May 2009 - The Suffolk County Bar Association

Transcription

THE
SUFFOLK LAWYER
THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION
DEDICATED TO LEGAL EXCELLENCE SINCE 1908
website: www.scba.org
Vol. 25 No 9
May 2009
____________________
By Arthur E. Shulman
In today’s economic climate, our courts are
faced with a “$64,000.00 Question” (for those of
us who remember the old television quiz show
which captivated audiences each week), when
ascertaining the facts and arriving at a determination when a request to modify child support is the
underlying issue before them. Mindful of an
existing body of case law, the law of contracts, the
real needs of the parties’ children and/or a former
spouse, or payor/parent and the real or embellished claims of economic stress or change in
financial circumstances by a payor of child support and/or maintenance since the date of either
the last order of child support and/or maintenance
and/or the date of a stipulation of settlement or
separation agreement, support magistrates and
judges have been cautious to balance the respective competing interests of the parties and their
children as well as complying with the requirements of the existing case law.
A review of recent cases reveals that the petitioner/payor/spouse or payor/parent seeking a
modification of child support and/or maintenance
payments faces an upward challenge in obtaining
a downward modification of such payments. It is
even more difficult in cases where the existing
stipulation provides for itself to survive and not be
merged into the pre-existing order or judgment.
In The Matter of Ripa v Ripa, NYLJ, 4/21/09 at
page 44, col. 3, the Appellate Division Second
Department upheld the denial by Judge Budd,
Suffolk County Family Court, of objections filed
by a payor spouse in response to a decision by
Support Magistrate Isabel Buse which denied the
INSIDE…
MAY 2009
CPR AED Training............................3
Remembering Gus Ginocchio...........5
Financially fit practice.......................6
Women’s Health Symposium..........14
Book review - Stevenson ................17
Restaurant review ............................17
SCBA photo album.....................14-15
________________________________
Legal Articles
ADR ...................................................10
American Perspectives.......................19
Bench Briefs ........................................4
Commercial Litigation.......................12
Consumer Bankruptcy .........................7
Court Notes ........................................12
DMV ..................................................16
Environmental Law..............................3
Pro Bono ............................................11
Second Circut Briefs............................4
Trusts and Estates (Cooper).................9
Trusts and Estates (Harper) ...............13
________________________________
Academy News ..................................28
Advantage Card Listings ...................21
Among Us........................................... 8
Calendar: Academy............................28
Calendar: SCBA ..................................2
Committee Corner..............................21
Secretary’s Message ..........................18
petition of the payor spouse for a downward modification of his child support obligation contained
in a stipulation of settlement which incorporated
but did not merge into the parties’ judgment of
divorce.
The court in Ripa, supra, stated the following:
“The child support provisions contained in a
settlement agreement should not be disturbed
unless there is a substantial, unanticipated, and
unreasonable change in circumstances since the
entry of the divorce judgment (see Matter of
Boden v Boden, 42 NY2d 210, 212-213;
Schlakman v Schlakman, 38 AD3d 640, 641;
Beard v Beard, 300 AD2d 268). Here the burden
was on the father to show that he used his best
efforts to obtain employment commensurate with
his qualifications and experience after losing his
job (see Matter of Navarro v Navarro, 19 AD3d
499, 500; Matter of Clarke v Clarke, 8 AD3d 272;
Beard v Beard, 300 AD2d 268; Matter of Yepes v
Fichera, 230 AD2d 803). The record supports the
Support Magistrate’s finding that the father failed
to establish a change in circumstances that would
warrant a downward modification of his child
support obligation (see Matter of Muselevichus v
Muselevichus, 40 AD3d 997; Matter of Meyer v
Meyer, 205 AD2d 784). In determining whether
such a change of circumstances has been shown,
a court need not rely upon the party’s account of
his or her finances, but may also impute income
based upon the party’s past income or demonstrated earning potential (see Matter of Graves v
Smith, 284 AD2d 332; Zabezhanskaya v
Dinhofer, 274 AD2d 476; Matter of Diamond v
Diamond, 254 AD2d 288). Here the Support
(Continued on page 24)
Photos by Laura Lane
To Modify Or Not To Modify?
That Is The Question
The Women’s Health Symposium sponsored by the SCBA and the Suffolk
County Women’s Bar Association was a big success. The event was coordinated by co-chairs, from left, Janessa M. Trotto, Esq., SCBA President
Elect Ilene S. Cooper, and Ivy J. Algazy, North Shore LIJ Health System
and was moderated by Neeta Shah, MD, FACP, Vice President Women’s
Health Services North Shore LIJ Health Systems.
Women’s Health Symposium speakers, from left, Gisele Wolf-Klein, MD,
Noah Rosen, MD, Jeffrey Ellis, MD, and Marie Frazzita, NSN, FNP-C,
NPP, CDE. (See story on page14)
PRESIDENT’S MESSAGE
A
Thank You
Message…
___________________
By James R. Winkler
BAR BRIEFS
Annual Tri County Elder Law Committee Dinner Tuesday, June 2
Nassau County Bar Association, Mineola (No walk-ins) $56/person. For further
information call the Bar Center.
2009 Installation Dinner and Judiciary Night Thursday, June 4 at 6 p.m.
Oheka Castle, Huntington, Tickets $150/person. Reservations only. For further
information call the Bar Center.
James R. Winkler
This past year, during which I have served as the 100th
President of the Suffolk County Bar Association, has flown by
all too quickly. During this year we have experienced the worst
economic crisis since the Great Depression and the election of
our first African-American President of the United States. The
war in Iraq continues and we are now more committed than ever
to the war in Afghanistan. Here in Suffolk County our community and our brothers and sisters in the legal profession have not
been untouched by world affairs. Many of our colleagues are
finding themselves feeling the impact of a strained economy in
ways that they could never have predicted and for which they
certainly did not prepare. I leave this office knowing that our
most important obligation right now is to help our membership
cope, to the extent of our ability, with the unique challenges
faced by them in these difficult times. We must double our commitment, as a membership organization, to support our members
and provide a helping hand.
At the same time, the Bar Association itself faces obstacles to
growth and continued relevancy. The Suffolk Academy of Law
is a first rate provider of continuing legal education to our mem(Continued on Page 18)
Music for Toddlers, 0 – 5 years. Saturday, June 13 at 10 a.m. to 12 noon
Bar Center
Join your colleagues and friends for a morning filled with fun and creativity for
the little ones. Music awakens the sense of awareness and their own creative
potential. For additional information and to register for this music fest call
Sheryl Randazzo at (631) 673-4998.
Annual Surrogate’s Court Dinner Tuesday, June 16 at 6 p.m.
Café La Strada, 352 Wheeler Road, Hauppauge, $60/person.
Call the Bar Center for reservations.
CPR/AED and Heimlich Training Thursday, June 23,
morning and afternoon sessions
Bar Center, $20/person.
Instructor: Barry M. Smolowitz. Limited space, call the Bar Center for reservations.
Golf and Fishing Annual Outing Monday, August 3
Golf: Rock Hill County Club, Manorville. Shotgun start 1 P.M. Fishing aboard
a private charter board the Osprey IV, out of Port Jefferson Harbor, 7:00 a.m.
Fishing trip underwritten by State Bank of Long Island. Call the Bar Center for
further information.
East End Membership Cocktail Party Tuesday, September 22 at 6:30 p.m.
Wolffer Estate Vineyard, Sagaponack, NY. An American winery in the classic
European tradition. Partially underwritten by Farrell Fritz, P.C.
West End Membership Cocktail Party Monday, October 26 at 6 p.m.
Blackstone Steakhouse, 10 Pinelawn Road, Melville.
The September and October Membership meetings are planned for SCBA members to come together to share ideas, discuss community issues, and their impact
on the legal community in Suffolk County. Save these dates and plan to attend.
2
THE SUFFOLK LAWYER — MAY 2009
Suffolk County
Bar Association
560 Wheeler Road • Hauppauge NY 11788-4357
Phone (631) 234-5511 • Fax # (631) 234-5899
E-MAIL: [email protected]
Board of Directors 2008-2009
James R. Winkler
Ilene S. Cooper
Sheryl L. Randazzo
Matthew E. Pachman
Arthur E. Shulman
Dennis R. Chase
Patricia M. Meisenheimer
Ted M. Rosenberg
Richard L. Stern
Richard Alan Weinblatt
Lynne M. Gordon
Maureen T. Liccione
Hon. Peter H. Mayer
Daniel J. Tambasco
Hon. W. Gerard Asher
Annamarie Donovan
Joseph A. Hanshe
George R. Tilschner
Robert F. Quinlan
John L. Buonora
Barry M. Smolowitz
Sarah Jane La Cova
President
President Elect
First Vice President
Second Vice President
Treasurer
Secretary
Director (2009)
Director (2009)
Director (2009)
Director (2009)
Director (2010)
Director (2010)
Director (2010)
Director (2010)
Director (2011)
Director (2011)
Director (2011)
Director (2011)
Past President Director (2009)
Executive Director
r
a
d
n
e
l
a
C
SCBA
OF
All meetings are held at the
Suffolk County Bar Association Bar Center,
unless otherwise specified. Please be aware
that dates, times and locations may be changed
because of conditions beyond our control.
For any questions call: 631-234-5511.
Book Reviews Wanted
Nearly everyone likes to read, but finding the right book can be a challenge. If
you’ve enjoyed reading a book, review it in The Suffolk Lawyer. The length and
style of the review is up to you. Just share with SCBA members why you liked the
book or, if it’s a legal publication, how you found it useful in your practice. Send
your book review to [email protected].
We acknowledge with thanks the generosity
of our members to the Scholarship Fund:
Donors
In Honor Of:
Ralph M. Randazzo
Sheryl L. Randazzo’s
election as President Elect
Libby R. Adelman
Christopher A. Lau, winner of
2009 High School Scholarship Award
Important Information from the
Lawyers Committee on Alcohol & Drug Abuse:
Thomas More Group
Twelve-Step Meeting
Every Wednesday at 6 p.m., Parish Outreach House,
Kings Road - Hauppauge
All who are associated with the legal profession welcome.
LAWYERS COMMITTEE HELP-LINE:
631-697-2499
MEETINGS AND EVENTS
May 2009
18 Monday
19 Tuesday
Mission Statement
21
26
27
31
Thursday
Tuesday
Wednesday
Sunday
“The purposes and objects for which the Association is established shall be cultivating the science of jurisprudence, promoting reforms in the law, facilitating the administration of justice, elevating the standard of integrity, honor and
courtesy in the legal profession and cherishing the spirit of the members.”
Appellate Practice Committee, 6:30 p.m., Board Room
Professional Ethics & Civility Committee, 6:00 p.m., Board Room.
Surrogate’s Court Committee, 6:00 p.m., Board Room.
SCBA’s Animal Law Committee presents ADog Day Afternoon Agility
Expo and Pet Fair@ 10:00 a.m. to 4:00 p.m. at the Doggie AU@ K9
Academy, 41 Saxon Avenue, Bay Shore, NY. Adults $5.00,
children under sixteen free.
JUNE 2009
4
Thursday
9
10
16
22
29
SCBA’s 101st Annual Dinner Dance and Judiciary Night, “In
Celebration of the Bench and the Bar” installing Ilene S. Cooper as
President, Oheka Castle, Cold Spring Hills, NY, $150 per person.
Call Bar Center for reservations.
Tuesday
Education Law Committee, 12:30 p.m., Board Room.
Wednesday Lawyer’s Committee on Alcohol and Substance Abuse, 5:00 p.m.,
President’s Office.
Tuesday
Labor & Employment Law Committee, 8:00 a.m., Board Room.
Monday
Executive Committee meeting, 5:30 p.m., Board Room.
Monday
Board of Directors, 5:30 p.m., Board Room.
JULY 2009
15 Wednesday Legislative Review Committee, 5:30 p.m., Board Room.
20 Monday
Executive Committee, 5:30 p.m., Board Room.
23 Thursday
CPR/AED four hour training course taught by Barry M. Smolowitz.
Choice of two sessions: 7:30a.m.-11:00a.m. or
12:00 p.m.-4:00p.m. A heart healthy meal will be provided. Further
details forthcoming.
AUGUST 2009
3 Monday
SCBA’s Annual Golf and Fishing Outing, Rock Hill Country Club,
Manorville, N.Y. Shotgun at 1:00 p.m. Fishing out of Port Jefferson.
Further details forthcoming.
SEPTEMBER 2009
14 Monday
Executive Committee meeting, 5:30 p.m., Board Room.
22 Tuesday
Travel, Wine and Cuisine - East End reception for members at WÅlffer
Estate Vineyard, 6:30 p.m. to 9:00 p.m., Sagaponack, N.Y. Further
details forthcoming.
29 Tuesday
Board of Directors meeting, 5:30 p.m., Board Room.
THE
20
Board of Directors, 5:30 p.m., Board Room.
Commercial & Corporate Law Committee, 5:30 p.m., Board Room.
Labor & Employment Law Committee, 8:00 a.m., Board Room
Supreme Court Committee, 5:30 p.m., E.B.T. Room.
Wednesday Solo & Small Firm Practitioners Committee, 4:00 p.m., Board Room.
SUFFOLK LAWYER
Publisher
LAURA LANE
Editor-in-Chief
Long Islander Newspapers
in conjunction with
The Suffolk County Bar Association
DOROTHY PAINE
CEPARANO
Academy News
Eugene D. Berman
John L. Buonora
Dennis R. Chase
Ilene S. Cooper
Justin Giordano
David A. Mansfield
Craig D. Robins
Frequent Contributors
The Suffolk Lawyer is published monthly, except for the months of
July and August, by The Long Islander Newspapers under the auspices
of The Suffolk County Bar Association.© The Suffolk County Bar
Association, 2009. Material in this publication may not be stored or
reproduced in any form without the express written permission of The
Suffolk County Bar Association. Advertising offices are located at The
Long Islander, LLC, 149 Main Street, Huntington, NY 11743, 631427-7000.
Send letters and editorial copy to:
The Suffolk Lawyer
560 Wheeler Road, Hauppauge, NY 11788-4357
Fax: 631-234-5899
Website: www.scba.org
E.Mail: [email protected]
or for Academy news: [email protected]
The articles published herein are for informational purposes only. They do not reflect the opinion of The Suffolk County
Bar Association nor does The Suffolk County Bar Association make any representation as to their accuracy. Advertising
contained herein has not been reviewed or approved by The Suffolk County Bar Association. Advertising content does
not reflect the opinion or views of The Suffolk County Bar Association.
The Suffolk Lawyer
USPS Number: 006-995) is published monthly except July and August by Long Islander, LLC, 149 Main
Street, Huntington, NY 11743, under the auspices of the Suffolk County Bar Association. Entered as periodical class paid postage at the Post Office at Huntington, NY and additional mailing offices under the
Act of Congress. Postmaster send address changes to the Suffolk County Bar Association, 560 Wheeler
Road, Hauppauge, NY 11788-4357.
3
ENVIRONMENTAL LAW
CERCLA Arranger Liability and Apportioning Costs
The Supreme Court’s Burlington Northern Decision
__________________________________
By Frederick Eisenbud and Lilia Factor
On May 4, 2009, in an 8 – 1 ruling, the
United States Supreme Court decided
Burlngton Northern and Santa Fe Railway
Company v. United States, 2009 WL
1174849 (U.S). The court clarified when a
person is strictly liable under the
Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) as one that “arrange[s] for the disposal … of hazardous substances,” and greatly
reduced the likelihood that manufacturers
of products will be held liable for the
actions of purchasers of those products. In
addition, the court appears to have significantly reduced the burden on potentially
responsible parties (PRPs) to establish that
costs should be apportioned rather than
applied to all PRPs jointly and severally.
The defendants included Shell Oil
Company (Shell), which shipped pesticides
and other chemicals to Brown & Bryant,
Inc. (B&B), an agricultural chemical distribution business which operated since 1960
in Arvin, California on a 3.8 acre parcel. In
1975, B&B expanded its operations by leasing .9 acres of adjacent land owned by the
defendant
railroad
companies
(“Railroads”). Shell arranged for delivery
of one of the pesticides used, D-D, by common carrier, and B&B assumed responsibility for the D-D as soon as the common carrier entered the Arvin facility. On arrival
and during transfers, leaks and spills
occurred, and continued even after Shell
took steps to encourage the safe handling of
its products. The delivery spills, equipment
failures and the rinsing of tanks and trucks
allowed the chemicals to seep into the soil
and groundwater at the Arvin facility, placing an adjacent supply of potential drinking
water at risk of contamination. California
and the EPA spent over $8 million in
response costs, which they sought to recover from Shell and the Railroads pursuant to
CERCLA on a theory of joint and several
liabilities.
The District Court, after a bench trial,
held that both Shell and the Railroads were
PRPs, the former, because it had “arranged
for” the disposal of hazardous substances
through its sale and delivery thereof to
B&B, and the latter, as the property owners
of the .9 acre parcel. With regard to the contamination at the site, the court concluded
that it was divisible and therefore capable of
apportionment. It calculated the Railroad
defendants’ relative liability at 9 percent
based upon three factors, including the percentage of the total area of the site that was
owned by the Railroads, the duration of
B&B’s operations on and off the Railroad
property, and the portion of the contamination caused by the chemicals in question.
The Court of Appeals upheld the verdict
against Shell. The rationale was that Shell
could be liable as an ‘arranger’ under 42
U.S.C. § 9607(a)(3) under a “broader category of arranger liability” than is typical.
Shell arranged for the delivery, set up the
transfer arrangements of the product, knew
that some leaking would occur during the
exchange, and gave advice and supervision
about safely transferring and storing the hazardous substance. The disposal of the hazardous waste that Shell was delivering to
B&B was a “foreseeable byproduct” of, but
not the purpose of, the transaction giving
rise to the arranger liability. Thus, the Ninth
Circuit concluded that an entity, such as
Shell here, could arrange for disposal even if
it did not intend to. With this rationale, the
Court of Appeals found that all of the defendants were jointly and severally liable for all
of the response costs and that there was no
evidence presented on the record to establish
a reasonable basis for apportionment.
The Supreme Court reversed. With
regard to arranger liability, the court first
looked at the easy cases at the extreme ends
of the spectrum of arranger liability. A party
that arranged for disposal of hazardous substances would be liable by the clear language of CERCLA. Likewise, an entity
could not be held liable for merely selling a
new and useful product if the purchaser of
the product, unknown to the seller of the
product, disposed of the product in a manner
causing contamination.
Shell found itself in the gray area between
these extremes. Shell sold a new and useful
product but was also aware that minor, accidental spills occurred during the transfer
(but after the purchaser assumed responsibility for the product). The court acknowledged that, in some cases, knowledge that a
product leaks, spills, or is dumped may provide evidence of an intent to dispose of the
hazardous waste. This knowledge alone,
however, is insufficient to impose liability
as an arranger of disposal. The Supreme
Court required evidence that Shell intended
that at least some of the product being transferred be disposed of in a manner set forth in
CERCLA. This burden was not met by the
Government’s arguments. Shell provided
safety manuals, required the recipients of the
product to maintain adequate storage facilities, and encouraging these activities by providing financial incentives by reducing the
price of the product for compliance. Thus
Shell’s efforts to encourage the buyer, B&B,
to reduce the likelihood of spills once it
accepted responsibility for the delivery
helped establish that Shell did not intend to
have any of the product disposed of.
Accordingly, Shell was not liable as an
arranger of disposal.
With regard to the Railroads, the Supreme
Court upheld the District Court’s apportionment of liability. Justice Steven’s opinion
stressed that equitable considerations play
no role in the apportionment analysis as they
do in traditional contribution lawsuits.
Rather, apportionment is proper only when
the evidence supports the divisibility of the
damages jointly caused by the PRPs. This
was such a case, the court held, and thus
reinstated the analysis and holding of the
District Court.
The Burlington case will help manufacturers of raw products to better understand
when, if at all, they may be held liable for
the sale of their products. More problematic
is whether the case will help companies who
transfer used products to other companies
Frederick Eisenbud
Lilia Factor
for recycling. Unless all of the hazardous
materials shipped are recycled and reused, it
would appear that, even under the
Burlington analysis, the sending company
will be liable under a theory of arranger liability for improper disposal of hazardous
substances that are not recycled.
Burlington likely will have far reaching
impacts on cost recovery litigation brought
by the United States or State governments,
because the formula used by the District
court was not predicated on the precise level
of proof generally required in the past of
those who wished to avoid joint and several
liability. The apportionment language of the
court in Burlington may be applicable not
only to hazardous waste lawsuits brought
under CERCLA, but also to cost recovery
lawsuits based on the investigation and
remediation of petroleum spills under the
NYS Navigation Law.
Note: Fred Eisenbud is an environmental
attorney in Commack. A past director of the
SCBA and co-chair of its Environmental
Law Committee on multiple occasions, Fred
founded the Environmental Crime Unit at
the Suffolk County District Attorney’s Office
in 1984, and served as counsel to the Suffolk
County Board of Health before going into
private practice in 1990.
Lilia Factor is an associate at the Law
Office of Frederick Eisenbud in Commack,
and has worked with Fred since 2004,
focusing primarily on environmental and
municipal law and litigation. She received
her law degree in Israel, and practiced there
before obtaining an LLM from the
University of Pittsburgh (magna cum laude)
in 2002.
CPR, AED and Heimlich Training
_____________________
By Barry M. Smolowitz
Our most precious gift is life. Saving the
life of another is priceless and the most
rewarding experience one can have.
If you are like most living on Long
Island, it is not unusual to take part in many
leisurely events. Some events are so common to our everyday lives we hardly give
immediate help
“ Without
95 percent of the Sudden
Cardiac Arrest victims
die before they reach the
hospital.
”
them a second thought. But all are fraught
with potential life threatening scenarios.
Maybe you have been invited to go fishing with a friend on his boat. Maybe you’re
the coach for your child’s Little League
game or perhaps a guest at your
reach the hospital. However, the
neighbor’s soccer game? Are you
American Heart Association
a participant in your firm’s annureports that when a trained
al softball outing? It’s a warm
layperson (a person just like you!)
Friday spring afternoon and you
intervenes, it has been estimated
decide to play hooky and join a
that the survival rate increases to
foursome at your local golf
as much as 48 to 74 percent.
course. And later that evening
People like you and me who have
you and your family have decidbeen trained to administer CPR
ed to go out east to have a lovely
and apply an AED. Ask yourself,
seafood dinner, or maybe a Barry M. Smolowitz if any of these events should hapweekend in your backyard swimpen in front of you, would you
ming with your children and neighbors.
know what to do? Could you save a life?
While none of these events are normally
Learn how to save a life. Become profidangerous in-and-of themselves, each day cient in the administration of CPR, the use
countless individuals at events such as of the AED and the application of the
these fall victim to choking, shortness of Heimlich maneuver. Persons who complete
breath, collapse, partial drowning and sud- this four-hour course will have a complete
den cardiac arrest.
understanding of and be qualified to
Each year more than 350,000 persons administer CPR, AED and Heimlich techexperience sudden cardiac arrests. niques to adults, children and infants.
