SCBA Hosts Fundraiser for Cohalan Cares for Kids

Transcription

SCBA Hosts Fundraiser for Cohalan Cares for Kids
THE
SUFFOLK LAWYER
THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION
SCBA Hosts Fundraiser for Cohalan Cares for Kids
DEDICATED TO LEGAL EXCELLENCE SINCE 1908
MARCH 2012
FOCUS ON L ABOR &
EMPLOYMENT L AW
Employment Law Update..................... 8
Accommodation Developments ........... 8
Drafting Settlement Agreements .........14
Employee Rights Infringed ................ 10
Disclaimer Duty ................................. 10
Rise in Retaliation Cases.................... 11
Don’t Overlook Indemnification .......... 3
______________
By Laura Lane
Clutching her mommy’s hand four-yearold Annie looked around the big room
with the shiny floor. There were so many
people there she didn’t know, and now
Mommy was telling her to sit quietly on a
big cold hard bench because she wanted to
talk to this strange man who was all
dressed up. People had lots of papers they
were moving around but no one had any
crayons and no one smiled. Her jaw
Photo Credit: Barry Smolowitz
INSIDE…
website: www.scba.org
The Lawyer’s Lockbox........................16
Meet your SCBA Colleague................. 3
The SCBA hosted “Cohalan Cares for Kids” at the Bar Center in February. President Matt
Pachman, right, said the fundraiser was another example of the association’s commitment
to helping the community. See more photos on pages 14-15.
Becoming a Part of
Something Larger
______________________
Vol. 27 No. 7
March 2012
dropped in wonder when a man came in
wearing a big black cloth. When he sat
down and began to bang a wooden hammer she covered her eyes. Mommy told
her to be still and that’s when she began to
cry and cry.
Last year approximately 1500 children
utilized the Education & Assistance
Corporation’s (EAC) Suffolk County
Children’s Center at Cohalan Court to
avoid what children like Annie might experience in the courtroom. An alternative to
crowded courtrooms and waiting areas, the
center enabled parents with young children
to attend to their court business. It provided a safe, secure and nurturing environment for children from 6 weeks to 12 years
old to be cared for by trained, professional
childcare providers and volunteers.
Basically, it was a win win for everyone.
Unfortunately, state government funding for the center has been cut entirely.
Cognizant of the reality of a probable closure of this oasis for parents and children
alike, the Suffolk County Bar Association
decided to host “Cohalan Cares for Kids”
at the Bar Center. The evening of wine,
cheese, music, and raffles was a big success with over 150 people attending.
(Continued on page 20)
PRESIDENT’S MESSAGE
Honoring Justice Floyd .......................15
SCBA photo album ........................12-13
A Letter of Thanks
from Afghanistan ... 2
Legal Articles
American Perspectives ....................... 19
Bench Briefs ......................................... 6
Consumer Bankruptcy ........................ 18
Intellectual Properties........................... 5
Landlord Tenant.................................. 17
Practice Management (Pomerantz) .... 17
Practice Management (Shields).......... 15
Pro Bono............................................. 16
Tax Law .............................................. 14
Trusts and Estates (Harper) .................. 4
Vehicle and Traffic ............................. 18
Academy News....................................24
Among Us............................................. 7
Calendar: Academy ............................ 24
Calendar: SCBA ................................... 2
By Matthew E. Pachman
Attorneys in Suffolk County don’t live or practice law in
a vacuum. I would argue that in order to achieve successful and fulfilling professional careers, we must look to be
a part of something larger than simply our own law firms. Matthew Pachman
A clear example of this is the Suffolk County Bar
Association. As members of the SCBA we have collectively achieved many
significant and notable accomplishments together. For example, our Academy
of Law provides an incredible array of programs taught by our members who
are scholars in their respective fields, as well as invited guests. These seminars
are offered at various levels of expertise, with a view toward reaching both
newly admitted and experienced lawyers.
Also, as the practice of law becomes more specialized, and life in the legal
profession becomes more complex, the Bar Association offers it members the
opportunity to increase their expertise and expand professional contacts
through membership in its committees. Participation allows lawyers to meet
colleagues who share their interest in a specific area of law, and provides
opportunities for leadership in the bar and the legal community as a whole.
These are tangible examples that we don’t practice law alone, and should
acknowledge and value our relationships with each other and work together to
build something that we could not do alone.
We at the SCBA invite and encourage all attorneys to build professional and
social relationships with other lawyers through the bar. Despite the economy and
trends in other professional associations we are proud to report that we have
maintained our membership over the past several years. We clearly must be
doing something which provides value and relevance to our membership. Any
visit to our headquarters clearly shows the energy and dynamic nature of our
organization. I ask all of our members to let others know about what we are
doing, and welcome them to join us as we continue to build our future together.
I also want to take this opportunity to thank all of our members for their continued support of our association and participation in our programs and activities.
BAR EVENTS
Pro Bono Recognition Night
Thursday, March 22, 6 p.m.
Captain Bill’s Restaurant, Bay Shore
Annual dinner to recognize SCBA
Pro Bono Attorneys.
Annual Peter Sweisgood Dinner
Hosted by the Lawyers Helping
Lawyers Committee
Wednesday, April 25, 6 p.m.
Watermill Restaurant
Honoring the late Eugene J. O’Brien
(SCBA Past President 2000 – 2001),
a founding member of Lawyers’
Committee on Alcohol and Drug
Abuse.
Annual Meeting
Monday, May 7, 6 p.m.
Bar Center
Awards of Recognition and Golden
Anniversary Awards
FOCUS ON
LABOR &
EMPLOYMENT LAW
SPECIAL EDITION
2
Our Mission
THE SUFFOLK LAWYER — MARCH 2012
Board of Directors 2011-2012
Matthew E. Pachman.........................................................................................President
Arthur E. Shulman ...................................................................................President Elect
Dennis R. Chase................................................................................First Vice President
William T. Ferris...........................................................................Second Vice President
Donna England..................................................................................................Treasurer
John R. Calcagni ...............................................................................................Secretary
Cheryl L. Mintz .......................................................................................Director (2012)
Lynn Poster-Zimmerman.........................................................................Director (2012)
Richard L. Stern ......................................................................................Director (2012)
Kerie Pamela Stone .................................................................................Director (2012)
Michael J. Miller ....................................................................................Director (2013)
Hon. William B. Rebolini........................................................................Director (2013)
Wayne J. Schaefer ...................................................................................Director (2013)
Thomas J. Stock ......................................................................................Director (2013)
Hon. Andrew A. Crecca...........................................................................Director (2014)
Diane K. Farrell.......................................................................................Director (2014)
Hon. John Kelly.......................................................................................Director (2014)
William J. McDonald ..............................................................................Director (2014)
James R. Winkler.............................................................Past President Director (2012)
Ilene S. Cooper ................................................................Past President Director (2013)
Sheryl L. Randazzo..........................................................Past President Director (2014)
Sarah Jane LaCova .............................................................................Executive Director
r
a
d
n
e
l
a
C
SCBA
OF
MARCH 2012
5 Monday
6 Tuesday
8 Thursday
12 Monday
13 Tuesday
14 Wednesday
19 Monday
21 Wednesday
22 Thursday
27 Tuesday
28 Wednesday
29 Thursday
APRIL 2012
3 Tuesday
9 Monday
10 Tuesday
11 Wednesday
16 Monday
18 Wednesday
23 Monday
24 Tuesday
25 Wednesday
All meetings are held at the Suffolk County Bar
Association Bar Center, unless otherwise specified.
Please be aware that dates, times and locations may
be changed because of conditions beyond our control.
Please check the SCBA website (scba.org) for any
changes/additions or deletions which may occur.
For any questions call: 631-234-5511.
ASSOCIATION MEETINGS AND EVENTS
Insurance & Negligence - Defense Counsel Committee, 5:30 p.m.,
E.B.T. Room.
Intellectual Property Law Committee, 5:30 p.m., Board Room.
Joint Matrimonial & Family Law/Family Court Committees, 1:00
p.m., Justice Bivona’s Courtroom,1:00 p.m., 3rd Floor. - Supreme
Court.
Appellate Practice Committee, 5:30 p.m., Board Room.
Commercial & Corporate Law Committee, 6:00 p.m., E.B.T.
Room.
Pro Bono Committee meeting, 7:30 a.m., Board Room.
Executive Committee, 5:30 p.m., Board Room.
Labor & Employment Law Committee, 8:00 a.m., Board Room.
Education Law Committee, 12:30 p.m., Board Room.
Real Property Committee, 6:30 p.m., E.B.T. Room.
Surrogate’s Court Committee, 5:30 p.m., Board Room.
Board of Directors meeting, 5:30 p.m., Board Room.
Elder Law Committee, 12:15 p.m., Great Hall.
Pro Bono Foundation Recognition Night, Captain Bill’s
Restaurant, Bay Shore, 6:00 p.m., $60 per person. Call Bar Center
for reservations or register on line @ scba.org.
Solo & Small Firm Practitioners Committee, 4:30 p.m., Board
Room.
Professional Ethics & Civility Committee, 5:30 p.m., Board Room.
Alternate Dispute Resolution (ADR) Committee, 6:00 p.m., Board
Room.
Appellate Practice Committee, 5:30 p.m., Board Room.
Joint Matrimonial & Family Law/Family Court Committees,
Justice Bivona’s Courtroom, 3rd Floor, Supreme Court Central
Islip.
Executive Committee, 5:30 p.m., Board Room.
Labor & Employment Law, 8:00 a.m., Board Room.
Commercial & Corporate Law Committee, 6:00 p.m., Board
Room.
Education Law Committee, 12:30 p.m., Board Room.
Insurance & Negligence - Defense Counsel Committee, 5:30 p.m.,
E.B.T. Room.
Elder Law & Estate Planning Committee, 12:15 p.m., Great Hall.
Real Property Committee, 6:30 p.m., E.B.T. Room.
Surrogate’s Court Committee, 5:30 p.m., Board Room.
Joint Nassau/Suffolk Board of Directors Meeting, 5:30 p.m., Great
Hall.
Solo & Small Firm Practitioners Committee, 4:30 p.m. Board
Room.
Professional Ethics & Civility Committee, 5:30 p.m., Board Room.
Annual Peter Sweisgood Dinner Honoring former SCBA President
Eugene J. O’Brien, Watermill Restaurant, 6:00 p.m., $70 per person. Call Bar Center or register on line at scba.org.
A Letter of Thanks from Afghanistan
Good morning Ms. Lane,
I wanted to thank you and the many SCBA
members who sent letters and cards over the past few
weeks. It is so nice to hear from folks back home,
and the kind words of encouragement are very much
appreciated.
Thank you and the SCBA for your support!
All the Way!
Bethany K. Green
CPT/JA
82nd Combat Aviation Brigade
Task Force Poseidon Legal
Operational Law
Combined Joint Task Force-1
Bagram Airfield, Afghanistan
Photo courtesy of Bethany Green
560 Wheeler Road • Hauppauge NY 11788-4357
Phone (631) 234-5511 • Fax # (631) 234-5899
E-MAIL: [email protected]
“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.”
You can write or send a card to SCBA member
Assistant District Attorney Bethany Green (who
worked in the domestic violence bureau) at:
US Mail
Bethany Green
HHC82nd CAB, Task Force Poseidon
Bagram Airfield
APO, AE 09354
Thomas More Group
Twelve-Step Meeting
Important Information from the Lawyers Committee on Alcohol & Drug Abuse:
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
THE
Suffolk County
Bar Association
SUFFOLK LAWYER
LAURA LANE
Editor-in-Chief
Publisher
DOROTHY PAINE CEPARANO
Academy News
Long Islander Newspapers
in conjunction with
The Suffolk County Bar Association
The Suffolk Lawyer is published monthly, except for the months of
July and August, by The Long Islander Newspapers under the auspices
of The Suffolk County Bar Association.© The Suffolk County Bar
Association, 2011. Material in this publication may not be stored or
reproduced in any form without the express written permission of The
Suffolk County Bar Association. Advertising offices are located at The
Long Islander, LLC, 149 Main Street, Huntington, NY 11743, 631427-7000.
Leo K. Barnes, Jr.
Eugene D. Berman
Alison Arden Besunder
John L. Buonora
Dennis R. Chase
Elaine Colavito
Ilene S. Cooper
James G. Fouassier
Justin Giordano
Robert M. Harper
David A. Mansfield
Craig D. Robins
Allison C. Shields
Frequent Contributors
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.
To Advertise in
The Suffolk Lawyer
CALL
(631) 427-7000
A Clause Not to be Overlooked
3
THE SUFFOLK LAWYER — MARCH 2012
Indemnification
_____________________
By William A. Gartland
Indemnification provisions are present
in nearly every form of contract, from
acquisition contracts to service contracts to
real estate contracts, and what is oftentimes mistaken as seemingly boilerplate
language may, if not carefully reviewed
and negotiated, lead to enormous losses for
a client. This is particularly true in contracts in which the obligation to indemnify
is explicitly excluded from the equally
overlooked “limitation of liability” provision. At the risk of grossly oversimplifying the meaning of indemnification, it is a
contractual promise between two parties in
which the first party (“Indemnitor”) agrees
to reimburse the second party (“Indemnitee”) for damages or losses suffered by
Indemnitee as a result of wrongdoing of
some kind by Indemnitor.
Indemnification provisions vary in complexity depending on the nature and size
of the transaction or agreement. For example, an indemnification provision in an
acquisition agreement might include concepts such as (i) baskets (i.e., a minimum
aggregate amount of loss that must be suffered by a buyer before the buyer can seek
recovery under the indemnification provision), (ii) caps (i.e., a maximum amount of
liability that a buyer can recover from the
seller pursuant to an indemnification provision), (iii) deductibles (i.e., limiting the
seller’s liability to only the amount that is
in excess of the deductible amount) and
(iv) “materiality scrape” clauses, pursuant
to which “materiality” qualifiers in the
seller’s representations and warindemnify Indemnitee for any
ranties are disregarded for purlosses suffered by Indemnitee as
poses of the indemnification
a result of Indemnitor’s services,
obligations, which is a clause
whether or not Indemnitor perthat is typically requested by a
formed its services properly.
buyer on the basis that the basThe undesired effect of this lanket already serves as the materiguage, from an Indemnitor’s
ality standard for purposes of
perspective, is that the liability is
the indemnification obligation.
shifted to, or placed on,
What is often negotiated and William A. Gartland Indemnitor even in situations in
sometimes, to a client’s detriwhich Indemnitor has commitment, overlooked in an indemnification ted no wrongdoing.
provision, is the threshold at which an
Consider the potentially negative conaction by an Indemnitor gives rise to an sequences of this provision in a service
obligation to indemnify. Although indem- contract between a security services
nification provisions are contractual in company and a building owner for the
nature, thereby allowing the parties to placement of security officers at certain
draft and tailor the language to meet their posts on the building owner’s premises.
specific needs, an Indemnitor should be A security officer guarding a private
careful to limit its indemnification obliga- entrance may encounter an unauthorized
tion to only those damages, or the portion person attempting to enter a building and
thereof, which were caused by the actual be required, pursuant to the post orders
“wrongdoing” of Indemnitor. In practice, issued by the building owner, to instruct
however, indemnification provisions are such unauthorized person to immediateoften drafted so broadly that the obligation ly exit the premises. If the person is
is triggered as a result of “any” act or injured while being escorted out of the
omission by an Indemnitor in the perfor- building by the security officer through
mance of the contract, whether or not such no wrongdoing of the security officer,
Indemnitor was ever at fault.
and such injured person brings a claim
For instance, a simple indemnification against the building owner for the recovprovision in a service contract might read ery of the damages suffered by the unauas follows: “Indemnitor agrees to indemni- thorized person as a result of the injury,
fy and hold harmless Indemnitee from and the property owner may argue that the
against any and all claims, demands, liabil- indemnification obligation is triggered
ities, damages, judgments, causes of because the damages were suffered in
actions and suits, including, without limi- connection with the services performed
tation, reasonable attorneys’ fees and costs, by the security company, notwithstandarising out of or relating to the acts or ing the fact that the security company
omissions of Indemnitor in the perfor- committed no wrongdoing.
mance of its services hereunder.” The proIn order to avoid such an undesirable
vision, as written, requires Indemnitor to (and likely unintended) result, an
Meet Your SCBA Colleague
_____________
By Laura Lane
Being an attorney was a lifelong dream
that you discovered when you were in
elementary school. What experiences
did you have then and later that led you
to move forward? I was a fierce debater in
my sixth grade social studies class. I just
loved it. My Dad always encouraged me to
do the best that I could and to never settle
for less. He also told me that I should learn
something new every day, that education is
a lifelong process. When I was in high
school at Sacred Heart Academy, I continued my love of debating. As a wife and
mother, I found time to read my husband’s
law books and The New York Law Journal
and that kind of cinched it for me. I decided to go to law school.
You had two young children at the time
and the concept of a woman working
full time was a bit different back in the
day, right? Yes it was different but it was
doable. Every woman today has work and
home challenges and must continually
make decisions on how to handle the
issues that may arise. My experience in
law school was probably different than it
was for most of my fellow students. I’d go
to class at Hofstra Law School and then
run home to attend the children’s sports
activities. It wasn’t easy juggling but I was
successful, working on the Moot Court
Board. I had a very supportive family who
constantly encouraged my pursuit of the
law. Family activities were always a priority and today, my greatest enjoyment is to
spend time with my five grandchildren.
The quality of your life is a component of
your professional growth and it impacts
men as well as women.
There are always challenges to maintaining a good quality of life for attorneys, right? Every attorney has the challenge of integrating their personal and
work life as the legal profession is challenging in and of itself. I feel that we must
all continue to expand our legal knowledge
and skills while maintaining our core values. The profession can consume you 24/7.
Balancing our profession with family life
is important to professional growth.
Once you became an attorney what was
it like for you? When I began working
there were many times that I observed that
women were not taken seriously in the
court system. It floored me how some
women attorneys were treated because
they were women. I had men call me “little lady,” and I was not a young woman.
The experiences made me realize how
important civility is in the law. That attitude has changed today for the betterment
of all attorneys. Ours is an honorable profession in which courtesy and civility
should be a matter of course.
Is the time period you are referring to
the 1980’s and 90’s? Yes. The public’s
perception of law in general was not what
it is today. And this lack of civility that I
am referring to was one of the things that
led the public to have a poor perception of
the legal profession. It has changed dramatically. Many lawyers in our profession
have worked to enhance civility in our
profession, encouraging mutual respect
Indemnitor should look to limit its
indemnification obligation to only those
situations in which the damages were
caused by the fault of Indemnitor (e.g.,
situations in which Indemnitor committed a wrongdoing, which wrongdoing
caused the damages or a certain portion
of the damages). The provision might be
rewritten, for example, as follows:
“Indemnitor agrees to indemnify and
hold harmless Indemnitee from and
against any and all claims, demands, liabilities, damages, judgments, causes of
actions and suits, including, without limitation, reasonable attorneys’ fees and
costs, arising out of or relating to the
negligence or willful misconduct of
Indemnitor in the performance of the
services hereunder.” In this example, the
damages must arise out of Indemnitor’s
wrongful conduct (e.g., negligence or
willful misconduct), rather than out of
the mere performance of Indemnitor’s
duties under the contract.
An Indemnitor can further limit its
exposure by placing a cap on the amount
of liability for which it will be responsible pursuant to the indemnification obligation. The type and size of the cap will
vary greatly depending on the type of the
agreement and the size of the transaction.
