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THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION www.nassaubar.org November 2014 Follow us on facebook 2014 Pro Bono FAIR Free Assistance, Information and Referral OF NOTE NCBA Member Benefit – I.D. Card Photo Obtain your photo for court identification cards at NCBA Tech Center. Cost $10. December 2, 3 & 4 • 9 a.m.-4 p.m. EVENTS WE CARE Gingerbread University Saturday, December 6, 2014 Two Sessions See Insert and page 18 for registration information 82nd Wassail Celebration Thursday, December 11, 2014 6:00 p.m. at Domus See page 2 for details Nassau Academy of Law Bridge the Gap Saturday & Sunday, January 24-25, 2015 at Domus See page 13 WHAT’S INSIDE FOCUS: EDUCATION LAW TITLE IX: A Shield or a Sword? Page 3 Executive Sessions and the Open Meetings Law Autism, Special Education, and the Law Zero Tolerance Rules: Constitutionally Bullet-Proof? Page 3 Page 5 Page 7 Page 7 Judicial Review of Education Law § 3020-a Pre-Hearing Conferences Page 9 GENERAL ARTICLES Does the Increased Estate Tax Exemption and Portability Mean the Death of Estate Planning? Page 11 Taking the Fifth in a Civil Deposition Page 15 BOOK REVIEW Licensed To Lie Page 14 UPCOMING PUBLICATIONS COMMITTEE MEETINGS Thursday, November 13, 2014 Thursday, December 11, 2014 12:45 at Domus ‘All The Good Hearts Are Here’ By Valerie Zurblis WE CARE Senior Citizens’ Thanksgiving Day Luncheon Thursday, November 27, 2014 11:00 a.m. - 1:00 p.m. See page 18 Protecting Students with Disabilities from Bullying Vol. 64, No. 3 On October 23, a record number of Nassau residents, with a wide range of questions, came to the Nassau County Bar Association to get answers at NCBA’s annual FAIR (Free Assistance, Information and Referral). And, more than 60 volunteer attorneys were ready and happy to help. “I have always been devoted to give back to the community,” said Joanne Fanizza, who also volunteers at NCBA’s monthly Senior Citizen Legal Consultation Clinics. Looking around the room, she observed, “All the good hearts are here.” “What a great turnout!” noted Second Vice-President Steven Leventhal, who also consulted several residents on municipal law issues at the FAIR. “Seeing all these attorneys sharing their time and knowledge makes me proud of our profession.” The attorneys met one-on-one to provide individual assistance and referrals on just about any issue including matrimonial and family, health, insurance, special education, Superstorm Sandy, workers comp, real estate, contracts and even immigration and patents. They did not provide free FAIR Coordinators include NCBA Second Vice-President Steven J. Leventhal; Director of Pro Bono Attorney Activities Gale D. Berg; Jeff Seigel and Susan Biller from Nassau/Suffolk Law Services, NCBA First Vice-President Martha Krisel, and Lois Schwaeber from The Safe Center LI. Photo by Hector Herrera legal service or take on cases. However, they all shared the altruistic sentiments of helping those in need. Practicing matrimonial and family law for more than 30 years, Judith Powell enthusiastically supported the effort. “There is a lot of information in my brain cells that I want to share,” she smiled. Echoing her sentiment, Lee Rosenberg, past chair of the Matrimonial Law Committee, added, “If it wasn’t for what we do here, there would be a lack of resources for people who need our assistance.” NCBA’s FAIR was a first-time event for new member Jacob Fleitman. A former financial investigator who recently earned his law degree, Fleitman had recently See FAIR, Page 6 NCBA Provides Alternative Dispute Resolution Services By Valerie Zurblis The current backlog in our courts often causes litigants to wait years before obtaining a final resolution, at which point the cost to litigate may exceed the amount in controversy, the relief may no longer be needed, or the case may have lost a great deal of its value. Around the country, recognition is growing that litigation is not a panacea for all disputes. The result is an ever-increasing use of alternatives to litigation, usually mediation or arbitration. Mediation is a process where a neutral third-party mediator works with the parties and their counsel to reach a mutually agreeable settlement, and to formulate a binding stipulation of settlement that may be filed with the court. In arbitration, the arbitrator hears evidence and receives testimony, much like a judge, and makes a decision that is binding on the parties. The Federal Courts of the United States and the Judges of the Supreme Court, County Court and District of Nassau County encourage arbitration and mediation as an alternative to court litigation. To meet this growing trend toward alternative dispute resolution, the Nassau County Bar Association provides an opportunity for attorneys and their clients to use expeditious, time-saving and cost-effective arbitration or mediation to resolve disputes that might otherwise be litigated in the courts. The Lawyer Assistance Program provides confidential help to lawyers and judges for alcoholism, drug abuse and mental health problems 24/7. Call 1-888-408-6222 Calls are completely confidential. NCBA’s arbitration and mediation services are available to the public as well as to all legal professionals and can be used for a broad scope of issues including commercial, breach of contract, products liability, labor, medical malpractice, domestic relations, estates and trusts, employment, and others. The panels of arbitrators and mediators are highly skilled and qualified attorneys, admitted to the New York bar a minimum of 10 years and screened by the NCBA Judiciary Committee. Arbitrator/Mediator fees are $300 per hour. Attorneys interested in using NCBA’s mediation or arbitration services, or who may wish to join the ADR Tribunal, may contact Demi Tsiopelas at 516-747-4070 or dtsiopelas@nassaubar.org. NCBA’s rules of arbitration and mediation, as well as application forms to join ADR panels, are available online at nassaubar.org > For the Profession > Alternative Dispute Resolution. November 2014 n Nassau Lawyer Wassail Celebration Come celebrate with us and experience the “Tale of Wassail” as told by President-Elect Steven J. Eisman Enjoy Seasonal Music by NCBA Past Presidents Andy Simons and Joe Ryan and delicious holiday fare! Thursday, December 11, 2014 6:00 p.m. $20 per person œ Children 12 & under free Contact Special Events for more information (516)747-4070 or events@nassaubar.org Please bring an unwrapped toy to be distributed by WE CARE to the less fortunate of our county. Eat, Drink and Be Merry! 82nd Annual Wassail Celebration In the cider-producing counties in the South West of England, Wassailing refers to a traditional ceremony that involves singing and drinking to the health of trees in the orchard in the hopes that they might better thrive. The purpose of the tradition of Wassailing is to awaken the cider apple trees and to scare away evil spirits to ensure a good harvest of fruit in the autumn. The ceremonies of Wassail vary from village to village. Generally, a Wassail King and Queen lead a processional while singing a tune, travelling from one orchard to the next. The Wassail Queen is then lifted into the boughs of the tree where she places toast, soaked in wassail from the Wassail Bowl, onto the tree limbs as a gift to the tree spirits. Afterwards, the townspeople march through the streets, singing carols and offering the Wassail Bowl to their friends and neighbors. Over time, Wassail came to describe the liquor used on festive occasions, notably around Christmas and New Year’s. When we fill the Wassail Bowl at Domus, each December, we are toasting to our collective good health. Led by the NCBA esteemed Past Presidents, we share a drink together and a wish for a healthy, productive year. And, always a highlight of the celebration, the President-Elect tells his or her creative version of the “Tale of Wassail.” This year Steven Eisman will regale us with his adaptation. There is one part of the Wassail Celebration program at Domus that has become a tradition. Each year a group of NCBA members is honored during the ceremony by participating in the “carrying of the Yule Logs.” The log carriers proceed down the main aisle of the Great Hall, each carrying a log. The logs are thrown onto the roaring fire Photo by Hector Herrera n in the fireplace. This symbolizes the burning of all the bad that has come to pass during the prior year, opening the door to what we are hopeful will be a happy and prosperous new year. In the recent past we have honored the Chairs of the WE CARE Advisory Board, Past Deans of the Nassau Academy of Law and the Past Chairs of the Lawyer’s Assistance Program (LAP), to name a few. There are many events at Domus throughout the year, but this particular Bar Association celebration is a true family occasion. Members are encouraged to bring their families to enjoy the beautiful decorations, spirited storytelling, traditional entertainment and holiday food. This year, the Wassail Celebration will be held on Thursday evening, December 11th at 6:00 p.m. The event is $20 per person and children 12 and under are free of charge. We do request that you bring a new, unwrapped toy to the event which is distributed by WE CARE to the less fortunate in our county. Come celebrate with us! Rejoice in the simple pleasure of sharing a fun evening with friends and colleagues. For more information contact the Special Events office at (516)747-4070 x226 or events@nassaubar.org. Multiple accounting specialty areas promote peace of mind in... ▲ 2 Your Financial Comfort Zone. Accounting & Auditing Business, Strategic & Succession Planning Business Valuation Services Estate Planning Fraud & Forensic Services Litigation Support Services Mergers & Acquisitions Taxation Wealth Management Check out the L.I. Economic Survey and Opinion Poll at avz.com Personal Service. Trusted Advice. 25 Suffolk Court, Hauppauge, NY 11788-3715 Phone: 631.434.9500 • Fax: 631.434.9518 245 Park Avenue, 39th Floor, NY, NY 10167 Phone: 212.792.4075 www.avz.com Nassau Lawyer n November 2014 n 3 Education Law TITLE IX: A SHIELD OR A SWORD? Colleges and universities have an ment has spent significant time moni- York Times that provided a detailed that the complainant made up the obligation to make their campuses a toring claims of sexual assaults of portrait of how one institution allegedly entire accusation after her boyfriend safe place for all students. It is getting women on campuses throughout the mishandled a sexual assault com- found out she was cheating on him with the accused. The accused student is more difficult to meet this obligation, country. As a result of this scrutiny, plaint.11 however, under Title IX. institutions throughout the country Many of these cases involve victims fully vindicated in criminal court. Has the institution fulTitle IX of the Civil Rights have been inundated with an alleging that their institufilled its Title IX obligations Act of 1964 mandates “no overwhelming amount of fed- tions displayed deliberate in either scenario? The founperson in the United States eral guidance. indifference to claims of sexudation of Title IX is built on shall, on the basis of sex, be For example, in April 2014 al violence and failed to comequity, objectivity, and jusexcluded from participation the White House Task Force ply with Title IX by not taktice for both the alleged vicin, be denied the benefits of, to Protect Students from ing immediate or proper tim and the accused. or be subjected to discriminaSexual Assault released Not action in response a claim of On one hand, institutions tion under any education proAlone: The First Report of sexual assault. However, are required, pursuant to gram or activity receiving the White House Task Force “reverse Title IX” claims, Title IX, to maintain grievfederal financial assistance.”1 to Protect Students from where the accused files suit ance procedures that provide Sexual Assault.7 Shortly for failing to conduct a fair While most notably known for the prompt and equitable for its role in attaining genthereafter, the U.S. and equitable investigation, resolution of sexual misconder equality in college and Department of Education’s have also become commonJames G. Ryan Hayley B. Dryer duct complaints.13 Both the university athletic programs, Office of Civil Rights also place.12 Title IX actually covers far released Questions and complainant and the accused Consider the following scemore than sports. Specifically, sexual Answers on Title IX and Sexual nario: a student arrives late one night must be afforded equal opportunities to harassment and sexual violence, both of Violence.8 Congress is also taking at the campus security office and claims present evidence and have witnesses which have gained recent focus in the action, and in July 2014, a bipartisan that she has just been date raped. speak on their behalf. This could lead national spotlight, fall under the Title group of eight U.S. Senators unveiled University security personnel mobilize one to believe that the approach taken IX umbrella. legislation, titled the Campus and early the next morning surround by the university in the above referSexual harassment and sexual vio- Accountability and Safety the accused student’s dorm. enced scenario was improper insofar as lence are considered forms of sex dis- Act, aimed at decreasing the The student is cuffed and the accused student did not have the crimination under Title IX if said con- number of campus sexual walked out before hundreds opportunity to present his side of the duct is “so severe, pervasive and objec- assaults.9 story. On the other hand, upon notice of of student onlookers. tively offensive that it effectively bars The university investi- a claim of sexual misconduct, instituFor educational instituthe victim’s access to an educational tions, the obligations they gates the claim by discussing tions are required to take prompt and opportunity or benefit.”2 Institutions have toward students are the matter with the com- effective action to eliminate a hostile plainant and permanently environment and remedy the effects of that receive federal funds are required, growing rapidly. To date, expels the accused student any alleged sexual misconduct.14 upon notice of a claim of sexual harass- nearly 85 higher education before affording him an ment or sexual violence, to take prompt institutions have been named In an effort to satisfy these obligaopportunity to present his tions, the U.S. Department of and effective action reasonably calculat- by the Department of side of the story or refute the Education has made clear that institued to end the misconduct, prevent its Education as colleges and complainant’s allegations. A tions may impose interim measures, recurrence and remedy its effects.3 universities that are currentCynthia A. year later, the accused stu- such as arranging for alternative housInstitutions who fail to appropriately ly under investigation for Augello dent is tried in criminal court ing or academic accommodations for the respond to a claim of sexual misconduct allegedly mishandling sexual and convicted of raping the accused, even before they fully investican suffer serious consequences under misconduct complaints in gate the alleged misconduct or render a Title IX, such as the loss of federal fund- violation of Title IX.10 Their names complainant. Now consider a slight variation of disciplinary determination.15 These ing,4 an investigation by the U.S. have also been splashed across all types Department of Education’s Office of of media and not in a favorable light. the facts: after a rather mundane cross- interim actions must always serve to Civil Rights,5 and/or a federal lawsuit.6 For example, in July 2014 a story was examination at the criminal trial of the See TITLE IX, Page 15 In recent months, the federal govern- featured on the front page of the New accused student, the jury determines Protecting Students with Disabilities from Bullying Bullying is not a recent phenome- have been passed such as the New York non, but within the past 10 to 15 years State Dignity for All Students Act the dialogue surrounding bullying has (DASA) to protect students who are the changed, shifting from a right of pas- most vulnerable, including students sage for every school aged with disabilities. child to a problem with lastStudents with disabilities ing psychological, physical are an extremely vulnerable and academic effects on both population and are more at the victim and the bully. risk of becoming victims of The focus in the social bullying and harassment sphere, particularly after the than their typically develop1999 Columbine High School ing peers. Schools and school shooting, moved to those districts have not only a legal effects and how to prevent responsibility, but a higher bullying in the future. Not moral responsibility to only are researchers, educarespond to disability harasstors, and parents shifting ment as well. Students with Saundra M. their thought process to the disabilities are already at a Gumerove prevention and eradication of disadvantage when it comes bullying, but the government to appropriate social skills and court system are as well. and positive interactions with peers. Lawmakers and Courts have joined Bullying, a negative peer interaction, the dialogue by addressing the perva- leaves students with disabilities even sive issue of bullying through protect- further behind and at an even greater ing the classes of citizens research has disadvantage, both socially and acashown to be targets. In particular, laws demically, than their typical peers. Programs (OSEP), the USDOE defines bullying as “aggression within a relaAccording to stopbullying.gov, bully- tionship where the aggressor has more ing is “unwanted, aggressive behavior real or perceived power than the tarthat involves a real or perget.”2 Usually students with ceived power imbalance and disabilities have a lower the behavior is repeated or social status than their typihas potential to be repeated cal peers. This may explain over time.” Bullying can lead why disabled students are to “disability harassment.” three times as likely to be vicAccording to the United tims of bullying.3 States Department of The key to bullying is an Education (USDOE), disabiliimbalance in power. Courts ty harassment is “intimidahave addressed the issue of tion or abusive behavior confrontations between stutowards a student based on dents where no actual or perdisability that creates a hosceived imbalance of power is tile environment by interferPatricia Craig present and generally coning with or denying a stusidered these incidents to be dent’s participation in or receipt of ben- horseplay and not actual bullying. efits, services, or opportunities in the T.K. v. New York City Department institution’s program.”1 In a 2013 Dear Colleague letter from of Education the Office of Special Education and A seminal New York case out of the Rehabilitation Services (OCERS) jointly with the Office of Special Education See BULLYING, Page 17 What is Bullying? 