April 2009 - The Suffolk County Bar Association

Transcription

THE
SUFFOLK LAWYER
THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION
DEDICATED TO LEGAL EXCELLENCE SINCE 1908
website: www.scba.org
Vol. 25 No 8
April 2009
Why Video Game Laws Are Unconstitutional
__________________
By Glen P. Warmuth
FOCUS ON
EDUCATION
SPECIAL EDITION
INSIDE…
APRIL 2009
Special Section - Education
Shared services, cost savings ............................3
Taking school taxes to task ...............................5
Plaintiffs may seek parallel
discrimination claims.........................................6
Not ‘Matrimonial
Monday’ but
‘Prostate Thursday’
Suffolk County Supreme Court Justice Hon.
William Rebolini organized an informative
seminar on prostate cancer held at the
SCBA headquarters earlier this month. At
the event (left to right) Justice Rebolini welcomes keynote speaker Dr. David B.
Samadi, Chief of Robotics and Minimally
Invasive Surgery at Mt Sinai Hospital,
Vincent G. Berger, Jr. and Louis C.
England, Past SCBA President. For the full
story and more photos, see page 14.
PRESIDENT’S MESSAGE
Help Is On
The Way…
__________________
By James R. Winkler
Pro Bono legal assistance for Vets .................10
On April 4, 2009 I attended the New York
State Bar Association’s House of Delegates meeting in Albany. It
was a long trip for a 4 hour meeting but well worth the effort. I
learned that the New York State Bar Association is committed, in
a serious way, to helping lawyers in solo and small firms during
these difficult economic times. I had something to bring back to
our Suffolk County membership that might actually help them.
Following in the footsteps of the report of Chief Judge Judith S.
Kaye’s Commission to Examine Solo and Small Firm Practice in
2006, the President of the New York State Bar Association,
Bernice Leber, created the Special Committee on Solo and Small
Firm Practice headed by attorney and former President Robert L
Ostertag.
Mr. Ostertag is from upstate New York and, therefore, familiar
with the plight of the small firm practitioner. He spoke at the House
of Delegates meeting and was passionate in his desire to lend assistance in a very difficult time to our brothers and sisters struggling
to survive and feed their families. In many ways he was speaking
to many Suffolk County attorneys who struggle every day to keep
their practices alive until a better day arrives.
Many of my friends in the legal profession have commented that
my columns are sometimes “depressing.” But many more have
commented that I have tried to speak to them directly. And that is
Freeze Frame....................................................15
Restaurant review............................................16
Prostate Thursday informative ......................14
Future Lawyers Forum ...................................12
________________________________________
Legal Articles
ADR...................................................................17
Bench Briefs .......................................................3
Consumer Bankruptcy ....................................18
Court Notes.........................................................8
DMV..................................................................17
Pro Bono ...........................................................13
Second Circuit Briefs.......................................19
Trusts and Estates (Cooper) ...........................16
Trusts and Estates (Elnadav...........................12
________________________________________
Academy News .....................................................
Advantage Card Listings ................................27
Among Us ...........................................................9
Calendar: Academy .........................................28
Calendar: SCBA ................................................2
Committee Corner ...........................................21
Letters ...............................................................21
Secretary’s Report ...........................................19
BAR BRIEFS
“The Doctors are In” Women’s Health Symposium
Wednesday, April 21 from 5:30 to 9 p.m.
Bar Center, $25 per person, light supper will be served.
The program is presented in collaboration with the North Shore LIJ Health
System, Katz Women’s Hospital/Women’s Health Institute, The Suffolk
County Bar Association and the Suffolk County Women’s Bar
Association. For further information call the Bar Center.
Regulating off campus speech ..........................4
________________________________________
Issues affecting the LGBT community ............7
ty standard set out in Miller v. California
but instead of attempting to limit sexual
content the California law sought to limit
violent content. The California Act sought
to limit video games “in which the range of
options available to a player includes
killing, maiming, dismembering, or sexually assaulting an image of a human being”
and any game which “enables the player to
(Continued on page 20)
Photo courtesy of Arthur Shulman
Video games, which were born here in
Suffolk County in 1958 at Brookhaven
National Lab, have been under attack for
decades. In November 2008 the U.S. Court
of Appeals for the Ninth Circuit ruled in
favor of the video game industry and
struck down a California Law aimed at
preventing the sale of violent video games
to children. In doing so the Ninth Circuit
joined the Seventh and Eighth Circuits in
ruling that anti-video game laws are
unconstitutional violations of free speech.
Each of these cases involved a different
approach to limiting minor’s access to
video games.
The Seventh Circuit case, Entertainment Software Association v. Blagojevich1,
involved an Illinois statute which attempted to regulate games based on their sexual
content by applying a standard similar to
that set out by the Supreme Court in its
landmark obscenity case, Miller v.
California2. The Illinois statute imposed
“criminal penalties on any ‘person who
sells, rents, or permits to be sold or rented
any sexually explicit video game to any
minor.’” The statute defined “sexually
ings referred to in the act are ratexplicit” as:
ings given to games by the
[T]hose that the average perEntertainment Software Rating
son, applying contemporary
Board (“ESRB”). The ESRB is a
community standards would find,
creation of the video game induswith respect to minors, is
try and is part of the video game
designed to appeal or pander to
industry’s program of self-regulathe prurient interest and depict or
tion. The ESRB is a close cousin
represent in a manner patently
to the Motion Picture Association
offensive with respect to minors,
an actual or simulated sexual act Glen P. Warmuth of America’s voluntary rating
program. Nearly all games sold in
or sexual contact, an actual or
the United States are rated by the ESRB.
simulated normal or perverted sexual act
The ESRB reports: “Virtually all major
or a lewd exhibition of the genitals or postnational retailers, countless independent
pubescent female breast.
retailers and many game center operators
In the Eight Circuit case, Entertainment
are working with the ESRB.”
Software Association v. Swanson3,
Minnesota passed an act which prohibited
In the Ninth Circuit case, Video Software
minors from “renting video games bearing
Dealers Association v. Schwarzenegger4,
a ‘Mature’ or ‘Adult Only’ rating. The ratCalifornia also borrowed from the obsceni-
James R. Winkler
(Continued on Page 20)
Annual Meeting - Election of Officers
Monday, May 4 at 6 p.m.
Bar Center, $25 per person
Directors and members of the Nominating Committee. Awards of
Recognition, Golden Anniversary Awards and Annual SCBA High School
Scholarship Award presentations. Call the Bar Center to register.
Dog Day Afternoon Agility Expos and Pet Fair
Hosted by Animal Law Committee
Sunday, May 31, 10 a.m. to 4 p.m.
Doggie “U” K9 Academy, 41 Saxon Avenue, Bay Shore
(see insert for further details)
The Columbian Lawyers Association Roast
the Hon. Jerry Garguilo
Wednesday, May 20 at 6 p.m.
The Stonebridge Country Club, $75 per person.
For further information call Lucretia Lucivero, Esq., (631) 862-0751.
101st Installation Dinner Dance,
“In Celebration of the Bench and Bar”
Thursday, June 4 at 6 p.m.
Oheka Castle, Cold Spring Hills, N.Y., $150 per person.
Call the Bar Center for information. Invitations are out in the mail.
Golf Outing at Rock Hill Country Club, Manorville
Monday, August 3
Shotgun at 1 p.m. There will a Fishing trip on the same day aboard The
Osprey which sets sail from the Port Jefferson Town Dock at 7:30 a.m.
Save the date and look for the flyer which will give you the pertinent
details.
2
THE SUFFOLK LAWYER — APRIL 2009
Suffolk County
Bar Association
560 Wheeler Road • Hauppauge NY 11788-4357
Phone (631) 234-5511 • Fax # (631) 234-5899
E-MAIL: [email protected]
We wish to Acknowledge
those who contributed to the
Lawyer Assistance Foundation
Donors
William J. Eppig
Purpose
In memory of William Harrison
Harvey B. Besunder
In memory of Samuel Pines
Harvey B. Besunder
In memory of Hon. Arthur J. Abrams
Board of Directors 2008-2009
President
President Elect
First Vice President
Second Vice President
Treasurer
Secretary
Director (2009)
Director (2009)
Director (2009)
Director (2009)
Director (2010)
Director (2010)
Director (2010)
Director (2010)
Director (2011)
Director (2011)
Director (2011)
Director (2011)
Past President Director (2009)
Executive Director
r
a
d
n
e
l
a
C
SCBA
OF
APRIL 2009
20 Monday
21 Tuesday
22 Wednesday
23 Thursday
28 Tuesday
May 2009
4 Monday
11 Monday
12 Tuesday
13 Wednesday
18 Monday
19 Tuesday
20 Wednesday
21 Thursday
26 Tuesday
JUNE 2009
4 Thursday
9 Tuesday
All meetings are held at the
Suffolk County Bar Association Bar Center,
unless otherwise specified. Please be aware
that dates, times and locations may be changed
because of conditions beyond our control.
For any questions call: 631-234-5511.
MEETINGS AND EVENTS
Board of Directors, 5:30 p.m., Board Room.
Commercial & Corporate Law Committee, 5:30 p.m.,
Board Room.
Insurance & Negligence - Defense Counsel Committee,
5:30 p.m., E.B.T. Room.
SCBA’s Women’s Health Symposium: “The Doctors are In”,
join us for an enlightening and empowering evening and
discover how to make knowledgeable decisions and take control
of your health. $25 per person, 6:00 p.m. to 9:00 p.m.,
Great Hall, Bar Center. Call Bar Center for reservations.
New Members Committee, 5:30 p.m., E.B.T. Room.
