mandate Relief Team. The roster of
this new team appointed by the governor is
again notable for its lack of a single trial
lawyer, judge or person intimately connected with the tort system in the State of
New York.
Once again I would like to thank the
delegates from the Suffolk County Bar
Association to the NYSBA’s governing
body for attending the meeting in Albany,
supporting me and for its efforts in
opposing the medical malpractice reform
provisions.
Note: Craig Purcell, a past SCBA
President and NYSBA Vice President and
Member of the Executive Committee, is
presently Co-Chair of the NYSBA’s
Committee on the Tort System.
Appellate Practice
ing; rule changes; and motions to appeal as
a poor person.The committee has worked to
develop topics for a CLE program which is
scheduled for May 4, 2011 from 6-9,
“Practicing in the Appellate Division.” The
panel will include The Hon. Sandra L.
Sgroi, Associate Justice, Appellate Division,
Second Department, Matthew G. Kiernan,
Clerk of the Appellate Division, Second
Department, and Harris J. Zakarin, Partner
at Rivkin Radler, LLP. Mr. Zakarin will
give a soup to nuts overview of the appellate process. Justice Sgroi will give a view
from the bench including tips on oral argument and brief writing. Mr. Kiernan will
discuss the rules of the Appellate Division
with a focus on recent changes.
Note: Glenn P. Warmuth has been working at Stim & Warmuth, P.C. for over 25
years, is co-chair of the Appellate Practice
Committee, an officer of the Suffolk
Academy of Law and an adjunct professor at
Dowling College where he teaches Debate
and Entertainment & Media Law. He can
be contacted at gpw”stim-warmuth.com.
Citizens. To give one example, we will discuss Crimes Involving Moral Turpitude
(CIMT), what they are and how you can
avoid having your client plead to a CIMT.
As those of you who practice
Immigration Law know, US Citizenship
and Immigration Services opened up a
new office in Holtsville, New York.
Together with the Immigration Law
Committee of the Nassau County Bar
Association I am proud to announce that
on May 11 directors and supervisors from
the Holtsville office will be meeting with
us to talk about the new office, including
the services the offices provide to the community and how private practitioners can
be most effective for their clients.
It has been a busy and exciting year for
the Immigration Law Committee. I want to
thank my colleagues for their support and
assistance. If you practice any
Immigration Law you really should be a
part of this exciting committee!
Note: Eric Horn is chairman of the
Immigration Committee of the Suffolk
County Bar Association. He is also an
active member of the American Immigration
Lawyers Association (AILA). His office is
located at 1010 Suffolk Avenue, Suite 2,
Brentwood, New York 11717. Mr. Horn can
Eric Horn
Immigration Committee
Eric Horn, Chair
FOCUS ON
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SPECIAL EDITION
be reached at (631) 435-7900 or via email
at EricHornLaw”gmail.com.
Celebrating Women
March 30, 2011 documenting that from
this day forward “women and men join
hands across all fields to create a more
representative democracy for the betterment of all Americans, and … commit . .
. collective efforts to … increase female
leadership….”
After the introductory remarks, the first
female United States Supreme Court
Justice, the Honorable Sandra Day
O’Connor, welcomed the participants in a
video broadcast. She urged the attendees
“to make a collaborative effort to create
the change we need . . . a really representative democracy … for our children and
the world …. From this day on women
and like-minded men need to stand up
and step up …. Let’s join hands to create
a plan of action to increase our female
leadership.”
The program was hosted by the Nassau
and Suffolk County Women’s Bar
Associations and the Nassau and Suffolk
County Bar Associations, as well as
Building Bridges/Women in Medicine,
The League of Women Voters, The Long
Island Women’s Agenda, The National
Association of Women Business Owners,
The National Diversity Council, The
Transition Network, and Zonta Club of
Suffolk County.
At the conclusion of the program, a new
organization to empower women was
formed, “The Partnership to Advance
Women Leaders.” Please join us at our
first meeting on May 10, 2011 at 6:00
p.m. at the Suffolk County Bar
Association, 560 Wheeler Road,
Hauppauge, New York. All are welcome
to attend.
PROCLAMATION
WHEREAS, our nation strives to maintain its leadership edge, and
WHEREAS, women constitute more than half of our nation, yet statistics
demonstrate that women leaders are severely under-represented in local
and national decision-making bodies, and
WHEREAS, without the substantial participation of women in the decision-making process, our American society is missing one of its greatest
natural resources, and
WHEREAS, we recognize that we must utilize the power and abilities of
all Americans to better handle the challenges ahead, in business, medicine,
law, academia, government, politics and in every sphere.
Be it now
RESOLVED, that women and men together, from this day, March 30,
2011, join hands across all fields to create a more representative democracy for the betterment of all Americans, and be it now
RESOLVED, that we shall commit our collective efforts to the creation and
execution of a plan of action to increase female leadership, developing specific targeted goals, strategies, and tactics, promoting and supporting women
leaders in all areas, cultivating and developing women to partner in leading
established and future institutions, within our nation and the world.
20
ADR Committee Continues to Serve the Legal Community
_____________
By Steve Dely
The ADR Committee spent a substantial
amount of time during the 2010 – 2011
years brainstorming such issues as how to
effectively continue our support of the
Suffolk County Supreme Court Commercial Division’s recently implemented
Mediation Program, the court sponsored
initiative that our committee has embraced
since its inception. We believe this program provides the court, the litigants, and
counsel with a win- win- win potential.
The Mediation Program helps to reduce
court calendars, litigants with counsel participation negotiate their own agreement
and avoid the financial and emotional consequences of protracted litigation and
counsel engenders client appreciation and
good will enhancing the prospect of future
business.
New this year is an attempt to increase
our support by reaching out to other SCBA
Committees with members who practice at
the Commercial Division. One such effort
currently in progress involves the
Commercial & Corporate Law Committee. With the cooperative efforts and support of Co- chairs Marilyn Lord-James and
Cheryl Mintz and the assistance of our bar
association, we are in the process of
arranging a joint committee meeting with
the Commercial Division Justices to discuss program status and examine relevant
issues from the perspectives of the court,
the litigating attorney and the mediator.
The prospect of face to face discussion
between key participants in the Court’s
Mediation Program is very exciting and
can only enhance the program’s prospects
for success.
Since our committee’s inception in
2005, we have strived to position ourselves
as the Suffolk County Bar Association’s
information resource for matters concerning alternative dispute resolution by contributing topical articles to The Suffolk
Lawyer, developing curricula for and participating as faculty in Continuing Legal
Education programs, qualifying for and
supporting court sponsored ADR initiatives and opining, where appropriate, with-
in the ADR community on important
issues. This is consistent with our belief in
the intrinsic value of mediation and other
dispute resolution methodologies that are
consistent, we believe, with the interests of
the courts, our clients and our colleagues
in The Suffolk County Bar Association.
We would like to use this opportunity to
again invite our SCBA colleagues who
may find themselves scheduled, for example, at a court mandated mediation or a
contractually required arbitration to contact us if there are any issues with which
we may be helpful. If instead, a conversation about these processes from the perspective of the mediator/arbitrator would
be of value, we are more than willing to be
of service.
Steve Dely
Lisa Azzato
ADR Committee
Steve Dely and
Lisa Azzato, Co-Chairs
FOCUS ON
Note: Steve Dely is a former commercial
subsidiary general counsel and aerospace
corporate senior vice president and secretary, responsible for corporate administrative functions, including the legal department. He has spent the last 12 years as an
arbitrator and mediator.
YEAR IN
REVIEW
SPECIAL EDITION
COMMERCIAL LITIGATION
Money Isn’t Everything
Undermining an Injunction Application by quantifying damages
__________________
By Leo K. Barnes Jr.
The adage “money isn’t everything” has
particular significance for injunction applications. A January 2011 decision by
Eastern District Judge Nicholas Garaufis
reminds counsel that no matter how solid a
liability and damages analysis appears, and
no matter how egregious the wrongdoing
by a defendant, courts will not grant an
injunction application if damages can be
quantified, thereby undermining the
irreparable harm element of the injunction
application.
In Liberty Power Corp., LLC v. Katz and
Foundation Energy Services, LLC, 2011
WL 256216 (E.D.N.Y. 2011), Plaintiff
LPC moved for a preliminary injunction
seeking to preclude defendants from continued use of plaintiff’s alleged proprietary
information for the purpose of continued
solicitation of plaintiff’s customers.
According to the decision, LPC is a supplier of electricity to businesses, maintained an in-house staff to solicit large
businesses, yet relied upon brokers (“sales
channels”) to solicit small and medium
sized businesses. Defendants, former sales
channels for the Plaintiff LPC, sought to
identify customers interested in obtaining
electricity from LPC, which prospective
customers would enter into an electricity
supply agreement with Plaintiff LPC. The
defendants would receive a commission
premised upon the electricity usage by the
customers it referred to plaintiff, and
defendants were responsible for renewing
the customer’s contracts with LPC.
Judge Garaufis found that there was
“considerable evidence that Defendants
obtained LPC’s trade secrets in breach of
an agreement, confidential relation or duty,
or as a result of discovery by improper
means.” More specifically, a former
employee of Plaintiff LPC, Keith
Hernandez, was the inside sales channel
support representative for defendants, and
was responsible for maintaining LPC’s
relationship with defendants. Mr.
Hernandez stated that while he was
employed by LPC, defendants offered to
pay Hernandez if he would provide LPC’s
proprietary information to defendants; Mr.
Hernandez ultimately agreed to the propos-
its trade secrets”, Judge Garaufis
al and, beginning in the fall of
surmised that:
2008, did, in fact, provide LPC’s
Accordingly, LPC is not entitled
customer information to defento preliminary relief prohibiting the
dants. Defen-dants, in turn, utimisappropriation of trade secrets
lized that information to obtain
unless it demonstrates that
renewals from existing LPC
Defendants likely misappropriated
customers whose contracts were
a trade secret. Faiveley, 559 F.3d at
initially achieved by other sales
116-17. “To succeed on a claim for
channels. Defendants paid Mr.
the misappropriation of trade
Hernandez a percentage of the
commissions which defendants Leo K. Barnes, Jr secrets under New York law, a party
must demonstrate: (1) that it posearned from LPC for these
renewals. When Mr. Hernandez was termi- sessed a trade secret, and (2) that the defennated by LPC in the summer of 2009, the dants used that trade secret in breach of an
agreement, confidential relationship or duty,
theft continued.
or as a result of discovery by improper
[Hernandez] allegedly conspired
means.” N. Atl. Instruments, Inc. v. Haber,
with [Defendants] to continue to obtain
188 F.3d 38, 43-44 (2d Cir. 1999).
LPC’s customer-specific information
from an LPC sales channel support representative, Yamil Moya (“Moya”) [].
Likelihood of Success on the Merits
When Keith Hernandez went to work
• Trade Secret Analysis
for [Defendants] in January 2010,
As the New York Court of Appeals
Moya gave Keith Hernandez his passobserved in Ashland Management Inc. v.
word to LPC’s systems so that Keith
Janien, 82 N.Y.2d 395, 604 N.Y.S.2d 912
Hernandez could access LPC’s cus(1993), six factors recognized in the
tomer-specific information. Keith
Restatement are utilized to determine
Hernandez used this access to continue
whether the compilation of information
providing customer-specific informaconstitutes a protected trade secret.
tion to [Defendants]. … [Defendants]
There is no generally accepted defido[] not dispute that [they] received
nition of a trade secret but that found
LPC customer-specific information
in section 757 of Restatement of Torts,
from Keith Hernandez. … Katz does
comment b has been cited with
not specifically deny in his Affidavit
approval by this and other courts []. It
that Katz paid Keith Hernandez a total
defines a trade secret as “any formula,
of $40,000 for LPC’s customer-specific
pattern, device or compilation of inforinformation.
mation which is used in one’s business, and which gives him an opportuInjunction Analysis in Federal Court
nity to obtain an advantage over comJudge Garaufis cited the Second
petitors who do not know or use it.”
Circuit’s 2009 decision in Faiveley
The Restatement suggests that in
Transport Malmo AB v. Wabtec Corp., 559
deciding a trade secret claim several
F.3d 110, at 116 (2nd Cir. 2009) which reitfactors should be considered:
erates that, in this circuit, a movant “seek“(1) the extent to which the informaing a preliminary injunction must demontion is known outside of [the] business;
strate: (1) either (a) a likelihood of success
(2) the extent to which it is known by
on the merits or (b) sufficiently serious
employees and others involved in [the]
questions going to the merits to make them
business; (3) the extent of measures
a fair ground for litigation and a balance of
taken by [the business] to guard the
hardships tipping decidedly in the movant’s
secrecy of the information; (4) the value
favor, and (2) irreparable harm in the
of the information to [the business] and
absence of the injunction.” After the
[its] competitors; (5) the amount of
District Court observed that LPC’s injunceffort or money expended by [the busitive relief claim was premised on “the risk
ness] in developing the information; (6)
that Defendants will further misappropriate
the ease or difficulty with which the
information could be properly acquired
or duplicated by others” (Restatement
of Torts § 757, comment b).
In Liberty Power, the court agreed with
plaintiff’s contention that LPC’s established customer specific information was
entitled to trade secret protection. The
court’s conclusion was premised upon
several factors, including the fact that the
information: was gathered over a long
period of time and “through a specific
investment of resources;” was specific to
LPC’s existing and former customers;
was not easily ascertainable; and would
permit “competitors to easily undercut”
LPC’s prices. Further underscoring the
need for trade secret protection, the court
observed that LPC maintained internal
“security protocols” to control access to
the information and likewise provided
confidential protection of that information when contracting with its sales channels.
• Trade Secret Achieved by Improper
Means
The court also agreed with plaintiff’s
second contention, that the trade secrets
were achieved improperly by the defendants.
Despite the conflicting evidence,
the court finds that Plaintiff has established that Defendants likely paid at
least one LPC employee kickbacks in
order to obtain customer-specific data
that are likely trade secrets. “If a trade
secret is acquired through conduct
that is itself a tortious or criminal
invasion of the trade secret owner’s
rights, the acquisition ordinarily will
be
regarded
as
improper.”
Restatement (Third) of Unfair
Competition § 43 cmt. c (1995); see
also Restatement (First) of Torts §
759 cmt. c (1939) (“Among the
means which are improper are theft,
trespass, bribing or otherwise inducing employees or others to reveal the
information in breach of duty....”).
Plaintiff has established that
Defendants would not have been
given access to the customer data had
they not bribed an LPC employee to
obtain it. Therefore, Plaintiff has
(continued on page26)
21
SECOND CIRCUIT BRIEFS
City v. County
____________________
By Eugene D. Berman
This month we discuss Hess v. Cohen &
Slamowitz LLP, Docket No. 10-424, 2011
U.S. App. LEXIS 3512, decided on
February 23, 2011, errata filed on March 10,
2011, a case of first impression in the United
States Court of Appeals for the Second
Circuit concerning the application of The
Fair Debt Collection Practices Act’s, 15
U.S.C. §§ 1692, et seq., (“FDCPA”) venue
provision to a suit brought in a New York
State city court against a consumer who did
not reside within the court’s jurisdiction.
Cohen & Slamowitz LLP (C&S) is a
Woodbury, New York “debt collector” within the meaning of 15 U.S.C. § 1692a(6).
Acting on behalf of Midland Funding LLC
(“Midland”), a Delaware limited liability
company with its place of business in
California, C&S commenced a debt collection action against Hess in the Syracuse
City Court.
Hess moved to dismiss the complaint for
lack of jurisdiction. As relevant here, New
York Uniform City Court Act § 213(a) limits a city court’s jurisdiction to cases where
a plaintiff or defendant is a resident of the
city, or a resident of a town, located in the
same county as the city, that is contiguous
to the city by land.
Hess resided in the Town of Clay, and
never lived, worked, or maintained a place
of business in the City of Syracuse.