An acquisition agreement, for example,
may include a cap that is equal to some
percentage of the purchase price. A service agreement, however, may include a
cap limiting the liability to the fees
received by Indemnitor for the services it
rendered during the contract term or during some specified period of time immediately preceding the claim giving rise to
(Continued on page 20)
Patricia Meisenheimer, a general litigator with an empha-
sis on medical malpractice and personal injury, always wanted to practice law but
did not do so until later in life. A wife and mother, she waited until her children
were in middle school. Then she dove right in.
despite professional disagreements. It
starts with the judiciary and works its way
down to the litigants. In Suffolk County, I
feel fortunate to be working with some of
the best attorneys and most competent
judiciary.
How did you end up becoming a litigator? I interned in the District Attorney’s
offices in Nassau and Suffolk Counties. I
knew then that I loved litigation. I had the
opportunity to start my career in the medical malpractice field where you worked
with very skilled litigators. I was brought
along very quickly and went right out
there in the trenches. You learn the basics
in law school, but having the experience in
court is also so important. Practicing law
is a lifelong journey. Throughout my
career, I had the advantage of working
with the most competent and proficient
attorneys. Today, I am fortunate to practice litigation with one of the most
respected firms in Suffolk County,
Bracken Margolin Besunder, LLP.
When did you join the SCBA and why
would you recommend it? I have been a
member of the SCBA since 1985. I found
a passion and commitment in the people I
met while working on committees. You
get caught up in the energy there, working
with people who are enthusiastic about
sharing ideas concerning legal issues. I
always found the SCBA to be a welcoming place and a terrific place to network
with colleagues. I became very involved in
the Academy of Law and had the privilege
of serving as the Dean. Being involved at
the SCBA makes you feel good about
Patricia Meisenheimer
being a part of our profession. I’ve developed lifelong friendships at the SCBA and
I would encourage every member to
become active in our committees.
Do you see a reason to improve as an
attorney other than for your own professional advancement? Professional
development is not static. It is a lifelong
practice. Our profession is all about making sure that justice is served. When an
attorney’s skills are being improved and
refined you become a more competent
professional and help to improve the
entire justice system.
4
THE SUFFOLK LAWYER — MARCH 2012
Damages for Fraud in Probating a Will
TRUSTS AND ESTATES
The New York Center for
Neuropsychology
& Forensic Behavioral Science
Dr. N.G. Berrill, Director
[ Over 25 Years \
Providing Consultation to Attorneys
& the Courts on Psycho-legal Matters
• Criminal Cases: Competency Issues, Criminal
Responsibility, Extreme Emotional Disturbance, Risk
Assessment, Sex Offender Workups & Dispositional
Planning
• Matrimonial & Family Court Cases:
Custody/Visitation, Neglect/Abuse, Termination,
Delinquency, Family Violence, & Adoptions
• Civil Cases: Competency Issues, Head Trauma,
Sexual Harassment, Discrimination, Immigration,
& Post-Traumatic Stress Disorders
Comprehensive Diagnostic &
Treatment Services
MAIN OFFICE
26 Court Street, Suite 1711, Brooklyn, NY 11242
718-237-2127
LONG ISLAND OFFICE
45 North Station Plaza, Suite 404, Great Neck, NY 11021
516-504-0018
MANHATTAN
139 Manhattan Avenue, New York, NY 10025
212-280-3706
WWW.NYFORENSIC.COM
[email protected]
___________________
By Robert M. Harper
part of that investigation, the DA
contacted the Pulaskis, who
In Castor v. Pulaski, in what
admitted that they “witnessed”
appears to be a case of first
the decedent’s “execution” of the
impression in New York, a
probated will after his death, and
Supreme Court Justice awarded
agreed to testify against Stacey at
damages against the attesting
her murder trial in exchange for
witnesses to a will’s execution
criminal immunity. Ultimately,
for the fraud they perpetrated in
Stacey was convicted of secondsigning the will and attesting
degree murder in connection
Robert M. Harper
witness affidavits after the teswith the decedent’s death,
tator’s death.1
among other offenses, and sentenced to 47
The decision is noteworthy for a variety years to life in prison.
of reasons, not the least of which are the
At the conclusion of the criminal procourt’s findings that the testator’s distribu- ceedings against Stacey, the plaintiff, inditee, individually, had standing to sue the vidually, commenced an action against
witnesses; and that the distributee was enti- Stacey and the Pulaskis, seeking compentled to compensatory damages, punitive satory and punitive damages for fraud and
damages, and an award of attorneys’ fees.
conspiracy concerning the decedent’s will.
In Castor, Stacey Castor (“Stacey”) While Stacey defaulted, the Pulaskis
killed her second husband, the decedent, argued that the plaintiff, individually,
by poisoning him with anti-freeze.2 Stacey lacked standing to sue them, as he was not
did so after having critically injured her the fiduciary of the decedent’s estate. In
daughter, 20, from a prior marriage, which the alternative, the Pulaskis also posited
ended when her first husband died under that they should be absolved of any liabilisuspicious circumstances. Notably, the ty, since they were merely innocent pawns
daughter’s injuries arose from Stacey’s in their former friend Stacey’s diabolical
efforts to stage her daughter’s suicide and scheme to obtain the decedent’s property.
blame the first husband’s death on her, as
Onondaga County Supreme Court
evidenced by the suicide note that Stacey Justice Anthony J. Paris rejected the
had “prepared” for her daughter.
Pulaskis’ argument that the plaintiff lacked
However, that was not the full extent of standing to sue them for the fraud they perStacey’s misconduct. Instead, in 2005, just petrated concerning the decedent’s will.
two months after killing the decedent, she Justice Paris reasoned that, under the
convinced two of her friends, Lynn and “unique and novel special circumstances”
Paul Pulaski (collectively, the “Pulaskis”), of the case, the decedent’s distributees and
to sign a will which was backdated to heirs of his estate, individually, could main2003; purportedly was executed by the tain a suit against the Pulaskis and did not
decedent before his death; and benefitted have to rely on the fiduciary of the deceStacey. In addition to signing the will after dent’s estate to pursue their claims.
the decedent’s death, the Pulaskis signed
After a bench trial, Justice Paris also
attesting witness affidavits, in which they ruled against the Pulaskis on the issue of
swore to the fact that the decedent execut- whether they were liable to the plaintiff for
ed the will in their presence.
fraud. As Justice Paris explained, the
Shortly thereafter, Stacey offered the will Pulaskis subjected the plaintiff and the
for probate in the Surrogate’s Court, Surrogate’s Court to “needless and unwarOnondaga County, and the plaintiff, the ranted proceedings, thereby detracting
decedent’s son from a prior marriage, con- from the orderly administration of [the
tested the instrument’s validity. Based upon Surrogate’s Court’s] normal, proper and
the Pulaskis attesting witness affidavits, the legitimate proceedings.” Had the Pulaskis
plaintiff withdrew his probate objections “acted with any sense of decency, [the
and the Surrogate’s Court admitted the pro- plaintiff] would not have been caused to
pounded will to probate.
endure the magnitude of harm and damAfter the will was admitted to probate, ages he . . . endured and incurred.”
the Onondaga County District Attorney’s
Thus, the issue that remained was not
Office (the “DA”) began investigating
(Continued on page21)
Stacey’s role in the decedent’s death. As
Not Among Our Law School Goals
UNMANAGEABLE STRESS CLINICAL DEPRESSION
ALCOHOL DEPENDENCY SUBSTANCE ABUSE
SLEEPLESS NIGHTS PHYSICAL DYSFUNCTION
Sound familiar? You’re not alone.
Lawyers rank first in incidence rate for clinical depression among
105 professions surveyed. Do you need help or do you just want to
talk about it?
The Lawyer Assistance Foundation and Lawyers Helping Lawyers
Committee of the Suffolk County Bar Association can help. We
can provide necessary assistance, whether a sympathetic ear or a
referral for professional assistance when necessary.
There is no charge. No stigma. Everything will be kept strictly
confidential.
Interested?
Call:
Rosemarie Bruno (631)979-3480,
Arthur Olmstead (631) 754-3200 from the
Lawyers Helping Lawyers Committee;
Barry L. Warren, Managing Director of
The Lawyer Assistance Foundation (631) 265-0010;
Jane LaCova, Executive Director, Suffolk
County Bar Association – (631) 234-5511, Ext. 231.
Let Us Help You.
THE SUFFOLK LAWYER — MARCH 2012
Pornography Industry’s Mass Lawsuit Business Model
5
INTELLECTUAL PROPERTY
________________
By Mona Conway
A New York resident was being sued in
a Florida circuit court (akin to New York’s
Supreme Court) for copyright infringement. He was identified only as “John
Doe” and by his Internet Protocol (IP)
address. He was listed as one of 1,003
“John Does” in a Subpoena Duces Tecum
served on Verizon to identify the names
and addresses of its customers through the
IP addresses on file at Verizon.
Verizon sent “Mr. Doe” a letter stating
that the Florida court issued a discovery
subpoena seeking his identity and advising him that he could move to quash the
subpoena. Verizon advised him in this letter that “various people have perhaps
infringed (the plaintiff’s) copyrights by
illegally downloading and/or distributing
a movie.”
“Mr. Doe” did not
make a motion. He
ignored the notice hoping it would go away.
The “movie” referred
to by Verizon’s notice
was a pornographic
movie and the embarrassment of having
been so accused by
his internet service provider (ISP), and the
Miami-Dade County Circuit Court, left “Mr.
Doe” paralyzed to act. But several months
later when he began to receive telephone calls
at home from the copyright holder’s office he
decided to seek legal advice. His attorney’s
calls to plaintiff’s counsel were redirected to
“
several non-attorney “litigation
harassed individuals, who are
specialists.” Representatives from
willing to pay about $2,000
the plaintiff, Patrick Collins’
each to settle out of court rather
office, offered an immediate setthan be publically named in a
tlement for $2,500.
lawsuit for illegally downloadLike “Mr. Doe,” hundreds of
ing pornography. This incenthousands of people around the
tive for profits might naturally
country have been caught up in
raise suspicions of deliberate
the giant fishnet of litigation
planting of easily downloaded
brought by companies whose
porn by the copyright holder.
Mona Conway
sole purpose is to track illegal
According to Peter Eicher, a
downloads of copyrighted material and former IT security expert, this scenario has
sue infringers in courts around the U.S. all the makings of a scam, which uses our
This is the business model of U.S. judicial system as a legitimate front for such
Copyright Group, a company which repre- activities. Mr. Eicher stated that this kind of
sents small pornographic production com- baiting is not only highly possible, but that
panies, formed for the explicit purpose of it may be virtually impossible to detect,
making money by suing downloaders of making it a “perfect scam.” Mr. Eicher
pornography. U.S. Copyright Group uses explained that the copyright holder of a
software to monitor illegal download movie (in this case, a porno) could have
someone upload the movie onto a file sharing website, like Bit Torrent (Napster was
the first file sharing website). If they were to
perform such an upload from a public
access IP site, such as a Starbucks, the
upload would only be traceable to that public location. The individual uploader could
remain completely anonymous. From there,
a downloader – located anywhere in the
world – could download the movie and
begin to “share” the movie with other
activity. The porn-production companies downloaders around the world. It wouldn’t
can actually make more money suing peo- take long before thousands of copies of this
ple for illegal downloads of their movies material spread to thousands of computers.
than they make from selling the movies.
An unwitting downloader would then be
The money made by these lawsuits does ripe for the picking for organizations like
not seem to come from judgments, but the U.S. Copyright Group.
rather, from pressuring embarrassed and
Furthermore, such uploads and down-
There may be no way to prove or stop producers of pornographic materials from
deliberately setting traps for people for
the sole purpose of shaking them down in
a lawsuit.
Nancy Burner, Esq.
”
Robin Daleo, Esq.
Britt Burner, Esq.
loads are often done in areas of the
world where the United States has no
jurisdiction to prosecute. Therefore, it is
entirely conceivable to transmit the
movie to Romania where a downloader
edits or modifies the movie and then
sends it back to a U.S. resident for free
without that U.S. resident ever knowing
whose movie it was or where it originally came from.
There may be no way to prove or stop
producers of pornographic materials from
deliberately setting traps for people for the
sole purpose of shaking them down in a
lawsuit. Many defendant downloaders
may be forced to settle, regardless of
whether this scenario is a deliberate congame between the producers of porn (with
the force of companies like U.S.
Copyright Group and their attorneys) and
the individual aficionados of their work,
or an accidental windfall for porn production companies.
Yet, this “perfect scam” seems to be
under particular scrutiny in the New York
courts. Lack of personal jurisdiction is a
strong argument in quashing the discovery
subpoena that seeks to identify the defendant in the first place. In Digiprotect USA
Corporation v. John/Jane Does 1-266 (10cv-8759) (SDNY), two ISPs moved for a
protective order from the court-ordered
discovery subpoenas that sought the
identity of 266 of their customers. The
court held that the plaintiff would only be
permitted to seek discovery “of those
individuals for whom a prima facie
(Continued on page 20)
6
THE SUFFOLK LAWYER — MARCH 2012
____________________
By Elaine M. Colavito
HONORABLE PAUL J. BAISLEY, JR.
Plaintiff not in civil contempt of August
20, 2009 order; court unable to determine
the issue of whether, or to what extent
defendant’s rights were defeated, impaired,
impeded or prejudiced by plaintiff’s admitted violation of the order.
In Gary P. Cuomo v. John Schaffner,
Index No.: 33149/09, decided on December
21, 2011, the court found that the plaintiff
was not in civil contempt of the August 20,
2009 order. In rendering its decision, the
court considered testimony presented by the
one witness, Gary P. Cuomo.
The court found that Mr. Cuomo did
not dispute that a lawful court order was
in effect from August 2009 to April 2010
and that he failed to comply with the
order by failing to deposit a total of
$61,688.80 into his attorney’s escrow
account. Further, the court found that
plaintiff’s testimony established that his
failure to comply with the order was not
willful. On the contrary, the court noted
that the evidence that the defendantlandlord permitted raw sewage to flow
beneath the premises for an extended
period of time thus creating a condition
that interfered with plaintiff’s plumbing
business to the point that he had to
vacate the premises was unopposed. The
evidence further reflected that the
sewage and its attendant odors during the
summer and fall season in Ocean Beach
negatively impacted plaintiff’s business,
and that plaintiff was financially unable
to make the required payments.
Accordingly, the court was unable to
determine the issue of whether, or to
what extent, defendant’s rights were
defeated, impaired, impeded or prejudiced by plaintiff’s admitted violation of
the order. Accordingly, the court concluded that the plaintiff was not in civil
contempt.
HONORABLE ARTHUR G. PITTS
Motion for a default judgment denied;
nothing indicated that the defendant or his
agent either signed for or refused to accept
receipt of the summons and complaint.
In Robert A. Engel, Jr. v. Piotr W. Anders,
Index No.: 35449/10, decided on May 26,
2011, the court denied plaintiff’s motion for
a default judgment. The matter at was one
for personal injuries sounding in negligence
which arose from a motor vehicle accident.
BENCH BRIEFS
In rendering its decision, the
that if the proposed amended
court noted that the plaintiff
complaint merely sets forth
must meet two requirements to
additional theories based upon
obtain jurisdiction over a nonfacts previously pled and the
resident defendant pursuant to
defendant has not made a
Vehicle and Traffic Law section
showing of prejudice, the
253: the summons shall be
statute of limitations which
mailed to the Secretary of State
would have barred a separate
and secondly, that notice of such
action de novo did not affect
service upon the secretary shall
the granting of a motion to
Elaine M. Colavito
be mailed to the nonresident
amend the complaint.
defendant. Service shall be complete once
The court further pointed out that there
plaintiff files with the clerk of the court is a relation back as long as the original
either a return receipt purporting to be pleading gives the adverse party sufficient
signed by the defendant or if acceptance notice of the transactions out of which the
was refused, the original envelope bearing claims arose. Here, upon the review of the
a notation by the postal authorities that complaint and the proposed amended
receipt was refused. Herein, in support of complaint it was apparent to the court that
the instant motion the plaintiff proffered the original complaint gave the defenan affidavit of service indicating personal dants sufficient notice of the occurrences
service on the Secretary of State on and transactions to be proved under the
October 27, 2010 and a stamped certified additional causes of action set forth in the
mail receipt of the U.S. Postal Service proposed amended complaint.
indicting payment of $5.88 and a reference as to the defendant’s name and
Motion to dismiss granted; no issues of
address. There was no indication that the fact presented as prior conviction, even
defendant or his agent either signed for or though entered pursuant to a guilty plea,
refused to accept receipt of the summons served as a bar under the doctrine of coland complaint. As such, the motion for a lateral estoppel in the civil action.
default judgment was denied.
In Kimberly Pisani and Kentatta
Motion for leave to amend his complaint Bellamy v. Shelley A. Drach & Tyler
granted; original complaint gave the Drach Track Gasoline Co., Inc., and
defendants sufficient notice of the occur- Shelley A. Drach and Tyler Drach v.
rences and transactions that needed to be Kenyatta Bellamy, Index No.: 39905/10,
proven under additional causes of action.
decided on January 9, 2012, the court
granted plaintiff/third party defendant’s
In Mary Petty, by James Petty as motion to dismiss the complaint. The case
Administrator of her Estate, and James was a consolidated action for personal
Petty, individually v. Vincent Leone, M. injuries arising from a motor vehicle acciKevin Harrison, M.D., Geno Consigliere, dent. As a result of such incident the
M.D., North Shore University Hospital at defendant Tyler Drach was indicted and
Glen Cove, New York Orthopedic and Spine on September 29, 2011, and pled guilty to
Services, PLLC, and Vincent J. Leone, one count of aggravated vehicular assault
M.D., P.C., Index No.: 45975/10, decided
on August 19, 2011, the court granted
plaintiff’s motion for leave to amend his
complaint to add an additional causes of
action for lack of informed consent.
The case at bar was one sounding in
medical malpractice and wrongful death.
The court noted that leave to amend pleadings was to be freely given, absent prejudice or surprise resulting directly from
delay. In opposition to the motion, defendant Kevin Harrison, M.D. averred that the
statute of limitations as to the plaintiff’s
claim for wrongful death would have
expired on January 27, 2011 and as such,
an amendment to add allegations that there
was a lack of informed consent could not
now be applied because it was time barred.
In granting the motion, the court reasoned
in violation of section 110.04 (1) of the
NYS Penal Law and one count of assault
in the third degree in violation of section
120.00 (2) of the NYS Penal Law.
During his allocution under oath before
the court, he testified that prior to the
accident he consumed alcohol, he was
intoxicated and he drove recklessly over
the speed limit through a red light resulting in a collision with plaintiff Bellamy’s
vehicle. In granting the motion, the court
noted that it is well settled that a prior
conviction, even though entered pursuant
to a guilty plea, served as a bar under the
doctrine of collateral estoppel in a civil
action if there is an identity of issues and
there is a full and fair opportunity to litigate in the prior criminal action. Herein,
the defendant Drach, by way of his allocution, has established the plaintiff’s
prima facie case of negligence and is
barred from re-litigating these issues.
Accordingly, the court found that there
were no issues of fact presented, and the
motion to dismiss was granted.
HONORABLE THOMAS F. WHELAN
Motion to dismiss based upon lack of in
personam jurisdiction; consideration of
the motion precluded pursuant to CPLR
§2214(c); in addition, defendants waived
their objections to personal jurisdiction as
they failed to assert same in a pre-answer
motion or answers.
In Charles C. Garrido and Pamela M.
Higgins v. Peter M. Sadej, Lenore VitaleSadej, Shea & Sanders Real Estate, Scott
Sanders and Joan B. Scherb, as Attorney
Escrow Agent, Index No.: 711/10, decided
on May 5, 2011, the court denied the
defendants’ motion to dismiss based upon
(Continued on page 21)
The Suf f olk Lawyer
wishes to thank Labor
and Employment Law
Special Section Editor
Brian Conneely f or
contributing his time,
ef f ort and expertise to
our March issue.
