2014 December Bar Reporter - Onondaga County Bar Association

O n o n d a g a C o u n t y B a r A s s oc i at i o n
V o l u m e 5 9 n u m b e r 1 0 | DECEMBER 2014 | www.onbar.org
C N Y P h i l a n t h r o p y C e n t e r | S u i t e 3 0 0 | 4 3 1 E a s t Fa y e t t e S t r e e t | S y r a c u s e , N Y 1 3 2 0 2 | 3 1 5 . 4 7 1 . 2 6 6 7
Annual Meeting Vote Confirms Officers and Directors for 2015
The Onondaga County Bar Association held its Annual Meeting
at the County Legislative Chambers in the Court House on
November 6, 2014.
Elect, automatically becomes the President of the Association on
January 1, 2015, and Nicholas DeMartino, our current President,
will serve as the Immediate Past President.
OCBA President Nicholas DeMartino welcomed the members
and introduced Treasurer Jim Messenger, who presented the
organization’s financial report.
Nick thanked Nancy Pontius for her leadership of the Nominating
Committee and also for her service as Past President, and
acknowledged those Directors whose terms are ending at the end
of this year including: Jim Messenger, Betsy Barker, Joe Callery,
Fran Ciardullo and Emilee Lawson Hatch. Nick made a special
acknowledgment of the three years Jim Messenger served as OCBA
Treasurer and thanked Jim for all his hard work including his help
on negotiating leases over the years and for his help (literally) with
the move.
As of the end of October 2014, the Bar Association had cash assets
of $157,128.44. Messenger noted our membership revenue is
strong and exceeded our anticipated revenue in that area for this
year. We will recognize ongoing savings once we relocate to our
new less expensive and nicer offices beginning in December 2014.
There will be some one-time expenses related to the move, but
we also took advantage of the opportunity to upgrade OCBA’s IT
infrastructure which had fallen out of maintenance support. We
also believe that having a nicer facility will increase attendance at
revenue generating events like CLEs.
Nick DeMartino introduced the Immediate Past President, Nancy
Pontius, who served as the chair of the Nominating Committee.
Nancy reported that the Nominating Committee of the Onondaga
County Bar Association, nominated the following members for
election to the positions indicated:
DIRECTORS, 2015 - 2017 TERM
Joseph J. Bufano
Paula Mallory Engel
Danielle M. Fogel
Scott A. Lickstein (continuing)
Frank B. Pelosi
Aaron J. Ryder
Kimberly M. Zimmer
OFFICERS, 2015
President-Elect
Vice President
Treasurer
Secretary
Anne Burak Dotzler
James M. Williams
John L. McCann
Mark W. Wasmund
Under the OCBA by-laws, Jean Marie Westlake, the 2014 President-
President Nick DeMartino presented his 2014 President’s Report,
highlighting the progress and achievements of the OCBA this year,
including new and invigorated sections (Young Lawyers, Trial
Lawyers, Law Students, Diversity & Inclusion, Former Presidents’
Council), increased membership, expanded Law Day events
and the 139th Annual Dinner (both overseen by Annie Dotzler)
honoring Emil Rossi. Nick thanked the exceptional Staff and Board
for their contribution to this exceptional year.
President-Elect Jean Marie Westlake congratulated and thanked
Nick for his dedication to the Bar Association during the past
several years and presented him with a plaque in appreciation of
his services. Jean Marie then noted that the coming year will bring
a move to a new location which provides the opportunity for a new
tone and a new look and an opportunity to refresh OCBA. She
then highlighted the areas that she would like to focus on in 2015,
including expanding membership benefits and improving OCBA’s
communications with its members.
MISSION :
...to inspire excellence in the legal profession, to foster the fair
administration of justice, to promote equal access to the legal
system, and to serve and support our members.
From the President:
It Was a Wonderful Year!
This year has gone by so quickly. The phrase “it seems just like yesterday ...” that I was
being sworn in as President of the OCBA is cliche, but so very true.
As I look back, 2014 was a year of great change and a year of many accomplishments for
the OCBA.
Nothing, of course, could have been accomplished without the hard work, professionalism, dedication and
“tolerance” of the OCBA Staff. Chele, Peggy, Maggie and Delores answered my every call with a smile and a pleasant
voice, patiently listened to every one of my crazy ideas, and most importantly, followed through with everything
that I asked of them. Jeff, our Executive Director, is a “quality guy” and a consummate professional. From CLE,
to preparing for board meetings, to organizing receptions and dinners, to balancing our budget, to literally and
seamlessly picking up and moving our offices after 30 plus years to a new home, the OCBA Staff navigated through
2014 in an exceptional manner.
It was also an absolute pleasure to work with the OCBA Executive Committee and the Board of Directors. All
of these individuals took time away from their own respective practices to volunteer as OCBA Officers. None of
them had to do this. None of them had to participate in sub-committees, ad hoc committees, or attend emergency
meetings. None of them had to participate in the day-to-day functions of the Board. All chose to do so, however,
with great energy, commitment, professionalism, enthusiasm and dedication. Perhaps the thing that I appreciated
the most from this year’s Board was that everyone was always actively engaged and never reluctant to express a
position or opinion about the issues that confronted us. For that, I am most appreciative.
If it’s beginning to sound as if I enjoyed my year as President, I most certainly did.
2014 saw the creation of the OCBA’s new “user friendly” website. Our site now allows an easier and more thorough
access to the the OCBA and to OCBA events. Thank you to Board Member John McCann for all of his hard work
overseeing the development of this new site. We look forward to continued upgrades with this site in 2015.
The Bar Reporter also made a long awaited and welcome return. A special thanks goes to Chele Stirpe for designing
and formatting the Reporter each month, which is no easy task, especially when trying to work with a President
who was habitually late each month with his articles. This, along with the new website, will keep members better
informed and more in touch with the OCBA and OCBA activites.
In our continuing efforts to make the OCBA more relevant, and participant and mission friendly, 2014 saw the
creation of the “Young Lawyer’s Section,” “Trial Lawyer’s Section,” “Law School Section,” and the “Diversity and
Inclusion Committee,” as well as the continued growth of the “Family Law Section.” Thank you to Peggy Walker for
organizing, scheduling and promoting these section and committee events and Board Member Hon. James Murphy
for his recruitment and organization expertise. We hope that these sections and committees will continue to grow,
develop and attract new members to the OCBA, and create enhanced networking opportunities for our members.
Law Day continued to be an extremely popular, rousing success, and officially evolved into an “event.” Thanks to
OCBA Vice President Annie Dotzler and the Law Day Committee, the annual morning Law Day Award Ceremony
expanded to include tours of the County Courthouse and Federal Building, a high school student debate, and the
Law Day Luncheon at Syracuse University which was attended by over 300 people. The High School Mock Trail
Competition has also now moved under the Law Day umbrella.
An extremely festive OCBA Annual Dinner held at the Links at Erie Village in October, attended by over 300 people,
welcomed Emil M. Rossi as the 2014 “Distinguished Lawyer.”
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Lastly, on December 1, the OCBA moved to its new home in the CNY Philanthropy Center. This newly renovated,
“historic” building serves as a perfect fit for the OCBA as we continue to grow in membership and in program
offerings. The beautiful Grand Ball Room serves as a fantastic location for receptions, CLE’s and other bar events.
An open house is scheduled in early January. I hope that you all can join us as we begin a new chapter in the
rich history of the OCBA. Thank you to OCBA Treasurer Jim Messenger for negotiating our move from the State
Tower Building and for negotiating our new lease with the Philanthropy Center.
It really has been a wonderful year.
So much has been accomplished. Serving as President has has been a rewarding experience for me both on a
personal and professional level. I’m honored to have had the opportunity to work with so many good, dedicated
and energetic professionals. As I discussed above, these individuals take time and energy away from their busy
personal and professional lives in order to help improve the quality of the OCBA and our profession.
We as attorneys are all extremely fortunate to have the opportunity to work in a profession that affords us the
ability to help others in both small and substantive ways on a daily basis. As such, we all have the unique talent
and the ability to serve in some small capacity outside of our employment to help improve our profession, our
community and to help others. I urge you to consider doing that in whatever way you can and to whatever extent
you are able. This past year, I was able to witness first hand what the combined efforts of many can achieve.
I leave you with this quote from Arthur Ashe. “True heroism is remarkably sober, very undramatic. It is not the
urge to surpass all others at whatever cost, but the urge to serve others at whatever cost.”
My best wishes to you all. Best of luck to the 2015 Board of Directors and to President-Elect Jean Marie Westlake.
And may God bless us, everyone.
Here’s to a fantastic and productive 2015!
Nicholas J. DeMartino | OCBA President
2014 OCBA BOARD OF DIRECTORS
President
Immediate Past President
President-Elect
Executive Director
Nicholas J. DeMartino
Jean Marie Westlake
Vice President
Anne Burak Dotzler
Treasurer
James H. Messenger, Jr.