Countless others are victims of choking,
Upon completion, first time takers will
collapse and drowning. 80 percent of the be qualified for two years. Have you
people who have fell victim to Sudden already taken this course? If you have not
Cardiac Arrest did so at home. Without been retrained within the last two years you
immediate help 95 percent of the Sudden are no longer considered current. To
Cardiac Arrest victims die before they become current you may use this course as
your biennial refresher. All students will
receive materials, and will be brought up to
date on the latest approved techniques. This
course follows the American Heart
Associations Guidelines as well as BLS
and ICOR standards. Upon successful
completion, students will be given an
opportunity to order an AED at reduced
rates for use in their home or car.
This course is being offered as a membership benefit to all SCBA members and
their families. The cost is a nominal $20
per person. The course is being administered by the undersigned, a Certified EFR
Instructor, on Thursday, July 23. There will
be an a.m. session (and p.m. session if
needed based upon enrollment). Please
note that enrollment is limited to 12 persons per session.
Enroll now and learn how you too can
SAVE A LIFE!!
Note: Barry M. Smolowitz, Immediate
Past President of the SCBA is a Certified
Emergency First Aid Instructor and has
been a practicing attorney for approximately 25 years.
4
BENCH BRIEFS
Law Office of
FREDERICK
EISENBUD
THE ENVIRONMENTAL LAW FIRM SM
____________________________________________________________
6165 JERICHO TURNPIKE
COMMACK, NEW YORK 11725-2803
TELEPHONE: (631) 493-9800
FACSIMILE: (631) 493-9806 (NOT FOR SERVICE)
E-MAIL: FIRST AND LAST [email protected]
WEBSITE:
WWW.EISENBUDLAW.COM
LILIA FACTOR ESQ.
ROBERT DOOLEY, LAW CLERK
ROBIN ROMEO
OFFICE MANAGER
Suffolk County
Supreme Court
Honorable Paul J. Baisley, Jr.
Motion for a default judgment denied;
untimely; proffered excuse for delay, not
sufficient
In Patricia Beecher v. Roberto Perez,
Jr., Janine Perman, George Lee, Emma L.
Lee and Heatherwood Communities, LLC,
Heatherwood House at Patchogue, LLC,
Index No. 7684-06, decided on May 8,
2008, the court denied plaintiff’s motion
for a default judgment. The court held that
the motion for a default judgment was
untimely pursuant to CPLR §3215(c), as
plaintiff failed to take proceedings for the
entry of judgment within one year after
such defendant’s default in appearing. The
court reasoned that plaintiff’s proffered
excuse that its counsel was “attempting to
secure appearance of the defendants in this
matter and/or any insurance carriers that
may be responsible” did not constitute sufficient cause for excusing plaintiff’s omission. According, the motion was denied.
Motion to dismiss granted; plaintiff’s
cause of action time barred
In John Stamoulis v. Tara Nelson a/k/a
Tara Nelsen, John D. Edwards, and
Michael Zarelli, Index No. 2757-07,
decided on October 30, 2008, the court
granted defendant, Michael Zarelli’s
motion to dismiss the complaint against
him. The court held that at the time of the
purported “amendment” of the summons
and verified complaint, plaintiff’s cause of
action against the moving defendant was
already time-barred. The court reasoned
that there was no legal theory which would
permit plaintiff’s unrelated claim against
the moving defendant to “relate back” to
the filing of plaintiff’s original summons
and complaint. The court further noted that
all of plaintiff’s arguments regarding the
purported “as of right” amendment of the
complaint were without merit and failed to
establish a factual or legal basis for depriving this defendant of an otherwise viable
statute of limitations defense.
SECOND CIRCUIT BRIEFS
New Admission
Renewal Requirement
___________________
By Eugene D. Berman
able to practice before the
Second Circuit until he or she
This month we depart from our
completes the renewal process.
usual format to discuss a new
Further, an attorney will be
Second Circuit rule that limits
removed from the court’s
attorneys’ admissions to renewable
admission roll if he or she
five year periods.
remains in inactive status for
In an April 1, 2009 Order,1 the
12 months. In that event, the
United States Court of Appeals for
attorney will be required to
the Second Circuit imposed a new
Eugene D. Berman reapply for admission to pracrenewal requirement for attorneys
tice before the court.
admitted to practice before it. Under
The court’s renewal fee, set forth on its
Interim Local Rule 46.1(a)(2)(A), effec- current fee schedule, is $25.00. By contive on April 15, 2009, “[a]n attorney is trast, the fee is $190.00 if an attorney is
admitted for a period of five years, and required to reapply for admission.
must renew admission every five years for
To facilitate compliance with the Rule,
an additional five-year period.”
the court adopted an attorney renewal appliThe court established July 1, 2004 as a cation form that is available for download.2
controlling date in its admission renewal Also, attorneys who have been admitted to
schedule. Interim Local Rule 46.1(a) the Second Circuit since January 1, 1985
(2)(B)(i) specifies that attorneys who were can access their admission date at the
admitted to practice on or after July 1, Court’s website by following the “Attorney
2004 must initially renew “no later than Admissions” link on the Court’s home page
five years from the original date of admis- (http://www.ca2. uscourts.gov). Attorneys
sion.” But the renewal deadline is extend- admitted before that date can obtain the
ed under Interim Local Rule 46.1(a) information from the Clerk’s office by tele(2)(B)(ii) for attorneys who were admitted phone (212-857-8603) or by email (admisbefore July 1, 2004 to “no later than the sions@ ca2.uscourts.gov).
anniversary date of the original admission
as it occurs during the period July 2009
Note: Eugene D. Berman is Of Counsel
through June 2010.” (Emphasis added.) As to DePinto, Nornes & Associates, LLP in
such, while an attorney who was admitted Melville.
on July 1, 2004 must renew no later than
July 1, 2009, it appears that an attorney who
1 The rule is posted on the Court’s website at
was admitted one day earlier (June 30, www.ca2.uscourts.gov/docs/news/order_4_1_09.pdf
2004) has an additional year – until June 30, , last accessed on April 23, 2009.
2 The application, with instructions, is available
2010 – to renew.
for
download at http://www.ca2.uscourts.gov
There are consequences for non-renewal.
/Docs/AttAdm/Attorney%20Renewal%20Applicatio
An attorney who has not renewed within n.pdf, last accessed on April 23, 2009. The rule and
one month of the renewal deadline will be application form can also be located by links on the
placed in “inactive status,” and will not be Second Circuit’s home page.
IN MEMORIAM
On A Good, Friday A Good Man Left Us
__________________
By John L. Buonora
It was not that long
ago that I had the pleasure of sitting down
with Gus Ginocchio to
have a conversation
about his extraordinary
life that included
exemplary service to
John L. Buonora
his country in the
United States Army Air Corps during the
Second World War, a long and successful
career in the practice of law and an even
longer successful history of love and service
to his family, fellow lawyers, friends and
acquaintances.
Those of you who are regular visitors to
this space in the Suffolk Lawyer will
remember reading “A Conversation Over A
Long Lost Diary” in January of this year,
which was the product of that conversation
with Gus. I have to say, in a moment of
minor immodesty, that I was pleased with
how the article was received. More importantly, Gus loved it. He wrote the most
poignant note, saying that…”your article
truly captured, in toto, the feelings and sensibilities of the person I am, or always hope
to be.”
I’d like to share that note with you. (See
note below) I don’t think that Gus would
mind. As you can see from the note reproduced for this article, Gus in the ninth decade
of his life had the same clear, concise neat
handwriting that he had while flying all of
those bombing missions during World War II.
Gus Ginocchio
It is sheer poetry that this modest,
unselfish religious man would leave this
Vale of Tears on this past April 10, Good
Friday, at 5:30 in the afternoon after a last
illness of approximately six weeks through
which he slipped in and out of a coma several times. At Gus’ wake, that was attended by
so many friends far too numerous to count,
his wife Betty told me that Gus told her had
wanted to speak to me but she didn’t know
about what… Actually, I did know.
Although I didn’t get an opportunity to see
Gus during the last weeks of his life, I did
get his message via a mutual friend. He
wanted to ask me to write a memorial piece
when he passed. You can call it an obituary
5
6
?
**MEMBER BENEFIT ALERT**
NEED SOLUTIONS Keeping Your Practice
Financially Fit and
Professionally Pleasing
____________________
By Sheryl L. Randazzo
ELDER LAW AND ESTATE PLANNING
• Medicaid Eligibility
• Estate Planning
• Trusts & Estates Litigation
• Nursing Home Placement
• Guardianships
• Last Wills & Testaments
• Trusts, Irrevocable & Revocable
• Strategies for Saving Estate Taxes
• Long Term Care Insurances
• Supplemental Needs Trusts
BURNER
CHERCHES & SMITH, LLP
BC&S
A
BURNER
, SLMITH
& ASSOCIATES, LLP
TTORNEYS AT
AW
Nancy Burner, Esq., CELA
CERTIFIED AS AN ELDER LAW ATTORNEY*
Eric D. Cherches, Esq.
Kim M. Smith, Esq.
ELDER
LAW AND ESTATE
LANNING
ATTORNEYS
AT PL
AW
• Last Wills & Testaments
• Medicaid Eligibility
N
ANCY BURNER, ESQ.,
• Trusts, Irrevocable & Revocable
• Estate Planning
, ESQ
KIM M. SMITH
• Strategies
for .Saving Estate Taxes
• Trusts & Estates Litigation
• Long Term Care Insurances
• Nursing Home Placement
• Supplemental Needs Trusts
• Guardianships
46 Route 25A, Suite 4 • Setauket, NY
46 Route 25A, Suite 4 • Setauket, NY
Phone 941-3434 • Fax 941-3443
Phone 941-3434 • Fax 941-3443
82 Main St. • Westhampton Beach, NY
Westhampton
Beach,
NY
Phone
288-5612 • Fax
288-5618
By
www.bcslawfirm.comOnly
Appointment
meetings, with each meeting
engendering more enthusiasm for
On Monday, June 15, Suffolk
what the program was evolving
County Bar Association members
into and what it could potentially
will have a unique opportunity to
provide to all SCBA members.
attend, free of charge, the proThe committee, consisting of
gram “Succeeding in the New
Jason Breit, Dorothy Paine
Economy:
Practical
&
Ceparano, Alan Todd Costell,
Professional Strategies for
Diane Farrell, Ilene Kreitzer,
Lawyers.” Intended to cover a
Sheryl L. Randazzo Allison Shields and myself, could
vast array of topics, with somenot have been more creative or
thing for every attorney trying to navigate cooperative in developing Succeeding in
these changing times in the practice of law, the New Economy, and each of the memthe program will provide practical advice bers’ genuine desire to serve our communiand suggestions that can be implemented ty should be commended.
immediately to make a meaningful differThe topics to be covered within the proence in an attorney’s practice and, poten- gram include the following: Cash Flow
tially, his or her life.
Management, presented by Michael J.
Because all attorneys are facing chal- Garibaldi, CPA, who will address how to
lenges in these changing economic times prioritize accounts payable, appropriately
and because the needs of the membership bill clients, and maintain reasonable cash
are central to the missions of both the flow in a law practice; Cost Cutting
SCBA and the Suffolk Academy of Law, Techniques, presented by Dennis R. Chase,
the association, under the leadership of Esq., who will discuss how to trim and/or
President Jim Winkler, and the academy, eliminate operating expenses and how to
under the leadership of Dean Patricia eliminate the significant use of paper in the
Meisenheimer, have determined that this practice of law; Career Counseling, covpractical program should be offered to the ered by Alexandra Duran, JD, MSW, CSW,
membership without charge. Thanks to who will suggest methods for evaluating
the generous sponsorship of Capital career goals and professional path and disPayments, LLC, dinner will also be pro- cuss how an attorney might benefit through
vided free of charge.
career counseling services; Professional
The idea for the program is the result of Marketing, presented by Allison C. Shields,
genuine synergy arising out of several dif- Esq., who will speak on the use of advertisferent program suggestions made at a recent ing, community involvement, websites and
7:30 a.m. academy meeting. From there, a the internet (including new social networkcommittee was formed and held several
BRIEFS
Opportunity
Articles and Special Section Editors Wanted for:
Date
Special Section
Editor
2009
September
Real Property
Jeannie Daal
October
Commercial Litigation
Leo K. Barnes, Jr.
November
ADR
Lisa Renee Pomerantz
December
Tax
Eric Morgenthal
2010
January
Matrimonial
Arthur Shulman
February
Animal Rights
EDITOR NEEDED
March
Elder
David Okrent
April
Education
Christopher Gatto
May
Workers Compensation
Christopher Gatto
June
Women & the Law
EDITOR NEEDED
www.burnersmith.com
* The National Elder Law Foundation is not affiliated with any governmental authority.
Certification is not a requirement for the practice of law in the State of New York and does
not necessarily indicate greater competence than other attorneys experienced in the field of law.
For further information, please contact Editor Laura Lane at [email protected].
7
CONSUMER BANKRUPTCY
Who Owns the Tax Refund: Trustee or Spouse?
Apportioning the Refund of a Non-filing Spouse
_________________
By Craig D. Robins
Like the famished creatures of the forest
foraging for food after the winter thaw,
around this time each year Chapter 7
trustees begin their annual hunt for tax
refunds.
Tax refunds are not always exempt
Tax refunds are in the category of liquid
assets which are only exempt up to $2,500
per debtor. The amount of this exemption is
relatively small and has not increased in
over 20 years. To make matters worse, a
debtor cannot avail himself of the liquid
assets exemption if they take the homestead
exemption to protect equity in a home.
Generally, a tax refund that is received
post-petition is property of the estate if it is
not exempt, and it is attributable to wages
earned and withholding payments made
during prepetition years.
Long Island bankruptcy filers receive
large refunds
Trustees get excited that Long Island
bankruptcy filers often receive substantial
tax refunds. Since tax refunds combined
with funds in the bank often exceed $2,500,
and also, since many Long Island bankruptcy filers use the homestead exemption
instead of the liquid assets exemption, we
regularly see trustees salivating at the meeting of creditors over the prospect of administering a tax refund as an asset of the estate.
When one spouse files, how do
towards withholding taxes, then
the trustee winds up getting most
you allocate the tax refund?
of the refund.
Here is a frequent situation that I
Since it is hardly worth it to litobserve at the meeting of creditors.
igate over relatively modest
Only one spouse has filed for
sums, debtors often quickly settle
bankruptcy relief and the trustee
and give in to the trustee’s
discovers that there is a sizable
demands. However, knowing the
post-petition tax refund. The issue
law will enable you to properly
then becomes what part of the
refund belongs to the debtor Craig D. Robins plan your filing and avoid getting
into a dispute with the trustee.
(which is usually not protected)
and what part belongs to the non-filing
spouse (which is totally protected because it New York decision favors the 50/50
is not property of the bankruptcy estate).
approach
I have seen different trustees taking difThe best case to look to is In re
ferent approaches, often based on what was Marciano, 372 B.R. 211 (S.D.N.Y. 2007),
most advantageous to the trustee at the time. which clearly states that New York uses the
However, the case law is specific as to 50/50 approach, which is the minority view.
determining the apportionment.
In reaching this determination, the court
One approach is to apportion the refund stated that it had no choice but to look to
equally between the two spouses, 50/50, matrimonial law in dividing tax refunds
regardless of the source of income or tax between husband and wife, as state law is
withholding. This is rather simple and controlling.
straightforward. The other approach is to
The court distinguished New York from
apportion the tax refund by calculating a those states adopting the majority view
proportional amount: the proportion of the (apportionment). These other states have
withholdings that the debtor contributed.
different bodies of law involving property
The problem with either approach is that rights; New York does not have any such
each can yield what appears to be an unfair laws. In New York, matrimonial law
result. If you use the 50/50 approach, and (Domestic Relations Law section 236) govone spouse contributed substantially more erns disputes over dividing tax refunds
than the other, then you get a lopsided between spouses.
result. On the other hand, if you use the proThe Marciano court concluded that conportional income rule approach, and the sidering the fairness of each rule to
non-filing spouse contributed very little
(1) the debtor, (2) the non-filing spouse,
DUFFY & POSILLICO AGENCY INC.
Court Bond Specialists
BONDS * BONDS * BONDS * BONDS
Administration • Appeal • Executor • Guardianship
Injunction • Conservator • Lost Instrument
Stay • Mechanic’s Lien • Plaintiff & Defendant’s
Bonds
Serving Attorneys since 1975
Complete Bonding Facilities
IMMEDIATE SERVICE!
1-800-841-8879 FAX: 516-741-6311
1 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts)
NYC Location: 108 Greenwich Street, New York, NY 10006
THE
Law Of f ice
OF
CHRIS MCDONOUGH
DISCIPLINARY MATTERS • ETHICS OPINIONS
•Served as Assistant Counsel to the Appellate Division Grievance
Committee for the Tenth Judicial District for 13 years.
•Practice concentrated on all matters related to the practice
of law.
•Adjunct Professor of Professional Responsibility.
•Noted author and CLE instructor on practice management and
professional ethics.
•Executive Committee member for the Nassau County Bar
Association Committee on Professional Ethics.
•Offices in Suffolk, Nassau and Manhattan.
Main office
115 Broadhollow Road
Suite 250
Melville, New York 11747
631- 673 - 6670
www.newyorkethicslawyer.com
the law will
“ ...knowing
enable you to properly
plan your ﬁling and avoid
getting into a dispute with
the trustee.
”
(3) the creditors, and (4) the estate, adopting
a presumption of equal ownership of a joint
tax refund as between a debtor and nondebtor spouse is the most equitable outcome. In a continuing marital relationship,
it is a fair presumption that the proceeds of
the tax return would be shared equally as a
joint venture.
One caveat: the court noted that the 50/50
rule can be rebutted under certain circumstances if the spouses can demonstrate by
their present conduct or history of financial
management, that there is a basis for separate ownership.
Note: Craig D. Robins, a regular columnist, is a Long Island bankruptcy lawyer
who has represented thousands of consumer and business clients during the past
twenty years. He has offices in Medford,
Commack, Woodbury and Valley Stream.
(516) 496-0800. He can be reached at
[email protected]. Please visit
his Bankruptcy Website: www.Bank
ruptcyCanHelp.com and his Bankruptcy
Blog: www.LongIslandBankruptcyBlog.com
8
LASIK
&
OPTHALMOLOGIC MALPRACTICE
Keith Shapiro & Ford welcomes the
opportunity to consult with counsel on
matters relating to malpractice committed
in the areas of LASIK and other
refractive surgical procedures as
well as other forms of
opthalmologic malpractice.
Nationally recognized in the area of
refractive malpractice & lecturer on
LASIK malpractice for the American
Trial Lawyers Association
Keith, Shapiro & Ford
666 Old Country Road
Garden City, New York
(516) 222-0200
More Than 40 Years Of Significant Experience In:
CONDEMNATION, TAX CERTIORARI, ZONING,
LAND USE LITIGATION, COMMERCIAL
AND REAL PROPERTY LITIGATION
Flower, Medalie
& Markowitz
24 E. Main Street Suite 201
Bay Shore, NY 11706
(631) 968-7600 Fax: (631) 665-4293
SIDNEY SIBEN’S AMONG US
On the Move…
Partners, Donnalynn Darling
and Kevin Schlosser from
Meyer, Suozzi, English & Klein,
P.C., participated as trial judges
in the 2009 New York State High
School Mock Trial Tournament
sponsored by the New York State
Bar Association’s Committee on
Law, Youth and Citizenship and
The New York Bar Foundation.
A. Jonathan Trafimow has
joined Moritt Hock Hamroff &
Horowitz LLP with offices on
Long Island and Manhattan as a
Partner to head its Employment
Law Practice Group
Ruskin Moscou Faltischek
announced today it has under- Jacqueline M. Siben
Richard L. Catania, has been
taken a major expansion of its white collar named a partner Scully, Scott, Murphy &
criminal practice with the addition of three Presser, P.C., a leading Intellectual
criminal defense attorneys: Bradley Property Law firm.
Gerstman, David Schwartz and William
McDonald.
Sharon N. Berlin, of Lamb & Barnosky,
Edward J. LoBello has joined Meyer,
Suozzi, English & Klein, P.C. Robert C.
Angelillo, Robert Marinovic, Charles
Skop, Steven E. Star, Robert N.
Zausmer, and Edward J. Lobello have
also been named as members of the firm.
Congratulations…
Maureen & Jonathan Juliano welcomed the birth of the newest Juliano, a
baby girl born March 15 named Maryjane
Agnes.
Honorable Leonard B. Austin who has
been appointed to the Appellate Division,
Second Judicial Department.
Craig J. Wolfson, Partner at Rosicki,
Rosicki and Associates, P.C. of Plainview,
received the Metropolitan Placement
Consortium and Baruch College Computer
Center for Visually Impaired People “2009
Breaking Barriers Award” on April 2. The
award honored companies that recognize
the skills and talents of employees who are
blind, or visually-impaired. Craig was recognized for hiring and developing positions
for four individuals from the Helen Keller
Services for the Blind.
Announcements,
Achievements, &
Accolades…
At the last formal meeting on April 16,
2009 of the District Court Judge's
Association the following were elected as
officers: Honorable Paul M.Hensley,
President; Honorable John Iliou, VicePresident; Honorable Gigi Ann Spelman,
Secretary; and Honorable Chris Ann
Kelley, Treasurer.
LLP, was one of the hosts at a business
workshop offered by the National
Association of Women Business Owners
(NAWBO) on May 13 to assist small to
mid-size business owners with various key
segments of their business. Ms. Berlin's
topics included "What steps should every
employer take to avoid employment-related
lawsuits? What are the required employment policies? Is an employment agreement necessary?"
Saul Elnadav, an associate at the Lake
Success law firm Vishnick McGovern
Milizio LLP (VMM) has launched the New
York Trusts & Estates Law Blog
http://trustsestateslaw.blogspot.com/.
Updated on a regular basis, Mr. Elnadav's
posts cover a wide range of legal issues of
interest to both attorneys and the general
public.
Robert H. Cohen, Esq., of Lamb &
Barnosky, LLP, presented a Lunch
N' Learn Program on the topic "Ethics
Issues in Representing Municipalities,"
on April 14, sponsored by the Suffolk
County Bar Association.
Scott M. Karson, of Lamb & Barnosky,
LLP, appeared as part of a three-judge
panel which presided over the Suffolk
County finals of the New York State 2009
Statewide High School Mock Trial
Tournament on April 1. The trial was
held at the United States Court House in
Central Islip. The other judges on the panel
were Hon. Jerry Garguilo of the New
York State Supreme Court, and Richard
Winkler of Winkler, Kurtz, Winkler &
Kuhn,
LLP
of
Port
Jefferson
Station. Additionally he has been named by
the Board of Directors of the Suffolk
County Bar Association as the recipient of
the Association's 2009 Directors'
Award. The award will be presented at the
Association's June 4, 2009 Installation
DIANA C. GIANTURCO
ATTORNEY AT LAW
P.O. BOX 419
LONG BEACH, NY 11561
Tel: 888-805-8282
Fax: 516-706-1275
APPEARANCES IN
QUEENS COUNTY
E-mail: [email protected]
9
TRUSTS AND ESTATES UPDATE
______________________
By Ilene Sherwyn Cooper
Probate of Will Denied
In In re Elkan, N.Y.L.J., Feb. 27, 2009, at
32 (Sur. Ct. Bronx County), the court
denied probate to the propounded instrument after trial, finding that the decedent
lacked testamentary capacity on the date of
the instrument’s execution, and that it had
been procured by the undue influence of an
attorney who was a beneficiary of 50 percent of the estate. The objectant was a beneficiary under a prior will of the decedent,
and the daughter of a beneficiary under the
propounded instrument.
The record revealed that the decedent had
developed a long-lasting friendship with the
attorney-beneficiary as well as the named