Surrogate’s Court Committee, 5:30 p.m., Board Room.
Appellate Practice Committee, 6:30 p.m., E.B.T. Room.
Professional Ethics & Civility Committee, 6:00 p.m.,
Board Room.
SCBA’s Annual Meeting, 6:00 p.m., Bar Center.
$25 per person. Call Bar Center for reservations.
Executive Committee, 3:00 p.m., Board Room.
Women & the Law Committee, 5:30 p.m., E.B.T. Room.
Education Law Committee, 12:30 p.m., Board Room.
Insurance & Negligence - Defense Counsel Committee,
5:30 p.m., Board Room.
Elder Law Committee, 12:15 p.m., Great Hall.
Lawyers’ Committee on Alcohol and Substance Abuse,
5:00 p.m., President’s Office.
Animal Law Committee, 6:00 p.m., Board Room.
Board of Directors, 5:30 p.m., Board Room.
Commercial & Corporate Law Committee, 5:30 p.m.,
Board Room.
Supreme Court Committee, 5:30 p.m., E.B.T. Room.
Solo & Small Firm Practitioners Committee, 4:00 p.m.,
Board Room.
Appellate Practice Committee, 6:30 p.m., Board Room
Professional Ethics & Civility Committee, 6:00 p.m.,
Board Room.
SCBA’s 101st Annual Dinner Dance and Judiciary Night,
“In Celebration of the Bench and the Bar”, installing Ilene S.
Cooper as President, Oheka Castle, Cold Spring Hills, NY,
$150 per person. Call Bar Center for reservations.
Education Law Committee, 12:30 p.m., Board Room.
Women’s Health Symposium
On Tuesday, April 21, 2009, The
Suffolk County Bar Association, the
Suffolk
County
Women’s
Bar
Association and the North Shore LIJ
Health System Katz Women’s Hospital/
Women’s Health Institute will join
together for an evening devoted to
women’s health issues. The program entitled AThe Doctors Are In@ will bring
together an eminent panel of physicians
from the North Shore LIJ Health System,
leaders in their fields of practice, to discuss the most recent findings in women’s
health. Moderated by Neeta Shah, MD,
FACP - VP Women’s Health Services,
the topics to be discussed will include:
Hypertension, Diabetes, UV Radiation
and Skin Cancer, Migraine Update
2009 and Aging Parents. Dr. Shah oversees the Katz Women’s Hospital/
Women’s Health Institute project, with
the purpose to empower women with the
information and tools needed to make
enlightened health care decisions for herself and her family.
The goal of “The Doctors Are In”
program is to inform the audience on disease prevention and present the most
updated health care information available. After the panel discussion, the
physicians will be available to answer
questions and will also make time for
networking to meet attendees.
We express our gratitude to the
Symposium Co-chairs Ilene S. Cooper,
Janessa M. Trotto and Ivy J. Algazy. We
also thank Monarch Graphics and
Fireside Caterers for partially underwriting the symposium which enables us to
charge a nominal fee of $25.00 per person.
For further information please contact
SCBA Executive Director Jane LaCova
at (631) 234-5511, ext. 231.
Mission Statement
“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.”
THE
James R. Winkler
Ilene S. Cooper
Sheryl L. Randazzo
Matthew E. Pachman
Arthur E. Shulman
Dennis R. Chase
Patricia M. Meisenheimer
Ted M. Rosenberg
Richard L. Stern
Richard Alan Weinblatt
Lynne M. Gordon
Maureen T. Liccione
Hon. Peter H. Mayer
Daniel J. Tambasco
Hon. W. Gerard Asher
Annamarie Donovan
Joseph A. Hanshe
George R. Tilschner
Robert F. Quinlan
John L. Buonora
Barry M. Smolowitz
Sarah Jane La Cova
SUFFOLK LAWYER
Publisher
LAURA LANE
Editor-in-Chief
Long Islander Newspapers
in conjunction with
The Suffolk County Bar Association
DOROTHY PAINE
CEPARANO
Academy News
Eugene D. Berman
John L. Buonora
Dennis R. Chase
Ilene S. Cooper
Justin Giordano
David A. Mansfield
Craig D. Robins
Frequent Contributors
The Suffolk Lawyer is published monthly, except for the months of
July and August, by The Long Islander Newspapers under the auspices
of The Suffolk County Bar Association.© The Suffolk County Bar
Association, 2009. Material in this publication may not be stored or
reproduced in any form without the express written permission of The
Suffolk County Bar Association. Advertising offices are located at The
Long Islander, LLC, 149 Main Street, Huntington, NY 11743, 631427-7000.
Send letters and editorial copy to:
The Suffolk Lawyer
560 Wheeler Road, Hauppauge, NY 11788-4357
Fax: 631-234-5899
Website: www.scba.org
E.Mail: [email protected]
or [email protected]
The articles published herein are for informational purposes only. They do not reflect the opinion of The Suffolk County
Bar Association nor does The Suffolk County Bar Association make any representation as to their accuracy. Advertising
contained herein has not been reviewed or approved by The Suffolk County Bar Association. Advertising content does
not reflect the opinion or views of The Suffolk County Bar Association.
The Suffolk Lawyer
USPS Number: 006-995) is published monthly except July and August by Long Islander, LLC, 149 Main
Street, Huntington, NY 11743, under the auspices of the Suffolk County Bar Association. Entered as periodical class paid postage at the Post Office at Huntington, NY and additional mailing offices under the
Act of Congress. Postmaster send address changes to the Suffolk County Bar Association, 560 Wheeler
Road, Hauppauge, NY 11788-4357.
3
Focus On Education
Shared Services, Cost Savings: A Taxpayer Win-Win
___________________________________
By Dennis M. Brown and Jessica Hogan
For several years Suffolk County has
explored streamlining school district costs
through the implementation of shared
municipal service programs. The need for
the county, county school districts, and
indeed, all municipalities to attempt new
ways to cut costs is amplified by the current economic situation facing the country
as a whole. Here we will examine select
items of import that counsel representing a
school district may consider in guiding its
client to cost savings. These tips will be
welcome advice in good times and in bad.
Pooling Purchases
A good starting point is General
Municipal Law §103. It likely is the
straight line to realized savings. The purchasing power of the county can be leveraged into large savings on the purchase
Christopher Gatto
price for services, supplies, materials and
equipment. Section 103(3), provides, in
relevant part,
… any officer, board or agency of a
political subdivision or of any district
therein authorized to make purchases of
materials, equipment or supplies, or to
contract for services, may make such purchases, or may contract for services, other
than services subject to article eight
[Public Work]or nine [Prevailing Wage for
Building Service Employees] of the labor
law, when available, through the county in
which the political subdivision or district is
located or through any county within the
state subject to the rules established pursuant to subdivision two of section four
hundred eight-a of the county law; provided that the political subdivision or district
for which such officer, board or agency
acts shall accept sole responsibility for any
payment due the vendor or contractor.
The Suffolk Lawyer
wishes to thank
Education Special Section
Editor Christopher Gatto
for contributing his time,
effort, and expertise to our
April Issue.
In addition, New York County Law provides that a county’s governing body may:
…in the case of any purchase contract or
any contract for services, other than services subject to article eight or nine of the
labor law, of the county to be awarded to
the lowest responsible bidder after advertisement for bids, authorize the inclusion
of a provision whereby purchases may be
made or such services may be obtained
under such contract by any political subdivision….
The synthesis of these sections allow for
two discrete sources of authority for a
school district to boost its buying power. In
school districts located within Suffolk
County, purchases may be made through
county contracts. School districts may also
leverage their buying power with counties
other than Suffolk County, provided, however, that those counties have authorized
those purchases by employing the procedures set forth in N.Y. County Law.
There are, nevertheless, statutory restrictions on school district purchasing agents
relating to purchases made from county
contracts. Service contracts are subject to
audit, and real servings must be realized.
General Municipal Law § 103(3) provides:
All purchases and all contracts for such
services shall be subject to audit and
inspection by the political subdivision or
district for which made. Prior to making
such purchases or contracts the officer,
board or agency shall consider whether
such contracts will result in cost savings
after all factors, including charges for service, material, and delivery, have been
considered….
Dennis M. Brown
Jessica Hogan
And as to all contracts:
No officer, board or agency of a political
subdivision or of any district therein shall
make any purchase or contract for any
such services through the county in which
the political subdivision or district is located or through any county within the state
when bids have been received for such
purchase or such services by such officer,
board or agency, unless such purchase may
be made or the contract for such services
may be entered into upon the same terms,
conditions and specifications at a lower
price through the county.
Municipal Cooperation
Another useful tool is intergovernmental
cooperation authorized under Article 5-G
of the General Municipal Law. Section
119-o of the General Municipal Law is a
commonly used vehicle to achieve intergovernmental cooperation. It is there provided that municipal corporations and districts “…shall have power to enter into,
amend, cancel and terminate agreements
for the performance among themselves or
BENCH BRIEFS
Suffolk County Supreme Court
Honorable Paul J. Baisley, Jr.
Motion denied; affirmation by attorney without personal knowledge insufficient; relief sought implicated rights of
non-parties
In Gabrielle Ambrosini v. Elliot
Prescott, Index No. 8350/07, decided on
September 10, 2008, the court denied
plaintiff’s motion for an order pursuant to
CPLR 3212 summarily granting plaintiff
ownership of real property by constructive
trust, and/or directing that the proceeds
and revenues from the sale of the premises
be paid to plaintiff. The court noted that
Plaintiff’s motion was supported only by
the affirmation of her attorney, who did
not have personal knowledge of the facts.