Secretary
James M. Williams
Nancy L. Pontius
Jeffrey A. Unaitis
Directors
Elisabeth A. Barker
Blaine T. Bettinger
Bruce R. Bryan
Joseph D. Callery
Frances A. Ciardullo
Gordon J. Cuffy
Sam Elbadawi
Emilee Lawson Hatch
Romana A. Lavalas
Scott A. Lickstein
John T. McCann
Hon. James P. Murphy
Wendy S. Reese
David M. Snyder
Mark W. Wasmund
Ex Officio
Dean Hannah R. Arterian
Stuart J. LaRose
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Northern District Case Notes
By Mike Langan, Law Clerk to Hon. Glenn T. Suddaby, USDJ
Arbitration
In re Application for an Order Quashing a Subpoena 14-MC0063(TJM) (12/4/14) – Attorney for the Child properly substituted her
judgment for that of the child where the record supports a finding that
the child, who was seven years old at the conclusion of the hearing and
functioned at a kindergarten level, lacked the capacity for knowing,
voluntary and considered judgment. Further, Mother’s contention
that AFC’s substitution of judgment for child’s judgment was not
proper was not preserved for review because she did not move to
remove the AFC.
Counsel:D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth DeV. Moeller
of counsel), for Mother; Scolaro, Fetter, Grizanti, McGough & King,
P.C., Syracuse (Amy B. Egitton of counsel), for Father; Susan A. Sovie,
Attorney for the Child, Watertown.
Attorney Disqualification
Am. Tax Funding, LLC v. City of Schenectady, 12-CV-1026(RFT) –
(12/2//14) action for breach of contract; denying plaintiff ’s request to
disqualify defense counsel, finding that hiring of magistrate judge’s
former term law clerk by law firm for City, even given law clerk’s
presence during settlement conference presided over by magistrate
judge in action, did not create non-waivable conflict of interest for
City, because of (1) wall erected in law firm, (2) minuscule information
possessed by former-law clerk, and (3) fact that district judge would be
conducting trial.
Attorney’s Fees
Portaleos v. Shannon, 12-CV-1652(LEK) (9/29/14) – consolidated
actions regarding Department of Veteran Affairs’ obligation to obey
Order of Onondaga County Family Court to produce employee to
testify in child-custody proceeding; denying without prejudice motion
by plaintiff ’s counsel for attorney’s fees under Equal Access to Justice
Act following settlement of action, based on his failure to comply with
30-day deadline set forth in Act, and directing him to explain why any
renewed motion is timely.
Breach of Contract
Am. Tax Funding, LLC v. City of Syracuse, 12-CV-0290(DNH)
(8/29/14) – action by purchaser of delinquent tax liens against city,
asserting claims of breach of contract, indemnification and unjust
enrichment; granting in part, and denying in part, defendant’s motion
for judgment on pleadings and motion for partial summary judgment;
granting in part, and denying in part, plaintiff ’s cross-motion for
partial summary judgment; finding that, inter alia, (1) purchaser
was not entitled to indemnification by city (or attorney’s fees under
indemnification clause), (2) existence of written contracts precluded
unjust enrichment claim, and (3) purchaser failed to establish
city breached contracts by interfering with ongoing foreclosure
proceedings in effort to obtain payment for outstanding water bills.
Civil Rights
Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357(GLS)
(11/26/14) – action by administratrix of decedent asserting
substantive due process claims against city and its domestic-violence
investigator, alleging failure to protect decedent despite affirmatively
assisting in creating or increasing danger to her (through repeated,
sustained inaction, in face of potential acts of violence, accompanied
by communication to aggressor of refusal to arrest); granting in part,
and denying in part, defendants’ motion to dismiss for failure to state
claim.
Gordon v. County of Onondaga, 09-CV-1182(FJS) (11/13/14) – action
by administratrix of decedent asserting claims of, inter alia, excessive
force and negligent training, arising from officer’s use of Taser to
attempt to subdue decedent while he was evading and resisting arrest,
following officer’s giving of repeated warnings of use of Taser and
decedent’s repeated disregard of those warnings; granting defendants’
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motions for summary judgment.
O’Brien v. Yugartis, 12-CV-1600(NAM) (9/22/14)
– action by village code enforcement officer against
village, its mayor and other village officials asserting claims under
First and Fourteenth Amendments alleging he was wrongfully
discharged from his employment; granting defendants’ motion for
partial summary judgment, finding (1) employee’s speech in his role
as code enforcement officer (regarding scope, extent and applicability
of codes) was not protected by First Amendment, (2) state postdeprivation hearing would provide sufficient process under Fourteenth
Amendment.
Presta v. Gressler, 13-CV-1207(GTS) (9/15/14) – action by city tax
assessor against municipal employees asserting due process “stigma
plus” claim under Fourteenth Amendment alleging that defendants
terminated from her full-time position with County (pursuant to
which she served as acting Tax Assessor of City), and re-appointed to
part-time position with City (pursuant to which she served as official
Tax Assessor of City at a lesser salary), because she determined that
three properties partially owned by one of the defendants did not
qualify for the tax exemption that they had been receiving; granting
defendants’ motion for judgment on pleadings.
Employment Discrimination
Lin v. New York State Dept. of Labor, 14-CV-0771(LEK) (12/11/14)
– action pursuant to Title VII and NYS HRL alleging that NYS
DOL refused to hire plaintiff for position despite her passing NYS
Civil Service Exam, in retaliation for her previously filing racial
discrimination complaint against her NYS DOL supervisor; granting
in part, and denying in part, defendant’s motion to dismiss for failure
to state claim (dismissing her retaliation claim under NYS HRL but
not dismissing her retaliation claim under Title VII).
Sands v. New Paltz Cent. School Dist, 12-CV-1094(GLS) (9/3/14)
action by school guidance counselor against district, principal and
superintendent asserting claim of race-based discrimination in
violation of Equal Protection Clause of Fourteenth Amendment based
on defendants’ refusal to recommended plaintiff for tenure (effectively
terminating her employment) on the ground of her unsatisfactory job
performance; granting defendants’ motion for summary judgment.
Intellectual Property
Legends Are Forever, Inc. v. Nike, Inc., 12-CV-1495(LEK) (9/30/14)
action by owner of “legends are forever” mark against international
manufacturer of athletic apparel, alleging claims for trademark
infringement and unfair competition under Lanham Act and New
York common law; granting manufacturer’s motion for summary
judgment, finding that (1) likelihood-of-confusion factors weighed
against finding of infringement, (2) there was no evidence of actual
confusion between accused clothing line and mark, (3) evidence did
not support mark owner’s trademark dilution claim, (4) evidence did
not support claim for violation of New York law barring deceptive
trade practices, and (5) mark owner was not entitled to additional
discovery prior to entry of summary judgment.
Procedure
Krivchenko v. Clintondale Aviation, Inc., 113-CV-0820(TJM)
(9/18/14) – diversity action asserting claim of negligence arising from
fatal crash of commercial airliner in Petrozavodsk, Russia in June 2011;
denying plaintiffs’ motion for voluntary dismissal of their complaint
without prejudice pursuant to Fed. R. Civ. P. 41(a)(2), because such
a dismissal would–given the merit of defendant’s pending motion for
summary judgment–only permit plaintiffs to bring their baseless suit
in another forum, and would therefore serve to undermine fairness
and judicial economy; and granting defendant’s motion for summary
judgment.
UPDATE – Mandatory Pro Bono Reporting
Gioia A. Gensini, Esq. | Law Clerk to Hon. Andrew T. Baxter, U.S. Magistrate Judge | Elected NYSBA Delegate
Mandatory Pro Bono Reporting is one of the most controversial
issues facing New York attorneys since 2013. Attorneys have
generally been concerned when it comes to anything, prefaced
by the word “Mandatory,” and this was no exception, sparking
vigorous debate at all levels. The requirement took effect May
1, 2013 and directed attorneys to report on their biannual
registration their pro bono hours and the amount of their
charitable donations to legal services organizations. While
attorneys and bar associations generally favor pro bono service
and charitable contributions to legal service organizations,
among the concerns expressed by members of the bar were the
privacy implications of such reporting and the narrow definition
of pro bono services.
On November 1, 2014, the House of Delegates of the New
York State Bar Association adopted a resolution, incorporating
compromise, requesting that the Administrative Board of the
Courts amend section 118.1 of the Rules of the Chief Administrator.
This compromise was reached as the result of meetings with
NYSBA President Glenn Lau-Kee, NYSBA President-Elect David
P. Miranda, Chief Administrative Judge A. Gail Prudenti, and
Helaine Barnett, chair of the courts’ Task Force to Expand Access
to Civil Legal Services. First, while the reporting would still be
mandatory, attorneys would report their pro
bono hours and contributions anonymously.