FULL SERVICE INVESTIGATION
AND SECURITY CONSULTANTS
•Insurance Fraud
•Computer Forensics
•Due Diligence
•Criminal Defense
•18B Assignments
•Accident/Trip & Fall/
Product Liability
Suffolk, Nassau & Manhattan • Reasonable Rates • References Available
Licensed, Bonded & Insured • NYS License # 11000111233
150 MOTOR PARKWAY, HAUPPAUGE, NY 11788
[email protected]
accessintelligencegroup.com
631-584-6700
Brian Conneely
THE SUFFOLK LAWYER — MARCH 2012
On the Move…
Vincent J. Pizzulli, Jr. has joined
Forchelli, Curto, Deegan, Schwartz,
Mineo, Cohn, & Terrana LLP (the Firm),
as a partner in the Land Use and Zoning
Practice Group. Mr. Pizzulli concentrates
his practice in real estate, zoning, land use
and environmental law.
Erin A. Sidaras (Shirley) has joined
Certilman Balin Adler & Hyman, LLP as an
associate. She will focus her practice in the
areas of litigation, real estate and land use,
and will be based in the Hauppauge office.
Gerard J. McCreight, formerly of
Bracken Margolin Besunder, LLP has
joined the Matrix Realty Group in
Smithtown as its Chief Legal Officer.
Matrix Realty Group is a privately held real
estate investment firm focused on acquiring,
developing and managing unique properties
with high value-added components.
Justice Ira B. Warshawsky has joined
the law firm of Meyer, Suozzi, English &
Klein, P.C. as a member of its Litigation &
Dispute Resolution practice.
David A. Schwartzberg, Esq. has
joined the Advantage Group as Senior
Vice President and Foreclosure Counsel.
Debra L. Rubin, senior partner at
Rubin & Rosenblum, PLLC has been
selected for inclusion in the 2011 edition
of Super Lawyers. Ms. Rubin was recently named on of the Top 10 Family and
Matrimonial Lawyers Under the Age of 45
SIDNEY SIBEN’S AMONG US
by the Ten Leaders Program.
Her firm, which recently relocated to Melville, NY, concentrates in the areas of Family
and Matrimonial Law.
the Director of Placement. She
was promoted to Assistant Dean
for Career Service and became
Assistant Dean Emeritus for Career
Services in 2006 until she retired in
2011. Prior to joining Touro Law
Center, she was Executive Director
of the Suffolk County Bar
Association.
Karen J. Tenenbaum, P.C.
has moved to 534 Broadhollow
Road, Suite 301, Melville, NY Jacqueline A. Siben
11747. They can be reached at
To SCBA member Richard Montes
(631) 465-5000, by fax at (631) 465-5003,
and at www.litaxattorney.com. The firm who is an honoree of Long Island
concentrates its practice on the resolution Business News 40 Under 40 Award. The
Board of Directors, Administration and
of NYS & IRS tax controversies.
staff are proud to recognize our colleague
and friend on this honor, an achievement
Congratulations…
well deserved.
Congratulations to Past President Ilene
Karen Tenenbaum, Esq., CPA, (LL.M.
S. Cooper (2009-10) who was appointed
Chair of the New York State Bar Taxation) of Karen J. Tenenbaum, P.C. has
Association’s Trusts and Estates Law been named one of the Long Island Center
for Business and Professional Women
Section at the annual meeting held in New
2012 Achievers’ Award Honorees.
York City at the end of January.
The Board of Directors and members
add their best wishes to the newly
appointed Suffolk County District Court
Judges Derrick J. Robinson and James
A. McDonaugh.
The Board of Directors also wishes to
congratulate past president Douglas J.
Lerose (2003-04) on his recent appointment to the Nassau District Court Bench.
Congratulations to Barbara Mehrman,
Assistant Dean Emeritus for Career Services
a Touro Law Center, who was honored at the
Annual Winter Alumni Reception on January
26. Barbara Mehrman joined Touro College
Jacob D. Fuchsberg Law Center in 1989 as
To Douglas J. Lerose, (SCBA past president 2003-04), who has been tapped to fill a
vacancy as a District Court Judge by Nassau
County Executive Edward Mangano. The
appointment requires legislative approval.
Doug has served as a deputy county attorney
in Nassau since 2010 and will run for election in November.
Thomas M. Volz has been elected
President of the New York State Association
of School Attorneys. Mr. Volz is the principal of the Law Offices of Thomas M. Volz,
PLLC in Smithtown, which specializes in
the representation of public schools and
libraries.
7
Announcements, Achievements,
& Accolades…
A. Thomas Levin, a Past President of
the New York State and the Nassau County
Bar Associations, and the Chair of the
Municipal Law, Land Use and
Environmental Compliance practice and
the Professional Responsibility practice at
Meyer, Suozzi, English & Klein P.C.
delivered the nominating speech for James
R. Silkenat to become President of the
American Bar Association in 2013.
The Society of Trust and Estate
Practitioners (STEP) Long Island branch,
today announced Meltzer Lippe, Goldstein
& Breitstone LLP partner and STEP-LI cofounder, Avi Z. Kestenbaum discussed
current developments in international tax
and estate planning and what every financial, accounting and legal professional
must understand about international tax
and estate planning.
Timothy B. Glynn, an attorney and
partner in the Stony Brook law firm of
Glynn Mercep & Purcell, LLP, has been
appointed to the Board of Directors of
John T. Mather Memorial Hospital.
SCBA member Lance R. Pomerantz
judged the Championship Round of the 6th
Annual NYU Downtown Invitational Mock
Trial Tournament held January 20-22 in the
Kings County Supreme Court Criminal
Division building. Defending national
champions UCLA prevailed over Harvard
in a trial distinguished by an exceptionally
high level of professionalism.
(Continued on page 21)
Employment Law Update 2011-2012
8
THE SUFFOLK LAWYER — MARCH 2012
_________________
By Brian Conneely
Security Act. Failure to comply
While this decision is expected
with these and other new state
to reduce or limit class actions
There were a large number of new state and federal employment laws,
of employment discrimination
and federal employment laws, employ- regulations, notice and document
claims, the impact on other
ment regulations and court decisions in requirements can lead to substantypes of class actions is unclear.
2011-2012 involving employment law tial penalties and liabilities.
For example, some lower courts
which affects both employers and employThe United States Supreme
have found the Walmart deciees. Lawyers must be aware of these new Court also issued several new
sion not to be applicable to
issues when representing their clients and employment decisions in 2011
wage hour class actions under
law firms as employers must comply with and 2012. Several of these decithe under the Fair Labor
Brian Conneely
these new requirements. This article will sions make it easier for employStandards Act (“FLSA”), while
briefly summarize some of these new ees to sue employers for employment dis- other courts have found Walmart to be conlaws, decisions and trends. The other arti- crimination and retaliation, while other trolling in FSLA actions.
cles in this special labor and employment decisions make it harder to sue religious
Additionally, several new court decisions
law section will examine in more detail employers and more difficult to certify in 2011 and 2012 ruled in favor the arbitraspecific employment law and employment employment discrimination class actions tions and/or upheld the arbitration of
litigation issues for 2012.
against employers. For exam- employment disputes. For example, in
Several new state laws and
ple, in Kasten v. Saint Gorbain AT&T Mobility LLC v. Concepcion, 131 S.
federal regulations impose F O C U S O N Performance Plastics Corp., Ct. 45 (2011), the Supreme Court held that
new notice, disclosure and
131 S. Ct.1325 (2011), the the Federal Arbitration Act preempted
record keeping requirements
Supreme Court once again California court decisions voiding contracts
on employers. For example, SPECIAL EDITION expanded protections against containing arbitration provisions waiving
the New York Wage Theft
retaliation to persons who com- class actions. Further, Dauod v. Ameriprise
Protection Act requires
plain about statutory violations by holding Financial Services, 18 Cases 2d 425 (S.D.
employers to obtain and maintain written that employees who make oral complaints Cal, 2011), a federal district court upheld
notices signed by all employees in a lan- under the FLSA are protected in the same an arbitration provision and class action
guage they understand regarding their pay manner as if the complaint was written. waiver clause in an employment agreement
rates, overtime pay and eligibility, paydays Further, in Thompson v. North American between financial advisor and financial serand other wage information. These notices Stainless, LP, 130 S. Ct., 3542 (2011), the vices firm regarding disputed FLSA
must be maintained by employers for at court held that the fiancée of an employee claims. Additionally, in Zaken v. Jenny
least six years.
who complained about Title VII violations Craig, 113 FEP Cases 1144 (E.D.N.Y.
Additionally, effective April 30, 2012, a was entitled to protection under Title VII 2011), Soto Fonalledos v. Ritz Carlton San
new National Labor Relations regulation provisions which prohibit retaliation. These Juan Hotel and Casino, 640 F 3d 471 (1st
requires both union and non-union employ- recent decisions continue the trend of Cir. 2011), Hook v. UBS Financial
ers to post notices in the workplace regard- recent Supreme Court decisions expanding Services, 32 IER 414 (D. Conn. 2011),
ing the rights of workers to unionize and to the scope of coverage for retaliation claims. Thompson v. Air Transport Intl. LLC, 18
engage in protected concerted activity under
Meanwhile, in Walmart Stores v. Duke, WH Cases 3d 872 (8th Cir. 2011) and Teah
the National Labor Relations Act. New reg- 131 S.Ct. 2541 (2011), the Supreme Court v. Macys Inc., No. 11-01356 (E.D.N.Y.
ulations regarding pension and benefit plans placed limits on employment class actions Dec. 19, 2011), several federal district and
also mandate new disclosure requirements in denying the certification of a class action appeal courts upheld arbitration provisions
and expand the definition of fiduciaries for 1.6 million women against Walmart for regarding various employment discriminaunder the Employee Retirement Income gender discrimination in employment. tion, wage, FMLA and other types of
LABOR &
EMPLOYMENT LAW
employment claims.
The National Labor Relations Board (the
“NLRB”) issued several new decisions and
regulations in 2011 which make it easier for
employees to unionize and to complain about
working conditions. On the other hand, the
NLRB and the courts also limited certain
remedies to employees asserting unfair labor
practices and violations of the National
Labor Relations Act (the “NLRA”).
The NLRB issued new rules and procedures in 2011 designed to speed up elections to determine union representation.
Additionally, in Specialty Healthcare the
NLRB made it easier for unions to organize
by reversing a 1991 decision and expanding
the number of potential bargaining units in
non-acute health care facilities such as nursing homes. Further, in Lamons GasketCo.,
357 NLRB No.: 72 (2011), the board
reversed a 2007 decision and barred challenges to voluntary recognition of unions
for at least six months from the date of the
first bargaining session.
The NLRB also issued a new regulation
in 2012 which requires both union and nonunion employers to post notices advising
employees of their right to unionize and to
engage in concerted activity. The NLRB
posting rule is schedule to take effect April
30, 2012 but this regulation is currently
subject to pending litigation challenges.
The NLRB also issued decisions in 2011
which protected the rights of employees to
engage in concerted activities on social
media, i.e., Hispanics United of Buffalo,
Inc., 3-CA-27872 (Sept. 26, 2011). Further,
in Allied Mechanical Services, 357 NLRB
No. 101 (2011), the NLRB held that frivolous employer lawsuits can constitute
unlawful retaliation under the NLRA.
(Continued on page 22)
Developments in Disabilities and Religious Accommodations
Final regulations reaffirm
purpose of the ADAAA
__________________
By Kathryn J. Russo
EEOC’s Final Regulations
implementing the ADAAA
The Equal Employment Opportunity
Commission’s Final Regulations implementing the ADA Amendments Act
(“ADAAA”) became effective on May 24,
2011. The Final Regulations reaffirm the
purpose of the ADAAA - to make it easier
for individuals with disabilities to obtain the
ADA’s protection. The ADAAA made clear
that the primary focus in ADA cases should
be on compliance by employers with their
obligations under the statute and whether
discrimination occurred, not whether individuals are disabled under the law.
The Final Regulations provide “rules of
construction” to evaluate ADA-coverage
issues. These “rules of construction”
include the following:
“
• An impairment is a disability if
it substantially limits the ability of an individual to perform a
major life activity as compared
to most people in the general
population; this usually will
not require scientific, medical,
or statistical analysis.
stantially limit a major life
activity when active.
ment. The Final Regulations clarify that
an individual is “regarded as having such
an impairment” if he or she is subjected to
• An impairment that substan- a prohibited action because of an actual or
tially limits one major life perceived physical or mental impairment,
activity need not substantially not whether that impairment substantially
limit other major life activities limits, or is perceived to substantially
in order to be considered a sub- limit, a major life activity. Prohibited
stantially limiting impairment.
actions include refusal to hire, demotion,
Kathryn J. Russo
• An impairment need not preplacement on involuntary leave, terminavent, or significantly or
• The effects of an impairment tion, exclusion for failure to meet a qualiseverely restrict, the individual from
lasting or expected to last fewer than six fication standard, harassment, and denial
performing a major life activity in order
months can be substantially limiting.
of any other term, condition, or privilege
to be considered substantially limiting.
of employment, among others.
Nonetheless, not every impairment will
While careful to state that an individualIn practice, an individual is “regarded as
constitute a disability.
ized assessment is always required, the having such an impairment” if his or her
Final Regulations allow that some impair- employer takes a prohibited action against
• “Substantially limits” is to be interpreted ments involve “predictable
the individual because of an
and applied to require a degree of func- assessments” which, in “virtuactual or perceived impairtional limitation that is lower than the ally all cases,” will result in a F O C U S O N ment, even if the employer
standard for “substantially limits” finding that they are covered by
asserts, and may ultimately
applied prior to the ADAAA.
the
ADA.
The
Final
establish, a defense to such
Regulations seek to provide a
action. This highlights the
SPECIAL EDITION
• Except in the cases of ordinary eyeglass- “predictable, consistent, and
ease with which individuals
es or contact lenses, the determination workable” framework for
can now obtain ADA coverof whether an impairment substantially ensuring more generous coverage and age. However, coverage alone does not
application of the ADA’s discrimination mean the employer has violated the ADA.
prohibition. Impairments that should lead to Liability is established only when an indi“predictable assessments” include deafness, vidual proves that an employer discrimiblindness, intellectual disabilities, partially nated on the basis of disability, which, in
or completely missing limbs or mobility turn, requires an analysis of whether the
impairments requiring the use of a wheel- individual was qualified for the position
chair, autism, cancer, cerebral palsy, dia- sought or held.
betes, epilepsy, HIV infection, multiple
From a day-to-day management persclerosis, muscular dystrophy, major spective, many more individuals will be
depressive disorder, bipolar disorder, post- entitled to reasonable accommodations.
limits a major life activity is to be made traumatic stress disorder, obsessive compul- Employers should expect that ADA cases
without regard to the ameliorative (ben- sive disorder, and schizophrenia.
will proceed to a point where they must
eficial) effects of mitigating measures.
The most far-reaching provisions of the defend decisions by showing individuals
Final Regulations arguably can be found were not “qualified” because they could
• An impairment that is episodic or in in the section defining who is “regarded not safely or successfully perform essenremission is a disability if it would sub- as” having a substantially limiting impair(Continued on page 22)
LABOR &
EMPLOYMENT LAW
The most far-reaching provisions of the
Final Regulations arguably can be found in
the section defining who is “regarded as”
having a substantially limiting impairment.
• The term “substantially limits” is to
be
construed
broadly in favor
of expansive coverage, to the maximum extent permitted by the terms of the ADA.
• Whether an impairment “substantially
limits” a major life activity should not
demand extensive analysis.
”
THE SUFFOLK LAWYER — MARCH 2012
9
10
Avoiding an Ethical Minefield During Workplace Investigations
THE SUFFOLK LAWYER — MARCH 2012
The “Disclaimer” Duty
___________________
By Brian P. Murphy
Lawyers are often involved in workplace
investigations on behalf of clients. These
investigations arise in various contexts. For
example, some investigations may occur due
to concerns over various workplace irregularities (e.g., embezzlement/theft or SEC
violations), while others may be more defensive in nature (e.g., in response to claims of
sexual or other harassment). The investigations may be unrelated to litigation concerns,
or they may arise in anticipation, or even in
the midst, of litigation.
Generally, investigations are conducted
by either in-house counsel or outside counsel with in-house oversight. Regardless of
the circumstances, this work can present an
ethical minefield.
This article explores a lawyer’s “disclaimer” duty, which is a common ethical
issue that lawyers encounter in their role as
“workplace investigators.”
Cited in this article are the NewYork Rules
of Professional Conduct (“Rules”), which,
effective April 1, 2009, replaced the New
York Code of Professional Responsibility
(“Code”). The new Rules and their accompanying comments are intended to provide a
framework for the ethical practice of law,
both by prescribing “black
letter” obligations and prohibitions, and by offering
additional guidance in the
form of commentary.
In the course of a workplace investigation, it is
common for a company’s
lawyer to personally interview those individuals who have relevant information. In those
instances, the client is the corporate entity
and not the interviewee, even when the individual being interviewed is a corporate officer. See Evans v. Avtek Sys. Corp., 715 F.2d
788 (2d Cir. 1983); Kubin v. Miller, 801
F.Supp. 1101 (S.D.N.Y. 1992); Talvy v. Am.
Red Cross, 205 A.D.2d 143 (1st Dept. 1994),
aff’d. 87 N.Y.2d 826 (1995). While that may
“
using or disclosing any informa- 104(a)(2) [current Rule 4.3]); In the Matter of
tion the individual provided to the Cipriani, 20-A/89, 723-A/03 (Surr. Ct. N.Y.C.
benefit of his/her real client.1 2006) (unpubl.) (same); but see NYSBA
Such a finding may also result in Formal Opinion 728 (2000) (declaring that it is
that lawyer’s disqualification permissible to advise an unrepresented person
from continued representation of of the general nature of the legal issues he/she
his/her real client, at least to the is confronting for the purpose of ensuring that
extent that that representation is he/she understands the need for his/her own
counsel).
adverse to the interIn summary, workplace invesests of the individBrian P. Murphy
F O C U S O N tigations involve many opportuual.2
nities for lawyers to run afoul of
Whenever, durethical rules. Care must be taken
ing the course of investigating
to ensure that those being interWhen a lawyer employed or retained
a client’s constituents, there is
by an organization is dealing with the
any basis for believing that the SPECIAL EDITION viewed understand the lawyer’s
organization’s directors, officers,
role, as well as whom his/her
interests of those constituents
employees, members, shareholders or
and the client might differ, a lawyer must clients are – and who they are not. An ethical
other constituents, and it appears that
provide a disclaimer. Specifically, the misstep in the course of an investigation may
the organization’s interests may differ
lawyer must explicitly advise the con- not only lead to discipline for the lawyer, but
from those of the constituents with
stituent that the lawyer’s role is limited to could also lead to disqualification, a damaged
whom the lawyer is dealing, the lawyer
that of attorney for the organization and not client relationship and, even worse, signifishall explain that the lawyer is the
for the individual constituent. While the cant adverse consequences for the client on
lawyer for the organization and not for
rule does not require this disclaimer to be the public relations front.
any of the constituents.
in writing, clearly the best practice would
Note: Brian P. Murphy is an associate at
be to do so.