executor under the propounded will through
business. Under his prior wills, the decedent
had named the attorney-beneficiary’s mother as a beneficiary. In addition, the decedent
had requested assistance in his financial
affairs from the attorney-beneficiary’s
mother, and had added her name to some of
his accounts.
The decedent was a chronic alcoholic,
who had fallen and was placed in the hospital and then a nursing home prior to his
death. The nursing home records revealed
that the decedent received physical therapy
while there as well as medication for
depression and psychosis. The doctor at the
nursing home opined, at his deposition, that
the decedent suffered from some dementia,
and that his ability to make financial decisions and render an informed consent varied
from day to day. The social worker at the
nursing home testified that the decedent
was belligerent, and abusive, and that his
short term memory was better than his long
term memory.
While in the nursing home, the decedent
learned of the death of the attorney-beneficiary’s mother. According to the testimony,
the decedent was allegedly delighted when
the attorney-beneficiary volunteered to be
substituted for her mother in taking care of
the decedent’s financial affairs. The decedent allegedly also wanted to substitute the
attorney-beneficiary in place of her mother
as his attorney-in-fact, as well as a beneficiary under his will, which she asked her to
draft. While counsel refused to draft this
will, he nevertheless conveyed the instructions for its contents, as well as the new
power of attorney to the draftsman. The
attorney-draftsman testified that without
discussion with the decedent, he prepared
the documents the attorney-beneficiary
instructed him to prepare. On the date the
will was signed at the nursing home, the
draftsman and nominated executor were
present. According to the draftsman, the
testator was surprised to learn the value of
his assets, but neither he nor the nominated
executor discussed with the decedent the
manner in which his assets would pass
under the instrument. Both the draftsman
and the named executor testified that the
decedent appeared to understand the contents of his will, and was competent when
he signed it.
The court, however, noted that when the
decedent executed his prior will under the
supervision of the same draftsman, the
draftsman had concerns about the decedent’s capacity. Further, the court took
issue with the fact that neither the attorneydraftsman nor the nominated executor were
aware that the decedent suffered from
dementia and psychosis for which he was
receiving medication. The explanation that
the decedent was “lazy” and therefore
allowed others to handle his financial
affairs was, the court found, at odds with the
evidence. In addition, the court found it sig-
nificant that a guardianship procapacity to execute the subject
ceeding was commenced on the
will. Accordingly, in view of their
decedent’s behalf the same
testimony, the testimony of disinmonth the will was signed, and
terested witnesses and the docuat the conclusion of the
mentary evidence, the court conguardianship hearing, the court
cluded that it was highly unlikely
held that there was clear and
that the testator possessed the reqconvincing evidence that the
uisite capacity to execute the prodecedent failed to understand the
pounded instrument, and the
nature of his impairment and his Ilene S. Cooper objections to probate on this
inability to handle his personal
ground were sustained.
and financial affairs.
In addition, the court sustained the objecBased upon the foregoing, the court held tions based upon undue influence. In reachthat neither the nominated executor nor the ing this result, the court found that at the
attorney-draftsman took any action that time the will was executed, the attorneywould show they had any interest in insur- beneficiary had a confidential relationship
ing that the decedent had the requisite with the decedent, as evidenced by the fact
that she previously had performed legal services for him, and began undertaking
responsibilities as her attorney-in-fact. In
addition, the decedent lacked the ability to
consult with independent counsel of his
own choosing, but instead, signed a will
that was prepared at “record breaking
speed” based upon instructions of the attorney-beneficiary. Consequently, based upon
the inference that arose as a result of the
confidential relationship between the parties, and the foregoing record, the court
found that the will had been procured by the
undue influence of the attorney-beneficiary.
In re Elkan, N.Y.L.J., Feb. 27, 2009, at
32 (Sur. Ct. Bronx County)
10
ADR
Is Mediation Practiced By Attorneys The Practice of Law?
______________________
By Lisa Renee Pomerantz
“lawyer’s services.” While the
in the Guidelines for ADR
opinion acknowledged that nonNeutrals recently issued by the
OCA. The Guidelines distinOlder New York authority treats media- lawyers provided mediation serguish between “mediation,”
tion as the practice of law, perhaps because vices, it commented that “a lawyer
defined as a facilitative process,
non-attorneys had not begun to offer medi- may engage in mediation as an
and "neutral evaluation" defined
ation services. For example, in Bauerle v. aspect of providing legal services.
as “a confidential, non-binding
Bauerle, 616 N.Y.S.2d 275 (App. Div. 4th Whether or not one conceives of
process in which a neutral third
Dept. 1994), a wife moved to disqualify the the lawyer as ‘representing the parparty (the neutral evaluator)
attorney for the husband in a divorce action. ticipants in divorce mediation, the
To do so, she needed to prove the existence lawyer’s role as a neutral mediator Lisa R. Pomerantz with expertise in the subject
matter relating to the dispute
of a prior attorney-client relationship and may include rendering advice
that the attorney’s current representation about legal questions or preparing a settle- provides an assessment of likely court outwas “adverse” and “substantially related” to ment agreement—services that would ordi- comes of a case or an issue in an effort to
the prior representation. The wife had narily seem to entail the practice of law help parties reach a settlement.” While nonnever retained the attorney as a mediator, when performed by lawyers.” The opinion attorneys with the requisite training in
but had met with him for an initial orienta- acknowledged that other jurisdictions have mediation techniques can serve as “mediation session concerning that possibility. In characterized mediation by lawyers as not tors” as that term is narrowly defined, only
disqualifying the attorney, the court constituting the practice of law, but stated attorneys and judges can become “neutral
observed: “That preliminary orientation that characterization “overlooks the partici- evaluators” or, with the requisite mediation
session is materially indistinguishable from pants’ expectations. Participants in divorce skills training, act as neutrals in “mixed
the initial consultation with an attorney mediation cannot be kept unaware of a processes” in which both evaluative and
wherein information is disclosed in confi- mediator’s professional qualification as a facilitative mediation techniques will be
dence by a prospective client who later lawyer. They are entitled to know the used.
mediator’s professional qualifications,
That attorney-mediators are held to highdecides not to retain the attorney.”
Opinion 678 issued by the New York and it would be deceptive for a mediator er standards than non-attorney mediators is
also reflected in the recently enacted Rules
State Bar Association Committee on who is a lawyer to withhold that fact.”
Similarly, Opinion 736 issued by the of Professional Conduct approved by the
Professional Ethics in 1996 explicitly
applied provisions of the CPR to the con- NYSBA Committee on Professional Ethics NYSBA House of Delegates in November,
duct of an attorney as a mediator. The spe- in 2001 applied various provisions of the 2007 and submitted to the Appellate
cific question which is closely related to the CPR to provide guidance on whether and Division for Review in February, 2008.
subject matter of this article was: “May a when “an attorney engaged in matrimonial Those Rules contain specific provisions
lawyer receive referrals from an agency that mediation [may] draft and file a separation defining some of the specific professional
advertises the availability of divorce media- agreement and divorce papers that incorpo- obligations of attorney-mediators, notably
tors?” The question was answered in the rate terms agreed upon by the marital parties Rule 1.12 entitled “Special Conflicts of
Interest for Former Judges, Arbitrators,
negative, based on the provisions of DR2- in the course of the mediation.”
The concept that mediation services dif- Mediators or Other Third-Party Neutrals”
103(C)(1) (subsequently DR2-103(F))
which limited the kind of referral services fer when provided by an attorney as and Rule 2.4 entitled “Lawyer Serving as
that an attorney can use in promoting the opposed to a non-lawyer is also embodied Third-Party Neutral.” These rules are consistent with the CPR’s approach to regulating the provision of non-legal services by
attorneys set forth in DR 1-106 entitled
“Responsibilities Regarding Nonlegal
More work than you can get to?
Services” and DR 1-107 regarding
“Contractual Relationships between
Not enough hours in the day?
Lawyers and Nonlegal Professionals.”
Under those provisions, when an attorney
Let me help you increase your profits
provides non-legal services, the CPR standards were presumed to apply unless the
and get that work off your desk.
attorney could prove that the client was
informed and understood that the services
Call today for top-quality research,
were not the practice of law. Given the
writing, & litigation support.
inherently legal components of mediation,
it is unlikely that a client would have that
understanding.
New York’s approach varies from that of
Licensed in NY and CA
the ABA. The ABA, recognizing the split of
opinion among the various states, adopted a
(516) 457-9169
resolution in 2002 which would clarify that
“mediation is not the practice of law,”
1134 Lake Shore Drive, Massapequa Park, NY 11762 www.blasielaw.com
regardless whether the mediator discusses
legal issues with the parties. Even the ABA
GAIL M. BLASIE, ESQ.
Share with one CPA, Modern Renovated
Office, Conference Room, Waiting Area,
Free Utilities, DSL & Fax. Many referrals
possible, Many walk ins, Bayside/
Whitestone Border, Off Francis Lewis Blvd
Please call 917 733-0649
“
While there is a plausible
argument for the
proposition that
mediation is not the
practice of law because
no “attorney-client
relationship” is formed,
the overwhelming weight
of authority in New York
suggests that it is.
”
an attorney.
While there is a plausible argument for
the proposition that mediation is not the
practice of law because no “attorney-client
relationship” is formed, the overwhelming
weight of authority in New York suggests
that it is. Even were it not technically considered the practice of law, attorneys are
permitted to provide a wider range of services in the context of mediation than can
non-attorney mediators. At the same time,
they are held to the same or analogous standards as would apply in the context of a law
practice.
Note: Lisa Rene Pomerantz is an attorney
with more than 25 years experience. She
works with innovative and creative enterprises to structure and foster successful
business relationships and to resolve disputes amicably and cost-effectively. Her
dispute resolution activities include membership on the American Arbitration
Associations Roster of Neutrals as a
Commercial Mediator and Arbitrator.
WOMENS HEALTH
Photo by Laura Lane
Queens Storefont
$800 Per Month
Resolution, however, concedes that to the
extent the Settlement Agreement goes
beyond the terms of agreement specified by
the parties or uses different language, it may
constitute the practice of law. Similarly, the
ABA, together with the American
Arbitration Association and the Association
for Conflict Resolution, adopted Model
Standards of Conduct for Mediators, which
does not appear to distinguish between
mediation when provided by an attorney
and by a non-attorney. However, the
Standards do distinguish between mediation and “neutral evaluation” even though
the latter process is often part of the mediation process, especially when conducted by
Each of the Women’s Health Symposium speakers shared an informative PowerPoint
presentation to help empower women to make knowledgeable decisions and take control
of their health. The speakers were from left, Gisele Wolf-Klein, MD, Noah Rosen, MD,
Jeffrey Ellis, MD, and Marie Frazzita, NSN, FNP-C, NPP, CDE, and Joseph Diamond,
MD.
11
PRO BONO
Stephen R. Hellman:
Pro Bono Attorney of the Month
______________
By Rhoda Selvin
From the time Stephen R. Hellman was
admitted to the New York State Bar in 1998
he has sought out pro bono work.
Acknowledging that The Lawyer’s Code
of Professional Responsibility obliges attor-
R. Hellman’s
“ Stephen
steady, efﬁcient,
and empathetic
representation of
indigent citizens of
Suffolk County making
him an ideal Pro Bono
Attorney of the Month.
”
neys “to render pro bono and public interest
legal service,” he said, “It shouldn’t have to
be a responsibility. (A lawyer) should do it
because it’s the right thing to do.”
This attitude carried out in practice has
earned him the accolade of Pro Bono
Attorney of the Month for May 2009. Mr.
Hellman has concluded six Pro Bono
Project matrimonial cases since PBP awarded him the same honor in December 2003.
But his pro bono service does not end with
PBP; he does pro bono work under other
auspices as well.
One of his more demanding PBP matrimonial cases, which required more than 51
hours, was complicated by his client’s disability. The client received a pension for her
condition which would be reduced by the
amount of maintenance she would receive.
Mr. Hellman worked closely with the disability administrator to structure the maintenance in a way that would not diminish the
amount of her disability payment. To do
this he created a trust.
Mr. Hellman, who had always wanted to
be a lawyer, came to the practice of law
after serving from 1984 to 1990 in the
Stony Brook University Police Department
as part of a distinguished plainclothes unit.
Graduating from the university with a psychology major in 1983 he needed a job to
support his wife and children. Rather than
go to law school, he attended the University
Police Academy for a year. When he was
injured on the job, he grabbed the opportunity to go to Hofstra University School of
Law, receiving his J.D. in 1997. During
most of the time he studied law, he was a
judicial law clerk to the Hon. Victor J.
Yannacone, Jr., in Patchogue Village
Court. He continued working with the
judge until August 1998, when he opened
his solo practice in Mastic. He concentrates
in the fields of family law, matrimonial law,
and criminal law and serves as an Attorney
for Children in family, matrimonial, and
juvenile delinquency matters, and as an 18b attorney. He especially likes appellate
work and has filed numerous appeals from
findings of child abuse and child neglect
either as the respondent’s counsel or as an
Attorney for Children.
A member of the Suffolk County Bar
Association, Mr. Hellman has been a faculty member or guest speaker in a number of
CLE classes including child abuse and child
neglect in December 2003, law guardian
issues in June 2004, “The Drug Court” in
September 2004, and in family law in 2006
and 2007.
Mr. Hellman’s oldest child, his daughter
Ashley, is due to present him in July with
the first family member of the next generation. His son Seaver, who is 20, is going
into the United States Air Force. His
youngest boys, Matthew, 10 and Jared, 8,
Stephen R. Hellman
busily pursue the typical activities of little
boys.
Outside his professional activities he is an
avid reader of the classics--recently
Dostoevsky and Dickens. His collection of
baseball memorabilia includes baseball
cards from 1948 to 1969, autographed baseballs, and autographed bats. That he attends
conferences and shows on the topic shows
what a serious collector he is.
Stephen R. Hellman’s steady, efficient,
and empathetic representation of indigent
citizens of Suffolk County making him an
ideal Pro Bono Attorney of the Month. The
Pro Bono Project is delighted to honor him
in this way for the second time.
SAVE THE DATE
Installation Dinner and Judiciary Night
Thursday Evening, June 4, 2009
Oheka Castle
6:00 p.m.
For Information Contact:
Ilene S. Cooper (516) 227-0736
Jane La Cova (631) 234-5511
Thank you to Our Generous Sponsors and Underwriters
Bob Dennis & Roseann Keiles/Long Term Care Planners;
Steve Ellis/Prudential Long Term Care
Citi Private Bank
Colleen West
Farrell Fritz, P.C.
First American Title Insurance
Company of New York
Hofstra University School of Law
Spizz & Cooper, LLP
The Kalikow Group
Touro Law School, Jacob D.
Fuchsberg Law Center
Twomey, Latham, Shea, Kelly
Dubin & Quartararo, LLP
12
COURT NOTES
Appellate Division-Second Department
_______________________
By Ilene Sherwyn Cooper
Attorney Reinstatements Granted
The application by the following
attorneys for reinstatement was
granted:
Maureen Abato, admitted as Maureen A.
Abato
Attorney Resignations Granted /
Disciplinary Proceeding Pending:
Louis Haddad: By affidavit, respondent
tendered his resignation, indicating that he
was aware that he is the subject of an ongoing investigation by the Grievance
Committee regarding two complaints of
professional misconduct alleging, inter alia,
that he misused his attorney escrow account
by co-mingling, writing checks to cash and
making other improper withpetition containing five charges of
drawals. Respondent acknowlprofessional misconduct. After a
edged his inability to successfully
hearing, the Special Referee susdefend himself on the merits
tained all the charges against the
against any charges predicated
respondent. The Grievance
upon his misconduct under invesCommittee moved to confirm the
tigation. He stated that his resignareferee’s report, and respondent
tion was freely and voluntary renalso moved to confirm the report
dered, and acknowledged that it
but requested that a private sancwas subject to an order directing Ilene S. Cooper tion be imposed. The charges
that he make restitution and reimagainst the respondent alleged,
burse the Lawyers’ Fund for Client inter alia, that he failed to maintain and preProtection. In view of the foregoing, the serve client funds. Inasmuch as the charges
respondent’s resignation was accepted and were fully admitted, the court granted the
he was disbarred from the practice of law in motion sustaining all five charges. In deterthe State of New York.
mining an appropriate measure of discipline
to impose, the Grievance Committee noted
that the respondent had no prior disciplinary
Attorneys Suspended
history. The respondent asked the court to
Benjamin Katz: The Grievance consider that his conduct was not intentionCommittee served the respondent with a al, willful or malicious, and occurred while
respondent was operating under a mental
disability of which he was then unaware.
Since that time, respondent stated that he
has taken successful steps to remediate his
condition. Notwithstanding the foregoing,
as well as the other mitigating factors set
forth in the record, the court held that
respondent clearly failed to safeguard client
funds and admittedly used escrow funds for
office-related expenses. Accordingly, under
the totality of the circumstances, the respondent was suspended from the practice of
law for a period of five years.
Note: Ilene Sherwyn Cooper is a partner
with the law firm of Farrell Fritz, P.C.
where she concentrates in the field of trusts
and estates. In addition, she is PresidentElect of the Suffolk County Bar Association
and a member of the Advisory Committee of
the Suffolk Academy of Law.
COMMERCIAL LITIGATION
A Primer On Injunctions
___________________
By: Leo K. Barnes Jr.
The provisional remedies found a cornerstone of practice in the Commercial
Division. This month we review the basic
elements of the most commonly sought provisional remedy, the preliminary injunction.
It is well settled that an Article 63 preliminary injunction is not a mechanism for
determining the ultimate rights of the parties; rather, the provisional remedy is utilized to maintain the status quo.1
CPLR 6301 provides in pertinent part:
A preliminary injunction may be granted
in any action where it appears that the
defendant threatens or is about to do, or is
doing or procuring or suffering to be done,
an act in violation of the plaintiff's rights
respecting the subject of the action, and
tending to render the judgment ineffectual
The decision whether to grant a preliminary injunction lies within the sound discretion of the court.2 In that regard, movant
must satisfy a three prong test to establish it
is entitled to preliminary injunctive relief: a
probability of success on the merits; danger
of irreparable injury absent the injunction;
and a balancing of the equities favors granting the injunction.3
As for the first element, success on the
merits, certainty of success is not the standard that a movant must satisfy to establish
that it is likely to succeed on the merits of its
claim; rather, it must make a prima facie
showing of its right to the relief.4 In this
regard, CPLR 6312(c) is instructive: it provides that even issues of fact highlighted by
opposition to the application are insufficient
to defeat the motion and “shall not in itself
be grounds for denial of the motion.”
Establishing the second prong of an
To Advertise in
The Suffolk
Lawyer
Call
(866) 867-9121
tus quo); and Bronx County Trust
injunction application can be difv. O’Connor10 (in a complaint
ficult because the vast majority of
seeking to impose a trust upon a
cases seek monetary damages.
sum generated by the sale of cerThe general rule is that one pursutain shares of a Tobacco
ing a money action is generally
Company, premised upon pronot entitled to a preliminary
curement of the shares through
injunction because an adequate
fraud and undue influence, the
remedy at law exists.5 Two
exceptions to the general rule
Appellate Division reversed the
warrant elaboration.
Leo K. Barnes Jr. Supreme Court’s Order denying a
The first exception to this rule
motion to continue the pendente
exists when movant’s cause of action is lite relief, restraining the defendants from
directed to a specific fund which is “the sub- disposing of such proceeds of sale).
ject of the action.”6 A myriad of cases hold
Authority exists for a second exception
a monetary damages claim directed at a spe- and relates to injunctions which are authocific fund is viable as an irreparable injury rized by statute and purport to be in the pubworthy of an injunction because the proper- lic interest. In Spitzer v. Lev,11 in an action
ty, not the value of the property, is the true against officers of not-for-profit corporation
subject of the action. See Societe Anonyme arising from amounts they allegedly
v. Pierre A. Feller7 (Appellate Division received in violation of their fiduciary
rules that in an action disputing the owner- duties or by way of unjust enrichment, the
ship of shares of a cooperative apartment, Attorney General moved for injunctive
plaintiff was entitled to pendente lite injunc- relief suspending officers from exercising
tive relief since irreparable injury may arise control. New York County Supreme Court
if the defendant was not enjoined from Justice Ramos noted that:
transferring the cooperative’s shares pendHowever, the traditional concept of
ing final resolution of the dispute); Rolnick irreparable harm, which applies to private
v. Rolnick8 (in an action to impose a con- parties seeking injunctive relief, does not
structive trust upon the stock of defendant apply in the public interest field. Thus,
corporations, the court ruled that a disposi- when the Attorney General is authorized by
tion of the stock shares would render any statute to seek injunctive relief to enjoin
judgment ineffectual, ruling that an injunc- fraudulent or illegal acts, no showing of
tion maintaining the status quo would not irreparable harm is necessary. State of New
unduly burden the defendant, yet the denial York v. Terry Buick Inc., 137 Misc.2d 290,
of such relief could do irreparable harm and 520 N.Y.S.2d 497 (Sup Ct. 1987).
cause substantial prejudice to movant);
Accordingly, here where the Attorney
Brennan v. Barnes9 (Court grants temporary General is authorized pursuant to NPCL §
restraining order precluding defendants 112 to seek injunctive relief with respect to
from transferring the subject stock shares, any acts which form a basis for the bringing
despite sharp factual differences in the par- of any action or proceeding by the Attorney
ties’ respective affidavits, so to maintain sta- General pursuant to the NPCL, no showing
of irreparable harm is necessary.12