Although both the City of Syracuse and
the Town of Clay are located in Onondaga
County, New York, they are not contiguous
by land. Midland did not object to the dismissal, provided that it was without prejudice to its recommencing the suit in the
proper court. The Syracuse City Court
thereafter granted Hess’ motion and, in
July 2009, dismissed the case.
The following month, Hess commenced
an action in the United States
appeal as “whether C&S brought suit
District Court for the Northern
in the ‘judicial district or similar legal
District of New York in which he
entity’ where Hess resided as of the
alleged that C&S’ Syracuse City
commencement of the action.” Hess
Court action violated the
v. Cohen & Slamowitz LLP, 2011
FDCPA. That act provides that a
U.S. App. LEXIS 3512, *7. The
debt collector who fails to comcourt, reviewing familiar principles of
ply with any provision of the
statutory construction, stated that
FDCPA with respect to any perjudicial inquiry is complete when the
son shall be liable to such person Eugene D. Berman statute’s language is unambiguous,
for his or her damages, as well as
considering the ordinary or natural
such costs and reasonable attorney’s fee as meaning of the words that Congress chose, and
determined by the court. 15 USC those words’ placement and purpose in the statu§ 1692k(a).
tory scheme. Id., at *7-8.
Specifically, Hess charged that C&S’s
Citing the Congressional finding that
commencement of the Syracuse City “[e]ven where abusive debt collection pracCourt action violated his rights under the tices are purely intrastate in character, they
FDCPA venue provision. As relevant here, nevertheless directly affect interstate comthe FDCPA provides that “[a]ny debt col- merce,” 15 USC § 1692(d), the Second
lector who brings any legal action on a Circuit recognized that the FDCPA is not
debt against any consumer shall … bring limited to debt collection actions in federal
such action only in the judicial district or courts. Also, agreeing with the parties, the
similar legal entity … in which such con- court held that it must analyze the term
sumer resides at the commencement of the ‘judicial district’ in a debt collection action
action.” 15 USC § 1692i(a)(2)(B).
brought in state court within the context of
The District Court granted C&S’ motion the state’s court system.
to dismiss. In its opinion, there was persuaThe Second Circuit therefore looked to
sive common law within the Second Circuit the New York State court system to deterto interpret ‘judicial district’ to include the mine the meaning of the term ‘judicial discounty in which a debtor lives. Hess v. Cohen trict’ with regard to the Syracuse City
& Slamowitz LLP, 2010 U.S. Dist. LEXIS Court action. Id., at *10. As an initial mat1183 (N.D.N.Y., 2010) at *5. As an alternate ter, however, the Second Circuit noted that
basis for dismissing Hess’ action, the District New York’s Constitutional and statutory
Court opined that it “has difficulty conclud- phrase ‘judicial district’ – referring to the
ing that [C&S’] act … was intended to be state’s 13 judicial districts, eight of which
unfair, harassing, and deceptive …[and that] encompass multiple counties (see, NY
any unfairness, harassment and deceptive- Const., Art VI, § 6(b); NY Jud. L. § 140) –
ness plaguing [C&S’] act would be out- is not relevant for purposes of the FDCPA
weighed by the undue restrictions placed on venue provision. Id., at *11, n. 2.
ethical debt collectors if the statutory interC&S , requesting the court to affirm the
pretation proposed by [Hess] were adopted District Court’s dismissal, urged that ‘judiby this Court.” Id., at *6-7.
cial district’ refers to the consumer’s counAfter reviewing the FDCPA’s statutory lan- ty of residence. The Second Circuit
guage, the Second Circuit described the issue on acknowledged that county subdivisions are
relevant to New York’s Supreme Court,
which has general jurisdiction and a
branch in every county, and that CPLR
§ 503(a) provides, with respect to that
court, that “the place of trial shall be in the
county in which one of the parties resided
when it was commenced.”
However, those county subdivisions
do not control inasmuch as “C&S … did
not sue Hess in the Onondaga County
branch of the Supreme Court; rather, it
brought suit in the City Court for the
City of Syracuse.” Id., at *13. In this
regard, in determining the meaning of
‘judicial district,’ the Second Circuit
determined that it is logical to first look
to the territorial subdivisions of the City
Court in which C&S brought suit. The
court concluded that:
Because the court system of which
C&S availed itself is governed by laws
that limit the territorial extent of those
courts based on, inter alia, a defendant’s
contacts with the forum, we hold that
those laws delimit the ‘judicial district’by
which compliance with the FDCPA’s
venue provisions must be measured. We
thus conclude that the FDCPA’s term
‘judicial district,’ as applied to a case
where a debt collector sues a consumer in
one of New York State’s city courts,
extends no farther than the boundaries of
the city containing that court and the
towns within the same county that are
contiguous by land thereto. Because the
proper ‘judicial district’ here does not
include the town where Hess resides, we
hold that the district court erred by dismissing his complaint.
Id., at *15.
Note: Eugene D. Berman is Of Counsel
to DePinto, Nornes & Associates, LLP in
Melville.
DMV
Hardship Privilege Hearings in Suffolk District Court
___________________
By David A. Mansfield
One of the most crucial court appearances for your client when defending a
charge of Driving While Intoxicated under
Vehicle and Traffic Law §1192(2) (2a) is
the hardship privilege hearing, held pursuant to Vehicle & Traffic Law §1193.
This article is a general discussion to hardship privilege hearings held at First District
Court in Central Islip.
The hardship privilege hearing presents an
excellent opportunity for the defense attorney to demonstrate their advocacy skills to
persuade the court that an “extreme hardship” exists if your client is unable to drive to
and from work or school. The goal would be
to obtain permission for the client to operate
a motor vehicle during specifically defined
hours to and from their place of employment,
education, or medical treatment. The privilege can be granted to allow your client to
drive a member of their household to these
activities as well. Please see §1193(2)(e)(7)
The seminal case for a discussion of the criteria for the issuance of a hardship privilege is
People v. Bridgman, 163 Misc. 2d 818,622
N.Y.S. 2d 431(Canandaigua City Court 1995).
The hardship privilege applies to defendants charged with felonies or misdemeanors under §1192(2)(2a). The eligibility for a hardship privilege is based upon a
blood alcohol reading in excess of the legal
limit of .08 percent.
venient would be sufficient. The
Your client must be eligible for a
client should call at least one cab
post conviction or post revocation
company and get a quote for the
conditional license under §1196
fare each way to their employand 15 NYCRR Part §135.7. The
ment.
most frequent disqualifications are
The defense lawyer should
a prior offense within five years or
investigate as to the availability of
a third offense within 10 years.
other licensed drivers in the houseThe hardship privilege cannot
hold. You will want to demonstrate
be used to operate a motor vehicle incident to employment for David Mansfield to the court that although there are
other licensed drivers in the housesomeone who is an over the road
sales person. It does not apply to a client hold, they are unable to drive your client to
who drives a truck for a living with a com- work or school.
Find out if a co-worker could take your
mercial driver’s license or delivers pizzas
client to their place of employment.
with a regular license.
A client with an out of state license is eliThe general requirements for a successful outcome in First District Court are an gible for a hardship privilege provided they
employer’s letter, stating the exact address meet other eligibility requirements. The
and hours of employment and the nature of general rule is that the simpler your client’s
your client’s job. The letter should allow situation the more likely the hardship privthe court to infer that they will not be dri- ilege will be granted.
The court provides a form with your
ving incident to employment. Some clients
may be reluctant with good reason to client’s basic information, a grid for your
inform their employer of their arrest. client’s work and school schedule, and the
Defense counsel can try to submit pay length of the commute. The completion of
stubs, W-2s or identification badges as a the standard form will make it much clearer
substitute for the preferred employer’s let- as to the exact perimeters of the relief sought.
ter. Some judges will accept pay stubs or The defense lawyer should always advise
W-2 statements as employment verifica- their client that the relief is optional with the
court. The bench retains discretion and will
tion.
Your client should be instructed to con- make their decision not only based upon the
sult the train and bus schedule. A simple extreme hardship. The facts and circumstatement that they checked the train and stances surrounding your client’s case will
bus schedule and found it would be incon- factor into the court’s decision. Should your
case involve a high reading or a motor vehicle accident or both, you may wish to
approach the bench to ascertain the likelihood
that the court will grant your application.
The hardship privilege does not apply to
anyone who is alleged to have refused to submit to a chemical test pursuant to §1192(3).
The burden of proof for extreme hardship is placed upon the defendant. Your
client will be required to testify. It is a good
idea to have a family member available as
a witness to corroborate that they are
unable to assist in providing transportation
for your client.
The defense lawyer should conduct a
mock hearing with their client just prior to
appearing before the judge. You should try
to make your client as comfortable as possible. Try to anticipate and ask any questions the judge could be expected to inquire
of your client.
Your client should be instructed by a letter to make application for a pre-conviction
license at any local office of the Department
of Motor Vehicles on or after the 30th day
from the date they were arraigned.
I still use a yellow pad for a checklist of
the questions and a very brief statement to
the court in support of our position. Brevity
is the essence of a well-run hearing.
Note: David Mansfield practices in
Islandia and is a frequent contributor to
this publication.
22
Law Firm Partnerships
does not shy away from confrontations.
Roberto is more studious and enjoys intellectual activities. One of his dreams was to
write a book on the newly emerging field of
internet law. Simon wants to spend time
with his family and hopes to keep weekends
relatively free; he would also like to be
home most evenings to put his children to
bed. A number of issues stand out in this
example – personal needs, personality styles
and orientation to the law. These issues may
not necessarily prevent partnership formation; however, Roberto and Simon should
spend time discussing them and understanding how their differences would impact each
partner and the partnership.
The established partnership
Once the partnership has been established, other factors emerge as potential
problems. The operation and management
of the more evolved or mature partnership
requires different considerations than the
newer or beginning partnership. What
worked in the early stages may not work
later. There may be more partners and/or
associates and support personnel to manage. Also, as the attorneys have matured,
their needs have probably changed. For
example, working hard and for long hours
may have been important initially, but may
now be overshadowed by the attorney’s
need to balance professional obligations
with family, or to enjoy aspects of life that
were less important in the beginning.
Team Alignment
A central principle for all partnerships
and businesses is Team Alignment with the
goals of the firm. Team Alignment is a core
concept in the field of organizational psychology. It refers to all members of the
partnership working together for attainment of the partnership’s goals.
Establishing these goals and getting the
partners to be in alignment with the goals is
fundamental. Such an effort will assist a
partnership that is in trouble to get back on
track, and can also help a “good” partnership become a “great” partnership. The
Among Us
(continued from page 11)
concept arises from both sports and military teamwork, where all team members
work together to attain the goals. This
requires team (firm) meetings devoted to
this task. The first task is to establish the
goals; the second is to motivate the partners
to determine how to attain the goals.
Possible goals might be: increasing clients
in a particular discipline; reducing overhead; or establishing greater visibility in
the professional community.
Once goals have been identified, the
partners should collectively decide how
each can contribute to the attainment of
those goals. For example, if the identified
goal is to develop clients in a particular
practice area, the partners should jointly
decide how each of them can help achieve
this goal. Efforts might include networking, writing articles or making presentations. For some type of practices, advertising and social networking might be
options. When a partnership is working
effectively to attain its goals, the partnership (or team) is said to be in alignment.
Partnership problems
Clearly all partnerships confront difficult
issues. When there is lack of support for
some or all of the goals, that partnership
may be in trouble. When a partner or the
partners sense disaffection, it is safe to say
that the partnership has a serious problem.
When that occurs, or before it occurs, a
three-step procedure is recommended.
1. Identify the problems (sometimes difficult to do)
2. Decide what to do about them; based
on these decisions, implement the required
change(s) within the organization
3. Follow up frequently to determine if
the effort has taken and/or resulted in the
intended change.
Once this is done, the partnership can
move forward and then consider the Team
Alignment procedure discussed above. This
organizational change process, which is
often undertaken with the help of a trained
professional, requires long-term commitment. Participants begin by identifying prob-
lem areas that need to be addressed and then
commit to a more extended time period to
implement the desired changes. The process
may involve getting feedback about oneself
and one’s interaction with others, which is
obtained through interviewing and/or psychological testing. While it may be psychologically challenging for partners to hear and
digest the feedback, this kind of information
can be invaluable and can head off the more
severe costs and emotional drain of a dysfunctional partnership characterized by internal conflict.
It is important to appreciate that the goals and
success of the partnership need to be the priority and thus take precedence over the needs of
the individual attorneys. This guiding principle
should be followed throughout the life of the
partnership. The primary reason for this is that if
the partnership falters or fails, it will clearly
impact everyone. Some sacrifice for the “greater
good” is always required.
Example of an existing partnership: Sandy
and Chris have been in practice for 10 years.
Sandy is now an officer of a national bar association and hopes to become its first female
president. Increasing amounts of her time are
spent on her work at the association. She
believes it will bring significant recognition to
the firm and help draw clients. Chris belongs
to several local networking groups and is
spending much time at networking events.
Both women have views about how the other
is spending time developing the practice. Of
concern here is that there are no clear goals of
what direction the growing firm should take
and no clear “team alignment” regarding how
to attain these goals. The partners have not
jointly decided on the goals, nor explored how
each feels they can help the firm attain the
goals. Resentment is building and bitterness is
not far behind. It is imperative that the two
have some frank discussions about their
respective endeavors. These discussions need
to be preceded by some long-term goal setting
and planning for where the partners want the
practice to be in the next several years. The
goal setting can hopefully frame the discussion of how to attain the goals.
In summary, we are suggesting that attor-
neys who are considering becoming partners
should move slowly and take the time to
determine if they can work together and
whether the individuals are compatible from
every aspect. For those partnerships that are
established, time needs to be spent establishing goals and then developing the means
to achieve those goals. Establishing a winning team in sports takes many hours of drill
and practice. Plays are discussed, analyzed,
run, and rerun until all team members are
working together like a well oiled machine.
With the same effort invested in your partnership, it too can run smoothly and effectively. We recommend regular real team or
partnership meetings in which all members
conduct a detailed analysis of why certain
efforts did not succeed along with discussions of how to improve.
On the Move –
Looking to Move
have extensive transactional and litigationbased experience in real estate and foreclosure. I have a strong academic background in bankruptcy, including a schoolsponsored internship with a W.D.N.Y.
bankruptcy judge. I also have an interest in
family law, estate planning and criminal
defense. My ideal employment situation
would be with a small-firm or solo-practitioner, where I can learn the business of
law as well as the practice, with an eye
towards growing the client base.
Reference Att. #39.
Note: John P. Bracken, of Bracken
Margolin Besunder, LLP, Islandia, New
York, is Past President of the Suffolk County
Bar Association, the New York State Bar
Association and the Suffolk County
Criminal Bar Association. He is a Fellow
and former Director of the New York State
Bar Foundation, a Fellow of the American
Bar Foundation, a Fellow of the American
College of Trial Lawyers and is certified as
a Civil Trial Advocate by the National
Board of Trial Advocacy. Bracken Margolin
Besunder, LLP embraces a wide range of
commercial litigation, personal injury, civil
rights matters and estate matters. The firm’s
business practice includes real estate, banking, municipal law, labor relations and
employment regulations, corporate formation, tax certiorari and condemnation.
Dan Berger Ed.D. of Stony Brook, is an
organizational consultant with over 30
years of experience as a psychologist working in various settings. He holds a doctorate in Industrial and Organizational
Psychology from Columbia University and
is licensed to practice psychology in New
York State. Dr. Berger’s consulting experience is diverse. It includes business, health
care and education settings. His email is
drdanberger@me.com.
“Incarceration and Civil Contempt in
Family Court Matters.”
Thomas D. Glascock, a resident of
Huntington, and real estate & corporate
attorney at the Uniondale-based law firm
of Forchelli, Curto, Deegan, Schwartz,
Mineo, Cohn & Terrana, LLP, has been
appointed to the Molloy College Business
Advisory Council.
Penny Kassel, presented a free seminar
on How to Protect Your Assets as You Age
on April 25 at 7:30 p.m. at The Bristal, 99
South Service Road, North Hills. For
more information call (516) 294-8300.