4 n November 2014 n Nassau Lawyer Recent Developments at the Association Among the most important committees of the Association is the Judiciary Committee, which performs a vital role for the public, and the Lawyers Assistance Program, which performs a vital role for our members. Both had significant events recently. Judiciary Committee The Executive Committee then determined a letter to the Editor of Newsday was necessary to address the unfounded allegations. The letter, published on October 23 and reproduced on page 6, put an end to the chapter involving this candidate but does not resolve what the Association should do if this year’s event was not an aberration driven by unique political considerations but rather a change in policy by the parties. The Association will explore this issue in the coming months. The Judiciary Committee determines the suitability of prospective candidates for judicial office. It comprises 21 members, ten Republican, ten Democratic, and one not affilLawyer’s Assistance Program iated with any political party. Members may not contribute The Association’s Lawyers Assistance Program, or LAP, to or otherwise support candidates for judicial office. It is led provides support and counseling to attorneys struggling by Chair Rosalia Baiamonte and Vice-Chair Marian Rice. Prospective candidates must fill out a detailed question- with emotional, physical, and mental challenges. Led by naire and submit to an interview by the Committee. For Chair Thomas Bucaria and Vice-Chair Mark Goidell, it comeach candidate, one Committee member is assigned to con- prises volunteer attorneys who attend monthly meetings, duct an interview of each reference provided by the appli- staff the confidential, toll-free, 24-hour hotline (888-4086222), monitor referred attorneys, aid and councant in his/her questionnaire response, and sel in the closing of law offices, and provide peer reviews the applicant’s writing samples, while support on an individualized basis. Its Director another member is assigned to learn as much as is Peter Schweitzer, CEAP (Certified Employee possible about the candidate from sources not Assistance Professional), who administers and provided by the candidate. This may include manages the program. LAP provides assessinterviewing attorneys and court staff, reviewing ment, referrals, professional and individual supcomments from the Association membership, port, mentoring, monitoring upon request, and performing independent research, and even on-going support facilitated through, among observing a candidate in the courtroom. other things, monthly 12-step meetings. The candidate is then interviewed before the LAP has been traditionally funded through entire Committee. At the conclusion of the interthe New York State Office of Court view, the Committee deliberates and then votes Administration (OCA). That funding was lost whether the candidate is “Well Qualified” or several years ago due to budget cuts, leaving the “Not Approved at This Time.” The candidate and Association scrambling to find funds to pay for a the candidate’s political party are notified immescaled-down program. During the past year the diately of the determination. Candidates not We Care Fund has stepped forward to provide approved may seek reconsideration by the John P. McEntee annual funding for LAP of $40,000, which, comCommittee. If, after reconsideration, the candibined with funds from the Association, has date remains unapproved, the candidate may allowed LAP to provide services on a reduced basis. appeal to the Board of Directors. This year, OCA set aside $250,000 in its budget for In a tradition, if not agreement, that some say has existed for more than thirty years, both major political parties Lawyers Assistance Programs throughout the state, and have refrained from nominating for judicial office candi- invited grant applications for a share of these moneys. A dates not found qualified by the Judiciary Committee. That group comprising Kate Meng, Henry Kruman, Peter Schweitzer, Tom Bucaria, Mark Goidell, Keith Soressi, and tradition ended this year. On September 18, the Association learned that the Justice Peter Skelos worked hard to prepare a grant request Republican and Democratic parties had cross-endorsed a for moneys that, combined with the financial support of We candidate for Supreme Court Justice not approved by the Care and the Association, would allow LAP to offer a robust Judiciary Committee. Although the Association’s by-laws range of services to our members. I am pleased to say that these efforts succeeded, as the mandate the issuance of a press release disclosing the Committee’s findings, they vest the President with discre- Association was recently awarded a grant of $61,387 for tion regarding the timing of the release and what informa- 2014-15, representing almost one-quarter of the available tion is disclosed to explain the Committee’s determinations. funds. By comparison, the New York State Bar Association After consultation with the Board of Directors, I elected to was awarded $52,068, while the Erie County Bar issue a restrained press release that noted the vital role of Association was awarded $22,164. This grant will allow the the Committee in educating the public about the qualifica- Association to restore and expand the availability of the tions of candidates for judicial office and expressed the vital services LAP provides to our members. I am appreciative of the entire LAP grant working group for all of their Association’s disappointment about the hard work. endorsement, but did not disclose I am particularly thankful for the work of Justice details about the reasons for the Skelos on the issue of LAP funding. During the Committee’s determination. past few years, I have seen him work On October 8, Newsday ran a tirelessly for a solution to the lost LAP story reporting the Association’s funding. As a leader of the We Care disappointment with the crossFund, he worked to craft an agreement endorsement of an unqualified for We Care funding of LAP. As an candidate. On October 18, it ran Associate Justice of the Appellate a further story where the head Division, he was instrumental in the of the Republican Party alleged restoration of OCA funding. And, as a the Committee was “playing games,” while unnamed Repubmember of the LAP grant working group, lican “sources” alleged the he was not content to merely offer encourCommittee found the candiagement but instead worked personally on date unqualified because it is successive drafts of the successful grant “heavily Democratic,” even application. though it is comprised equalThere is no question in my mind that LAP ly of Republicans and would not be in a position to provide its Democrats, and was retriinvaluable assistance but for the quiet yet bution for her husband’s effective leadership of Justice Skelos. And so, affiliation with the while the families of the lawyers helped will Republican Party as a likely never know it was through his leadership labor union official, even that resources were provided allowing their though this fact was not loved ones to get the help they need, I and others disclosed to or discussed by the at the Association know. And we are grateful. Committee. FROM THE PRESIDENT The Nassau Lawyer welcomes articles that are written by the members of the Nassau County Bar Association, which would be of interest to New York State lawyers. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations. Nassau Lawyer The Official Publication of the Nassau County Bar Association 15th & West Streets Mineola, N.Y. 11501 Phone: (516) 747-4070 Fax: (516) 747-4147 www.nassaubar.org E-mail: info@nassaubar.org NCBA Officers President John P. McEntee, Esq. President-Elect Steven J. Eisman, Esq. First Vice President Martha Krisel, Esq. Second Vice President Steven G. Leventhal, Esq. Treasurer Elena Karabatos, Esq. Secretary Richard D. Collins, Esq. Executive Director Keith J. Soressi, Esq. Editor-In-Chief Christopher J. DelliCarpini, Esq. Associate Editor Allison C. Shields, Esq. Editor/Production Manager Sheryl Palley-Engel Assistant Editor Valerie Zurblis NCBA Director of Marketing and PR Photographer Hector Herrera Focus Editor of the Month Kristina S. Heuser, Esq. Education Law Upcoming 2014-15 Focus Issues December – Tax/ Commercial/ Bankruptcy Law January – Labor and Employment Law February – Criminal Law Committee Editors Christopher J. DelliCarpini, Esq., Chair Allison C. Shields, Esq., Vice Chair Rhoda Y. Andors, J.D Deborah S. Barcham, Esq. Gale D. Berg, Esq. Sean E. Campbell, Esq. Deanne Marie Caputo, Esq. Ellin Regis Cowie, Esq. Marc G. DeSantis, Esq. Anthony J. Fasano, Jr., Esq. David J. Friedman, Esq. Nancy E. Gianakos, Esq. Michael R. Gionesi, Esq. Sharon Kovacs Gruer, Esq. Adrienne Flipse Hausch, Esq. Kristina S. Heuser, Esq. Charles E. Holster III, Esq. George M. Kaplan, Esq. Kenneth J. Landau, Esq. Michael J. Langer, Esq. Douglas M. Lieberman, Esq. Cheryl Y. Mallis, Esq. Angelica Marie McKessy, Esq. Thomas McKevitt, Esq. Jeff H. Morgenstern, Esq. Marian C. Rice, Esq. Daniel W. Russo, Esq. Rayne M. Sassower, Esq. Michael A.H. Schoenberg, Esq. Meryl D. Serotta, Esq. Thomas G. Sherwood, Esq. Christina H. Singh, Esq. Andrij V.R. Szul, Esq. David Torreblanca, Esq. Eric Anthony Zeni, Esq. Published by Long Island Business News (631) 737-1700; Fax: (631) 737-1890 Publisher Graphic Artist Scott Schoen Nancy Wright Nassau Lawyer (USPS No. 007-505) is published monthly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 and at additional entries. Contents copyright ©2014. Postmaster: Send address changes to the Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501. Nassau Lawyer n November 2014 n 5 Education Law Behind Closed Doors: Executive Sessions and the Open Meetings Law Anyone who has attended a meeting An executive session must be conof their local school board may have vened by following a specific procedure, noticed a strange procedure in which and may only be convened for a limited the board of education members leave number of purposes, all of which are the meeting to retire to a private room. individually set forth in the OML. Although this may seem like a random Failure to comply with the requireor spontaneous event, it is actually a ments of the OML can have serious and well-established procedural costly consequences for those device which allows public who choose to ignore them. bodies to discuss certain senSpecifically, under the sitive subjects outside of pubstatute, any “aggrieved perlic view. Despite appearances, son” may bring a special prothe occasions which public ceeding against a public body bodies may retire to a private pursuant to Article 78 of the meeting are strictly regulated Civil Procedure Law and by law, and may only occur Rules to complain about under certain circumstances. alleged violations of the Article 7 of the New York OML. The statute of limitaState Public Officers Law, tions for such a proceeding also known as the Open does not begin to run until Laura A. Meetings Law (“OML”), crethe day when the minutes of Ferrugiari ates important obligations for the executive session have public bodies when conductbeen made available to the ing their meetings which cannot be public.4 ignored. One such obligation is for pubIf the court determines that a violalic bodies, such as boards of education, tion of the law has occurred, the court is to conduct the business of the public empowered to choose from a menu of body in an “open and public manner.”1 consequences. First, the court may To achieve this purpose, the statute declare any action that was taken in requires that “[e]very meeting of a pub- violation of the OML to be “void, in lic body shall be open to the general whole or in part, without prejudice to public.”2 However, the law also provides reconsideration in compliance with [the that, under certain circumstances, a OML].”5 Second, the court may require public body may transact business in a the members of the public body who vioproceeding closed to the public known lated the OML to participate in a trainas an “executive session.”3 ing session to educate them regarding their obligations under the law.6 tive session are limited. Some of the Finally, and perhaps most significantly, reasons specified in the OML include: the court is empowered to impose a “matters which will imperil the public financial consequence for failure to com- safety if disclosed;” “discussion regardply with the OML, by awarding costs ing proposed, pending or current litigaand attorney’s fees to the party who tion;” “collective negotiations pursuant to Article 14 of the Civil brought the successful chalService Law;” “the medical, lenge.7 financial, credit or employIn order to avoid these conment promotion, demotion, sequences of noncompliance, discipline, suspension, dispublic bodies should undermissal or removal of a particstand the nuances of the ular person or corporation;” OML, particularly with and the “preparation, gradregard to issues related to ing or administration of executive sessions. It is examinations.”8 important that they understand what matters may be The OML specifically properly addressed in an exempts certain types of executive session, the procemeetings from its coverage. Joseph P. dure which must be followed These include “judicial or Lilly when calling an executive sesquasi-judicial proceedings, sion, and what a public body except proceedings of the is permitted to do after entering into an public service commission and zoning executive session. To avoid the conse- boards of appeal;” “deliberations of quences of a violation, public bodies political committees, conferences and should consult with their legal counsel caucuses;” and “any matter made confito ensure that their executive sessions dential by federal or state law.”9 An are noticed and held in compliance with example of a matter made confidential the law. Another source for guidance on by federal or state law would be attorthis subject is the New York State ney-client communications. Such comCommittee for Open Government, munications are considered confidential which issues and posts advisory opin- under CPLR 4503. Consequently, since ions regarding the OML at the communication is confidential www.dos.ny.gov/coog. under state law, it is exempt under the Under the OML, the reasons for See MEETINGS, Page 16 which a public body may go into execu- 6 n November 2014 n Nassau Lawyer FAIR ... Continued From Page 1 moved to Long Island and joined the NCBA at the beginning of October. “I received an email two days ago that they needed volunteer attorneys, so here I am,” he said. “I joined the Bar for the networking opportunities to increase business, but I volunteer here for the community.” The FAIR was founded by current NCBA President John McEntee four years ago. It is coordinated by NCBA in cooperation with The Safe Center LI and the Nassau/Suffolk Law Services. To promote the delivery of competent legal services to all who need them, without regard for the ability to pay and without regard for the popularity of the cause. – From NCBA’s Mission Statement A few years ago, NCBA enhanced its pro bono efforts by bringing together all of the local organizations that provide legal services in Nassau County. The NCBA Pro Bono Committee was renamed Access to Justice, and now includes representatives from NCBA, The Safe Center LI, Nassau Suffolk Law Services, Legal Aid Society of Nassau County, Assigned Counsel Defender Plan, Hofstra and Touro law schools, and Nassau County government. Recently, committee chairs were asked to designate a committee member to also serve as the liaison on the Committee. So far, 18 committees have such liaisons, including Alternative Dispute Resolution, Bankruptcy Law, Conciliation, Construction Law, Criminal Court Law & Procedure, Education Law, Family Court Law and Procedure, Federal Courts, Hospital and Health, Labor & Employment, Matrimonial Law, Real Property Law, Sports, Entertainment and Media Law, and Veterans and Military Law. The Access to Justice Committee’s mission it to provide information on free and reduced fee legal resources, coordinate legal services for the community and strengthen the core of volunteer attorneys through education and professional development. Program volunteers do not take on cases. Members who would like to become involved with NCBA’s pro bono efforts may join the Access to Justice Committee by signing up online or by calling the Membership Department, 516-747-4070. FAIR Volunteer Attorneys Michael Barcham Maria Begley Susan Biller Maria Bradley Gail Broder-Katz Maxine Broderick Usman Chaudhary Ethan Choi Alfred Constants, III Ellen Cowie Adam D’Antonio Anne Dello-Iacono John DiMascio, Jr. Lewis Edelstein Hon. Dorothy Eisenberg Joanne Fanizza Brian Fishkin Jacob Fleitman George Frooks Mary Giordano Chris Haner Warren Hoffman Vrinda Jagan Enid Klein James Klein Martha Krisel Robert Kroll Charles Lapp, III Barry Lasky Steven Leventhal Jack Libert David Lieser Anastasia Lipato John McEntee Diane Memmoli Stephannie Miranda Uwayne Mitchell Tiffany Moseley Sarah Nigro Thomas O’Rourke Constantina Papageorgiou Michael Pfeifer Judith Powell Jonathan Press Jon Michael Probstein Jody Pugach Marc Roberts Anne Rosenbach Lee Rosenberg Seth Rosner Monica Ruela Hon. Lawrence Schaffer Terry Scheiner Jessica Seligson Rajat Shankar Yulian Shtern Elana Simha Susan Slavin Patricia Sokolich Rita Stein John Stellakis Bob Sugarman Andrew Thaler Robert Vadnais John Weber Nassau Lawyer n November 2014 Education Law Autism, Special Education, and the Law One of the main goals of any parent There is a crisis in educating children with autism on Long Island – one in America is for their children to that is brought to us by the Good receive a quality education. Parents Intentions Paving Company. For those will uproot their families to move into with children diagnosed as autistic the areas where educational opportunities personal