Second, this data would be made public only on
an aggregate basis. Finally, the resolution asked
that Chief Judge Jonathan Lippman expand the definition of pro
bono and other public service.
In an email sent to all members of the NYSBA, President LauKee reported that the OCA issued a statement on December 18,
2014, unanimously approving modifications to the mandatory
pro bono reporting requirement, consistent with the above
NYSBA House of Delegates resolution. The resolution adopted
by the Administrative Board of the Courts proposes to amend
the requirement so that attorneys would report their pro
bono hours and charitable contributions anonymously; the
information will be made publicly available only on an aggregate
basis, the definition of pro bono and public service categories
on the reporting form will be broadened, and all the pro bono
information reported prior to the change will be designated
confidential.
The rules governing how these changes will be implemented
have not yet been released by the Administrative Board of the
Unified Court System.
Tattletale Rules for Lawyers and Judges
Anthony J. Gigliotti, Esq. | Principal Counsel | Fifth Judicial District Attorney Grievance Committee
A “tattletale” may be defined as a child who reveals the misdeeds
of others to authority figures. Historically, our profession has
always recognized some obligation to “tattle” on other lawyers
who commit misdeeds. In the early canons of ethics this
disclosure requirement applied to conduct that violated any
ethics rule and also included the obligation to self-report.
Current Rules of Professional Conduct, at § 8.3, require the
disclosure of knowledge of another lawyer’s conduct that raises a
substantial question as to that lawyer’s honesty, trustworthiness
or fitness as a lawyer. The report of such knowledge must be
made to a tribunal or other authority empowered to investigate
or act upon such violations. To understand the scope and
operation of the current reporting rules we must explore the
following questions: who, what, where, when, and why?
Who? All lawyers are bound by the reporting rule. The Rule
specifically obligates the report of conduct by “another lawyer”
and says nothing about self-reporting. Even if not required,
self-reporting is always considered as a fact in mitigation by
a disciplinary committee or the Court, when determining an
appropriate sanction. Canon 3(D)(2) of the Code of Judicial
Conduct also directs any judge, who receives information
indicating a substantial likelihood that a lawyer or another
judge has committed a substantial violation of ethics rules, to
take “appropriate action.” 22 NYCRR 100.3(D)(1), & (2). Judges
or lawyers who disclose lawyer misconduct to the 5th District
Attorney Grievance Committee are not typically regarded as
“complainants.”
What? In its present form, the mandatory reporting rule no
longer requires reporting of any and all Rules of Professional
Conduct. Rule §8.3 specifically requires the report of conduct
raising “substantial” questions involving a lawyer’s “honesty,
trustworthiness or fitness as a lawyer.” Fitness issues may be
raised by patterns of missed court appearances, DWI charges,
or erratic behavior during a court proceeding.
Prosecutors and local court judges are often
the source of such reports to disciplinary
committees. If in doubt about whether conduct
of another lawyer requires a report, you may contact disciplinary
staff counsel for guidance. All reports of Rule violations assists
with the self-regulation of our profession. Exemptions from
mandatory reporting includes attorney conduct disclosed
as a confidence during representation of the attorney in a
legal matter, as set forth in Rule 1.6; and information gained
by a lawyer or judge while participating in a bona fide lawyer
assistance program. See: Judiciary Law §499
Where? The mandate to report may be satisfied by disclosure
to the “tribunal” which is presiding over a matter wherein the
misconduct has occurred. The report of lawyer misconduct
may always be made to an Appellate Division’s departmental
disciplinary committee office, unless the subject is a judge, in
which case the report is to the Commission on Judicial Conduct.
When? Lawyers may perceive conflicting obligations to their
clients’ and their duty to report knowledge of misconduct. In
such cases the lawyer may withhold the report of misconduct
until certain that the clients’ interests will not be compromised.
Rule § 8.3 is silent as to the timing of mandatory reports
and there are no statute of limitations on the imposition of
disciplinary sanctions against attorneys or judges. Disciplinary
investigations may also be put on hold until a related litigated
matter is concluded.
Why? The most important reasons to disclose misconduct
and fitness concerns, are the protection of the public, and
the retention of the public’s trust in the legal system. Reports
of fitness concerns may also provoke the critical first steps by
impaired lawyers to seek therapy for substance abuse and
mental impairments. In such cases, tattletales save lives.
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Judge Hanuszczak Presides Over
Naturalization Ceremony at OCC
OCC’s Storer Auditorium was transformed into a New York
State courtroom December 2 when it hosted a naturalization
ceremony. Seventy-six people from 39 countries were
sworn-in as American citizens. New York State Family
Court Judge and Acting Supreme Court Justice Michael
Hanuszczak
presided over
the ceremony.
OCC Music
Professors David
Rudari, D.M.A.
and Kevin Moore
performed
patriotic songs.
The candidates
for citizenship
came from
the following
countries:
Afghanistan,
Bhutan, BosniaHerzegovina,
Burma, Burundi,
Cameroon,
Canada, People’s
Republic of China, Colombia, Democratic Republic of the
Congo, Cuba, Germany, Ghana, Guatemala, India, Iraq,
Ireland, Israel, Italy, Jordan, Mexico, Moldova, Nigeria,
Onondaga County
Judicial Election Results
Pakistan, Philippines, Poland, Somalia, South Korea, South
Sudan, Sudan, Taiwan, Thailand, Togo, Trinidad & Tobago,
Turkey, Venezuela, Vietnam and Yemen.
The naturalization ceremony was presented in conjunction
with the U.S.
Bureau of
Citizenship and
Immigration
Services, and the
Americanization
League of Syracuse
and Onondaga
County.
The ceremony
was covered
extensively by
the local media
including the
television stations
of CNY Central,
Post Standard/
Syracuse.com,
and Time Warner
Cable News.
OCC’s student
body has a very diverse and global composition. Among the
College’s more than 12,000 students are representatives of 57
different countries, including the United States.
Ross Andrews Sworn In
Justice of Supreme Court
Ballots:137,298 (Onondaga County Only)
Brian DeJoseph (DEM, CON,)
80,727 4
Robert P. O’Leary (REP)
48,839
Syracuse City Court
Ballots:26,971
Ross P. Andrews (DEM, WOR)
22,097 4
TOWN JUSTICE Elbridge
Ballots:1,803
George L. Betts (DEM, REP, CON, IND)
1,648 4
TOWN JUSTICE Cicero
Ballots:9,862
Douglas M. DeMarche, Jr. (REP, CON, IND)7,873 4
Onondaga County Board of Elections results as of December 18, 2014
6
The Hon. Rosemary S. Pooler was the presiding judge at the swearing-in
ceremony of Hon. Ross P. Andrews on Friday, December 19, 2014.
Appellate Division, Fourth Department
2015 Terms Of Court
Proposed Release Dates:
JANUARY TERM: Monday, January 12, 2015 –
February 6, 2015
Friday, January 23, 2015February 13, 2015
Feb./March Term: Monday, February 23, 2015 – March 20, 2015
March 6, 2015March 27, 2015
April Term: Monday, April 6, 2015 – Friday, April 17, 2015 May 1, 2015
May 8, 2015
May Term: Monday, May 18, 2015 – Friday, May 29, 2015 June 12, 2015
June 19, 2015
June Term: Monday, June 22, 2015 – Wednesday, June 24, 2015 July 2, 2015
July 10, 2015
September Term: Tuesday, September 8, 2015 – Friday, September 18, 2015
October 2, 2015
October 9, 2015
October Term: Monday, October 19, 2015 –
Friday, October 30, 2015 November 13, 2015
November 20, 2015
Nov./Dec. Term: Monday, November 30, 2015 -
December 23, 2015
Friday, December 11, 2015December 31, 2015
THE LAW OFFICES OF
SIDNEY P. COMINSKY
Trial Lawyers
HAVE PROUDLY ACTED AS TRIAL COUNSEL TO THE PROFESSION FOR OVER 38 YEARS
Products Liability Claims
Construction Site Injuries
Medical Devices, Implants
Railroad Worker’s Claims
Federal Tort Claim Actions
Nursing Home Neglect
Motor Vehicle Collisions
Roadway Design Claims
Commercial Litigation
Professional Malpractice
Toxic, Environmental &
Pharmaceutical Torts
REFERRAL FEES ARE PAID IN ACCORDANCE WITH COURT RULES
T. 315.475.3425 F. 315.475.2932
1500 STATE TOWER BLDG. SYRACUSE, NEW YORK 13202
cominskypc@aol.com
7
Court of Appeals & Civil Practice Case Notes
Contributors from Hiscock & Barclay, LLP
Labor and Employment
Anne Burak Dotzler, Esq.