Failure to provide this “disclaimer” to the
In addition, in dealing with a non-repre- Bond, Schoeneck and King, PLLC’s Garden
individual is not only a direct violation of the sented constituent, a lawyer must be care- City Office. His practice is concentrated in the
rules, but could allow the individual to rea- ful not to provide advice. This concept is areas of labor and employment law and commercial and civil litigation for a variety of pubsonably believe that the lawyer represents summarized in Rule 4.3, which provides:
lic and private sector clients. He is also involved
both the company and the individual. In other
in all aspects of trial court practice and appeals.
words, the individual could be considered the
The lawyer shall not give legal advice
Previously, he served as an Assistant District
lawyer’s client as well, for conflict purposes,
to an unrepresented person other than
Attorney in the County Court Trial Bureau of the
even though the lawyer never intended to crethe advice to secure counsel if the lawyer
Nassau County District Attorney’s Office.
knows or reasonably should know that
the interests of such person are or have a
1. Rule 1.6(a) prohibits a lawyer from both
reasonable possibility of being in conknowingly revealing “confidential information”
flict with the interests of the client.
and from knowingly using “confidential informabe apparent to the lawyer, it is not
always clear to the interviewee,
especially where there has been
some pre-existing relationship
between the official and the
lawyer such as where the official
has been the principal corporate
contact with the lawyer or the
lawyer has performed some personal work on behalf of the individual. As a result, Rule 1.13 provides:
....workplace investigations involve
many opportunites for lawyers to run
afoul of ethical rules.
”
ate an attorney-client relationship. See, e.g.,
Catizone v. Wolff, 71 F.Supp.2d 365
(S.D.N.Y. 1999) (putative client’s reasonable
basis for believing attorney-client relationship exists is a factor in determining whether
that relationship exists for conflict purposes);
Culver v. Merrill Lynch & Co., 1997 U.S.
Dist. LEXIS 6041 (S.D.N.Y. 1997) (same). If
the individual is deemed a client for these
purposes, the lawyer may be precluded from
LABOR &
EMPLOYMENT LAW
At first blush this might seem like an easy
rule to satisfy, but in practice it is often not. For
example, when an anxious interviewee is
requested to submit to questioning and asks
the company’s lawyer the inevitable question
– “What should I do?” – the lawyer cannot
offer advice. Similarly, when that interviewee
asks about the legal import of his cooperating,
or not cooperating, a substantive answer can
run afoul of this proscription. See W.T. Grant
Co. v. Haines, 531 F.2d 671 (2d Cir. 1976)
(explaining that asking an unrepresented party
to sign documents implicates former DR 7-
tion,” either to the client’s disadvantage or to the
advantage of another.
2. A lawyer may not represent one client in a
matter adverse to a second, current client unless
that second client expressly consents to the
adverse representation and the criteria set forth
in Rule 1.7 for a valid consent are satisfied. For
this reason, if a lawyer represents a corporate
client and also personally represents a constituent of that organization, even in a completely unrelated matter, the lawyer may not counsel
or otherwise represent the corporate client in
connection with any matter in which the interests of the corporation and the individual are
adverse.
“No-Class Action” Arbitration Waivers Infringe Employee Rights
_________________
By Roger S. Kaplan
to award relief to a group of
for class and collective claims….”
employees in one arbitration
The Board also recognized that a
Individual employees cannot be required union representing employees in
proceeding;” and
to sign arbitration agreements waiving collective bargaining could waive
entirely their right to bring joint, class or individual unit employees’ rights to
• the signatory employee would
collective actions in order to get or keep pursue statutory claims in court, as
waive “the right to file a lawsuit
their jobs, the National Labor Relations the Supreme Court held in 2009
or other civil proceeding relating
Board (“the Board) has held. The Board (14 Penn Plaza LLC v. Pyett, 556
to Employee’s employment with
said employees have the right under the U.S. 247).
the Company” and “the right to
National Labor Relations Act to pursue as
resolve employment-related disEmployers having class or colRoger
S.
Kaplan
“protected concerted activity” discrimina- lective waivers in arbitration agreeputes in a proceeding before a
tion, wage and hour and other workplace- ments or other plans (such as commission
judge or jury.”
related claims in such a fashion.
agreements) should consider reviewing them
In D.R. Horton, 357 NLRB No. 184 (Jan. with counsel in light of the NLRB’s decision.
When an employee’s lawyer wrote to the
3, 2012), the Board held that “employers
Employees in D.R. Horton, as a condition of company seeking to arbitrate under the
may not compel employees to waive their employment, had to sign a “Mutual Arbitration
MAA an alleged nationwide class claim
National Labor Relations Act
Agreement” that all employ- alleging the company was misclassifying
(“NLRA”) right to collectively
ment-related disputes had to be employees under the Fair Labor Standards
pursue litigation of employ- F O C U S O N resolved through individual arbi- Act, the Company refused. The lead plainment claims in all forums, arbitration; employees could not pur- tiff filed a charge with the NLRB.
tral and judicial.” The Board,
The Board concluded that the MAA viosue class or collective litigation
therefore, ordered the offend- SPECIAL EDITION of such claims anywhere. The lated section 7 of the NLRA, which gives
ing agreement rescinded or
employees the right “to engage in … conMAA said that:
revised. It also found a violacerted activities for…mutual aid and protion because in barring employees from • all disputes and claims relating to the tection ….” This section allows employstarting employment-related “lawsuits or
employee’s employment with the compa- ees to improve their wages, hours and
other civil proceedings,” the agreement
ny (with some exceptions) would be working conditions “through channels outwould lead employees to believe that they
determined exclusively by final and bind- side their immediate employee-employer
were prohibited from filing NLRB unfair
relationship,” including the “[c]ollective
ing arbitration;
labor practice charges.
pursuit of a workplace grievance….”
The Board, however, stopped short of bar- • the arbitrator could “hear only Forcing employees to resolve disputes indiring all individual arbitration agreements.
Employee’s individual claims,” would vidually with their employers, the NLRB
“Employers remain free to insist that arbitral
not have the authority to consolidate the said, was illegal, even where an employproceedings be conducted on an individual
claims of other employees and would ment agreement was entered into without
basis,” the NLRB said. It required only that
not have the authority “to fashion a pro- coercion. Such agreements were pro“the employer leaves open a judicial forum
ceeding as a class or collective action or scribed not only by the NLRA, but the
LABOR &
EMPLOYMENT LAW
Norris-LaGuardia Act as well.
The Board also rejected the company’s
argument that the Federal Arbitration Act
conflicted with the NLRA in this case. The
Supreme Court in interpreting the FAA, the
Board noted, said an arbitration agreement
cannot require a party to forgo the substantive rights of the statute in issue. Here,
according to the Board, “the MAA’s categorical prohibition of joint, class, or collective federal state or [sic] employment law
claims in any forum directly violates the
substantive rights vested in employees by
Section 7 of the NLRA.”
A court challenge to the Board’s decision is
likely. Eventually, the Supreme Court may
have to reconcile NLRA employee protections with its recent opinions broadly approving of private arbitration agreements.
Note: Roger S. Kaplan is a partner in the Long
Island office of Jackson Lewis LLP. He has represented clients and appeared before executive
departments and administrative agencies, such as
the United States Department of Labor
(Occupational Safety and Health Administration),
the Occupational Safety and Health Review
Commission, the National Labor Relations Board,
and the Equal Employment Opportunity
Commission. As leader of the Drug Testing and
Substance Abuse Management Practice Group, Mr.
Kaplan has worked with many employers to help
assure that their drug and abuse testing policies
and procedures comply with the state and federal
laws and to develop effective testing strategies. Mr.
Kaplan is also active in the firm’s OSHA practice.
Rise in Retaliation Claims
11
THE SUFFOLK LAWYER — MARCH 2012
How to be prepared
Staub complained
that two supervisors
___________
were upset that his
Army Reserve obligBy Sima Ali
ations made him less
Recent trends reveal that employment
available for hard-toretaliation claims are on the rise
schedule times than
other employees, and
Title VII’s anti-retaliation provision seeks that they set out to
to deter employers from interfering with an retaliate against him
Sima Ali
employee’s/applicant’s assertion of rights for inconveniencing
granted to them under Title VII’s anti-dis- the
department.
crimination provision. Specifically, the anti- Staub was protected against retaliation by
retaliation provision prohibits discrimination the Uniformed Services Employment and
against an employee or job applicant, Reemployment Rights Act (USERRA) He
“because he has opposed any practice that is alleged that, as a means of getting rid of him
made an unlawful employment
in retaliation for his reserve
practice (under Title VII), or
service, a supervisor gave him
because he has made a charge, F O C U S O N a disciplinary warning for viotestified, assisted, or participatlation of a rule that Staub
ed in any manner in an investiclaimed did not exist, and that
gation, proceeding, or hearing
he did not violate if it existed.
(under Title VII). 42 USC Sec. SPECIAL EDITION Three weeks later, Staub was
2000e-3(a).
terminated, allegedly on the
According to Equal Employment basis of a second violation of the same rule.
Opportunity Commission (“EEOC”) statisStaub complained that his termination
tics, charges alleging retaliation are the violated USERRA, but the hospital appears
most numerous of all the statutes the EEOC to have done little or nothing to determine
enforces, and they represent 37.4 percent of whether his termination really was retaliaall complaints filed. In 2011 alone, 37,334 tory. He sued the hospital, a jury found that
retaliation-based charges were filed with the his discharge was retaliatory, and Staub
EEOC, as compared to 21,613 in 2000, rep- was awarded $57,000 in damages.
resenting a 67 percent increase. (See EEOC
On appeal, the Supreme Court upheld the
Statistics. http://www.eeoc.gov/eeoc/statis- verdict. It found that a biased supervisor does
tics/enforcement/charges.cfm) This signifi- not need to have decision-making authority
cant increase can definitely be linked to in order to “taint” an employment decision.
recent Supreme Court cases, which have The biased supervisor just needs to intend to
broadened the scope and objective of Title cause harm to the victim’s employment, and
VII’s anti-retaliation provision.
to engage in actions that are a “proximate
cause” of the harm suffered by the employee.
Recent Supreme Court decisions & the
Prior to this Supreme Court decision, lower
expansion of the scope of “Retaliation”
courts had disagreed on what standard to
apply in assessing a cat’s paw claim.
Over the last decade, a number of
employment cases have reached the Recommendations for employers on
United States Supreme Court claiming how to address these recent decisions
retaliation against employees. These
plaintiffs had previously claimed violaEmployers must be vigilant to assure that
tions of wage and hour, Title VII, age dis- adverse employment actions are completely
crimination and various civil rights laws, unrelated to the claims employees might have
which apply to the workplace. The court made for wage and hour, discrimination or
has been very expansive of the rights of any other allegation of legal impropriety in the
employees who complain of retaliation.
workplace and are well documented.
In the most recent retaliation case decided Ultimate decision makers should conduct
by the court, Johnson v. North American thorough investigations to lessen the likeliStainless, 131 S. Ct. 863 (2011) the plaintiff hood of a court finding an inappropriate factor
had not complained of workplace illegality in to be the proximate cause of an adverse
any form. His fiancé had done so. However, employment action and not rely solely on recthree weeks after a sex discrimination claim ommendations of subordinates in making
was filed by his fiancé, Johnson was fired. employment decisions. Employers should be
Lower courts held that Title VII did not cover certain the evidence justifying termination is
alleged retaliation against someone who was totally independent of any legal claim previmerely associated with an employee who ously made before taking adverse action
complained. Unexpectedly, the United against employees who complain, participate
States Supreme Court found that Title VII in or are associated with employees who raise
protects employees if retaliation is based on legal complaints in the workplace. Employers
their association with someone who com- should adopt, publicize and enforce an effecplains of illegal discrimination.
tive anti-discrimination and anti-retaliation
Further, on March 1, 2011, the Supreme policy that includes a complaint process and
Court issued its opinion in Staub v. Proctor they should train supervisors to comply with
Hospital, 131 S. Ct. 1186 (2011) upholding anti-discrimination and anti-retaliation laws.
a theory of employment discrimination liaNote: Sima Ali is the owner and principal attorbility generally referred to as the “cat’s paw”
theory. Under the “cat’s paw” theory, an ney at the Ali Law Group, P.C. She provides a full
range of representative services, primarily for
employer may remain liable for the discrim- management, in all areas of labor and employinatory animus or intent of a biased supervi- ment law. Ms. Ali has represented clients before
sor, even if the biased supervisor was not the federal and state courts, administrative agencies,
decision maker, if the employee shows that and other tribunals. Along with her 15 years of
the employer’s decision was influenced by experience, Ms. Ali offers an exceptional level of
personalized service. www.alilawgroup.com.
the biased supervisor.
LABOR &
EMPLOYMENT LAW
Save the Date
Installation Dinner
Friday, June 1 at 6 p.m.
Hyatt Regency, Hauppauge
For further information call the Bar Association
More work than you can get to?
Not enough hours in the day?
Let me help you increase your profits
and get that work off your desk.
Call today for top-quality research,
writing, litigation support and appeals.
GAIL M. BLASIE, ESQ.
Licensed in NY and CA
(516) 457-9169
1134 Lake Shore Drive, Massapequa Park, NY 11762 www.blasielaw.com
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
12
SCBA Hosts Cohalan Cares for Kids
THE SUFFOLK LAWYER — MARCH 2012
Photo Credit: Barry Smolowitz
THE SUFFOLK LAWYER — MARCH 2012
With CBS Coverage Group, Inc. some choices are better than others
13
Drafting Settlement Agreements in Employment Discrimination Cases
14
THE SUFFOLK LAWYER — MARCH 2012
___________________
By Gina Ianne Grath
language that the waiver does not
the consideration exceeded a
apply to claims that may arise
benefit to which the plaintiff
was already entitled, and
Drafting an effective waiver and release of after the date of the agreement;
whether the employer encourstatutory discrimination claims requires spe- provide for consideration that is
aged or discouraged the plaincial attention to the language of the release. A in addition to anything to which
tiff to consult with an attorney
“general release” will not satisfy the specific the employee is already entitled;
and that the plaintiff had an fair
requirements of many of the federal statutes advise the employee to consult
opportunity to do so. See
governing the workplace. Well-established with an attorney prior to executAylaian
v.
Town
of
law requires that a release of statutory claims ing the agreement; give the
employee a period of at least 21
Huntington, 762 F.Supp.2d
Gina Ianne Grath
be “knowing and voluntary.”
537 (E.D.N.Y. 2011).
To determine whether the language of a days to consider the agreement;
Language that provides for the waiver of
release and waiver agreement is sufficient provide that the employee may revoke the
to meet this standard, courts look to the agreement during a period of at least 7 days claims by the employee should be expressed
broadly to include claims, both known and
totality of the circumstances, including: the following execution.
Additional requirements must be met for unknown, arising out of the employment
employee’s education and business experiwaivers executed in connec- relationship, and should identify specifically
ence; the employee’s involvetion with an exit incentive or claims that may be brought under the federment in the negotiations; the
clarity of the agreement; F O C U S O N termination program offered al and state anti-discrimination statutes. The
to a group of employees, agreement should at least include in the defwhether the employee read and
including that the individual inition of released parties, the employer, its
considered the terms of the
agreement before signing it; SPECIAL EDITION be given a period of at least officers, directors, employees, agents, and
45 days to consider the any predecessor or successor entities. The
whether the employee was repagreement, be informed at employer may also consider including a
resented by counsel; whether
the consideration given in exchange was the time the release is offered of the eligi- covenant against future legal action by the
greater than that to which the employee bility factors for the program, any time employee. If you do so, be aware that under
was already entitled; and whether the limits applicable to the program, and the Title VII, the ADA, ADEA, and the EPA,
employee’s release was induced wrongful- job titles and ages of all individuals eligi- employers are prohibited from interfering
ly by the defendant. See Hampton v. Ford ble or selected for the program, as well as with the protected rights of employees to file
the job titles and ages of all those individ- a charge, testify, assist or participate in any
Motor Co., 561 F.3d 709 (7th Cir. 2009).
In order to establish a knowing and vol- ual not eligible or selected for the program. manner in an investigation or proceeding
conducted by the EEOC. The agency views
untary release of certain types of claims, See 29 U.S.C. §626(f)(1).
When seeking to enforce a waiver agree- language in a release document that prevents
like those that could be asserted under the
Older Workers Benefit Protection Act ment, the employer must demonstrate that an employee from engaging in these activi(“OWBPA”), the language of the release the release language complies with all of ties as retaliatory on its face. It is therefore
must meet certain additional criteria. See the OWBPA’s requirements. In addition, recommended that the parties’ agreement
29 U.S.C. § 626(f)(1); 29 C.F.R. § 1625.22. the court will view other factors under a include language that limits the scope of the
The OWBPA of 1990 amended the Age “totality of the circumstances” test, includ- release by “carving out” the employee’s
Discrimination in Employment Act to pro- ing the plaintiff’s education and business right to file a charge or cooperate with any
vide that, at a minimum, a valid release of experience, the amount of time the plaintiff federal, state or local agency. It is important
an individual’s claims under the ADEA had possession of the agreement before to note that this right does not extend to the
must: be written in a manner calculated to signing it, the role that plaintiff played in acceptance of relief, monetary or otherwise,
be understood by the employee; contain deciding the terms of the agreement, the by the employee and the agreement should
specific reference to the employee’s rights clarity of the agreement, whether the plain- state as much. See E.E.O.C. Enforcement
or claims arising under the ADEA; contain tiff was represented by counsel, whether Guidance on non-waivable employee rights
LABOR &
EMPLOYMENT LAW
Property Tax Cap Law
Headline v. Reality
____________________
By Douglas W. Atkins
Everyone has seen the new Tax Cap Law
headline by now: Property Taxes Capped
at 2%!!! This is welcome news to Suffolk’s
small and big businesses alike. After
almost 20 years of skyrocketing bills, landlords, tenants and small businesses are
hoping the worst is behind them. The reality of the legislation, however, is far more
complicated than the headline.
On June 30, 2011, the then newly elected Governor Cuomo traveled to Long
Island to sign Chapter 97 of the Laws of
2011, “The Tax Cap Law.” For properties
located in Suffolk County, this will be
applicable beginning with the December,
2012 tax bills. Andrew Cuomo’s signing
of The Tax Cap Law was the culmination
of a lengthy effort of previous governors
and legislatures. While the public has long
supported the idea of limiting property
taxes, the passing of such legislation
proved to be difficult because of public
union resistance. Most of the property tax
is paid to school districts, and most of that
tax revenue is paid as salary and benefits
to unionized employees. Consequently,
any limit placed on tax revenue is a headwind against compensation of unionized
municipal and school employees. Public
unions wield significant power in Albany,
so the tax cap did not come into being for
years despite overwhelming support. But
with the great recession and its ill effects,
under equal employment opportunity commission enforced statutes. No. 915.002,
April 10, 1997.
Several additional provisions are necessary and useful when drafting a comprehensive settlement agreement. The following list of general terms is not exhaustive
but a useful guide for the drafting party: a
recitation of the adequate consideration
provided to the employee; the terms of payment of the settlement monies that includes
a provision covering the tax treatment of
the payments, including withholding and
reporting issues; a statement that the
release is voluntary; a clause providing for
the withdrawal or dismissal of pending
legal actions or administrative proceedings;
a non-admission of wrongdoing by the
employer; a provision for payment of attorney’s fees, or a representation that acceptance of the settlement payment represents
a release and waiver of any claim for attorney’s fees by the plaintiff; a confidentiality
clause; restrictive covenants such as noncompetition, non-solicitation clauses, and
confidentiality of trade secrets; a provision
requiring the return of company property; a
waiver of the right to future employment; a
representation that the employee was given
adequate time and an opportunity to consult with an attorney (and all of the language required in ADEA cases, if appropriate); a dispute resolution procedure (arbitration) or choice of forum clause; and
other general clauses including, severability of clauses, merger and modification
clauses, and choice of law provisions.
Note: Gina Ianne Grath is an attorney
with the firm of Alan B. Pearl & Associates,
P.C. She focuses her practice on the defense
of labor and employment matters. She can be
reached at [email protected] or by telephone at (516) 921-6645.
TAX LAW
the tide turned enough for the
State Constitution, Article V,
legislation to be passed.