The law firm of Futterman & Lanza,
LLP presents a free two-hour seminar on
the south shore of Long Island which
addresses the topics of elder law and estate
planning. “Medicaid Planning & Asset
Protection” will take place on April 20 at
400 West Main Street, Suite 124, in
Babylon. The morning seminar runs from
10 a.m. to 12 p.m., and the evening seminar is from 6 p.m. to 8 p.m.
Condolences
The Officers, Directors and members
of the SCBA were saddened to learn of
the passing of Dr. Albert Sherwyn,
father of Immediate Past President
Ilene S. Cooper. We send our heartfelt sympathy to Ilene and her family
during this difficult time.
To Eric Holtzman on the passing of his
father, Jacob.
To Beverly Luciano and her family on
the passing of her husband, Daniel F.
Luciano, former Justice of New York
Supreme Court, Appellate Division,
Second Judicial Department.
New Members
extends a warm welcome to its newest
members: Jonathan R. Bloom, Edmond
R. Foy, Matthew J. Hereth, Alonzo G.
Jacobs, Troy Kessler, Bernadine Koch,
Joseph Mirabella, Mary Kate Mullen,
Geoffrey H. Pforr, Catherine ReyesTuzinkiewicz, Naomi Strizhevsky and
Robert S. Wilson.
The SCBA also welcomes its newest student
member, Amy Raupp, and wishes her success
in her progress towards a career in the law.
This month we feature two employment
opportunities and three members seeking
employment. If you have an interest in the
postings, please contact Tina at the SCBA by
calling (631) 234-5511 ext. 222 and refer to
the reference number following the listing.
Firms Offering
Employment
Attorney with active matrimonial practice in Hauppauge seeking full-time attorney. Reference Law #2.
General practitioner, with Patchogue
law office, seeking full-time attorney.
Reference Law #1.
Members Seeking
Employment
Attorney admitted in New York in 2101,
also admitted to E.D.N.Y. and S.D.N.Y. I
A recent law school graduate awaiting
admission to the New York State Bar seeks
an entry-level attorney position. I have
some paralegal experience in the areas of
real estate, elder law and estate planning.
Excellent academic credentials. Fluent in
Russian.
Reference Att. #30.
Attorney, fully experienced in all phases
of personal injury, no-fault and SUM litigation, seeks full-time position.
Reference Att. #21.
Keep on the alert for additional career
opportunity listings on the SCBA Website
and each month in The Suffolk Lawyer.
23
Learn How to Get More When You Negotiate
“You’ve got to give a little, take a little,
and let your poor heart ....”
That’s the story of, not only love, but
effective negotiating, acclaimed negotiation practitioner Stuart Diamond might
say. Most people, he counsels, “don’t find
enough things to trade” and “think others
should be rational when they should be
dealing with emotions.”
Professor Diamond is the guest speaker at the Academy’s May 11 CLE program, entitled “Negotiations: Getting
More.” The course title replicates the
title of his best-selling book, Getting
More: How to Negotiate to Achieve Your
Goals in the Real World, which all program attendees will receive at no extra
cost. The book and the lecture promise
to provide “12 invisible strategies that
change everything you thought you knew
about negotiating.”
Professor Diamond holds a JD from
Harvard and an MBA from the Wharton
School. A previous New York Times jour-
Learn to be a better negotiator when Stuart
Diamond shares insights May 11 at the
Suffolk Academy of Law.
nalist, he was a 1986 Pulitzer Prize winner. His Fortune 500 clients (more than
200) have included Google, Microsoft,
Prudential, and J.P. Morgan. He has con-
sulted for the United Nations, and his
negotiation process was used to solve the
2008 Hollywood writers’ strike. Professor
Diamond’s negotiation courses at the
University of Pennsylvania Law School
and the Wharton Business School have
consistently been among both schools’
most popular offerings.
Getting More — the book and the lecture — promises a jargon-free guide to
negotiation. The message, publicity literature for the book states, is “radically simple”: “ignore the tactics and clichés of
‘win-win’ and ‘bargaining range’ negotiation manuals.” Instead, “the key to successful negotiation lies in credibility, flexibility, taking a personal approach, and...
trying to understand what the other person
is thinking.”
Negotiation insights, which Professor
Diamond will elaborate on at the
Academy CLE, include:
— Power (leverage) is overrated as a
negotiation device.
— Irrationality and emotion must be
Evolving Issues in Foreclosure Practice
complimentary lunch. Then, the program
resumes with a panel presentation that
will shed intense light on foreclosure
practices in Suffolk County.
“Views from the Bench” will be provided by three New York State Supreme
Court justices who have handled a
plethora of foreclosure matters:
Honorable Jeffrey Spinner, Honorable
Thomas Whelan, and Honorable Peter
Mayer. Each judge will discuss both
procedural issues and selected cases with
potentially far-reaching effects. As indicated in past CLE evaluations, attorneys
seem to value, perhaps more than all
other instructional opportunities, learning how the bench sees the techniques
litigators employ. This presentation
Bench Briefs
promises to deliver!
Following that panel, the program
will delve into four ancillary matters
about which attorneys who handle foreclosures should have a functional
awareness. Alternatives to foreclosure
(selling at market value, short sale, deed
in lieu, modification, and reinstatement)
will be reviewed by experienced real
estate lawyer Eric Sackstein, Esq., and
Allison Luskoff, Esq., of First
American Title. The special issues that
come into play (including maintenance
fees) when coops, condos, or HOA’s
face foreclosure will be addressed by
experienced practitioner and past SCBA
President Barry L. Warren, Esq.
Consumer protection laws in the con-
addressed in important negotiations.
— The pictures in their heads are more
important than the facts.
— To overcome hard bargainers, use
their standards.
— Goals are paramount, but mot people
get distracted from them.
For lawyers, negotiations are at the
heart of virtually any matter, from the simple to the highly complex. Thus, the
Academy is indeed pleased to offer this
program and hopes that attorneys at all
experience levels will take advantage of
this special opportunity to garner the
insights of a master-negotiator.
Professor Diamond’s appearance was
arranged by Past Academy Dean Patricia
M. Meisenheimer, who will serve as the
program moderator. The seminar will run
from 6:00 to 9:00 p.m., with sign-in and
light supper from 5:30 p.m. Three MCLE
credits will be awarded.
For more information or to register,
please call the Academy at 631-234-5588.
— Dorothy Paine Ceparano
text of mortgage foreclosures will be
discussed by Joseph Mauro. And the
important interplay of bankruptcy law
and foreclosure (what comes when,
what forestalls what) will be analyzed
by Leif Rubinstein, Esq., chair of the
Foreclosure and Bankruptcy Clinic at
Touro Law Center.
The conference has been developed by
an Academy planning committee that
includes Cheryl Mintz, Esq., Sean
Campbell, Esq., Stephen Beyer, Esq.,
Brian Duggan, Esq., Joseph Rosenthal,
Esq., Justice Whelan, Mr. Warmuth, Mr.
Sackstein, and Mr. Smolowitz.
As planning proceeded, the committee deemed new topics and issues necessary for inclusion, and the program
expanded
from
the
originally
announced 6 MCLE credits to 8:5 credits (including one ethics credit). The
originally quoted tuition fees ($100 for
SCBA members; $125 for non-members; $65 for student members), however, remain intact.
In addition to the complimentary
lunch, the day includes continental
breakfast during the 8:30 to 8:55 a.m.
sign-in period.
For more information or to register,
attorneys may call the Academy at 631234-5588.
defendant by certified mail, return receipt
requested, which the court pointed out was
not a proper method of service upon a
county. Accordingly, the submissions did
not establish that the court had jurisdiction
over the defendant and the motion for a
default judgment was denied.
claim, the default, and the amount due, or a
complaint verified by the defendant/third
party plaintiff and not merely by an attorney with no personal knowledge. Further,
the movant failed to establish evidentiary
proof of compliance with the additional
notice requirements of CPLR§ 3215(g)(4),
which is required when a default judgment
is sought against a corporation upon which
service was made by the Secretary of State.
Finally, the court noted that the movant
failed to submit proof that the third party
defendant was a non-profit corporation
sufficient to justify service upon that party
pursuant to CPLR §306.
Please send future decisions to appear in
“Decisions of Interest” column to Elaine
M. Colavito at elaine_colavito”live.com.
There is no guarantee that decisions
received will be published. Submissions
are limited to decisions from Suffolk
County trial courts. To be considered for
inclusion in the May 2011 issue, submission must be received on or before April 1,
2011. Submissions are accepted on a continual basis.
Note: Elaine Colavito graduated from
Touro Law Center in 2007 in the top 6 percent of her class. She can be contacted at
(631) 582-5753.
Note: The writer is the executive director of the Suffolk Academy of Law
(continued from page 4)
burse plaintiff for the costs of their
expert’s first site inspection in October
2008. In rendering its decision, the court
noted that the history of plaintiff’s
attempts to obtain an inspection of gym
equipment, specifically the floor mats, that
allegedly caused or contributed to plaintiff’s injury on September 30, 2002 were
detailed in the court’s July 7, 2009 order.
That order directed defendant to make the
subject mats available for inspection by
plaintiff’s expert, or to the extent that any
of the subject mats were no longer in the
possession of defendant, to provide an
affidavit detailing the time, place and manner of disposition of any such mats. The
court found that defendant failed to make
the subject mats available for inspection
and failed to provide plaintiff with a
detailed affidavit explaining the disposition of the subject mats. The court deemed
defendant’s conduct willful, and found
that plaintiff was manifestly disadvantaged by the inability to conduct an
inspection of the physical evidence which
was critical to the plaintiff’ case.
Cross-motion for leave to renew motion
for default judgment denied; continued
default did not constitute new facts not
offered on the prior motion that would
change the prior determination.
In Abdul Q. Malik and Hodia Malik v.
Builders Warehouse Corp d/b/a Think
Kitchen and Roman Hennessy and
Alexandra Hennessy, Individually, Index
No.: 384/08, decided on June 30, 2010, the
court denied plaintiffs’ cross-motion for an
order pursuant to CPLR §2221(e) for leave
to renew their motion for a default judgment. As to plaintiffs’ cross motion for
leave to renew its prior motion for a default
judgment against Hennessy, the court
found that plaintiffs’ submissions failed to
establish that the defendant’s continued
default constituted “new facts not offered
on the prior motion that would change the
prior determination.” Accordingly, plaintiffs failed to establish grounds for renewal
of their motion.
Motion for default judgment denied; summons with notice improperly served; court
did not have jurisdiction over defendant.
In Major C. Seabury v. The County of
Suffolk, Index No.: 35097/10, decided on
January 27, 2011, the court denied the exparte motion of plaintiff for a default judgment. The court noted that the affidavit of
service annexed to the motion papers
reflected that the summons with notice and
complaint were purportedly served upon
Honorable Peter H. Mayer
Motion for default judgment denied;
movant failed to provide proper affidavit
constituting facts, failed to comply with
additional notice requirements of CPLR
§3215(g)(4), and failed to submit proof
that the third party defendant was a nonprofit organization.
In Mary Marino v. Gordon Stedjian,
Gordon Stedjian v. Bethel Lutheran
Brethren Church and Suffolk County
Christian League, Index No.: 49551/09,
decided on March 21, 2011, the court
denied defendant/third party plaintiff’s
motion for a default judgment. In denying
the motion, the court reasoned that the
movant failed to submit evidentiary proof
of compliance with CPLR§3215(f), including but not limited to a proper affidavit of
facts by the defendant/third party plaintiff
which sets forth the facts constituting the
24
SUFFOLK ACADEMY OF LAW
OF
THE
SUFFOLK
COUNTY
BAR
A S S O C I AT I O N
5 6 0 W H E E L E R R O A D , H A U P PA U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8
SPRING CLE
The Suffolk Academy of Law, the educational arm of the Suffolk County
Bar Association, provides a comprehensive curriculum of continuing legal
education courses. Listings include some of the updates, series, and seminars to be held this spring. Watch for additional program details and
announcements.
REAL TIME WEBCASTS: Many programs are available as both in-person seminars and as real-time webcasts. To determine if a program
will be webcast, please check the SCBA website (www.scba.org –
Internet CLE).
ACCREDITATION FOR MCLE:
The Suffolk Academy of Law has been certified by the New York State
Continuing Legal Education Board as an accredited provider of continuing legal education in the State of New York. Thus, Academy courses
are presumptively approved as meeting the OCA’s MCLE requirements.
NOTES:
SPRING UPDATES
EVIDENCE UPDATE
Date TBA
A year’s worth of developments in state and federal, civil and criminal, issues.
Presenter: Professor Richard Farrell (Brooklyn Law School // Author -Richardson on
Evidence)
Time: 6:00-8:30 p.m. (Sign-in from 5:30 p.m.)
Location: Nassau County Bar Association, Mineola Refreshments: Light supper
MCLE: 2-1/2 Hours (professional practice) [Non-Transitional and Transitional]
AUTO LIABILITY UPDATE
Monday, May 23, 2011
A must-attend for negligence lawyers!
Presenter: Professor Michael Hutter (Albany Law School); Jonathan Dachs, Esq.
(Shayne, Dachs, Stanisci, Corker & Sauer)
Coordinator: James K. Hogan, Esq. (Academy Advisory Committee)
Location: SCBA Center Refreshments: Light supper
MCLE: 3 Hours (professional practice) [Non-Transitional and Transitional]
NOTE: BANKRUPTCY LAW UPDATE
will be held in the fall instead of on the previously announced June date.
SERIES
TRUSTS A TO Z
Past sessions are available as on-line video replays and may also be purchased as DVDs
or audio CDs.
This is the last program of the series. The June program (Lifetime Trusts for Minors) has
been cancelled; those registered for the full series will be given a CLE coupon equal to
the tuition cost of that program.
CHARITABLE TRUSTS
Thursday, May 26, 2011
(Second change of date.)
Presenters: Richard Chalifoux, Esq. & Raymond Radigan (U.S. Trust/Bank of American)
Series Coordinator: Ralph Randazzo (Randazzo & Randazzo, LLP - Huntington)
Time: 12:30-2:15 p.m. (Sign-in from noon.)
Location: SCBA Center Refreshments: Lunch
SEMINARS
Presented in Conjunction with the SCBA Appellate Practice Committee
PRACTICE IN THE APPELLATE DIVISION:
Soup-to-Nuts Guidelines
Wednesday, May 4, 2011
An illustrious faculty will shed light on how to bring an appeal in the Appellate Division
of the Second Judicial Department. You will gain both new insights and a plethora of
practical information.
Agenda & Faculty
General Appeal Issues (what to do, how to file) .. Harris J. Zakarin, Esq. (Rivkin Radler, LLP)
Procedures at the Court (2nd Dept. Rules; recent changes).........Matthew G. Kiernan, Esq.
(Clerk of the Court)
A View from the Bench (brief writing, oral argument) ...................Hon. Sandra L. Sgroi
(Justice-Appellate Division, Second Dept.)
Moderator/Coordinator:Glenn P. Warmuth, Esq. (Co-ChairBSCBA Appellate Practice
Committee // Academy Officer-Elect)
Appreciation for Program Underwriting: Echo Appellate Press
MCLE: 3 Hours (1.5 professional practice; 1.5 Skills) [Non-Transitional and Transitional]
CONTINUING CARE RETIREMENT
COMMUNITIES
Thursday, May 5, 2011 - Lunch ’n Learn
Attorneys who advise clients on retirement planning, senior residency options, or other
elder law issues should know about CCRCs and the potential benefits and risks of these
facilities. The informed faculty assembled for this program will explain key issues, including how the communities work; residency requirements; entrance costs, monthly fees,
and other costs; contracts (life care contracts; modified contracts; fee-for-service contracts); refunds; selling a CCRC; assessing the financial solvency of the CCRC itself; the
differences between non-profit and for-profit CCRCs, and the oversight role of state governments and, in particular, the role of the NYS Insurance Department.