Education Law 3020-a, Disciplinary Procedures
Matter of Kilduff v. Rochester City School District,
et al, No. 192, 2014 N.Y. Slip. Op. 08056 (Nov. 20,
2014). Respondent school district notified petitioner,
a tenured school social worker, by letter that she was
to be suspended for 30 days without pay for specified
misconduct. Petitioner requested a hearing on the
determination pursuant to Education Law § 3020-a, but was advised by
respondent that she was not entitled to the process prescribed in that statute,
and could challenge the disciplinary determination against her only by
means of the procedures set forth in the applicable collective bargaining
agreement (CBA), which was renegotiated as recently as 2006. After
unsuccessfully grieving the matter via the CBA, petitioner commenced
an Article 78 proceeding to annul the disciplinary determination, alleging
that she had been disciplined without being afforded the process to which
she was entitled under the Education Law as a tenured school district
employee. In reviewing the legislative history of Education Law § 3020-a,
the Court of Appeals held that Education Law § 3020-a plainly provided
that, in any CBA taking effect on or after September 1, 1994, tenured
employees must be permitted to elect the disciplinary procedures set
forth in Education Law § 3020-a, even if the CBA retained an unaltered
alternative grievance procedure originally agreed upon before September
1, 1994. Because the governing CBA took effect in 2006, petitioner had
the right to choose the statutory review process under Education Law §
3020-a over the alternative grievance procedure contained in the CBA.
Human Rights Law, Article 78 Standard of Review
Matter of Jones v. New York State Division of Human Rights, et al,
No. TP 14-00653, 2014 N.Y. Slip. Op. 08163 (4th Dep’t Nov. 21, 2014).
Petitioner commenced a proceeding pursuant to CPLR Article 78 seeking
to annul the determination of Respondent New York State Division of
Human Rights (SDHR) that petitioner did not establish that her former
employer, respondent The Fenton Grill, unlawfully discriminated and
retaliated against her under the New York State Human Rights Law.
reassignment to a light-duty position was in violation of the Americans
with Disabilities Act and the New York State Human Rights law. After
a hearing, the SDHR Commissioner concluded that petitioner did not
establish that ECSO failed to provide her with reasonable accommodations
for her disability, as required by Executive Law § 296(3).
The Appellate Division confirmed the SDHR Commissioner’s
determination, finding that, because petitioner’s epilepsy seizure disorder
was described by her own treating physician as “long-term”, there was no
basis to disturb SDHR’s determination that petitioner’s disability was of a
permanent nature and that ECSO was not required to create a permanent
light-duty police assignment to accommodate her under the Americans
with Disabilities Act or the New York State Human Rights Law.
The Appellate Division further held that there was no duty for ECSO to
engage in the interactive process because no reasonable accommodation
was available for petitioner’s particular condition and she was unable to
perform the essential functions of her “inmate escort” assignment or any
other deputy sheriff assignment that petitioner identified
Matter of County of Erie and Erie County Sheriff ’s Office v. New York
State Division of Human Rights, et al,. No. TP 14-00416, 2014 N.Y. Slip.
Op. 07829 (4th Dep’t Nov. 14, 2014).
Petitioner brought proceedings pursuant to Executive Law § 298 to review
a determination of the New York State Division of Human Rights finding
that the Erie County Sheriff ’s Office did not unlawfully fail to accommodate
the request of petitioner for an accommodation for disability. Petitioner, a
deputy sheriff who worked in the Erie County Holding Center, alleged
discrimination under the Americans with Disabilities Act and the New
Continued on page 9
The University Building
The court noted that “[t]he scope of judicial review under the Human
Rights Law is extremely narrow and is confined to the consideration of
whether the Division’s determination is supported by substantial evidence
in the record.” Courts “may not weigh the evidence or reject the Division’s
determination where the evidence is conflicting and room for choice
exists.”
In applying this standard, the court concluded that the SDHR
Commissioner’s determination -- that the Petitioner failed to meet her
burden with respect to her claims for hostile work environment, quid pro
quo harassment, and retaliation -- is supported by substantial evidence
and, inter alia, that it would not disturb the ALJ’s decision to credit the
testimony of certain witnesses for the restaurant over that of petitioner
and her witness.
Human Rights Law, Failure to Accommodate
Matter of Coles v. New York State Division of Human Rights, et al, No.
TP 14-00333, 2014 N.Y. Slip. Op. 07788 (4th Dep’t Nov. 14, 2014).
The Petitioner commenced a proceeding pursuant to Executive Law §
298 seeking to annul the determination of Respondent New York State
Division of Human Rights (SDHR) that petitioner failed to establish that
respondent Erie County Sheriff ’s Office (ECSO) discriminated against her
based on a disability.
Petitioner was a deputy sheriff assigned to the position of “inmate escort”
at ECSO’s correctional facility. It was undisputed that her epilepsy did
not permit her to be assigned to duties involving direct inmate contact
and that she could not perform the essential functions of an “inmate
escort” without presenting a direct threat to her own safety and others in
the workplace. However, petitioner requested an assignment to a lightduty position to accommodate her disability. ECSO denied petitioner’s
request. Petitioner claimed that ECSO’s denial of petitioner’s request for
8
Attorney Office Space Available! The University
Building which is located at 120 E. Washington St.
currently has office spaces available ranging from
410sq.ft. to 4,000sq.ft. We offer leasing incentives,
on-site management, furnished office suites with
hardwood floors and historic finishes. Building is
conveniently located in the Central Business District.
NY Civil Practice Case Notes
from page 8
York State Human Rights Law. The County and Sheriff ’s Office filed a
petition and a “cross-petition” pursuant to Executive Law § 298 and CPLR
Article 78, inter alia, to confirm the determination of the Commissioner
of respondent SDHR dismissing the disability discrimination complaint.
The Appellate Division noted that a proper claim for failure to provide
a reasonable accommodation “must be supported by substantiated
allegations that, upon the provision of reasonable accommodations, [the
employee] could perform the essential functions of [his or] her job, and
the employee bears the burden of proof on this issue at trial.” In so noting,
the Appellate Division found that the substantial evidence in the record
supported the Commissioner’s determination that the accommodations
requested by Petitioner were incompatible with the essential functions of
his job and to dismiss the disability complaint. The court therefore, granted
the cross-petition insofar as it sought to confirm the Commissioner’s
determination, and dismissed Petitioner’s petition.
Matter of County of Erie, named in the underlying matter as Erie County
Department of Social Services v. New York State Division of Human
Rights,. 121 A.D.3d 1564, 993 N.Y.S.2d 849 (4th Dep’t Oct. 3, 2014).
Petitioner commenced proceeding pursuant to Executive Law § 298
seeking to annul the determination of Respondent New York State Division
of Human Rights (SDHR) that it engaged in unlawful discrimination
because it failed to provide a reasonable accommodation to respondent.
Petitioner further challenged the Division’s award to respondent of $10,000
in compensatory damages and civil penalty of $5,000.
After petitioner implemented a county-wide program to reduce the
number of desktop printers and instead, utilize all-in-one printer systems
to be shared by several employees, petitioner requested that she be provided
with her own desktop printer because of her constant printer use and bad
knees. In support of her request, respondent provided petitioner with
medical certification from her physician stating that respondent’s disability
was a “diabetes caused amputation [prosthetic leg]”, and listing symptoms
of the disability as weak knees, among others. The certification did not
specify a recommended accommodation. Petitioner determined that
the accommodation was not necessary and denied respondent’s request.
Respondent thereafter filed a complaint with the SDHR, which found
that the petitioner’s failure to provide a desktop printer as a reasonable
accommodation to respondent’s disability constituted discrimination.
The Appellate Division upheld the Division’s determination, finding that
it was supported by substantial evidence. The Appellate Division reasoned
that, although the evidence was conflicting and room for choice existed,
there was a rational basis for the SDHR’s determination and thus, the
judicial function was exhausted. However, the Appellate Division reduced
the SDHR’s award of $10,000 in compensatory damages to $2,500, finding
that it was not supported by the evidence, which included only respondent’s
own testimony that she was “surprised,” “angry” and “depressed” by the
determination to refuse to restore a desktop printer to her work station
and that she was required to utilize prescription pain medication one to
two times per week since she began using the common printer. The court
rejected petitioner’s further contention that the civil penalty of $5,000
was excessive, finding that the penalty was not an abuse of discretion as
a matter of law.
Human Rights Law, Lack of Jurisdiction
Matter of Malcolm v. New York State Department of Labor, et al., Case
No. CA 13-01283, 2014 N.Y. Slip. Op. 07852 (4th Dep’t Nov. 14, 2014).
Petitioner commenced a proceeding pursuant to CPLR Article 78 seeking
to vacate the determination of respondent New York State Division of
Human Rights (SDHR) dismissing her discrimination complaint against,
inter alia, respondent New York Department of Labor (DOL), for lack of
jurisdiction.