Third, as for balancing the equities, the
court must evaluate the harm that each party
will suffer with and without the injunctive
relief. Prevailing Second Department
precedent requires that movant demonstrate
that the harm which it would suffer from the
denial of the motion is decidedly greater
than the harm its opponent would suffer if
the preliminary injunction were granted.13
In this analysis, a thorough client affidavit
is imperative to a successful application.
The preliminary injunction application is
not the time to be circumspect with respect
to all of the facts which have influenced the
client’s decision to seek provisional relief.
Finally, an analysis of the quantum of the
undertaking is appropriate. It is clear that
CPLR 6312(b) requires movant to furnish a
bond contemporaneously with the effectuation of a preliminary injunction order. The
undertaking is to secure the opposing party
for actual losses and costs — not theoretical
losses, “if it is later finally determined that
the preliminary injunction was erroneously
granted.”14 Indeed, the court’s discretion in
setting the amount of the undertaking must
be “rationally related” to the potential damages and costs that the enjoined entity may
suffer.15 In that regard, mere conclusory
assertions of potential monetary loss are
insufficient to justify anything more than a
minimal bond.16
Note: Leo K. Barnes Jr. is a member of
Barnes & Barnes, P.C. and can be reached
at [email protected]
1 Hightower v. Reid, 5 A.D.3d 440, 772 N.Y.S.2d
575 (2nd Dep’t 2004).
2 Doe v. Axelrod, 73 N.Y.2d 748, 536 N.Y.S.2d 44
(1988).
3 Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 552
N.Y.S.2d 918 (1990).
4 Terrell v. Terrell, 279 A.D.2d 301, 719 N.Y.S.2d
41 (1st Dep’t 2001).
5 Walsh v. Design Concepts, Ltd., 221 A.D.2d
454, 633 N.Y.S.2d 579 (2nd Dep’t 1995).
6 Ma v. Lien, 198 A.D.2d 186, 604 N.Y.S.2d 84
(1st Dep’t 1993).
7 112 A.D.2d 837,492 N.Y.S.2d 756 (1st Dep’t
1985).
8 230 N.Y.S.2d 789 (Queens Sup. 1962).
9 232 N.Y.S. 112 (Albany Sup. 1928).
10 220 A.D. 340, 221 N.Y.S. 414 (1st Dep’t
1927).
11 2003 WL 21649444 (N.Y. Sup. Ct. 2003).
12 Id., at 2.
13 Fischer v. Deitsch, 168 A.D.2d 599, 563
N.Y.S.2d 836 (2nd Dep’t 1990).
14 Margolies v. Encounter, Inc., 42 N.Y.2d 475,
398 N.Y.S.2d 877 (1977).
15 Lelekakis v. Kamamis, 303 A.D.2d 380, 755
N.Y.S.2d 665 (2nd Dep’t 2003).
16 7th Sense, Inc. v. Liu, 220 A.D.2d 215, 631
N.Y.S.2d 835 (1st Dep’t 1995).
13
2009 NYS Statewide High School Mock Trial Tournament
Thank you to the following SCBA members who participated as volunteer judges
and attorney team coaches in the 2009
New York State High School Mock Trial
Tournament and Alan Todd Costell, Esq.,
the Suffolk County Coordinator. Their
individual commitment to public legal
education and public service is very much
appreciated.
Hon. Salvatore A. Alamia; Peter J.
Ausili, Esq.; Hon. Toni A. Bean; Charles
E. Berg, Esq.; Howard M. Bergson, Esq.;
Hon. Joseph F. Bianco; John P. Bracken,
Esq.; John J. Breen, Esq.; Bryan E.
Cameron, Esq.; Kevin B. Campbell, Esq.;
Dennis R. Chase, Esq.; James W.
Corrigan, Esq.; Steven A. Costantino,
Esq.; Daniel J. DeRosso, Esq.; William A.
DeVore, Esq.; Timothy J. Domanick, Esq.;
Gerard J. Donnelly. Esq.; Hon. Lawrence
Donohue; Wayne J. Donovan, Esq.; Brian
C. Doyle, Esq.; Hon. Patricia M. Filiberto;
Richard L. Filiberto, Esq.; John P.
Finnerty, Esq.; Colleen McManus
Fondulis, Esq.; Neil M. Frank, Esq.; Hon.
Jerry Garguilo; William Gearty, Esq.;
Leonard M. Grenci, Esq.; Elizabeth
Harrington, Esq.; Hon. Jennifer Anne
Henry; G. Ronald Hoffman, Esq.; Hon.
Richard I. Horowitz; Hon. John Iliou;
Scott M. Karson, Esq.; David M.
Kaufman, Esq.; Hon. John Kelly; Michael
C. Kennedy, Esq.; Howard E. Knispel,
Esq.; Bryan P. Kujawski, Esq.; Stephen
Kunken, Esq.; David Lazer, Esq.; Judith
Lipner, Esq.; Hon. Steven A. Lotto; Hon.
Carol MacKenzie; Robert R. Meguin,
Esq.; Patricia M. Meisenheimer, Esq.;
Scott D. Middleton, Esq.; Scott Michael
Mishkin, Esq.; Daniel C. Mooney, Esq.;
Laurette Mulry, Esq.; Brian C. Mitchell,
Esq.; Adam Oshrin, Esq.; Jeffrey M.
Pincus, Esq.; Hon. James F. Quinn;
Martha M. Rogers, Esq.; Ira S. Rosenberg,
Esq.; Joseph M. Rosenthal, Esq.; Jamie
Rosner, Esq.; Frank S. Russell, Esq.;
Robert J. Savage, Esq.; Ronald C. Schule,
Esq.; Kenneth M. Seidell, Esq.; Hon.
Sandra Lynne Sgroi; Arthur E. Shulman,
Esq.; David Sobel, Esq.; Joseph K. Strang,
Esq.; Hon. John J. Toomey, Jr.; Richard D.
Winkler, Esq.; Edward R. Young, Esq.;
George R. Zuckerman, Esq.; Marjorie E.
Zuckerman, Esq.
This has been a very successful year
both in the number of schools and students
participating as well as in educating the
public about the legal and ethical foundations of our society.
The Honorable Arthur D. Spatt presided
over the Long Island Regional competition
which took place on April 29 at the
Alphonse D’Amato U.S. Courthouse in
Central Islip. The Suffolk County winner,
Central Islip High School, competed
against the Nassau County winner, W.
Tresper Clarke High School for the regional title. The state final competition was
held in Albany on May 17-19, 2009.
Anyone wishing to volunteer their time
to this worthwhile program, as either an
attorney coach or judge, should contact
Joy Ferrari at the bar association at 2345511 ext. 224.
TRUSTS AND ESTATES
Vacating Surrogate’s Court Decrees
___________________
By Robert M. Harper
executors of her estate. The
attorney also advised the court
In Matter of Blaukopf, the
of the objectants’ intention to
Surrogate’s Court, Nassau County,
prove that the 2006 will was the
recently took the rare step of vacatproduct of fraud, undue influing a probate decree. The court
ence, insufficient testamentary
premised its decision on the fact
capacity, and improper executhat it was not “satisfied as to the
tion.
genuineness of” the disputed will.
In April 2008, Gravat filed an
This article discusses the standard Robert M. Harper amended petition, which did not
for vacating Surrogate’s Court
reflect her status as an interested
decrees and the court’s decision in person under the will. Instead, it listed three
Blaukopf.
of the decedent’s surviving family members
Absent guidance in the Surrogate’s Court as interested parties and stated that none of
Procedure Act (“SCPA”), Rule 5015 of the the beneficiaries under the will had a confiCivil Practice Law and Rules (“CPLR”) dential relationship with the decedent.
governs the vacatur of Surrogate’s Court
In June 2008, the objectants’ counsel
decrees.1 Several grounds for vacating filed family tree affidavits evidencing that
such decrees are enumerated in Rule 5015. the decedent was survived by six distribuThey are excusable default; newly discov- tees. Although Gravat subsequently amendered evidence; “[f]raud, misrepresentation ed the petition a second time and “acknowlor other misconduct by an adverse party;” edged the existence of the six alleged dislack of jurisdiction; and “[r]eversal, modifi- tributees[,]” her attorney did not furnish the
cation or vacatur of a prior decree . . . upon objectants’ counsel with a copy of the secwhich it is based.”2
ond amended petition or otherwise apprise
Those grounds are not, however, exclu- him of its filing.
sive.3 Surrogate’s Courts have discretion to
Gravat’s attorney did contact the objecvacate decrees for good cause and typically tants’ counsel in an effort to ascertain
do so when the interests of justice necessi- whether the objectants would file objections
tate such relief.4 Additionally, since the to probate, but did not succeed in that
inquiry is fact-specific, “[t]here is . . . no endeavor and instead served and filed a
ready template for [vacating Surrogate’s decree admitting the 2006 will to probate
Court decrees in the interests of justice.]”.5 with notice of settlement. No objections
Blaukopf is illustrative. There, the dece- having been filed, the Surrogate’s Court
dent died in June 2007, survived by six dis- admitted the will to probate by decree dated
tributees.6 On September 21, 2007, her October 31, 2008, and the objectants quicklive-in caregiver, Daria Gravat (“Gravat”), ly moved to vacate the court’s decree.
petitioned the Surrogate’s Court to have the Although the objectants’ counsel argued
decedent’s 2006 will admitted to probate. that his clients had previously advised
The petition stated that the decedent had no Gravat’s attorney of their intent to object
distributees. It also listed Gravat as the and pursue SCPA section 1404 examina“decedent’s live-in companion[,] the bene- tions, Gravat’s counsel asserted that the
ficiary of [her] entire estate, [and] the desig- objectants did not meet the standard for
nated executor[,]” and stated that Gravat vacatur.
had a confidential relationship with the
Noting that the objectants’ counsel did
decedent.
not satisfy the standard for vacatur set forth
On September 25, 2007, the court issued in CPLR 5015, the Surrogate’s Court, nevpreliminary letters testamentary to Gravat ertheless, granted the objectants’ motion to
and directed that she submit a family tree. vacate the decree. The court based its deciShortly thereafter, Gravat attested to the sion on several factors. First, there were
fact that she was “not aware of any disinter- discrepancies between Gravat’s statement
ested person capable of giving a Family in the original petition that she did not know
Tree Affidavit. . . ”
of any distributees and the family tree affiFive months later, in February 2008, the davits submitted by the objectants. Second,
attorney for the decedent’s family members there were discrepancies between the origi(“objectants”) wrote to the court, advising it nal petition and the amended petitions. For
of the decedent’s 2001 will which named example, while the original petition
the objectants as the beneficiaries and described Gravat as the decedent’s live-in
companion, the amended petitions did not.
Similarly, although the original petition
stated that Gravat had a confidential relationship with the decedent, the amended
petitions did not reflect Gravat’s confidential relationship with the decedent or status
as her caregiver. Third, the 2006 and 2001
wills differed substantially and did not provide any explanation as to the decedent’s
intention to disinherit her family. Fourth,
the 2006 will provided that, if Gravat did
not survive the decedent, the decedent’s
estate would be distributed to Gravat’s sis-
ter, not the objectants.
Based upon those factors and the inference of undue influence when a confidential
relationship exists between a beneficiary
under a will and a testator, the court vacated the probate decree. The court reasoned
that its “paramount concern [was] to admit
only valid wills to probate” and expressed
its doubt as to the genuineness of the will,
given Gravat’s “substantive omissions and
misstatements. . . . ”
In sum, one must look beyond the stan(Continued on page 21)
Racanelli Realty Services, Inc.
200 Motor Parkway Hauppauge, New York
10,000 SF Professional Office Space
At the Prestigious Hauppauge Office Condominium
Available for Sale or Lease, Will Divide
• Size: 10,000 Total Square
Foot Unit May be separated
as follows:
7,500 sq. ft.
5,000 sq. ft.
2,500 sq. ft.
•Taxes: $5.23 sq. ft.
• CAM: Inquire
• Sale Price: $ 200 sq. ft.
Condominium has undergone
an extensive restoration project
•Drivit restoration
•New asphalt parking lot
•New roof
•Upgraded landscaping
•Upgraded signage
For more information, please contact:
Anthony Racanelli, Racanelli Realty Services, Inc.
45 Mall Drive, Suite 5 Commack, NY 11725
[email protected]
Tell: 631-434-9400 • Cell: 516-652-6022 • Fax:631-434-2717
14
Women’s Health Symposium
The doctors were in at the Women’s
Health Symposium to offer all kinds of
information to help women make knowledgeable decisions and take control of
their health. The event, held at SCBA
headquarters was sponsored by the SCBA
and the Suffolk County Women’s Bar
Association and coordinated by co-chairs
Ilene S. Cooper, Esq., Janessa M. Trotto,
Esq., and Ivy J. Algazy from North Shore
LIJ Health System.
“I feel that women’s health issue are
paramount in society,” said Ms. Cooper.
“Women are the primary caregivers and
contribute financially to the household
probably more today than ever before.
Their health and well being are of great
importance.”
Everyone enjoyed a light supper before the symposium began.
Photos by Laura Lane
Attendees found the seminar quite informative.
Dr. Jeffrey Ellis, the
Director of
Dermatological
Surgery at North
Shore University and
LI Jewish Hospitals
spoke about UV radiation and skin cancer.
Like most SCBA
events there was time
to socialize, too.
There were many handouts for everyone to take home.
Dr. Joseph Diamond, the Director of Nuclear Cardiology at LI Jewish
Medical Center spoke about hypertension
15
Surrogate Court Committee Meeting
Over 30 attorneys attended the Surrogate Court
Committee meeting on April 23 at the SCBA. Hon. John
M. Czygier, Jr., the Surrogate Court Judge of Suffolk
County spoke on counsel fee awards in the Surrogate
Court.
Honorable John M. Czygier Jr. speaking to the committee.
Many people attended the April Surrogate Court Committee meeting.
Annual SCBA Membership Meeting
Former SCBA President and Chair of the
Scholarship Fund Lynn Adair Kramer presents
a $1000 check to the 2009 Scholarship Award
recipient Christopher A. Lau.
SCBA President James R. Winkler presents a golden anniversary award to
Thomas Casey.
Jim Winkler presents plaques to members of the Board of Directors who have completed
three years of exemplary service to, from left, Patricia M. Meisenheimer, Richard L. Stern,
Richard Alan Weinblatt and Ted Rosenberg.
SCBA members receiving Golden Anniversary Awards, left to right, John Nappi, Thomas Casey, James J. Von Oiste, Leonard I.
Feigenbaum, past SCBA president Eugene J. O’Brien, current SCBA President Jim Winkler, Leonard Schnitzer, Joseph A. Milligan and
John H. Mulvehill.
SCBA President Jim Winkler presenting
an Award of Recognition to Robert H.
Cohen, Co-chair of the Education Law
Committee.
16
DWI
Lapse of Insurance
___________________
By David A. Mansfield
Driver license and registration suspensions for lapse of insurance pursuant to
Vehicle & Traffic Law §318 have become
exceedingly common due to the worsening
economy. Defense attorneys frequently
receive calls from distressed clients seeking
relief.
Lapse of insurance suspensions are generated when your client’s insurance carrier
electronically notifies the Department of
Motor Vehicles that the client’s insurance
has been cancelled or not renewed and the
vehicle registration has yet to expire.
The advent of two-year registrations has
only exacerbated the problem because suspension for lapse of insurance is calculated
from the date of the end of the coverage
until the expiration of the registration.
There are several frequent situations,
which result in vehicle registration or driver
license suspension that will be discussed in
this article.
Frequently the client will take a vehicle
“off the road” without surrendering the
unexpired registration plates. The vehicle
may have become in-operable, or too
expensive to repair, and been stored for
months at a repair shop. The Department of
Motor Vehicles will most likely not waive
the vehicle or driver license suspension
under these circumstances.
If the client’s vehicle has been repossessed, impounded, stolen or sold, they must
tain continuous liability, comprepresent satisfactory proof to have
hensive or collision coverage for
any vehicle registration or driver
a leased or financed vehicle will
license suspension modified or
constitute a breach of contract.
rescinded by presenting the docuThe Department of Motor
mentation to a Department of
Vehicles does provide a safe harMotor Vehicles examiner at a
bor for lapses of insurance that
local DMV office or, in some
are less than 90 days. Your client
instances by correspondence to
may be eligible to pay a civil
Albany. The answers can be found
on the website at http://nysdmv. David A. Mansfield penalty option only once within
custhelp.com/cgi-bin/nysdmv
three years as per VTL §318 1-a
.cfg/php/enduser /std_adp.php?p_faqid=112 (b). The key factor is that your client would
and similar links.
have to appear at the DMV office and surIf the client is involved in an arrangement render the plates or pay the civil penalty
for a third party to insure the vehicle, and before the expiration of the 90 days. A drithat vehicle is not insured in the name of the ver license suspension will result under
registrant, this will trigger a lapse of insur- VTL §318 1-a (e) upon the lapse of insurance for the vehicle or a license suspension ance coverage exceeding 90 days.
even though the vehicle was “insured.”
The Department of Motor Vehicles has a
Therefore, the insurance company is not graduated civil penalty where it is $8 per
obligated to defend in the event of a claim day for a lapse of insurance coverage on
against the liability portion of the policy.
days 1-30 and $10 per day for days 31-60
Your client may keep operating the vehi- and $12 per day for days 61-90.
cle with the suspended registration plates
Should your client appear at the
until confiscated by the police during a Department of Motor Vehicles on the 92nd
Vehicle and Traffic Law stop. The lapse of day they will be informed that the plates
insurance is only for the mandatory cover- must be surrendered and that the driver
age required (first party benefits, no-fault license is suspended for 92 days as well,
and for lapse of liability insurance).
which may involve eligibility and applicaShould your client’s insurance coverage tion for a restricted use license under VTL
lapse for comprehensive (usually physical §530(6).
damage in case a tree were to fall on the
The requirements for motor vehicle
vehicle, theft or collision) the Department insurance must be New York State coverof Motor Vehicles will not suspend the age by a company authorized to do busilicense or registration. The failure to main- ness. Should your vehicle be registered in
Printing
New York State you cannot have out of
state insurance coverage.
The minimum policy requirements for
New York State are $25,000/$50,000 for an
injury, $50,000/$100,000 for a death and
$10,000 for property damage.
Should your client wish to seek relief
from an unjustly imposed vehicle registration or driver license suspension, counsel
can rely upon §318(13) (a)(b). These provisions allow a person who is the subject of a
vehicle registration or driver license suspension order as a result of a lapse of insurance coverage to file affidavits with the
department seeking relief from the suspension or revocation. Your client must establish by clear and convincing evidence their
lack of knowledge and the reason financial
security was not in effect solely from the
negligence or malfeasance of a third party.
The department will only grant relief in
very limited circumstances.
The statutory relief is usually applied in
those very rare instances where your client
can prove they paid for insurance coverage
with a broker and the coverage was not put
into place because the broker defalcated or
stole the money. It can help your client,
who has less than satisfactory proof of
payment, if the broker is currently under
investigation by the State Insurance
Department.
Defense attorneys will find that in the
vast majority of factual patterns the client
for the
Profession
quick printing - letterhead - business cards
forms - four-color work - fast turnaround
[
specialty printing
(866) 867-9121
17
RESTAURANT REVIEW
Sempre Vivolo... Always Perfect!
__________________
By Dennis R. Chase
The phrase old word charm simply
doesn’t do justice to this Hauppauge hidea-way. Sempre Vivolo, which literally
translated, means, always Vivolo. Vivolo
is the surname of the family owning this
and five other restaurants in the New York
area (including the original, Villa Vivolo
(8829 26th Avenue, Brooklyn, New York
(718) 372-3626) established in 1931 by
Sempre Vivolo, owner Carmine Vivolo’s
grandfather; Vivolo (140 East 74th Street,
New York, New York (212) 737-3533);
Anche Vivolo (212) 308-0112 ); Cucina
Vivolo (138 East 74th Street, New York,
New York and 222 East 58th Street, New
York, New York (212) 717-4700); and
Bar Vetro (222 East 58th Street, New
York, New York (212) 308-0112).)
While I can’t claim to have ever sampled any of these other restaurants (yet), I
can boast to have been a steady customer
of Carmine Vivolo’s wonderful fare for
over 23 years, since the restaurant first
opened in 1986. I would like to believe,
however, the name loses something in
translation. Properly translated, a more apt
name for the restaurant would be always
perfect.
Sempre Vivolo is stylishly attractive.
Mahogany wood paneling is softened by
rose colored upholstered chairs, fresh flowers, an Art Deco panel of etched glass, and,
historically constructed nearly a century
ago in the Brentwood Toll Lodge of the toes, will be a meal in itself at the end of the
Vanderbilt Motor Parkway, moved about summer when the Long Island harvest of
100' from its original location. Much more local tomatoes is available. I have an idea
importantly, every member of the staff that wherever the chef is finding (or growstrives to make every diner feel like a mem- ing) those amazing peas, he’s also cultivatber of the Vivolo family. They are not only ing the finest arugola for the Insalata
incredibly attentive, but warm, friendly, Arugola served with shaved parmigane
and very knowledgeable when explaining cheese and roasted peppers and dressed in
both their specials and standard menu fare. a light but lively vinaigrette. Fabulous!
As one would expect, the meal begins with
The test of any fine Italian restaurant is
not warm rolls, but piping hot rolls served how well (or poorly) the Rigatoni alla
with salted, whipped, creamy butter. As Bolognese, rigatoni pasta with a light meat
soon as one finishes one of
sauce, is prepared. This spirthese bakery delights, a staff ____________________ ited version of the classic dish
member is at the ready to Sempre Vivolo
was perfectly al dente, and
offer a replacement.
wonderfully savory. The
696 Motor Parkway
Although there are no less Hauppauge, New York Bistecca all Griglia, the
than 11 choices from which 631.435.1737
grilled sirloin steak, is what
to choose from the Antipasti _____________________ you’d expect from only the
section of the menu, seven
finest New York City steak
from Insalate, and nine from the Pasta sec- house served with sautéed fresh vegetables
tion (which can either be served as an appe- that were something more than just a mere
tizer or entrée), there are often additional afterthought. The star of the evening, if
specials that are quite difficult to ignore. one could limit the finding to only one dish,
The luxurious Ravioli alla Matricana, fresh was the Cotoletta Valdostana, a large veal
ricotta filled ravioli served in a light pink chop stuffed with prosciutto, fontina
sauce with pancetta bacon and peas left me cheese, and topped with a porcini mushwishing I ordered this as an entrée and room sauce.
The Pollo Oreganate,
wondering where the chef was getting such extremely tender breast of chicken topped
fresh peas. The Melanzane Rollatine, with prosciutto, mozzarella, and finely searolled eggplant, stuffed with ricotta cheese soned bread crumbs with a white wine
and topped with a tomato sauce and moz- sauce was a very close second.
zarella was light, delicate, and tasty. The
Dessert treated diners to very fresh tartuMozzarella Fresca, fresh mozzarella fo, unbelievable tiramisu, and intensely
topped with pesto and served with toma- rich, aromatic coffee. Sempre Vivolo also
offers an extensive wine list of fairly
priced and well selected wines. The house
wines, however, are more than just a cut
above the rest.
Sempre Vivolo is a very special place
combining a wonderful atmosphere,
impeccable and friendly service, and outstanding fare. You can always count on
making any visit an unintended special
occasion. Special occasions are made perfect. Carmine Vivolo and Sempre Vivolo
are always perfect.
Note: Dennis R. Chase is the current
Secretary of the Suffolk County Bar
Association, a frequent contributor of The
Suffolk Lawyer, and a partner with The
ChaseSensale Law Group, L.L.P. The
firm, with offices in Suffolk, Nassau, and
Queens Counties, concentrates their practice in Workers’ Compensation, Social
Security Disability, Long Term Disability,
Short Term Disability, Disability
Retirement, and Accidental Death and
Dismemberment Benefits.
BOOK REVIEW
Scottish Bar’s Loss Was Literature’s Gain
_____________________
By William E. McSweeney
it of blood) was understandably
drowning." Stevenson was an
off-putting to captain and crew.
aesthete, but he was no fool. The
All of Robert Louis Stevenson's life Stevenson had, moreover, a
Casco’s trip, (after a shaking
formed a near-death experience. Afflicted deathlike whiteness of complexdown of ship, crew, and passenwith bronchiectasis, which in Stevenson's ion, and, at 5'10," he weighed
gers) to the Marquesa Islands