Accordingly, plaintiff’s submissions were
insufficient to establish a prima facie entitlement to a grant of summary judgment.
Moreover, the court reasoned that much of
the relief sought in plaintiff’s complaint
implicated the rights of the prospective
purchasers, who are not parties to this
action.
Motion to dismiss complaint denied;
previous agreement to discontinue action
and amend complaint expressly made contingent upon receipt of a sworn affidavit by
a person with knowledge and such amendment would be without prejudice
In Jose Hector Amaya v. William J.
Meyer, FedEx Corporation, FedEx
Express, FedEx Ground, and FedEx
Services, Index No. 14094-06, decided on
November 5, 2008, the court denied defendants motion for an order dismissing the
complaint. The court reasoned that the
motion did not indicate which specific
statute it was brought
under, consequently, the court deemed it
a motion for summary judgment pursuant
Important Information from the
Lawyers Committee on Alcohol & Drug Abuse:
Thomas More Group
Twelve-Step Meeting
Every Wednesday at 6 p.m., Parish Outreach House,
Kings Road - Hauppauge
All who are associated with the legal profession welcome.
to CPLR 3212. The thrust of the defendants' argument was that the FedEx entities named as defendants had no involvement with the accident. While the court
noted that the submissions in support of
this motion made a prima facie showing of
entitlement to summary judgment, plaintiff’s opposition raised material questions
of fact which were sufficient to defeat the
motion. The court pointed out that according to plaintiff’s counsel, he had previously agreed to discontinue the action and
amend the complaint, however this agreement was expressly made contingent upon
the supplying of a sworn affidavit from a
person with knowledge as to the FedEx
corporate family and that such an amendment would be without prejudice if discovery showed otherwise.
Honorable Martin J. Kerins
Motion for an order directing defendant
to appear for deposition denied; good faith
affirmation insufficient
In Leonard Falci v. Albert Timpson and
Julie A. Cichon, Index No. 14004-07,
decided on June 10, 2008, the court denied
plaintiff’s motion for an order directing
LAWYERS COMMITTEE HELP-LINE:
To Advertise in
The Suffolk Lawyer
Call
631-697-2499
(866) 867-9121
defendant to appear for a deposition. The
court pointed out that the plaintiff failed to
submit a sufficient affirmation of a good
faith effort to resolve the issue, which is
required for motions related to discovery.
The court reasoned that the good-faith
effort to resolve the issues raised by the
motion must indicate “the time, place and
nature of the consultation and the issues
discussed and any resolutions, or shall
indicate good cause why no such conferral
with counsel for the opposing parties was
held.” The court found that the cursory
affirmations by the movants’ attorneys
failed to demonstrate a good faith effort to
resolve the dispute and cursory telephone conversations or letters were insufficient. In order to be in compliance, the
court stated that a good faith effort
required significant and intelligent contact
and negotiations, sufficiently detailed in
counsel’s affirmation.
Honorable Emily Pines
Motion to sever third party complaint
denied; in the alternative, motion to transfer venue denied; expedited discovery
4
?
NEED SOLUTIONS
• Last Wills & Testaments
• Trusts, Irrevocable & Revocable
• Strategies for Saving Estate Taxes
• Long Term Care Insurances
• Supplemental Needs Trusts
BURNER
CHERCHES & SMITH, LLP
BC&S
A
BURNER
, SLMITH
& ASSOCIATES, LLP
TTORNEYS AT
Can Schools
Regulate Off Campus
Student Speech?
______________
By Joseph Gatto
ELDER LAW AND ESTATE PLANNING
• Medicaid Eligibility
• Estate Planning
• Trusts & Estates Litigation
• Nursing Home Placement
• Guardianships
Focus On Education
AW
Nancy Burner, Esq., CELA
CERTIFIED AS AN ELDER LAW ATTORNEY*
Eric D. Cherches, Esq.
Kim M. Smith, Esq.
ELDER
LAW AND ESTATE
LANNING
ATTORNEYS
AT PL
AW
• Last Wills & Testaments
• Medicaid Eligibility
N
ANCY BURNER, ESQ.,
• Trusts, Irrevocable & Revocable
• Estate Planning
, ESQ
KIM M. SMITH
• Strategies
for .Saving Estate Taxes
• Trusts & Estates Litigation
• Long Term Care Insurances
• Nursing Home Placement
• Supplemental Needs Trusts
• Guardianships
46 Route 25A, Suite 4 • Setauket, NY
46 Route 25A, Suite 4 • Setauket, NY
Phone 941-3434 • Fax 941-3443
Phone 941-3434 • Fax 941-3443
82 Main St. • Westhampton Beach, NY
Westhampton
Beach,
NY
Phone
288-5612 • Fax
288-5618
www.bcslawfirm.comOnly
By Appointment
www.burnersmith.com
* The National Elder Law Foundation is not affiliated with any governmental authority.
Certification is not a requirement for the practice of law in the State of New York and does
not necessarily indicate greater competence than other attorneys experienced in the field of law.
were inappropriate. They involved
teenage pregnancy and discussion
As a government teacher, I
of the sexual practices of students.
teach my students to respect the
The principal felt these topics were
Bill of Rights. Students are internot appropriate for the youngest
ested in First Amendment rights,
students in his school, the high
especially free speech. They freschool Freshmans. The Supreme
quently ask me whether they can
Court upheld the principal’s decibe punished for what they say or
sion. The court held that schools
do on the internet. The answer I
have the right to limit this type of
Joseph Gatto
give usually surprises them.
speech as long as it is related to
Schools are in loco parentis.1 Teachers
“legitimate pedagogical concerns.” This
and school administrators act in the place
case reinforced the idea that student speech
of parents. This requires schools to act in
can be limited by schools.
the best interests of the students the way a
Schools took basic ideas from these
parent would. Schools should be mindful
cases. First, students do have free speech
of these responsibilities in the wake of terrights that may be limited if the speech is
rorist attacks, school massacres and a few
disruptive. Second, schools may regulate
federal cases. The federal cases Tinker v.
the content of speech if they deem it inapDes Moines Public Schools, Bethel School
propriate irrespective of how disruptive the
District No. 403 v. Fraser, and Hazelwood
speech was. Fraser and Kuhlmeier are
School District v. Kuhlmeier,2 set the
important because they recognized schools
framework for extending the “long arm” of
need to restrict the speech rights of stuschool discipline into off-campus speech.
dents in certain circumstances.
Tinker v. Des Moines Public Schools is
As the internet became more accessible,
the most famous case involving student
questions arose about the extent to which
speech and should be the starting point of
the school may regulate internet speech.
this discussion. In Tinker, two students
When considering these cases a few things
decided with their parents to protest the
should be kept in mind. The first question
Vietnam War by wearing black arm bands
is where the speech took place. Using the
in school during the Christmas holiday seareasoning of the cases above, the school
son. The school asked them to remove the
would have an argument to regulate interarm bands. The students refused and were
net speech that originates on campus. The
suspended. The school argued that this
cases above do not address off-campus
type of student speech was disruptive and
speech, however. Second, there should be
made it more difficult for teachers and
some analysis of the effect of the speech on
administrators to run classes. The Supreme
the school environment. Does the speech
Court disagreed and held that the school
disrupt the educational process? Third, the
failed to provide enough evidence that the
content of the speech should be analyzed.
black arm bands would interfere enough
If the content is not something the school
with school to justify limiting the symbolapproves of, is it visible in any way in
ic speech rights of students.
school? If so, does the speech convey a
Schools took a few lessons from Tinker.
message that is contrary to what is being
First: students do not surrender their First
taught in school?
Amendment speech rights on campus.
The first case to deal with off campus
Second: Student speech may be regulated
internet speech was Beussink v. Woodland
when it becomes a disruption. It was
R-IV School District. 3 In that case, a stuunclear at that point whether schools could
dent created a web site that used vulgar
regulate speech based on its content irrelanguage in reference to school administraspective of the disruptive nature of the
tors and teachers. One of the student’s
speech.
friends downloaded the web page in
Bethel School District No. 403 v. Fraser
school. The principal saw the web page
involved a high school senior giving a
and suspended the student that created the
speech nominating his classmate for stusite. The site did not cause disruption of
dent government. There were many sexual
classes. The District Court in Missouri
references in the speech and he was
upheld the student speech using the Tinker
promptly suspended for three days. He and
standard. Other cases with similar facts
his parents were upset by the decision and
also protected student speech rights using
argued that the suspension violated his free
Tinker rules.4 That changed, however, in
speech rights. Ultimately, the Supreme
2007 in Morse v. Frederick.5
Court heard the case. Chief Justice Burger
In Morse v. Frederick, the school princidistinguished the speech in Tinker with the
pal permitted students to leave school
speech in Bethel. He argued that the Tinker
grounds to watch the Olympic Torch.
speech involved a legitimate public policy
Frederick, a student in the school, and
concern and the Fraser speech had no
some friends, stood off campus and waited
redeeming value. Justice Stevens wrote a
for television cameras to pass by. At that
strong dissent, arguing that there should be
point they held a sign that said, “Bong Hits
a strong presumption in favor of free
for Jesus.” Frederick was suspended. In a 5
speech rights in cases like this.
to 4 vote, the Supreme Court held that
Hazelwood School District v. Kuhlmeier
school officials may prohibit students from
involved a school sponsored newspaper.
displaying messages that promote illegal
Before publishing, the school principal
drug use. The decision is important
reviewed the student-written articles and
because it permitted the school to regulate
decided to remove two. He felt the articles
5
Focus On Education
Taking School Taxes to Task
Cost-Cutting
Recommendations
_______________
By Lou D’Amaro
Without a doubt, the most important
issue facing Suffolk homeowners on a
daily basis is the crushing school property
tax burden. Simply put, it is becoming
increasingly difficult to afford to live,
work, and raise a family in Suffolk
County. High taxes and escalating costs
have reached the crisis stage and we must
implement cost cutting solutions without
compromising class size or the delivery of
quality education.