Presenters: Wayne L. Kaplan, Esq. - Ruskin, Moscou, Faltischek, P.C. // Member of the
N.B. - As per NYS CLE Board regulation, you must attend a CLE program or a specific section of a longer program in its entirety to
receive credit.
Program Locations: Most, but not all, programs are held at the SCBA
Center; be sure to check listings for locations and times.
Tuition & Registration: Tuition prices listed in the registration form are for
discounted pre-registration. At-door registrations entail higher fees.
You may pre-register for classes by returning the registration coupon with
your payment.
Refunds: Refund requests must be received 48 hours in advance.
Non SCBA Member Attorneys: Tuition prices are discounted for SCBA
members. If you attend a course at non-member rates and join the Suffolk
County Bar Association within 30 days, you may apply the tuition differential you paid to your SCBA membership dues.
Governor’s Committee to Oversee Development of New York CCRCs
Harvey B. Besunder, Esq. - Bracken Margolin Besunder, LLP // Past SCBA President
George L. Roach, Esq. - Grabie & Grabie, LLP // Past SCBA President
Program Coordinators: Peter Walsh, Esq. (Academy Officer-Elect) and Howard Baker,
Esq. (Academy Advisory Committee)
Time: 12:30-2:10 p.m. (Sign-in from noon) Location: SCBA Center Refreshments: Lunch
MCLE: 2 Hours (professional practice) [Non-Transitional and Transitional
NEGOTIATIONS: GETTING MORE!
Practitioners at all experience levels will want to attend this insight-packed program featuring an illustrious guest speaker. The presenter holds a J.D. from Harvard Law and an
MBA from the Wharton School. He has represented more than 200 Fortune 500 companies, is a consultant for the United Nations, and has developed a negotiation process
that has been utilized to settle many high-profile stand-offs, including the 2008
Hollywood writers’ strike. In this seminar, he will provide “12 invisible strategies that
[will] change everything you thought you knew about negotiating.”
Presenter: Professor Stuart Diamond, JD, MBA - Author, Pulitzer Prize Winner,
Acclaimed Negotiation Practitioner
BONUS: All attendees will receive, at no extra cost, a copy of Professor Diamond’s bestselling book, Getting More: How to Negotiate to Achieve Your Goals in the Real World.
Moderator/Coordinator: Patricia M. Meisenheimer, Esq. (Bracken Margolin, Besunder,
LLP // Past Academy Dean)
MCLE: 3 Hours (Skills) [Non-Transitional and Transitional]
FORECLOSURE LAW & PROCEDURE:
Soup to Nuts
Friday, May 13, 2011 - Full Day Program
Suffolk County ranks first in New York State foreclosure rates! - This comprehensive
program, developed in response to requests from Academy constituents, will feature an
outstanding faculty of bank lawyers, defense lawyers, representatives of the bench, and
attorneys skilled in important ancillary areas. The program will take you through all the
steps of threatened and actual foreclosures. Presenters will review developments in the
law, highlight potential problems and pitfalls, and provide practical guidance for doing the
best possible for those you represent.
Topics & Speakers
Update: Changes & Trends ........................................................... Bruce Bergman, Esq.
Berman, Henoch, Peterson, Peddy & Fenchel, P.C.
Author of Bergman on New York Mortgage Foreclosures
Lender’s Perspective....................................................................Glenn P. Warmuth, Esq.
Stim & Warmuth, P.C. // Academy Officer-Elect
Borrower’s Perspective ....................................Donald Citak, Esq., Citak & Citak - NYC
SCBA Foreclosure Settlement Conference Project...................Barry M. Smolowitz, Esq.
Project Coordinator // Past SCBA President
Views from the Bench......Hon. Jeffrey Spinner; Hon. Thomas Whelan; Hon. Peter Whelan
NYS Supreme Court-Suffolk County
Foreclosure Alternatives...Eric Sackstein, Esq. (Port Jefferson) and Allison Luskoff, Esq.
(First American Title)
Foreclosures on Coops, Condos & HOAs .....................................Barry L. Warren, Esq.
Cohen & Warren , PC. // Past SCBA President
Consumer Protection Law & Foreclosure.........................Joseph Mauro, Esq., West Islip
Bankruptcy & Foreclosure .................................................................Leif Rubinstein, Esq.
Bankruptcy & Foreclosure Clinic-Touro Law School
Program Chair: Barry M. Smolowitz, Esq.
Planning Committee: Hon. Thomas Whelan; Cheryl M. Mintz, Esq.; Eric Sackstein, Esq.;
Joseph Rosenthal, Esq.; Brian Duggan. Esq.; Stephen Beyer; Sean Campbell
Time: 9:00 a.m.-5:00 p.m. (Sign-in from 8:30 a.m.)
Location: SCBA Law Center Refreshments: Continental Breakfast; Lunch Buffet
MCLE: 8.5 Hours (5 professional practice; 2 skills; 1 ethics) [Non-Transitional and Transitional
TAX PLANNING FOR P.C.’s
Tuesday, May 17, 2011 - Lunch ’n Learn
Tax planning - whether deciding upon a choice of entity, making spending decisions, or
managing day-to-day operations B is key to maximizing the profits for a small business
or professional corporation. This succinct lunchtime program will supply you with helpful strategies for advising clients and managing your own practice.
Presenters: Bruce A. Rothenberg, Esq. (Bohemia), Saranto Callamis, CPA
Moderator/Coordinator: Peter Walsh, Esq. (Academy Officer-Elect)
Time: 12:30-2:10 p.m.. (Sign-in from noon) Location: SCBA Center Refreshments: Lunch
COURT ACCOUNTINGS
Learn the fine points of preparing and submitting court accountings in this detailed program presented by a knowledgeable faculty.
Topics & Presenters
Estate Accountings
Robert K. Howard, Esq. (Hampton Bays)
Trust Accountings
Attorney from Bank of NY-Mellon
Article 81 Accountings
Carolyn B. Lindenbaum, Esq. (Holbrook // Court Examiner)
Court Perspectives
Scott P. Mc Bride, Esq. (Surrogate’s Court Law Dept-Suffolk)
Moderator/Coordinator: Eileen Coen Cacioppo (Academy Curriculum Chair)
Americans with Disabilities Act: If you plan to attend a program and
need assistance related to a disability provided for under the ADA,, please
let us know.
Disclaimer: Speakers and topics are subject to change without notice. The
Suffolk Academy of Law is not liable for errors or omissions in this publicity
information.
Tax-Deductible Support for CLE: Tuition does not fully support the
Academy’s educational program. As a 501©)(3) organization, the Academy
can accept your tax deductible donation. Please take a moment, when registering, to add a contribution to your tuition payment.
Financial Aid: For information on needs-based scholarships, payment
plans, or volunteer service in lieu of tuition, please call the Academy at
631-233-5588.
INQUIRIES: 631-234-5588.
Appreciation for Program Underwriting: Bank of New York Mellon and Jasper Surety
Time: 6:00-9:00 p.m. (Sign-in from 5:30)
Location: SCBA Center Refreshments: Light Supper
MCLE: 3 Hours (1.5 skills; 1.5 professional practice) [Non-Transitional and Transitional]
PUTTING SPOT ON TRIAL:
The Anatomy of a Dangerous Dog
Proceeding & Related Legal Issues
Especially during the warmer, out-of-door months, lawyers receive calls from both
would-be clients claiming injury by a neighborhood dog and those seeking protection for
their pets who have been deemed ‘dangerous’ and face seizure or euthanasia. The prestigious panel assembled for this program will take attendees through the dangerous dog
proceeding from start to finish. You will gain insight into this special kind of hearing
through the perspectives of a judge, a plaintiff’s attorney, defense counsel, and a master
animal trainer-expert witness. Both practical concerns and legal issues that may affect
your client (and the accused dog) will be examined. The presentation will also provide
an in-depth examination of breed-specific legislation (ABSL) and why it is banned in New
York State. Lawyers practicing in the areas of municipal law, negligence, animal law, and
criminal law won’t want to miss this program. Non-lawyers involved in animal control,
legislation, animal protection advocacy and rescue are also encouraged to attend.
Presenters: Hon. Stephen Ukeiley (Suffolk County District Court)
Amy L. Chaitoff, Esq. (Chaitoff Law PLLC // Academy Officer)
D. Daniel Engstrand, Esq. (Doniger & Engstrand, LLP //Academy Advisory Committee)
Debora M. Bresch, Esq. (ASPCA-Senior Director, Eastern Region; Gov’t Relations)
Jeff Kolbjornsen (Master TrainerBElite Animal Trainers of America, Inc.)
Program Coordinators: Amy Chaitoff, Esq. and Hon. Stephen Ukeiley
Time: 6:00-9:00 p.m.. (Sign-in from 5:30)
Location: SCBA Center Refreshments: Vegan-Vegetarian Supper
MCLE: 3 Hours (1.5 skills; 1.5 professional practice) [Non-Transitional and Transitional]
NOTE: Special Tuition Discount for enrollment in both this program and the April 25
Animal Law Program featuring Bruce Wagman, Esq.
Presented in Conjunction with the
SCBA Animal Law Committee
AN EVENING WITH BRUCE WAGMAN, ESQ.:
Everything You Wanted to Know About Animal Law from
the Man Who Wrote the Textbook
Whether you are a novice in the area of animal law, an experienced litigator, or an animal welfare advocate who wants to learn more, this is a must-attend, rare-opportunity
program! The Animal Law Committee is proud to present guest lecturer Bruce Wagman,
a world-recognized expert, author, and ‘guru’ in the field of animal law. Mr. Wagman will
discuss everything from the history of animal law and some of the first cases through current legal challenges and moral debates concerning such issues as animal hoarding; dangerous dog defenses and evaluations; cruelty; exotic and wild animals; biomedical
research; farmed animals; complex animal injury cases, dog bite litigation and defense; animal ownership; veterinary malpractice; pet custody, and animals in entertainment.
Presenter: Bruce Wagman, Esq. (Schiff Hardin, LLPBSan Francisco, CA // Author of
the textbook on Animal Law)
Program Coordinator: Amy Chaitoff, Esq. (Academy Officer)
Time: 6:00-9:00 p.m.. (Sign-in from 5:30)
Location: SCBA Center Refreshments: Vegan-Vegetarian Supper
NOTE: Special Tuition Discount for enrollment in both this program and the April 19
seminar on “Dangerous Dog Proceedings”
FOLLOWING THE MONEY TRAIL
From Marital Assets to Nazi-Looted Art
Tuesday, May 24, 2011
Nazi-looted art, bankruptcy estate assets, marital assets, and, conceivably, almost anything else can be secretly transferred by common methods, including the use of intermediaries, forgeries, portable valuable commodities, and multiple jurisdictions. This
important program will analyze transfer methods and reveal how assets may be concealed from governmental authorities, creditors, bankruptcy trustees, a divorcing
spouse, and others. The prestigious guest faculty includes an attorney who has located
tens of millions of dollars hidden in offshore tax havens; a litigator who handled the first
Nazi-era art case tried in a federal court; a well regarded bankruptcy practitioner with
over 28 years experience, and a forensic scientist-former police detective who investigated several high profile matters including the forgery and homicide case of New York
socialite Irene Silverman. If your practice involves asset location and identification, this
program - which will cover not only finding assets, but the ramifications of illegal snoops
as part of an asset search - is a must-attend!
Presenters: Fred L. Abrams, Esq. (NYC // Frequent News Media Source on Asset
Issues // Author of ‘The Asset Search Blog’)
Raymond Dowd, Esq. (Dunnington Bartholow & Miller, LLP B NYC)
Lori Lapin Jones, Esq. (Lori Lapin Jones, PLLC B NYC)
Richard T. Picciochi (Access Forensic Group, LLC)
Academy Liaison: John R. Calcagni, Esq. (Former Academy Dean)
Appreciation for Underwriting Support: Klein Liebman & Gresen, LLC
Time: 6:00-9:00 p.m.. (Sign-in from 5:30) Location: SCBA Center Refreshments: Light Supper
MCLE: 3 Hours (2.5 professional practice; 0.5 skills) [Non-Transitional and Transitional]
25
SUFFOLK ACADEMY OF LAW
OF
THE
SUFFOLK
COUNTY
BAR
A S S O C I AT I O N
5 6 0 W H E E L E R R O A D , H A U P PA U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8
IMMIGRATION LAW BASICS EVERY
CRIMINAL LAW PRACTITIONER
NEEDS TO KNOW
Effective advocacy in criminal matters often requires a working knowledge of key immigration law issues. This program will provide a basic grounding in what criminal practitioners need to know. Topics include:
•A review and explanation of Padilla v. Kentucky
•USC v. LPR v. TPS v. Visa v. EWI Legal v. Illegal: What’s my client’s status?
•Removability v. Inadmissibility
•What makes someone removable?
•Aggravated Felonies: How to avoid them
•What are Crimes Involving Moral Turpitude? How to avoid them.
•Interim Probation; Youthful Offenders; Deferred Verdict, etc.
•Pleas, divisible statutes, multiple charges
•Sentencing
•ICE Criminal Alien Program and Secure Communities
•“Legal Kidnaping” by ICE and Criminal Counsel’s Responsibility
•How being in federal custody affects state or federal rights - e.g., right to a speedy trial
•How to reach a client in immigration custody
•The judge’s role in sentencing and advisals.
•More....
Presenters: Eric Horn, Esq. (Brentwood // Chair, SCBA Immigration Law Committee)
Joshua Epstein, Esq. (Immigration Defense Project - NYC)
Others TBA
Program Coordinator: Eric Horn, Esq.
Time: 6:00-9:00 p.m.. (Sign-in from 5:30) Location: SCBA Center Refreshments: Light Supper
18B: 3 Hours
26
Applying Legal Strategies to Destroy a Legacy
was a “corruption of blood” as prohibited by
the Constitution described in Article 3,
Section 3, Clause 2 which should be upheld.
In spite of the 6 month debate concerning the
Second Confiscation Act, in its finality, it still
remained weak legislation due to the possibility
of broad interpretations of the slavery issue
from freeing slaves to treating slaves as property. In addition, it did not provide for details of
judicial enforcement and as a result was reluctantly enforced.
That there were weaknesses in the Act, but it
brought to the forefront the issue of governmental power and its possible interpretations
within the Constitution especially legal questions concerning limits of power of
Congressional legislators in their right to
establish rules regarding individual property
rights.
There was criticism of Lincoln from
Congress and from Northern radicals because of
his reticence to encourage enforcement of the
Second Confiscation Act specifically in reference to freedom of slaves. In August 1862, the
famous letter entitled, “The Prayer of Twenty
Millions” written and published by Horace
Greeley in the New York Tribune demanded
President Lincoln to enforce the section of the
Second Confiscation Act specifically regarding
the emancipation of slaves that came within
Union lines.
That although the Act called for the immediate liberation of all slaves who escaped to
Union lines, Lincoln had remained silent for
the moment regarding emancipation issues
or their enforcement because he was readying a more specific emancipation proposal.
(After Lincoln’s death, Greeley stated that he
believed Lincoln had used “The Prayer of
Twenty Millions” as a platform to prepare
the public for emancipation.)
On the same day that Lincoln signed the
Second Confiscation Act, Congress passed the
Militia Act encouraging the enlistment of “persons of African descent” in the military.
That enlistment of black men should be
gradually accomplished because of the prejudice that existed. To appease the populous
and military leaders who opposed their
enlistment, Lincoln initially had “persons of
African descent” employed in noncombatant
positions.
Although slavery was not specifically mentioned in the Constitution, the concept received
important protections. The Three-fifths
Compromise (Article 1, Section 2) which
resulted in the South having extra representation
in the House and extra votes in the Electoral
College obviously referred to slave population.
(Thurgood Marshall pointed out that Thomas
Jefferson would have lost the election of 1800 if
not for the Three-fifths Compromise.) A fugitive clause (Article IV, Section 2) stated that if a
person held to service or labor in one state
escaped, the fugitive must not be freed by the
laws of another state.
That it was wise to move slowly toward complete emancipation of slaves because large
segments of the population still embraced the
concept and its Constitutional protections.