becomes political and in order are better for their kids. Even more to insure their rights parents must important for any parent, however, is organize and fight for them, not only in that their children be healthy. Now imagine that your son or daughthe political arena but on the front lines ter has been diagnosed with autism or in each and every school district. In writing about educating special any one of the variants of the disease that are subsumed under needs kids and the law it is Autism Spectrum Disorders important to start off by say(ASD). Autism is a complex ing this is less about the law neurobiological disorder that per se than it is about how the typically lasts throughout a law is interpreted and impleperson’s lifetime. It is the mented at the school district fastest growing developmenlevel. School administrators tal disability in the world. on Long Island, often wellThe CDC reports that 1 in 68 intentioned, have come a long children are diagnosed with way, but in trying to better autism, 1 in 50 school aged address the needs of autistic children, making it more students, they are still failing common than pediatric canto implement best educational Bradley L. cer, diabetes and AIDS compractices – a failure that Gerstman bined. It occurs in all racial, many parents of these chilethnic and social groups, and dren remain unfortunately is four times more likely to strike in unaware of.1 Put simply, there is a gap between boys than girls. There is no medical the written statutes and the reality of detection or cure for autism.2 what goes on in the classrooms on Long Ever since 1990, when the Island. This gap inevitably leads to the Individuals with Disabilities Education shortchanging of children who need Act (IDEA) Act was enacted, our counintensive educational services – and it try has recognized its obligations to is precisely at this juncture where we as these challenged children.3 Passing a lawyer/advocates belong in order to federal law, or any law for that matter, insure that the law is implemented as it See AUTISM, Page 20 was intended to be. SINCE 1980 MEDICAL MALPRACTICE & PERSONAL INJURY LAW ask4sam.com • 877-ASK4SAM Standing: Robert A. Miklos, Heather E. Myers, Daniel P. Miklos, Danielle M. Hansen, Anthony E. Colantonio, Olga Siamionava, John G. Papadopoulos Seated: Joseph P. Awad, Joseph Miklos, Joseph C. Muzio Zero Tolerance Rules: Constitutionally Bullet-Proof? Virtually every school district has authorities are responsible.”4 Thus, sturules concerning students’ conduct that dents engaged in prohibited but “off simply will not be tolerated. These so- campus” speech or conduct are not called “zero tolerance” rules were origi- beyond the reach of these rules. nally developed in the 1990’s to address While out-of-school suspensions the ever-growing drug and remove dangerous students gun problem in schools.1 from schools, suspensions pursuant to zero tolerance Often found in the district’s rules have increasingly come code of conduct, these rules under fire for several reasons; concern speech or conduct for example, “good” students that is violent, otherwise are removed from school endangers the safety or welsometimes for relatively trivfare of others (e.g., possessing ial infractions resulting from weapons, alcoholic beverages mistakes in judgment typical or illegal drugs) or is deemed of school-age children.5 indecent (e.g., nudity and sexRegardless of whether this ual activity).2 criticism ultimately results Most school districts’ codes of conduct state that students Lynn M. Brown in a change of policy, zero tolerance rules are now routineengaging in these activities may be disciplined, up to and including ly enforced and, as set forth below, are long-term suspensions from school. In relatively impervious to constitutional fact, for the majority of students, these attack. Disciplinary actions taken on the offenses typically result in out-of-school suspensions, often for weeks or months, basis of zero tolerance rules have been without regard to the severity of the challenged on a variety of constitutional infraction, the particular facts giving grounds, including under the First, rise to the offense, or mitigating circum- Fourth, Fifth and Fourteenth Amendments. While it is well established that stances.3 Further, school districts can and do public school students do not shed their apply their zero tolerance rules to constitutional rights “at the schoolhouse speech or conduct that happens off gate,”6 the rights of public school stuschool grounds to the extent such dents “are not automatically coextensive “adversely affect[s] the educative with the rights of adults in other setprocess or endanger[s] the health, safe- tings.”7 As a result, for the most part, ty or morals for pupils within the educaSee ZERO TOLERANCE, Page 19 tional system for which the school *Ranked Tier 1 for Medical Malpractice Law and Personal Injury Litigation in New York City Record verdict damages involving cancer, blindness, amputation and brain injury • More than 1,000 settlements in medical malpractice matters • Nearly 100 arguments before the Appellate Division • More than 40 referring law firms trust us with their cases and clients SILBERSTEIN, AWAD & MIKLOS, P.C. 140 Broadway • New York, NY 10005 600 Old Country Road • Garden City, NY 11530 Super Lawyers® is a registered trademark of Thomson Reuters. The Best Lawyers in America® and Best Lawyers® are registered trademarks of Woodward/White, Inc. U.S. News & World Report is a registered trademark of U.S. News & World Report, L.P. ALM and Top Rated Lawyers are trademarks of ALM Media Properties, LLC. AV Preeminent® is a registered certification mark of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies. ATTORNEY ADVERTISING n 7 8 n November 2014 n Nassau Lawyer IN BRIEF Law Day 2015 Celebrating the 800th Anniversary of the Magna Carta Symbol of Freedom Under Law AWARD NOMINATIONS REQUESTED Liberty Bell Award Do you know someone in Nassau County whose efforts on behalf of law and justice deserve the recognition symbolized by the Nassau County Bar Association’s prestigious Liberty Bell Award? The Award honors an individual or organization outside the legal profession whose community service advances and strengthens the American system of freedom under law. With this award, the Association recognizes efforts and achievements which meet some or all of the following criteria: + + + + + promoting better understanding of the Constitution and the Bill of Rights; encouraging greater respect for law and the courts; stimulating a deeper sense of individual responsibility so that citizens recognize their duties as well as their rights; contributing to the effective functioning of institutions of government; and fostering a better understanding and appreciation of the rule of law. Member Activities The Nassau Lawyer welcomes submissions to the IN BRIEF column announcing news, events and recent accomplishments of its members. Due to space limitations, submissions may be edited for length and content. Russell G. Tisman; Gregory S. Lisi; Brian R. Sahn; Peter R. Mineo; Steven G. Gaebler and Joseph P. Asselta. The Touro College Jacob D. Fuchsberg Law Center recently named Evan Krinick, managing partner of Rivkin Radler LLP; Jennifer Garfunkel Wild, P.C. attorneys McLaughlin, partner at Cullen and selected for inclusion in the 2014 New Dykman; and Mark Mulholland, manYork Super Lawyers – Metro Edition aging partner and senior member of the include Chairman and Founding Litigation Department of Ruskin Partner/Director Robert Andrew Wild, Moscou Faltischek, P.C., to the Law Roy W. Breitenbach, Peter Center’s Board of Governors. M. Hoffman, Michael J. Andrew Kimler, a partKeane, Doris L. Martin, ner in the Litigation Practice Leonard M. Rosenberg, Group of Vishnick McGovern Burton S. Weston, Hayden S. Milizio LLP, was named a Wool, Andrew L. Zwerling, New York Metro Area Super Kevin G. Donoghue, Eve G. Lawyer. Mr. Kimler, who Marianne Koopersmith, concentrates his practice in Monroy, Christina Van Vort commercial, corporate and and Justin M. Vogel. employment law, has coJohn C. Armentano of authored two volumes of Farrell Fritz, P.C. was recent“Criminal Defense Technily appointed to Touro Law ques.” Avrohom Gefen, an Center’s Institute on Land Hon. Stephen L. associate in the firm’s Ukeiley Use and Sustainable Litigation Practice group, Development Law’s advisory was named a New York board. Mr. Armentano earned his Juris Metro Area Rising Star by Super Doctor at Touro Law Center and is a Lawyers. Mr. Gefen earned his Juris contributor to the firm’s Long Island Doctor from Fordham University Land Use & Zoning blog. James M. School of Law. Wicks, a partner at the firm, was Jennifer B. Cona, managing partnamed a Top 100 New York - Metro ner of Genser Dubow Genser & Cona, Super Lawyer for the second consecu- was named a 2014 New York Metro tive year. Super Lawyer. Ms. Cona concentrates The following Forchelli, Curto, her practice in Elder Law. She serves Deegan, Schwartz, Mineo & Terrana, on the Executive Committee of the LLP partners were selected as New Board of Trustees and the Legal York Super Lawyers: Jeffrey D. Advisory Board of the Long Island Forchelli, founder and managing part- Alzheimer’s Foundation. Ms. Cona was ner; Robert H. Groman; James C. recently awarded the “Leadership in Ricca; Jeffrey G. Stark, who previous- Law” award and named one of the “Top ly served as a Justice of the New York 50 Most Influential Women in Supreme Court (Nassau County); See IN BRIEF, Page 22 COMMITTEE REPORTS Peter T. Affatato Court Employee of the Year Award NCBA is seeking nominations for the Court Employee of the Year Award, named in honor of the “Dean of the Bar” Past President Peter T. Affatato, at its annual Law Day celebration on April 30, 2015. The Award, to be presented at the annual Law Day observance, recognizes a non-judicial employee of any court located in Nassau County who: • exhibits professional dedication to the court system and its efficient operation, and, • is exceptionally helpful and courteous to other court personnel, members of the bar, and the many diverse people whom the court system serves. The Liberty Bell Award and the Court Employee of the Year Award will be presented at the Association’s annual Law Day celebration, April 30, 2015. Nominations should be submitted with supporting documents not later than December 1, 2014 to: Hon. Ira B. Warshawsky Law Day Committee Chair Nassau County Bar Association 15th & West Streets Mineola, NY 11501 Matrimonial Law Meeting Date 10/8/14 Chair: John DiMascio, Jr. Angelakis, Esq., associate at Schwartz & Ciesinski, LLP, who discussed the recent Second Department case, Lundon v. Lundon, 2014 NY Slip Op 06301 (2d Dept. 2014), allowing for the utilization of a qualified domestic relations order to satisfy arrears. An upcoming committee meeting is scheduled to be held November 12, 2014. The committee welcomed guest speaker Honorable Jeffrey S. Sunshine, Supervising Judge for Matrimonial Matters of the Supreme Court, Kings County, and Chair of the Statewide Matrimonial Practice Advisory and Veterans and Military Law Rules Committee, who discussed matrimonial issues that the statewide com- Meeting Date 10/21/14 Chair: Edward F. Cunningham mittee is currently addressing. A panel discussion was held with Judge Terry Murphy of the judicial hearing officers, refVeterans Treatment Court erees and principal law clerks spoke at the meeting. The from the Nassau County first Veterans Treatment Supreme Court Matrimonial Court in New York began in Center, who had completed Buffalo and the Nassau part questionnaires titled works from that model. Since “Navigating the Matrimonial November 2011, when the Parts of the Supreme Court, court was established in Nassau County – Five Things Nassau, 62 veterans have Every Law Clerk Wants You graduated from the program. to Know” and provided copies Currently, there are about of the Part Rules for their 45 in the program with six respective judges. The followscheduled to graduate on ing members participated: Michael J. Langer November 19. Veterans in Judicial Hearing Officer the program are assigned a Geoffrey O’Connell; Marie mentor who is a volunteer and has McCormack, Esq., Court Attorney completed a training program. The Referee; Thomas Speziale, Esq., Court mentor assists the veteran in getting Attorney Referee; Scott Mandel, Esq.; the treatments and sessions required Martha Haesloop, Esq.; Linda Mejias, by the program. Esq.; Steven Maffei, Esq. and Katina Our next meeting is November 18 at Cokinos, Esq. 12:30. Happy Veterans Day to all! The feature, “A New Case from a New Face,” was presented by Irene See COMMITTEE REPORTS, Page 22 Nassau Lawyer Education Law November 2014 n Our Business Valuation Team Covers All Bases Judicial Review of Education Law § 3020–a Pre-Hearing Conferences A tenured teacher brought up on templated by Mobil Oil.5 charges pursuant to New York Thus, despite a bad ruling by a hearEducation Law § 3020–a may only be ing officer at a prehearing conference, in disciplined or removed from his or her most cases there is no interim judicial position if there exists “just cause” for recourse and the 3020–a hearing must the charges. The teacher has the right go forward. A teacher forced to defend to a hearing on the charges (a “Section charges improperly brought, or forced to 3020–a hearing”). Before the Section defend charges without important dis3020–a hearing, the hearing officer covery, will have no recourse if there is must conduct a pre-hearing conference ultimately a final award in his or her at which various issues will be favor. However, where there is an addressed, including any motions (such adverse final award, a pre-hearing conas motions to dismiss)1 and discovery. ference determination may be appealed The hearing officer’s decisions on after the conclusion of the Section these issues may impact the teacher for 3020–a process. In denying review of an interlocutory the remainder of the Section 3020–a order in Mobil Oil, the court hearing, most significantly if did not state that an intera motion to dismiss the locutory order may never be charges is denied, or if crucial appealed; merely that an discovery is not allowed. Are interlocutory order presents the decisions of a hearing offino authority for a court to cer on issues raised during a intervene “at this stage of the pre-hearing conference in a progression of the arbitration Section 3020–a hearing subproceeding.”6 Similarly, in ject to judicial review? The short answer is yes, but genJordan-Elbridge Cent. Sch. erally only after the concluDist., the court denied intersion of the hearing. locutory review of the hearIt is axiomatic that only ing officer’s decision regardfinal awards are subject to Debra L. Wabnik ing discovery production in a review under CPLR Article Section 3020–a hearing but 75. A final award is considered the arbi- stated, “petitioners are correct that they trator’s decision and final determination may ultimately be entitled to a review of on all matters submitted.2 Interlocutory the arbitrator’s final award ... However, or interim orders or awards which are the petitioners are not entitled to such not final awards may not be appealed relief prior to a final determination and during the course of an ongoing arbitra- award.”7 tion proceeding. Indeed, in at least two cases issues In Mobil Oil Indonesia v. Asamera raised during a pre-hearing conference Oil, the petitioners sought review of the were later addressed in the context of a arbitrators’ decision regarding which of review of the final award. In Matter of two sets of arbitration rules applied to Morrell v. New York City Department of the proceeding. The Court of Appeals Education, a teacher challenged the held that it was without authority to final award of the arbitrator on several review the decision because a final grounds, including that the hearing offiaward had to be made before a court cer erred when he denied the teacher’s may intervene. The arbitrators’ decision discovery request during the pre-hearregarding which set of rules applied was ing conference.8 And in Cruz v. New an interlocutory order, “involving only a York City Department of Education, a limited procedural question ... [which] teacher sought to vacate the arbitration in no way constitutes a final determina- award in an Article 75 proceeding, argution on the matters submitted…”3 ing in part that the hearing officer This concept of finality has been improperly denied her request for an applied in the context of Section 3020–a adjournment during her pre-conference hearings. For example, the Fourth hearing.9 Although no abuse of discreDepartment has held that the court had tion by the hearing officer was found in no authority to intervene when the either case, the hearing officer’s rulings Department of Education appealed a made at the pre-hearing conference hearing officer’s interim award granting were reviewed by the court. a teacher’s motion for summary judgIt should be noted that courts provide ment on 11 of 16 charges preferred in a great deference to the decisions of hearSection 3020–a proceeding. The court ing officers, and findings of facts in pardenied the Department of Education’s ticular. Combined with the high stanpetition to vacate the hearing officer’s dard that must be met to vacate or moddecision on the grounds that it was an ify an award in an Article 75 proceedinterim award and “not ‘a final and def- ing,10 this creates a fairly difficult case inite award’ resolving the matter sub- for overturning the decision of a hearing officer made during a pre-conference. mitted for arbitration.”4 In a subsequent case, the Appellate For the tenured teacher, this means Division, Second Department permitted proper steps must be taken to insure review of a hearing officer’s decision that objections to a hearing officer’s granting a teacher’s motion to dismiss decisions throughout the Section one of three charges preferred against 3020–a hearing, including the pre-hearhim as time barred. The court again ing conference, are preserved for review. examined the finality issue, although it The pre-hearing conference in a Section differed with the Fourth Department 3020–a hearing is recorded and then and characterized the award as “final as transcribed. Hearing officers will, howto that charge,” rather than the type of ever, hold telephone conferences with “very limited procedural question” conSee HEARING, Page 20 n There are a number of reasons