The Appellate Division concluded that Supreme Court’s dismissal of
the petition was not arbitrary or capricious because the DOL was not
petitioner’s employer, is not an employment agency or a labor organization,
and, therefore, section 296 of the Executive Law is inapplicable and the
SDHR had no jurisdiction over matters alleged in Petitioner’s complaint. It
was within the court’s power to make a summary determination upon the
APPEALS
Civil, Criminal, Administrative
Referrals Welcome
(315) 474-1285
John A.
CIRANDO
Attorney at Law
Suite 101
M&T Bank Building
101 South Salina Street
Syracuse, New York 13202
We APPEAL To You©
pleadings to the extent that no triable issues of fact were raised, without
the need for a CPLR 3211 motion.
Civil Service Law § 75-b, Public Employer Whistleblower Statute
Zielonka v. Town of Sardinia, et al., 120 A.D.3d 925, 991 N.Y.S.2d 491 (4th
Dep’t Aug. 8, 2014). Plaintiff was employed as a code enforcement officer
for defendant Town of Sardinia until he was terminated by defendant
Town Council of Town of Sardinia. Following his termination, Plaintiff
commenced this action under Civil Service Law § 75-b, alleging, inter
alia, that his “termination was in retaliation for his refusal to perform”
unauthorized functions and for his “act[ing] as a whistle-blower in
reporting” those unauthorized directives “to the Town’s outside attorney
and others.” The Supreme Court denied defendant’s pre-answer motion to
dismiss and/or for summary judgment. Defendants appealed.
On appeal, the Appellate Division held that the lower court erred in
denying defendants’ motion to dismiss the complaint against the Counsel
and Supervisor because Civil Service Law § 75-b protects a “public
employee” from discharge or discipline by a “public employer”, and the
statute applies only to governmental entities that actually employed the
plaintiff.
The Appellate Division, however, upheld the lower court’s decision denying
defendants’ motion to dismiss the first cause of action against the Town
for failure to state a cause of action. The court reasoned that the plaintiff
adequately alleged that he reasonably believed that he had been directed to
perform an unlawful act, which is all that is necessary under Civil Service
Law § 75-b (“plaintiff need have had only ‘a reasonable belief of a possible
violation’ of the law”). The court further rejected defendants’ contention
that plaintiff ’s purported act of insubordination for failing to carry out the
allegedly unlawful directive constitutes a “separate and independent basis”
for the termination, because the purported act of insubordination related
directly to plaintiff ’s act of disclosure.
Continued on page 11
9
Names New Officers and Trustees
The Board of Trustees of the Onondaga County Bar Foundation approved new officers and named four new
trustees to the organization. The Nominating Committee was chaired by Board member Walter Kogut. New to
the Board in 2015 are Henry Melchor, Nancy Pontius, Heather Sunser and Suzanne Galbato. The following are the
Officers & Trustees for OCBF in 2014:
President
Stuart J. LaRose
Vice President
Ellen S. Weinstein
Secretary
Mary Keib Smith
Treasurer
Jillian L. McGuire
TRUSTEES
John A. Cirando
Hugh C. Gregg II
Victor J. Hershdorfer
Janet M. Izzo
Hon. Deborah H. Karalunas
Thomas J. Lynch
David J. Magnarelli
Maureen E. Maney
Hon. Langston C. McKinney
William R. Morgan
David M. Pellow
In 2012 the Foundation added to its mission, “to aid members of the legal profession in Onondaga County who
may be ill, incapacitated, indigent or otherwise in need, and/or their dependents who are in need as a result of the
member’s illness, incapacity, indigence or death.” This is in addition to the traditional mission of the Foundation
which is to improve and promote:
• the administration of justice;
• service to the public and the legal community;
• equal access to the legal system for all;
• professional ethics and responsibility;
• legal research and education; and
• dissemination to the public of information
about the legal system and the rule of law.
We Remember …
As 2014 winds down, we wish to take a moment to remember those members of our profession who passed away
this year.
The annual Memorial Observance held by the Onondaga County Bar Association will be held in February, 2015
(date TBD) in the Ceremonial Courtroom of the Onondaga County Court House.
If you are aware of any other attorneys or judges who we may have missed who should be remembered at this
ceremony, please contact Peggy Walker at the Bar Association – 579-2582.
John Garland
Dale L. VanEpps
James R. McGraw
Hon. Stewart F. Hancock
Irwin Birnbaum
Edward D. Brown, Jr.
Ferdinand L. Picardi
Hon. John F. Lawton
Carl. Dengel, Sr.
Karen DeCrow
10
February 9, 2012
January 6, 2014
January 24, 2014
February 11, 2014
March 5, 2014
March 6, 2014
April 2, 2014
April 9, 2014
April 16, 2014
June 6, 2014
John J. Caswell
Hon. Neal P. McCurn
Jean V. Erickson
James E. Wilber
Richard E. Gordon
July 14, 2014
September 7, 2014
October 3, 2014
December 5, 2014
December 18, 2014
NY Civil Practice Case Notes
from page 9
Commercial Litigation
Jason C. Halpin, Esq.
Contractual Indemnification
Bero Family Partnership, et al. v. Elardo, et al., No.
CA 14-00390, 2014 N.Y. Slip. Op. 07800 (4th Dep’t
Nov. 14, 2014). Plaintiff Bero Family Partnership
sold Donald Elardo property on which contaminants
were stored in underground storage tanks by a prior
owner. Pursuant to the sale contract, Elardo executed
and delivered a note and mortgage to certain individual members of the
Partnership. The note contained an indemnification clause tied to any
required future removal “of any hazardous substance.” After plaintiffs were
required by the State to cleanup detected petroleum contamination, they
commenced an action against Elardo for indemnification. The Appellate
Division affirmed the finding of the lower court that Plaintiffs established
entitlement to judgment, rejecting Elardo’s contention that the term
“hazardous substances” in the indemnification provision was intended
not to include petroleum because the statutory definition of “hazardous
substance” does not include petroleum. The Appellate Division also
agreed with the lower court’s rejection of Elardo’s contention that a preremediation discharge of the mortgage extinguished his obligations, as
well as his argument that, because the indemnification provision was
intended to benefit only certain partners individually, his obligations are
limited.
Statute of Frauds
Stevens v. Perrigo No. CA 14-00734, 2014 N.Y. Slip. Op. 08195 (4th Dep’t
Nov. 21, 2014). Plaintiff commenced action seeking damages for breach of
contract and fraudulent inducement arising from negotiations to purchase
defendant’s accounting practice. The parties’ original agreement provided
that the purchase price would be paid in monthly installments over a period
of five years, but the agreement was revised to provide that if plaintiff, inter
alia, transferred the accounting practice or ceased to practice for a period
of 30 days, plaintiff would owe defendant the remainder of the purchase
price in a lump sum. In affirming the lower court’s denial of defendant’s
motion to dismiss, the Appellate Division concluded, with respect to the
argument that the alleged oral agreement between the parties is void and
unenforceable pursuant to the statute of frauds, that the revisions made
it possible for plaintiff to fully perform the alleged agreement within the
first year.
Witness Disclosure
Mcleod v. Taccone No. CA 14-00541, 2014 N.Y. Slip. Op. 08178 (4th
Dep’t Nov. 21, 2014). In negligence action based on injuries suffered
as a result of plaintiff ’s bicycle colliding with a motor vehicle driven by
defendant, plaintiff moved to preclude testimony by a nonparty witness
based on an improper disclosure of the witness. In affirming the denial
of the motion, the Appellate Division held that the burden rests with the
movant to establish either a willful failure to disclose the existence of the
nonparty witness or prejudice. The court held that plaintiff failed to satisfy
this burden because the proof showed that the disclosure delay was the
result of an oversight rather than bad faith, and plaintiff was afforded the
opportunity to depose the witness.
Personal Injury
Alan R. Peterman Esq.
Court of Appeals Reaffirms Notice to Broker is
Not Notice To Insurance Carrier
Strauss Painting, Inc. v. Mt. Hawley Insurance Co.
No. 203, 2014 N.Y. Slip. Op. 08214 (Nov. 24, 2014).
The issue in Strauss was whether a contractor’s
notice of a claim to its insurance broker was
sufficient to place the insurance carrier on notice
of the claim. Plaintiff had contracted with the Metropolitan Opera
to perform maintenance work on the window washing system at the
Metropolitan Opera House. The contractor obtained CGL coverage from
Defendant through the contractor’s insurance broker. An employee for a
subcontractor hired by the plaintiff was injured on the job when he fell
off a ladder attempting to access the roof. The plaintiff gave notice of the
accident to its insurance broker. Two months later, the employee sued the
Metropolitan Opera and plaintiff for negligence, violations of the Labor
Law and loss of consortium. The Metropolitan Opera forwarded a copy
of the summons and complaint to plaintiff and the subcontractor, with a
copy to its CGL carrier, demanding defense and indemnification from the
plaintiff. Several weeks later, the Metropolitan Opera’s insurance carrier
sent a letter to the contractor, subcontractor and insurance broker repeated
the demand for defense and indemnification. Two weeks later (and four
months after the accident), defendant received notice of the claim from the
insurance broker. Defendant disclaimed based on late notice.