That emancipation might incite those segments of the population wanting slavery to
the point that there would be additional
uprisings that could not be controlled. That a
better strategy would be to convince the
majority of Unionists prior to the issuing of
an Emancipation Proclamation, that an
emancipation policy could help the Union
cause.
Behind the scenes during the summer of
1862, Lincoln was discussing emancipation
with his cabinet. In September 1862, he
announced a preliminary proclamation that in
essence told the Confederate States that they
had until January 1, 1863 to return to the
Union or he would issue, on that date, a formal emancipation of all slaves in those states.
As promised, January 1, 1863, President
Lincoln issued the final Emancipation
Proclamation which called for the freeing of
all slaves in territories held by Confederates
and encouraged the enlisting of black soldiers
in the Union Army. With the encouragement
of abolitionists, black men began to volunteer
for the Union Army. Although he officially
freed all slaves in the states that were in rebellion, it still left approximately one million
slaves in Union territory. In spite of the limitations, Frederick Douglass saw the
Emancipation Proclamation as a huge victory
and commented, “Lincoln in his peculiar cautious, forbearing and hesitating way, slow, but
... sure had emancipated slaves.” “Events, said
Douglass, may be relied on to carry him forward in the same direction.”
That with political and legal persuasion,
Congressional ratification of a constitutional
amendment ending slavery could be won.
That emancipation would be accepted and
the event would open the door for complete
emancipation at a later date. That it would
encourage enlistment of black soldiers and
others not yet freed.
Due to the large number of Union casualties,
the Enrollment Act was passed in March 1863.
This established the first federal draft. Under
the provisions of the Act, each state was
assigned an enrollment quota which could be
met through volunteers and/or draftees. There
were problems that resulted. Volunteers and
draftees recognized ways of earning large sums
of money or of avoidance of service. They were
paid by the federal and state governments and
some would then desert and enlist elsewhere
and receive the compensation again. Draftees
often didn’t report or hired a substitute by paying a commutation fee. This evoked criticism of
the act that the Civil War was a rich man’s war.
That there were negative aspects of the law,
but that the end justified the means.
Black soldiers often suffered inhumane treatment by white soldiers. To alleviate the problem,
beginning January 1863, Lincoln carefully
selected such men as Generals Daniel Ullman
and Lorenzo Thomas to educate troops and other
officers in order to reduce prejudice in the field.
The enlistment of black soldiers increased dramatically and in May 1863, the War Department
issued General Order Number 143 establishing
the Bureau of Colored Troops to manage the
recruitment of black soldiers. Colored Regiments
received recognition and became known as the
United States Colored Troops (USCT).
That the addition of black soldiers would
result in an eventual successful Union victory
if prejudice in the field could be averted.
By the end of the war, nearly 180,000 Afro
American men served in the United States
Colored Troops (USCT) and were part of all
branches of the military. They constituted 10
percent of the total Union Army. Another
approximately 19,000 served in the Navy. In
addition, approximately 200,000 black men
were part of service units. Harriet Tubman and
Commercial Litigation
established that Defendants discovered its trade secrets through
“improper means.” Faiveley, 559 F.3d
at 117
The court went so far as to observe, in a
footnote, that defendants’ actions apparently transcended the civil arena and likely
constituted criminal conduct, noting that
New York Penal Law § 180.03 prohibits
commercial bribing in the first degree.
Irreparable Harm
As the title foreshadows, plaintiff’s
injunction application failed upon the
court’s analysis of the purported irreparable harm. Plaintiff argued that absent an
injunction, Defendants would continue to
use LPC’s customer information to solicit
LPC’s customers and deliver them to other
electricity suppliers. In fact, the court noted
that defendants’ opposition papers essentially acknowledged the diversion plan.
Nonetheless, irreparable harm analysis
must proceed:
In this analysis “the court must actually consider the injury the plaintiff
will suffer if he or she loses on the preliminary injunction but ultimately prevails on the merits, paying particular
attention to whether the ‘remedies
available at law, such as monetary
damages, are inadequate to compensate for that injury.’ “ Salinger v.
Colting, 607 F.3d 68, 80 (2d Cir.2010)
(quoting eBay, Inc. v. MercExchange,
LLC, 547 U.S. 388, 391, 126 S.Ct.
other black women served as nurses and spies.
By 1865, over 37,000 black soldiers had died
which was about 35 percent of those who had
served in combat.
In retrospect, Lincoln recognized the social
context in which he was living and presiding
over the Union and established laws, signed legislation and issued proclamations that he
believed had social readiness. As historian
Mary Frances Berry points out, “His justifications for black soldiers and for emancipation
itself are evidence of his creative use of the
Constitution…”
During Lincoln’s tenure as president, his
actions were cautious, pragmatic and legally
expedient. Abolition of slavery and emancipation were put aside during the initial war effort
because too many segments of the population
were opposed. The black historian, Carter G.
Woodson in his book, The Negro in Our History
published in 1922 remarks, “ Lincoln, as
President of the United States, could not carry
out his own personal plans. In a situation like
this an executive must fail if he undertakes a
reform so far ahead of the time that his coworkers cannot be depended upon to carry out his
policies....”
The culmination of Lincoln’s actions regarding the Afro American was the passage of the
Thirteenth Amendment in 1865 which abolished slavery in the United States. Therefore,
during his watch, by gradually and deliberately
establishing and applying legal strategies which
took into account social readiness, Lincoln
destroyed a legacy, the legacy of bondage in our
country.
Note: Bruce H. Seger, has been a practicing
attorney for 19 years and is a professor of
library science and a liaison to the paralegal
program at Suffolk Community College as well
as having been an assistant professor of law
and technology related courses in the graduate
education department at the University of
Bridgeport. In addition, he has been an historical genealogist for the past 17 years.
1837, 164 L.Ed.2d 641 (2006).
The court concluded that plaintiff
failed to carry its burden of establishing that the anticipated harm was
actually irreparable. After casting
doubt on plaintiff’s suggestion that a
presumption of irreparable harm
exists in trade secrets cases, and holding plaintiff to its burden of establishing truly irreparable harm absent the
injunction, the court found to the contrary and concluded that Plaintiff’s
harm was, in fact, quantifiable.
According to plaintiff, defendants
stole trade secret information only
with respect to a finite - albeit large
- number of customers [Plaintiff
claimed that Defendants acquired
trade secret information concerning
4,630 former and current customers].The harm Plaintiff has
alleged in this case is the possibility
that Defendants will use its trade
secrets to undercut its contracts with
a defined subset of its current and
former customers and move them to
competing electricity suppliers.
Even if the court finds that Plaintiff
has shown that there is an actual and
imminent risk that Defendants will
use Plaintiff’s trade secrets to do
this, the harm that would result is
measureable and compensable
through an award of damages after
trial. Indeed, Plaintiff has calculated
the potential renewal value of the
contracts between it and the customers about whom Defendants
obtained Plaintiff’s proprietary
information. At trial, Plaintiff would
be able to offer evidence establishing how many customers it lost due
to Defendants’ misappropriation of
its trade secrets, and could recover
damages to compensate it for this
harm [emphasis added].
The court rejected the injunction application, despite concluding that: (1) plaintiff’s misappropriated customer information was entitled to trade secret protection; and (2) that defendants’ effort to
gain that data likely constituted criminal
misconduct. Despite these egregious circumstances, wherein a defendant bribed
his competitor’s employee to obtain confidential trade secret information, the
court refused to award an injunction.
When presenting an injunction application, movant’s counsel must carefully
maneuver a tightrope between competing
concerns - at all times balancing the need
to demonstrate the severe consequences
which a given defendant’s egregious misconduct has imposed upon the movant’s
business, while simultaneously developing the irreparable injury aspect of the
claim. Unfortunately for LPC, the two
concerns were irreconcilable.
Note: Leo Barnes, a member of Barnes
& Barnes, P.C., can be reached at
lkb”barnespc.com.
27
Consumer Bankruptcy
loan?
The general answer is, only when
absolutely necessary to enable the client
to keep the vehicle. When BAPCPA
went into effect, we bankruptcy attorneys routinely advised our clients to
reaffirm all car loans. After all, we did
not want our clients’ cars to be repossessed. However, as the years went by,
we learned that most car lenders informally permitted a ride-through. In other
words, they permitted debtors to keep
their secured vehicles, even if the debtors
did not enter into a reaffirmation agreement.
However, a select few, most notably
and notoriously Ford Motor Credit,
adopted unusually harsh policies in
which they actively threatened to repossess vehicles that debtors failed to reaffirm or assume, and sometimes actually
went so far as to repossess those vehicles
thereafter. The lesson learned was
always reaffirm or assume a vehicle
financed by Ford Motor Credit.
Statutory obligation for
reaffirming car loan
The Bankruptcy Code provisions for
reaffirming a debt are set forth in §
521(a)(2). This provision requires the
debtor to indicate on the Statement of
Intention whether he intends to retain or
surrender the vehicle, and if the intent is
to retain, the debtor must state whether
he will redeem (which means to immediately pay the full loan balance, up to the
value of the car, in a lump sum payment)
or reaffirm pursuant to § 524.
In addition, Bankruptcy Code Rule
4008(a) basically requires the debtor
to perform his stated intention within
60 days after the date first set for the
meeting of creditors. In other words,
a debtor has approximately 90 days
from the date of the bankruptcy filing
to file a reaffirmation agreement with
the court.
Here’s the kicker: the Code provides
under § 524 (c) that the stay is automatically lifted if these requirements are not
timely met, meaning, that the car loan
lender is then free to exercise its rights to
repossess the collateral if there is a
default under state law.
Judge Grossman refuses to permit
late-filed Reaffirmation Agreement
In the case of In re Barry R. Clark, no.
8-10-73746-reg, 2010 WL 5348721,
(Bankr. E.D.N.Y. Dec. 21, 2010), the
debtor and his attorney neglected to reaffirm the car loan with lender Ford Motor
Credit. When Ford actually repossessed
the vehicle after the bankruptcy case was
closed, the debtor’s attorney essentially
said to them: “Wait. I will re-open the
case, seek to vacate the discharge as it
applies to Ford, and file a reaffirmation
agreement.”
Debtor’s counsel, who also happens to
be a Chapter 7 trustee in our jurisdiction,
then brought a motion to do just that, and
it was unopposed. However, Judge
Robert E. Grossman refused to grant it,
saying that there is no basis in the code
that permits him to do so.
Judge Grossman explained that both
BAPCPA and caselaw mandate a process
for reaffirming debts that requires strict
compliance by the debtor. He stated that
we have this process to protect debtors
from the pressure that could otherwise be
exerted by overly aggressive creditors to
force debtors to pay discharged debts.
Debtors obtain very powerful protections through bankruptcy such as being
able to discharge debts, and they shouldn’t be able to jeopardize those protections at a time when they are most vulnerable. Judge Grossman concluded that
permitting a reaffirmation after the case
is closed would undermine the integrity
of the bankruptcy process – even though
it would mean, as in this case, that
debtors could lose their vehicles.
So despite arguments by the debtor’s
attorney that this case involved “special
circumstances” because the debtors
needed a car to get to work, and couldn’t
earn an income without one, Judge
Grossman was insistent that he could not
grant the requested relief.
The decision also pointed out that both
the statute and case law make it clear that
a reaffirmation agreement will be unenforceable if it is not made before the
granting of the discharge. Congress
made it clear that once a debt is discharged, the debtor should not be pressured in any way to repay it.
However, upon carefully reading the
decision, it appears that if the debtor had
entered the reaffirmation agreement prior
to the date of discharge, even if it was not
filed as required, then the debtor might
have been successful with the application.
Second decision distinguishes car
leases
Just one month after In re Clark, Judge
Grossman decided a similar case involving
a leased car, as opposed to a car with a
loan. In re Linda J. Mortensen, no. 8-1075234-reg,( Bankr. E.D.N.Y. Jan. 19,
2011). Here, Monster Gorilla Ford Motor
Credit was a lessor and threatened to repo
the vehicle since the debtor did not assume
the lease.
Judge Grossman permitted the debtor
to re-open the case to enter into a lease
assumption agreement. He stated that
reaffirmation of a car loan pursuant to §
524(c) is not equivalent to assumption of
a lease for personal property owned by a
creditor under § 365(p), and each undertaking impose different steps and confer
different rights upon the parties to the
respective agreements.
The decision did not indicate whether
the assumption agreement had been executed before or after the date of discharge.
Unlike In re Clark, the entry of the
debtor’s discharge is not an impediment
to the debtor’s assumption of the lease
pursuant to § 365(p) which is the section
that deals with assumptions of lease.
Assumptions of lease are not subject to
the discharge or the post-discharge
injunction granted under § 524.
Judge Trust reaches same
conclusion
Three months after Judge Grossman
issued the In re Clark decision, Judge
Alan S. Trust reached the same holding
in a case that was very similar in fact. In
re Polyner Mardy, no. 8-10-73819-ast,
(Bankr. E.D.N.Y. March 15, 2011). By
now you can guess who the lender was Ford Motor Credit, of course.
In that case, the debtor and his attorney
also failed to reaffirm a vehicle loan, and
the court entertained an unopposed
application to reopen the case to extend
the time to file the reaffirmation agree-
ment. Sometimes when one judge reaches one conclusion on a legal issue, another judge in the same court can reach a
different conclusion. However, that was
not the case here.
Judge Trust held that the court lacked
authority to reopen a closed chapter 7
case in which a debtor has received a discharge to allow the late filing of a reaffirmation agreement. So even though the
debtor used the vehicle as a taxi, which
was his main source of income, the rule
of law prevailed over equity. “Because
these reaffirmation agreements are contrary to the stated goal of a debtor receiving a fresh start, they are subject to
intense judicial scrutiny and must comply with all statutory requirements.”
The debtor’s attorney, who is a highlyexperienced Suffolk County bankruptcy
lawyer, didn’t help things much as he
failed to show up for the hearing on his
own motion, and consequently the court
marked the application off the calendar.
The attorney re-filed the motion a
month later. Inexplicably, he failed to
show for the second hearing, although
his clients showed up without him! In
addition, the judge criticized the attorney for submitting a sloppy motion, stating that it was “devoid of factual content
and legal authority.” The attorney did
not include a copy of the proposed reaffirmation agreement, so the court was
unable to ascertain if it had been executed prior to discharge.
Judge Trust issued a separate order
directing the debtor’s attorney to disgorge any fees that he charged for bringing the motions. Perhaps more importantly, speaking in terms of future credibility, this attorney may have devalued
his currency with the court.
Judge Trust further clarified that not
only must the reaffirmation agreement
be executed prior to discharge, but any
hearing to approve the agreement shall
be concluded prior to discharge as well,
according to § 524(m)(1). “The timing
of entering into the agreement and
court approval thereof, therefore, are
critical. Further, any delay in seeking
approval once discharge is granted is
fatal, and prevents any enforcement of
the agreement.”
Thus, it appears that Judge Trust may
address such situations in a stricter sense
than Judge Grossman, whose decision
left the door open for cases in which the
non-filed agreement had been signed
before discharge.
Practical tips
Ascertain early on if you need to reaffirm a vehicle loan or assume a lease. If
so, calendar the deadlines which would
be 60 days from date of the meeting of
creditors. Then, make sure the creditor
forwards you the proposed agreement.
Those lenders that insist on reaffirmation
or assumption agreements will certainly
send you one.
Do not reaffirm a vehicle if the lender
permits a ride-through. Doing so will
not bring any benefit to your client
unless the lender is willing to modify the
terms of the loan by reducing the interest
rate, principal balance, or monthly payment.
If you definitely need to reaffirm a car
loan and need more time to file it, bring
an application to extend the time pursuant to §521(a)(2)(B).
If you entered into a reaffirmation
agreement and neglected to file it prior to
discharge, you might be successful in
bringing an application to reopen, to file
it late, but only if the agreement was
truly signed prior to the date of discharge, and probably only if the judge is
not Judge Trust.
If you need to file a lease assumption
agreement late, you may be successful,
based on the In re Mortensen decision.