To that end, the Suffolk County
Legislature recently formed a commission
aimed at lowering school property taxes,
cutting school district expenses, and fostering efficiency. The Suffolk County
Commission to Evaluate School District
Expenses and Efficiency was comprised of
12 members, including representatives
from recognized school board, superintendent, business, PTA, and taxpayer organizations throughout Suffolk County. This
diverse group’s overriding mandate was to
identify new procedures and measures to
bring rising school district expenditures
under control. By getting all the important
players in the school tax debate in the same
room, this panel was able to freely share
ideas and come up with a comprehensive
roadmap for decreased spending and tax
reduction. The guiding theme of
school districts the opportunity
the commission was to ‘fix the
to enter into multi-district conproblem, not the blame,’ a goal
tracts. The spending statistics
which every member fulfilled.
for transportation related costs
After 18 months of work,
reveal that school districts in
including four public hearings held
Suffolk County on average
throughout Suffolk County where
expend 5.7 percent of their total
members of the public provided
budget on transportation. Even
valuable opinions and input, the
a modest 10 percent savings on
Lou D’Amaro
commission issued its 57 page
transportation costs would
final report early last year. The
result in an expenditure reducreport included 25 unanimously adopted
tion of $29,252,602 for school districts
recommendations. Three of the major reccountywide. That’s a significant savings
ommendations were as follows:
that warrants a serious look at cost-cutting
Functional consolidation of adminissolutions such as regionalizing the transit
trative functions: These recommendasystem. At the very least, the state should
tions rely on economies of scale in an
lift the prohibition for private school and
effort to save money. They include back
BOCES students, which are both far fewer
office functions such as payroll, financing,
in number than public school students.
purchasing agreements, and insurance. At
School districts by law must provide the
the very least, this may be a smart concept
transportation for these students at a high
for smaller school districts, especially
cost. It is extremely inefficient to prohibit
those on the east end of the county, which
neighboring districts from entering into
presently use their limited resources (comcooperative agreements to transport such a
pared to larger west end school districts) to
small number of students.
hire separate personnel to perform each
Self-Insurance for healthcare: Health
and every administrative duty. A regional
benefits account for 9.3 percent of Suffolk
business office could handle these operaCounty school district spending allocations within the participating districts,
tions. One can clearly see how this is an
hence eliminating the plethora of duplicaarea where any cost saving measures could
tive, often costly, positions.
make a huge difference, especially given
Regionalize school transportation:
the fact that healthcare costs are growing at
The commission recommended that a
a rate of 12 percent per year, with school
study be conducted to consider formal prodistricts experiencing a more than 100 perposals to implement a regional school trancent increase in health insurance expendisit system. Such a study should consider
tures over the ten year span from 1994 to
drafting state-enabling legislation to allow
2004. The commission recommended that
the County Executive’s Management Unit
compile enrollee profiles for all municipalities and that the Budget Review Office of
the Suffolk County Legislature, which
developed the analysis for this report,
work with the Management Unit to determine which ones would benefit from selfinsuring under the County’s Employee
Medical Health Plan.
Since the report’s publication, all 25 recommendations have been forwarded to
each of Suffolk’s 69 school districts as
well as Suffolk County’s State Legislative
delegation. While these recommendations
may not be a good fit for every district, it
is our hope that, at the very least, they are
given every consideration in school districts’ ongoing efforts to mitigate high
property taxes for Suffolk’s overburdened
homeowners. Officials at all levels of government, as well as frustrated taxpayers,
should join the crusade to advocate for
these innovative solutions that will help
provide reduced school costs and tax
relief.
Note: Lou D’Amaro, Esq., represents
the 17th Legislative District in Suffolk
County, which straddles the Towns of
Huntington and Babylon and includes
Deer Park, Dix Hills, Huntington,
Huntington Station, Melville, North
Babylon, South Huntington and West
Hills. He is of counsel at Rivkin Radler,
LLP and was co-chair of the Suffolk
County Commission to Evaluate School
District Expenses and Efficiency.
6
Focus On Education
Fitzgerald v. Barnstable School Committee
Parallel discrimination claims under Title IX & Section 1983
______________________
By Christopher M. Gatto
In Fitzgerald v. Barnstable School
Committee,1 the United States Supreme
Court recently ruled that Title IX, which
generally prohibits discrimination in federally-funded schools, does not preclude a
42 U.S.C. § 1983 action alleging unconstitutional discrimination in schools. The
Fitzgerald opinion is significant because it
makes clear that plaintiffs may seek parallel discrimination claims under Title IX
and § 1983.
Factual background of Fitzgerald
The Fitzgerald case arose from the following facts. Jacqueline Fitzgerald, a
kindergarten student, informed her parents
that a third grade boy on her school bus
bullied her into lifting her skirt.
Jacqueline’s mother immediately called
the school principal to report the allegations.
The school officials met with Jacqueline
and her parents later that morning. The
school officials questioned the alleged
bully, who denied the allegations. The
school bus driver and students who regularly rode the bus were also questioned.
The school was unable to corroborate
Jacqueline’s version of events. After additional details came to light, the school principal scheduled a second meeting with the
Fitzgeralds, and questioned the boy and
other students a second time.
committee filed a motion for
Based on the investigation of the
summary judgment, which the
incident, the school determined
district court also granted.
that discipline against the boy
On appeal, the First Circuit
was unwarranted.
affirmed the dismissal of the case
In
the
meantime,
the
under Title IX.2 At the outset, the
court stated:
Fitzgeralds had been driving
A school should be a haven for
Jacqueline to and from school.
a youngster, and sexual harassThe school offered to place
ment in an elementary school is
Jacqueline on a different bus or,
alternatively, to leave rows of Christopher M. never to be condoned. But
schools and school officials face a
empty seats between the kinderGatto
daunting challenge in maintaingarten students and the older stuing a safe, orderly, and well-disciplined
dents on the bus. The Fitzgeralds counenvironment. Where peer-on-peer sexual
tered with alternative proposals, including
harassment is alleged, the Title IX frameplacing a monitor on the bus or transferwork, as authoritatively interpreted,
ring the boy to a different bus. The school
imposes a distinct set of legal rules. 3
did not act on the Fitzgeralds’ proposal.
(“Title IX does not make an educational
Jacqueline, however, continued to report
institution the insurer either of a student’s
unsettling incidents with the boy during
safety or of a parent’s piece of mind”).4
the school year and missed an unusual
The First Circuit ruled that the school
number of school days.
could not be subjected to Title IX liability.
In April of 2002, the Fitzgeralds sued
Plaintiffs admitted that the school officials
two defendants, the Barnstable School
met with the parents the morning that they
Committee and the school superintendent
made their complaint and immediately
in federal district court. Their complaint
launched an investigation. The school’s
included a Title IX discrimination claim,
response also included offering to change
as well as claims against both the School
Jacqueline’s bus to separate her from the
Committee and the superintendent for
boy. The court explained that “Title IX
deprivation of federal rights under § 1983.
does not require educational institutions to
The school committee and the superintake heroic measures, to perform flawless
tendent filed a motion to dismiss, which
investigations, to craft perfect solutions, or
the district court granted as to the § 1983
to adopt strategies advocated by parents.”5
claims. On the Title IX claim, the school
Available For Lease
1415 Kellum Place,Garden City, NY
Further, the First Circuit held that
Plaintiffs’ Section 1983 claim was precluded by Title IX. The court concluded
that “Congress saw Title IX as the sole
means of vindicating the constitutional
right to be free from gender discrimination
perpetrated by educational institutions.”6
The Supreme Court granted certiorari to
decide whether Title IX precludes an
Equal Protection claim under § 1983.7
Supreme Court rules that Title IX
doesn’t preclude a § 1983 claim for
deprivation of Federal Rights
On January 21, 2009, the Supreme Court
issued a unanimous decision (9-0) and
ruled that Congress did not intend Title IX
to be the exclusive remedy for redress of
gender discrimination perpetrated by educational institutions. Justice Samuel Alito
delivered the opinion for the court.
The court determined that Title IX does
not preclude an Equal Protection claim
under § 1983. The court analyzed the
framework of Title IX. Title IX’s only
express enforcement mechanism, § 1682,
is an administrative procedure resulting in
the withdrawal of federal funding from
institutions that are not in compliance.
Justice Alito noted that, although there is a
private right of action under Title IX, the
Supreme Court had “never held that an
implied right of action had the effect of
precluding suit under § 1983.”8
The Law Firm of
Naness, Chaiet & Naness
Representing Management in Employment Law,
Labor Relations and Related Litigation
Areas of Practice Include
For information please call Exclusive Brokers:
John A. La Ruffa, SIOR Senior Director
Corporate Real Estate Services
[email protected] tel: 631 270 3010
Albert Centrella, Jr. Associate Director
[email protected] tel: 631 270 3041
• Property is adjacent to the Nassau County Courts and County Seat
with exclusive private access to County Courts complex
• Walking distance to Mineola Railroad Station and 35 minutes
from Midtown Manhattan
• 24 hour access
• 1st floor:
1,450 square feet
• Back up generator
2,810 square feet
• Concierge desk
(can combine for a total of 4,260 square feet - corner unit)
• Private parking
• 2nd floor:
4,213 square feet
with key cards
(can be divided - corner unit)
3 Huntington Quadrangle, Suite 307N | Melville, NY 11747 | www.nailongisland.com | fax: 631 270 3088
All information is subject to errors, omissions, changes of rental, sale price, or other conditions, prior to sale, lease or financing,
or withdrawl from the market without notice.