Plaintiff sued defendant seeking a declaration that defendant was
obligated to defend and indemnify it against a third-party action filed by
the Metropolitan Opera against plaintiff. The trial court and Appellate
Division found that plaintiff ’s notice to defendant was untimely as a matter
of law. Plaintiff appealed arguing that, under Mighty Midgets v. Centennial
Ins. Co., 47 N.Y.2d 12, 416 N.Y.S.2d 559 (1979), plaintiff had followed its
normal and customary practice of providing notice of the occurrence to
its insurance broker with the expectation that the broker would provide
notice to the defendant. In Mighty Midgets, the Court of Appeals had held,
under the facts of that case, timely notice of an occurrence to the insurance
broker was timely notice to the insurance carrier.
The Court of Appeals rejected plaintiff ’s argument stating that “[w]e have
long held that a policyholder’s timely notice to a broker does not ‘constitute
notice contemplated by the [insurance] policy since a broker is m normally
the agent of the insured and notice to the ordinary insurance broker is not
notice to the liability carrier.’” 2014 N.Y. LEXIS 3347, *20, citing Security
Mut. Ins. Co. of N.Y. v. Acker-Fitzsimmons Corp., 31 N.Y.2d 436, 442,
340 N.y.S.2d 902 n. 3 (1972). The Court distinguished Mighty Midgets on
its facts relying on the extremely close relationship between the broker
and the carrier, the fact that the broker solicited customers to purchase
the carrier’s coverage, the fact that the broker collected premiums for the
carrier and the fact that the policy named the broker as the carrier’s agent.
The Court held that, given the inexperience of the clamant in matters of
insurance coverage, the extremely close relationship between the broker
and the insurance carrier reasonably caused the claimant to rely on the
broker’s advice to notify the medical insurance carrier, rather that the
liability carrier.
None of those factors were present in Strauss. The broker was the long
time broker for the plaintiff. The plaintiff was a sophisticated business
with extensive experience in construction and construction insurance
issues. The insurance carrier did not hold the broker out as an agent of
the insurance carrier for the purpose of notice. Absent the factors that
existed in Mighty Midgets, the notice provided to the broker in Strauss was
insufficient to fulfill the plaintiff ’s obligation under the policy to provide
such notice to the insurance carrier as soon as practicable. Defendant
properly disclaimed based on late notice. The lesson to be taken from
Strauss is that an insured should always provide notice of an occurrence
or a claim to the insurance carrier directly. Do not rely on the broker to
provide such notice
Impeachment of Plaintiff’s Credibility During Cross Examination
Young v. Lacy. 120 A.D.3d 1561, 993 N.Y.S.2d 222 (4th Dep’t, Sept. 26,
2014). The issue in Young was whether the trial court, in a personal
injury action, properly precluded the defense attorney from questioning
plaintiff about alleged inconsistencies in her federal tax returns. The
defense attorney had a good faith basis to believe that the plaintiff had
misrepresented her filing status on her tax returns to obtain a tax credit
to which she would not have otherwise been entitled. The trial court
precluded the defense attorney from asking such questions, holding that
because plaintiff had not been asked about the issue during her deposition,
the defense counsel was attempting to “ambush” the plaintiff at trial. On
appeal, the Appellate Division reversed.
The Appellate Division did not address the trial court judge’s ruling that
the defense attorney was attempting to ambush the plaintiff. The court did
hold that questions concerning alleged inaccuracies in the plaintiff ’s tax
returns were proper cross-examination of the plaintiff. “We conclude that
evidence that plaintiff may have committed tax fraud has ‘some tendency
Continued on page 14
11
LEGAL BRIEFS BRIEFS BRIEFS LEGAL
The Tri-County Bars Judicial Screening
The Judicial Screening Committee, which is compromised of
selected members from the Bar Associations of Erie, Monroe
and Onondaga Counties, has sent a letter to Governor Andrew
Cuomo with the Committee’s ratings for seven nominees under
consideration for Associate Judge of the NYS Court of Appeals
vacancy created by the retirement of Judge Robert S. Smith.
The committee conducted personal interviews with each candidate
on December 10, 2014 at SUNY Albany. Together with an
evaluation of each candidate’s background, written submissions,
judicial temperament, legal ability and experience, legal writing,
character and fitness, work ethic and impartiality, the Committee
rated the nominees as follows:
Hon. Eugene M. Fahey Hon. Erin M. Peradotto Stephen P. Younger, Esq. Mary Kay Vyskocil, Esq. Rowan D. Wilson, Esq. Hector Gonzalez, Esq. Kathy Hirata Chin, Esq. Highly Qualified
Highly Qualified
Highly Qualified
Highly Qualified
Highly Qualified
Qualified
Qualified
HOLIDAY CLOSINGS: M. Dolores Denman Courthouse
The Appellate Division, Fourth Department has announced the
the M. Dolores Denman Courthouse will be closed on Thursday,
December 25 and Friday, December 26, 2014. Filing dealdlines that
fall on these dates are extended to Monday, December 29, 2014, the
next succeeding business day, by operation of law.
Cora A. Alsante Named to PACE CNY Board of Trustees
Cora A. Alsante a partner at the Syracuse,
NY-based firm of Hancock Estabrook, LLP,
was recently named a member of the Board
of Trustees for PACE CNY. PACE CNY, a
collaborative effort of Loretto in cooperation
with St. Joseph’s Hospital Health Center, is a
managed care program that offers eligible elderly
people a complete range of health and healthrelated services as an alternative to nursing home
care. Ms. Alsante focuses her practice on estate
planning, trusts, planning for the elderly and disabled, and estate
and trust administration. She represents individuals and assisted
living and skilled nursing facilities.
Looking to Stock Your Bookshelves?
Are you looking for some vintage legal
books to fill out your office/waiting
room bookcases?
As a result of the OCBA move, we
left behind the libraries you see
photographed here. They remain in the
offices of the VLP at the former OCBA suite on the 10th floor of the
State Tower Building.
If you’re interested in some/all of these
books, please contact Executive Director
Jeff Unaitis (junaitis@onbar.org) to make
arrangements, to view the books or to
take them away first come, first served.
Any remaining books will be recycled –
but perhaps you can put them to a better
use!
12
Attorney Position | Rochester, NY | Mental Hygiene
December 26, 2014 Application Deadline | This position will
cover the Rochester MHLS office and surrounding counties, and
will primarily provide representation of sex offenders alleged
to be suffering from a mental abnormality in civil commitment
proceedings, including trials. Duties include but are not limited
to: presenting cases before administrative tribunals and courts;
researching and analyzing legal questions and issues and preparing
confidential reports, memoranda, legal papers, and briefs;
interviewing litigants, witnesses and other parties to administrative
and judicial proceedings; and drafting correspondence related to
case inquiries. Extensive travel without reliance on public carriers
is necessary for this position.
Application for Employment form obtainable from any
administrative office in a court building or on the web at
www.nycourts.gov/careers/UCS5.pdf
Satter & Andrews, LLP Congratulates Ross P. Andrews
The Firm will continue as SATTER LAW FIRM, PLLC representing
Unions and Working People in labor and employment matters and
disability claims at 217 S. Salina St., 6th Floor | Syracuse, New York
13202 | Tel.: (315) 471-0405 | satterlaw.com.
We welcome Sean P. Moran* to the Firm. *Bar admission pending.
Hancock
Estabrook Attorney Receives Certification
Marguerite A. Massett, Esq. recently received
her Certification in Healthcare Compliance
(CHC) with the Compliance Certification
Board. Ms. Massett is the Leader of the Hancock
Estabrook Health Care Practice. She regularly
advises multi-provider health systems, hospitals,
nursing homes, physicians, physician practices,
nurses, laboratories and other health care
professionals and organizations on variety of
legal issues. Individuals who have received a CHC designation by
the Compliance Certification Board have obtained a significant
level of knowledge relating to healthcare industry regulations and
compliance processes.
Aaron M. Thorpe | Title Agent Licensing Application Memo
All title agents, examining counsel, and closing attorneys must
submit their application to the Department of Financial Services
(DFS) on or before January 1, 2015 in order to act in any of these
capacities thereafter. The new regulations prohibit payment to
anyone but a licensed title agent. If you are compensated in for
services related to title insurance you must meet the deadline to
continue to billing.