Also note that lack of opposition to a
motion does not guarantee success.
Finally, if you bring any motion, provide
the statutory or caselaw authority for
doing so, and definitely show up for your
hearing.
Note: Craig D. Robins, Esq., a regular
columnist, is a Long Island bankruptcy lawyer
who has represented thousands of consumer and
business clients during the past twenty years.
He has offices in Coram, Mastic, West Babylon,
Patchogue, Commack, Woodbury and Valley
Stream. (516) 496-0800. He can be reached at
CraigR@CraigRobinsLaw.com. Visit his bankruptcy website: www.BankruptcyCanHelp.com
and his bankruptcy blog: www.LongIslandBankruptcyBlog.com.
Motivational Speaker
Encouraging everyone to find their
individual road to success, Mr. Gordon
discussed the thought processes of champions believing that it is different and
something that everyone could do too if
they only chose to do so.
Motivational speaking are all about
encouraging others to empower themselves
to move forward. Believing that success is
determined by what you do today, Mr.
Gordon said there was a need for a humble
and hungry mindset.
“You need to be hungry to be your best
and you need to work harder than everyone else,” he said. “And one person in the
pursuit of greatness influences everyone
else. It doesn’t matter how hard you get
hit. It’s how hard you can get hit and keep
moving forward that matters.”
By the end of the evening it seemed
apparent that SCBA members found
(Continued from page1)
Mr. Gordon admirable. As someone
who changed his complaints into solutions, turned the negative into something positive he appeared to be someone to emulate.
Note: Laura Lane is the Editor-in-Chief
of The Suffolk Lawyer. She is an awardwinning journalist having written for The
New York Law Journal, Newsday and the
Herald newspapers among others. She
can be reached at (516) 376-2108.
The SCBA would like to thank principal sponsor Richard G. Chalifoux,
U.S. Trust, Bank of America Private
Wealth Management; and support
sponsors: Enright Court Reporting;
and Madison Park Consultants.
28
Tort Reform - Preparing For the Approaching Storm
preclude a party from offering such expert’s
testimony at the trial of the action.
∙ establish a penalty of at least $1,000 for
each intentional destruction, mutilation or
significant alteration of a medical record by a
party to a medical malpractice action;
∙ adopt a medical malpractice contingency
fee schedule to all actions for personal injury
and reduce contingency fees by five percent
throughout the schedule;
∙ establish the medical liability insurance
association to replace the medical malpractice insurance pool of New York State as the
provider of medical malpractice insurance;
∙ increase taxes imposed upon HMO’s to
offset the financial burden of the high cost of
medical malpractice premiums paid by doctors in New York State;
∙ require hospital which submits an incident report to the department of health to
simultaneously provide a copy of such report
to the affected patients and/ or their legal representatives – and stays the statute of limitations for medical, dental and podiatric malpractice causes of action until one year after
an incident report is submitted.
∙ provide for a private right of action
against a hospital for injuries suffered as a
result of a hospital acquired infection; and
establish strict liability against hospitals for
medication errors.
∙ enact the “medical consumer ‘right to
know’ act”; direct the department of health to
annually publish a list of health care
providers with 5 or more medical malpractice
judgments, awards and/or settlements during
the most recent 10 years;
∙ require licensed health care professionals
and hospitals to make available to patients
and prospective patients a printed copy of any
medical malpractice convictions or information, with civil and criminal penalties for failure to comply;
Bill No.: A01360
Requires a certificate of merit in actions for
damages, contribution or indemnity arising
out of alleged negligence of a professional
licensed pursuant to the education law; establishes a party in an action for medical, dental
or podiatric malpractice may not omit the
name of certain experts in responding to a
request; limits judgments for past and future
damages in an action to recover damages for
dental, medical or podiatric malpractice; limits compensation for noneconomic damages
suffered by an injured plaintiff in any personal injury action to $250,000.
Action: referred to codes
Purpose: To alleviate the expense of the tort
system by establishing a limitation on noneconomic damages in personal injury actions
through amendments to the civil practice law
and rules, and judiciary law, in relation to dental, medical, and podiatric malpractice.
Summary: Amends CPLR §3012-a to provide that a complaint in a malpractice or negligence action involving a defined professional must be accompanied by a certificate of
merit of an attorney and that at least one such
professional has been consulted and provided
an affidavit in certain cases, and that the attorney has concluded that there is a reasonable
basis for the action. If the attorney is unable
to timely procure such a consultation after
three good faith attempts to do so, this must
be stated. Where the attorney intends to rely
solely upon the doctrine of “res ipsa
loquitur,” this section is not applicable.
Amends section 5031 of the CPLR relating
to periodic payment of judgment threshold,
reduces the same from $1,000,000 to $50,000
in civil actions including malpractice.
Amends CPLR §5041 in respect to personal injury, damage and wrongful death actions.
Adds Article 50-c to the CPLR, capping
non-economic damage awards in negligence
actions at $250,000.00.
Amends section 474-a of the Judiciary
Law to adopt a medical malpractice contingency fee schedule to all actions for personal
injury and, further, reduces contingency fees
in such cases by five percent throughout the
schedule.
Justification: Many members of these professions have found themselves to be the targets of frivolous lawsuits. The CPLR 3012-a
Certificate of Merit requirement is presently
in effect for medical, dental and podiatric
malpractice suits. This legislation seeks to
ensure that plaintiff’s counsel has consulted
with other stated professionals as relevant, to
ascertain that a valid cause of action exists.
Litigants will not be barred from bringing
suit, but absent a favorable opinion from a
knowledgeable subject professional as to the
merits, it is anticipated that actions may be
ended in the early stages, thus saving both
parties the expense of litigation, and relieving
court congestion. “This reform is supported
by 82% of New Yorkers, according to a 1997
statewide Zogby poll.”
Bill No.: A02011 (Creates the medical liability insurance association)
Action: referred to insurance
Purpose: Creates the medical liability
insurance association to replace the medical
malpractice insurance pool as the provider of
medical malpractice insurance; provides
availability to those unable to obtain medical
malpractice insurance in the voluntary market.
Summary: This plan will contain provisions to establish necessary facilities, management of the association, assessment of
members to defray losses and expenses, service charges, acceptance and cession of reinsurance, appointment of servicing carriers or
other servicing arrangements and procedures
for determining amounts of insurance to be
provided by the association. MLIA will
assume and utilize the rates, rating plans, rating rules, rating classifications territories and
statistics that are currently being used by the
medical malpractice insurance pool of New
York State.
It will also outline the procedures in which
an applicant may apply to the association, set
guidelines for each member’s participation,
and provide a framework for creating a board
of directors.
Justification:
The structure of the present Medical
Malpractice Insurance Pool of New York
State (MMIP) is causing significant and
rapidly worsening problems to the members
of the pool. The superintendent was granted
the authority in 1985 to establish medical
malpractice rates for physicians and surgeons
at the lowest possible level consistent with
solvency. In recent years, insurers have
requested rate increases in excess of those
actually granted, and as a result, the surplus
of medical malpractice insurers has steadily
declined to the point where it has become
more likely that some of the insurers could, in
the near future, be statutorily impaired were it
not for earlier legislation exempting them
from the liquidation provisions of the New
York Insurance Law. MMIP’s significant
losses have exacerbated the pressures on
insurers in New York and are further weakening their financial position. This bill, in effect,
changes MMIP to a separate association,
required to meet reporting and other requirements of the New York Insurance Law. This
will allow medical malpractice insurers better
footing and allow medical malpractice insurers to stay in the market.
Bill No.: A03049 (Imposes a tax on
HMO’s and establishes the medical malpractice relief fund)
Action: referred to ways and means
Purpose: To establish a medical malpractice relief fund to offset the financial burden
of the high cost of medical malpractice premiums paid by medical practitioners in New
York State,
Summary: This bill amends the tax law
and the state finance law by adding a new
article 33-c to impose a tax on health maintenance organizations (HMOs) to create the
New York Medical Malpractice Relief Fund.
Section 1580 defines health maintenance
organizations (HMOs). Section 1581, imposes a tax on 1-D10s authorized to transact
business in New York State, and authorizes
the commissioner and the superintendent to
design the rule and regulations necessary to
implement this tax. Section 1582, dictates
that all taxes, interest and penalties collected
under this article shall be deposited in the
medical malpractice relief fund. Section 2,
amends the state finance law by adding section 97-jjjj establishes in the joint custody of
the state comptroller and commissioner of
taxation and finance a special revenue fund to
be known as the medical malpractice fund
(MMRF).
Justification: Soaring medical malpractice
insurance rates are causing clinics in many
parts of New York State to close, or doctors to
walk away from their practices, and hospitals
to shutter their trauma centers, maternity
wards and other facilities dealing in specialized medicine. Reports show that every state
in the country is feeling the effects of the soaring cost to practice medicine. 20 percent of
hospitals across New York State have had to
curtail their services in some way because of
soaring malpractice costs. On July 1, 2006 the
New York State Insurance Department
approved a 9 percent raise in malpractice
insurance, pushing some medical malpractice
premiums up to $300,000 a year. In addition
to the premium hike, physicians now have to
pay for a separate policy covering their entire
practice, concerning such things as injuries
from equipment and other office mishaps. It
used to be that these injuries were covered
under one policy. Under the new guidelines
this is no longer the case.
Statewide, neurosurgeons, OB/GYNS and
orthopedic surgeons face the highest rates. The
Lake Success-based Medical Society of the
State of New York reports that many neurosurgeons now in Long Island will now pay on the
average $270,000 per year in malpractice premiums. OB/GYNs in Queens and Brooklyn
will pay $150,000 and orthopedic surgeons in
Westchester County and Manhattan will pay
more than $95,000 a year, the group states.
Physician liability premiums over four years
have increased by 30 percent, whereas most
physicians’ incomes have remained stagnant.
These kinds of precipitous increases in the cost
of doing business are making it extremely difficult to practice in this state. The unjustified
high cost of malpractice insurance is not only
pushing experienced doctors out of state,
and/or prompting early retirement by seasoned
physicians in high-cost, high-risk specialties,
but are also making it extremely difficult for
new physicians to open their own practice.
While many medical practitioners have
been convinced that the cost of medical malpractice insurance is rising due to increases in
malpractice jury awards, or a rise in medical
expenditures, this has not been proven to be
so. According to both the Congressional
Budget Office and the General Accounting
Office, medical malpractice costs are a tiny
percentage of overall health care expenditures. Medical malpractice insurance arid
claims costs represent, at most, only 2 percent
of the overall health care spending in this
country. In addition, the study reports that
medical malpractice lawsuit filings, payouts
and jury verdicts arc all dropping, yet mal-
practice premiums continue to increase.
While hospitals and other health care
providers struggle to break even, HMOs and
other insurance companies continually report
skyrocketing profits. In the past five years,
HMOs’ profits have roughly doubled in New
York State. Rather than using their profits in
ways “that might give relief to New Yorkers
paying high insurance premiums” (can you
say redistribution?), HMO’s instead have
opted to spend, in 2007 alone, over $100 million in bonus and financial incentives to top
executives (what nerve).
The profitability in health care is excessive
and “may even be abusive.” As such, there is
ample justification to “tap into these excessive profits” to provide “relief” to medical
practitioners whose incomes have declined
due to cost cutting measures implemented by
HMOs. When enacted into law, the New York
Medical Malpractice Relief Fund (NYMMRF) will provide much help and encouragement to doctors who have committed to practice and provide healthcare in New York
State.
Bill No.: A03913
Purpose: This bill would extend the statute
of limitations in medical, dental or podiatric
malpractice actions against a hospital where
the hospital has violated section 2805-1 of the
public health law by failing to file an incident
report as mandated by that section. It also
requires such reports to be sent to the patient
and their representative. Finally, the bill provides for a private right of action against a
hospital for injuries suffered as a result of a
hospital acquired infection; and establishes
strict liability against hospitals for medication
errors.
Summary: Section 1 tolls the statute of
limitations in a medical, dental or podiatric
malpractice action so that where there is a
failure by a hospital to file an incident report
as mandated, by the public health law, a
plaintiff has a year from the date of filing of
such report in which to commence an action.
In addition, it tolls the statute limitations in
a medical, dental or podiatric malpractice
action so that where an action is time-barred
against an individual healthcare service
provider, an action may still be commenced
against a hospital where either the individual
or the hospital has failed to file an incident
report as mandated by the public health law, a
Section 2 requires incident reports submitted to the Department of Health under section
2805-1 of the public health law also be sent to
the patient and their representative.
Section 3 provides for a private right of
action as a result of injury from a hospital
acquired infection.
Section 4 provides for strict liability
against a hospital for medication errors.
Justification: Despite having been a
requirement for over 20 years, there are abundant reports of hospitals failing to file incident
reports as mandated by the public health law.
These incident reports are required in order to
give the Department of Health notice that a
significant incident has occurred, such as a
patient death under circumstances other than
as a result of the course of disease, injury or
proper treatment. It also includes situations
that harmed patients, such as fires, equipment
malfunctions, or poisonings. According to a
Harvard study, over 7,000 New Yorkers die
each year as a result of preventable medical
errors. Clearly, these reports are a significant
tool that should be used to prevent the recurrence of harm or death to patients.
Yet by failing to timely file such reports,
hospitals are preventing the Department of
29
THE SUFFOLK LAWYER —DECEMBER 2009
Health from asserting its authority to make
sure the public is adequately protected in the
case of substandard patient care of hospital
environment.
Furthermore, the law fails to permit notification to those most directly affected by such
unfortunate events-the patient themselves, as
well as family or others who are designated to
help make crucial decisions for the patient. By
tolling the statute of limitations on malpractice
actions against hospitals, such institutions are
incentivized to obey the clear letter of the law.
Furthermore, hospitals will not be able to protect themselves from liability for their harmful
actions simply by ignoring the law, and thereby
further harming the patient in question - first by
whatever action led to the requirement of filing
the incident report, then again by not filing the
report, thus preventing the patient or their representative from accessing information that
could, help them recover damages for their
death or injury.
With respect to hospital acquired infections, it is widely reported that such infections are commonplace and have hugely
inflated the number of injuries and death that
would otherwise be preventable but for lack
of adherence to modern sanitation standards.
Indeed, according to a report by the
Committee to Reduce Infection. Deaths,
“infections contracted in hospitals are the
fourth largest killer in America.” Despite regulatory and self-policing efforts to overcome
this frightening and unnecessary phenomenon, patients still suffer needlessly as a result
of such infections.
As with many other public safety issues
over the years, one method of assuring that
the self interest of the erstwhile wrongdoer is
aligned with that of the victim, thus changing
their behavior for the public good, is permitting those harmed by the improper behavior
to bring suit for damages. By permitting
patients to bring action against hospitals for
hospital acquired infections, hospitals will be
forced to review their sanitary procedures and
provide a safer patient environment.
Finally, the matter of medication errors is
addressed in the bill as well. Similar to that of
hospital-acquired infections, there is no good
reason for so many people to be harmed for
such mistakes in this day of modern technology and advanced therapeutic practices available to prevent careless mistakes. As with the
problem of infections, by making hospitals
strictly liable for harms that are the result of
preventable error, such institutions will modify their practices that reduce medication
errors and substantially enhance patient safety
**************
Bill No.: A04381
Action: referred to judiciary
Purpose: Enacts the “medical liability
reform act”; requires attorney for plaintiff in
case to include with the certificate of merit,
an affidavit of an appropriate medical professional licensed in this state stating that there
is a reasonable basis for such malpractice
action; failure to file will result in dismissal;
modifies limited liability of persons jointly
liable; limits noneconomic damages in such
causes of action to $250,000; requires
enhanced and comprehensive disclosure of
expert witnesses to be used by any party in
medical, dental and podiatric malpractice
cases.
Summary: §2 adds the requirement of an
affidavit from a physician concluding that
there is a reasonable basis for the commencement of an action, with such affidavit to
accompany the certificate required by this
section, with caveats.
§3 repeals the definition of “non-economic
loss” and replaces it with definitions for
“noneconomic damages” and “actual economic damages.”