day was an irreversible, deadly, condition, but 98 pounds. If applied to
was for the most part a pleasant
the author did little to alleviate his malady, Stevenson, the word "wispy"
adventure.
living throughout his young manhood in would be an understatement.
The Marquesas were but one
the damp, unforgiving climate of Scotland, Stevenson was so slight the
group in the Micronesian and
and remaining a chain-smoker of ciga- "Casco’s captain, Bert Otis,
Polynesian chains that the
William E.
rettes throughout his adult life.
feared he might be blown over a
Stevenson clan visited. The
McSweeney
There came a time, though, in his later lee rail in the face of a freshenodyssey they undertook involved
years that Stevenson's thoughts turned to ing wind.
passages progressively to Tahiti, Hawaii,
the South Pacific, whose _________________________________
Captain Otis Nanumea, Pago-Pago--the evocativeness
climate, he hoped, Treasured Islands: Cruising the South needn't
have of their very names enough to rouse the
would provide physical Seas with Robert Louis Stevenson.
worried. Despite most sedentary land-bound of souls. Once
and spiritual tonic. In By Lowell D. Holmes
his
physical again, throughout these passages (the latter
1888, driven by the wish Illustrations by Raymond Aker
slightness and ones successively aboard the schooner
for health as much as the With photographs; charts; hull profiles,
his unapologetic "Equator" and the schooner-steamship
hope of adventure, deck designs and sail plans
e s t h e t i c i s m , "Janet Nicoll"), Stevenson impressed capLouis, along with his 281pp. Sheridan House
Stevenson soon tains and crews by his companionable
wife Fanny, his stepson ISBN# 1-57409-130-1
won the affection manner and good seamanship. Indeed,
Lloyd, his mother _________________________________ of all hands. The aboard the "Equator," something of a spirMaggie, and the family
crew
admired itual interchange occurred. Stevenson,
maid, Valentine, boarded the schooner him for keeping the deck in all weather; with his slightness of physique, improba"Casco," bound from San Francisco to the the captain, correcting the author's techni- bly evolved into an able-bodied seaman. In
South Seas.
cal errors in "Treasure Island," admired his their turn, the ship's captain, Dennis Reid,
To the captain and crew, this quintet, auditor for his willingness to be corrected. and the ship's cook-steward Thomson
engaged in a cloistral southern migration, The captain's admiration for the author Murray MacCallum, with their robustness
seemed strange birds indeed, none among was to grow. Stevenson's turning out dur- of physique, improbably evolved into writthe flock stranger than its central figure. ing a squall--freeing a jammed foresail ers. Reid eventually becoming a novelist,
The man who had written "Treasure sheet, after commanding "Pinch her well" MacCallum a memoirist whose "Adrift in
Island," "Dr. Jekyll and Mr. Hyde," and (point the ship still more to windward) to a the South Seas" lovingly recounted his
"Kidnapped," robust stories all, was him- hesitant helmsman--was instrumental in charter trip with the Stevenson family. A
self anything but robust.
preventing capsize. When commended by scrivener became a salt; salts became
Notwithstanding that bronchiectasis Captain Otis, Stevenson was sanguine and scriveners. Stevenson's body wasn't infecwas, and remains, non-contagious, one of pragmatic, in his reply saying, "I worked tious but his spirit was.
its principal symptoms manifested by like a Trojan, judging the possibility of
The family reached the Samoan island
Stevenson, a persistent coughing (some of hemorrhage better than the certainty of group in 1889, one year after they had set
off. Mail delivery was reliable allowing
Stevenson to correspond with friends and
business associates, and receive on a regular basis his royalty checks. In contrast to
other island chains he had observed,
Samoa, the author reported, possessed "a
more gentle scene, gentler activities, a
tamer face of nature." The Samoans were
themselves "courteous; the women very
attractive, and dress lovely; the men purposeful, well set up, tall, lean and dignified. They are easy, and pleasure loving;
the gayest... of Polynesians." Most important to Stevenson, Samoa was the only
place he had visited that kept at bay
"Bluidy Jack"--the author's term for his
lifelong companion, his malady. Thus,
under Samoa's "wide and starry sky,"
Stevenson took up permanent residence.
Home was the sailor.
The remaining five years of his life certainly represented his most productive season. He turned out 700,00 words of fiction
and non-fiction; that is to say, he published, among other titles, "The Bottle
Imp," "In the South Seas," "Ballads," "A
Footnote to History," "Across the Plains,"
"The
Wrecker,"
"Island
Nights'
Entertainments," "Catriona," "The Ebb
Tide," "The Beach of Falesa," and "St.
Ives."
During these years, Stevenson also gloried in the physical, helping in the construction of Villa Vailima, his estate overlooking the broad Pacific.
"It is like a fairy-story," he wrote. "That I
should have recovered liberty and strength,
and should go round again with my fellow(Continued on page 26)
18
SECRETARY’S REPORT
_______________
By Dennis Chase
Oheka Castle, Cold Spring Hills,
New York. This is an opportuniMembers of our bar were proty to not only celebrate with colvided with a great deal of useful
leagues, but also a chance to mininformation on women’s health
gle with the esteemed members
thanks to the hard work of the
of our distinguished judiciary.
symposium’s co-chairs,PresidentPlease join us for this very speElect Ilene S. Cooper, Esq.,
cial event.
Janessa M. Trotto, Esq., and Ivy J.
For something a little different,
Algazy. Speaking on such imporjoin the members of the extremetant, current, and diverse health Dennis R. Chase ly active Animal Law Committee
issues such as hypertension, diabetes, ultra- for their First Annual Dog Day Afternoon
violet radiation & skin cancer, migraine Agility Expo and Pet Fair scheduled for
headaches, and aging parents, the distin- Sunday, May 31 from 10:00 a.m. to 4:00
guished panel of health care professionals p.m. at Doggie “U” K9 Academy located at
provided incredibly useful information with 41 Saxon Avenue, in Bay Shore. The prodynamic presentations. Those fortunate gram will include special demonstrations
enough to attend this interesting seminar left by the K9 CERT Search and Rescue
with very useful information on living Division of the Suffolk County Police
longer, happier, healthier lives.
Department, as well as, Canine
The Strategic Planning Committee is Companions for Independence, and rescue
hard at work collating and analyzing the groups of all kinds. Although your pets are
information recently collected by the sur- not welcome, they’ll be plenty of dogs to
vey sent electronically to all of our mem- see and enjoy.
bers that provided a valid e-mail address.
Finally, the Bar is proud to announce, that
Together with SCBA staff members and due to the fiscal diligence and responsibility
Elizabeth Derrico (Associate Director, of both the Board of Directors and the
ABA Division of Bar Services) the Suffolk Academy of Law (not to mention
Strategic Planning Committee is dedicated the extremely hard work of the finance
to improving the value and importance of committee and dedication of several past
SCBA membership. The bar association, treasurers), there will be absolutely no
always striving to stay relevant in an ever increase in the dues structure for the 2009changing socioeconomic environment, has 2010 fiscal year something to be thankful
created a number of new committees for in an increasingly challenging economy.
including a Diversity Committee, a
Community Outreach Committee, and a
Note: Dennis R. Chase is the current
Past-Presidents Council. Further, the bar Secretary of the Suffolk County Bar
will be offering a free program, Association, a frequent contributor of The
“Succeeding in the New Economy” sched- Suffolk Lawyer, and a partner with The
uled for early June at the SCBA Bar Center. ChaseSensale Law Group, L.L.P. The firm,
Look for details on this valuable member with offices in Suffolk, Nassau, and Queens
benefit elsewhere in this issue of The Counties, concentrates their practice in
Suffolk Lawyer.
Workers’ Compensation, Social Security
The Suffolk County Bar Association is Disability, Long Term Disability, Short
proud to invite you to the 101st Annual Term Disability, Disability Retirement, and
Installation Dinner Dance and Judiciary Accidental Death and Dismemberment
Night on Thursday, June 4 at 6:00 p.m., Benefits.
On A Good Friday
A Good Man Left Us
if you wish. I prefer to call it a celebration
of Gus’ life.
I believe that people such as Gus, who
have lived a long and productive life,
near the end are at peace. They acknowledge that the end is near, while loved
ones say words to the effect that “you’re
not going anywhere yet.” I believe Gus
was that way near the end, at peace with
himself and perhaps looking forward to
what so many of us hope lies ahead. As
many of us know, Gus was a devoutly
religious person. When at one point during his last weeks as he was coming out
of a coma seeing Betty, several of his
children, and grandchildren gathered
around he asked “Am I in heaven?” He
was assured, probably to his disappointment, that if he were, they all would not
be gathered around him….at least not
yet. On another occasion, Gus seeing
those around him at his bedside, no doubt
accepting that his time was near,
remarked “I’ve had a great run.”
On an earlier occasion, Gus said to the
other Gus, his good friend for so many
years, Gus Fishel, that “you made me a
hero” referring to “the other Gus” making
documentation of so many of Gus’
exploits available. Gus, Fishel that is, said
(Continued from page 5)
“I didn’t make you a hero. You made
yourself one.” That exchange was so typical of both men. By the way, if you didn’t
know, Gus G. was August and Gus F. is
Gustave, although I’m not sure when the
last time was that anyone called either Gus
August or Gustave respectively, but I
digress.
It was important to Gus that he be
remembered more for his efforts to help
those in need than any other of his many
lifetime accomplishments. His dedication
to the Lawyers Assistance Fund, as well as
other support groups for lawyers and nonlawyers alike was known to all who knew
him. You can see how important this dedication to helping others was to Gus when
you read in his own words:
“…. inclusion of my service to others
who suffered addictions gave understanding and “grace” to a rather difficult period of my life.”
So Gus, you thought you had a great
run? You got that right!!
Note: John Buonora is the Chief
Assistant District Attorney for Suffolk
County, the immediate past president
director of the SCBA and an adjunct professor at Touro Law School.
President’s Message
bers and we have seen new leaders
emerge from that institution. But we must
do more to convince our members to participate in the professional activities of the
association and, more importantly, that
they have good reason to do so. The frenetic nature of law practice and indeed,
our society, coupled with a struggling
economy has made it much more difficult
to involve our members in positions of
leadership.
That effort requires a real commitment
from the association to increase the diversity of our organization and to actively
recruit new members. It also requires
broader involvement by our committees
and boards in the processes and discussions leading to important decisions made
by the Executive Board. That is to say, a
real commitment to bottom-up management will go a long way to create future
leaders of the SCBA.
In that regard we have started a longrange planning process designed to identify the needs of the association. We are
hopeful that such a process will lead to
important improvements in our operation
and set the stage for continuity of policy
from year to year. When officers serve for
only one year at a time, it is impossible to
make needed improvements without a
vehicle for multi-year planning. Further,
the association will move forward, in the
coming year, to establish a Leadership
Institute born of a seed planted by our former President, Barry Smolowitz. If successful, this institute will go a long way
toward developing a broad- based reservoir of talent for many years to come. And
Ilene Copper, as our next President, is
committed to community outreach opportunities for lawyers that will only enhance
the reputation of lawyers as leaders in the
community.
This year has solidified my long-held
view that Bar Association participation is
an important tool in improving oneself as
a lawyer. I have had the opportunity to
engage lawyers from all over the
state…indeed, the country, and learned
from all of them. This is truly a collegial
profession and such collegiality inures to
the benefit of the clients we serve. I have
had the opportunity to meet so many
lawyers and judges from Suffolk County
and have been enriched as a result. To all
the members of the SCBA, I thank you
sincerely for this opportunity.
To Jane LaCova and the magnificent
staff of the association, I thank you for
your support and affection during this
year. I will remember you always as extraordinary people devoted the lawyers of
this county. In the end you are the backbone of our organization and uniquely
committed to its success.
To the Executive Board and the Board
of Directors, I thank you for all of your
help and your devotion to the Suffolk
County Bar Association. The Officers of
the Bar have been extraordinary to work
with and carried out their duties
unselfishly and with a needed sense of
humor. Many thanks particularly to Ilene
Cooper who, as President-Elect was supportive of everything I wanted to do and
wise in her suggestions when necessary.
No one in this position could have been
luckier than me to be preceded by Barry
Smolowitz. His knowledge of the workings of the SCBA and his willingness to
generously share that knowledge was
invaluable.
Finally, to the practicing lawyers of
Suffolk County, I express my sincere gratitude for this opportunity to lead the Bar
Association. I have come to have great
respect for all of you. From the vantage
point I was privileged to have this past
year, I have seen the sacrifices so many
lawyers make each day for their clients,
families and communities and while the
rewards are often hard to measure or see,
you should all stand proud to know that
you are still a member of the greatest profession on earth.
SCBA Connects Working Parents
A list serve has been created for Suffolk County Bar Association members
who are working parents and interested in connecting with one another. The idea
behind this most recent member benefit is that many attorneys in Suffolk
County, both male and female, are working parents who face the daily challenges of handling the significant responsibilities of being an attorney while
simultaneously having the even more significant responsibilities of being a parent. Childcare alternatives, flexible schedules, integrating work and family life
effectively, networking within particular time limitations, and career development are just some of the potential topics of discussion for participants.
Ideally, the list serve can provide an opportunity for members to feel connected to other similarly situated parent-attorneys, which may reduce feelings of
stress and isolation. At the same time, participants can make a true contribution
to peers and colleagues by offering practical suggestions and meaningful assistance based upon their own experience as attorney-parents.
There is no obligation once you are a member of the list serve – you may stay
on the periphery and observe the members’ exchanges or you can become an
active participant. Either way, the Working Parents List Serve is a member benefit of the SCBA that you are welcome and encouraged to join. To do so, please
send a brief e-mail expressing your interest to SCBA 1st Vice President Sheryl
Randazzo at [email protected]. Your working parent colleagues are looking forward to your involvement.
— Randazzo
To Advertise in
The Suffolk Lawyer
Call
(866) 867-9121
19
AMERICAN PERSPECTIVES/OPINION
Contract Law, Taxation and the U.S. Constitution
AIG debacle, background and main players
__________________
By: Justin Giordano
This column is dedicated to the various
opinions of SCBA members. Submissions
will be accepted from all members of the
SCBA.
It’s March 2009 and enemy number one
seemingly has been identified. Its name is
AIG (American International Group), or
more specifically its employees and executives who were the recipients of bonuses
totaling approximately 175 million dollars.
From the halls of the U.S. Congress to the
White House (although belatedly from the
president himself) and of course reflexively
regurgitated by the unthinking, pliant socalled major media, the AIG employees
have been vilified to the hilt. Thus these
law, which is
“ Contact
the pillar of free market
capitalism and thus
the engine of our
economic system,
the most successful
system ever known in
the course of human
history, is under assault.
”
AIG employees have superceded all other
pressing concerns including a free falling
economy and the “Al Qaeda” terrorists (if
one is to judge by the president’s first executive order, the closing of the Gitmo prison
camp in Guantanamo Bay where some 240
or so of the most dangerous, proven and
avowed enemies of the country are imprisoned).
The AIG issue is a direct outgrowth of the
February 2009 Recovery Bill, also known
as the stimulus bill. Its cost exceeded 787
billion dollars and constituted the second
such bill in less than four months (the first
$750 billion stimulus bill having being
enacted in October 2008). President
Obama and the other supporters of the 2009
stimulus bill proclaimed that the bill was
absolutely necessary for the American economic recovery and had to be passed immediately. As the president put it and emphatically warned, failing to pass the economic
stimulus bill would turn a “crisis into catastrophe.” Consequently, this momentous
piece of legislation was moved along
through congress with hyper-speed and
voted on (almost exclusively on a partisan
basis) without allowing any time for the
legislators to read it. The Democrat controlled congress urged by the White House
passed the bill in haste, but less than a couple of weeks later as details of the legislation started to emerge came a major poll
showed that 43 percent of voters were
against the bill while only 37 percent
favored it. At one point it had been 45 percent to 34 percent in favor and against. In
the same poll 72 percent of those polled
opposed any stimulus plan that consisted of
solely government spending, while 45 percent preferred a stimulus plan that included
tax cuts only, with 34 percent opposing the
own contract then why should
same.
any individual, corporation or
The legislators (who so eagerly
organization operating under the
and hastily passed the stimulus
laws enacted and enforced by that
bill into law without having read
government honor its contractual
little if any of its contents) natuobligations?
rally never noticed the clearly
The excessive and frankly irrespelled out “bonus provision” for
sponsible behavior shown and
AIG employees. Yet the leaders
actions undertaken by the some in
who helped craft and shepherd
congress was, plainly put, unconthrough the bill were the loudest
and most vocal in denouncing and Justin Giordano stitutional. More specifically as it
vilifying the bonus recipients. Indeed con- pertains to the passing of a U.S. House of
gressional members from both sides of the Representatives Bill that mandated, as stataisle mercilessly attacked the AIG recipi- ed previously, a 90 percent tax rate for the
ents as miscreants, villains and cam just recipients of the bonuses, under the United
States Constitution targeting individuals via
short of calling them criminals.
Senator Schumer (D-NY) went on tele- what is known as a Bill of Attainder is
vision angrily proclaiming that if the strictly prohibited. Similarly, laws that are
money was not given back by the afore- aimed at activities that have occurred in the
mentioned recipients then “the govern- past or prior to a piece of legislation being
ment would take it back from them.” The enacted into law, i.e. ex-post facto laws, are
House of Representatives under the leader- also illegal. Therefore, the legislation
ship of speaker Pelosi quickly drafted and passed by the House of Representatives was
passed legislation that called for a 90% tax strictly a grandstanding maneuver as it must
be assumed that the legislators have at least
on said bonuses.
The populist angle was played to a fever some familiarity with constitutional limitapitch but upon closer inspection certain dis- tions on their legislative authority.
turbing facts started surfacing, revealing Apparently a substantially more rational
that Wall Street greed might not be the only mindset prevailed in the U.S. Senate as the
culprit in this sordid tale. In fact Senator legislation faded away in that chamber.
Chris Dodd (D-CT) was the legislator who
actually inserted the language in the bill that Politically Motivated Excesses
ensured that the AIG bonuses would be paid Endanger Our Economic System
out. However when this piece of informaThe AIG episode seemingly underscores
tion came to light the senator’s first reaction a broader assault against the American ecowas to deny knowledge of this. nomic system per se and its practitioners,
Subsequently when he was confronted with namely the free market capitalist system
the undeniable evidence he claimed that he and those who toil in the field including
did the deed but nonetheless deflected the executives, entrepreneurs and all those who
blame to the White House and its Treasury are even remotely affiliated with Wall
Secretary Timothy Geithner, intimating that Street. It would seem, at least according to
it was they who had been the movers behind those pointing fingers and the media that
the scene who had pushed him to insert the amplifies their columniations that these
so-called Dodd Amendment in the bill.
individuals operate in a world of their own
Timothy Geitner, for his part, also tried to completely divorced from the rest of
deny knowledge but it became quickly evi- American society. In fact quite the opposite
dent that he’d known about this provision is true, approximately 75 percent of
all along, especially since he was in the Americans are employed by small business
thick of it so to speak, and was a directly and almost 60 percent of Americans have
involved participant in the 2009 stimulus direct involvement in the stock market, i.e.
bill as well as the 2008 stimulus bill, that he Wall Street. While the government has an
had helped then Treasury Secretary, Henry important responsibility in ensuring that the
Paulson craft. Additionally, Secretary average investor and the public at large are
Geitner emanated from the ranks of Wall protected from wrong doers, this should not
Street and was thus intimately familiar with imply that the government through its legthe bonus system.
islative powers essentially dismantles the
system under the pretext of saving it.
The broader question—beyond AIG
The prosecutorial branches of the govAIG received over $175 billion in governments at every level should utilize all of
ernment bailout money, of which approxi- the legal tools at their disposal to punish
mately half was funneled through to other those who abuse and corrupt the system,
banks and financial institutions. Therefore such a Bernie Madoff and others. The legthe $175 million paid out in bonuses consti- islative branches should, and must, refine
tutes one tenth of one percent of all of the and amend current legislation and enact
monies AIG received. But whether the new legislation geared at preventing future
bonuses were justified or not is of sec- abuses or systemic corruption. However if,
ondary importance in this case. More as it appears, the current economic downimportantly, and fundamental legal and turn and problems emanating from Wall
indeed constitutional issues are at stake. Street are being used as justification for takContact law, which is the pillar of free mar- ing over entire industries such as the bankket capitalism and thus the engine of our ing and financial industry, this exceeds the
economic system, the most successful sys- bounds and flies in the face of the American
tem ever known in the course of human his- economic system as a whole. For example
tory, is under assault. Essentially if a con- the current administration proposed nationtract cannot be relied upon then what utility alizing the banking industry and this
does a contract have? Why enter into a con- promptly sent the stock market in a downtract at all? And in the AIG case the contract ward spiral from which it’s still recovering.
involves the government itself, via legisla- The downturn was additionally propelled