Layoffs and Reductions in Force
Severance Agreements
WARN Act Obligations
Discrimination and other Employment Litigation
Organizing Campaigns • Collective Bargaining
Family and Medical Leave Act Issues
Contract Administration • Grievances and Arbitrations
Sexual Harassment Policies
National Labor Relations Board Cases
Wage and Hour Issues • Employee Handbooks
Employee Contracts • Employee Privacy Rights
Employee Benefits Issues
Independent Contractor Issues
Contact: Jeffrey N. Naness
375 North Broadway, Suite 202
Jericho, New York 11753
Phone: (516) 827-4300
e-mail: [email protected]
Global Warning
Issues affecting the
LGBT community
__________________________________
By Joseph Trotti and Joseph G. Milizio
The lesbian, gay, bisexual, transgender
(LGBT) community’s struggle for equality
may well be this country’s new civil rights
frontier. The last 12 months have witnessed both historic successes and disturbing defeats. The mixed results are especially troubling since the country has enthusiastically embraced change in other areas
and recently ushered in a new era for political and social reform. Yet, the LGBT
community has still not attained the rights
and privileges that the heterosexual community has historically enjoyed. While victories are celebrated, the specter of
Proposition 8 in California, to name just
one battle, serves to alert the community
that the final result is far from settled.
On a positive note, in 2008, the New
York law office of Vishnick McGovern
Milizio LLP successfully filed and
obtained what may be the first signed judgment of divorce between two gay men in
New York. The outcome, and ultimately
the judgment in this case, are in keeping
with the recent trend and direction courts
are taking in this field. In 2006, despite a
New York State Court of Appeals ruling
(Hernandez v. Robles) that the State of
New York did not violate its constitution
when it refused to allow same-sex marriage within the state, there appeared to
remain the distinct possibility that an outof-state marriage might be granted recognition. It is interesting to note that it has
Joseph Trotti
Joseph G. Milizio
taken nearly 20 years since the Braschi
Court held that a homosexual couple was a
family for the purposes of succession
rights to a rent controlled apartment for
there to be any further important decisions
in this area.
Early in 2008, a Monroe County, N.Y.
court ruled that an employer’s refusal to
extend healthcare benefits to an employee’s same sex spouse made that employer
guilty of discrimination in the workplace
based on sexual orientation. Finally, a New
York County matrimonial judge held that a
same sex marriage that was legally entered
into in Canada is legally binding in New
York. Therefore, a divorce of that marriage
would seem to require a conventional
divorce proceeding.
Although New York has not yet granted
gay or lesbian marriages within the state,
the LGBT community now appears to have
certain rights protected under the Domestic
Relations Law. In May 2008, New York
Governor David Paterson ordered state
agencies to recognize legal marriages
between same sex couples conducted out
of state, as well as out of the country, as
equal to New York marriage. That same
FULL TIME POSITION AVAILABLE
Pro Bono Coordinator Suffolk County
Nassau Suffolk Law Services’ has just received funding to increase legal services for the poor by obtaining additional volunteer attorneys to assist clients in
Suffolk County. Under the supervision of the Managing Attorney of Nassau
Suffolk Law Services’ Pro Bono Project and in collaboration with the Suffolk
County Bar Association’s Pro Bono Foundation, the Pro Bono Coordinator will
work directly with the Suffolk County Pro Bono Action Committee, which is part
of the statewide initiative, ProBonoNY, sponsored by the Unified Court System.
Under the general direction of the committee, the Pro Bono Coordinator will be
responsible for engaging in a recruitment outreach effort aimed at increasing the
participation of volunteer attorneys in Suffolk County. The coordinator will be
responsible for program planning, mentoring, supervising, and coordinating volunteer attorney training and continuing legal education (CLE). It is expected that
the coordinator will expand the role of law students in the Pro Bono Project and
interface with the Suffolk Courts’ Law Library Resource Program for the Public
and any related tasks as requested. In addition, the coordinator will be expected to
become knowledgeable with regard to Pro Bono client and case screening, case
intake and evaluation, case assignments, and case tracking. In general, the successful candidate’s duties will not include the practice of law.
LOCATION:
SALARY:
START DATE: Open
Islandia Office
$ 40,000 D. O. E.
More Than 40 Years Of Significant Experience In:
CONDEMNATION, TAX CERTIORARI, ZONING,
LAND USE LITIGATION, COMMERCIAL
AND REAL PROPERTY LITIGATION
Flower, Medalie
& Markowitz
REQUIREMENTS: Admission to the New York State Bar. Experience working
in the field of and familiarity with providing civil legal services to the poor is
preferred.
Interested persons are encouraged to submit a resume to:
Miriam Pismeny, Managing Attorney
Nassau/Suffolk Law Services Committee, Inc.
1757 Veterans Highway, Suite 50
Islandia, NY 11749
NASSAU/SUFFOLK LAW SERVICES IS AN EQUAL
OPPORTUNITY/AFFIRMATIVE ACTION EMPLOYER. WOMEN,
MINORITIES, THE ELDERLY AND INDIVIDUALS WITH
DISABILITIES ARE ENCOURAGED TO APPLY.
24 E. Main Street Suite 201
Bay Shore, NY 11706
(631) 968-7600 Fax: (631) 665-4293
7
8
LASIK
&
OPTHALMOLOGIC MALPRACTICE
Keith Shapiro & Ford welcomes the
opportunity to consult with counsel on
matters relating to malpractice committed
in the areas of LASIK and other
refractive surgical procedures as
well as other forms of
opthalmologic malpractice.
Nationally recognized in the area of
refractive malpractice & lecturer on
LASIK malpractice for the American
Trial Lawyers Association
Keith, Shapiro & Ford
666 Old Country Road
Garden City, New York
(516) 222-0200
Law Office of
FREDERICK
EISENBUD
THE ENVIRONMENTAL LAW FIRM SM
____________________________________________________________
6165 JERICHO TURNPIKE
COMMACK, NEW YORK 11725-2803
TELEPHONE: (631) 493-9800
FACSIMILE: (631) 493-9806 (NOT FOR SERVICE)
E-MAIL: FIRST AND LAST [email protected]
WEBSITE:
WWW.EISENBUDLAW.COM
LILIA FACTOR ESQ.
ROBERT DOOLEY, LAW CLERK
ROBIN ROMEO
OFFICE MANAGER
COURT NOTES
Appellate Division
Second Department
_______________________
By Ilene Sherwyn Cooper
cating that he was aware that he is
the subject of an ongoing investigation by the Grievance
Attorney Reinstatements
Committee concerning allegaGranted
tions regarding breach of fiduciaThe application by the followry duty with respect to his attoring attorneys for reinstatement
ney trust account. He acknowlwas granted:
edged that he would be unable to
defend himself against such
Edward J. Hayward
charges on the merits. He stated
(admitted as Edward Joseph
that his resignation was freely
Ilene
S.
Cooper
Hayward)
and voluntary rendered, and
Fred A. Schwartz
affirmed that it was subject to an
order directing that he make restitution and
Attorney Resignations
reimburse the Lawyers’ Fund for Client
Granted/Disciplinary
Protection. In view of the foregoing, Mr.
Proceeding Pending:
Gauthier’s resignation was accepted and he
was disbarred from the practice of law in
Stephen Lawrence Brotmann: By affithe State of New York.
davit, respondent tendered his resignation,
indicating that he was aware that he is the
Attorneys Disbarred:
subject of an ongoing investigation by the
Grievance Committee concerning allegaJoseph R. Maddalone, Jr.: On April
tions regarding funds entrusted to his
15, 2008, the respondent entered a plea of
charge. He acknowledged that he would be
guilty to one count of grand larceny in the
unable to defend himself against such
second degree, a felony, based upon
charges on the merits. He stated that his
admissions that he took moneys from
resignation was freely and voluntary renaccounts that had been entrusted to his
dered, and affirmed that it was subject to
charge. Respondent averred that he had no
an order directing that he make restitution
permission or authorization to take the
and reimburse the Lawyers’ Fund for
funds in issue. Accordingly, by virtue of
Client Protection. In view of the foregoing,
his conviction of a felony, the respondent
Mr. Brotmann’s resignation was accepted
ceased to be an attorney and was automatand he was disbarred from the practice of
ically disbarred from the practice of law in
law in the State of New York.
the State of New York.
Edward Marvin Cohen: By affidavit,
respondent tendered his resignation, indicating that he was aware that he is the subject of a disciplinary proceeding by the
Grievance Committee based upon his conviction of the serious crime of attempted
criminal possession of a forged instrument
in the third degree. Previously, the respondent had been suspended from the practice
of law for a period of one year based upon
charges that he failed to return client funds
after numerous requests and failed to cooperate with the investigation of the
Grievance Committee. The respondent did
not apply for reinstatement. Respondent
acknowledged that he would be unable to
defend himself against the charges pertaining to his conviction on the merits. He stated that his resignation was freely and voluntary rendered, and affirmed that it was
subject to an order directing that he make
restitution and reimburse the Lawyers’
Fund for Client Protection. In view of the
foregoing, Mr. Cohen’s resignation was
accepted and he was disbarred from the
practice of law in the State of New York.
Gary G. Gauthier: By affidavit,
respondent tendered his resignation, indi-
Decisions Of Interest
Second, Ninth And Eleventh
Judicial Districts
Kevin J. Keelan, admitted as Kevin
Joseph Keelan: On April 14, 2008, the
respondent entered a plea of guilty to
aggravated unlicensed operation in the first
degree, a class E felony, and driving while
intoxicated, an unclassified misdemeanor.