§4 amends CPLR §1601 to make equitable
share regardless of whether a defendant was
less than fifty percent liable, as determined in
accordance with the relative culpability of
each defendant.
§5 adds Article 50-C, limitation on noneconomic damages to the CPLR.
§6 amends CPLR §3101 to remove the
exception that allows the omission of the
names of medical, dental or podiatric experts
from production materials concerning experts
testifying at trial.
§7 replaces clause (ii) of paragraph I of
subdivision (d) of CPLR §3101 to require
that, in an action for medical, dental or podiatric malpractice, the report shall contain a
complete statement of all opinions to be
expressed, the basis and reasons therefore;
the data or other information considered by
such person in forming the opinions; any
exhibits to be used as a summary of or support for the opinions; the qualifications of the
person, including a list of all publications
authored by the person during the preceding
ten years; the compensation to be paid for the
person’s consideration of data or other information and for his or her testimony; and a
listing of any other cases in which the person
has testified as an expert at trial or by oral
deposition within the preceding four years.
Additionally, this bill requires a party to produce such expert for an EBT, in accordance
with rule 3107 of the CPLR. Unless manifest
injustice would result, the court shall require
that the party noticing an oral deposition of
such an expert witness pay such witness a
reasonable fee for time spent in attending
such oral deposition. Violation of these provisions shall preclude a party from offering
such expert’s testimony at the trial of the
action.
Justification: The cost of medical malpractice liability insurance coverage in the
state of New York has increased steadily for
several years, increasing between 55-80 percent between 2003 and 2008, and an additional 5 percent in July 2010. Such unsustainable cost increases not only threatens access
to care for patients, it also has driven up the
cost of health care for the public. Notably,
former Lieutenant Governor Richard Ravitch
highlighted in a September 2010 report the
need for medical liability reform as one necessary component to reduce New York’s
extraordinary Medicaid cost burden. Several
recent studies have detailed the billions of
dollars in health care costs that are unnecessarily spent each year due to the practice of
“defensive medicine,“ such as unnecessary
MRIs, CT scans and specialty referrals.
These enormous costs are driven by an
unpredictable medical liability adjudication
system that numerous studies have concluded
results in cases where awards are made
despite the absence of any negligence whatsoever. While an overwhelming majority of
medical liability cases brought result in no
payment, even the costs of defending these
cases are extensive and significantly add to
the astronomical cost of medical liability
insurance.
This bill makes medical malpractice liability reform in several important ways.
The bill provides a true mechanism for
removing frivolous claims from the dockets of
New York’s court rooms. Fewer non-meritorious claims will be advanced in the state, by
adding the requirement of an affidavit of
merit, signed by a physician, and providing a
judge the tools to remove a malpractice claim
for failure to comply with the provisions of
this amended section.
To bring down the amount of judgments in
medical malpractice claims, the bill necessarily establishes statutory language for “noneco-
nomic, damages” and “actual economic damages” in order to facilitate the $250,000 cap
on noneconomic damages for which this bill
provides. There are 30 states that have enacted some form of a cap on non-economic
awards in medical liability actions, including
California and Texas. The effect in premiums
has been significant. California physicians
pay far less than what New York physicians
pay for liability premiums, in Texas, physicians have seen significant reductions in their
liability insurance costs since the enactment
of a cap in their state in 2003, as well as a significant increase in physician license applications.
Additionally, the bill links a defendant’s
monetary liability to their equitable share in
accordance with the relative culpability.
This bill expands the scope of production
in regards to expert witnesses and their testimony, including identity, which a party must
disclose upon request by its opposition. This
bill is necessary to facilitate meaningful
reform of medical malpractice liability.
Bill No.: A04483 (“medical malfeasance
accountability act”)
Purpose: This bill would extend the statute
of limitations in medical, dental or podiatric
the hospital has violated section 2805-1 of the
public health law by failing to file an incident
report as mandated by that section. It also
requires such reports to be sent to the patient
and their representative.
as mandated by the public health law, a plaintiff has a year from the date of filing of such
report in which to commence an action. In
addition, it tolls the statute limitations in a
medical, dental or podiatric malpractice
Section 3 requires incident reports submitted to the Department of Health under section
2805-1 of the Public Health Law also be sent
to the patient and their representative.
requirement for over 20 years, there are abundant reports of hospitals failing to file incident reports as mandated by the public health
law. These incident reports are required in
order to give the Department of Health notice
that a significant incident has occurred, such
as a patient death under circumstances other
than as a result of the course of disease, injury
or proper treatment. It also includes situations
malfunctions, or poisonings. Recording to a
tool that should be used to prevent the recurrence of harm or death to patients. Yet by failing to timely file such reports, hospitals are
preventing the Department of Health from
asserting its authority to make sure the public
is adequately protected in the case of substandard patient care of hospital environment.
help make crucial decisions for the patient.
By tolling the statute of limitations on malpractice actions against hospitals, such institutions are incentives to obey the clear letter
of the law. Furthermore, hospitals will not be
able to protect themselves from liability for
their harmful actions simply by ignoring the
law, and thereby further harming the patient
in question - first by whatever action led to
the requirement of filing the incident report,
then again by not filing the report, thus preventing the patient or their representative
from accessing information that could help
them recover damages for their death or
injury.
Bill No.: A04669
Action: referred to insurance
Purpose: This bill establishes: (1) a rate
service organization (“RSO”) in order to
enhance objectivity and bring transparency
and competition to the physicians’ and surgeons’ medical malpractice rate setting
process; and (2) a mechanism to eliminate a
significant deficit in the residual medical
malpractice market.
Summary: Section 1 adds a new Insurance
Law §2352 to establish an RSO for physicians’ and surgeons’ medical malpractice
insurance.
Subsection (b) requires being a member of
the RSO: (1) all insurers authorized to write
personal injury liability insurance and
engaged in writing, within New York, on a
direct basis, insurance policies providing
physicians and surgeon’s medical malpractice insurance; and (2) the Medical
Malpractice Insurance Plan (“MMIP”), or its
successor.
Subsection (c) requires the RSO to compile
data related to physicians’ and surgeons’
medical malpractice insurance, and to provide to the superintendent rates or rate information. The RSO would be exempt from: (1)
licensing requirements under Insurance Law
S 2313; (2) reporting requirements under
Insurance Law S 2315; and (3) the prohibition against mandatory membership in an
RSO under Insurance Law S 2316(a)(9).
Subsection (e) requires the governing body
of the RSO to be comprised of voting members consisting of: 1) three members representing insurers; 2) one member representing
the MMIP; and 3) three members appointed
by the superintendent and representing the
interests of injured parties, physicians and
surgeons, and hospitals. The governing body
would have an actuarial committee, which
would review methodology and data collection processes used to develop rates and other
information. The members representing the
interests of injured parties, physicians and
surgeons, and hospitals must together appoint
one independent casualty actuary to serve on
that actuarial committee.
Subsection (f) requires each member to
submit a statistical report, as well as any other
information that the superintendent may
deem necessary or expedient in order to
establish rates for physicians’ and surgeons’
medical malpractice insurance.
Section 2 adds a new Insurance Law §9112
to assess insurers writing liability insurance
in New York.
Subsection (c) mandates the superintendent
to determine annually whether the MMIP has
sufficient monies to pay the MMIP’s estimated
claims and expenses for the subsequent twelve
months. If the monies are insufficient, then the
superintendent is required to assess liability
insurers prior to imposing a surcharge on policies.
Subsection (d) would require an insurer to
pay the assessment provided for by subsection (c), which is not to exceed one-half percent of the insurer’s net direct premiums
received during the prior calendar year.
Subsection (e) requires an insurer to
include a separately identifiable surcharge on
premiums to offset the assessment.
30
Subsection (f) exempts the assessment
from certain taxation.
Subsection (g) imposes a penalty on an
insurer that fails to pay the assessment.
Subsection (h) requires the superintendent
to deposit the assessment into the medical
malpractice insurance fund established under
the State Finance Law.
Bill No.: A04852
Purpose: To amend the statute of limitations for medical, dental or podiatric malpractice to include a discovery of injury rule.
Justification: New York’s current statute of
limitations as to medical malpractice is two
and one half years from the date of the act,
omission or failure complained of or last treatment where there is continuous treatment. It is
not only the shortest negligence statute in the
State of New York, except for claims against
municipalities, but works undue hardship in
its application and interpretation.
The courts in this state have consistently
interpreted the accrual of a cause of action for
negligence as occurring at the time the act
complained of occurred. In medical malpractice cases, arising out of a misdiagnosis or the
failure to diagnose, the injury suffered by the
victim of such a tort is often discovered until
the well after the statute of limitation has
expired.
This injustice is sometimes seen when a
patient discovers the growth of a cancerous
tumor. For example, a patient is seen by a
physician for rather general complaints and a
series of tests are ordered, including an x-ray.
The patient is diagnosed as having no illness.
Several years later the patient is diagnosed as
having a spot on the lung by a different physician. Review of the original x-ray films show
the presence of a spot on the earlier film. Time
is of the essence in the treatment of cancer if
one is to get a favorable chance at long term
survival. If more than two and one half years
have passed from the date of the original x-ray
(assuming no continuous course of treatment),
the patient’s claim is time barred, despite the
fact that the patient could not have reasonably
known of the existence of the medical misconduct.
Another example of this type of injustice
occurs when a patient has been exposed to
inadequate hygienic conditions, i.e., is infected
with hepatitis-C or HIV by an inadequately
sterilized, re-used, or otherwise “dirty” syringe.
The infected patient may in fact be totally
asymptomatic for years after the two and one
half year statute of limitations has expired.
However, if symptoms (and hence discovery of
the medical misconduct) become apparent only
after the expiration of the statute, the patient
nevertheless has no legal recourse.
The current statute of limitations is based
upon an archaic rule that a cause of action
sounding in negligence accrues at the time of
the negligent act. The better rule and the one
most widely adopted in other jurisdictions,
such as New Jersey, North Carolina, and
claims against the United States of America
arising under the Federal Tort Claims Act, is
one which recognizes that some injuries do
not manifest themselves at the time of the
negligent act, and which permits a victim of
medical malpractice to discover his or her
injury before their statutory period to begin
suit runs. New York has dealt with this problem in the field of Toxic Torts. In 1986 the
Legislature enacted CPLR Section 214-c.
That section set forth a discovery rule for
injuries suffered as a result of exposure and
implantation (1992 amendment) of foreign
substances. The justification for the passage
of 214-c was that individuals who were
exposed to toxic substances did not show any
adverse health effects until after the three
year general negligence statute of limitations
had run. The issue was revisited in 1992
when that act was amended to include
implantation within “exposure” to remedy an
injustice to victims of breast implants.
This bill would remove this gaping loophole in the law, which allows a patient’s
rights to expire prior to the patient even
knowing that she had any rights in the first
place. The bill would certainly not mandate
that any claim be deemed meritorious instead, the bill would merely prevent the
statute of limitations from being used as an
unfair and inequitable shield front professionally negligent medical misconduct.
Bill No.: A04868 (Penalties for intentional
destruction, mutilation or alteration of medical records)
Purpose: To deter fraud by providing that
any party, or person who at the time that an
action for medical malpractice is commenced
is an officer, director, member, employee or
agent of a party or otherwise under the party’s
control, who intentionally destroys, mutilates
or significantly alters any medical records
shall be subject to a civil penalty of not less
than $1,000 for each violation. To provide an
individual who is injured as a result of the
destruction, mutilation or alteration the ability to bring an action and hold the responsible
parties accountable.
Summary: Adds a new undesignated paragraph to section 3126 of the CPLR stating
that any party, or person who is an officer,
director, member, employee or agent of a
party, or otherwise under the parties’ control
at the time that an action for medical malpractice is commenced, who intentionally
destroys, mutilates or significantly alters any
medical records shall be subject to a penalty
of between $1,000 and $10,000 per violation.
Also states that any person who has been
injured as a result of the destruction, mutilation or alteration may bring an action against
the party and/or person responsible to recover damages if such destruction made it impossible or significantly impeded the plaintiff’s
ability to prove his or her initial claim. A
judge may also strike an offending party’s
pleadings and render a judgment by default
against the offending party if the affected
records are crucial to a determination on the
issue of liability.
Justification: This bill helps to protect
patients and promote accountability for proper medical care by establishing penalties for
the intentional destruction, mutilation or
alteration of medical records. The destruction
and alteration of medical records to cover up
alleged malpractice can have severe consequences for the victim, who may not be able
to prove his or her claim without the vital
information contained within those records.
By creating a private right of action for the
person who has been injured by such destruction against those who are responsible individuals, this bill sends a clear and unequivocal message to all medical, non-medical and
administrative personnel that such egregious,
fraudulent behavior will not be tolerated.
Bill No.: A04909
Purpose: This bill extends the statute of
limitations in medical, dental or podiatric
the hospital has violated §2805-1 of the
Public Health Law by failing to file an incident report as mandated by that section. It
also requires such reports to be sent to the
patient and their representative.
as mandated by the public health law, a plaintiff has a year from the date of filing of such
report in which to commence an action.
In addition, it tolls the statute limitations in
Section 2 - requires incident reports submitted to the Department of Health under section 2805-l of the Public Health Law also be
sent to the patient and their representative.
requirement for over 20 years, there are abundant reports of hospitals failing to file incident reports as mandated by the public health
law. These incident reports are required in
order to give the Department of Health notice
that a significant incident has occurred, such
as a patient death under circumstances other
than as a result of the course of disease, injury
or proper treatment. It also includes situations
malfunctions, or poisonings. According to a
tool that should be used to prevent the recurrence of harm or death to patients.
Yet by failing to timely file such reports,
hospitals are preventing the Department of
Health from asserting its authority to make
sure the public is adequately protected in the
case of substandard patient care of hospital
environment.
help make crucial decisions for the patient. By
tolling the statute of limitations on malpractice actions against hospitals, such institutions
are incentivized to obey the clear letter of the
law. Furthermore, hospitals will not be able to
protect themselves from liability for their
harmful actions simply by ignoring the law,
and thereby further harming the patient in
question- first by whatever action led to the
requirement of filing the incident report, then
again by not filing the report, thus preventing
the patient or their representative from accessing information that could help them recover
damages for their death or injury.
Bill No.: A05216 (Enacts the “medical
consumer ‘right to know’ act”)
Action: referred to health
Purpose: This legislation would enable
consumers to access vital information about a
health care practitioner that will enable them
to make safer and more informed medical
decisions.
Summary: §2995-a of the public health
law is amended by adding a new subdivision
1-b which, states that the department shall
establish a list, in a format that shall be available for dissemination to the public, of medical licenses holders who have five or more
medical malpractice judgments, awards,
and/or settlements within the most recent 10
years in which payment was awarded to a
complaining party. Such list shall be annually published on or before January first.
Justification: Each year, over 7,000 New
Yorkers die from preventable medical error.
While the vast majority of the state’s 80,000
licensed doctors are careful and dedicated
practitioners, about 4 percent are responsible
for about half of all malpractice payouts.
Prospective patients currently have to search
through 80,000 names individually to learn
which doctors have poor malpractice histories yet the state already has that list. This legislation will help New Yorkers identify doctors with the worst malpractice histories thus
preventing a tragedy before it occurs.
Bill No.: A05265 (Requires licensed health
care professionals and hospitals to make
available to patients and prospective patients
a printed copy of any medical malpractice
convictions or information; provides civil and
criminal penalties for failure to comply.
Action: referred to health
Purpose: This bill will ensure patients will
be provided with significant information, so
those individuals may make an informed
decision on their medical care. This would
allow patients to make crucial decisions on
choosing primary care physicians as well as
specialists and any other health care practitioners.