Sec. 7 guarantees the pension
The Tax Cap Law modified the
payments of public employGeneral Municipal Law and the
ees. Consequently, the Tax
Education Law so that the tax levy
Cap Law specifically accepts
can increase only by 2 percent or
the pension costs from the 2
with inflation, whichever is less.
percent levy calculations. For
See, General Municipal Law 3-c
example, say Smithville must
and Education Law 2023-a (2)(a).
levy an addition $5,000,000 to
A primer on municipal and school Douglas W. Atkins cover its employee pension
finance is in order at this point.
costs, it is empowered to do so
Let’s take a hypothetical school district without limitation. This exception will
named “Smithville School District” to illus- rear its ugly head in the coming years
trate. Smithville has a budget of when all municipalities will be paying for
$150,000,000. It receives $25,000,000 in the stock market meltdown of the recent
state aid and $15,000,000 is miscellaneous recession. Investments, including pension
revenue (interest income, rental properties, investments, dropped precipitously. This
etc). This leaves $110,000,000 to be raised left a shortfall in pension funding. Since
through the property tax and
this is Smithville’s levy. The
levy will be raised from all
of the parcels in the district
in proportion to their tax
assessment (more on this
below). The Tax Cap Law
limits the levy growth. For
example, if in year one
Smithville has a levy of $110,000,000, in public pensions are constitutionally guaryear two it can only be $112,200,000 (using anteed, the municipalities and school disthe two percent cap).
tricts must pick up this cost.
The commercial property taxpayer is
A less notable exception to the Tax Cap
misinformed if they feel their bill can only Law is capital expenditures. For example,
rise by 2 percent. For a variety of reasons, say Smithville wants to erect a new elemost notably the Tax Cap Law’s intended mentary school at the cost of $20,000,000.
exceptions, year-by-year taxes can rise by Again, it is empowered to do so without
more than 2 percent. The biggest excep- being subject to the 2 percent cap.
tion is the pension cost. The New York
Municipalities and school districts are
“
Municipalities and school districts are
given the opportunity to override the 2percent cap, and indeed, some villages
already have done so.
”
given the opportunity to override the 2
percent cap, and indeed, some villages
already have done so. For non-school district municipalities (e.g. Town of
Brookhaven, Suffolk County, Village of
Amityville), the “governing body” can
elect to override the cap with approval of
“sixty percent of the total voting power of
such body”. See, General Municipal Law
3-c(5). This is relatively easy; some towns
only need a three out of five board member vote and the Suffolk County
Legislature only needs an 11 out of 18
vote. Keep in mind, however, these municipalities are only voting on the taxes attributable to them. They have no power relative to the school tax. School Districts
have a much more difficult road. They
need the voting public to approve the 2
percent override with a 60 percent vote.
See, Education Law, 2023-a(6). This will
be a high hurdle for any district.
The tax levy is only half of the equation
with the tax assessment being the other
half. In Suffolk County, each town has
assessing authority for its properties. This
is done on an annual basis with the publishing of the tentative assessment roll
each May. Pursuant to Real Property Tax
Law, Sec. 301 and 302, each town tax
assessor is charged with the duty of valuing properties based on their status and
condition as of March 1. Since assessments are based on a property’s value, in
theory, a $1,000,000 property should pay
double the tax of a $500,000 property. The
(Continued on page 22)
15
THE SUFFOLK LAWYER — MARCH 2012
Judge Floyd’s portrait was unveiled on February 24 at the Cohalan Court Complex in
celebration of Black History Month. Attending the unveiling were from left, SCBA
Past President George L. Roach (2001-’02), Judge Floyd, SCBA Executive Director
Jane LaCova, and Vincent G. Berger, Jr.
Honorable Marquette L. Floyd
Retired Supreme Court Justice
Marquette L. Floyd visited the Bar
Center recently for a photo session with
renowned portrait photographer Lynn
Spinnato of Spinnato Galleries, Port
Jefferson, NY. Justice Floyd’s portrait
will be unveiled at a celebration of
Black History Month on Friday,
February 24, 2012 at the Cohalan Court
Complex, at 12:45 p.m.
Over his long judicial career, Justice
Floyd, an outstanding jurist, who earned
the respect of lawyers, judges and yes,
“just the plain folks,” as John Buonora
(SCBA past president (06-07) and
adjunct professor at Touro Law School),
pointed out in his “A Centennial
Legend” series (published in The Suffolk
Lawyer February 2010). Judge Floyd
was re-elected several times to the
District Court Bench, serving for 19
years; he was elected to the State
Supreme Court Bench in 1989 and
served from that time until his retirement
in 2002. During that time Judge Floyd
also served on the Appellate Term, being
designated at its Presiding Justice in
2001. Among his many accomplishments and associations, he served as a
member of our Board of Directors and
received a 50th year golden anniversary
tribute in 2011.
~LaCova
Creative Thinking for Law Firms
PRACTICE MANAGEMENT
__________________
By Allison C. Shields
other industries – specifically the
industries your clients work in you can give clients and potential
We’re well into the new
clients something that is familiar
year, and whether you’ve
to them and that might help them
already abandoned your New
to see the value of the services
Year’s resolutions or not, it
you provide in a different light.
may be time to think about
The law is often confusing and
how you can innovate and
can be foreign territory for those
think more creatively about
who have not had experience with
Allison C. Shields
the challenges in your law
it before. Giving your clients
practice to develop new ways
information in a form that they are used to
to solve problems for your clients.
Noted business and marketing expert might make it easier for them to make the
Dan Kennedy advocates a technique he connection between the services you are
calls “creative cheating.” Kennedy says providing to them and the outcome they
that businesses should “steal and adapt want to reach. This is another form of what
what’s already built.” He also notes, I call ‘speaking your clients’ language’
“Whatever you’re trying to do, somebody (rather than resorting to legalese).
One great example is creating a onehas already figured out and built — just not
in your business or industry or in an appli- sheet for your law firm, which is used often
cation you might ordinarily, easily think of in the music industry. A one sheet is a one
page “resume” or overview of your firm
in connection with your business.”
According to Kennedy, the key is: every which includes the highlights of your firm’s
time you see anything, go
anywhere, or experience
anything, to ask yourself,
“How can I use that?” It’s
a habit worth applying to
your law practice.
I recommend that lawyers
look to other industries as a
source of ideas for marketing and for running attorneys, practice areas and benefits.
their practice more effectively for two reasons: Think of the one sheet as a mini-brochure.
Another example is the use of surgical
first, looking at what other industries are doing
gives you a unique perspective on how to run checklists, borrowed from the airline
your practice, and as Kennedy points out, you industry and popularized by Atul
may get an idea from an unrelated industry Gawande, M.D. Incidentally, checklists are
that you can apply in a completely new way. another great idea for attorneys, for the
Lawyers tend to focus only on the legal indus- process-oriented work that must be done in
try and what other lawyers are doing, and that firms to conform to court rules, etc.
If you want more ideas about creative
limits the possibility for innovation.
The second reason is that by looking to
(Continued on page 21)
“
Strictly
Professional...
A DV E R T I S E Y O U R B U S I N E S S
E X C L U S I V E LY T O M E M B E R S O F
T H E L E GA L P R O F E S S I O N
The law is often confusing and can be
foreign territory for those who have not
had experience with it before.
”
P U B L I S H E R S O F T H E S U F F O L K L AW Y E R - T H E Q U E E N S B A R B U L L E T I N
T H E N E W Y O R K C O U N T Y L AW Y E R
C A L L T O D AY
631-427-7000
16
THE SUFFOLK LAWYER — MARCH 2012
The Lawyer’s Lockbox
____________________
By Joseph W. Ryan, Jr.
Note: Mr. Ryan represented
Thomas Foley at the trial discussed below.
CRIMINAL LAW
wrongdoing Mr. Foley had
received constituted “confidential information” under Rule 1.6
(a) of the Code of Professional
Responsibility3, and imposed
upon Mr. Foley a duty of silence.
Rule 1.6 provides in pertinent
part:
What silence obligations are
imposed upon a corporate
counsel when he is advised by
A lawyer shall not knowingly
three members of the accounting department that they had Joseph W. Ryan, Jr. reveal confidential information…to the disadvantage of a
been engaged in an ongoing, extensive
client…” Confidential inforfraud scheme to induce millions of dollars
mation” consists of informato be drawn on the company’s line-of-credtion gained during or relating
it bank loan account to fund company operto representation of a client
ations? Must counsel disclose the fraud to
…likely to be embarrassing
the bank? If not, can the prosecution use the
or detrimental to the client if
attorney’s silence to convict the attorney in
disclosed.
a prosecution for bank fraud?
These questions dominated a recent bank
Using a “lockbox” metaphor,
fraud trial before a jury and Judge Kiyo
Professor Ross explained that Mr.
Matsumoto in the Eastern District of New
York.1 Thomas Foley, the corporate coun- Foley was under an inviolate duty to keep
sel, successfully defeated a prosecution the fraud disclosure in a “lockbox.” His
attempt to use his silence to convict him. only “option” to disclose the wrongdoing
Relying on circumstantial evidence, the came with six “keys”4 to unlock the box —
prosecution argued to the jury that Mr. none of which applied to the Foley situaFoley’s failure to disclose his knowledge of tion. No matter how noble the purpose may
the bank fraud supported its case that Mr. be, the lawyer cannot unlock the box absent
Foley conspired with the company owner the consent of the client; otherwise the
to defraud the bank. To meet that charge the lawyer may face sanctions and be liable for
Foley defense called in expert witness on money damages.
Judge Matsumoto explained the purpose
the Code of Professional Responsibility.
Michael S. Ross, an Adjunct Professor at of the rule to the jury:
Benjamin N. Cardozo and Brooklyn Law
This [silence] duty, also known as the
Schools2, testified that the disclosures of
attorney-client relationship, protects
against disclosure of confidential communications made in the course of a
professional relationship. When a
lawyer learns that his or her client has
engaged in wrongdoing, he or she is
obligated by a governing ethical rule
not to disclose the wrongdoing because
the information is considered “confidential.” The purpose of the rule is to
encourage clients to reveal everything
relevant to a lawyer when
seeking legal advice;
and this principle
applies to cor-
lished that Mr. Foley did not assist his client
in perpetrating the client’s ongoing bank
fraud, and that his silence as related to the
bank was consistent with his attorney ethical
obligations as its attorney. Every client
should feel comfortable that his or her
lawyer will not “throw the client under the
bus.” While lawyers may make attractive targets for the FBI, we trust that the prosecution will refrain from attempting to use an
attorney’s silence as evidence against the
attorney when it must remain in the lockbox.
In the end, the application of the “silence”
rule in the Foley prosecution served the public interest by encouraging client disclosure
of wrongdoing allowing for prompt corrective action. In this case it seems apparent that
the lay jury appreciated the “lockbox” more
than the prosecution. Hail to the “Lockbox.”
Note: Joseph W. Ryan, Jr. is a federal
court practitioner, and a former assistant
United States attorney. He is also a past
president of the Nassau County Bar
Association and is the current chair of the
SCBA Federal Courts Committee.
porate employees who are encouraged
to reveal information to corporate counsel. However, there are exceptions to
this rule. One such exception is the
crime-fraud exception, under which the
attorney may not assist a client with
perpetrating an ongoing criminal act.
The jury verdict of “Not Guilty” estab-
1. United States v. Foley, EDNY No. 10-627
2. Mr. Ross is a frequent lecturer at Bar
Associations on Professional Responsibility and
an active NYC trial lawyer. See: rosslaw.org
3. The NYS Code applies since Mr. Foley is
admitted in New York and the acts occurred in
New York.
4. Rule 1.6 (b) (1)-(6). No further draws
were made after disclosure.
Pro Bono Attorney of the Month: Barry Smolowitz
PRO BONO
_________________
By Nancy Zukowski
This month it is our pleasure to honor
Barry Smolowitz, an attorney who generously offered his leadership and technical
skills at just the right time to make a huge
difference in the lives of many Suffolk
County homeowners. Many of us know Mr.
Smolowitz as a past President of the Suffolk
County Bar Association. However, three
years ago this April, he accepted the challenge to create a new model for the way
foreclosures are handled in Suffolk County.
As the Coordinator of the Suffolk Bar Pro
Bono Foreclosure Settlement Project, Barry
Smolowitz has demonstrated innovative
leadership and a true spirit of community
service.
Inspired by information he gained at a
legal conference, he and then District
Administrative Judge, Hon. H. Patrick Leis,
III thought it would be a good idea to put
together some type of pro bono representation for the people facing foreclosure in
Suffolk County. At the time, Mr. Smolowitz
was serving as immediate past president of
the Suffolk County Bar Association and cochair of the Pro Bono Action Committee.
The foreclosure crisis was looming and
there was concern about how the courts
would handle the huge number of anticipated cases.
Mr. Smolowitz coordinated the clinic’s
structure to meet the statutory revisions
requiring that all foreclosure cases first go
to a settlement conference presided over by
court referee attorneys. The idea was to
organize the Foreclosure Project more like a
law office and to work with the courts to
make the services widely available. The
courts agreed to invite anyone who received
a foreclosure notice to make an appointment
at the clinic and have their paperwork
reviewed at a free consultation. Touro law
students field the client calls explaining how
the project operates. At the consultation, a
volunteer attorney reviews the homeowner’s
paperwork and evaluates the case for continued free representation. Over 95 percent
of the applicants are approved.
Mr. Smolowitz explained, “We will not
assist a person who is strategically foreclosing, or if it is not their primary residence
that is in foreclosure.”
It is the client’s responsibility to notify the
project of their court date to request an
attorney. The attorney who will represent
them at the conference is an Attorney of the
Day rather than Attorney of Record. This
makes it possible for one attorney to do the
initial consultation and another to do the settlement conference. Volunteer attorneys
have specialized in handling parts of the
matter as their talents, preferences, or
schedule allows.
Initially, the court’s settlement conferences where held only in Riverhead, but due
to the volume of cases the locations were
soon expanded to include Patchogue and
Ronkonkoma. With several physical locations and limited human resources, it soon
became clear that a clinic would not work
unless there was technology to coordinate
all of these resources. Once again seeing
the need, Mr. Smolowitz utilized his technology skills to produce an online Case
Management System, appropriately called
FAST (Foreclosure Appointment Status
Tracker). This system allows lawyers to see
the scheduled cases and to assign themselves to a case, thus creating an automated
system. All of the files, documents, and
notes for a case are scanned or entered into
the system electronically. Confidentiality is
preserved because only the attorneys who
have been assigned to a particular case can
view the records for that case. The system
also allows attorneys access to all forms and
case law. Although automated, Mr.
Smolowitz spent hundreds of pro bono
hours setting up the clinics, recruiting pro
bono attorneys, designing the technology
and supervising law students.
Barry Smolowitz is a graduate of the
Charter class of Touro College Jacob D.
Fuchsberg Law Center in 1984. He knew
that he could call upon fellow alumni as
well as other members of the Suffolk
County Bar to meet the need for pro bono
attorneys to serve in the new Foreclosure
clinics. Mr. Smolowitz observes that this
Project would not work were it not for the
cooperation between the courts, Touro Law
School, the Suffolk County Bar
Association, and Nassau Suffolk Law
Services. He points out that in three years,
165 attorneys have volunteered with the
program and have handled over 1600 cases.
“One third of our cases are being
cleared,” said Smolowitz.
This means that a homeowner may get a
loan modification or a deed in lieu of foreclosure and be left economically whole.
When a case cannot be resolved by the parties and their attorneys in the settlement
conference, it is referred to the IAS Part to
be resolved by a judge.
After serving for 19 years on the New
York City Police Department, Mr.
Smolowitz had become accustomed to
answering the call to serve his community
when needed. His community involvement
currently extends to serving on the Board of
Directors of Nassau Suffolk Law Services
where he generously brings his valuable
experience, leadership and ideas to a legal
services agency serving low income and
disabled Long Islanders.
Jeffrey Seigel, Law Services Executive
Director, commented, “I am proud to call
Barry a friend and colleague. He is a valuable member of our board and his contribu-
Barry M. Smolowitz
tions to the Foreclosure Project cannot be
overstated.”
Explaining the insights his pro bono
work has given him, Mr. Smolowitz said,
“You truly get an understanding that
Suffolk is a polyglot community and the
issues cut across economic, gender, and
racial lines. You will see homeowners in
distress from all walks of life. It is possible
for someone who was a stockbroker two
years ago and is now unemployed to own a
house that is ‘underwater.’ Another middle
class person may be working but not able to
pay their mortgage because a member of
their family is critically ill and has high
medical bills. Or a low income person may
have been issued a mortgage with rates they
cannot afford to pay.”
Mr. Smolowitz added that the most gratifying part of his work is seeing the people
(Continued on page 22)
The Foreclosure Project is always looking for pro bono attorneys. To participate in this worthwhile effort, please
contact Barry Smolowitz at
[email protected] or (631) 544-0759.
17
THE SUFFOLK LAWYER — MARCH 2012
Is Your Home Suitable for a Home-Based Business?
PRACTICE MANAGEMENT
______________________
By Lisa Renee Pomerantz
Entrepreneurs often start their businesses working from home to minimize costs.
Especially because it is a casual environment, they may not be sensitive to the legal
and regulatory considerations applicable to
their home-based businesses. Many town
zoning codes, especially on Long Island,
strictly limit the scope and operations of
home-based businesses within residential
districts. These code provisions were
intended to preserve the residential nature
of the districts, but may also apply to limit
the permitted scope of commercial activities, such as internet-based businesses,
that have no adverse impacts on the neighborhood.
Three different approaches are used:
• A town, such as Islip, may permit certain professionals, such as doctors,
attorneys, accountants, architects, etc. to
have “home occupations” while
absolutely prohibiting other commercial uses of residences, such as restaurants, beauty salons, bars, and art galleries, which typically involve a lot of
noise and traffic. Other uses,
which are consistent with the
residential nature of the area,
are permitted with the
approval of the Town Board
of Appeals.
ing codes regulate various
aspects of those businesses,
including:
• Permit requirements;
• Parking requirements;
• Signage limitations;
• Other towns, such as
• Limits on the location and
Brookhaven, permit a simisquare footage of the resilarly limited variety of Lisa Renee Pomerantz dence devoted to commercial
home-based occupations, and prohibit
purposes; and
all others.
• Limits on the number of employees
• Finally, some towns, such as Babylon,
employed at the home-based business.
only permit designated “home occupations” in “Residence-Office MixedPotential entrepreneurs should also be
Use Districts” which are generally aware of applicable industry-specific
located between commercial and resi- safety and licensing requirements.
dential districts.
Home-based day care centers are subject to regulations concerning backWhere a home-based business is not ground-screening of employees and
permitted, a virtual office arrangement in ratios of caretakers to children.
a shared services facility may be a feasi- Preparation of food for sale must take
ble alternative, permitting the entrepre- place in approved commercial kitchens.
neur to receive mail and packages and Beauty salons are also subject to licensmeet with clients at an alternate location. ing and safety regulations. Finally,
even though a home-based business
Even where home-based businesses are takes place in a more casual environpermitted in residential areas, town zon- ment, owners should be aware of their
duty under OSHA to provide a safe
workplace to any employees as well as
their potential obligations to safeguard the confidentiality of client or
third party confidential information.
For this reason, electronic and paper
records of the business should be
shielded from access by other family
members or visitors.
Owners of home-based businesses
should also consult with their insurance
agents. Typically, homeowners insurance does not cover the assets or activities associated with a home-based business. Moreover, business insurance policies will require adherence to applicable
laws and regulations as a prerequisite to
coverage.
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.
Security Deposit Must be Returned if Commingled with Personal Funds
LANDLORD/TENANT
_____________________
By Patrick McCormick
Two recent cases, the first involving a
dispute over a residential security deposit
and the second involving a landlord’
attempt to enforce a “Memorandum of
Understanding” against a tenant are worthy of discussion.
In Band v Peters1 plaintiff/tenant commenced an action against defendant/landlord alleging breach of a residential lease
and conversion claims and sought the
return of his security and utility deposits.