to know the value of a business, estate or someone’s assets. Whether it’s for litigation, to negotiate a sale or merger, secure credit, settle a dispute, determine tax liability, or a host of other reasons — our valuator’s mission is always the same...to use professionally accepted methods to arrive at a well-reasoned and defensible estimate of value. So if your accountant doesn’t know fair value from fair market value, give us a call. Isn’t it time you made Israeloff, Trattner & Co., part of your team? BUSINESS, PROFESSIONAL PRACTICE & LICENSE VALUATIONS M A R I T A L D I S P U T E S / E N H A N C E D E A R N I N G S C A PA C I T Y FORENSIC ACCOUNTING/EXPERT TESTIMONY B U S I N E S S L O S S / D A M A G E A N A LY S I S EMBEZZLEMENT & FRAUD AUDITS BANKRUPTCY & REORGANIZATION N E W YO R K CIT Y GA R D EN CIT Y 212.239.33OO 516.24O.33OO Visit us on the web at www.israeloff.com CALL FOR NOMINATIONS The Nominating Committee welcomes applications for nominations to the following Nassau County Bar Association offices for the 2015-2016 year: q President-Elect q Vice-President q Treasurer q Secretary Applications are welcome for nominations to serve on the Nassau County Bar Association Board of Directors. There are eight available seats, each for a three year term. The Nominating Committee invites applications for nominations to the following offices of the Nassau Academy of Law for the year 2015-2016: Dean Associate Dean Assistant Dean (3) Treasurer Secretary Counsel NCBA members interested in applying for any of the above nominations, or in submitting suggestions for such nominations, are invited to submit such information to: Peter J. Mancuso, Chair, Nominating Committee, NCBA, 15th & West Streets, Mineola, NY 11501 or email: spalley-engel@nassaubar.org. Deadline for all nominations: January 31, 2015 9 10 November 2014 n n Nassau Lawyer PRO BONO ATTORNEY OF THE MONTH Meaghan Korson By GAIL BRODER KATZ The Safe Center LI (formerly Nassau County Coalition Against Domestic Violence) is proud to introduce you to Meaghan Korson, the Nassau Lawyer Pro Bono Attorney of the Month. Ms. Korson is a cum laude graduate of New York University and received her juris doctor from Nova Southeastern University Shephard Broad Law Center in 2007. She has spent most of her professional career working in the Private Investment Funds Group at Ropes & Gray LLP, assisting clients with establishing and operating various private investment funds, including private equity, secondary and funds of funds. While she thoroughly enjoys her corporate work, Meaghan decided to take approximately six months to devote herself to pro bono work. Meaghan sought to learn something new, an area of law with a more personal aspect to it and give back to her community at the same time. As a law student. she completed a mediation fellowship working with children and families as part of the juvenile diversion program for juveniles arrested for misdemeanors, which piqued her interest in learning more about Family Law. Fortunately for our clients, she decided to perform her volunteer work at The Safe Center LI (TSCLI). She attended TSCLI trainings, studied the manual prepared for our pro bono attorneys, worked with our in-house attorneys and then handled her own caseload. She had direct client interaction – from the initial consultation, the drafting of the necessary documents and representation in both the Nassau Family and Supreme Courts. She served as pro bono counsel on a variety of family law matters, including Orders of Protection, custody and visitation, support, and matrimonials. While primarily dealing with Family Law issues, she learned just how pervasive domestic abuse is throughout all areas of law and all segments of the community. When asked to describe her pro bono experience, she stated “I cannot say enough wonderful things about The Safe Center LI. My time there allowed me to give back to the community, but at the same time develop my knowledge and skills in a new and different area of the law. The attorneys and staff at the office were always ready and willing to help me and offer mentorship. In the end, I think that my pro bono work for The Safe Center LI made me a better person – and therefore a better attorney. “ F R C R, P.L. AUTO ACCIDENTS, INJURIES & COMPLEX CASES x x x x Personal Injury Wrongful Death Nursing Home Abuse Medical Malpracce Kenneth A. Cutler 27 Years of Experience x x x Licensed in FL and NY Extensive Trial Pracce Serving All of Florida Andrew J. Rader 24 Years of Experience 954-913-CASE (2273) www.CUTLERRADER.com 1166 W. Newport Center Drive, Ste. 308 Deerfield Beach, FL 33442 Along with her volunteer work at TSCLI, Meaghan immersed herself in the Nassau legal community. She joined the Nassau County Bar Association and the Women’s Bar Association and enjoyed participating in the events of both organizations. Meaghan plans to maintain her ties with The Safe Center and the bar associations. Meaghan’s ‘six months’ turned into a full year with TSCLI providing over 1,250 hours of volunteer work to the neediest of clients. Her presence helped to ease the heavy case load of TSCLI attorneys and, therefore, enable it to serve even more clients. On her return to Ropes & Gray in August of 2014, she brings her new skills to her ‘old’ practice and is equipped to recognize the signs of domestic abuse and what to do about it. We are grateful for all her hard work and commend her commitment to pro bono work – Ms. Korson is truly deserving of this recognition as the Nassau Lawyer Pro Bono Attorney of the Month. Gail Broder Katz, Esq. is the Pro Bono Project Coordinator for The Safe Center LI (formerly Nassau County Coalition Against Domestic Violence.) She can be contacted at GBroderKatz@ tscli.org or 516-465-4700 for information about the Project and how you can help, We Make Bonding Simple Experience, Competence, Results. Call us at 1-877-266-3798 or visit us at www.jaspersurety.com Nassau Lawyer n November 2014 n Does the Increased Estate Tax Exemption and Portability Mean the Death of Estate Planning? Now that the federal estate tax with the maximum estate tax exempexemption equivalent is $5,340,000 tion amount available on the date of ($10,680,000 for married taxpayers) death of the first spouse, to protect and portability has been made a perma- against the loss of that exemption. nent part of the Internal Revenue Code, Today, many planners have changed many commentators have declared the their wills to take advantage of portadeath of estate planning. As Mark bility and avoid the use of the credit shelter trust. While portabilTwain once stated, “The ity provides simplicity (somereport of my death has been thing that is desirable to greatly exaggerated!” That many clients) it is not a statement also applies to panacea. estate planning. While our father’s estate There are tax and non-tax planning may not be what is elements to estate planning. necessary today, there are a With the increased exemption number of factors that must amount and portability there be considered in making the are still tax considerations credit shelter trust/portabilithat come into play, even in ty decision. Today the value estates that are below the fedof a married couple’s estate, eral exemption amount. Robert Katz their respective ages, their Obviously, the non-tax issues respective health and the are still relevant regardless of New York State estate tax must be facthe exemptions that apply. tored in to the decision. Tax Considerations Estates under $5,340,000: These The American Taxpayer Relief Act of are the estates for which portability was 2012 (ATRA) made portability perma- designed. However, if the clients are nent and increased the estate and gift young and in good health, the planner tax exemption amount. For gifts made must give consideration to their potenand decedents dying in 2014 the exemp- tial asset accumulation. Portability is tion amount is $5,340,000. It will be still the appropriate approach as long as inflation adjusted annually. This means the clients are closely monitored as they that a married couple can avoid the fed- accumulate their assets. eral gift and estate tax if their combined One problem that these estates may wealth does not exceed $10,680,000. face relates to the New York State Traditionally, wills have provided a Estate Tax. The New York State credit shelter trust that was funded exemption is lower than the Federal 11 exemption. Therefore, as long as the $3,000,000) consisting of real estate clients have assets in excess of the New owned as tenants in common. On the York State exemption amount a New husband’s death the credit shelter trust York State credit shelter trust should will be funded with his half of the real be established. New York State does not estate value at $4,000,000. The credit recognize portability and the failure to shelter trust will get a step up in basis create a credit shelter trust for the New from $1,500,000 (one-half of the cost basis) to the $4,000,000 fair York State exemption will market value of the property create a larger estate tax on on the date of his death. the death of the second Assume that when the wife spouse. (See the discussion, dies the value of the property below, for a summary of the in the credit shelter trust is changes made to the New $5,200,000. The children will York State Estate and Gift inherit that property with a tax made by the 2014-2015 built-in income tax gain of Budget Bill) $1,200,000. Estates between If portability was used, $5,340,000 and $10,680,000: instead of the credit shelter For these estates portability trust, on the husband’s death remains a viable option. That Neil D. Katz the wife will receive his propbeing stated, the planner erty with an income tax should place more focus on the age of the clients and the potential stepped-up basis of $4,000,000. Upon asset growth. For clients whose wealth her death, if she still owns that properis closer to the $10,000,000 threshold, ty, there will be a second step-up in the utilization of a credit shelter trust basis to the value on her date of death will remove all of the growth in the ($5,200,000). Therefore, the children value of the assets placed in that trust, will inherit this property with no builtfrom the estate of the second spouse to in income tax gain. In addition, as a die. However, with capital gains rates result of portability she will have a fedincreasing and the potential of no feder- eral exemption amount of $10,680,000 al estate tax for couples in this bracket, (without taking into account inflationan important factor to be considered is ary adjustments). The decision as to whether credit “step-up” in tax basis for income tax shelter planning or portability is preferpurposes. Example: Husband and wife have an See ESTATE PLANNING, Page 22 estate of $8,000,000 (Cost basis ‘Tis T the Season S tto C Celebrate l b t Intimate, extravagant, Intimate, extravagant, eelegant legant o orr cchic. hic. We We offer off ffer er 25,000 square square ffe feet eet o off eevent vent create perfect backdrop celebrating. sspace pace tto o cr eate tthe he p erfect b ackdrop fo ffor or ce lebraating. The Garden The Garden Ci City ty H Hotel otel 45 SSeventh eventh SStreet, treet, Ga Garden rden Ci City ty Call our Catering Director C al l o ur C atering Dir ector 516-663-7010 Whether a ggrand Whether rand eevening vening rreception eception o orr a F Friday riday b brunch runch ffo for or yyour our co colleagues, lleagues, eexperience xperience the ne new wG Garden arden C City ity H Hotel otel this ho holiday liday sseason. eason. For space F or 360 ttours ours ooff eevent vent ssp pace vvisit isit www.gardencityhotel.com/360-tours.php w ww.gardencityhotel.com/360-tours.php 12 n November 2014 n Nassau Lawyer e Nassau Lawyer b NASSA ASSAU U ACADEMY OF LAW / /RQJ,VODQG¶V/HDGLQJ6RXUFHIRU&/( RQJ,VODQG¶V/HDGLQJ6RXUFHIRU&/( PHIL HILOSOPHY OSOPHY AND MEC ECHANICS HA ANICS OF LOBB OBBYING BYIING _____________________ _____________________ 2C Credits redits 11.5 .5 P Professional rofessionall Prac Practice; tice; .5 Eth Ethics ics _______________________ _____________________ Tuesday, Tuesday, N November ovember 118 8 Sign Sign-in -in 55:30 :30 p.m p.m.; .; 6 - 8 p.m. p.m. Buuffet Buffet Em Empire pire N National ational B Bank ank Sponsored Sp onsored by PA ANELISTS NEL N IST TS Dav David id Sc Schwartz, hwartz, Esq. G erstman Sc Gerstman Schwartz hwartz & Malito Malito LLP G Garden arden C City ity Robert Robert A A.. M Malito, alito, Esq. G erstman Schwartz Gerstman Schwartz & Malito Malito LLP G arden C ity Garden City A Assemblyman ssemblyman Ch Charles arles D D.. L Lavine avine 13th Assembly Assembly Di District strict Se Senator nator Car Carll L. M Marcellino arcellino 5th Senate Senate Di District strict ODERATOR DER RATOR MO Bra dley L. G erstman, Esq. Bradley Gerstman, G erstman Sc hwartz & Malito Malito LLP Gerstman Schwartz G arden C ity Garden City INTRODUCTIONS NTRODUCT ONS Steven JJ. Eisman, Eisman Esq Steven Esq. Abrams Fensterman Fensterman Fensterman Fensterman eett aal Abrams Lake Su ccess Lake Success AVO VOIDING V OIDING ET THICAL HIC CAL A PR ROBLEMS O OBLEMS IN THE THE NTERNET TER RNET AGE IN With With NCBA NCBA Ethics Ethics Committee Committee _______________________ 2 Credits Credits Ethics Ethics ________________________________ ________________________________ Tuesday, Tuesday, December 2 5:30-7:30 p.m. p.m. 5:30-7:30 SPEAKERS PEAKERS AND PANEL MEMB EMBERS ERS John John Coco, Coco, Esq. Esq. Bondi Fusco Bondi Iovino Iovino & F usco Amicus Creative Amicus Creative Media Fred Cohen, Esq.. Fred C ohen, Esq CEO, CE O Amicus Amicus Creative Creative Media Kevin Kevin Kearon, Kearon, Esq Esq.. B arket Mario LP Barket Marion nE Epstein pstein & Kearo Kearon, n L LLP Omid Z areh, E sq. Omid Zareh, Esq. Weinberg Zareh LP Zareh & Geyerhahn Geyerhahn L Weinberg LLP DEAN EAN¶S HOUR SEMIN EMINARS NARS NA ASSAU SSAU¶S SUPP SSA UPPORT OR RT MA AGISTRATES GISTRA ATES TEL ELL L AL LL L A WIILD LD LEG EGAL GAL RIDE IDE SUP UPPORT PORT PR ROCEEDINGS OCEEDIINGS IN FAMIL AMILY LY COUR OURT RT 1DVVDX¶V0LVGHPHDQRU':, 1 DVVDX¶V0LVGHPHDQRU':,, Fo orrfeiture PProgram rograam Forfeiture Wi With th the NCBA NCBA Criminal Criminal La Law w& Proc Procedure edure Committee Committee ______________________ ______________________ xx S Stipulation tipulation language, language, op opt-out tt--out llanguage anguage aand nd aamendments mendments xx College College cost costss and rrelated issues: apportionment, portionment, ffinancia financial inancial aaid elated iss ues: ap id aand nd sstudent tudentt lo loans ans 1.0 1.0 Credits Credits Pr Professional ofessional Pra Practice ctice _________________ ovemb ber 113 Thursday, Thur sdaay, N November 3 12:30²2 12:30² 2:30 2 p p.m. .m. GUE UEST ST SP PEAKER EAKER Andrew Campanelli, Esq. An drew JJ.. Campan elli, E sq. Campanelli Ca mpanelli & Associates Associates Merrick Merrick MODERATOR ODERATOR Griffin, Esq. Esq. Brian Brian JJ.. Griffin, Foley Foley Griffin, Griffin, LLP tyy Garden City Garden Cit YOU CAN¶T TA AKE KE IT WIITH TH YOU Maximizing aand Maximizing nd PProtecting rotecting Ch Charitable aritable Giving Giving our L iffetime During D urinng Y Your Lifetime ______________________ ______________________ 1.5 1.5 Credits Credits Pr Professional ofessional Pra Practice ctice _______________________ _____________________ Monday, Mo ndaay, November November 117 7 12:00 1 2:00 - 2 p.m. p.m. PA ANELISTS NELISTS S Ellen SS.. IIsraelson, Ellen sraelson Marketing & Do VP Marketing Donor Relations nor R elations Jewish Communal Jewish Fund, Communal Fu nd NY Henry M Henry Montag, CFP, CL CLTC ontag, CFP TC Henry Mo Henry Montag Associates ntag A ssociates Uniondale U niondale el, Esq Ilene D Ilene D.. 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Elizabeth Elizabeth A. Bl oom Hon. Williams Ho n. Lisa Lisa W illiams Hon. Miller Ho n. Neil T. M iller Thursday, Thursdaay, N November ovember 113 3 5:30 5:30 - 8:30 p.m. p.m. n Register Registerr Now! Now! 2.5 Proffeessiio onal Practtiicc e; .5 Etth hics With W ith tth the he N NC NCBA CBA F Fam Family am milly Cou Court urrt L Law aw & Pr Procedure roocedurre Co Committee omm mmitttee November 2014 M MISS ISS THE PROGRAM? PROGR RAM? Get the CLE CLE YOU YOU NEED NEED wi with th th thee D DVD VD orr C CD D nassaubar.org 516-747-4464 747-4464 na ssaubar.org 516- 3 Credits Buffet Buf ffet Lunch Lun uncch & Discussion Dissccussion n ODERATOR RA ATOR MODE James J. Graham, Graham, Esq. Esq. Mangi Graham, raham, LLP , Westbury Westbury Mangi & G INTRODUCTIONS NTRODUCTIONS Mark Green, Esq. M ark A. G reen, E sq. Chair, Law Committee Chai r, NCBA NCBA Family Family Law Committee Earn Ear n 16 CLE CLE cr credits edits in one weekend! weekend! 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UP...WHA N November ovember 113, 3, 20 2014 14 N Nassau assau & Suffolk Suffolk Acad emies ooff L Academies Law aw & Ed ucational L aw Educational Law Co mmittees ooff tthe he Committees N assau & S uffolk Nassau Suffolk Co unty Bar County As sociations Associations 2014 ANNUAL NNUAL SCHOOL CHOOL LAW CONFERENCE ONFERENCE Mon Monday, day, December December 8 8 8:30 :30 a a.m. .m. - 3:30 p. p.m. m. Regency Regency Wind Wind Watch Watch Hotel Hotel (Motor (Motor Parkway, Paarkway Hauppauge) Hauppaauge) Bre Breakfast akffast 8 aa.m.; m Disc Discussion ussion 88:15-9:15 15 9 15 aa.m. m RESENTER PRESENTER Haro d L Deiters IIII II Harold L. Deiters CPA/ABV/CFF CFE, CFE MAFF, MAFF Partner Partner CPA/ABV/CFF, Baker Tilly T y Virchow V rchow Krause Krause LLP, LLP Me v e Baker Melville MODERATOR ODER ER RATOR M ichae A arkowitz Esq Michael A. M Markowitz, Esq. M chae A w tz P C H ew ett Michael A. 