Online Application: www.dfs.ny.gov/insurance/licensing/
applications/title_indiv.pdf
As an attorney in good standing you will not need to complete the
section re: experience as a title agent, but must provide a Certificate
of Good Standing from the Appellate Division Department of
Admission with which you are registered. There is no fee to obtain
the certificate and there is an anticipated turnaround time of five
(5) business days.
For those registered in the 4th Department the online request form
for the certificate can be found at: www.nycourts.gov/courts/ad4/
clerk/attymttrs/COGS.html
If you have any questions please feel free to contact me at any time
by phone at 315-422-6031 or via email at aaron.thorpe@vgrti.com.
OCBA Paralegals Committee
Contributors | OCBA Paralegals Executive Committee
Jane Raven, ADA in the Onondaga
County District Attorney’s Office was
our guest speaker at the November 13,
2014 Paralegals Luncheon meeting. She
presented on the paralegal’s role in the
prosecution of criminal cases.
Jane
aptly provided a comprehensive list of
items to keep in mind when acting as a
case manager in criminal matters. She
advised above all else to be proactive and
be organized! Document every action taken on a file and create
a system for everything so that nothing falls through the cracks.
Assist the supervising attorney on the case in developing a similar
system for tracking action items.
Prior to joining the DA’s Office, Jane was an associate at Gilberti
Stinziano Heintz & Smith in the civil litigation department.
During law school, Jane worked as intern to the Honorable John
C. Cherundolo, where she reviewed motion papers and drafted
decisions. In addition, during law school she was an extern at
the United States Attorney’s Office in the Civil Division; and she
worked for Sidney P. Cominsky on plaintiff ’s cases.
Jane graduated from Albion College in Michigan with a B.A. and
from SUNY Cortland with a M.S. in education. She received her
J.D. from SU College of Law and an M.P.A. from the Maxwell
School at Syracuse University.
December 11, 2014 Holiday Luncheon
Inc. family and the adopted veteran.
A special presentation of Certificates of Appreciation and gift cards
were awarded to the following people for their “untiring effort and
constant support of [OCBA Paralegals Committee] activities” Cynthia Wade (formerly of Hancock & Estabrook); Mae Slaunwhite
(Macht, Brenizer & Gingold, P.C.); Marie Norkett (OneGroup f/k/a
Benefit Consulting Group); and Jennifer Carr (Mackenzie Hughes
[not pictured]).
Thanks to everyone who did the shopping for our adopted family
from P.E.A.C.E., Inc. and for the veteran. They will certainly
experience a very enjoyable holiday! Additional thanks goes to all
who donated door prizes. A special thank you to Faye Williams
and Cynthia Wade who supplied homemade cookies for dessert.
We are very fortunate to have such a supportive group of Paralegal
Committee members!
Upcoming Monthly Luncheon Programs
The OCBA Paralegals Committee monthly luncheon meetings
will be held at The Spaghetti Warehouse, 12:00-1:00PM unless
otherwise notified.
January 8, 2015 – Jean Swanger and Karen Hawkins, Paralegals
with the firm of Gilberti Stinziano Heintz & Smith, P.C. will present
on their paralegal duties in the area of Environmental Law.
Please save the following dates for 2015 luncheon programs:
February 12 | March 12 | April 9 | May 14 | June 11
Please invite your bosses, legal administrators and co-workers.
The cost for lunch is $11 for members and $12 for non-members.
Reservation deadline is 4:00 pm the day before the luncheon.
Please RSVP Jean Swanger: jswanger@gilbertilaw.com or 4420174. E-mails are preferred. Stay tuned for further information
regarding upcoming luncheons. If you have suggestions for
guest speakers or presentation topics, please do not hesitate to
contact any member of the Executive Committee.
Kathrine Cook
Cynthia Wade
Christie Van Duzer
Ranette Releford
Faye Williams
Jean Swanger
Karen Hawkins
kathrinecook0@gmail.com
cewade@twcny.rr.com
cvanduzer@wnylc.com
ranettereleford@gmail.com
frwilliams2@gmail.com
jswanger@gilbertilaw.com
khawkins@gilbertilaw.com
Paralegal of the Month Program
The Executive Committee would like to institute a “Paralegal of
the Month” program and is seeking nominations for selection
beginning January 2015. More information to follow.
Looking for Ideas What would you like to see on the Paralegals
Section of the OCBA website? Please email Karen Hawkins.
Everyone enjoyed the good food and camaraderie at our annual
Holiday Luncheon. Jean Swanger led us in a couple rounds of
“holiday words” and “legal terms” Bingo, the winners of which had
their choice of several door prizes that were donated by members
of the Paralegals Committee. In addition, we had the customary
door prize raffles and 50/50 raffle. Jeff Unaitis was the winner of
the 50/50 raffle and very graciously donated his winnings to be
used for purchasing grocery gift cards for the adopted P.E.A.C.E.,
The Paralegals Executive Committee Could Use Your Help
The Executive Committee meeting is scheduled for December 3,
2014 beginning at noon at Gilberti Stinziano Heintz & Smith, P.C.,
555 East Genesee Street, (parking is available in front of the building
on East Genesee Street, at the rear of the building at 510 East Fayette
Street, and the parking lot between the GSHS offices and Hamilton
White House). EC Chair Kathrine Cook extends an invitation to
paralegals who would like to find out more about serving on the
Executive Committee. If you are interested in attending the EC
meetings to share your ideas for upcoming programs and ways to
better serve the paralegal members, please contact Kathrine Cook.
13
NY Civil Practice Case Notes
from page 11
to show moral turpitude to be relevant on the credibility issue.’” 993
N.Y.S.2d at 224. The court did point out, however, because the accuracy of
the plaintiff ’s tax returns was a collateral issue, the defense attorney would
be bound by plaintiff ’s answer and could not introduce collateral evidence
to impeach that testimony. The court, finding that plaintiff ’s credibility was
central to several issues in the case, reversed the trial court and remanded
the action back for a new trial.
Negligent Spoliation of Evidence Precludes Affirmative Defense
Simoneit v. Mark Cerrone, Inc., et al., No. CA 14-00370, 2014 N.Y. Slip.
Op. 07783 (4th Dep’t Nov. 14, 2014). In Simoneit, the Appellate Division
considered the appropriate sanction for defendant’s spoliation of evidence.
Plaintiff was a school bus monitor who was injured when the bus, stopped
to make a left hand turn, was struck by a front end loader owned by the
defendant. Plaintiff sued defendant which, several months after plaintiff
filed a trial note of issue, moved for leave to serve an amended answer
interposing several new affirmative defenses based on failure of the brakes
on the loader. The trial court granted defendant’s motion.
On appeal, the Appellate Division reversed that portion of the trial court’s
decision, finding that defendant had unduly delayed in filing the motion to
serve an amended answer and had not offered any excuse for the delay. The
Appellate Division also held that defendant was precluded from raising
the defense based on spoliation of evidence. After the accident, defendant
had replaced the allegedly defective brake calipers and had discarded those
calipers. The Appellate Division found that a court “may, under appropriate
circumstances, impose a sanction even if the destruction occurred through
negligence rather than willfulness, and even if the evidence was destroyed
before the spoliator became a party, provided [the party] . . . was on notice
that the evidence might be needed for future litigation.”
The court went on to hold that the fact that defendant’s employee had
driven the loader into a school bus, and the fact that several children were
removed from the bus by ambulance, were sufficient to place the defendant
on notice that the calipers would be required for future litigation. Denial of
the defendant’s motion for leave to file an amended answer to incorporate
a defense involving the discarded calipers was an appropriate sanction for
its disposal of those calipers.
Municipal Law/Zoning
Thomas A. Carnrike, Esq.
Court of Appeals Clarifies Standard for OffStreet Parking Variance
Matter of Colin Realty Co., LLC v. Town of North
Hempstead. No. 150, 2014 N.Y. Slip. Op. 07008
(Oct. 16, 2014). Resolving conflicting language in
its prior decisions, the Court of Appeals ruled that
a municipal zoning board of appeals should evaluate
requests for off-street parking variances by apply the standards for an area
variance so long as the parking is connected to a permitted use.
The Court of Appeals had not addressed the applicable zoning standard
for off-street parking variances since 1972, or almost twenty years before
the current statutory criteria for evaluating use and area zoning variances
were established. The distinction is a critical one, as an applicant for a use
variance faces a significant higher burden.
The case arose from an application to convert a vacant storefront, the
former site of a gift shop, into a 45 seat restaurant. The property was a
non-conforming use which had no off-street parking or loading zones.
Because the current Town Code required a restaurant of that size to have
24 off-street parking spaces and a loading zone, the applicant applied
for variances from the parking and loading regulations along with its
conditional use permit for the restaurant. Two nearby municipal parking
lots, as well as adjacent on-street street parking, were intended to offset the
parking issue.