tion, and if it cannot be held to honor its by the aforementioned stimulus bill, which
was not at all well received by Wall Street.
While the President and its agents pulled
back from the nationalization statement they
nonetheless reiterated that not only executives from banks which accepted government bailout money (i.e. TARP), but also
those from financial institutions that didn’t
receive or refused bailout funds, should be
regulated and capped. If this is followed,
who should be the arbiter of this compensation, a faceless bureaucratic entity? In a
March 26, 2009 Rasmussen poll, 36 percent
of Americans said they would be in favor of
capping the salaries of those executives
whose companies accepted government
money. However the vast majority also stated that non-recipients of bailout money or
other form of governmental support, should
be not have their compensation levels set.
30 percent of respondents also answered in
the affirmative when asked if the salaries of
professional athletes and entertainers should
also be regulated and/or capped.
Thus the question that merits addressing
is this, would a government entity be better
than the shareholders who can demote or
even dismiss their management team if they
regularly do not perform or employers or the
market place as whole be the ones responsible for setting up compensation levels and
packages? While the latter is far from perfect and often fails to efficiently function in
each instance, especially in circumstances
where unmerited bonuses and golden parachutes are awarded, overall it is still much
more preferred approach when contrasted to
a centralized system, which has consistently
yielded a staggering economy and slow to
negative growth whenever and wherever it’s
been tried. One need only look at the former
Soviet Union or Cuba as evidence of the latter, or to a much lesser extend the slower
growing, chronically higher unemployment
economies of Europe.
The irresponsible piling on in the AIG situation is a disturbing example of how easily a good portion of the populace can be
stirred up to irrational proportions by selfserving individuals motivated by the need
to promote a short sighted political agenda
or even more ominously from those few
that may have even darker motives, namely
the demise of the American economic system as it stands. For example, in the AIG
situation, three executives resigned from
their positions, about half voluntarily
returned their bonuses under the threat of an
investigation by the New York State
Attorney General, the government selected
CEO of AIG Liddy was summoned to testify in front of a Congressional committee
headed by Bernie Frank (D-Massachusetts),
where he tried to explain that many of the
recipients of these bonuses received very
minimal compensation and that indeed the
bonuses constituted the bulk of their compensations. J. Diamond, an AIG executive,
finally felt that he had to come out and
make a staunch defense not only in regard
to the bonus issue, but as pertained to his
profession as a whole. He vociferously
underscore that his was an honorable profession and that he and those left at AIG
were utilizing all of their abilities to correct
whatever wrongs were committed and that
they had done nothing wrong.
It should also be noted that Mr. Liddy
himself only receives total compensation of
20
Suffolk County Supreme Court
Honorable Peter Fox Cohalan
Motion to be relieved as counsel; three
remedies to recover legal fees when discharged without cause
In M.H. Kane Construction Corp. v.
David K. Lieb, Esq. and David K. Lieb,
P.C., Index No. 24227-05, decided on
April 16, 2008, the court granted plaintiff’s counsel motion to be relieved as
counsel. The court noted that notwithstanding the terms the agreement between
them, client had an absolute right, at any
time with or without cause to terminate the
attorney-client relationship by discharging
the attorney. The court further pointed out
that an attorney discharged by a client
without cause or relieved by the court had
three (3) different remedies to recover the
value of his/her legal services: the retaining lien; the charging lien and/or the plenary action to recover the value of his services and work product in quantum meruit.
When the discharge was for cause, the
attorney has no right to compensation or a
retaining lien, notwithstanding a specific
agreement.
Motion to amend complaint denied; proposed causes of action palpably insufficient and devoid of merit
In John Micena v. Darren Jay Katz,
Index No. 34210-06, decided on February
18, 2009, the court denied plaintiffs
motion for an order pursuant to CPLR
§3024(b) for leave to amend the complaint
to add causes of action against a non-party.
The court held that the proposed causes of
action were palpably insufficient and/or
devoid of merit. The court noted that leave
to amend a complaint was freely granted,
provided that the proposed amendment did
not prejudice or surprise the defendant,
was not patently devoid of merit, and not
palpably insufficient.
Honorable Elizabeth H. Emerson
Motion to dismiss denied; CPLR
§3211(a)(1) objection waived, not raised
in responsive pleadings or motion to dismiss; leave to withdraw as counsel to be
by order to show cause; correspondence
between parties constituted binding settlement agreement
In Theodore P. McElhone, Mitchell
Kaminsky, Jeff Goldstein, Rosario Gioia,
Douglas Glassman and Hal Zechnowitz
v. Joseph Loliscio, Ann Russo Loliscio,
Marie Russo and Hugh Timms, Index No.
24295, decided on July 18, 2008, the
court denied defendants’ cross motion to
dismiss the complaint against Defendant,
Marie Russo on the ground that a defense
was founded upon documentary evidence. The court noted that an objection
under CPLR §3211(a)(1) was waived
unless raised either by motion to dismiss
or in the responsive pleadings. In denying
defendants’ cross motion for dismissal,
the court held that the objection had been
waived as the defendants had answered
the complaint and the answer did not contain the CPLR § 3211(a)(1) objection that
they now raised. The court also granted
defendants’ counsels’ cross motion to be
relieved as counsel. The court noted that
a motion for leave to withdraw as counsel
must be made on notice to the client and
Sidney Siben’s Among Us
Dinner & Judiciary Night at Oheka Castle.
Richard K. Zuckerman, of Lamb &
Barnosky, LLP, will be speaking on the
topic entitled "Municipal Labor Law and the
Economy" May 18 at the New York State
City/County Management Association 51st
Annual Training Conference being held at
the Sagamore Conference Center in Bolton's
Landing, New York. Additionally, he will
be the moderator of a panel of experts in a
program entitled "Evaluation of Staff,
Discipline and 3020-a" sponsored by the
NYS Association of School Attorneys at
the Sagamore Hotel in Bolton Landing,
New York.
SCBA member Steven E. Zeikowitz, of
Fidelity National Title Insurance Co.
was elected to the Commack Volunteer
Ambulance Corps Board of Directors.
Certilman Balin Adler & Hyman, LLP
and Moritt Hock Hamroff & Horowitz
team-up on Administrative Professionals
Day, April 22, to thank their staff in a special way - by helping them to boost the
Long Island economy. Certilman Balin
Adler & Hyman gave each of their administrative professional staff members a $100
bill, and Moritt Hock Hamroff & Horowitz
gave their administrative professional staff
$75 in cash, along with a $40 gift basket.
Condolences….
Much sympathy to the family of longtime
SCBA member August “Gus” J.
Ginocchio, who died on April 10.
The family of Valerie Manzo and her
family on the passing of Valerie’s beloved
aunt, Martha Gambella. Valerie is also
mourning the loss of her dear friend Eddie.
Nancy K. Munson passed away.
Donations in her honor may be made to the
League for Animal Protection of
Huntington, St. Francis Hospital, Kent
Animal Shelter or the Huntington Fire
Department.
To Richard M. Bronstein of Central
Islip who lost his father at the age of 99.
To the family of Past SCBA President
Richard Quinlan on the passing of his
father, Frank.
Long time honorary member and former
NY State Assemblyman Robert C. Wertz
passed away. Donations may be made to
smiletrain.org
New Members…
The Suffolk County Bar Association
extends a warm welcome to its newest
members: Steven J. Borofsky, Anthony
Clemenza, Laura J. Coogan-Leavy,
Leigh H. Cortez, Anthony F. DeStefano,
Jeffrey Scott Ettenger, Katherine
Geraci, Lawrence J. Germano, III,
Michael R. Greenberg, Richard A.
Hammer, Peter Mandi, Dennis McCoy,
Maryann D. O'Connor, Sharmine
Persaud, Kenneth Rice, Lorin R. Streim
and Patricia Yankus.
other parties by order to show cause.
Here, counsel had moved by notice of
cross motion. However, in view of the
fact that the cross motion was made on
notice to the plaintiffs and to the defendants, who were personally served pursuant to CPLR 308, the court excused the
failure to move by order to show cause.
Finally, the court found that Plaintiff
Rosario Gioia was entitled to judgment as
a matter of law, as the exchange of correspondence between counsels for parties
constituted a binding settlement agreement. The fact that the parties did not
execute a more formal settlement agreement did not render the settlement unenforceable.
Motion for an order of default denied;
although allegations admitted by defendant’s default, allegations unsubstantiated
and unworthy of belief.
In Joann Venturella-Ferretti v. James
Ferretti, Index No. 15648-01 decided on
January 21, 2009, the court denied plaintiff’s motion for an order of default against
the defendant. Plaintiff sought to set aside
the stipulation of settlement in her divorce
action on the grounds that it was the result
of coercion, duress, and undue influence
exerted upon her by the Judicial Hearing
Officer, her own counsel, her former husband, the Law Guardian, and others
involved in the case. In denying plaintiff’s
motion, the court noted that stipulations of
settlement were favored and not lightly
cast aside, especially when as here, the
parties were represented by attorneys and
the stipulation was entered to in open
court. The court reasoned that although the
allegations contained in the complaint had
been admitted because of the defendant’s
default, the legal conclusions to be drawn
from such proof were reserved for the
court’s determination. The court found
that plaintiff’s allegations were unsubstantiated and unworthy of belief.
Honorable Peter H. Mayer
Motion to compel granted; Plaintiff’s
Opposition seeking permission to File
Late Notice for Medial Malpractice and
Certificate of Merit, was not by way of
cross motion and, as such, would not be
considered
In Alaima Tomeo v. David Beccia, MD,
Suffolk Urology, PC and Southside
Hospital, Index No. 7247-07, decided on
October 1, 2008, the court granted defendants motion to compel plaintiff to file a
late Notice of Medical Malpractice and
Certificate of Merit. Moving defendants
sought a Preliminary Conference but were
denied that request based on plaintiff’s
failure to file a Notice of Medical
Malpractice. Moving Defendants brought
then brought this motion to compel the
plaintiff to file the Notice of Medical
Malpractice and Certificate of Merit. In
opposition, plaintiff attached a proposed
Notice of Medical Malpractice and
Certificate of Merit and asked the court for
permission for the late service and filing of
both. This request was not by way of cross
motion and, as such, would not be considered. However, insofar as the moving
defendants were seeking similar relief by
way of a motion to compel, the motion
was granted.
Please send future decisions to appear in
“Decisions of Interest” column to Elaine
Colavito at [email protected].
There is no guarantee that decisions
received will be published. Submissions
are limited to decisions from Suffolk
County trial courts. To be considered for
inclusion in the September 2009 issue,
decisions must be received by August 1,
2009. Submissions will be accepted on a
continual basis. All decisions sent to previously listed mailing address will still
considered for inclusion in future
“Decisions of Interest” column.
Note: Elaine Colavito graduated from
Touro Law Center December 2007 in the
top 6 percent of her class. She is an associate at Heidell, Pittoni, Murphy, & Bach,
LLP, in Garden City, New York, concentrating in litigation defense. She can be
contacted at (516) 408-1600.
Keeping Your Practice
Financially Fit and
Professionally Pleasing
ing methods) as opportunities for professional marketing; Developing New Areas of
Practice, covered by David Eldridge, Esq.,
who will address how to evaluate whether
to move into a new area of practice, and
how to make the move, learn a new area,
develop expertise, and develop mentors
and a client base; and Beyond the Four
Walls, presented by yours truly, who will
discuss ideas for the effective and creative
use of downtime, available self-improvement opportunities, and how to potentially
get more enjoyment out of life.
All in attendance will receive materials
that include practical advice, valuable
resources, and meaningful information to
help attorneys succeed in the new economy. In addition, Todd Whiton, President,
and Natalie Silva, Vice President, both of
Capital Payments LLC, will be on hand to
provide information to all in attendance on
more efficient ways to get paid by clients
and practical fee collection solutions.
No matter what stage of your legal career
you may be in, you will benefit from the
information that will be imparted on June
15. The program is scheduled to begin at
6:00 p.m. and end by 9:00 p.m. at the
SCBA Bar Center, and, although it is free
of charge, reserving your seat in advance is
a must to insure sufficient food and materials for all in attendance. Please mark your
calendar and call to RSVP at (631) 2345588.
Note: Sheryl L. Randazzo is a partner in
the law firm of Randazzo & Randazzo, LLP
in Huntington and Manhattan and the
incoming President Elect of the Suffolk
County Bar Association.
21
COMMITTEE CORNER
News & Notes From
SCBA Committees
Surrogate's Court
Mary K. Kane
and Kurt P. Widmaier, Co-chairs
The committee met on April 23 with
48 people attending. Surrogate John M.
Czygier, Jr. lecture on the topic of
Attorney's Fees in the Surrogate's
Court. We would like to thank the
Surrogate for his time and relevant
information.
The next meeting is in May and we
will review the new changes concerning the power of attorney. We are planning our annual dinner for June and
will be sending out the details soon.
Health and Hospital Law
Thomas J. Force, Chair
The meeting was held on May 5 with
approximately four people in attendance.
The purpose of the meeting was to review
the final PowerPoint and agenda in preparation for the May 18th CLE at SCBA and
discuss the presentation that the committee
will make on May 13th at SCBA.
It was decided that the final PowerPoints,
bios of committee members and any handouts that presenters want to include in the
package to be given to attendees are due to
Chairman Tom Force by May 11th so that
the bar will have one full week to put the
package together.
Trusts And Estates (Harper)
dard set forth in CPLR 5015 in order to
determine whether the vacatur of a
Surrogate’s Court decree is warranted.
Each practitioner should consider whether
vacatur is warranted for good cause shown.
Note: Robert M. Harper is an Associate
in the Trusts and Estates Department at
Farrell Fritz, P.C.
1 S.C.P.A. § 102.
2 C.P.L.R. § 5015.
3 Estate of Culberson, 11 A.D.3d 859, 861 (3d
Dep’t 2004).
4 Estate of Masline, 52 A.D.2d 739 (4th Dep’t
1976); Culberson, 11 A.D.3d at 862.
5 Estate of Ziegler, 161 Misc.2d 203, 207 (Sur. Ct.,
New York County 1994).
6 Matter of Blaukopf, 2009 N.Y. Slip. Op.
50555(U) (Sur. Ct., Nassau County 2009).
SCBAdvantage Program Participants
(as of February 27, 2007)
Take Advantage of the Advantages
The SCBAdvantage Program provides all Suffolk County
Bar Association members with an opportunity for meaningful discounts at numerous vendors and service providers in
COMPUTER SERVICES
- COMPUTER FORENSICS SERVICES
- MAVERICK-SECURITY, LLC
- NETWORK SOLUTIONS AND TRAINING
CONSTRUCTION AND
HOME/OFFICE IMPROVEMENT
- ELLEN FRIEDMAN INTERIORS INC.
- KLEENRITE CARPET & UPHOLSTERY CARE
DINING
- RUVO - Greenlawn
- RUVO - Port Jefferson
- THE SMITHTOWN HOUSE
FINANCIAL RELATED SERVICES
- CITIGROUP/SMITH BARNEY (retirement plans)
- ISRAELOFF, TRATTNER & CO., P.C.
- ERIC NEUWIRTH, CFP,
A.G. EDWARDS & SONS INC.
- NEAL E. MINTZ, CPA
- STATE BANK OF LONG ISLAND
FLORISTS AND GIFTS
- DS INC. (custom gifts)
FUNERAL SERVICES
- FIVES SMITHTOWN FUNERAL HOME, INC.
- VIRAG-MADDEX FUNERAL DIRECTORS,
and around Suffolk County. To find out the details about
each of the discounts offered by the following vendors, log
on to www.scba.org, then click on “member services” and
“SCBAdvantage Program.”
... just another advantage of membership offered to you by
the Suffolk County Bar Association. Partake and enjoy!
HAIR AND PERSONAL CARE
- DBOTT ESTHETICS & COLOR
PROFESSIONAL TRAINING
- DALE CARNEGIE TRAINING
HEALTH AND FITNESS
- AMRITRAJ FITNESS AND RACQUET CLUB
- RAYMOND MACOLO, DDS, LLC
PUBLIC RELATIONS
- THE PUBLIC RELATIONS AND MARKETING
GROUP
HOTELS AND ACCOMMODATIONS
- HOLIDAY INN EXPRESS – Stony Brook
REAL ESTATE RELATED SERVICES
- ALL ISLAND APPRAISAL SERVICES
- AMICUS MORTGAGE CORP.
- CITIGROUP/SMITH BARNEY (mortgages)
INSURANCE
- LONG TERM CARE COMPARISONS
LEGAL RELATED SERVICES
- ENRIGHT COURT REPORTING INC.
- FASTCASE, INC.
- WMA GRAPHICS
OFFICE FURNITURE, EQUIPMENT AND
SUPPLIES
- MASH BUSINESS SYSTEMS INC.
OFFICE MANAGEMENT/ADMINISTRATIVE
SERVICES
- HQ GLOBAL WORKPLACES
- THE INTELLIGENT OFFICE
- IRON MOUNTAIN RECORDS MANAGEMENT
- MAP COMMUNICATIONS
RETAIL
- GOURMET COFFEE PLUS, LTD.
TRANSPORTATION
- CHICHESTER LIMOUSINE SERVICE
- LIMOUSINE PLEASE
TRAVEL AND ENTERTAINMENT
- PRIME TIME TRAVEL CLUB, INC.
TUTORING
- EXCEL TUTORING SERVICE
22
SUFFOLK ACADEMY OF LAW
OF
THE
SUFFOLK
COUNTY
BAR
ASSOCIATION
5 6 0 W H E E L E R R O A D , H A U P PA U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8
LATE SPRING CLE
The Suffolk Academy of Law, the educational arm of the
Suffolk County Bar Association, provides a comprehensive
curriculum of continuing legal education courses. For the
most part, CLE courses listed here will be presented from
late May through the month of June.
ACCREDITATION FOR MCLE:
The Suffolk Academy of Law has been certified by the New
York State Continuing Legal Education Board as an accredited provider of continuing legal education in the State of
New York. Thus, Academy courses are presumptively
approved as meeting the OCA's MCLE requirements.
NOTES:
Program Locations: Most, but not all, programs are held at the
SCBA Center; be sure to check listings for locations and times.
N.B. - As per NYS CLE Board regulation, you must attend a CLE program or a specific section of a longer program in its entirety to
receive credit.
Tuition & Registration: Tuition prices listed in the registration
form are for discounted pre-registration. At-door registrations
entail higher fees. You may pre-register for classes by
returning the registration coupon with your payment.
Refunds: Refund requests must be received 48 hours in
advance.
Non SCBA Member Attorneys: Tuition prices are discounted for
SCBA members. If you attend a course at non-member
rates and join the Suffolk County Bar Association within 30
days, you may apply the tuition differential you paid to your
SCBA membership dues.
Americans with Disabilities Act: If you plan to attend a program
and need assistance related to a disability provided for
under the ADA,, please let us know.
Disclaimer: Speakers and topics are subject to change without notice. The Suffolk Academy of Law is not liable for
errors or omissions in this publicity information.
Tax-Deductible Support for CLE: Tuition does not fully support
the Academy's educational program. As a 501©)(3) organization, the Academy can accept your tax deductible donation. Please take a moment, when registering, to add a contribution to your tuition payment.
Financial Aid: For information on needs-based scholarships,
payment plans, or volunteer service in lieu of tuition, please
call the Academy at 631-233-5588.
INQUIRIES: 631-234-5588.
UPDATES
Jointly Presented with the Nassau Academy
Location: SCBA Center Refreshments: Light supper
Morning Seminar
INHERITED IRA’s
EVIDENCE UPDATE
Wednesday, June 3, 2009
Thursday, June 11, 2009
Retirement assets often represent a substantial portion of a
taxpayer’s wealth. Whether the assets are in a 401(k) plan,
another kind of qualified plan, or in an IRA, the importance – in
terms of tax consequences – of making the right move at the
right time cannot be over stated. This program will help you to
avoid common errors (from the perspectives of both New York
State and the IRS) when dealing with retirement assets during
a client’s lifetime and after the client’s death. In a detailed discussion of tax planning with retirement assets, the extremely
knowledgeable presenter will explain how to integrate retirement assets in an estate plan. Dual license professionals will
be happy to learn that both CLE and CPE credits are awarded
for this program.
Faculty: Seymour Goldberg, CPA, MBA, JD (Senior
Partner–Goldberg & Goldberg, PC)
Program Coordinator: Eileen Coen Cacioppo, Esq.
(Academy Curriculum Chair)
MCLE: 4 Hours (Professional Practice)
[Non-Transitional and Transitional]
CPE: 4 Credits
Time: 9:00 a.m. –12:45 p.m. (Registration from 8:30 a.m.)
Location: SCBA Center Refreshments: Breakfast Buffet
Federal and state, civil and criminal: all the latest developments
affecting the collection and presentation of evidence will be presented with style, humor, and incomparable expertise!
Faculty: Professor Richard Farrell
(Brooklyn Law School // Author Richardson on Evidence)
Time: 5:30 – 8:30 p.m. (Registration from 5:00 p.m.)
Location: Nassau County Bar Center–Mineola
Refreshments: Light supper
MCLE: 2 ½ Hours (professional practice)
AUTO LIABILITY UPDATE
Thursday, June 18, 2009
This is the must-attend update for attorneys who handle automobile liability cases. You will learn the latest developments in
SUM cases, No Fault, etc., etc., from two guest presenters who
are unequaled in their knowledge of and insight into this practice area.
Faculty: Jonathan Dachs, Esq. (Shayne, Dachs, Stanisci,
Corker & Sauer // NYLJ Columnist)
Professor Michael Hutter (Albany Law School // Special
Counsel–Powers & Santola, LLP in Albany)
Coordinator: James Hogan, Esq. (Academy Advisory)
Time: 6:00 – 9l00 p.m. (Registration from 5:30 p.m.)
MCLE: 3 Hours (professional practice)
SEMINARS &
LUNCH ‘N LEARNS
Looking to the Future–What to Remember
and What to Expect:
GUIDE FOR THE
ESTATE PRACTITIONER
Thursday, May 28, 2009
This cutting-edge seminar, featuring an acclaimed faculty, provides essential insights for attorneys who advise clients on
estate planning.
Speakers & Topics
Mitchell J. Cooper, Esq. (Spizz & Cooper, LLP)
The “Obamatization” of the Estate Tax: What Changed and
What Stayed the Same
John J. Barnosky, Esq. (Farrell Fritz, PC)
Prudent Investing Under the Prudent Investor Act – Delegation
and the Impact of Arbitration Clauses on the Jurisdiction of the
Surrogate’s Court
Hon. John M. Czygier, Jr. (Surrogate–Suffolk County)
Unforseen Ethical Dilemmas in T&E Practice
Joseph T. LaFerlita, Esq. (Farrell Fritz, PC)
E-Filing: The Wave of the Future in the Surrogate’s Court
Program Coordinator: Ilene S. Cooper (SCBA President Elect)
Time: 6:00–9:00 p.m. (Registration from 5:30)
NEWLY ANNOUNCED:
TOXICOLOGY: What Lawyers
Need to Know
Tuesday, June 9, 2009
This program, held at the Criminal Courthouse in Riverhead,
is intended for attorneys who handle criminal, personal injury, or
family law matters. The presentation will cover, among other
things:
toxicological evidence related to alcohol
toxicological evidence related to drugs
the physical effects of drugs and alcohol
what goes into creating and interpreting lab reports
Faculty: Michael Katz, Chief Toxicologist–Suffolk County
Medical Examiner’s Office
William T. Ferris, Esq.
(Bracken & Margolin // Past Academy Dean)
MCLE: 1 ½ Hours (Professional Practice)
Time: 12:30–2:00 p.m. (Registration from noon)
Location: Arthur M. Cromarty Courthouse (210 Center
Drive)–Riverhead
SUMMARY JURY TRIALS:
Demonstration & Lecture
Many litigators and their clients are embracing measures that
can resolve a legal dispute in a swift, cost-effective manner.
One such measure is the summary jury trial with its relaxed
rules of evidence and emphasis on substance over form. SJTs
are appealing because they feature no directed verdicts; a certain date for trial; innovative methods of case presentation to the
jury . . . plus a Supreme Court Justice to preside. Cases
deemed particularly suitable for binding SLT’s include slip-andfall and no-fault cases and property damage claims. In addition,
non-binding SJTs can be used in complex cases with potentially large damages to help the parties reach settlement.
This program, which will include both explanations and demonstrations, will show you how a summary jury trial might fit into