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RYAN, JR. Licensed to Lie By: Sidney Powell Brown Brooks Publishing Group, 2014 Hardcover, 456 Pages List Price: $35.00 ISBN-13: 9781612541495 Photo by Hector Herrera Licensed to Lie, by Texas attorney Sidney Powell packs a loaded gun aimed at federal prosecutors who treasure winning high profile cases over their ethical and legal obligation to turn over evidence favorable to defendants-- evidence that might jeopardize their victories that catapulted their careers into the highest levels of the White House and Department of Justice. This book should be a required onthe-job reading for prosecutors, as well as judges, lawyers and those concerned with the integrity of the criminal justice system. Billed as “Exposing Corruption in the Department of Justice,” Powell – a highly regarded and seasoned appellate practitioner in the Fifth Circuit – rests her case on the prosecution of the U.S. Senator Ted Stevens, a World War II hero and legend in Alaska whose jury verdict of “guilty” was vacated “with prejudice” because of the prosecution’s failure to turn over to Stevens defense team evidence of his innocence. Building on the Stevens case, Powell exposes the misdeeds of the Enron Task Force prosecutors for their “annihilation” of the prestigious accounting firm Arthur Andersen LLP and the wrongful prosecution of officers of the investment firm Merrill Lynch. Andersen was the accounting firm for Enron, and Merrill Lynch, a $7 million investor in one of Enron’s “energy trading” ventures. The Enron Task Force was born out of Enron’s declaration of bankruptcy in December 2001, which caused havoc throughout the stock market and inflicted tremendous financial pain upon investors and the economy. Enron, the seventh largest company in the United States with a $400 billion dollar annual revenue based in Houston, Texas, was suspected of “cooking its books” in order to mislead the investing public as to its precarious health. President George Bush vowed “to ferret out and prosecute ‘those white-collar crooks.’” To fulfill the President’s directive, the Department of Justice, according to Powell, assembled a team of the most aggressive prosecutors it could find. One member of the team later rose to counsel in the President Obama White House, and another, to Deputy Director and Counsel to the FBI. Powell opens the book with a chilling account of how a federal prosecutor in the Sen. Stevens case committed suicide at 37 years of age. He went to the basement of his home, slashed his left wrist with a razor blade, and watched the blood run down his hands and – when he realized it would take more – hung himself with a heavy-duty power cord. This occurred while he was a target of an investigation ordered by United States District Judge Emmet G. Sullivan (District of Columbia) to determine whether he and others of the prosecution team should be charged with contempt for violating the Judge’s prior orders to produce Brady material that favorable to Senator Stevens defense. Throughout the book Powell extols Judge Sullivan for his courage and proactive steps to prevent, as well as sanction, pros- ecutorial misconduct. “Corruption,” Powell claims, is the willful non-disclosure of evidence and information favorable to the defendants by ambitious federal prosecutors who bear the highest academic credentials and, seizing on their “victories,” ascended to the highest positions in our government. Described as a “legal thriller,” Powell offers a rare insight to the pain impacted on the personal lives of the defendants and their families – including one defendant who was forced to serve jail time in a maximum security prison after the prosecution persuaded the Court of Appeals to deny a stay of surrender before the Fifth Circuit would later acquit the defendant for insufficient evidence. Powell’s theme seems to be fully supported by court decisions. The Supreme Court threw out the Arthur Andersen conviction because, according to Powell, the same federal prosecutor at the Enron Task Force had induced the Andersen trial judge to offer a jury instruction that eliminated the essential element of “criminal intent.” Powell shows the adverse impact of the prosecutors’ misdeeds: Arthur Anderson “was destroyed the minute it was indicted” and inflicted an “unnecessary toll” upon 85,000 Anderson families. The Ninth Circuit ordered new trials in the prosecution of two Alaska state legislators because the same prosecution team in the Senator Stevens’ case suppressed favorable evidence concerning the credibility of See LICENSED TO LIE, Page 17 Nassau Lawyer n November 2014 n Taking the Fifth in a Civil Deposition Our office represented a petitioner in a discovery proceeding (i.e., replevin) in Surrogate’s Court. During the deposition of a witness believed to be in wrongful possession of estate assets, the following Q & A exchange occurred:1 Q: In your capacity as a manager, after Mr.***died, do you know where the proceeds from sales by the store were deposited? A: Yes. Q: Did they continue to be deposited in the *** Savings Bank account of ***? A: They were from the time of his death until December, end of December 2008. Q: Did a change come about at the end of December of 2008? A: On advice of my counsel, I decline. Q: You decline to answer? A: To answer the question. Q: Would you or your counsel state what the basis is for the refusal to answer? A: (Response provided by counsel for ***) My client is exercising his Fifth Amendment privilege against self-incrimination. Due to the critical nature of the line of questioning, the deposition was suspended pending a ruling. In a subsequent motion, we asked the court: (1) to direct the resumption of the examination; (2) to direct the witness to answer the question posed; and (3) for the alternative relief of an in camera hearing before the court to determine whether the privilege against testifying was properly asserted. The underpinning of the motion was 22 NYCRR § 221.2, governing witness refusals to answer: A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is TITLE IX ... Continued From Page 3 minimize the burden on the complainant.16 For example, the complainant generally should not be compelled to move out of her dorm in order to avoid contact with the accused. These competing principles raise a question: how is an institution supposed to balance its obligations under Title IX to timely respond to a claim of sexual misconduct and provide well-established protections for the complainant, while at the same time, afford proper due process rights to the accused student? The stakes are high all around as both the courts and the Department of Education struggle to find an answer to this question. In the meantime, and at an increasing rate, students who have been accused of sexual misconduct are suing their institutions under Title IX, while complainants use the same statute to sue their institutions for allegedly failing to properly investigate claims of sexual assault. Accused students have already filed claims against Vassar College, the University of Michigan, the University of Massachusetts Amherst, Duke 15 plainly improper and would, if answered, cause sigthe assertion of his Fifth Amendment privilege in nificant prejudice to any person. An attorney shall response to questions posed to him during his deposinot direct a deponent not to answer except as protion, by opposing counsel. vided by CPLR Rule 3115 or this subdivision. Any A witness in a civil proceeding was not entitled to refusal to answer or direction not to answer shall be have questions submitted to him in advance in order accompanied by a succinct and clear statement of that he might decide which questions to answer and the basis therefor. If the deponent does not answer which questions he would decline to answer on the a question, the examining party shall have the right basis of his right against self-incrimination.8 to complete the remainder of the deposition. In an interesting twist on the prevailing doctrine in The witness invoked the privilege another case, an examining party at a depoagainst self-incrimination in his refusal to sition sought to compel the witness’ testimoanswer. The attorneys in the room knew ny by seeking a protective order from the that a refusal was usually based on the trial court purporting to limit access by the privilege against testifying as to confidenprosecutor’s office to the compelled testimotial communications, such as attorneyny. The court held that the testimony could client privilege. It was a rare event when a not be compelled on that basis, since it witness “pled the Fifth” in a routine civil would constitute an improper contravention action. The U.S. Constitution does not ordiof one’s Fifth Amendment rights. The pronarily appear in court in proceedings to tections of a civil protective order, said the recover money only. court, “are not co-extensive with those of the I say ordinarily, because sometimes it Fifth Amendment.9 does. Actually, New York State has its own Finally, the U.S. Supreme Court weighed counterpart to the Fifth Amendment priviin on the issue in Pillsbury Company v. Donald J. lege against self-incrimination, containing Conboy, in holding that a deponent’s civil Farinacci identical language. Its scope is not particudeposition testimony, repeating verbatim or larly narrow – for the privilege will apply even when closely tracking his prior immunized testimony is not, prosecution is merely possible, though not definite.2 without duly authorized assurance of immunity at the Under CPLR 4501, however, a competent witness is time, “immunized testimony” within the meaning of not excused solely on the grounds that the answer its use in the immunity statute and, therefore, may may tend to establish that he owes a debt or could be not be compelled over a valid assertion of deponent’s subject to a civil lawsuit. Nevertheless, he is not Fifth Amendment privilege.10 required to give an answer tending to be self-accusaIn our office’s case, the deposition was ordered tory of a crime.3 resumed and the witness directed to answer the quesMoreover, the answer, to be privileged, must tend tions previously posed. The decision to “take the Fifth” to prove that the witness is guilty of a crime of which in a civil suit should be weighed very carefully. If the witness is not yet a respondent, taking the Fifth may he might be convicted.4 While the mere possibility of a conviction is enough send a clear signal that he should be. to sustain the privilege, this is subject to a rule of rea- Donald J. Farinacci is the Estates and Trusts Partner at the son. If the possibility is so remote as to be out of the Mineola law firm of Bee Ready Fishbein Hatter & Donovan, ordinary in a court of law, it provides an insufficient LLP, 170 Old Country Road, Suite 200, Mineola, New York basis for raising the privilege.5 11501 (516) 746-5599. He is also a former chair of the Nassau A witness is not permitted to refuse to answer per- County Bar Association Surrogate’s Court Committee, and a tinent questions on his mere assertion that the fellow of the American College of Trust and Estate Counsel. answer might tend to incriminate him, as it is always 1. Names of entities and individuals have been omitted. for the court to determine whether there is substance 2 See NY Const., Articles 1 & 6; CPLR 4501; People v. Reiss, 255 A.D. 509 (1st Dept. 1938). to such claim by a witness.6 Each assertion of the priv- 3 Id.; In re Rouss, 221 N.Y. 667 (1917); Busshart v. Park, 112 ilege against self-incrimination rests on its own cirA.D.2d 787 ( 4th Dept., 1985); Rolnick v. Rolnick 46 Misc.2d 1012 (Sup. Ct., Kings Co. 1965). cumstances. Blanket assertions of the privilege are 4. Doyle v. Hofstader, 257 N.Y. 244 (1931). not permitted.7 5. Brill v. Dodd, 36 N.Y.S.2d 975 (Sup. Ct., Kings Co. 1942). In our particular case, the court granted the motion 6. In re Cappeau, 198 A.D. 357 (1st Dept. 1921). to question the witness, in camera, to determine the 7. Agnello v. Corbisiero, 177 A.D.2d 445 (1st Dept., 1919). validity of his Fifth Amendment assertion. 8. National Life Insurance Co. v. Hartford Accident & Indemnity Co., 615 F.2d 595 (3rd Cir.1980). Whereupon, after hearing the proposed testimony of 9. Andover Data Services v. Statistical Tabulating Corporation, 876 the witness, the court ruled that the possibility of the F.2d 1080 (2nd Cir.1989). witness being prosecuted was too remote to support 10. Pillsbury Company v. Conboy, 459 U.S. 248 (1983). University and a host of other campuses.17 Many of these complaints allege that the accused students were not afforded fair hearings and that their institutions grossly violated their respective due process rights.18 A number of these complaints also state that the “presumed guilty” mindset that many colleges and universities maintain has resulted in serious miscarriages of justice for accused students.19 When properly implemented, Title IX shields students and guides institutions on how to maintain a safe campus environment. At the same time, Title IX can be, and currently is, being used as a sword (by both victims and accused students) in an effort to punish institutions for improperly responding to claims of sexual misconduct. Especially during this new era of Title IX enforcement and attention by the federal government, institutions must keep a close eye on the course of this federal law, as the ever-changing climate has the ability to have practical as well as legal implications for all colleges and universities. James G. Ryan is the Partner-In-Charge of the Commercial Litigation and Education Litigation Department at Cullen and Dykman LLP. Cynthia A. Augello and Hayley B. Dryer are both Associates at Cullen and Dykman LLP and current members of the NCBA Education Law Committee. 1. 20 U.S.C. §1681 et seq. 2. https://aclu-wa.org/sites/default/files/attachments/WA-specific%20Sexual%20Assault%20KYR.pdf (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 633 (1999)). 3. www.whitehouse.gov/sites/default/files/dear_colleague_ sexual_violence.pdf 4. www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html 5. Id. 6. See Cannon v. University of Chicago, 441 U.S. 677 (1979) (holding that an individual has a private right of action under Title IX). 7. www.whitehouse.gov/sites/default/files/docs/report_0.pdf 8. www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf 9. www.insidehighered.com/sites/default/server_files/files/ Bill%20text(1).pdf 10. www.huffingtonpost.com/2014/10/15/colleges-federal-investigation-sexual-assault_n_5990286.html 11. www.nytimes.com/2014/07/13/us/how-one-college-handled-asexual-assault-complaint.html 12. See, e.g., http://washington.cbslocal.com/2013/12/17/reportmale-students-use-title-ix-discrimination-laws-to-fight-campus-sexual-assault-claims/ 13. www2.ed.gov/about/offices/list/ocr/letters/colleague201104.pdf 14. www.whitehouse.gov/sites/default/files/dear_colleague_sexual_violence.pdf 15. www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf 16. Id. 17. www.latimes.com/local/la-me-sexual-assault-legal-20140608story.html#page=1 18. Id. 19. Id. 16 n November 2014 n Nassau Lawyer NCBA Committee Meeting Calendar • Nov. 15 - Dec. 15, 2014 Questions? Contact Stephanie Pagano (516) 747-4070 spagano@nassaubar.org Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change. Monday November 17 Attorney/Accountants 12:30 p.m. Neil D. Katz Young Lawyers 6:30 p.m. Andrea Brodie Thursday November 20 Women In The Law 12:30 p.m. Barbara Gervase/Amy Hsu Civil Rights 12:30 p.m. Jason Starr Tuesday November 18 Education Law 12:30 p.m. Douglas Libby Veterans & Military Law 12:30 p.m. Edward Cunningham Defendant’s Round Table 12:30 p.m. William Croutier, Jr. Municipal Law 12:30 p.m. Liora Ben-Sorek/Lisa Cairo Tuesday November 25 Elder Law Social Services & Health Advocacy 6:00 p.m. Moriah Adamo/Paul Hyl Wednesday November 19 District Court 12:30 p.m. Mitchell Hirsch Commercial Litigation 12:30 p.m. Kevin Schlosser Wednesday November 26 Appellate Practice 12:30 p.m. Richard Langone Continued From Page 5 OML. The Committee for Open Government has stated in an advisory opinion that, “When an exemption applies, the [OML] does not, and the requirements that would operate with respect to executive sessions are not in effect.”10 In addition to the reasons set forth in the OML, additional authority is given to school district audit committees to conduct an executive session. Specifically, Education Law § 2116–c authorizes such an executive session to allow the audit committee to “meet with the external auditor prior to the commencement of the audit;” to “review and discuss with the external auditor any risk assessment of the district's fiscal operations;” and to “receive and review the draft annual report and accompanying draft management letter and, working directly with the external auditor, assist the trustees or board of education in interpreting such documents.” Once a determination is made that a particular matter may be properly addressed in executive session, the public body must then follow a specific procedure prior to commencing an executive session. First, a motion must be made during a public meeting, and adopted by a majority vote of the total board membership, to enter into executive session.11 That motion must identify the subject or subjects to be considered during the proposed executive session.12 Unfortunately, although the OML requires that such a motion be made, it fails to provide any guidance as to how the specific motion should read. Hospital & Health Law 8:30 a.m. Geoffrey Kaiser/Kevin Mulry Women In The Law 12:30 p.m. Barbara Gervase/Amy Hsu Community Relations & Public Education 12:45 p.m. Adam D’Antonio Alternative Dispute Resolution 12:30 p.m. Elizabeth Donlon Association Membership 12:45 p.m. Marc Gann/Geoffrey Prime Young Lawyers 6:30 p.m. Andrea Brodie Matrimonial Law 5:30 p.m. John P. DiMascio, Jr. Monday December 8 Adoption Law 12:30 p.m. Frederic Wool However, it has been recently illustrated that simply reciting the language of the statute is insufficient. In Zehner v. Board of Education of the JordanElbridge Central School District,13 the court found that a board of education violated the OML by entering into executive session based upon a motion that amounted to only “merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so.” Furthermore, although the motion to convene an executive session may seem like a formality, it should not be viewed as a foregone conclusion. The OML requires that the motion and vote take place at the open meeting during which the executive session is to take place. Accordingly, the executive session cannot be scheduled in advance.14 However, it is permissible to place a notation on the meeting agenda that there will be a “proposed executive session, subject to board approval,” or that the public body “anticipates that the board will act upon a resolution to convene an executive session.”15 Although “technically” a public body cannot schedule an executive session in advance of a meeting, a board may provide notice of an “intent to enter into an executive session as an appropriate way of alerting the public that an executive session is likely to be held (rather than scheduled), and implicitly, that there may be no overriding reason for arriving at the very beginning of a meeting.”16 Also, because the OML specifically defines an executive session as “that portion of a meeting not open to the general public” an executive session may not be held prior to the beginning of a public meeting.17 Once an executive session has been Plaintiff’s Round Table 6:00 p.m. Terrence Tarver Tuesday December 9 Technology & Practice Management 8:00 a.m. John P. Whiteman, III Corporation, Banking, & Securities Law 8:30 a.m. Michael Weiner Environmental Law 12:30 p.m. Kenneth Robinson Labor & Employment 12:30 p.m. Jeffrey Schlossberg Real Property Law 12:30 p.m. Kevin McDonough/Mary Mongioi MEETINGS ... Wednesday December 10 Friday November 21 Senior Attorneys 12:30 p.m. Charles E. Lapp, III Plaintiff’s Round Table 6:00 p.m. Terrence Tarver Thursday December 4 Thursday December 11 General/Solo/Small Firm Practice 12:30 p.m. Gary Port Publications 12:45 p.m. Christopher DelliCarpini * Committee Chairs and Co-Chairs denoted in Italic. properly called, the type of business a public body may actually conduct is limited. Although the Committee for Open Government has previously expressed its opinion that most public bodies may take action during an executive session, this does not apply to school boards.18 In fact, the general rule is that a school board may not take action in an executive session.19 This limitation has one notable exception. School boards are permitted to discuss disciplinary charges against a tenured teacher, and vote on whether probable cause exists to commence disciplinary charges against that employee.20 The OML, and in particular those aspects of the law that pertain to executive sessions are easily overlooked by public bodies. However, the failure to adhere to these provisions can result in needless litigation, expense, and public embarrassment. Accordingly, pubic bodies should familiarize themselves with the provisions of the OML and consult with their attorneys to ensure that OML violations are avoided. Laura Ferrugiari is a partner, and Joseph Lilly is an associate at the law firm of Frazer & Feldman, specializing in the field of Education Law. 1. Pub. Off. L. § 100. 