In that case, tenant leased landlord’s home
for a 35 day term at an agreed rental of
$92,500 and gave landlord a security
deposit of $18,500 and a utility deposit of
$9,250. Plaintiff vacated the demised
premises at the end of the term but landlord did not return the security or utility
deposits. Tenant sued claiming landlord
commingled the deposits with his personal funds and did not notify tenant of the
name and address of the bank into which
the security and utility deposits were
made in violation of the lease and General
Obligations Law §7-103.
On tenant’s motion for summary judgment, landlord claimed summary judgment was premature due to outstanding
discovery, that he did not commingle the
deposits and that the name of the bank was
noted on the reverse of the cancelled
check in satisfaction of the applicable
GOL provision. Landlord also claimed
tenant breached the lease resulting in tenant forfeiting the deposits.
The court granted summary judgment to
tenant based on the “undisputed” fact that
“defendant deposited the security and utilities deposits into his personal account
rather than in trust for plaintiff as required
by GOL §7-103(1).” The court
lord cancelled the loan for- and uncertainty could have been avoided
also found that the stamp on the
giveness agreement and sued had the subsequently executed lease
reverse of the tenant’s cancelled
for the full debt and rent for agreement provided that the memorandum
check “does not qualify as notice
the balance of the lease term. of understanding was either terminated or
in writing as required by GOL
Defendant/tenant defended inapplicable to the new lease or, if it was
§7-103(2).”
claiming, among other things, intended to bind the parties, that is was
Accordingly, while permitting
that the memorandum of specifically incorporated within the lease.
landlord’s counterclaims regardunderstanding barred the
ing tenant’s alleged breach of the
action.
Note: Patrick McCormick litigates all
lease to continue, the court Patrick McCormick
The Appellate Division types of complex commercial and real estate
ordered the immediate return of the securi- affirmed the trial court’s determination that matters. These matters include business disty and utility deposits with interest plus the memorandum of understanding was not putes including contract claims; disputes
attorney’s fees under the lease.
enforceable because it lacked “a manifesta- over employment agreements and restrictive
Obviously, attorneys representing tion of mutual assent sufficiently definite to and non-compete covenants; corporate and
landlords should be familiar with the rel- assure that the parties are truly in agree- partnership dissolutions; mechanics liens;
evant statutes governing security and ment with respect to all material terms.” trade secrets; insurance claims; real estate
other deposits and counsel their clients The Appellate Division also relied on the title claims; complex mortgage foreclosure
accordingly.
fact that the memorandum of understand- cases; lease disputes; and, commercial landThe second case comes from the ing was deemed to be a “preliminary agree- lord/tenant matters in which Mr. McCormick
Appellate Division, Third Department in ment” contemplating future negotiations represents both landlords and tenants.
Female Academy of The Sacred Heart v. and “a formal contract.” The Appellate
1. Band v. Peters, 115845/10, NYLJ
Doane Stuart School2. The parties execut- Division found the memorandum of undered a written “memorandum of understand- standing to be an “unenforceable agree- 1202539604306, at *1 (Sup., NY Decided
ing... contemplating that they would exe- ment to agree...”
January 3, 2012)
cute a formal contract leasing a portion of
2. Female Academy of The Sacred Heart et
We do not know whether the memoranthe... property to defendant for 99 years.” dum of understanding was intended to al, v. Doane Stuart School, 512605, NYLJ
The memorandum of understanding also protect the tenant under the facts present- 1202540477043, at *1 (App. Div., 3d. NY
provided that the lease should have “a ed to the court. However, the litigation Decided January 26, 2012)
cancellation clause built in so that [,]
should [defendant] merge or relocate...
neither party would be in breach of contract.” A lease was not executed but “defendant nevertheless rented the property.”
The Suffolk Pro Bono Project is looking for “a few good” pro bono attorDefendant fell behind in rent payments in
neys to take guardianship cases. Many low income parents of disabled chilthe amount of $500,000 and plaintiff
dren often have a hard time filing guardianship papers pro se. Nassau Suffolk
advanced funds to maintain the property.
Law Services screens needy applicants for pro bono services to determine that
The parties then entered a written “loan
the household income is below 200 percent of the poverty level.
forgiveness agreement and a lease termiIf you are interested in taking a case, or in guiding a parent through the
nating in 2012 with landlord forgiving a
guardianship process, we could use your help! Please call Maria Dosso at,
portion of tenant’s debt for each month
(631) 232-2400 x 3369.
tenant timely paid rent. Tenant vacated
the demised premises in 2009 and land-
Pro Bono Guardianship Attorneys Needed
18
THE SUFFOLK LAWYER — MARCH 2012
My Clients with Second Mortgages were Brainwashed
CONSUMER BANKRUPTCY
How
the banking industry fleeced America with euphemisms
_________________
By Craig D. Robins
When I ask my clients how many mortgages they have they almost always reply
that they have only one. Then, upon further questioning, they tell me they also
have a home equity loan.
“So you do have two mortgages,” I say.
“No we don’t!” they say. “We only have
one mortgage! The other debt on the
house is just a HELOC.”
These clients and so many others have
been the victims of one of the largest brainwashing schemes in the history of modern
mankind. So pervasive was this effort to
hoodwink society that it was a major contributing factor to the national recession
that we are currently experiencing.
When I was growing up, mortgages
were sacred. As a child in the 1960s, I
recall homeowners in my old neighborhood in Hauppauge having mortgageburning parties to celebrate having made
the final payment of their mortgage debt.
Many of these homeowners had relatively humble pasts, having moved to the suburbs from small apartments in the boroughs
of New York City. They worked very hard
to buy a home to shelter their family and
provide them with a better lifestyle.
Several years ago, an essay in the New
York Times discussed this phenomenon,
noting that in 1975, Edith and Archie
Bunker torched their mortgage on All in
the Family; two years later, the Walton
family burned theirs on The Waltons.
During that age, the thoughts about
mortgages were that you paid it, you paid
it on time, and you never messed with it.
Getting a second mortgage? Not a chance.
That just wasn’t done except for some
kind of financial emergency.
place to borrow? Your place.”
You paid off your mortgage
CIT Financial boasted: “You
and the equity in your home
don’t have to sell your home to
became your nest egg for
get $10,000, $30,000 or even
retirement.
more in cash. You don’t even
However, the banking indushave to walk out the door.” PNC
try changed all that primarily in
Bank came out with a print ad
the 1980s and 1990s. Looking
campaign picturing a wheelbarfor new ways to make money,
row - the catch phrase? “The
they devised an ingenious way
easiest way to haul money out of
Craig D. Robins
to persuade American homeyour house.”
owners to borrow more.
Of course, the problem is that the homeBanks spent billions of dollars with owner, enticed by the proposition of easy
ubiquitous advertising campaigns to money, failed to realize the long-term
encourage homeowners to borrow, bor- implications and consequences of borrowrow, borrow. Their objective: to make it ing a large sum secured by their most
socially acceptable to incur more debt. As valuable asset. These included making
a result, many tens of millions of regular payments, incurring significant
American homeowners traded in their interest and the possibility of losing one’s
hard-earned equity for easy
credit – enabling consumers to purchase items
that they wanted, rather
than needed.
The words, “second mortgage” were out; the concept
of cashing in one’s home
equity, as if the house was a
piggy bank, was in. These advertising home if payments were not made. After
campaigns successfully created a new con- all, getting a “second mortgage” was a nosumer attitude for obtaining additional real no, but “accessing one’s equity?” Well,
estate financing. Citibank urged consumers that’s smart planning.
to take out second mortgages, proclaiming,
Spurred on by such sugar-coated
“There’s got to be at least $25,000 hidden advertising previously reserved for sellin your house. We can help you find it.” ing products like cars, borrowing
Banco Popular developed a series of “Make became seen as a right and sense of
Dreams Happen” ads. Their slogan: “Need entitlement, as opposed to a responsiCash? Use Your Home.” Fleet Bank bility. The banks changed Americans’
enticed homeowners by asking, “Is your attitudes towards incurring additional
mortgage squeezing your wallet? Squeeze real estate debt.
back.” Another ad harped: “The smartest
So while homeowners were swayed by
“
Banks spent billions of dollars with
ubiquitous advertising campaigns to
encourage homeowners to borrow, borrow,
borrow.
”
2012 Interview of a VTL Client
the bank’s grandiose advertising
euphemisms that they were coming out
ahead by “getting their equity out” with
“home equity loans,” in essence, all they
were actually getting was a very large
debt. Not only did these homeowners have
to pay back the money that they “got out
of the house,” but an awful lot more in the
way of interest, especially since second
mortgages have higher rates of interest.
American homeowners have thus been
taken in by these euphemisms created by
advertising agencies to borrow more, and
encourage them to live beyond their means.
Many of my bankruptcy clients have
lamented that refinancing was too easy; they
could not resist the opportunity for “free”
money. Now, some of these homeowners
with the granite kitchens and fancy largescreen TVs are trying to save their homes
from foreclosure while those with Formica
kitchens are enjoying home ownership.
Homeowners with second mortgages
are twice as likely to find themselves in
foreclosure. When I meet with clients and
they tell me they don’t have a second
mortgage, when in fact they really do, I
have to set them straight - they’ve been
brainwashed.
Note: Craig D. Robins, a regular columnist for this paper, is a Long Island bankruptcy lawyer who has represented thousands of consumer and business clients during the past 20 years. He has offices in
Coram, Mastic, West Babylon, Patchogue,
Commack, Woodbury and Valley Stream.
(516) 496-0800. He can be reached at
[email protected] Visit his
Bankruptcy Website: www.BankruptcyCanHelp.com and his Bankruptcy Blog:
www.LongIslandBankruptcyBlog.com.
VEHICLE & TRAFFIC LAW
____________________
By David A. Mansfield
The increasing complexity of representing clients charged with a basic traffic
ticket or violation of Vehicle and Traffic
Law§1192 requires an in-depth initial
interview.
The best way to preserve your interview
notes is with a computerized fact sheet
with a template for all of the necessary
information. The typed and retrievable
fact sheet will allow you to refresh your
familiarity with the case without straining
to interpret your hieroglyphics. You can
later pull up and revise the fact sheet with
additional notes. This can serve as a
means to discuss the case with your client
if you cannot locate their case file. You
should always endeavor to only speak
with your client after a brief review of the
file. The file should be in front of you on
a relatively uncluttered desk to allow for
easy and accurate reference for your telephone conference.
An important inquiry in every case is
whether your client is a United States citizen. While there is no easy way to ask, it
has been suggested to ask your client if
they were born in this country. This is
because many convictions for criminal
and even some non-criminal matters can
have far reaching consequences beyond
the original sentence for non-citizens.
Either ask the client or glean from the
Department of Motor Vehicles
summons or other paperwork
online service which will
whether the client has a commerallow you to obtain their dricial driver’s license which is a
ving record. Please be sure to
Class a Vehicle and Traffic law
retain a copy of the photo iden§501-a (1) defined as Class A, B
tification presented by your
or C. The holding of a commerclient. The abstract will reveal
cial driver’s license (CDL) will
whether the violation was
usually define what the client
committed in restricted-use
does for a living. It is still crucial to know your client’s license David A. Mansfield license status §530 or while on
a conditional license §1196.
class even if they have some
other occupation or if they own the busi- These cases require special attention.
The disbursement is well worth it as it
ness and only occasionally use their CDL.
The collateral consequences of certain will present to the defense lawyer an accuconvictions are far more severe for holders rate picture of your client’s situation which
of commercial driver licenses. Your is much better than a mere guess or surmise.
You should also make a copy of the
client’s commercial driver’s license will
be revoked for one year if they are con- photo ID which was presented and keep
victed of something as innocuous as the copies as required.
Obtain as much of the documentation
traffic infraction of §600(1) leaving the
scene of a property damage incident regardless of
the type of vehicle being
operated. Your client will
be subject to a one year
loss of commercial driver’s
license for any alcohol or
drug related driving conviction or a finding of a
chemical test refusal
§1194.
given to your client by the court (such
Also important is the client’s driving as long form information and uniform
record. Request a photo ID and have them traffic tickets). Should your client not
sign a notarized Form MV-15GC assum- have any documentation, it may be posing that you are signed on to the sible to use WebCrims and other means
“
The collateral consequences of
certain convictions are far more severe
for holders of commercial driver
licenses.
”
to determine the exact nature and extent
of the charges.
When defending matters in the Traffic
Violations Bureau it is very important to
know the exact history of the case. This is
because the administrative law judge is
empowered and will suspend your client’s
license upon a request for a further postponement pending the next hearing date if
your client had previously exhausted the
limited number of motorist reschedules.
Should you be signed on to the TVB
Ticket Management System for Attorneys,
upon being retained you will be able to get
all necessary information by associating
the ticket to your account if the case is
already pending.
When defending these matters it is
important to ask your client about the
conversation they had at the scene with
the officer. The exchange between the
officer and your client is crucial to the
defense traffic matters especially those
of the Traffic Violations Bureau because
they all proceed to trial. You are looking for any possible uncharged traffic
violations which will be mentioned by
the officer at the time of trial which
could change the complexion of your
case and possibly result in an unanticipated discretionary license suspension.
The situation will unfold something like
this: your client comes to you with a
seemingly hypothetical innocuous fail(Continued on page 19)
19
THE SUFFOLK LAWYER — MARCH 2012
Obama Signs National Defense Authorization Act Into Law
AMERICAN PERSPECTIVES
_________________
By Justin Giordano
President Obama signed the National
Defense Authorization Act (NDAA) into
law on New Year’s Eve, Dec. 31 2011. The
$662 billion bill covers national defense and
related military expenditures for the next
fiscal year. The Senate approved the bill on
December 15 by a vote of 86 to 13. This followed the House of Representatives’ vote
the day before that had also overwhelmingly approved the act.
There is little question that the NDAA
is a popular piece of legislation and
seemingly uncontroversial for a change,
at least among the major political players
in Washington, D.C. This quasi-unanimity is indeed a rather unusual occurrence
in recent times as the two major parties,
one of them essentially led by the White
House, have waged some of the most sustained partisan battles in recent times.
For the most part these oft- unrelenting
political battles have been based on core
principles that define and separate these
two parties.
This turn of event should normally be
seen as a welcome change and a respite
from the bruising political contest that will
unfold in the year ahead as the 2012
Presidential Election goes into full gear. Yet,
in some quarters at least, this has created a
substantial level of controversy. Most
specifically with self described progressive
groups.
The issue in controversy is the provision
in the bill that gives the president the
authority to decide whether people
detained in terrorism investigations should
be held in military or civilian custody.
President Obama had threatened to veto
this bill until fairly recently unless language that he sought was included, in
essence what the provision in question
now incorporates. To justify his apparent
change of heart the President commented
in signing the law, “I want to clarify that
my administration will not authorize the
indefinite military detention without trial
of American citizens,” Obama said in a
statement Saturday. “Indeed, I believe that
doing so would break with our most
important traditions and values as a
nation.” The President further added that
“I have signed this bill despite having serious reservations with certain provisions
that regulate the detention, intersonal liberties. As evidence of
rogation, and prosecution of
this these critics profess that
suspected terrorists.”
the inarguable proof is that
Senator John McCain of
Senator Carl Levin had on sevArizona, the top Republican on
eral occasions disclosed that it
the Senate Armed Services
was the White House that
Committee, and a supporter of
demanded the removal of a
the legislation, pointed out in his
provision in his original draft
statement that the act features a
that would have exempted U.S.
“national security waiver.“ This
citizens from military detenJustin Giordano
waiver allows the President to
tion. The interpretation of this
transfer a suspect from military to civilian is a simple one they argue, namely it was
custody if he so chooses.
the President who demanded greater
Another strong supporter of the provi- detention powers be incorporated in the
sion, Senator Lindsey Graham, under- NDAA through its insistence of the
scored that extraordinary measures were removal of one of its few constraints. The
necessary, given that terrorism suspects reason is obvious according to these critconstitute are entirely different from regu- ics, the White House repeatedly made
lar criminals. “We’re facing an enemy, not clear that presidential discretion was a
a common criminal organization, who will must. Indeed the President was going to
do anything and everything possible to veto the bill if it contained any limits on
destroy our way of life,” he said. “When the President’s detention powers, irrespecyou join al-Qaida you haven’t joined the tive of whether those limits forced him to
mafia, you haven’t joined a gang. You’ve put people in military prison or prohibited
joined people who are bent on our destruc- him from so doing.
tion and who are a military threat.”
Comparisons between this provision
On the other hand many of the afore- and the McCarthy era were also raised,
mentioned progressive and liberal groups, claiming that as then when those accused
most of whom had been strong supporters of being Communists could face detenof candidate Obama and later President tion, American citizens could now face
Obama have voiced their strong opposition similar circumstances. Whether this is a
to this provision; most prominent among credible comparison may be debatable but
them the ACLU and Human Rights Watch. just making the accusation is a significant
These critics have pointed out that a indicator of the severity of the matter in
section of the provision gives the mili- certain circles. In fact Raha Wala, an
tary the authority of “detention under the advocacy counsel for the group Human
law of war without trial until the end of Rights First, called Obama’s decision
authorities.” American citizens engag- “beyond disappointing.”
ing in acts of terrorism and caught inside
Tom Malinowski of Human Rights
the United Sates are exempted from the Watch saw it the same way stating, “It’s
application of this section of the provi- something so radical that it would have
sion. However the next section of the been considered crazy had it been pushed
provision does indeed apply to American by the Bush administration. It establishes
citizens as well as other legal residents precisely the kind of system that the
and said section provides that the United States has consistently urged other
President, as previously indicated, is not countries not to adopt. At a time when the
required to turn over suspected terrorists United States is urging Egypt, for examto the military but of course it may do so ple, to scrap its emergency law and miliif he wishes.
tary courts, this is not consistent.”
Therefore, these critics contend the one Malinowski added in even stronger lansubstantive objection the White House guage, “The paradigm of the war on terror
expressed to the bill — mandatory military has advanced so far in people’s minds that
detention for accused American Terrorists this has to appear more normal than it
captured inside the country — was in fact actually is. It wasn’t asked for by any of
about executive power, not due process of the agencies on the frontlines in the fight
law or even issues pertaining to core per- against terrorism in the United States. It
breaks with over 200 years of tradition in
America against using the military in
domestic affairs.”
Human Rights Watch had also said that
prior to the President signing the bill and
in an all out push to dissuade him from
doing so, that by signing the bill Obama
would go down in history as the president
who enshrined indefinite detention without trial in American law.
It must also be noted that in addition to
liberals and progressive groups and organizations others on the opposing side of the
political spectrum have also chimed in in
opposition to this provision. Republican
Senator Rand Paul of Kentucky, who also
adheres to a libertarian philosophy,
staunchly opposed the NDAA’s provision.
President Obama as a candidate had
opposed provisions such as the one at issue
here or any similar legislation. In fact,
were he to still be in the U.S. Senate he
may very well have been one of the dozen
or so senators that voted against the NDAA
based on this provision. However as
President of the United States the demands
of leadership and the responsibility of
securing the safety of the nation which he
leads must take precedence over rigid ideology and thus it is not very unexpected
that he would sign off on the NDAA act,
just as he did on the Patriot Act. In essence
with regard to national security, the new
president is the same as the old, or at least
the previous one. Basically President
Obama has continued, expanded in some
cases, and indeed enshrined in a more permanent manner, as this provision exemplifies, most aspects of the so-called “Bush
National Security Doctrine.” Whether the
so-called “indefinite detention provision”
of the NDAA results in more pluses than
negatives still remains to be determined
and is subject to a much lengthier analysis.