Summary:
This bill will require that doctor’s offices,
hospitals, and any other facility providing
medical care have available a printed copy of
medical malpractice convictions and/or information about those placed on probation for
all health practitioners performing any type
of treatment and/or consultation. This information must be placed in the common areas
of such a facility and must be readily available to patients and prospective patients. This
listing will only be required for any doctor(s)
who have been convicted of one or more
instances of medical malpractice. The information on these convictions and/or probationary disciplinary actions will be furnished
from the websites of the New York State
Department of Health’s Office of
Professional Medical Conduct (OPMC), New
York State Department of Education, and any
other reporting agency.
Justification:
An apparently healthy 42-year-old woman
named Kay Kelly Cregan died at the hands of
a physician with one of the highest instances of
malpractice in the state. She came to New York
from Ireland to have a medical procedure performed which resulted in her death. This legislation will equip all people with important
malpractice knowledge that patients need to
know about their doctors. Additionally, this
proposed legislation would only affect health
practitioners who have documented conviction(s) of medical malpractice and not those
who have had accusations against them. This
bill will ensure all patients especially lowincome, elderly, and those without access to
the internet will be afforded the same access to
information that is available over the internet.
This bill will allow patients and perspective
patients to make informed decision about their
medical care and/or treatment. Furthermore,
this legislation will enable people who need
emergency care to access a doctor(s) information quickly and easily by ensuring that all
medical facilities have this information readily
available. There have been many instances of
doctors and other medical professionals practicing with numerous malpractice convictions
of which patients have not been aware. This
legislation will help medical patients to make
informed decisions about their medical care.
Furthermore, this bill will help patients
become aware of their doctor’s malpractice
record. Failure to have this knowledge puts
patients at risk.1
Note: J. David Eldridge is a partner at
Taylor Eldridge, P.C., located in Smithtown,
New York, with emphasis in civil litigation,
real property, and Condominium, Cooperative and HOA law. A Past-Director of the
Suffolk County Bar Association and frequent
contributor to The Suffolk Lawyer, he is currently co-chair of the Legislative Review
Committee and a member of the Bar’s
Grievance Committee.
1 The information contained herein was
obtained from the New York State Assembly
website and was accurate as of March 31,
2011.
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W. ALEXANDER MELBARDIS, M.B.A., J.D.
John E. Lawlor, Esq.
Attorney Experienced in
Securities
Arbitration / Litigation;
FINRA Arbitrations;
Federal and State
Securities Matters
FINRA SECURITIES ARBITRATIONS & MEDIATIONS
(516) 248-7700
194 Main St., Setauket, NY
631-751-1100
129 Third Street
Mineola, NY 11501
johnelawlor.com
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SERVICES
OFFICE SPACE
Commercial Litigation
Irreparable Harm
As the title foreshadows, plaintiff’s
injunction application failed upon the
court’s analysis of the purported irreparable harm. Plaintiff argued that absent an
injunction, Defendants would continue to
use LPC’s customer information to solicit
LPC’s customers and deliver them to other
electricity suppliers. In fact, the court
noted that defendants’ opposition papers
essentially acknowledged the diversion
plan. Nonetheless, irreparable harm
analysis must proceed:
In this analysis “the court must actually
consider the injury the plaintiff will suffer
if he or she loses on the preliminary
injunction but ultimately prevails on the
merits, paying particular attention to
whether the ‘remedies available at law,
such as monetary damages, are inadequate
to compensate for that injury.’ “ Salinger v.
Colting, 607 F.3d 68, 80 (2d Cir.2010)
(quoting eBay, Inc. v. MercExchange,
LLC, 547 U.S. 388, 391, 126 S.Ct. 1837,
164 L.Ed.2d 641 (2006).
The court concluded that plaintiff failed
to carry its burden of establishing that the
anticipated harm was actually irreparable.
After casting doubt on plaintiff’s sugges-
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Restatement (First) of Torts § 759 cmt. c
(1939) (“Among the means which are
improper are theft, trespass, bribing or otherwise inducing employees or others to
reveal the information in breach of
duty....”). Plaintiff has established that
Defendants would not have been given
access to the customer data had they not
bribed an LPC employee to obtain it.
Therefore, Plaintiff has established that
Defendants discovered its trade secrets
through “improper means.” Faiveley, 559
F.3d at 117
The court went so far as to observe, in a
footnote, that defendants’ actions apparently transcended the civil arena and likely constituted criminal conduct, noting that
New York Penal Law § 180.03 prohibits
commercial bribing in the first degree.
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tion that a presumption of irreparable harm
exists in trade secrets cases, and holding
plaintiff to its burden of establishing truly
irreparable harm absent the injunction, the
court found to the contrary and concluded
that Plaintiff’s harm was, in fact, quantifiable.
According to plaintiff, defendants stole
trade secret information only with respect
to a finite - albeit large - number of customers [Plaintiff claimed that Defendants
acquired trade secret information concerning 4,630 former and current customers].The harm Plaintiff has alleged in
this case is the possibility that Defendants
will use its trade secrets to undercut its
contracts with a defined subset of its current and former customers and move them
to competing electricity suppliers. Even if
the court finds that Plaintiff has shown that
there is an actual and imminent risk that
Defendants will use Plaintiff’s trade
secrets to do this, the harm that would
result is measureable and compensable
through an award of damages after trial.
Indeed, Plaintiff has calculated the potential renewal value of the contracts between
it and the customers about whom
Defendants obtained Plaintiff’s proprietary information. At trial, Plaintiff would
be able to offer evidence establishing how
many customers it lost due to Defendants’
misappropriation of its trade secrets, and
could recover damages to compensate it
for this harm [emphasis added].
The court rejected the injunction application, despite concluding that: (1) plaintiff’s misappropriated customer information was entitled to trade secret protection;
and (2) that defendants’ effort to gain that
data likely constituted criminal misconduct. Despite these egregious circumstances, wherein a defendant bribed his
competitor’s employee to obtain confidential trade secret information, the court
refused to award an injunction. When presenting an injunction application,
movant’s counsel must carefully maneuver
a tightrope between competing concerns -
at all times balancing the need to demonstrate the severe consequences which a
given defendant’s egregious misconduct
has imposed upon the movant’s business,
while simultaneously developing the
irreparable injury aspect of the claim.
Unfortunately for LPC, the two concerns
were irreconcilable.
Note: Leo Barnes, a member of Barnes
& Barnes, P.C., can be reached at
lkb”barnespc.com.
Ethics and Civility
our judiciary and from past presidents of
the Suffolk County Bar Association. While
enjoying a night at the movies, including
traditional “movie” food, our membership
is stimulated with current ethical situations,
gaining knowledge in ethical professional
practice, thereby improving legal services
to the public.
Based on the concept that justice is protected and empowered by knowledge, by
respect for the dignity of the individual
and respect for the fundamental principles
of maintaining the highest ethical standards in the profession of law, it is crucial
to our system of justice that we respect the
value of professionalism while working
efficiently to serve our clients.
The Rules of Professional Conduct provide a framework for the ethical practice
of law, and our committee serves an
important role for our membership in providing guidance under the rules. Our
monthly meetings provide an opportunity
for the exchange of ideas and opinions,
giving each ethical question full consideration by the committee members.
Although the committee does not pass
upon questions of law or matters which
are in litigation, we encourage any member who has a question regarding an ethical situation to submit their inquiry to the
Suffolk County Bar Association.
Note: Patricia Meisenheimer practices
in the area of personal injury, medical
malpractice and general litigation with
Bracken Margolin Besunder, LLP,
Islandia. She is the past Director of the
SCBA and past Dean of the Suffolk
Academy of Law.
Health and Hospital Law
facturers, policy makers from Washington
or Albany, and attorneys to discuss the
challenges facing the healthcare industry
while providing opportunities to develop
business and perhaps contribute towards
charitable goals as well.We are only limited by our vision. Come to the HHLC and
share yours.
Note: William McDonald is an associate
at Ruskin Moscou Faltischek P.C. in the
firm’s health care law and white collar
criminal practice groups. He specializes in
criminal defense of all state and federal
crimes, confidential corporate investigations, defense of Medicare and Medicaid
RAC audits, defense of OMIG audits,
defense of physicians in professional discipline matters before OPMC, hospital privileges hearings, defends NYS licensed professionals in professional discipline matters, advises healthcare clients on Stark
Law, Antikickback Law compliance, and
advises clients in transactional matters
such as mergers and acquisitions of physician practices.
32
ACADEMY OF LAW NEWS
More Academy News
on page 22;
CLE Course Listings
on pages 23-24
Full-Day Conference to Focus on Evolving Issues in Foreclosure Practice
________________________
By Dorothy Paine Ceparano
“Home life ceases to be free and beautiful as soon as it is founded on borrowing and debt,” intones Torvald, the overbearing husband in Ibsen’s A Doll’s
House. Despite the flawed persona of the
character, many today might be inclined
to agree with the sentiment.
Foreclosure has become a word for our
times – a word that, depending upon
one’s perspective, conjures images of
victimized homeowners, faulty mortgages, deadbeat borrowers, unscrupulous
lenders, a financial system run amok...no
end of negative associations. Observers
may disagree about the cause and effect
of the mortgage crisis, but one overriding
fact is undebatable: more and more people are losing or are in danger of losing
their homes. And as the numbers grow,
the lawyers who represent – or prosecute
– homeowners find themselves traversing
an ever-changing and increasingly complicated legal terrain.
On Friday, May 13, the Academy will
present a comprehensive conference entitled “Foreclosure Law & Procedure:
Soup to Nuts.” The program will examine current and developing case and
statutory law and attempt to sort through
the tangle of problems and questions facing advocates. The expert faculty will
include borrowers’ and lenders’ counsel,
representatives of the bench, and attorneys versed in such ancillary issues as
bankruptcy and title.
The program’s opening presentation
will be an update on current law and
foreseeable trends by Bruce J.
Bergman, a principal in the Garden
City firm Berman, Henoch, Peterson,
Peddy & Fenchel, P.C., and the author
of the definitive treatise on foreclosure
law, Bergman on New York Mortgage
Foreclosures (Lexis Nexis Matthew
Bender). Recognized as a leading
authority on mortgage foreclosures, Mr.
Bergman will not only review prevailing
law, but provide tips for both lender’s
r
a
d
n
C ale
ACADEMY
of Meetings & Seminars
Note: Programs, meetings, and events at the Suffolk County Bar Center (560 Wheeler Road,
Hauppauge) unless otherwise indicated. Dates, times, and topics may be changed because of
conditions beyond our control CLE programs involve tuition fees; see the CLE Centerfold for
course descriptions and registration details. For information, call 631-234-5588.
May
4 Wednesday
5 Thursday
6 Friday
11 Wednesday
13 Friday
17 Tuesday
14 Saturday
18 Wednesday
19 Thursday
23 Monday
24 Tuesday
25 Wednesday
26 Tuesday
26 Thursday
Practicing in the Appellate Division (SCBA Appellate
Practice Committee). 6:00-9:00 p.m; sign- in and light supper
from 5:30 p.m.
Continuing Care Retirement Communities. 12:30-2:10 p.m.
Sign-in and lunch from noon.
Meeting of Academy Officers & Volunteers. 7:30-9:00 a.m.
Breakfast buffet. All SCBA members welcome. (Last meeting
of the current administrative year.)
Negotiations: Getting More! 6:00-9:00 p.m.; sign-in and light
supper from 5:30 p.m.
Foreclosures: Soup to Nuts. Full day. Sign in and continental
breakfast from 8:30 a.m.
Tax Planning for PCs. 12:30-2:10 p.m. Sign-in and lunch
from noon.
ADog Day Afternoon Agility Expo & Pet Fair.” (SCBA
Animal Law Committee). St. Joseph’s College (in the quad).
10:00 a.m.-4:00 p.m.
Court Accountings. 6:00-9:00 p.m; sign-in and light supper
from 5:30 p.m.
Dangerous Dog Cases. 6:00-9:00 p.m; sign-in and light supper from 5:30 p.m.
Annual Auto Liability Update. 6:00-9:00 p.m.; sign-in and
light supper from 5:30 p.m.
Finding Hidden Assets. 6:00-9:00 p.m; sign-in and light supper from 5:30 p.m.
Annual Animal Law Seminar. 6:00-9:00 p.m; sign-in and
light supper from 5:30 p.m.
Trust Series: Charitable Trusts. 12:30-2:10 p.m. Sign-in and
lunch from noon. [Note: This is a second change from originally announced date.]
Immigration Law for Criminal Law Practitioners (SCBA
Immigration Law and Criminal Law Committees). 6:00-9:00
p.m; sign-in and light supper from 5:30 p.m.
Check On-Line Calendar (www.scba.org) for additions, deletions and changes
and borrower’s counsel. A compendium
of his recent articles in the New York
Law Journal, for which he is a regular
columnist, will be included in the course
materials.
Following Mr. Bergman’s presentation, two experienced practitioners will
provide analyses of and strategies for
handling foreclosure litigation. Glenn
Warmuth, Esq. (current chair of the
SCBA Appellate Practice Committee and
an Academy officer-elect) will provide
the bank’s perspective, addressing topics
ranging from the summons and complaint and lis pendens, through computation of the amount due the lender and
property sales, through motion practice
and trial. The counterpoint, foreclosure
defense, will be provided by guest presenter Donald Citak, Esq. (Citak &
Citak, New York City), who has developed a package of strategies that has
been highly praised by colleagues. Mr.
Citak will talk about client intake, working with housing counselors, handling
settlement conferences, drafting effective
answers and defenses, and employing
trial strategies and techniques that work.
Bruce Bergman will provide an update on
changes and trends at the Foreclosure
Conference.
These presentations, plus a few words
on the Suffolk County Foreclosure Pro
Bono Program from Barry M.
Smolowitz, Esq., the conference chair,
make up the morning portion of the program, which will be followed by a brief,
Changes in MCLE Monitoring
and Reporting
In the near future, the Academy will
implement two changes triggered by
rulings from the New York State CLE
Board, the regulator of mandatory continuing legal education in the state.
The first involves sign-out at
Academy programs. The regulations
require that accredited providers retain
verifiable records of attendance at CLE
programs -- that is, attendees must
sign out, as well as in, at presentations.
The Academy decided to implement
this requirement in a way that should
prove efficient and not unduly burdensome for registrants. Usual check-out
procedures in mandatory education
environments involve sign-out sheets
at exit points, which attendees must
line up to sign. Deeming such a
process somewhat cumbersome, the
Academy has decided to utilize,
instead, sign-out forms that will be
given out with the course materials at
the start of a program. Attendees will
sign the forms and place them in a designated box that will be put out at the
end of a program. The Academy will
retain these forms and they will constitute our verifiable sign-out records.
Past Academy Dean John Calcagni
suggested this procedure, and the
Academy thought it a good way to both
conform to the regulations and keep
our constituents happy!
A new requirement from the NYS
CLE Board that the Academy will initiate in May affects MCLE credit categories for experienced lawyers (i.e.,
lawyers admitted more than two
years). A few years ago, the CLE
Board instituted the optional “general”
category, which could be used to cover
all non-transitional credits other than
ethics. Now, the general category will
be eliminated, and non-transitional
credits must be designated as belonging under the appropriate credit categories -- i.e., skills, professional practice, law practice management, and
ethics and professionalism. Lawyers
will note the revised wording on
MCLE certificates, but will not face
any actual change in meeting requirements. Biennial MCLE requirements
for experienced lawyers, as before,
comprise at least 4 ethics credits and
20 in the other categories.
-- Dorothy Paine Ceparano
ACADEMY OF LAW OFFICERS
DEAN
Executive Director
Richard L. Stern
Dorothy Paine Ceparano
Nancy E. Ellis
Diane K. Farrell
Richard L. Filiberto
Allison C. Shields
John C. Zaher
Herbert (Skip) Kellner
Marilyn Lord-James
Lynn Poster-Zimmerman
George R. Tilschner
Hon. Stephen Ukeiley
Robin S. Abramowitz
Brian Duggan
Gerard J. McCreight
Daniel J. Tambasco
Sean E. Campbell
Amy Lynn Chaitoff
Hon. James P. Flanagan
Jeanette Grabie
Scott Lockwood
Lita Smith-Mines

May 2011 - The Suffolk County Bar Association

Transcription

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