2. Pub. Off. L. § 103(a). 3. Id. 4. Pub. Off. L. § 107(3). 5. Pub. Off. L. § 107(1). 6. Id. 7. Pub. Off. L. § 107(2). 8. A complete list of those matters for which an executive session may be called can be found at Pub. Off. L. § 105(a)-(h). 9. Pub. Off. L. § 108. 10. OML–AO–5265. 11. Pub. Off. L. § 105(1). 12. Id. 13. Zehner v. Board of Education of the JordanElbridge Central School District, 91 A.D.3d 1349 (4th Dept. 2012). 14. OML-AO-4889. 15. OML-AO-2426. 16. OML-AO-4889. 17. Id. 18. OML-AO-2209. 19. Matter of Crapster, 22 Ed. Dept. Rep. 29. 20. Education Law § 3020(a). Sanna v. Lindenhurst Bd. of Educ., 85 A.D.2d 157 (2d Dept. 1982); aff’d 58 N.Y.2d 626 (1987). NCBA New Members We welcome the following new members Attorneys Gillian Ballantine-Alman Wendy Kim Chaite James M. Tsimis Ronald S. Zimmer Students Jeffrey Anand Constance J. Christie Kristen D’angelo Joseph J. Karlya III Joanna Lima Jorge L. Macias Sean J. McGowan Patricia Y. Medina Chibogu Nneka Nzekwu Evan Rabinowitz Richard Wolf In Memoriam Hon. John B. Pessala Nassau Lawyer BULLYING ... Can a school district’s failure to address bullying amount to a denial of FAPE? The question then becomes, what is a school required to do to stop bullying of students with disabilities? School districts and schools are obligated under the Individuals with Disabilities Education Improvement Act (IDEIA) to provide a FAPE to all children with disabilities that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living.10 The “IDEIA provides procedural and substantive safeguards for special education students with respect to the education programs tailored to them.”11 To meet the IDEIA requirements, school districts in New York must provide “a program with special education and related services tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.”12 The Individualized Education Plan (IEP) is the tool by which a school administers those services and Committees on Special Education (CSE) develop those IEPs. The court in Walczak v. Florida Union Free School District states that the CSE is “required to consider four factors in developing a student’s IEP: (1) Academic achievement, (2) Social development, (3) Physical development, and (4) Managerial or Behavioral needs.”13 This being said, the ultimate question is whether bullying can be a basis for a denial of FAPE claim in New York. The USDOE has required schools to be responsible for addressing bullying incidents for the past several years whether they knew, or should have known, about these incidents. The court in T.K. states the rule to be followed by school districts when responding to bullying incidents: (1) schools must take prompt and appropriate action (2) investigating whether the reported harassment occurred, and (3) if the harassment is found to have occurred the school must take “appropriate steps to prevent it in the future.”14 Therefore, the court in T.K. did not impose a new standard on schools. They merely repeated the standard required by the USDOE.15 In order to find a denial of FAPE the bullying of the student with disabilities must have limited or denied the student’s ability to participate in or benefit from the school district’s educational plan. The court in T.K. states that it is “not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying November 2014 n 17 engages in bullying behavior. It states that the “IEP Team should review the student’s IEP to determine if additional supports and services are needed to address the inappropriate behavior,” and, “consider examining the environment to determine if changes to the environment are warranted.” This would include instituting or amending a behavior intervention plan and providing additional counseling or other services.21 Continued From Page 3 Eastern District of New York, T.K. v. New York City Department of Education gives an extensive explanation of bullying and its effects on students with disabilities.4 In this case the Court states that overall studies have shown that students with disabilities are “less popular, have fewer friends and struggle more with loneliness” than their typically developing peers, leaving them more vulnerable to bullying and harassment and less likely to form healthy peer relationships.5 Students with learning disabilities and students with Asperger’s Syndrome often lack social awareness, and have a difficult time processing and interpreting social cues, leaving them more vulnerable to bullying and harassment as a result.6 Massachusetts has adopted the strongest statute among the States that requires that a student’s Individualized Education Plan (IEP) address the skills needed to avoid bullying whenever an evaluation indicates that a child has a disability that will leave them vulnerable to bullying.7 Since studies have shown that students who are victims of bullying in school have no other escape than to avoid going to school, it is the school’s responsibility to immediately respond to incidents they know of, or should know of, to prevent the victim from regressing academically which can result in a denial of a free and appropriate public education (FAPE) and liability for the school district. The court in T.K. points out that “being the victim of bullying is related to sliding grades, absenteeism, poor academic achievement, being lonely, exhibiting withdrawal behaviors, difficulty acting assertively or being aggressive.”8 The court further points out that students who struggle academically are more likely to be “victims or bully-victims, which is defined as a student who is both a victim and a bully at different times.”9 n What steps should a school district take to properly address incidents of bullying? need not be a reaction to or related to a particular disability.”16 The court provides a test to determine whether a denial of FAPE has occurred; the parents must provide evidence that: (1) the student was a disabled student who was the victim of harassment from peers; (2) the parents must show evidence that the school was given notice of the harassment; (3) the school district failed to take reasonable steps to address the harassment; and (4) the student was denied some educational benefit as a result.17 The court further states that, as per the USDOE Reminder Letter in 2000, a student is not required to prove that he or she was denied all of her educational benefit but merely that he or she may suffer adversely as a result of the bullying.18 The court goes on to say that “a child may achieve substantial educational gains despite the harassment and yet still may have been seriously hindered … whether the bullying rose to this level is a question for the fact finder.”19 The court addressed an example of bullying that would amount to a denial of FAPE which was presented by the USDOE in its Bullying and Harassment letter from 2010: “A hypothetical student with a disability is verbally teased by other students and on one occasion is tackled, hit with a binder, and has his personal affects thrown in the garbage. The student approaches teachers and guidance counselors who suggest counseling, but they do nothing to punish the bullies. The bullying then continues and the student, who was once doing well, begins showing the signs of victimization at the hands of other children. The school in this hypothetical responded in part to the bullying, in offering the student counseling to deal with what he was going through. But it did not respond adequately. It did not fully investigate the bullying or punish those who were perpetrating the harassment. In this example, the school deprived the student of his educational benefit.”20 In the 2013 Dear Colleague Letter, USDOE addresses the situation where the student with a disability LICENSED TO LIE ... Continued From Page 14 its key prosecution witness in both trials. The Fifth Circuit threw out all but two counts based upon Powell’s appellate advocacy for a Merrill Lynch defendant where she argued there was blatant suppression of favorable evidence of innocence. Four years after the trial, the successor prosecutors produced a disk containing the former prosecutors’ notes of interview of witnesses favorable to the defense that Powell describes as “plainly suppressed.” The suppressed notes are reproduced in the book, including the prosecutor’s yellow highlighted witness statements which supported the defense claim at trial that Merrill made a good faith investment in the Enron energy venture and did not assist Enron in “cooking its books.” Powell was eventually successful in ending her client’s nightmare by a sentence of “time served” – jail time her client served before the Fifth Circuit’s decision ordered a new trial on the counts not dismissed. A Dear Colleague Letter from the Office of Civil Rights in 2010 lists the appropriate steps for school districts to follow.22 The list includes, but is not limited to, providing counseling for the victim and/or the bully, separating the bullying and the victim, taking disciplinary action against the bully, providing sensitivity training to both the bully and the larger school community and issuing new policies against bullying. Subsequent to the decision in T.K., New York enacted the Dignity for All Students Act, (DASA), which amends Education Law § 801–a and incorporates many of the elements set forth in the T.K. decision. Committees on Special Education must address the impact of bullying on the special education student in the IEP in order to ensure that the student is receiving a free and appropriate public education. Thus, New York schools and school districts have an affirmative duty to ensure that students with disabilities as well as general education students are protected from bullying. Saundra M. Gumerove, a Special Needs Attorney with Saundra M. Gumerove, Esq., P.C., represents and works with individuals with disabilities and their families on a wide range of issues. She is Vice Chair of the NCBA Elder Law, Social Services and Health Advocacy Committee, and a member of the NCBA Education Law Committee Patricia Craig is a Special Needs and Special Education associate at Saundra M. Gumerove, Esq. P.C. in Jericho and is a member of the NCBA Education Law Committee. 1. (USDOE 2000). 2. OSERS/OSEP Dear Colleague Letter, 61 IDELR 263 (2013). 3. stopbullying.gov 4. T.K. v. New York City Dept. of Educ., 779 F. Supp. 2d 289 (E.D.N.Y 2011). 5. T.K. at 303. 6. Id. at 303-305. 7. Id. at 303-304. 8. T.K. at 304 quoting Gayle L. Macklem, Bullying and Teasing: Social Power in Children’s Group 42-47 (2003) at 68. 9. T.K. at 305 quoting Gwen M. Glew, et. al. Bullying, Psychological Adjustment, and Academic Performance in Elementary School, 159 Archives of Pediatric and Adolescent Med. 1026, 1026 (2005) at 1030. 10. 20 USC 1400(d) §300.1(a). 11. T.K. at 309. 12. Id. quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119,122 (2d Cir. 1998). 13. Walczak at 123. 14. T.K. at 317. 15. Id. at 316. 16. Id. at 317. 17. Id. at 317-318. 18. Id. at 318, quoting US Dept. of Educ., Reminder of Responsibility under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, July 25, 2000. 19. Id. at 318. 20. T.K. at 317 (quoting USDOE Bullying and Harassment Letter, October 2010). 21. OSERS/OSEP Dear Colleague Letter, 61 IDELR 263 (2013). 22. OCR Dear Colleague Letter, 55 IDELR 174 (Oct. 2010). Few escape Powell’s fury, including numerous federal judges (other than Judge Sullivan), the DOJ Office of Professional Responsibility and the various bar associations who “have abdicated all responsibility regarding violations by these high-profile lawyers and prosecutors in general.” Powell describes U.S. District Judge Erwin Werlein, Jr. (Southern District of Texas), who presided at the Merrill Lynch trial, in the most unflattering terms imaginable. One has to wonder, as Powell admits, “whether I can continue practicing law …” given her avowed lost trust and faith in the federal system. But there is a higher calling, as Ninth Circuit Chief Judge Alex Kozinski notes in the Foreword: “One way or another, however, this book should serve as the beginning of a serious conversation about whether our criminal justice system continues to live up to its vaunted reputation. As citizens of a free society, we all have an important stake in making sure that it does.” Joe Ryan, a former federal prosecutor and defense attorney, served as Chair of the Federal Courts Committee for the Suffolk County Bar Association and the Nassau County Bar Association where he also served as President. (JoeRyanLaw.com). 18 n November 2014 n Nassau Lawyer WE CARE WE CARE Thanksgiving Day Luncheon for Seniors Thursday, Nov. 27, 2014 11:00 a.m. - 1:00 p.m. g g Happy at the Nassau County Bar Association 15th & West Streets, Mineola To recommend Seniors who are alone for this holiday or to volunteer to serve, contact: Perri Boodram (516)747-4070 WE CARE Fund of the Nassau County Bar Association and Garden City Caterers THE WE CARE FUND* Presents GINGERBREAD UNIVERSITY Saturday, December 6, 2014 2 Sessions Nassau County Bar Association 15th & West Streets, Mineola Please join us in celebrating the annual Gingerbread University Holiday Workshop, sponsored by the WE CARE Fund of the Nassau County Bar Association. Children of all Ages will delight in hours of fun and creativity, designing and decorating their very own gingerbread houses. Light refreshments will be served, and upon completion of the University’s curriculum, a diploma and degree in “Gingerbreadology” will be granted to each child. We are often imitated, but never duplicated. Enrollment is limited, so make sure to reserve your place now! *WE CARE Fund is part of the Nassau Bar Foundation Inc., the charitable arm of the Nassau County Bar Association. We Acknowledge, with Thanks, Contributions to the WE CARE Fund In Honor Of Donors Dan Bagnuola Kelli McGrath, daughter of Christopher T. McGrath, on passing the NYS Bar Exam Stephen W. Schlissel Dr. Michael Moskowitz Wedding of the daughter of Mr. & Mrs. Richard Feldman Wedding of Patricia Condon and Marc Gottlieb Vito Cannavo, passing the NYS Bar Exam the son of John Gionis, on passing the NYS Bar Exam the daughter of Mark Maguire, on passing the NYS Bar Exam Matt McDonagh, son of Michael McDonagh, on passing the NYS Bar Exam Bethany Sobol, daughter of Mike & Elizabeth Sobol, on passing the NYS bar Exam Darryn Solotoff’s receipt of the Long Beach Chamber of Commerce Professional of the Year Award Rachelle Harris Adrienne Flipse Hausch Evelyn Kirschenfeld Peter Panaro Christopher T. McGrath Christopher T. McGrath Christopher T. McGrath Christopher T. McGrath Christopher T. McGrath Hon. Denise Sher Miriam Pismeny’s Birthday Leah & Max Belfort Miriam Pismeny’s Birthday Hon. Andrea Phoenix Hon. Denise Sher Hon. Claire I. Weinberg Wedding of Leah Palley Engel to Matthew Green, daughter of Hon. Andrew Engel & Sheryl Palley-Engel Richard G. Fromewick Stephen Gassman Caryle Katz Hon. Andrea Phoenix Hon. Denise Sher Kathleen & Richard Wright Frank Yannelli, upon the dedication of the Attorney’s Lounge of the Nassau County Court from the Criminal Courts Bar Association Gale D. Berg Caryle Katz Christopher T. McGrath Grace Moran Hon. Marie G. Santagata Hon. Denise Sher Hon. Hope Schwartz Zimmerman’s receipt of the Jewish Lawyers Association – Neil Shayne Award Richard G. Fromewick Hon. Andrea Phoenix Hon. Denise Sher Hon. Elaine J. Stack & Sandy Goldsmith Donor For Speedy Recovery Hon. Peter B. Skelos Donor Hon. Thomas Feinman In Memory Of Tel#_______________Email_______________ Steven & Kathleen Eisman Steven J. Eisman & Samuel J. Ferrara Hon. Fred J. Hirsh Christopher T. McGrath Hon. Andrea Phoenix Hon. Marie G. Santagata Hon. Peter B. Skelos Hon. Claire I. Weinberg TOTAL # OF CHILDREN ATTENDING________ In Memory of Catherine N. O’Donnell, mother of Hon. Colin O’Donnell --------------------------------------------------------------- GINGERBREAD UNIVERSITY REGISTRATION Name_________________________________ Address_______________________________ City, State, Zip__________________________ Session Attending:____ 9:30 a.m. - 11:30 a.m. ____ 1:00 p.m. - 3:00 p.m. REGISTRATION FEE: $40.00 per child $45.00 “Take Out” Kit I cannot attend but enclose $_____ as a donation for the WE CARE Fund 1 1 1 TOTAL $_________ # Check Enclosed # Charge Credit Card __MC__VISA__ AMEX Name on Card______________________________________ Card #____________________________________________ Billing