your practice. The thorough course materials will serve as a
valuable future reference.
Faculty: Hon. Denise R. Molia; Hon. William B. Rebolini;
Jonathan A. Baum, Esq.; David T. Fowler, Esq; Thomas J.
Stock, Esq.
Program Coordinator: Patricia Meisenheimer, Esq.
MCLE: 3 Hours (Skills) [Non-Transitional and Transitional]
Time: 6:00–9:00 p.m. (Registration from 5:30)
For Lawyers & Laypersons
MHL ARTICLE 81
GUARDIANSHIP TRAINING
Wednesday, June10, 2009
This program will meet the needs of both laypersons appointed
to guardianships and lawyers seeking to meet Part 36 fiduciary
requirements for guardians. Laypersons attend at a reduced
rate. Some of the topics to be covered are:
Rights of Persons in Need of a Guardian (“PING”) (including
court findings, effect of the appointment of a guardian, dispositional alternatives)
Legal Issues (including role of durable powers of attorney,
health care proxies, end-of-life issues, medical testimony and
confidential issues, problems of the mentally ill, psycho-tropic
medications, Medicaid planning)
Medical and Treatment Issues
Community and Institutional Resources & Entitlements
Duties, Responsibilities, & Ethics of Guardians (types of
guardians, eligibility, the fiduciary relationship, guardian for
property management, guardian for personal needs, court
orders, reports)
Part 36 Rules of the Chief Judge re Fiduciary Appointments
Coordinator: Bronwyn Black, Esq.
Time: 1:00–4:00 p.m. (Registration from 12:30 p.m.)
Location: SCBA Center Refreshments: Lunch
Lunch ‘n Learn
MARKETING FOR ATTORNEYS
Friday, June 12, 2009
Advertising, public relations, practice development . . . each
marketing term has a distinct meaning. But, from the perspective of the lawyer, all have the same end: growing a practice,
retaining existing clients, and ensuring that marketing measures
do not result in ethical violations. In this extended luncheon
seminar taught by a lawyer/public relations professional, you will
gain practical tips for choosing the kinds of marketing techniques that are suited to your practice and your personality. The
presentation will cover the rules governing lawyer advertising
(including changes in the new ethics rules) and provide guidance for marketing your firm without detracting from the dignity
of the profession. Advice on the development and use of attorney websites will be included.
Faculty: John C. Zaher, Esq. (President, The Public Relations
and Marketing Group, LLC // Academy Officer)
MCLE: 3 Hours (2 practice management; 1ethics)
Time: 1:00–4:00 p.m. (Registration from 12:30 p.m.)
Free Membership Services Seminar
SUCCEEDING IN THE NEW ECONOMY:
Practical & Professional Strategies
for Lawyers
Monday, June 15, 2009
Virtually all attorneys are facing challenges in these changing
economic times, and many are shifting their professional goals
or examining broader questions of work-life balance. This program – presented free of charge – is intended to provide SCBA
23
SUFFOLK ACADEMY OF LAW
O F
T H E
SUFFOLK
COUNTY
BA R
A S S O C I A T I O N
5 6 0 W H E E L E R R O A D , H A U P PA U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8
members with practical advice and information. A vast array of
issues will be covered and you are sure to gain suggestions
you can implement immediately. Pre-registration is mandatory
for this program
Topics & Faculty
Cash Flow Management
– Michael J. Garibaldi, CPA
Cost Cutting Techniques & Becoming “Green”
– Dennis R. Chase, Esq.
Career Counseling
– Alexandra Duran, JD, MSW, CSW
Professional Marketing & Networking
– Allison C. Shields, Esq.
Developing New Areas of Practice
– J. David Eldridge, Esq.
Beyond the Four Walls & Work-Life Balance
– Sheryl L. Randazzo, Esq.
Time:
6:00–9:00 p.m. (Registration from 5:30)
Location: SCBA Center
Refreshments: Light supper
NB: Under NYS CLE Board guidelines, this program does not
qualify for MCLE credit
NEWLY ANNOUNCED:
BASIC CONCEPTS IN
LEGAL DRAFTING
Whether you draft quick and easy boiler-plate contracts or complex multi-party agreements, this lunchtime program will provide
you with important tips for phrasing and organizing your legal
documents strategically. The guest presenter boasts wide ranging experience in legal drafting, including general corporate
documents, mergers and acquisitions, and securities. His past
CLE’s on legal drafting have received rave reviews. Program
topics include:
Legal Drafting vs. Conversation/Prose Writing
The Importance of Language
Practical Considerations
The Framework of a Contract (Preamble; Recitals; Body;
Signature Pages)
Legal Archaisms.
Presenter: Vincent R. Martorana, Esq. (Reed Smith
LLP–NYC)
MCLE: 2 Hours (skills)
Time:12:30–2:10 p.m. (Registration from noon)
“TAXING” ISSUES FOR LAWYERS:
Insights from the IRS
Wednesday, June 17, 2009
This seminar, featuring representatives of the IRS and private
attorneys with tax backgrounds, will cover four important subject
areas with which all attorneys should be well versed:
Bankruptcy, Mortgage Debt Relief Act of 2007 and the Impact
on Taxes; Offer-in-Compromise and Appeals; Circular 230
Provisions; T\axation of Trusts in an Estate
Whether your practice is concentrated in related areas or is
general in nature, you will gain valuable information at this program. Among other things, you will gain insight into the investigation of attorneys by the IRS and an overview, from an IRS
perspective, of what’s new in estate and gift tax.
Faculty: Diana Hinton, Esq. (IRS Counsel)
Cecilia Amerati-Byrne, Esq. (IRS Exam Division)
Ronald M. Terenzi, Esq. (Henoch Peterson & Peddy)
David Ross Okrent, Esq., CPA (Law Offices of David R.
Okrent)
Seymour Goldberg, CPA, MBA, JD (Senior Partner–Goldberg
& Goldberg, PC)
Other Representatives of the IRS (On Offers in Compromise)
Program Coordinator: Eileen Coen Cacioppo, Esq.
(Curriculum Co-Chair)
MCLE: 4 ½ Hours (4 professional practice; ½ ethics)
Time: 10 a.m.–2:00 p.m. (Registration from 9:30 a.m.)
Location: SCBA Center Refreshments: Continental breakfast
and lunch
24
To Modify Or Not To Modify? That Is The Question
Magistrate found, in effect, that the father’s
tax returns and other financial documentation provided an incomplete account of his
finances. In addition, at the hearing there
was a ‘failure of proof as to exact circumstances under which the father lost his former employment, whether it was due to his
fault, and whether he used his best efforts to
obtain new employment commensurate
with his qualifications and experience”
(Matter of Clarke v Clarke, 8 AD3d 272,
272-272; see Matter of Navarro v Navarro,
19 AD3d 499, 500; Beard v Beard, 300
AD2d 268).
In The Matter of Albert Parascandola v
Rebecca Aviles, NYLJ, 2/9/09, at page
38, col. 1, 2009 NY Slip Op 692; 59
A.D.3d 449; 874 N.Y.S.2d 150, the
Second Department in affirming the
lower court’s denial of the payor spouse’s
petition seeking a downward modification stated the following:
“Domestic Relations Law § 236(B)(9)(b)
provides that ‘upon application by either
party, the court may annul or modify any
prior order or judgment as to maintenance
or child support, upon a showing of the
recipient's inability to be self-supporting or
a substantial change in circumstance . . .
including financial hardship.’ ‘The party
seeking modification of a support order has
the burden of establishing the existence of a
substantial change in circumstances warranting the modification’ (Matter of NievesFord v Gordon, 47 AD3d 936, 936, 850
N.Y.S.2d 588; see Carr v Carr, 187 AD2d
407, 408, 589 N.Y.S.2d 822, 590 N.Y.S.2d
708). ‘Importantly, in determining if there
is a substantial change in circumstances to
justify a downward modification, the
change is measured by comparing the
payor's financial circumstances at the time
of the motion for downward modification
and at the time of the divorce or the time
when the order sought to be modified was
made" (Matter of Sannuto v Sannuto, 21
AD3d 901, 903, 800 N.Y.S.2d 601; see
Klapper v Klapper, 204 AD2d 518, 519,
611 N.Y.S.2d 657).”
Two recent Nassau County Supreme
Court rulings which rejected requests by the
payor spouse illustrate the reluctance of the
court to disturb support agreements contained in existing support orders and the
reliance upon the courts on the specific
facts of the case. In Cox v Cox, 03-203416,
N.Y.L.J. 4/27/09, pg. 20, col. 1, Justice
Falanga denied the payor spouse’s motion
to decrease his $19,800 annual child support payment upon the following facts:
The parties entered into a Stipulation of
Settlement and were divorced in 2004. The
stipulation of settlement was incorporated
but did not merge in the judgment of
divorce. Pursuant to the judgment and stipulation, the husband is obligated to pay
child support of $9,800.00 a year for the
parties' daughter. The stipulation recites
that the husband's income was
$123,094.00 and the wife's income was
zero. The husband was also required to
make three payments to the wife totaling
$30,000.00 denominated as maintenance.
Despite the vast disparity in the parties'
incomes, the stipulation requires that the
husband pay only 50 percent of the child's
uncovered medical expenses and college
and the wife is required to pay 100 percent
of the cost of child care and extracurricular activities, as well as any pre-college
educational expenses.
In support of his application, the husband
alleges the following: his employment with
Verizon was terminated on November 28,
2008, due to downsizing; his present wife
with whom he has two minor sons also lost
her job with Verizon; he attempted to
obtain a six month deferment on his mortgage payment of $3,177.00 a month, but the
lender refused the request; his home is in
the process of foreclosure; he has no option
but to file for bankruptcy; he was earning
$3700.00 biweekly before he lost his job;
his present income is $1741.50 a month in
unemployment benefits; his child support
obligation equals 95 percent of his income;
he is making diligent effort to obtain
employment.
The pro se wife opposed the application
and alleged the following: she resides in
Florida with the parties’ daughter; she
earned $31,193.00 in 2008 and less than
$29,000.00 in 2007; on or before December
3, 2008 (within days of his termination
from Verizon), the husband filed a petition
in the Nassau County Family Court for a
downward modification of his child support
obligation; before a hearing on said petition, the husband withdrew the Family
Court petition; he filed the instant order to
show cause on March 10, 2009; he failed to
pay the child support due for March 2009 as
well as $298.35 for his share of the child's
orthodontia expense.
The husband's 2007 income tax return
indicates that he earned $318,346.00 and
his present wife earned $95,995.00 bringing
their total earnings to $414,341.00. Said tax
return further indicates that the husband and
his present wife sold Verizon stock worth
$498,458.00 on June 6, 2007, without
incurring any capital gains tax on the sale.
The husband and his present wife had gross
income of $912,799.00 in 2007. The defendant wife herein had to support herself and
the parties’ child on income of less than
$49,000.00 in 2007. The wife did not seek
an upward modification of child support
despite the substantial increase in the husband's income from approximately
$123,000.00 in 2004 to approximately
$318,000.00 in 2007.
The husband's W2 for the year 2008
shows that he earned $476,298.00 from
Verizon. As no copies of his and his present
wife's 2008 tax return has been provided,
the court has no ability to ascertain whether
they sold Verizon stock in 2008; and as no
W2 was produced for the present wife for
2008, the court cannot calculate her income
for 2008. As the husband was last employed
on November 28, 2008, and as his income
from Verizon in 2008 exceeded his 2007
Verizon income by $157,952.00, it appears
his severance benefits totaled over
$150,000.00 in 2008.
The husband's net worth affidavit sets
forth annual expenses, including child support for the parties’ child, of approximately
$130,000.00 a year, well below his income
for the past two years and that he owns his
current residence, vacant real property, two
automobiles, his pension, and he has
$2,000.00 in the bank. He has no debt other
than two car loans and first mortgages on
his home and the vacant land.
Judge Falanga in his decision raised the
following questions: “Where's the income
he and his present wife earned over the past
two years? Where are the proceeds of the
June 2007 sale of Verizon stock? As he personally earned almost $500,000.00 in 2008,
why would the husband allow his home to
go into foreclosure? Why would he contemplate filing bankruptcy when he has no
dischargable debt? Why would the husband
swear under oath that he was earning
$3,700.00 biweekly when he lost his job in
November 2008, when in fact he earned
$476,298.00
In 2008?
In denying the Husband’s application for
a downward modification, Judge Falanga
stated the following:
“Knowing that he would receive severance benefits in excess of $150,000.00 and
that he would earn almost $500,000.00 in
2008, excluding his present wife's earnings
for that year, it was an abuse of the judicial
process for the husband to file a petition for
a downward modification in the Nassau
County Family Court on or about
December 3, 2008, and the instant application is clearly forum shopping. It is unfathomable to this Court that after earning the
sums set forth herein above for the years
2007 and 2008, the husband claims to be
entitled to a downward modification of his
obligation to pay child support of less
$20,000.00 a year. If the husband is in true
financial straights perhaps he should sell his
two automobiles and relieve himself of the
auto loan payments of almost $1,200.00 a
month. By purchasing a modest car, he will
be able to apply these loan payments
toward his child support obligation.
A payor's income is not determined on
actual earnings, but requires an assessment
of the payor's overall financial circumstances. Such assessment is to be based, in
part, upon said party's past earnings, actual
earnings, capacity to earn and educational
background (see, Morrissey v. Morrissey,
259 AD2d 472; Zwick v. Zwick, 226 AD2d
734). A party's obligation to pay child support is not determined by his or her actual
present income but rather by the ability to
provide support (see, Ellenbogen v.
Ellenbogen, 6 AD3d 1026; Matter of
Bouchard v. Bouchard, 263 Ad2d 714;
Matter of Lutsic v. Lutsic, 245 AD2d 637).
Whether a change in circumstances has
actually occurred is determined by comparing the payor 's financial status at the time
of the execution of a stipulation of settlement with his or her financial status at the
time of the modification application. The
payor does not meet this burden by merely
presenting vague, unsubstantiated financial
information to the Court. (Rosen v. Rosen,
193 AD2d 661).”
In Chaplin v. Chaplin, 025952-99,
N.Y.L.J. 4/27/09, pg. 20, col. 2, Justice
Driscoll denied the payor spouse’s motion
to lower his $35,000 annual child support
payment upon the following facts:
The parties separated and executed a
Stipulation of Settlement and were divorced
in 2000. The Stipulation was incorporated
but not merged into the judgment of
divorce. There are provisions in the
Stipulation and Judgment regarding a biennial adjustment of the Husband's child support obligations. In a subsequent Family
Court proceeding the parties entered into a
stipulation in March 2008, revising downward the amount to be paid by the husband
and the parties' agreement was placed on
the record which included a recitation of the
parties' gross incomes and adjusted gross
incomes, and a statement that husband's
child support obligation shall be $35,000
per year based on a combined parental
income of $172,000 and a pro rata division
of 81.5 percent for husband and 18.5 percent for wife. Husband does not dispute that
he entered into the 2008 Stipulation knowingly and voluntarily in lieu of proceeding
with the hearing that the court directed.
However, he now seeks a further downward
modification of his child support obligations, alleging in his Affidavit in Support
dated November 18, 2008, that he has "suffered an unanticipated and unreasonable
change of circumstances which has made it
an extreme hardship for me to continue to
pay child support at the current level,"
claiming, specifically, " I am a mortgage
broker, and within the last few months have
experienced unprecedented turmoil and
change in the mortgage market, such that I
can no longer meet my child support, college, health insurance and life insurance
obligations.”
In support of his claim that the mortgage
business has suffered a severe decline since
his March 2008 stipulation, husband provided documentation including (a) a document dated October 23, 2008 from the
CNBC website reflecting comments made
by Alan Greenspan regarding the severity
of the breakdown of the credit markets, (b)
a document from the MSNBC website
dated November 19, 2008 regarding a
Commerce Department report of a higherthan-expected drop in the construction of
new homes and apartments and (c) a document from the CNBC website dated
November 18, 2008, reflecting an observation of an executive of a community finance
site who said that he's "noticing a lot of people are holding off on buying, even with
prices down.”
Wife submitted that the market forces to
which husband refers were anticipated.
Moreover, she provides documentation
that suggests that there have, in fact, been
positive changes in the real estate market
since the 2008 stipulation. Wife also stated
that husband is living a pampered existence
that belies his claims of financial need.
Wife provided proof of the style in which
husband is living and the expenses that he
is paying. Husband lives with his girlfriend
in her home located in Old Westbury, New
York which has approximately 2,800 to
3,000 square feet of living space which
includes five bedrooms and three full bathrooms with an assessed value of
$2,132,900 in 2008, and has a pool and a
tennis court and has lived there for approximately the last six (6) years. The husband
pays the following expenses on the girlfriend’s house: waste removal ($800 or
$900 per year) , cable ($140 per month),
the home phone, a portion of the oil heat
bills ($700 or $800 per month), LIPA
(average of $400 per month) , upkeep and
maintenance on the girlfriend’s home, part
of the gardening ($700 to $800 per year),
housekeeping expenses ($5,000 per year),
the pool ($700 to $800 per year) , and
approximately $500 to replace the Har-Tru
on the tennis court. Husband has been paying for these expenses since he has been
living in the girlfriend’s home. Also, the
girlfriend purchased two (2) condominiums in 2006 and the husband's name was
on the title to one of the condominiums
located in North Carolina.
Justice Driscoll stated the following:
“DRL §236, Part B(9)(b) provides, in pertinent part, that upon application by either
party, the court may annul or modify any
prior order or judgment as to maintenance or
child support, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance. Husband
must demonstrate an unreasonable and
unanticipated change in circumstances since
the time he entered into the 2008
Stipulation. Arciniega v. ArciniegaLuizzi,
48 A.D.3d 677 (2d Dept. 2008).
The Court concludes, under the circumstances, that Husband has not met his bur(Continued on page 25)
25
To Modify Or Not To Modify? That Is The Question
den of demonstrating a change in his circumstances that would warrant a hearing on
his application. Husband based his 2007
application on the same theory on which he
bases the current application, a reduction in
the mortgage market, and voluntarily
entered into the 2008 Stipulation in lieu of
proceeding with a hearing. The changes that
Husband refers to in his instant motion
were anticipated, as demonstrated by
Husband's discussion of them when he
entered into the 2008 Stipulation.
Moreover, the housing and related mortgage markets are, by their nature, fluctuating and some variation is to be expected.
The Court feels constrained to add that it
does not share Husband's view of what
constitutes an "extreme hardship." While
the Court appreciates that Husband will
necessarily incur living expenses by virtue
of his residence outside of the parties' marital residence, the deposition of Girlfriend
reflects that Husband is living very well
and paying for expenses that many people
would view as a luxury. The Court senses
a certain entitlement on the part of
Husband and his Girlfriend, who do not
appreciate that Husband's financial obligations to his Children are paramount. To be
clear, if Husband has to choose between
paying for Girlfriend's pool, tennis court
and housekeeper, and meeting his finan-
cial obligations to his Children, he must
choose the latter.”
Although the majority of petitions for
downward modification are denied due to
the failure of the payor spouse to prove
his/her entitlement to the modification, the
court will grant the request when the petitioner presents the proof required by the
existing statutes and case law.
In the Matter of Ketcham v Crawford, 1
AD3d 359, 767 NYS2d 47 (App. Div. 2d,
2003), the court stated the following:
“Loss of employment may constitute a
change of circumstances warranting a downward modification of child support where a
parent has diligently sought re-employment
(see Reynolds v Reynolds, 300 A.D.2d 645,
753 N.Y.S.2d 106 [2002]; Matter of Meyer v
Meyer, 205 A.D.2d 784, 614 N.Y.S.2d 42
[1994]). The evidence at the hearing demonstrated that the father's employment was terminated through no fault of his own and that
he diligently made a good-faith effort to
obtain employment in his field.
Consequently, the Hearing Examiner should
have granted his petition for downward modification (see Matter of Morena v Morena,
267 A.D.2d 388, 700 N.Y.S.2d 214 [1999];
Matter of Meyer v Meyer, supra; Matter of
Glinski v Glinski, 199 A.D.2d 994, 606
N.Y.S.2d 468 [1993]). Accordingly, we
remit the matter to the Family Court, Suffolk
County, for a further hearing regarding the
parties' financial circumstances and a determination of the father’s reduced obligation
for child support.
However, the evidence supports the
Hearing Examiner's finding that the father's
failure to pay child support was willful. He
received severance pay of approximately
$21,000 and yet made no child support payments and did not seek downward modification until the mother commenced an
enforcement proceeding. Under the circumstances, the Hearing Examiner properly
concluded that the father's violation of the
support order was willful and directed the
entry of a money judgment (see Matter of
Feliciano v Nielsen, 282 A.D.2d 783, 722
N.Y.S.2d 825 [2001]; Matter of Modica v
Thompson, 258 A.D.2d 653, 685 N.Y.S.2d
783 [1999]; Family Ct Act § 454 [2] [a]).
However, in light of our determination that
the father was entitled to downward modification as of the date he made his application
for such relief, we also remit the matter for
a recalculation of arrears.”
As to the original question presented
herein, “To modify or not to modify”,
although it may be difficult to accomplish,
it is not impossible. Because of the current
economic downturn, many payor spouses
or payor parents will actually experience or
claim to experience an undue burden in
Trusts and Estates Update (Cooper)
Inter vivos Transfers Found Valid
In a contested accounting proceeding, the
fiduciaries of the estate of the decedent’s
post-deceased spouse (who had been the
estate fiduciary and had accounted prior to
her death), moved for summary judgment
dismissing the objections with respect to
certain inter vivos transfers made to her.
The objectant maintained that the transfers
in issue were the result of undue influence.
The movants alleged that the transfers were
consistent with the decedent’s pattern of
gift-giving to his wife. The record revealed
that the objectant was aware of the subject
transfers within months after they were
made but raised no objection to them at the
time. Moreover, during the course of his
deposition, objectant admitted that at the
time of the transfers the decedent’s mental
condition was “pretty good,” and that he
had not been privy to any conversations
between the decedent and his spouse
regarding the transactions. Further, while
the transfers took place soon after the decedent executed his will, the objectant did not
file objections to probate.
In opposition to the motion, the objectant
referred to his own conversations with the
decedent (inadmissible under CPLR 4519),
in which the decedent had purportedly stated that he had not made the transfers willingly, but rather had been pestered and
nagged by the decedent. Objectant further
relied on the fact that the decedent had not
filed gift tax returns with respect to the
transfers, although the court noted that he
was not obligated to file such returns in
connection with transfers to his spouse.
Additionally, the objectant relied on
reports he allegedly received from the
decedent’s stockbroker and trusted secretary that the decedent was being harassed