What is eminently clear however is that
American law should always strive to
accomplish its greatest ideals, among them
to promote the citizen’s individual rights,
which of course includes personal liberty
but the protection of the individual citizen
can never be relegated to anything but a
high priority position.
ure to signal ticket. The officer testifies
at the hearing that your client was speeding and nearly hit another vehicle in
addition to being on a cell phone that
was not being used in a hands-free manner. The case ends when the Administrative Law Judge may demand a plausible explanation why your client’s
license should not be suspended. Being
quick on your feet you will be able to
give a satisfactory explanation to the
Administrative Law Judge and a fine
will be imposed.
Your client’s responses to the extent and
nature of the conversation will also give
you a good opportunity to see what makes
your client tick and what their motivation
and expectation for contesting this violation is. It is important to know if there was
a motor vehicle accident and what was the
nature and extent of the collision. Was
anyone injured?
Should your client be charged with a
DWI it is crucial to know what the age of
the passengers are in the vehicle to determine if it is a Leandra’s Law or aggravated driving while intoxicated with a child
of 15 years of age or less as a passenger in
the vehicle §1192-2a(b) which is a Class
E Felony.
Should you be representing someone
charged with a DWI, you should know
their prior history in detail to determine if
they are subject to a felony prosecution or
permanent revocation §1193(12) in addition to any other penalties.
It is incumbent upon defense counsel to
properly set realistic expectations regarding the defense of a driving while intoxicated charge when the client is likely to be
to allow for the issuance of a post-conviction conditional license.
Written fee agreements should be used
to define the scope of your representation.
Most importantly the agreement sets forth
legal services that are not included in the
basic retainer such as trials, jury or nonjury,
appeals, administrative appeals, or lawsuits
for judicial review under CPL Article §78.
A letter of engagement is required if the
total fee will exceed $3000 Part §1215 of
the Joint Rules of the Appellate Division.
The initial interview allows defense
counsel to build a solid foundation for
effective representation and rapport with
their client.
Interview of a VTL Client (Continued from page 18)
sentenced to probation. Most first offenses do not get reduced.
The Adult Conditions of Probation may
bar your client from obtaining a post-conviction conditional license. The presentence investigation report will frequently
recommend no license without the permission of the court or probation.
You may wish to refer your client to a
New York State Office of Alcohol and
Substance Abuse Services or OASAS treatment agency when the fact pattern and your
client’s previous background indicate that
the offer and sentence recommendation
will result in a sentence of probation. Only
treatment by an OASAS agency is recognized for sentencing purposes. A treatment
history will allow defense counsel to have
documentation to seek a conditional discharge when possible or court intervention
Note: Justin A. Giordano is a Professor
of Business & Law at SUNY Empire State
College and an attorney in Huntington.
Note: David Mansfield practices in
Islandia and is a frequent contributor to
this publication.
20
Cohalan Cares for Kids (Continued on page 20)
THE SUFFOLK LAWYER — MARCH 2012
Thank you to all of the Sponsors
There is now hope for the Children’s
Center.
The decision by the SCBA to host such
an important event is a reflection of the
association’s commitment to the community.
“As I travel the country and speak at various events I always take the opportunity
to mention all the good works that members of the profession, judges and lawyers
alike do for our communities,” said SCBA
President Matthew Pachman. “We are so
pleased to host tonight’s event. With the
difficult budgetary climate we find ourselves in it is incumbent on each of us to
do our part to ensure that important court
related services continue to be provided.”
The Matrimonial Bar Association, Long
Island Hispanic Bar Association, Suffolk
County Women’s Bar, Suffolk County
Criminal Bar Association and Children’s
Law Bureau of Legal Aid also helped to
make the evening a success.
“The people here have a direct connection to the court so they really understand
the need for the center,” said Claire
Bellerjeau, the Director of Development
for the EAC. “It means so much to us that
they came to this. We have a huge turnout
here and this is the first time ever that
we’ve held this event.”
Lance Elder, the President and CEO of
the EAC said that losing the funding from
the state leaves a gaping $88,000 hole.
Looking around at the many enthusiastic
supporters that attended the fundraiser he
said he was hopeful that he will be able to
acquire additional funds elsewhere.
“This fundraiser definitely will help us,”
he said. “We also received $5,000 each
from three of our Suffolk County
Legislators. We’ll have to keep fundraising in order to stay open. Nassau County
lost their program entirely and people
often bring their children into the courtroom.”
Supreme Court Justice Andrew Crecca
agreed that Suffolk County did not want to
join in Nassau’s loss of so vital a program.
“It’s great to see lawyers, judges and so
many community groups come together
for such a good cause to keep this running,” he said. “The Children’s Center
provided an important service to families
that are having a very difficult time in their
lives.”
Legislator Rick Montano said he was
happy to be able to help the center. He
couldn’t stress enough the need for it to
stay open. Speaking at the podium he
thanked everyone for supporting “this very
important program,” and added that “the
courtroom is not a place for children.”
To help the Children’s Center call the
EAC at (516) 539-0150.
the damages (e.g., six months or twelve
months). The cap language in a service
agreement may read, for example, as follows: “Notwithstanding anything in this
agreement to the contrary, Indemnitor’s
liability under this indemnification provision shall be limited to the amount of
fees received by Indemnitor for services
rendered pursuant to this agreement during the six months immediately preceding the claim giving rise to such indemnification.”
The parties to a contract will typically debate as to what is customary in
terms of the type or size of the cap. In
some situations, an Indemnitee will
simply refuse the imposition of a cap of
any type on the basis that the obligation
to indemnify arises only in those situations in which Indemnitor is at fault
(e.g., breached a representation or committed a wrongdoing), so Indemnitee
should not be responsible for damages
in those situations, whether or not the
damages are in excess of an arbitrarily
imposed cap. In some situations, a cap
may be more palatable to an Indemnitee
if it includes “cap carve-outs,” which
means the cap will not apply in certain
agreed upon situations (i.e., exclusions
to the cap). In an acquisition agreement, for example, the parties may
agree that a cap will not apply if the
seller committed fraud or some other
illegal or unethical behavior. In a service contract, the parties may agree that
a cap will not apply to the extent that
Indemnitor’s insurance policy covers
the damages. For example, the cap language in a service agreement may read
as follows: “Notwithstanding anything
herein to the contrary, Indemnitor’s liability shall be limited to the greater of
(i) the amount of fees received by
Indemnitor pursuant to this agreement
for the six months immediately preceding the claim giving rise to such indemnification, or (ii) the insurance proceeds
paid to Indemnitor under its insurance
policies as a result of the claim giving
rise to the indemnification.” It is
important to limit the insurance carveout to “proceeds” and not “insurance
limits”; otherwise, Indemnitor may find
itself in a situation in which the claim is
not covered by the insurance policy, yet
the cap is set at the amount of the insurance limits (an amount that will likely
far exceed the fees received during the
six-month period), which will render
the cap meaningless.
Some additional points for consideration when negotiating an indemnification
provision include: (1) determining which
party will control the defense, as well as
the manner in which such defense is conducted; (2) specifying a period of time
within which Indemnitee must provide
notice to Indemnitor of a claim that may
give rise to the indemnification obligation; (3) limiting Indemnitor’s obligation
to the extent that the claim arises out of
the fault (e.g., negligence or willful misconduct) of Indemnitee; (4) placing a
reasonableness standard on the attorneys’
fees (as seen in the examples set forth
above); and (5) limiting the obligation to
only those situations in which the claim
has been decided by a final and nonappealable order from a court of competent jurisdiction.
If the other party to a contract refuses
to negotiate an indemnification provision that is unfavorable to your client,
thereby forcing your client into a “take
it or leave it” situation, a close review
of the provision and your client’s potential exposure remains warranted so that
your client understands its potential liability and can make an informed deci-
sion as to whether or not to enter into a
particular contract from a risk/reward
analysis. For instance, a contract yielding very little profit coupled with a
broadly written indemnification provision with the potential for enormous
losses may not, in your client’s opinion,
be worth the risk; however, this is a
business decision that can be made by
your client only after your client fully
understands the potential pitfalls present in the contract as a result of the
indemnification provision.
showing of personal jurisdiction can be
made.” The court directed that the plaintiff may only serve subpoenas on those
ISPs whose IP addresses correspond to
accounts located in New York and that
those subpoenas may only seek information regarding accounts located in New
York. As it turned out, only approximately 20 of the 266 IP addresses listed in the
plaintiff’s complaint were located in New
York.
In Arista Records, LLC et. al v. Lime
Wire, LLC, 06-cv-05936, a U.S. District
Court Judge for the Southern District of
New York shut down the file-sharing
giant, Limewire.com with a permanent
injunction. Lime Wire, which proclaimed
itself the “industry standard for peer-topeer file-sharing,” induced copyright
infringement on a “massive scale”
according to the court. More than 2 billion songs were downloaded each month
using Lime Wire software. Nearly all of
the files downloaded and shared through
Lime Wire (98.8%) were unauthorized for
free download.
A defense founded upon personal
jurisdictional grounds is the best option
in avoiding liability for copyright
infringement in these mass lawsuits.
When unavailable, the practitioner
should be aware that an affirmative
defense of unauthorized use of an individual’s IP address is viable, but hard to
prove. Another defense cited by
uscopyrightdefense.com is founded on
local procedural grounds: “some courts
have decided that it is improper to name
thousands of defendants in the same
lawsuit when the facts and defenses are
not sufficiently common, because it
makes administration of the lawsuit
more difficult.”
Note: Laura Lane is the Editor-in-Chief
of The Suffolk Lawyer. She is an awardwinning journalist having written for The
New York Law Journal, Newsday and the
Herald newspapers among others. She can
be reached at (516) 376-2108.
DIAMOND SPONSORS
Matrimonial Bar Association
Colleen P. West / Enright Court Reporting, Inc.
Karma411
Long Island Hispanic Bar Association
McCarthy & Carbone, P.C.
Michael W. McCarthy Foundation
PLATINUM SPONSORS
Steven Zimmer, Esq.
Suffolk County Women’s Bar
GOLD SPONSORS
Hagney, Quatela, Hargraves & Mari, PLLC
Laura Hanshe & Joseph A. Hanshe, Esq.
PNC Mortgage
SILVER SPONSORS
James Joseph, Esq. / Joseph & Teeter, P.C.
Jonathan Leis
Suffolk County Criminal Bar Association
Tinari, O’Connell & Osborn
FRIENDS
Suffolk County Bar Association
Connetquot Teachers Association
The Honorable Madeleine A. Fitzgibbon
The Honorable C. Randall Hinrichs
Randazzo & Randazzo, LLP
Indemnification Clause (Continued from page 3)
Mass Lawsuit Business Model (Continued from page 5)
Note: William A. Gartland is a Partner
in the Corporate and Business Law practice group at Lazer, Aptheker, Rosella &
Yedid, P.C., a full service commercial law
firm located at the Melville Law Center,
225 Old Country Road, Melville, New
York 11747. He can be reached by telephone at (631)761-0800 or by e-mail at
[email protected]
Note: Mona Conway is a member of
Conway Business Law Group, P.C., a
commercial litigation firm, located in
Huntington. Ms. Conway serves as cochair of the Suffolk County Bar Association’s Commercial and Corporate Law
Committee.
THE SUFFOLK LAWYER — MARCH 2012
Damages for Fraud in Probating Will (Continued from page 4)
whether, but the extent to which the
Pulaskis would be liable to the plaintiff for
damages, given his request for compensatory and punitive damages. In finding
that the Pulaskis were jointly and severely
liable for fraud with Stacey, Justice Paris
explained that the plaintiff was entitled to
$127,000 in compensatory damages.
Noting that the slayer rule articulated in
Riggs v. Palmer disqualified Stacey from
inheriting from the decedent and that the
plaintiff, therefore, was the decedent’s sole
distribute, Justice Paris calculated the compensatory damages by subtracting administration expenses and debts from the total
value of the decedent’s estate.
Justice Paris also awarded punitive
damages against the Pulaskis. In doing
so, Justice Paris found that the Pulaskis
exhibited “a high degree of culpability
and a wanton disregard for the rights of
others” when they “perpetrated a fraud
on [the plaintiff] and [the] Surrogate’s
Court by wrongfully signing the 2005
will that they say they witnessed in 2003,
and further compounding their lie by
executing the Attesting Witness
Affidavits.” As the Pulaskis’ “reprehensible,” deceptive conduct caused the plaintiff to withdraw his probate objections
and the Surrogate’s Court to admit the
will to probate; it justified an award of
punitive damages.
Finally, “in an interesting and significant further holding, [Justice Paris] determined that the plaintiff was entitled to
[recover] his attorney fees against the
defendants, including the Pulaskis.”3 The
Bench Briefs
underlying rationale was that, but for
Stacey and the Pulaskis’ conduct, the
plaintiff “would not have been compelled
to incur attorney’s fees to right their
wrongs and secure some type of emotional closure to these traumatic events.”
The Castor decision is noteworthy for
several reasons, most notably the findings
that the decedent’s distributee, individually,
had standing to sue Stacey and the Pulaskis
for their fraud concerning the decedent’s
will and that the plaintiff was entitled to
compensatory damages, punitive damages,
and an award of attorneys’ fees for such
fraudulent conduct. Castor should serve as
a substantial deterrent to anyone who considers fraudulently signing a testamentary
instrument as an attesting witness.
Note: Robert M. Harper is an associate at
Farrell Fritz, P.C., concentrating in estate and
trust litigation. Mr. Harper serves as CoChair of the Bar Association’s Member
Benefits Committee and a Vice-Chair of the
Governmental Relations and Legislation
Committee of the New York State Bar
Association’s Trusts and Estates Law Section.
1. Castor v. Pulaski, 33 Misc.3d 1235(A) (Sup.
Ct., Onondaga County 2011).
2. Joel Stashenko, “Punitive Damages Levied for
Deception over Will,” N.Y.L.J., Dec. 22, 2011, at
1, col. 4.
3. John R. Morken, “Court Awards Compensatory
and Punitive Damages, and Attorney Fees, for
Fraud in Probating Will,” available at:
http://www.nyestatelitigationblog.com/ (last visited Feb. 4, 2012).
(Continued from page 6)
lack of in personam jurisdiction.
In rendering its decision, the court
noted that the record reflected that the
motion was returnable according to the
Notice of Motion on February 14, 2011,
but was not properly submitted to the
court for calendaring until April 18, 2011.
Consideration of the motion was thus precluded by the provisions of CPLR
§2214(c). In addition to these procedural
deficiencies, the court noted that that the
motion was lacking in substantive merit
since it was unaccompanied by affidavits
of the moving defendants attesting themselves to the facts asserted by their counsel. Moreover, the court pointed out that
the defendants waived their objections to
personal jurisdiction as they failed to
assert same in a pre-answer motion or
answers they served.
Motion to reargue denied; arguments
advanced by the defendants in support of
this motion were not advanced on the original motion.
In Douglas Stein, as Executor of the
Estate of his mother, Claire W. Stein
deceased, Estate of Claire W. Stein,
Douglas Stein and Wanda Nelson realty,
LLC v. Davidow, Davidow, Siegel &
Stern, LLP, Lawrence A. Siegel and
Steven H. Stern, Index No.: 40420/09,
decided on March 16, 2011, the court
denied the defendants motion for leave to
reargue their prior motion for summary
judgment dismissing the complaint
served in this negligence and legal malpractice action.
In denying the motion, the court found
that the defendants failed to establish
that the court misapprehended the facts
presented, misapplied controlling principles of law or otherwise mistakenly
arrived at its determination. The court
noted that most of the arguments
advanced by the defendants in support
of this motion were not advanced on the
original motion, including that the
invoice for legal services issued by the
defendant laws firm to the plaintiff,
Wander Nelson Realty, LLC, did not
evidence an attorney/client relationship
between them. The court found that such
arguments were not proper subject of
this motion for leave to or reargue. The
remaining portions of the defendants
papers advance that were previously
advances and are rejected by the court.
Please send future decisions to appear in
“Decisions of Interest” column to Elaine
M. 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 April 2012 issue, submission must be received on or before March
1, 2012. Submissions are accepted on a
continual basis.
Note: Elaine Colavito graduated from
Touro Law Center in 2007 in the top 6 percent of her class. She is an Associate at
Sahn, Ward, Coschignano & Baker, PLLC in
Uniondale, a full service law firm concentrating in the areas of zoning and land use
planning; real estate law and transactions;
civil litigation; municipal law and legislative
practice; environmental law; corporate/
business law and commercial transactions;
telecommunications law; labor and employment law; real estate tax certiorari and condemnation; and estate planning and administration. Ms. Colavito concentrates her
practice in matrimonial and family law, civil
litigation and immigration matters.
Remembering Justice Ralph F. Costello
21
Ralph Francis Costello, a long time member of our Bar Association, a former Legal
Aid attorney, a NYS Supreme Court Justice
and most recently, an assistant town attorney
in Brookhaven, has left us all too soon. He
combined his charm with an unlimited energy and the highest integrity. His genial personality and the generous instincts of this
fine man will be missed not only by his
wonderful family, colleagues and the staff of
the SCBA, but by the court personnel and all
of the many citizens of Suffolk County with
whom he came in contact. He was a champion of civil liberties and as an honored,
respected, and revered member of our noble
profession, the example he set will long continue to influence and inspire us.
- Jane LaCova
Among Us (Continued from page 7)
Brian T. Egan, a partner at Egan &
Golden, was invited by the Yale Mock
Trial Association to serve as a judge at the
2012 American Mock Trial Association
(AMTA) Regional Tournament held on
February 11and 12 at Yale University, in
New Haven, CT. The tournament is a highly competitive event, drawing teams from
some of the best schools in the nation,
including teams from the Ivy League.
Condolences…
To SCBA member Stephen Kuzma and
his family on the passing of his mother,
Janice.
New Members…
The Suffolk County Bar Association
extends a warm welcome to its newest
members: Anthony Agolia, Dawn
Dapelo, Joseph S. Gulino, Jr., Cynthia
Keenan Kosinski, Hon. Rachel J. Parisi,
Catherine Quinn and Jamie D. Svenson.
The SCBA also welcomes its newest
student member and wishes her success in
her progress towards a career in the Law:
Evelyn Britt.
On the Move – Looking to Move
This month we feature two employment opportunities and three members
seeking employment. If you have an
interest in the postings, contact Tina at
the SCBA by calling (631) 234-5511 ext.
222 and refer to the reference number following the listing.
Firms Offering Employment
Attorney with West Sayville office, look-
ing to expand his practice, seeking newly
admitted or experienced attorney. Will
look at all resumes of interested parties.
Reference Law #4.
Suffolk county firm with areas of practice consisting of: commercial litigation;
personal injury; land use; condemnation
tax certiorari; contested estates; real
estate; seeking associate with 3-5 years’
experience in any of the above areas.
Reference Law #24
Members Seeking Employment
First year law student at Touro Law School
would like to land an internship at a law firm
this summer. I am bright, enthusiastic and
personable and am confident I would be a
great asset to any law firm at which I intern.
Reference Att #31
Newly admitted attorney seeking associate position in family/matrimonial or
criminal law fields. I also have experience
in general civil litigation, including foreclosure defense.
Reference Att #32
18 year motivated and driven practitioner licensed NYS Bar 1992, with concentration in Criminal Law, Personal Injury and
civil litigation. Long Island native who
intends to return after representing GM
(Dayton Ohio) for the past 10 years, to
rebuild and develop my practice.
Reference Att #33
Keep on the alert for additional career
opportunity listings on the SCBA Website
and each month in The Suffolk Lawyer.
Practice Management (Continued from page 15)
thinking and problem solving, try the “scamper” technique from the book Thinkertoys,
by Michael Michalko to come up with new
ideas. Scamper is based on the idea that
everything new is really just a modification
of something that already exists. It is, in
some ways, an expansion of Dan Kennedy’s
notion of looking at something and trying to
figure out how you can use it in another context; the scamper technique just gives you a
blueprint for doing that. Scamper stands for:
S = Substitute
C = Combine
A = Adapt
M = Magnify
P = Put to Other Uses
E = Eliminate (or Minify)
R = Rearrange (or Reverse)
Try it out. Start by looking at the
industries your clients are in and the
norms of how they do business. Using
the scamper technique, see if you can
transform that idea to work for your law
practice and make something great happen in 2012.