Address______________________________________ Exp. Date____/_____Security Code__________ Please make checks payable to and mail registration form to: WE CARE Fund 15 & West Streets, Mineola, NY 11501 Att: Gingerbread University Steven J. Eisman Adrienne Flipse Hausch Hon. Fred J. Hirsh Diana Mobley, sister of Karen Mancuso Hon. Donald R. Blydenburgh Diana Mobley, sister of Karen Mancuso Ronald Morelli Joseph Dulin, father of Tierre Jeanne Porter John D. Leonardis Ronald Morelli Irene Ida Metrick, mother of Roberta Scoll Hon. John G. Marks Kenneth L. Marten Hon. Andrea Phoenix Hon. Denise Sher In Memory of Hon. John B. Pessala, husband of Elizabeth Pessala Hon. Kenneth S. Diamond Hon. Angelo A. Delligati Steven J. Eisman Samuel J. Ferrara Hon. Carnell T. Foskey Richard G. Fromewick Stephen Gassman Marilyn K. Genoa Adrienne Flipse Hausch Caryle Katz Elaine Leventhal Hon. John G. Marks Kenneth L. Marten Christopher T. McGrath Peter Panaro Hon. Andrea Phoenix Hon. Marie G. Santagata Jerome A. Scharoff Hon. Denise Sher Hon. Michael & Barbara Solomon Hon. Peter B. Skelos Hon. Elaine J. Stack Hon. Claire I. Weinberg Kathleen Wright Checks made payable to Nassau Bar Foundation-WE CARE Contributions may be made by mail: NCBA Attn: WE CARE 15th & West Streets Mineola, NY 11501 ZERO TOLERANCE ... Continued From Page 7 constitutional challenges to zero tolerance rules have been unavailing.8 Zero tolerance rules have been found not to violate the First Amendment. To the contrary, school administrators may prohibit speech that “materially or substantially interferes with the requirements of appropriate discipline in the operation of the school,” or that would “substantially interfere with the work of the school or impinge upon the right of other students.”9 Schools may also prohibit speech that is inconsistent with their “basic educational mission,” even when the same speech may not be prohibited outside the school.10 To the extent a school is a non-public forum, its limitations on student speech need only be “reasonable and viewpoint neutral.”11 Applying these standards, school districts were found not to have violated students’ First Amendment rights by suspending a sixth grader for thirty days on the basis of a creative writing assignment “with its graphic depictions of a child brutally murdering his classmates,” or suspending an older student for approximately two months on the basis of a raciallycharged comment.12 Zero tolerance rules have also survived Fourteenth Amendment challenges. While long-term suspensions for relatively minor infractions are often alleged to be “excessive” and/or “arbitrary and capricious,” thereby violating a student’s right to substantive due process, the United States Supreme Court has held that “[o]nly the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’”13 Further, the Supreme Court has “repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”14 As a practical matter, this means that long term suspensions meted out pursuant to zero tolerance rules – including suspensions of approximately 10 months based on possession of marijuana and drug paraphernalia15 and more than one year for inciting a riot16 – have been sustained as within the school districts’ discretion.17 To the extent a student claims that he or she was denied procedural due process based upon the recognized protected right to a public education,18 such claims are likely to be successful only in cases where the student establishes that he or she failed to receive the requisite notice and opportunity to be heard as established by federal law.19 Failure to provide the requisite notice and opportunity to be heard as required by New York State Education Law §3214 will not support a federal procedural due process claim.20 Zero tolerance rules are often applied following a search of a student’s person or of his locker, raising Fourth Amendment implications. But, here, too, zero tolerance rules have passed constitutional muster. Although the Fourth Amendment applies to searches conducted by public school officials,21 school officials are afforded greater latitude with respect to such searches on the ground that they have an interest in “maintaining security and order” in their schools.22 Searches are justified where there “are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”23 In determining whether a search is reasonable, courts consider whether the search was justified at the inception and if the search “as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place.’”24 Applying this test, suspensions based upon “minimally invasive” searches (like where a student is asked to empty his pockets) were found constitutionally permissible where students acted “high,”25 smelled of marijuana,26 and where a student was in the school parking lot in violation of school rules, looked nervous, and was wiping his nose and rubbing his eyes.27 Attacks on zero tolerance rules as violating students’ equal protection rights also have proved unsuccessful. The courts have rejected such constitutional challenges either because they found that the student failed to demonstrate he or she was treated differently from other students, or, applying a “class of one” analysis, failed to establish that the school district intentionally treated the disciplined student differently from similarly situated students.28 In sum, as established by these cases, and regardless of whether they are good policy, zero tolerance rules are unlikely to be stricken on constitutional grounds. For the most part, constitutional challenges to these rules, whether they be under the First, Fourth, Fifth, or Fourteenth Amendments, have been unsuccessful. Lynn M. Brown is Of Counsel to Meyer, Suozzi, English & Klein, P.C., part of the Litigation & Dispute Resolution Department and a founding member of the firm’s Education Law practice. She routinely appears before the Committees on Special Education of numerous Long Island school districts, and in connection with impartial (due process) hearings, securing timely educational evaluations, services and accommodations for learning-disabled children under federal and state law. 1. American Psychological Ass’n Zero Tolerance Task Force Report: “Are Zero Tolerance Policies Effective in the Schools? An Evidentiary Review and Recommendations” (Aug. 9, 2006) at 2, 19; Blumenson, E. & Nilsen, E.S., “One Strike and You’re Out? Constitutional Constraints on Zero Tolerance in Public Education,” 81 Wash. U.L.Q. 65 (Spring 2003) at 65-66. 2. For example, the Garden City School District Code of Conduct (posted on its website) subjects students to discipline for: “possessing a weapon or other object which is not necessary for school activities and which could be used as a weapon;” “possessing, consuming, selling, distributing or exchanging alcoholic beverages or illegal substances, or being under the influence of either,” and “indecent exposure, that is, exposure to sight of the private parts of the body in a lewd and indecent manner.” Garden City Public Schools Code of Conduct, Section 5300.25 at D(3) and E.(12) and (15). 3. Blumenson, supra n.1, at 69. 4. Cohn v. New Paltz Cent. Sch. Dist., 363 F.Supp.2d 421, 436 (N.D.N.Y. 2005), citing Matter of Rodriguez, 8 Ed.Dept. Re. 214, 216-17.. 5. American Psychological Ass’n Zero Tolerance Task Force Report, supra n.1, at 19. 6. Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S.503, 506 (1969). 7. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986). 8. See J.E. ex rel. Edwards v. Center Moriches Union Free Sch. Dist., 898 F.Supp.2d 516, 538 (E.D.N.Y 2012) (“[t]he threshold for establishing a constitutional tort in a school environment is high”). 9. Tinker v. Des Moines Indep. Comty. Sch. Dist., supra, 393 U.S. at 503; D.F. ex rel. Finkle v. Board of Educ. of Syosset Cent. Sch. Dist., 386 F.Supp.2d 119, 125 (E.D.N.Y. 2005), citing, Smith v. Mount Pleasant Pub. Sch., 285 F.Supp.2d 987, 993 (E.D. Mich. 2003). 10. Fraser, 478 U.S. at 685. 11. Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004). 12. DeFabio v. East Hampton Union Free Sch. Dist., 623 F.3d 71, 7780 (2d Cir. 2010). 13. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998), quoting Collins v. Harker Heights, 503 U.S.115, 129 (1992). Nassau Lawyer n November 2014 n 19 14. Tinker, 393 U.S. at 507. 15. Binder v. Cold Spring Harbor Cent. Sch. Dist., No. CV 094181(SJF)(ARL), 2010 WL 3257708 at *7 (E.D.N.Y. Jul. 19, 2010)(Report & Recommendation). 16. J.E. ex rel. Edwards, 898 F.Supp.2d at 537-42. 17. See also DeFabio, 623 F.3d at 80-83 (School District’s decision to expel student for the remainder of school year was not arbitrary or irrational); D.F. ex rel. Finkle, 386 F.Supp.2d at 127 (sustaining 30 day suspension); Cohn, 363 F.Supp.2d at 434 (“Plaintiff’s conversing with fellow students about handguns and subsequently obtaining possession of a handgun constituted a ‘material and substantial disruption of the educational process’ worthy of [several month] suspension”). But see Biswas v. City of New York, 973 F.Supp.2d 504 (S.D.N.Y. 2013) (declining to dismiss substantive due process claim against Board of Education defendants because the court treated as true, for purposes of the motion, plaintiff’s claim that the defendants knowingly suspended her on the basis of fabricated evidence). 18. Goss v. Lopez, 419 U.S. 565, 576 (1975). 19. See DeFabio, 623 F.3d at 80 (holding that the procedures afforded plaintiffs in connection with the student’s initial and long term suspensions satisfied student’s due process rights); D.F. ex rel. Finkle, 386 F.Supp.2d at 126-27 (student’s due process rights were not violated; notice of charges were sufficiently specific, his hearing was held on adequate notice; and he presented a defense with counsel, even of the identity of the students who testified against him). 20. Mac Ineirghe v. Bd. of Educ. of E. Islip Union Free Sch. Dist., No. 05 Civ. 4324(JFB)(AKT), 2007 WL 2445152 at *19 (E.D.N.Y. Aug. 22, 2007) (plaintiffs’ due process rights were not violated; “[a]lthough plaintiffs were not afforded the process described under N.Y. Educ. Law §3214, plaintiffs were afforded the process due under the Constitution”). 21. Binder, 2010 WL 3257708 at *5. See Phaneuf v. Fraikin, 448 F.3d 591, 597 (2d Cir. 2006) (“as the intrusiveness of the search of a student intensifies, so too does the standard of Fourth Amendment reasonableness),” quoting Cornfield by Lewis v. Consol. High Sch. Dist., No. 230991 F.2d 1316, 1321 (7th Cir. 1993). 22. New Jersey v. T.L.O., 469 U.S. 325, 340. (1985). 23. Id. at 342. 24. Binder, 2010 WL 3257708 at *5 (quoting New Jersey v. T.L.O., 469 U.S. 325, 341 (1985) quoting Terry v. Ohio, 392 U.S. 1, 20 (1967)). 25. Faber v. Monticello Cent. Sch. Dist., No. 10-CV-01812 (ER), 2013 WL 2450057 (S.D.N.Y. June 6, 2013). 26. Binder, 2010 WL 3257708. 27. Mac Ineirghe, 2007 WL 2445152 at *10. 28. J.E. ex rel. Edwards, supra, 898 F.Supp.2d at 548-550; DeFabio v. East Hampton Union Free Sch. Dist., 658 F.Supp.2d. 461, 494-97 (E.D.N.Y. 2009), aff’d, 623 F.3d 71 (2d Cir. 2010). But see Cohn, 363 F.Supp.2d at 439 (declining to dismiss equal protection claim on motion pursuant to Fed.R.Civ.P. 12(c)). 20 n November 2014 AUTISM ... n Nassau Lawyer Continued From Page 7 is only the first step. IDEA requires every state to issue regulations that guide the implementation of the federal law within the state. At a minimum, state regulations must provide all of the protections contained in IDEA. Some states may have additional requirements that go beyond the federal law. Many states offer handbooks or guides to help parents understand these statespecific policies and procedures.4 IDEA states that children with autism and other disabilities are entitled to a free and appropriate education (FAPE) in the least restrictive environment (LRE). Unfortunately, they do not incorporate a clear definition of inclusion and this grey area leaves parents at the mercy of school districts with their own ideas about what are the appropriate educational methods for these special kids. At the district level, what passes for “policy” is too often a one-page memo that leaves educational policy as an ad hoc process without any clear cut methodology. It is important that parents and advocates understand that IDEA provides specific procedural safeguards to help parents advocate for their child’s educational well-being. It promotes parents’ involvement in the education of their child and gives them the necessary tools to be key decision makers. The federal law allows parents to participate in all meetings concerning their child, examine their child’s school records, request an independent evaluation and agree or disagree with placement decisions. The first step towards more successful policy implementation is the existence of a strong cohort of engaged parents to help motivate school officials to follow the legal guidelines. The irony is that the districts on Long Island are trying to make things better. Their approach, however, is too often a one size fits all policy that is attempting to herd special needs kids back into the public schools from their more expensive, but extremely effective, outsourcing at private schools devoted exclusively to educating special needs children. The problem here for Long Island is that there are 126 separate school districts, each with their own method of how to implement the protocols suggested under IDEA. The narrative that the districts employ is very seductive. They talk about “mainstreaming” and “integrated classrooms” where “co-teachers” are utilized to make the special needs child feel just like any other kid. This approach can be effective when it is used for a small number of students with comparable disabilities. When a larger number of these kids with disparate skills and abilities are herded together, however, good outcomes are much harder to obtain. Mainstreaming sounds good but is not always the best approach if it isn’t properly implemented.5 The problem here for Long Island is that there are 126 separate school districts, each with their own method of how to implement the protocols suggested under IDEA. Unlike New York City, where the Department of Education has developed a consistent city wide approach, Long Island’s disparate treatment of children on the autism spectrum makes it incumbent on the parent and the practitioner to become familiar with the specific methodology used in a particular district. Unfortunately, many parents lack the requisite knowledge or the wherewithal to navigate this complicated thicket, and to fight successfully on behalf of their children who might not be getting the right educational services. Our role as lawyers is to educate the parents and advocate for their children by bringing cases that, if successful, can set legal precedents leading to policy changes that will improve the education of all special needs children in a district. What this means is that lawyer/advocates, along with the parents of children with ASD, must constantly fight for the educational rights of these special kids, holding administrators’ feet to the fire so that schools are following the law and providing children with the education they deserve to have. This is precisely where the legal and the political meet. On Long Island there is the Long Island Advocacy Chair for Autism Speaks, one of the nation’s largest autism advocacy organizations. When particular legal issues arise, it is a huge help to practitioners to have an organized advocacy group that can buttress individual legal claims. It goes without saying that administrative officials will respond to political pressure and grass roots advocacy efforts, and HEARING ... Continued From Page 9 the parties to arrange the pre-hearing conference, or to address other issues both before and after the pre-hearing conference. These telephone conferences are not recorded and do not become part of the printed record. Where possible, the parties should await the pre-hearing conference itself to address issues, and should ask the hearing officer to hold off on rendering any decisions of substance until the prehearing conference. This also ensures an accurate record of the request, the determination, and the objections thereto.11 YOU ARE NOT ALONE! Unemployed and Underemployed Help Available at the Nassau County Bar Association If you are currently unemployed or underemployed, there is help at the NCBA. Join others confronting employment challenges at the Unemployed/Underemployed Lawyers Group, sponsored by the Lawyer Assistance Program Committee (LAP). This special support group is open to all members. Any attorney affected by today’s difficult economic times can attend these free meetings to obtain strategic support and solutions. Meetings are informal and are held monthly at the Bar headquarters in Mineola. There is no fee to participate and no reservations are required. An optional buffet lunch is usually available. Go to nassaubar.org home page, Calendars>Committee Meetings, Events to see when the next meeting will be held. For more information, contact LAP Director Peter Schweitzer pschweitzer@nasaubar.org or (516) 747-4070. Debra L. Wabnik is a partner at Stagg, Terenzi, Confusione & Wabnik, LLP, located in Garden City. She heads the firm’s Labor & Employment department, where she concentrates on Education Law matters, including representing teachers at Section 3020–a hearings and appeals. Questions can be directed to dwabnik@stcwlaw.com. 1. Motions must be submitted at least 5 days prior to the pre-hearing conference. 2. See Michaels v. Mariforum Shipping, 642 F.2d 411, 413 (2d Cir. 1980) (“In order to be final, an arbitration award must be intended by the arbitrators to be their complete determination lawyers practicing in this field would be well-advised to develop strong ties to the advocates who posses both a deep reservoir of important information, as well as necessary political will. All children with special needs are a unique kind of special interest. How we treat these kids helps to define us as a society. Our legislators have recognized this, but lawyer/advocates need to insure that vigilance is maintained at the school level to insure that the promise of the law, and the righteous hopes of parents, are actually realized. Bradley L. Gerstman, Esq., founding partner of Gerstman Schwartz & Malito, LLC and Gotham Government Relations & Communications, LLC, has served as the Long Island Advocacy Chair for Autism Speaks as well as the Advocacy Chair on the 2007 Long Island Walk Now for Autism Planning Committee. In 2008 he was appointed by the Nassau County Executive Tom Suozzi to chair his Autism Coalition. Most recently, he was elected by the Long Island Autism Coalition Board to serve as Counsel to their organization. He is a board member of the Autism Legal Foundation and has done work on behalf of Child Abuse Prevention Services (CAPS). 