Respondent was sentenced to 5 years probation on the unlicensed operation count,
and to three years probation on the driving
while intoxicated count, to run concurrently. In addition the respondent was fined the
sum of $1000. Accordingly, by virtue of
his conviction of a felony, the respondent
ceased to be an attorney and was automatically disbarred from the practice of law in
the State of New York.
Note: Ilene Sherwyn Cooper is a partner
with the law firm of Farrell Fritz, P.C.
where she concentrates in the field of trusts
and estates. In addition, she is PresidentElect of the Suffolk County Bar Association
and a member of the Advisory Committee
of the Suffolk Academy of Law.
To Advertise in
The Suffolk Lawyer
Call (866) 867-9121
9
SIDNEY SIBEN’S AMONG US
On the
Move…
The Law Offices
of Penny Kassel &
Associates, P.C., an
elder law firm, is
pleased to announce that Tamar B.
Jacqueline M. Siben
Sklover, has joined
the staff. Ms. Sklover brings with her over
30 years of experience as a paralegal in
Trusts, Estates and Guardianship Law.
Craig J. Wolfson is the newest partner
of Rosicki, Rosicki & Associates, P.C. in
Plainview. He manages the Human
Resources Department.
SCBA members Curtis Sobel and
Michael J. Kelly announce that Robert E.
Schleier, Jr. has become a partner. The
firm will now be known as Sobel, Kelly &
Schleier, LLC.
Timothy Shea, Jr. has been named
Partner in the Real Estate Group at the firm
of Certilman Balin Adler & Hyman, LLP.
Scott D. Schwartz has joined the firm
of Ruskin Moscou Faltischek, P.C. as an
associate in the Real Estate Department.
Congratulations…
Melissa Negrin-Wiener, a senior associate attorney with Genser Dubow Genser
& Cona LLP (GDGC), is a recipient of the
2009 LI Public Interest Attorney Award
given by the Touro College Jacob D.
Fuchsberg Law Center. The award was
presented on April 1st at Touro’s Goods
and Services Auction where Ms. NegrinWiener was honored for her commitment
to public interest and pro bono work.
Patricia M. Meisenheimer, Dean of the
Suffolk Academy of Law, Nora V.
Demleitner, Dean of Hofstra Law, and
Christine Malafi, County Attorney, were
selected as members of the 2009 class of
Long Island’s Top 50 Most Influential
Women in Business. The award, now celebrating its 10th anniversary, recognizes
the significant contributions of women professionals to the region’s economy and to
the communities in which they do business.
SCBA
member
Karen
Anne
O'Donnell has been accepted in the 6th
Annual Juried Photography Show (Juror,
Susan Dooley is the founding member of
Foto Foto Gallery in Huntington). Ms
O’Donnell will exhibit a photograph entitled “Coney Island Thrills” which is an
architectural view of the Wonder Wheel in
Coney Island. There will be a free wine
and cheese reception on April 17 from 6 to
8 p.m. and awards will be given at that
time. The exhibition runs from April 12th
thru June 15th, 2009 at the Huntington
Arts Council's Petite Gallery located at
213 Main Street, Huntington (631) 2718423.
Announcements,
Achievements, &
Accolades…
Bradley L. Gerstman from Ruskin
Moscou Faltischek, P.C. has been named
to the Nassau Community College
Foundation Board of Directors for a two
year term.
Lisa Renee Pomerantz participated in a
panel discussion on Human Resources and
Employment Law on March 24 as part of
the Business Toolkit Series at the Middle
Country Public Library in Centereach.
Brian Andrew Tully’s article “Elder
Law Concepts” has been chosen to appear
in the newly released publication
“WealthCounsel: Estate Planning Strategies: Collective Wisdom, Proven
Techniques.”
Futterman & Lanza, LLP will present
a free two-hour seminar addressing the
topics of elder law and estate planning.
“Medicaid Planning & Asset Protection”
will take place on April 22 at the law
office, located at 222 East Main Street,
Suite 212, in Smithtown. The morning
seminar runs from 10 a.m. to 12 p.m., and
the evening seminar is from 6 p.m. to 8
p.m. Refreshments will be served.
Admission is free, but seating is limited.
For more information, or to reserve a seat,
call (631) 979-4300.
Regina Brandow, of Berger and
Brandow, LLP will be co-presenting with
Brian McIlvey from Eastern Suffolk
BOCES at James E. Allen Junior/Senior
High School Parent Workshop on Friday,
April 17, 2009 at 7:30 pm regarding
Transition Planning: Guardianships and
Supplemental Needs Trusts. Additionally,
she will present Transition Planning:
Guardianships and Proper Planning at the
Hauppauge SEPTA meeting on Monday,
April 20 at 7p.m. Call Berger & Brandow,
LLP for details at (631) 689-7404.
Lita Smith-Mines has become a regular
contributor to The Huffington Post
(www.huffingtonpost.com), with blog
posts appearing regularly on the Business,
Career, Living, and Style pages of the
internet newspaper. Recent featured posts
10
Providing Legal Assistance for Vets
__________________________
By Honorable Peter H. Mayer
It was with great pride and humility that I
had the opportunity to be co-moderator,
along with Ted Rosenberg, for the first CLE
representing veterans sponsored by our Bar
Association. The purpose of this program
was to train lawyers in the fundamental
rights and responsibilities of veterans under
the SCRA, the New York Military Law and
other related substantive and procedural
statutes, in order to form Suffolk’s first Pro
Bono committee dedicated solely to providing legal assistance to veteran’s before, during and after deployment.
There appears a near unanimity of opinion as to the need for such a committee as
evidenced by the large turnout and equally
large sign-up of lawyers willing
edgeable veteran. Moreover, in the
to take on the representation of a
coming months I intend to commuveteran pro bono on behalf of the
nicate with the leaders of other vetSuffolk Bar Association. I want
erans groups as to the existence of
to give a heartfelt thank you to
our “team of legal experts,” so that
all those who came to this proword gets to the appropriate people
gram and offered to give their
to facilitate access to the committee
time and legal expertise to all
by the particular veteran in need.
those who put themselves in
Please also understand that no
harm’s way to provide the blanone
is ever precluded from becomHon. Peter H.
ket of freedom that preserves our
ing a volunteer simply because
Mayer
liberty, and protects our security.
they missed the program. As with
I have coordinated with Tom Ronayne,
all CLE programs, we have excellent
the Suffolk County Veterans’ Affairs
materials that are available, as well as the
Agency Executive Director, regarding our
video and audio tapes of the lecture.
existence and, as those in attendance know,
We have a continuing need for those
this agency was represented at our program
with experience in bankruptcy, matrimoniby William Rodriguez, a seasoned, knowlal and family law, foreclosures, etc.
One disclaimer, this program, and therefore this committee, was not trained and is
therefore not available for representation of
veterans before the Veterans Administration.
Representation of veterans before the
TO ALL TO WHOM THESE
PRESENTS SHALL COME, GREETINGS:
KNOW YE, THAT THE COLUMBIAN LAWYERS
ASSOICIATION
OF SUFFOLK COUNTY
SHALL HEREBY ROAST TO PERFECTION
ITS COLUMBIAN OF THE YEAR:
THE HONORABLE JERRY GARGUILO
NEW YORK STATE SUPREME COURT JUSTICE
The Stonebridge Country Club
200 Raynor’s Way, Hauppauge, NY
Wednesday, May 20 at 6 p.m.
$75.00 per person
Space is limited. All tickets must be purchased in advance.
Please send checks payable to
Columbian Lawyers Association of Suffolk County
c/o Lucretia Lucivero, P.O. Box 137,
St. James, N. Y. 11780-0137
by Friday, May 6
VA requires special training, as well as
special clearance from the VA.
Any questions regarding what kinds of
services might be available for a returning
veteran can best be addressed by calling the
office of Tom Ronayne, Suffolk County
Veterans Affairs Executive Director. This
agency is a wonderful group and would be
happy to answer any question.
Finally, I would be remiss without thanking our wonderful Executive Director, Jane
LaCova, for her support in helping to put
this program together as well as Dean Pat
Meisenheimer and Dorothy Ceparano for
their continued efforts to make us all better
lawyers and without whom this program
could not have occurred. Of course, a special thanks to my co-moderator and good
friend, Ted Rosenberg for his help in
putting this together.
Remember, no matter what your political view, you don’t have to support a war
to support a veteran.
Fitzgerald v. Barnstable
School Committee
(Continued from page 6)
Moreover, the court concluded that Title
IX’s protections are narrower in some
respects and broader in others than § 1983.
For instance, “Title IX reaches institutions
and programs that receive federal funds,
which may include nonpublic institutions,
but it has consistently been interpreted as
not authorizing suit against school officials,
teachers and other individuals.” 9
The court found that the Title IX statutory schemes and those existing under the
Constitution were distinct. Title IX
exempts from its restrictions several activities, such as discrimination in admissions,
military service schools and single-sex
public colleges, which would be subject to
Equal Protection challenges enforceable
under § 1983. The standards of proof are
also not the same under Title IX and §
1983. On the one hand, a Title IX plaintiff
must establish that a school district administrator acted with deliberate indifference to
the harassment. A § 1983 plaintiff, on the
other hand, must show that the harassment
was the result of municipal custom, policy,
or practice.
The court thus held that Title IX was not
meant to be an exclusive mechanism for
addressing gender discrimination in
schools, or as a substitute for § 1983 suits
as a means of enforcing constitutional
rights. (“This conclusion is consistent with
THE
More work than you can get to?