and berated by his wife to transfers the
assets to her account. Further, the stockbro-
kill yourselves.” Bruce Marks, a self proclaimed “bank terrorist,” a leading member of the leftist group Neighborhood
Assistance Corporation of America, has
long been threatening bankers and their
children over the years for not lending a
sufficient level (according to him and his
group) to low income applicants for mortgages, which ironically has been the exact
opposite practice, i.e. lending to non-qualified applicants, which greatly contributed
to the rise in foreclosures and bank problems. The George Soros backed group, a
radical leftist organization known as
ANSWER, also chimed in with protests
making their intentions and aims amply
clear as they waive signs which read
“Capitalism is Organized Crime, Stop
AIG.”
There are dangers that inevitably lurk
around the corner when for political expe-
continuing to make payments pursuant to
existing orders or judgments, so it is likely
many more proceedings will be brought for
downward modification in our already
overburdened court system.
Thus there is no simple answer to the
“$64,000 question” and as in all adversarial
situations, whichever way the court rules,
one party will feel exonerated and the other
will feel short-changed.
Note: As of June 1, 2009, Arthur E.
Shulman will be Second Vice President of
the SCBA. Art has been practicing law
since 1974 with an emphasis in matrimonial and family law out of his offices in
Islandia. Art is a member of both the New
York State Bar and the Suffolk County
Matrimonial Bar Associations. He has been
a delegate to the New York State Bar
Association House of Delegates and is a
member of the State Bar’s Mandatory
Continuing Education Committee. He is
currently the Assistant Managing Director
of the Suffolk County Pro Bono
Foundation, a past Dean of the Suffolk
Academy of Law and a member of its
Advisory Committee. Art has coordinated
and served as faculty on approximately seventy continuing legal education seminars
for the Suffolk Academy of Law and is a
past contributor to the Suffolk Lawyer.
ker allegedly stated that the transfers were
unusual and inconsistent with the decedent’s usual handling of his account. While
not commenting upon the veracity of these
statements, the court opined that the objectant had failed to provide affidavits from
either witness, or an excuse for his failure
to do so. Inasmuch as the statements were
inadmissible hearsay, the court held that
they could not be considered in opposition
to the motion for summary judgment.
Further, the court held that even if the statements could be considered, they lacked the
specificity and detail necessary to raise a
triable issue of fact.
Finally, the objectant alleged that the
decedent’s health was failing in the latter
years of his life, that he had been caused to
stop work, and had withdrawn from social
and business activities, and was forced to
rely upon and become dependent upon his
wife. The court held that even if this were
Contract Law, Taxation and the U.S. Constitution
$1 annually. Furthermore Mr. Liddy also
tried to explain, but to no avail, to individuals seemingly intent on promulgating a
message regardless of the facts that the
vast majority of those responsible for the
AIG all left the firm. Those that currently
remained were trying their best to correct
what was still correctable as they had been
requested to do by the government itself
under the guise that they were too big to
fail. The net result has been that bonus and
non-bonus recipients at AIG received
threats including death threats and generally feared for their safety and that of their
loved ones. For instance this was one of
the multitudes of messages left on the AIG
web site: “We will hunt you down, every
last penny. We will hunt your children and
we will hunt your conscience. We will do
whatever we can to get those people getting the bonuses. Give back the money or
diency, cynical opportunism or calculated
chicanery is employed to achieve ends that
are for all intents and purposes antithetical
to American pragmatism and its core values as embodied in its constitutionally
framed system of laws, core among it is
the imperative respect for contract law and
true, these allegations did not amount to or
create a question of fact regarding objectant’s claim of undue influence.
Accordingly, summary judgment regarding the propriety of the inter vivos transfers
was granted and the objections as to this
issue were dismissed. On the other hand,
the court denied the motion with respect to
the omission of a certain coin collection
from the accounting, finding that there was
a question of fact as to whether the coins
were estate property.
In re Faggen, N.Y.L.J., Mar. 2, 2009,
at 30 (Sur. Ct. New York County).
Note: Ilene Sherwyn Cooper is a partner
with the law firm of Farrell Fritz, P.C.,
where she concentrates in the field of trusts
and estates. In addition, she is PresidentElect of the Suffolk County Bar Association
and a member of the Advisory Committee of
the Suffolk Academy of Law.
rational taxation.
Note: Justin Giordano is a Professor of
Business & Law at the State University of
New York—Empire State College and an
attorney based in Huntington. He welcomes
commentary and feedback. Jagiordano44@
hotmail.com
Lapse of Insurance
will be unable to obtain relief from vehicle
registration or driver license suspension
for lapse of insurance coverage. The best
advice would be to surrender the vehicle
registration plates to DMV and make
application for a restricted use license if
eligible. Should client have charges pending in the First District Court that include
an alleged violation of 19-1, operating
without insurance, some thought should
be given to saving the restricted use
license, if eligible, to cover a prospective
one-year evocation rather than a shorter
period of suspension.
Note: David A. Mansfield practices in
Islandia and is a frequent contributor to
this publication
26
SUFFOLK LAWYER SERVICE DIRECTORY
TO PLACE YOUR AD, CALL 866-867-9121
SERVICES
IMMIGRATION
ATTORNEY
EXPERIENCED
IMMIGRATION
ATTORNEY
Julia R. Binger
631-261-0960
168 Laurel Avenue
Northport, NY 11768
REAL ESTATE SECTION
LAWYER TO LAWYER
SECURITIES
LAW
John E. Lawlor, Esq.
Securities
Arbitration / Litigation;
FINRA Arbitrations;
Federal and State
Securities Matters
(516) 248-7700
129 Third Street
Mineola, NY 11501
johnelawlor.com
MARKET LOSSES
OFFICE FOR RENT OFFICE SPACE
OFFICE SPACE
Wall Street Office
SMITHTOWN OFFICE SPACE
Phone & Mail $125/mo.
Established elder law/estate
planning law firm has two large
windowed offices available
at 222 East Main Street.
Rent one or both. Secretarial space
available for each. Share conference
room, internet access available, possible
copier share. Recently renovated
building in great location.
631-979-4300
Mail Service Only $79/mo.
•
•
•
•
Beautiful corporate setting
Attended reception area
Personalized phone services
Msg e-mail relay Patching - Voice Mail
• Mail receiving, photocopier,
fax, secretarial services
• Conference rooms,
furnished offices
at 110 Wall St., 11th Floor
(800) 205-7685
www.yourwallstreetoffice.com
[email protected]
OFFICE SPACE
OFFICE SPACE
ST. JAMES
P R I M E L O C A T I O N
Professionally designed quality space.
Three offices w/ secretary space,
conf. room/ library.
Approx. 1800 sq. ft.
Opposite St. James Post Office
631-584-6450
OFFICE SPACE
STOCK MARKET LOSSES
LAW OFFICE SPACE
Port Jefferson Sta.
CENTRAL ISLIP
due to misrepresentation,
variable annuities, unsuitable investments,
unauthorized trading, churning, etc.
W. ALEXANDER MELBARDIS, M.B.A., J.D.
Share space with well respected
BAY SHORE LAW FIRM
Main Street Exposure
High Speed Internet, Westlaw,
Phone & Fax,
Use of Two Conference Rooms,
Receptionist Services
Possible Overflow Work
2 units-rent separately
or combine
Executive Office,
secretarial area, bathroom:
526 sqft $750/mt
Office and Conference
Room: 225 sqft $325/mt
Rent both for $990/mt
Great for attorney
or accountant
Call 631-928-8000
Law Office
space for solo
or small firm.
Poss-overflow.
Receptionist,
Conf. rm.,
fax/copier.
Ideal location
near courts
631-827-7748
Attorney Experienced in Securities Law
FINRA SECURITIES ARBITRATIONS
(FORMERLY NASD, NYSE)
194 Main St., Setauket, NY
631-751-1100
IMMIGRATION
ATTORNEY
(631) 665-4621
LEGAL SERVICES
IMMIGRATION
LITIGATOR
Court Appearances
Bronx, Westchester,
Rockland & Orange
Deportation
Green Cards
Referrals to
other counties
David M. Sperling
631-427-1158
[email protected]
JOEL ZUCKERBERG
Attorney at Law
Trial and conferences.
Experienced. Reasonable
914-762-5815
Cell 914-714-4354
FAX 914-945-7158
OFFICE FOR RENT
OFFICE FOR RENT
SMITHTOWN LAW OFFICES
195 East Main Street, Smithtown, NY
Beautiful, historic landmark building, newly renovated throughout.
Everything new. Amenities include two conference rooms, extensive law library, on-premises parking and storage, copier, full
kitchen & break room. Central air. Signage avail in front of building.
SPACIOUS PRIVATE OFFICE: 17’x14’ top notch office with
optional secretarial station. Bright, sunny; lots of windows with
nice view. $1,295
SEMI-PRIVATE OFFICES: New L-shaped desk and hutch in
semi-private, quiet area. Includes first preference for use of conference rooms for meeting with clients. Space has many windows
offering bright, sunny views. Two available at $495 ea.
Call PETER C. STEIN Esq. at 631-360-1433
OFFICE SPACE
HISTORIC
STONY BROOK
Overlooking
Harbor /
Village Green
2400 square feet
2nd Floor
Office Space
Call: 631-751-2244
OFFICE FOR RENT
SMITHTOWN
furnished office &
secretarial station.
Conference
room/library, file room,
kitchen, more.
Top Quality.
Includes utilities,
library, copier,
law journal, cleaning.
631-360-1640
OFFICE SPACE
Office with
accountants and
financial planners
for rent in
Hauppauge.
For additional
information
please call Pam
@ 631-231-2500
OFFICE CLEANING
For All Your
Cleaning Needs
FOUR STAR
OFFICE
MAINTENANCE
NEED TO FILL A RENTAL SPACE?
“The Small Office
Specialists”
Let Renters Call You!
Serving Western Suffolk
Since 1988
Satisfaction Guaranteed
Bonded & Insured
Andrew V. Caranante
Call 631-427-7000 To Place Your AD
Cell: (631) 766-1825
Learning and Helping
for such defendants were provided by two
faculty members with considerable experience in foreclosure defense: Eric Sackstein,
who is in private practice, and Michael
Wigutow, an attorney with Nassau-Suffolk
Law Services.
The purpose of the conferences, Mr.
Wigutow said, quoting from a New York
Banking Department press release, is to
“encourage dialogue between borrowers,
lenders, and counselors in an effort to reach
agreement on loan modifications and limit
the number of unnecessary foreclosures.”
Both Mr. Wigutow and Mr. Sackstein
reviewed some of the possible bases for
defense, including standing, unfair or
deceptive practices, unconscionability,
fraud, improper charges or overcharges,
and a variety of necessary technical requirements that may have been missed.
Mr. Sackstein provided a checklist for
handling foreclosure settlement conferences that started with a meeting with
defendants and progressed through a review
of all necessary documents, from the mortgage application through credit applications
and all assignments. After the document
review, Mr. Sackstein advised, one of the
first steps is to determine “if any laws were
violated.”
The four-hour seminar was packed with
information, strategies, and advice. The
settlement conferences are not complicated, the presenters said, but the required
background knowledge can be. Those
who wished more information were
advised to seek out the voluminous
instructional materials developed by the
Empire Justice Center for a two-day conference presented in March. Attendees
were given an Internet link for the Empire
course book, which includes background
information on foreclosure law and procedures, checklists, forms, and general
advice for negotiating on behalf of a foreclosure defendant.
The Academy seminar was recorded; and
the DVD may be borrowed, at no cost, by
attorneys who missed the program, but
would like to volunteer for Suffolk’s pro
bono foreclosure settlement conference
defense list. Call the Academy at 631-2345588 for more information.
Note: The writer is the executive director
of the Suffolk Academy of Law.
27
Scottish Bar's Loss Was Literatures Gain
men, boating, riding, bathing, toiling hard
with a wood-knife in the forest."
"Treasured Islands" is the fine work of
Lowell D. Holmes, an anthropolist-sailorman-writer. That I only now refer to him
is appropriate; my late attribution is indeed
high tribute to his skill as a biographer. He
places his subject in the foreground. In
accordance with his background as a scientist, Holmes presents his account of
Stevenson in a clear, straightforward way.
His prose is direct and powerful, evoking
Stevenson and the Tropics. Wisely,
Holmes doesn't attempt to out-poeticize
the master. Whose words, after all, could
compete with "Fair Isle’s opening stanza?:
"Far over seas an island is
Whereon when day is done
A grove of tossing palms
Are printed on the sun."
Captured in these few words is the
motive force driving every sailorman who
roams the seas, each looking for his own
magical island. Probably the sailorman
who most resembled Stevenson both in his
ability with words and--improbable to
report, to judge by physical size alone--in
his altogether poetic temperament was
Sterling Hayden. This isn't a review of
Wanderer, however; that's another story.
But I don't truly digress. The bookish,
scholarly Hayden was a memoirist who
nonetheless looked outward. He was, in
the spirit of Stevenson, of the order of
memoirists, mature, engaged with others,
whose company I like; he wasn't of the
order of memoirists--immature, self-centered, self piteous--who have lately gained
a disproportionately large share of the sailing-book market. That order of writers
pushes this reader to biography, with
Holmes as exemplar of its craft. Too many
contemporary memoirists, with their
incessant, maddening, introspection, are
navel-gazers; biographer Holmes, with his
dead-on depiction of Stevenson's passages
and his island milieu, is a naval observer.
At all events, Holmes' subtitle is
"Cruising the South Seas with Robert
Louis Stevenson," and the preposition
"with" is not idly used. The reader feels
indeed that Stevenson is with Holmes as
the biographer tracks the author’s sea passages and landfalls. By only slight extension, then, the reader feels Stevenson to be
with him and an excellent ship-mate
Stevenson makes for both Holmes and the
reader. Holmes brings to life the unlikely
hero that Stevenson was through significant quotations from the journals and letters of Stevenson, Fanny, Maggie and
Lloyd, by the good use of contemporary
newspaper accounts relating the famous
author's arrivals, sojourns, and departures
and finally, indispensably by dint of a firsthand knowledge of the subject whereof he
writes, the islands and their peoples.
For Stevenson was essentially heroic.
Like his Jim Hawkins, Stevenson might
have initiated his trip "full of sea-dreams
and the most charming anticipations of
strange islands and adventures." Hawkins'
dreams and Stevenson’s were certainly
realized. But it would be error to conclude
that Stevenson's long, arduous passage to
Samoa represented flight; it instead represented engagement. On Samoa, Stevenson
extended his life, perforce his art. By
embracing the Polynesian culture, its values, its mores, its politics--and, in so
doing, becoming something of an anthropologist himself--the artist expanded his
canvas, and infused into his work a newly
found shade and subtlety.
"Treasure Island" (1883), that classic for
readers young and old, had served as an
enduring model of the travel-adventure
genre for Graham Greene and Somerset
Maugham. No minor accomplishment for
Stevenson, to be sure. And "Jekyll and
Hyde" (1886) had spoken of the duality of
man's nature; but Stevenson's later work,
done on Samoa, was to speak of the varie-
gation of man's nature. "The Beach of
Falesa" and "Ebb Tide" (both 1894) depicted the "mix'd elements," the spectrum of
character, contained within every man.
Both stories, precursing Margaret Mead,
extolled the wisdom held by primitive cultures; both precursing George Orwell,
exposed the corruption and exploitation
inherent in colonialism. Such themes
scarcely speak of an artist in retreat from
life. Indeed, life's density and complexity,
the rich, tangled underbrush Stevenson was
ever clearing with his wood-knife, were
reflected in his work on Samoa.
Squire Trelawney said presciently to
Jim, "You'll make a famous cabin-boy,
Hawkins."
Stevenson made a famous writer.
Holmes has made a wonderful biographer.
Don't sail to your bookstore to buy
"Treasured Islands: Cruising the South
Seas with Robert Louis Stevenson." The
winds might be unfavorable. Drive there,
forthwith.
Note: William E. McSweeney lives in
Sayville, and practices criminal and family law. His written work has appeared in
the Quinnipiac Law Review, The ABA
Journal, The New York Law Journal, and
The New York Times.
Picture yourself in front
of 27,000 New York lawyers.
It’s a good place to be. Especially if your firm provides services to the legal profession. Whether
it’s lawyer-to-lawyer or business-to-business, your advertisement in our network of legal publications
puts your message in front of more than 27,000 attorneys, judges and legal professionals in five
metro New York and Long Island counties.
Let us put you there.
NEW YORK COUNTY LAWYER - QUEENS BAR BULLETIN - BROOKLYN BARRISTER - ATTORNEY OF NASSAU COUNTY - THE SUFFOLK LAWYER
5 PUBLICATIONS
ONE CALL !
866-867-9121
L E G A L M E D I A P U B L I S H I N G - A D I V I S I O N O F L O N G I S L A N D E R N E W S PA P E R S - 1 4 9 M A I N S T R E E T, H U N T I N G T O N , N Y 1 1 7 4 3
P 631.427.7000 - F 631.427.5820
28
ACADEMY OF LAW NEWS
More Academy News
on pages 26;
CLE Course Listings
on pages 22-23
Learning and Helping
Lawyers Turn Out for Seminar on Foreclosure Settlement Conferences
Close to 100 lawyers attended the
Academy’s April 23 seminar, “Foreclosure
Settlement Conferences in Suffolk
County.” The seminar was free to all; but to
receive MCLE credit, an attorney had to
volunteer to represent a future defendant at
a settlement conference. More than seventy
five percent of those who attended made the
pro bono commitment.
“It’s a pleasure to see people here for the
right reasons, to help out the people of
Suffolk County,” said Past President Barry
Smolowitz, who served on the faculty.
“There are a number of good reasons to volunteer,” he enumerated, “to help your
neighbors; to enhance the image of the legal
profession; and to live up to the aspirational
goals of the new ethics code – i.e., to do at
least 20 hours of pro bono service.”
The necessity for lawyers to provide pro
bono help is evinced by both the statistics
and anecdotal evidence. Suffolk is one of
the State leaders in foreclosure filings,
Cheryl Mintz, the program coordinator,
pointed out in introductory remarks. Many
lawyers’ offices, she emphasized, are bombarded with phone calls from people in
financial distress who are facing the loss of
their homes.
“Some 9,674 cases are currently pending
just in Suffolk,” said New York State
Photos courtesy of Arthur Shulman
________________________
By Dorothy Paine Ceparano
Panelists (Michael Wigutow, Barry Smolowitz, Justice Jeffrey Spinner, and Eric Sackstein)
listen to questions and comments from the seminar audience.
Supreme Court Justice Jeffrey Spinner, who
runs Suffolk’s foreclosure part in Riverhead
and was a member of the seminar faculty.
“These numbers are growing and not stopping,” he stressed.
Justice Spinner indicated that his remarks
would cover current procedures, but noted
that Suffolk’s foreclosure part is a work-inprogress. The foreclosure parts were designated by the Legislature without guidelines
or funding, he said, and attempts to improve
the process are constant and ongoing. He
thanked the SCBA’s Pro Bono Project, and,
in particular, Alan Todd Costell, Barry
Smolowitz, Leif Rubinstein, and Eric
Sackstein, for working with him to try to
iron out the kinks and develop effective
protocols. He also thanked Coleen
Fondulis, principal law clerk for the
Supreme Court in Suffolk, who would
eventually be given duties for a second
foreclosure part in Central Islip.
Mr. Smolowitz also noted the good relationship enjoyed by the bench and bar in
Suffolk, a relationship that would be
enhanced by the willingness of lawyers, like
those at the seminar, to help the courts to
alleviate overcrowding.
The legislation that established the mandate for foreclosure settlement conferences
was reviewed by Justice Spinner, who indicated that the opportunity to participate in
such conferences was available to foreclosure defendants who held high cost, subprime, or non-traditional home loans.
Techniques for seeking the best results
Passing the Gavel
r
a
d
n
C ale
ACADEMY
of Meetings & Seminars
Note: Programs, meetings, and events at the Suffolk County Bar Center (560 Wheeler Road,
Hauppauge) unless otherwise indicated. Dates, times, and topics may be changed because of
conditions beyond our control CLE programs involve tuition fees; see the CLE Centerfold
for course descriptions and registration details. For information, call 631-234-5588.
May
28 Thursday
Looking to the Future: A Guide for the Estate Practitioner.
6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.
June
3 Wednesday Inherited IRAs. 9:00 a.m.–noon.
Sign-in and breakfast buffet from 8:30 a.m.
9 Wednesday Toxicology: What Lawyers Need to Know. 12:30–2:00 p.m.
At the Criminal Courthouse in Riverhead. Sign-in from noon.
9 Tuesday
Summary Jury Trials. 6:00–9:00 p.m.
Sign-in and light supper from 5:30 p.m.
10 Wednesday MHL Article 81 Guardianship Training. 1:00–4:00 p.m.
Sign-in and lunch from 12:30 p.m.
11 Thursday Evidence Update (Farrell). 5:30–8:00 p.m. At the Nassau
County Bar Association in Mineola.
12 Friday
Academy Meeting of Officers and Volunteers. 7:30 a.m.
Complimentary breakfast. All SCBA members welcome.
(First meeting of the new administrative year.)
12 Friday
Marketing for Lawyers (lunch ‘n learn). 1:00–4:00 p.m.
Sign-in and lunch from 12:30 p.m.
15 Monday
Succeeding in the New Economy
(free program; pre-registration mandatory). 6:00–9:00 p.m.
16 Tuesday
Basic Concepts in Legal Drafting (lunch ‘n learn).
12:30–2:10 p.m. Sign-in and lunch from noon.
17 Wednesday Taxing Issues for Attorneys: Insights from the IRS.
10 a.m.–2:00 p.m. Registration and continental breakfast
from 9:30 a.m. Lunch at break.
18 Thursday Auto Liability Update (Dachs & Hutter). 6:00–9:00 p.m.
After a brief hiatus, Summer CLE commences on July 14.
After two years of successful Academy
leadership Patricia Meisenheimer passes
the gavel to incoming Academy Dean
Richard Stern. The rite of passage took
place at the Academy’s May meeting, the
last of this administrative year. Dean
Meisenheimer’s capable and productive
service was recognized with many accolades from those assembled. Ms.
Meisenheimer, in turn, thanked the
Academy officers and volunteers for the
hard work and commitment that enabled
a two-year stretch of curriculum offerings
that audiences consistently rated “excellent” or “very good.”
Mr. Stern, whose election as dean
underscores his many years of service as
an Academy officer, volunteer, and CLE
presenter, will officially begin his term
on June 1. He will be sworn in at the
SCBA’s Installation Dinner, at Oheka
Castle, on June 4, and will lead his first
Academy meeting on Friday, June 12,
7:30 a.m.
The June meeting and all meetings of
officers and volunteers (held, generally,
on the first Friday of the month, 7:30
a.m., September through June) are
open; SCBA members are welcome to
attend and to share in the rewarding
task of planning the Academy’s CLE
curriculum.
ACADEMY OF LAW OFFICERS
DEAN
Executive Director
Patricia M. Meisenheimer
Dorothy Paine Ceparano
Robert K. Howard
Hon. John Kelly
Cheryl F. Mintz
Felix Wienclaw
Gail Blasie
Michael S. Brady
D. Daniel Engstrand, Jr.
Richard V. Rappaport
Wayne J. Schaefer
Robert G. Wilk
Nancy E. Ellis
Diane K. Farrell
Richard L. Filiberto
Allison C. Shields
John C. Zaher
Herbert Kellner
Marilyn Lord-James
Lynn Poster-Zimmerman
George R. Tilschner
Stephen Ukeiley

May 2009 - The Suffolk County Bar Association

Transcription

Similar documents

Software Patenting: the quiet storm

SCBA Hosts Fundraiser for Cohalan Cares for Kids

April 2009 - The Suffolk County Bar Association

Fall 2013 - Suffolk University

Short Sale Not Always The Best Option

PGCRC Baysox 2016

LI Life Calendar - The Suffolk County Bar Association

Consumer Fraud Complaint - Sacramento County District Attorney

Community Justice Centers - Cook County State`s Attorney`s Office

norfolk suffolk - Think! Norfolk

Greyhound Bus Accident Cases

Encore Realty Comparative Market Analysis

ScanGate document

May 2016 Edition - Tri Hamlet News

Nassau Lawyer May 2016 - Nassau County Bar Association

BASKETBALL BOARD GAME COMPETITION AND STEM