1. Michelle Bermani, An Analysis of the Autism Programs in the Long Island Public K–12 School Districts, available at www.michelleibermani.com. 2. Centers for Disease Control, Autism Spectrum Disorder (ASD) Data & Statistics, www.cdc.gov/ncbddd/autism/data.html. 3. Pub.L. 104–476, 104 Stat. 1142. IDEA amended 20 USC § 1400 et seq. 4. NYSED, Individuals with Disabilities Education Improvement Act 2004, http://www.p12.nysed.gov/specialed/idea/; Center for Parent Information and Resources, Children (3 to 22), www.parentcenterhub.org/repository/schoolage. 5. The Hechinger Report, Can special education students keep up with the Common Core?, available at hechingerreport.org. of all claims submitted to them.”); accord Kalyanaram v. American Ass’n of Univ. Professors at the N.Y. Inst. of Tech., 742 F.3d 42 (2d Cir. 2014). 3. 43 N.Y.2d 276, 281 (1977). 4. Matter of Geneva City Sch. Dist. v. Anonymous, 77 A.D.3d 1365 (4th Dept. 2010). See also Matter of Jordan-Elbridge Cent. Sch. Dist. v. Anonymous, 37 Misc. 3d 1217(A) (Sup. Ct., Onondaga Co. 2012) (finding no authority for judicial intervention in a hearing officer’s interlocutory order which required petitioner to produce certain emails, characterizing the order as a “decision on a discovery issue which involves only a limited procedural question and in no way constitutes a final determination made at the conclusion of the arbitration proceedings.”). 5. Matter of Board of Ed. of Hauppage Union Free Sch. Dist. v. Hogan, 971 N.Y.S.2d 147, 149 (2d Dept. 2013). 6. 43 N.Y.2d 276, 281 (1977). 7. 37 Misc. 3d at 1217(A) at *2 (internal quotations and citations omitted). 8. 30 Misc. 3d 1212(A) (Sup. Ct., N.Y. Co. 2010) (unreported). 9. 26 Misc. 3d 1208(A) (Sup. Ct., N.Y. Co. 2010) (unreported). 10. Judicial review of arbitration awards is authorized by CPLR 7510 and 7511. However, under Education Law § 3020–a(5), there is only a 10-day statute of limitations for commencing an Article 75 special proceeding. Moreover, because a Section 3020–a hearing is compulsory, judicial scrutiny is somewhat stricter and a final award must inter alia, comport with due process and be supported by adequate evidence. 11. The parties have an opportunity to request changes to the transcription of the recording. ADVERTISE IN THE Call 631-737-1700 G advertising@libn.com Nassau Lawyer n November 2014 n NCBA Sustaining Members ASSOCIATION NEWS 2014 - 2015 NCBA Officers and members of the Nassau/Suffolk Law Services attended the 2014 Commitment to Justice Fall Wine Tasting reception on Wednesday, October 8th at the Carltun in East Meadow. (l-r) Jeffrey Siegel, Executive Director Nassau/Suffolk Law Services; John McEntee, NCBA President; Susan Biller, Nassau/Suffolk Volunteer Lawyer Project; Richard D. Collins, NCBA Secretary; Thomas Maligno, Nassau/ Suffolk Law Services Advisory Council; and, Martha Krisel, NCBA First Vice-President. Photo by Hector Herrera The Catholic Lawyers Guild presented the Denis Dillon Apparitor Fidelis Award to the Hon. C. Raymond Radigan at the Annual Red Mass. (l-r) Hon. Thomas Adams, Administrative Judge Nassau County; Hon. Timothy Driscoll, Supreme Court Nassau County; Hon. C. Raymond Radigan; and, Hon. A. Gail Prudenti, Chief Administrative Judge of New York Photo by Hector Herrera State. Linda Kelly Mejias was honored with the Community Service Award by the Long Island Hispanic Bar Association (LIHBA) on October 24th. (l-r) Roy Aranda, LIHBA President; Linda Kelly Mejias; and, the Hon. Helen Voutsinas, who introduced and presented the award. Photo by Hector Herrera Former and current General Attorneys celebrated the 100th Anniversary of the New York State Insurance Fund and Workers’ Compensation in New York. (l-r) James O’Connor, Raymond Green, William O’Brien and Douglas J. Hayden. Martin P. Abruzzo Mark E. Alter Mark A. Annunziata Ernest T. Bartol Jack A. Bennardo David A. Bythewood Neil R. Cahn Ralph A. Catalano Alan W. Clark Richard D. Collins James C. Daly Willard H. DaSilva John P. DiMascio Thomas P. Dougherty Steven J. Eisman Charo Ezdrin Edmond D. Farrell Russell C. Friedman Domingo R. Gallardo Marc C. Gann Eugene S. Ginsberg Frank Giorgio, Jr. John J. Giuffre Robert E. Grey Hon. Frank A. Gulotta, Jr. Andrew J. Hirschhorn Alan B. Hodish Carol M. Hoffman Elena Karabatos Hon. Susan T. Kluewer Martha Krisel Lawrence M. Lally Donald F. Leistman Jonathan C. Lerner Steven G. Leventhal Hon. Roy S. Mahon Shalom S. Maidenbaum Peter J. Mancuso Michael R. Martone Robert A. McDonald John P. McEntee Christopher T. McGrath Anthony J. Montiglio Neil J. Moritt Linda G. Nanos Hon. Michael L. Orenstein Gary Petropoulos Susan Katz Richman Leonard L. Rivkin Stephen W. Schlissel Marc H. Schneider Jane P. Shrenkel Hon. Peter B. Skelos Ira S. Slavit Hon. Arthur D. Spatt Sanford Strenger M. David Tell Kathleen Wright ATTORNEYS & JUDGES Make a difference in someone’s life .... Be a Mentor! NCBA is looking for mentors for Middle School students. 8 a.m. to 8:45 a.m. one day every other week through May 2015 The Jewish Lawyers Association of Nassau County (JLANC) Annual Dinner and Installation of Officers was held on October 27th. (l-r) John McEntee, NCBA President; Hon. Thomas Adams, Administrative Judge of Nassau County; Hon. Hope Schwartz Zimmerman, Supervising Judge of the Matrimonial Center; Alan Schwartz, JLANC Chairman of the Board; Samuel Rieff, JLANC President; and, Hon. Peter Skelos, Appellate Division 2nd Department. Photo by Hector Herrera Students in the following communities need mentors starting early January 2015 Hempstead • Uniondale • Jericho• Westbury and especially East Meadow (l-r) Hon. Peter Skelos installing the officers of the Jewish Lawyers Association: Michael Mirotznik, Hon. Denise L. Sher, Candace Ratner, Randi Milgrim and Hon. Hope Schwartz Zimmerman. Photo by Hector Herrera Contact Demi Tsiopelas at the Nassau Bar (516)747-4070 x210 dtsiopelas@nassaubar.org 21 22 n November 2014 n Nassau Lawyer ESTATE PLANNING ... Continued From Page 11 able can be made on the death of the first spouse to die with creative drafting. If the will creates a trust for the benefit of the spouse that qualifies for QTIP treatment (the income must be distributed to the spouse annually and during the spouse’s lifetime only the spouse can receive principal distributions), this can be accomplished. When the first spouse dies, if credit shelter planning is determined to be preferable the executor will not elect QTIP status for the trust. The trust will then effectively become a credit shelter trust. On the other hand, if it is determined that portability is preferred the executor will elect QTIP status. This will cause the trust to be included in the wife’s estate allowing for the husband’s exemption to port over to the wife. It should be noted that the executor could make a partial QTIP election if appropriate under the facts and circumstances. Estates over $10,680,000: Portability may not have been designed for the wealthy, but its use should certainly be considered. Unless these couples are high spenders or poor investors, there will be some federal estate tax to pay on the death of the survivor. The planner must weigh the estate tax saving (40% federal tax rate) over a second step-up in basis (23.8% federal capital gains rate). Lifetime gifting of highly appreciating assets is still a viable estate planning technique for taxpayers in this category. One of the interesting features of portability is the use of the deceased spouse’s unused exclusion amount (DSUE) first against gifts made by the survivor. In estates of this size thought should be given to using the DSUE as soon as possible to protect against the government’s potential change in the law and/or the spouse’s remarriage that could result in the loss of the DSUE IN BRIEF ... Continued From Page 8 Business” by Long Island Business News. Douglas M. Lieberman, a partner in Markotsis & Lieberman, was named a 2014 Super Lawyer for Business Litigation. Eugene R. Barnosky of Lamb & Barnosky was selected as one of the “50 Around 50” Award recipients by Long Island Business News. He will serve as moderator to a round table discussion of “The Affordable Care Act – Lingering Issues" at the 18th Annual PreConvention School Law Seminar. Douglas E. Libby of the firm will present on the topic “Legal Challenges to School Elections and Budget Votes” at the 95th Annual Convention and Education Expo. Richard Zuckerman was again selected for inclusion in The Best Lawyers in America® in the practice areas of Education Law, Employment Law – Management, Labor Law – Management and Litigation – Labor and Employment. He also presented on the topic “Public Sector Update: Labor Law Developments After Affecting Municipalities” at the 24th Annual Labor & Employment Law Conference. Sharon Berlin was named a 2014 New York Super Lawyer in the practice area of employment and labor law. Jeffrey A. Zankel was also named a New York Super Lawyer in the practice area of estate planning and probate. from the first spouse. Finally, from a federal estate and gift tax perspective, portability does not apply to the Generation Skipping Transfer Tax. For many clients generational planning is a major factor. For these clients planning for the maximum use of the GST is still applicable. New York State 2014-15 Budget Bill Changes On April 1, 2014 Governor Cuomo signed the 2014-2015 New York State Budget Bill. The Bill makes major changes to the New York estate and gift tax rules. Prior to the enactment, the New York State estate tax exemption was $1,000,000 and there was no gift tax. The new law provides an increase in the estate tax exemption and an inclusion in the decedent’s gross estate of gifts made within three years of death. The Budget Bill increases the New York State estate tax exemption as follows: • For deaths on or after April 1, 2014 and before April 1, 2015 – $2,062,500 • For deaths on or after April 1, 2015 and before April 1, 2016 – $3,125,000 • For deaths on or after April 1, 2016 and before April 1, 2017 – $4,187,500 • For deaths on or after April 1, 2017 and before Jan. 1, 2019 – $5,250,000 • For deaths after December 31, 2018, the exemption amount will be indexed for inflation consistent with the federal estate tax exemption. However, the new law contains a special provision; referred to as a “cliff.” If the decedent’s taxable estate exceeds 105% of the estate tax exemption the estate will “fall off the cliff” and the increased New York State exemption will be lost. Therefore, the estate will be subject to the $1,000,000 exemption in lieu of the new increased exemption amount. If a decedent died on or after April 1, 2014 and before April 1, 2015 with a taxable estate of more than $2,165,625 the increased estate tax exemption is lost. John Maggio, a partner at Condon & Forsyth LLP, was named a 2014 New York Metro Super Lawyer in Aviation & Aerospace. Jeremy S. Rosof, of counsel to Shaub, Ahmuty, Citrin & Spratt, LLP, and a member of the firm's Issues and Appeals Group, was included on the Super Lawyers list as a New York metropolitan area Rising Star for the second consecutive year. Stephen Gassman of Gassman Baiamonte Betts, P.C. addressed the Family Law Section of the American Bar Association in Stowe, Vermont, on “Cross Examination: A Primer for the Family Lawyer”. Mr. Gassman was also selected as a member of the Best Lawyers in America. Andrea Tsoukalas, Douglas W. Atkins, Stephanie M. Alberts and John M. Comiskey of Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP were named 2014 New York Super Lawyers Rising Stars. Ms. Tsoukalas, who concentrates her practice in zoning, land use, environmental and municipal law matters, is Treasurer of the Nassau County Women’s Bar Foundation. Mr. Atkins concentrates his practice in tax certiorari, real estate and condemnation. Ms. Alberts is an associate in the firm’s Tax, Trusts and Estates Department. Mr. Comiskey is an associate and concentrates in commercial, construction, insurance and employment related litigation. Joel M. Greenberg, a partner at The Greenberg, Dresevic, Iwrey, Kalmowitz, Governor Cuomo’s original proposal to increase the New York State exemption amount also included a provision to reduce the top tax rate from 16% to 10% over a period of years. The new law retains the 16% top tax rate, for estates of individuals dying before April 1, 2015. This rate applies to taxable estates in excess of $10,100,000. The New York State legislature may revisit the reduced rate in future Budget Bill discussions. For gifts made by a resident of New York State on or after April 1, 2014 and before January 1, 2019, the law provides an add-back to the estate on death of all taxable gifts made within three years of the decedent’s death. It should be noted that this is not a reinstatement of a New York State gift tax but an addition to the gross estate of a New York State decedent. As the New York State Exemption approaches the Federal Exemption the use of a New York State credit shelter trust will limit or eliminate the ability to use portability for federal purposes and the use of the technique, set forth above, to obtain the double step-up in basis. In addition, the New York State exemption “cliff” creates planning and will drafting problems for clients and their estate planners. Non-Tax Considerations Even where tax planning may not be necessary, estate planning is still an important step for clients. The traditional considerations of asset distribution among beneficiaries and the naming of fiduciaries and guardians remain as an essential aspect of planning. In addition to these general issues, inherent in every plan, a well-constructed design for an estate should consider: 1. The establishment of trust for the surviving spouse to protect the assets from a second spouse or family, to provide financial assistance in investing the assets of the trust, or to create creditor protection. Lebow & Pendleton Law Group, A Division of The Health Law Partners, P.C., was selected a 2014 Super Lawyer for the fourth consecutive year. Mr. Greenberg concentrates his practice in corporate and transactional aspects of health care law and is an Adjunct Professor of Health Law at SUNY Old Westbury. He earned his Juris Doctor from American University. Joel G. Wexler, managing partner of Westbury-based Golden, Wexler & Buatti, P.C., was named a 2014 Super Lawyer for the second time. Debra L. Rubin, senior partner at Rubin & Rosenblum, PLLC, was recognized as a New York metropolitan area Super Lawyer for the fourth consecutive year. Ms. Rubin concentrates her practice in matrimonial and family law. Paul S. Devine of Goldberg Segalla was named a 2014 New York Metro edition Super Lawyer in the category of Civil Litigation Defense. Charlotte A. Biblow, Heather P. Harrison and Robert M. Harper of Farrell Fritz, P.C. received Long Island Business News’ “Leadership in Law” Award. Jaclene D’Agostino, an associate in the firm’s Estate Litigation practice group, joined North Shore Child & Family Guidance Center’s business advisory council. Charlene Thompson was selected by the Long Island Business News as a “Leader in the Law” as a solo practitioner. The In Brief section is compiled by the Honorable Stephen L. Ukeiley, Suffolk County District Court and Acting County 2. The establishment of trusts for minor or adult children to, again, provide creditor protection, investment assistance or to ensure the proper ultimate distribution of the assets. 3. The establishment of special needs trusts for beneficiaries who are collecting federal or state benefits. 4. The use of charitable giving, and the creation of a charitable legacy, either outright or in trust. 5. The potential for the need to plan for second marriages. 6. The desire of the client to provide for pets. 7. The necessity to create a special distribution pattern relative to the ownership of business assets, especially in a circumstance where one or more children are active in the business and other children are not. Conclusion It is clear that while estate planning has changed, it has not died. In fact, any client that has a will drafted before 2010 (when portability was first enacted and before the enactment of the 2014-2015 New York State Budget Bill) should be notified that their will needs review. With the dramatic changes to the rules governing estate and gift taxes over the past few years, many wills contain provisions that are no longer required. Many plans that were previously based solely on the impact of the transfer taxes must be reviewed relative to income tax consequences that may now have a greater impact. For those without significant tax concerns, the issues related to beneficiaries, fiduciaries and distribution patterns move to the forefront of the decision making process. Those whose practices focus on estate planning need not fear. We are all still very much needed. Just, perhaps … for a slightly different purpose. Robert Katz is the Senior Partner and Neil D. Katz is the Managing Partner of Katz, Bernstein & Katz, LLP in Syosset. Court Judge. Judge Ukeiley presides in Suffolk County’s Human Trafficking Court and is an adjunct professor at both the Touro College Jacob D. Fuchsberg Law Center and the New York Institute of Technology. He is also the author of The Bench Guide to Landlord & Tenant Disputes in New York.© PLEASE E-MAIL YOUR SUBMISSIONS TO nassaulawyer@nassaubar.org with subject line: IN BRIEF COMMITTEE REPORTS ... Continued From Page 8 Condemnation Law & Tax Certiorari Meeting Date 10/31/14 Chair: John V. Terrana Outgoing Chairperson, Donald F. Leistman, was presented with a plaque and thanked for his two years of service. The Committee was brought up to date regarding the status of the payment of refunds by Nassau County. New procedures for processing Stipulations of Settlement and Court Orders were explained. The next committee meeting is scheduled for November 21 at 12:30. Michael J. Langer, an associate in the Law Offices of Kenneth J. Weinstein, is a former law clerk in the United States Court of Appeals for the Second Circuit, and a former Deputy County Attorney in the Office of the Nassau County Attorney. 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