Title IX’s context and history”).10
Conclusion
In the wake of Fitzgerald, it is now clear
that plaintiffs may pursue parallel and concurrent claims of discrimination pursuant to
Title IX and § 1983. Because Section 1983
permits plaintiffs to seek broader remedies
including claims against individual school
officials, it seems likely to become the remedy of choice for plaintiffs claiming discrimination in schools.
Note: Christopher M. Gatto is an
Assistant County Attorney assigned to the
General Litigation Bureau of the Suffolk
County Attorney’s Office, where he concentrates in litigation in state and federal
courts.
1 Fitzgerald v. Barnstable School Committee,
555 U.S. ____, 129 S.Ct. 788 (2009).
2 See Fitzgerald v. Barnstable School
Committee, 504 F.3d 165 (1st Cir. 2007).
3 Id. at 171.
4 Id.
5 Id. at 174.
6 Id. at 179.
7 See Fitzgerald v. Barnstable School
Committee, 128 S.Ct. 2903 (U.S. Jun. 09, 2008) (NO.
07-1125) (mem.).
8 See Fitzgerald, supra note 1, at 796.
9 Id.
10 Id. at 797.
Law Of f ice
OF
Not enough hours in the day?
CHRIS MCDONOUGH
Let me help you increase your profits
and get that work off your desk.
DISCIPLINARY MATTERS • ETHICS OPINIONS
•Served as Assistant Counsel to the Appellate Division Grievance
Committee for the Tenth Judicial District for 13 years.
•Practice concentrated on all matters related to the practice
of law.
•Adjunct Professor of Professional Responsibility.
•Noted author and CLE instructor on practice management and
professional ethics.
•Executive Committee member for the Nassau County Bar
Association Committee on Professional Ethics.
•Offices in Suffolk, Nassau and Manhattan.
Call today for top-quality research,
writing, & litigation support.
GAIL M. BLASIE, ESQ.
Licensed in NY and CA
(516) 457-9169
Main office
1134 Lake Shore Drive, Massapequa Park, NY 11762 www.blasielaw.com
115 Broadhollow Road
Suite 250
Melville, New York 11747
631- 673 - 6670
www.newyorkethicslawyer.com
11
SAVE THE DATE
Installation Dinner and Judiciary Night
Thursday Evening, June 4, 2009
Oheka Castle
6:00 p.m.
For Information Contact: Ilene S. Cooper (516) 227-0736
Jane La Cova (631) 234-5511
Thank you to Our Generous Sponsors and Underwriters
Bob Dennis & Roseann Keiles/Long Term Care Planners;
Steve Ellis/Prudential Long Term Care
Citi Private Bank
Colleen West
Farrell Fritz, P.C.
First American Title Insurance
Company of New York
Hofstra University School of Law
Spizz & Cooper, LLP
The Kalikow Group
Twomey, Latham, Shea, Kelly,
Dubin & Quartararo, LLP
12
TRUSTS AND ESTATES
Major Revisions to New York Power of Attorney Law
_______________
By Saul Elnadav
Governor Paterson signed a major revision of the New York Power of Attorney
law (Article 15 of the General Obligations
Law) January 27, 2009. The amendments
will take effect on September 1, 2009, but
will not affect the validity of any Power of
Attorney (POA) executed prior to
September 1, 2009.
As a result of the amendments, New
York’s three statutory short forms are now
one. Previously, Article 15 provided for a
Durable General POA (which remains
effective in situations of disability or
incompetence
of
the
Principal),
Nondurable General POA (which ceases
to be effective if the Principal becomes
disabled), and a Durable General POA
Effective at a Future Time, otherwise
known as a “Springing POA” (ineffective
until some specified contingency, typically disability or incompetence of the
Principal). The amended Article 15 still
allows a Principal to grant durable, nondurable or springing powers, but only provides for single Statutory Short Form.
Unless stated specifically in the
Modifications section that the POA is
nondurable, it will be regarded as durable.
Section 5-1501B(3)(b) also provides that
a POA may specify a future date or contingency upon which it will then take
effect. Presumably, this is done in the
Modifications section as well.
POA arrangements are useful and popular estate planning tools. A Durable POA
is particularly effective, allowing an agent
to continue to act for an incapacitated
Principal who can no longer make decisions or even revoke the agent’s authorization to act. Granting broad powers
allows for the continued management of
the incapacitated person’s finances, avoid-
ing the time and expense of a
incompetent.
guardianship proceeding.
The new short form provides
With broad powers comes a
for the designation of a monitor
risk of abuse, as illustrated by
who, pursuant to ' 5-1509, has
In the Matter of Ferrara, 7
the authority to compel the
NY3d 244 (2006). In that case,
Agent to provide a record of all
George Ferrara signed a POA
transactions entered into by the
form authorizing the attorneysagent on behalf of the Principal,
in-fact, his nephews, to make
to request and receive such
unlimited gifts to themselves.
records held by third parties, and
George Ferrara died three
to request and receive a copy of
Saul Elnadav
weeks later. In the meantime,
the POA. The Sponsor’s Memo
one of the attorneys-in-fact transferred
explains this as a safeguard against abuse
approximately $820,000.00 to himself.
when the Principal is incapacitated.
Reviewing the statutory language and the
Previously, a Principal could grant the
legislative history, the Court of Appeals
agent the power to make gifts to a spouse,
held that an attorney-in-fact must act in
children, descendants and parents up to
the Principal’s best interest, and further
$10,000.00 per year, and could also allow
stated that courts have historically placed
for gifts in excess of the annual exclusion
‘fiduciary duties’ on an attorney-in-fact,
amount. While the Principal may still
and thus, regardless of statutory construcgrant these powers, he or she cannot
tion, an attorney-in-fact has a duty to act
authorize the Agent to make “major gifts”
in the Principal’s best interest.
in the body of the POA form, even as a
It appears that the statutory amendspecial instruction. “Major gifts” are
ments and revised short form is an attempt
defined as gifts to any individual or orgato codify the fiduciary obligations, pronization, which in the aggregate exceed
vide notification to the Principal and the
$500 per year. If the Principal intends to
agent of such obligations, and head-off
grant the power to make gifts, a Major
potential abuse.
Gifts Rider must be annexed and executed
Indeed, the amendments emphasize the
simultaneously with the POA. Unlike the
agent’s responsibilities and obligations.
POA, which must only be acknowledged,
Section 5-1505 clarifies that the agent is a
the Major Gifts Rider must be executed in
fiduciary, and the statutory short form,
the same manner as a Will. The Sponsors’
now in GOL ' 5-1513, advises the agent of
Memo explains that this requirement is
the obligation to act in the Principal’s best
designed to advise the Principal of the
interest, avoid conflicts, keep property
great significance of the gifting powers,
separate and distinct, maintain records of
and to ensure an informed decision, espeall transactions, and disclose his or her
cially where the agent is authorized to
identity as an agent when acting on the
make gifts to him or herself.
Principal’s behalf. The POA is not valid
Section 5-1514 contains a Statutory
until the agent signs the form to acknowlMajor Gifts Rider (SMGR). By default,
edge the appointment, which can be done
the authority to make major gifts is limitat any time after the Principal signs the
ed to gifts to the Principal’s spouse, chilform, even after the Principal becomes
dren and descendants, and parents,
excluding the agent. For all permissible
donees other than the Principal’s spouse,
the default limit is the federal gift tax
exclusion amount ($13,000 in 2009;
$26,000 for married couples). However,
the SMGR may be modified to allow for
gifts in excess of the exclusion amount or
to other gift recipients. A Principal may
also authorize the agent to make gifts to
them.
In order to encourage financial institutions to accept POAs, ' 5-1510 now provides for a special proceeding for a court
order compelling a third party to accept
the POA. Also, unlike the prior statute,
which only required banks, credit unions,
pension funds, and retirement systems to
accept the statutory short form POA, the
new law requires all third parties to accept
the statutory short form unless there is reasonable cause not to.
Practitioners who use non-statutory
POAs should take note that certain statutory requirements under ' 5-1501B will
now apply to all Powers of Attorney executed in New York, including the inclusion of the “Caution to Principal” and
“Important Information to the Agent”
contained in the statutory short form.
Note: Saul Elnadav is an associate at
Vishnick McGovern Milizio LLP concentrating in Surrogate’s Court proceedings,
estate planning and estate administration.
Mr. Elnadav received his Juris Doctor
from Brooklyn Law School in 2005. He
graduated cum laude from Brooklyn
College (CUNY) in 2002 and is a member
of Phi Beta Kappa. Mr. Elnadav is a member of the New York State Bar Association
and the Nassau County Bar Association.
He is admitted to practice law in the State
of New York. He can be contacted at,
[email protected]
FUTURE LAWYERS FORUM
NCAA Tournament - The Jaywalking of Gambling
__________________
By Andrew VanSingel
The NCAA College Basketball Tournament to some, it’s the most wonderful
time of the year. 65 college teams participate in a month-long, single-elimination
tournament, all vying for the chance of
being the very best in college basketball.
Everyone gets in on the action, even
President Obama, who was featured on
ESPN last month giving his two cents
about the tournament. It truly is “March
Madness” as it is colloquially referred.
But the real madness is the amount of
money that is wagered on the tournament
every year, both legally and illegally.
Some sources predict that the amount that
will be wagered this year will be close to
$2.5 billion dollars, of which approximately three percent will be wagered legally.
And they said we are in a recession.
It is no surprise that so much money is
wagered every year, given the fact that
almost every office participates in some
form of gambling, most commonly, in the
form of “brackets,” a process where you
predict the outcome of the games; in turn
your life has new meaning for a month.