Treating the application as a request for an area variance, the Town Zoning
Board of Appeals concluded that the benefit to the applicants of granting
the variances outweighed the detriment to the community, noting that
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a parking variance would be necessary to operate any business on the
premises. The ZBA also relied on a traffic analysis by the applicant’s
engineer which concluded that “ample, if not excess, parking” was available
in the surrounding area.
The owner of the neighboring property, a multi-tenant retail building,
disagreed and commenced an Article 78 proceeding, alleging that existing
public parking was overwhelmed and inadequate to accommodate the
proposed restaurant use. Relying on language in the Court of Appeals
determination in Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d
160 (1972), Petitioners argued that the more stringent use variance
standard applied, and that an applicant seeking a parking variance must
demonstrate that applicable zoning regulations have caused unnecessary
hardship which prevents a reasonable return from any use of the property.
Both the trial court and the appellate division upheld the ZBA
determination and citing the Court of Appeals determination in Matter
of Overhill Bldg. Co. v. Delaney, 28 N.Y.2d 449 (1971), held that the area
variance standard controlled.
In considering the matter, the Court of Appeals reviewed each of its prior
decisions in detail before concluding that to the extent that Off Shore Rest.
Corp. implied that a use variance was required for off street parking was
merely dicta, and in any case preceded the statutory definition of “area
variance.” Comparing off-street parking requirements to lot size or set
back restrictions, the Court of Appeals concluded that a request for a
parking variance fit squarely within the criteria of an area variance.
Collateral Estoppel/Zoning/General Police Powers
Jones v .Town of Carroll, No. CA 14-00282, 2014 N.Y. Slip. Op. 07780
(4th Dep’t Nov. 14, 2014). The plaintiff, the owner of a construction and
demolition debris (“C&D”) landfill, has been engaged in litigation with
the Town since 2005. The Town had approved a use variance in 1989
which allowed a fifty acre parcel to be used as a C&D landfill upon receipt
of a permit from the New York State Department of Environmental
Conservation (“DEC”).
A DEC permit was issued allowing for landfill operation on less than two
acres of the property. In 1996, the DEC permit was amended to allow
a one-acre expansion of the landfill. In 2005, the Town learned that a
potential buyer of the property had applied for a DEC permit to operate
a landfill on the entire fifty acre parcel, and enacted a local law which
amended the zoning code to eliminate landfills as a specially permitted use
and barring any further expansion of existing landfills. Litigation ensued,
and in 201 the Court of Appeals held that the amended law did not apply
to the plaintiff, since plaintiff already held a vested right to operate a C&D
landfill on the entire fifty acre parcel.
In anticipation of an unfavorable decision by the Court of Appeals, the
Town had also enacted a new local law in 2007 which banned all new
landfills or other solid waste management facilities within the Town,
and restricted existing landfills to the limits of their current DEC permit.
Therefore, despite its success at the Court of Appeals, Plaintiff was still
barred from expanding its operations to the full parcel. An amended
complaint was filed, and Plaintiff moved for summary judgment on the
grounds of collateral estoppel. The Supreme Court granted the motion.
On appeal by the Town, the Appellate Division reversed and remitted
the matter to the Supreme Court. Although the 2005 and 2007 law both
regulate landfill operations, the laws were not identical and involved
different applications of the Town’s regulatory authority. The 2005 law
was a zoning regulation which altered the treatment of landfills within a
particular zoning district. The 2007 law was a generally applicable, Townwide ban on commencement or expansion of landfills, enacted under the
Town’s police powers for the proffered purpose of public safety and welfare.
Therefore, collateral estoppel did not apply, and summary judgment was
denied.
Article 78/Mootness
Matter of Graf v. Town of Livonia. No. CA 13-02066, 2014 N.Y. Slip. Op.
07918 (4th Dep’t Aug. 8, 2014). Petitioners commenced an Article 78
proceeding challenging the Town Zoning Board of Appeals’ determination
that a sawmill project was a permissible agricultural and farming operation
as defined by the Town Code, following an unsuccessful administrative
Continued on page 15
NY Civil Practice Case Notes
... from page 14
appeal. The petition was denied by the Supreme Court. On appeal, the
Appellate Division dismissed the proceeding as moot, since petitioners
had failed to seek injunctive relief or make any other attempts to preserve
the status quo during the administrative appeal process, the Article 78
proceeding, or during the pendency of the appeal, and the saw mill project
was complete and operational at an estimated cost of $100,000.
Constitutionality/Void for Vagueness
Matter of Turner v. Municipal Code Violations Bureau of City of
Rochester, CA-14-00572, 2014 N.Y. Slip. Op. 08156 (4th Dep’t Nov. 21,
2014) The Appellate Division struck down a municipal prohibition on
“outdoor storage” as unconstitutionally void for vagueness. The ordinance
banned “storage of any materials, merchandise, stock, supplies, machines
and the like that are not kept in a structure having at least four walls and a
roof, regardless of how long such materials are kept on the premises” in all
zoning districts except for certain designated commercial areas.
The Appellate Division concluded that the ordinance failed both parts of
the two-factor test for assessing vagueness challenges. First, the ordinance
“gave ordinary people virtually no guidance on how to conduct themselves
in order to comply with it, and the language used in the ordinance makes it
difficult for a citizen to comprehend the precise conduct that is prohibited.”
Second, the Appellate Division concluded that the ordinance gave no clear
standards for enforcement, and therefore impermissibly granted “virtually
unfettered” discretion to local codes officials.
F rom the E ditorial B oard
To advertise in the Bar Reporter, call the Onondaga County Bar
Association at 315.579.2578.
The Editorial Board encourages members to submit articles for
publication concerning issues presented in each edition or other
issues related to the legal community. Submissions should sent to
OCBA, Attention Bar Reporter or Email cstirpe@onbar.org. John A. Cirando, Editor Emeritus
Editorial Board Members:
Hon. John J. Brunetti
Clifton C. Carden, III
Sally Fisher Curran
Nicholas J. DeMartino
Anne Burak Dotzler
Karen M. Hawkins
Joseph E. Lamendola
Michael G. Langan
James H. Messenger
Thomas E. Myers
Nancy L. Pontius
Chele Stirpe
Jeffrey A. Unaitis
James M. Williams
Oneida Nation Enterprises, LLC.
Oneida, New York
Legal Department - Senior Paralegal
We are pleased to announce this exciting and challenging full time position
within the Legal Department.
The Senior Paralegal will assist the General Counsel, Deputy General
Counsel and attorneys in various legal matters which include: general
corporate work and transactional assistance, drafting and reviewing legal
documents, and performing legal research and legal analysis. Additional
responsibilities include: organizing and maintaining information and files
and coordinating with various departments to expedite legal projects.
Ideal candidate will possess the following minimum qualifications:
3Associate’s degree in a related field and a Paralegal Certificate; Bachelor’s
degree preferred with three years of paralegal experience.
3Experience with maintenance of corporate books and records, and contract drafting and review.
3Proficient in legal research, Westlaw, Lexis-Nexis and internet services.
3Strong verbal and interpersonal communication skills.
3Proficient in MS Word, Excel, Access, PowerPoint and legal document
software.
3Excellent judgment and decision making skills.
3Ability to maintain complete confidentiality regarding Nation/departmental activities.
3Excellent writing, proofreading and spelling skills.
3Ability to prioritize and organize multiple projects with attention to
detailed work.
3Must have flexibility regarding work schedule and must be available to
work overtime.
Oneida Nation Enterprises, LLC offers stability, competitive wages, outstanding benefits including
medical, dental, vision, paid time off, 401K retirement plan, flexible spending account and many
additional employee discounts and amenities.
Learn more and apply online at www.oneidaindiannation.com/about/careers or www.turningstone.
com/careers.
D i d yo u k n o w …
OCBA receives calls every week from clients who are trying to locate
documents or files once held by their attorneys, after that attorney has
moved, stopped practicing or passed away.
If you know where your files will go after you’re gone, Contact
Peggy Walker at 579-2582or email pwalker@onbar.org
Section Update
On the evening of Tuesday, December 9th,
the Young Lawyers Section, despite the
impending Nor’easter, held its inaugural CLE
at the new OCBA offices. Titled Reality 101:
Town & Village Courts, the program provided an opportunity
for newer attorneys to glean town and village court practice
tips and insights from a range of practitioners. Hon. James P.
Murphy presented an overview of the court system and Hon.
David S. Gideon followed with a discussion of civil matters in the
courts. Later in the evening, attendees heard perspectives on
criminal practice in the town and village courts from ADA Allison
Feinberg and Ken Moynihan, Esq. The Young Lawyers Section
extends a special thanks to all of our presenters and each of the
25 attendees who filled the room, one traveling all the way from
Geneva! Future topics for YLS-sponsored CLE will be discussed at
the section’s next meeting on Thursday, January 15, 12:00 - 1:00
pm at the OCBA new offices.
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