Note: Allison C. Shields is the founder of Legal
Ease Consulting, Inc., which offers management,
productivity, business development and marketing consulting services to law firms. Contact her
at [email protected], visit her
website at www.LawyerMeltdown.com or her
blog, www.LegalEaseConsulting.com. A version
of this article originally appeared on the
Lawyerist blog, January 11, 2012.
22
THE SUFFOLK LAWYER — MARCH 2012
Employment Law Update (Continued from page 8)
On the other hand, in Mezonos Maven
Bakery, 357 NLRB No. 47 (2011), the
NLRB held that undocumented workers
whose rights were violated under the
National Labor Relations Act could not
recover back pay even where the employer knew of their illegal immigrant status.
Additionally, in Deming Hospital v.
NLRB, 192 NLRB No. 235 (2011), a back
pay award to an employee in an unfair
labor practice proceeding was remanded
due to the failure to take into account
interim earnings of the employee.
There are also several noticeable trends
in employment law and employment litigation in 2011 and 2012. These trends
include increased employment discrimination and retaliation claims and protections.
In fact, the EEOC received almost 100,000
charges from September 2010 to
September 2011, the most in its 45 year
history and 35 percent of those charges
contained retaliation claims. There have
also been proposed expansions of reasons
for FMLA leaves and paid leaves at the
state and federal level plus increasing use
of social media, electronic discovery and
electronic evidence in employment litigations. Whistleblower claims and protections and enhanced penalties, damages and
liabilities for violations of statutes and
workplace regulations at both the local and
federal level are also likely to continue to
increase in 2012.
Additionally, new laws in New York,
such as the Home Care Wage Parity Law
and the New York Domestic Workers Law
and new proposed federal regulations pro-
vide for increased wages and protections
for home care aides or others who work in
the home. New state and federal regulations for the hospitality industry have
increased compensation, notice and documentation requirements for wages and
tips paid to employees in hotels and
restaurants.
The following articles will examine in
more detail several of these new laws, new
decisions and trends for 2012.
tial job functions, with or without reasonable accommodations, or that the employers offered or attempted unsuccessfully to
offer reasonable accommodations. Every
adverse employment decision that is
based on an individual’s inability to perform due to an injury or illness has the
potential to lead to a contested ADA case.
The EEOC is aggressively pursuing
disability discrimination claims. In a
press release issued on January 25, 2012,
the EEOC reported that in 2011, disability discrimination claims increased while
race and gender discrimination claims
declined. The EEOC further reported that
disability discrimination claims produced
the highest increase in monetary relief: in
2011, monetary relief for such claims
rose by 35.9 percent to $103.4 million
compared to $76.1 million in 2010. Back
impairments were the most frequently
cited impairment, followed by other
orthopedic impairments, depression, anxiety disorders and diabetes.
Ex Corporation Services, Inc., 2011 U.S.
Dist. LEXIS 125880 (N.D. Ill. Nov. 1,
2011).
that are helped. Last October the project
held a public education forum and 85
people attended.
“A homeowner recently came to the
project after receiving foreclosure documents in the mail and believed they were
going to be thrown out of their home in
a week,” Mr. Smolowitz said. “We were
able to advise that homeowner that with
current procedures and laws, assuming
we are not able to work out a positive
outcome, it will take approximately
three years to be removed from their
home.”
Mr. Smolowitz said today, the
Foreclosure Project continues to conduct
client consultations at Touro and covers
court settlement venues now held in
Riverhead and Ronkonkoma. The bulk
of his pro bono work involves training,
handling policy and procedural matters
of law, and when necessary, handling
conferences and going to court. He
believes there are many people responsible for the continued success of the program particularly Ralph J. Bavaro, Esq.
who is one of 4 referees and the Court
Referee’s
Administrator,
Colleen
Fondulis, Esq. who oversaw the program from the court’s perspective at the
DAJ’s office from its inception and for
almost three years thereafter, and Eric
Sackstein, Esq., all who worked with
him to set up the project, as well as all of
the volunteer lawyers, who put in countless hours of pro bono service and keep
the project viable. Most of all he appreciates the support of Kimberly, his loving wife of 20 years.
Over the years Barry Smolowitz has
earned the praise of many and served
the community in valuable ways. We
are all fortunate that he rose to the
challenge with the initiative and leadership necessary to make a huge difference in the lives of many Suffolk
County homeowners at this critical
time in our economy. It is our privilege
to honor Barry Smolowitz as Pro Bono
Attorney of the Month.
Tax Cap Law does nothing to limit individual assessments. As assessor is
empowered to raise your assessment, and
if he does, your property tax will rise proportionately. Let’s take a hypothetical
town, Brookton. The Brookton tax assessor values a class B office building at
$2,000,000 for the 2011/12 tax year. For
2012/13, the building is renovated to
become a class A office building, so the
Brookton assessor reassesses it at
$3,000,000. That building’s 2012/13
property taxes will surely rise more than
50 percent because of the assessment
increase. The Tax Cap offers no relief in
such a situation.
Since the assessment is so important
to the property tax calculation, commercial property owners and tenants
would be wise to review the bills annually with an attorney. If an assessment
is excessive, a taxpayer may have a
claim for reduction or refund under
Real Property Tax Law, Article 7.
The Tax Cap Law will have widespread
effect throughout the state. Despite the
aforementioned exceptions, local overrides, and assessment maneuvering, the
reality is that municipalities and school districts will be forced to exercise a new level
of fiscal discipline and sacrifice. This law
was passed with overwhelming public support, but it is also a hard pill to swallow. As
we all know, there just is not enough
money to go around. Hopefully as the years
pass, we see fairer assessments and municipal budgets that do not continue skyrocketing.
Note: Brian S. Conneely is a Partner in
the firm’s Employment and Labor Law
Practice Group. Mr. Conneely has more
than 30 years of experience in employment
and employment discrimination litigation in
federal and state courts as well as before
federal, state and local agencies. A former
Developments in Accommodations (Continued from page 8) Pro Bono (Continued from page 16)
Developments in religious
accommodation
Religious accommodation is an expanding area of legal claims as the nation
becomes increasingly diverse. The Equal
Employment Opportunity Commission has
been inundated with complaints of religious discrimination in recent years, particularly from Muslim workers complaining
of discrimination based on appearance or
attire, their need for prayer breaks, and hostile work environment harassment based on
their religion. The EEOC received 4,151
complaints of religious discrimination in
fiscal year 2011, up from 2,541 such complaints in fiscal year 2006.
Some of the more notable religious discrimination cases in the past year include
the following:
• An employer recently was found to violate Title VII by maintaining a restrictive “appearance policy” and failing to
hire an individual who wore a hijab
(Muslim head scarf) to an interview.
EEOC v. Abercrombie & Fitch Stores,
Inc., 2011 U.S. Dist. LEXIS 77181
(N.D. Okla. July 13, 2011).
• A federal district court permitted an
employee to proceed to trial on his claim
that his employer did not accommodate
his religious beliefs when it prohibited
him from answering questions about his
religion in the workplace. Weathers v. Fed
• The EEOC and an employer entered into
a consent decree after an employee
alleged that her employer failed to
accommodate her sincerely-held religious belief that Sundays are the Sabbath
and a day of rest and worship. EEOC v.
Regis Corp., 2011 U.S. Dist. LEXIS
102262 (N.D. Cal. Sept, 12, 2011).
• The EEOC and an employer entered into
a consent decree after a group of
Muslim employees alleged that they
were not permitted to break their fast
shortly after sunset in accordance with
the observance of Ramadan. EEOC v.
Electrolux, (Minn. Aug. 6, 2011).
New York City employers should take
note that the Workplace Religious Freedom
Act (“WRFA”) was signed into law by
Mayor Bloomberg on August 30, 2011.
Prior to that date, the NewYork City Human
Rights Law (“NYCHRL”) did not require
an employer to provide a religious accommodation to its New York City employees if
doing so would pose an “undue hardship.”
The WRFA amends the NYCHRL by
imposing a strict standard for establishing
“undue hardship” while reiterating that it is
the employer’s burden to demonstrate
“undue hardship,” defined to mean “an
accommodation requiring significant
expense or difficulty (including a significant
interference with the safe or efficient operation of the workplace or a violation of a
bona fide seniority system).”
New York City employers who fail to provide religious accommodations are subject to
claims under the NYCHRL. These claims
can be filed in court or before the New York
City Commission on Human Rights.
Potential remedies for statutory violations
include reinstatement, back pay, unlimited
compensatory and punitive damages and
attorneys’ fees. Employers who violate the
Workplace Religious Freedom Act also are
subject to a civil penalty of up to $125,000.
Note: Kathryn J. Russo is a partner at
Jackson Lewis LLP in Melville, New York,
where she defends employers in employment disputes in federal and state courts
and before administrative agencies and
arbitration panels. Ms. Russo also is one
of the leaders of the firm’s Drug Testing
and Substance Abuse Management
Practice Group.
law clerk for a United States District Court
Judge, he also has extensive litigation experience in non-compete, trade secret, FINRA
arbitrations, pension, benefits, partnership,
fiduciary, contract and shareholder disputes. He has previously served as a chair
on the Labor and Employment Law
Committees of New York State and Suffolk
County Bar Associations. A past co-chair of
the Labor and Employment Law Committee
for the Suffolk County Bar Association, Mr.
Conneely was re-appointed as Co-Chair for
this Committee from 2010-2012. A prior
Officer of the Suffolk Academy of Law
and a former Adjunct Professor for
Hofstra Law School and the New York
Institute of Technology, Mr. Conneely frequently lectures and publishes on workplace legal issues.
Note: Nancy Zukowski is a volunteer
paralegal at Nassau Suffolk Law Services
with a paralegal certificate from Suffolk
Community College. Ms. Zukowski has
extensive professional experience in health
insurance claims and health care advocacy
and has also interned at Nassau Suffolk
Law Services, Queens Housing Court, and
at private law offices in Suffolk.
Property Tax Cap (Continued from page 14)
Note: Douglas W. Atkins is an associate
at Forchelli, Curto, Deegan, Schwartz,
Mineo, Cohn & Terrana LLP and concentrates his practice in the areas of tax certiorari, real estate and condemnation. He
has experience in tax reduction proceedings for all types of commercial real estate
throughout Long Island’s counties, towns
and villages. Mr. Atkins also has obtained
substantial tax refunds for owners of specialty properties such as cellular phone
tower sites, sand processing plants and
tidal wetlands.
23
LEGAL SERVICE DIRECTORY
THE SUFFOLK LAWYER — MARCH 2012
SERVICES
REAL ESTATE
MARKET LOSSES
OFFICE FOR RENT
Do you have a client with
STOCK MARKET LOSSES
HUNTINGTON
VILLAGE LAW FIRM
due to negligent financial advice,
misrepresentation, variable annuities,
unsuitable investments, churning, etc.
W. ALEXANDER MELBARDIS, M.B.A., J.D.
LAWYER TO LAWYER
EXPERIENCED
IMMIGRATION
ATTORNEY
SECURITIES
LAW
631-421-4488 ext. 119
Please contact Paula @ 631.234.4100 ext. 3561
OFFICE FOR RENT
Julia R. Binger
631-261-0960
(516) 248-7700
168 Laurel Avenue
Northport, NY 11768
129 Third Street
Mineola, NY 11501
johnelawlor.com
OFFICE FOR RENT
OFFICE SPACE AVAILABLE
CENTRAL ISLIP LAW OFFICES
320 Carleton Avenue, Suite 6800
Central Islip, New York 11722
John E. Lawlor, Esq.
Securities
Arbitration / Litigation;
FINRA Arbitrations;
Federal and State
Securities Matters
320 Carleton Avenue, Suite 6000
Central Islip, NY 11722
Call Jon
Attorney Experienced in
194 Main St., Setauket, NY
631-751-1100
CORPORATE COURTHOUSE OFFICE SUITE
Recently renovated furnished suite for lease.
Approximately 2,910 s.f. contains 3 Extra Large
Windowed Executive Offices; Huge Conference Room;
8 Cubicle Work Stations (4windowed); New Full Kitchen.
Building is located adjacent to Court Complex in Central
Islip. Building has Deli and Mail Room on premises.
Furnished Office, Library,
Receptionist, Fax and Copier
Rent: $600/month
FINRA SECURITIES ARBITRATIONS & MEDIATIONS
IMMIGRATION
ATTORNEY
OFFICE FOR RENT
Two windowed offices available, 11 x 14 ($1,200/mo.) or
9 x 12 ($1,000/mo). Building located adjacent to Court
Complex in Central Islip. Offices include a furnished
secretarial work station. Deli on premises. Shared conference room available. Use of copy, fax and postage
machine available. Please contact Angelina Daily at:
(631) 342- 8070
West Main Street
East Islip, New York 11730
One windowed office space available, with or without a secretarial work station. Two conference
rooms and front desk reception included. Use of
copy and postage machine available. If interested
please contact Jeanine Young at: (631) 277-5292
OFFICE SPACE
ADVERTISING
SPACE FOR RENT?
OFFICES AVAILABLE IN LEGAL SUITE
MELVILLE
DON’T KEEP IT SECRET. PLACE YOUR AD IN
2 WINDOWED OFFICES WITH FURNISHED
SECRETARIAL WORK STATIONS. USE OF
CONFERENCE ROOMINCLUDED
THE SUFFOLK LAWYER SERVICE DIRECTORY
CALL
631-427-7000
ROUTE 110, MELVILLE LOCATION. CLOSE TO PARKWAYS.
$1300 PER MONTH EACH OFFICE.
PLEASE CONTACT: (516)741-6700
Grow your business.
Whatever your business, Legal Media Publishing can put you right where you want to be... in front of the legal profession.
Our Lawyers Service Directory advertising will help connect you with potential clients in New York City, Queens and Long Island
through bar association publications. Advertise your services effectively and affordably.
Office Space
Research and Writing
Business Capital
Court Reporting
IT Services
… you name it!
Expert Testimony
Litigation Financing
Real Estate
Lawyer-To-Lawyer
Technical Services
Office Furnishings
Office Space
Transportation Services
Appeals
THE NEW YORK COUNTY LAWYER
-
THE QUEENS BAR BULLETIN
-
THE SUFFOLK LAWYER
631-427-7000
C A L L T O D AY !
28
THE SUFFOLK LAWYER — MARCH 2012
Sharpen Your Real Estate Skills
ACADEMY OF LAW NEWS
__________________
By Lita Smith-Mines
Though a residential real estate
buyer or seller hires an attorney, what
they really seek is a guide, a detective,
a problem-solver, and perhaps a clairvoyant. Real estate practitioners must
be conversant in matters of mold,
mindful of government regulations,
and able to counsel on short sales and
bankruptcy, hunt down prior owners,
maneuver around low appraisals, and
resolve problems with meandering
fences.
Three upcoming Academy of Law
programs will focus on the skills you’ll
need to practice successfully in the current real estate environment.
On Thursday, March 15, the Real
Estate Lunch & Learn series on
representing buyers will help sharpen the skills your clients expect you
to possess. Experienced practitioners
Fred Eisenbud, Robert Steinert, and
Vincent Danzi, and Academy
Coordinators Lita Smith-Mines and
Peter Walsh, will focus on buyer representation, contract clauses to insist
upon (or reject), addressing potential
and actual environmental hazards,
how the federal Real Estate
Settlement Procedures Act (RESPA)
affects transactions, and red flags
related to titles.
On Thursday, March 29, knowledgeable attorneys Peter Tamsen, Audrey
Bloom, Robert Steinert, Vincent Danzi,
and Coordinators Lita Smith-Mines and
Peter Walsh, comprise a panel on representing sellers. Subjects include coun-
seling
distressed
homeowners on selling short or declaring
bankruptcy, understanding
Seller’s
Concessions, managing
short-sale
complications, dealing with less-than- Lita Smith-Mines
firm mortgage commitments, clearing
title issues, and comprehending where
and how RESPA applies.
On Thursday, April 5, Vincent Danzi
leads a pragmatic guided tour through
what the real estate practitioner
needs to know about RESPA. The
focus will be on its main areas of application: Settlement (of mortgage loans),
Servicing (of mortgage loans), and
Solicitation (of settlement services
business), as well as the transfer of
enforcement from HUD to the
Consumer
Financial
Protection
Bureau, RESPA’s relationship with
state law, and the evolution of forms
and regulations.
Each seminar runs from 12:30 - 2:15
pm (lunch begins at noon) and provides two MCLE credits (1 professional practice, 0.5 skills, 0.5 ethics). To
register, see the CLE spread in this
issue, m or call the Academy at (631)
234-5588.
Editor’s Note: Lita Smith-Mines is
an experienced real estate practitioner
in Commack. She serves as an officer
of the Academy of Law and has presented many well-received CLE programs.
ACADEMY
r
a
d
n
e
C al
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 Listings pages in this publication and the SCBA online
calendar for course descriptions and registration details. For information, call
631-234-5588.
March
2
Friday
5
Monday
6
Tuesday
12 Monday
12 Monday
15 Thursday
19 Monday
20 Tuesday
23 Friday
24 Saturday
26 Monday
29 Thursday
Meeting of Academy Officers & Volunteers. 7:30–9:00
a.m. Breakfast buffet. All SCBA members welcome.
Matrimonial Mondays: Maintenance. 6–9 p.m. Signin and light supper from 5:30
Will Contests. 6–9 p.m. Sign-in and light supper from
5:30
Overcoming Procrastination. 12:30–2:10 p.m. Sign-in
and lunch from noon.
Matrimonial Mondays: Preparation & Trial
Examination of a Custody Expert. 6–9 p.m. Sign-in
and light supper from 5:30
Real Estate Series: Representing Buyers. 12:30–2:10
p.m. Sign-in and lunch from noon.
Matrimonial Mondays: To Value or Not to Value?
6–9 p.m. Sign-in and light supper from 5:30
The Florida Connection (Elder Law). Time TBA
Bridge-the-Gap Weekend for New Lawyers. Day
One: Transactional Practice. 8:00 a.m.–4:45 p.m.
Bridge-the-Gap Weekend for New Lawyers. Day
Two: Litigation. 8:00 a.m.–4:45 p.m.
Matrimonial Update (Steven Gassman). 6–9 p.m.
Sign-in and light supper from 5:30
Real Estate Series: Representing Sellers. 12:30–2:10
p.m. Sign-in and lunch from noon.
Check On-Line Calendar (www.scba.org) for
additions, deletions and changes.
In Case You Missed It...
Thank you, George! The SCBA Great Hall was packed at George Roach’s annual
Valentine’s Day Elder Law Update. The main issue addressed was how to deal with
and plan for the effects of the government’s Medicaid estate recovery. For those who
missed the extremely well-received program, the presentation is now available on
DVD, audio recording, and online video replay. Call the Academy for further information at (631) 234-5588.
ACADEMY OF LAW OFFICERS
DEAN
Executive Director
Hon. John Kelly
Dorothy Paine Ceparano
Herbert (Skip) Kellner
Marilyn Lord-James
Lynn Poster-Zimmerman
George R. Tilschner
Hon. Stephen Ukeiley
Robin S. Abramowitz
Brian Duggan
Gerard J. McCreight
Daniel J. Tambasco
Sean E. Campbell
Amy Lynn Chaitoff
Hon. James P. Flanagan
Jeanette Grabie
Scott Lockwood
Lita Smith-Mines
William J. McDonald
Harry Tilis
Peter C. Walsh
Glenn P. Warmuth
Hon. Thomas F. Whelan