People who have never even
bet on Villanova. Cracking down
watched a basketball game in
would simply pull resources from
their life are quick to throw down
investigating legitimate crimes
five dollars hoping to turn a quick
that actually hurt people.
profit. I distinctly remember
Although inter-office gambling
working at a now failed mortgage
may be like jaywalking as the title
company (imagine that), and witsuggests, it is rather ironic that
nessed firsthand the complete
many individuals entrusted with
turnaround in morale during the
upholding and defending the law,
late weeks of March while the Andrew VanSingel such as judges, lawyers and law
tournament was taking place.
enforcement ritualistically fill out
Sure, the boss’ claim that inter-office gamtheir brackets every year in hopes of makbling may effect productivity might have
ing some scratch, or more importantly,
had merit, but the way I saw it, it was just
earning bragging rights over coworkers.
less time to write bad loans.
You may be even be reading this right now,
Setting aside productivity issues, the
counting your winnings or lamenting how
paramount question lingers are these
Wake Forest’s upset in the second round
brackets (or other forms of inter-office
prevented you from winning big.
gambling) legal? The short answer is no
While it may be less egregious in the
(although the long answer is no, as well).
office world, gambling on the tournament
But despite the illegality, law enforcement
raises serious ethical issues for legal prosimply looks the other way claiming that
fessionals, who are bound by the Rules of
they have bigger fish to fry. But who can
Professional Conduct. In New York, rule
blame them? Sure, there may be some
8.4 sets forth provisions for misconduct,
merit in chasing down high stakes gamand while the rule does not specifically say
bling rings, but there really is no good rea“don’t bet on college basketball games,”
son for busting down cubicle walls, and
one could reasonably assume this type of
cuffing someone for making a five dollar
conduct lawyers should stay away from.
Perhaps the Advisory Committee could
weigh in on the issue of legal professionals
who gamble on sports. Maybe this is simply an answer they don’t want to give, and
one we don’t want to hear as well. The bottom line is clear, this is a double standard
for the legal profession to gamble amongst
their inner circle, and punish others for
doing the same thing on the outside.
My solution is to legalize it, and find a
way to tax it. Let the biggest bookie of
them all, the government, take the house
cut. Taxing the wagers by ten percent
would generate $250 million dollars every
year just for the NCAA Tournament alone.
Add football “squares” into the mix one
could reasonably quadruple the above figure. In a time where the state wants to tax
everything from cans of soda to admission
to a gentleman’s club, this could be a step
in the right direction, and move the budget
out of the red.
Note: Andrew VanSingel is a second year
law student at Touro Law Center, and the
incoming New York State Constitutional Issue
Editor for Touro Law Review. He may be
reached at [email protected]
13
PRO BONO
William M. Gearty: Pro Bono
Attorney Of The Month
Three time winner devoted to indigent
_______________
By Rhoda Selvin
William M. Gearty’s service to the indigent of Suffolk County continues unabated. His unyielding dedication has led the
Pro Bono Project to name him Pro Bono
Attorney of the Month for April 2009.
This is the third time he has been so honored, the first having been in 1990. During
the past six years he has devoted 270 hours
to 24 bankruptcy cases, including four that
are still open. In all that time he has never
been without a PBP case.
In one case that was especially touching,
he represented a woman who had been an
executive in New York City before her
medical problems forced her to stop working. She grew depressed and reclusive. Her
inability to pay her medical bills contributed to her psychological and medical
problems. In her initial request to participate in one of the bi-monthly Bankruptcy
Clinics, her frayed pride showed through.
"It took a while to receive social security disability," she wrote. "So all my savings, my 401K and everything I had is
gone. I have not acquired new debts frivolously; all new debts are medically related.
I use only cash, no credit cards. I wish to
file for Chapter 7. I need to have a fresh
start. I will never be completely healthy
again, but I’m doing the best I can."
At first her case went slowly, because
she did not return the financial information
package and retainer agreement Mr.
Gearty had given to her. When called, she
indicated she was reluctant to file a
Chapter 7 case until her medical issues
were resolved and the costs determined, so
that if anticipated medical insurance did
not cover these expenses, the charges
would be included in her bankruptcy case.
At last he explained in a letter that, until
the petition is filed, her creditors could
legally take any step to collect the debt
(including foreclosure, repossession, garnishment, or lawsuit), but assured her that
the bankruptcy code would protect her
against creditors taking any such action.
She then completed the necessary papers.
He proceeded with her case, working with
her for nearly twenty-six hours.
Mr. Gearty found this case especially
satisfying saying, "The bankruptcy lifted
her out of her depression."
While a senior at Catholic University in
Washington, Mr. Gearty was a White
House intern. After graduation in 1978 he
continued at the White House for a year
and a half as assistant to the staff secretary,
managing the flow of information to and
from the President to the Cabinet
Secretaries. He left that job to work for the
Democratic National Committee on the
DUFFY & POSILLICO AGENCY INC.
Court Bond Specialists
BONDS * BONDS * BONDS * BONDS
Administration • Appeal • Executor • Guardianship
Injunction • Conservator • Lost Instrument
Stay • Mechanic’s Lien • Plaintiff & Defendant’s
Bonds
Serving Attorneys since 1975
Complete Bonding Facilities
IMMEDIATE SERVICE!
1-800-841-8879 FAX: 516-741-6311
1 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts)
NYC Location: 108 Greenwich Street, New York, NY 10006
DIANA C. GIANTURCO
ATTORNEY AT LAW
P.O. BOX 419
LONG BEACH, NY 11561
Tel: 888-805-8282
Fax: 516-706-1275
APPEARANCES IN
QUEENS COUNTY
E-mail: [email protected]
1980 Presidential election, a six-month
assignment, and then entered Albany Law
School of Union University. While there
he participated in the New York State
Assembly Democratic Study Group.
Receiving his J.D. in 1983, he became a
staff attorney and lobbyist for the
Automobile Club of New York. After
nearly eighteen months there and a threeyear stint with the Legal Aid Society in
Hauppauge, he joined a local law firm,
managing the legal needs of individuals
and small businesses for 19 years. In 2006
he opened his own firm in Nesconset,
emphasizing federal bankruptcy litigation,
asset protection, military disciplinary proceedings, and maritime personal injury.
The latter two specialties relate to Mr.
Gearty's long association with the United
States Coast Guard. For many years a
member of the Coast Guard Auxiliary, he
now has an appointment with the Coast
Guard itself, specifically the Coast Guard
Academy. For the last five years he has run
a two-week summer program for high
school juniors and seniors who may be
interested in attending the academy. He
supervises academy cadets who work with
the young students. 500 young people are
currently in the program, including one
from the Marshall Islands. He also continues his work with the auxiliary, which has
William M. Gearty
included search and rescue missions relating to the TWA Flight 800 crash and the
9/11 terrorist attack.
The last time Mr. Gearty, who is a member of the Suffolk County Bar Association,
was Pro Bono Attorney of the Month he
was a manager and coach in Little League.
Now that his children have outgrown Little
League, his offspring-related activity is
helping his youngest son Alexander's law
club in Comsewogue High School. His
two older children are in college. Brianna
is a senior at St. Joseph's College, and Ian
is a freshman at Suffolk County
Community College.
William M. Gearty's long, constant,
empathetic representation of indigent
clients in Suffolk County makes him an
ideal Pro Bono Attorney of the Month. The
Pro Bono Project is pleased to bring his
volunteer work to the attention of the
SCBA by honoring him once again.
14
It Wasn’t Matrimonial Monday,
It Was Prostate Thursday
Photo courtesy of Arthur Shulman
Dr. David B. Samadi, Chief of Robotics and Minimally Invasive Surgery.
Hon. William Rebolini, left, joined Dr. David B. Samadi, Vincent G. Berger, Jr., and Louis C. England,
Past SCBA President.
__________________________
By Justice William B. Rebolini
The Bar Association long known for its
academic programs, including its Monday
evening matrimonial updates, ventured
into a significant men’s health issue on
Thursday night April 2 when it hosted a
seminar on prostate health information.
The program featured keynote speaker Dr.
David B. Samadi, Chief of Robotics and
Minimally Invasive Surgery at the Mount
Sinai Medical Center of New York City.
The program hosted by Supreme Court
Justice William B. Rebolini and coordinated by SCBA Past President Lou
England, and attorneys Vincent Berger
and Matthew Heckman, all prostate cancer survivors. They shared their experiences with an audience of attorneys and
judges that included a few women. The
scheduled one and a half hour program
ran two hours because of the interest of
the members who stayed to ask numerous questions of the surgeon after his
presentation.
Dr. Samadi, who has performed over
1700 robotic laparoscopic prostate surgeries, performed his 850th at the Mount
Sinai Medical Center on the day he
addressed the bar. He emphasized the
need for PSA tests for men despite recent
contradictory studies. He stated the studies were inconclusive, not based on the
lifestyles of American men and did not
extend long enough in time to consider
the true implications on the quality of life
and duration of a man’s life. He also
stressed the importance for men with a
family history and men of AfricanAmerican descent to begin testing at age
40, with other men several years later. He
suggested that if men were to stop testing
as a result of recent studies, the result
would be a health issue of catastrophic
proportions.
Dr. Samadi, who is a board certified
urologist, and a specialist in the diagnosis
Past SCBA President John L. Juliano, left, current SCBA President A firefighter speaks about a cancer support network for firefighters
James R. Winkler, Fred Scheinfeld, Rick Stern, and standing on the and their family members.
left side, Dan Tambasco.
2008 facts on Prostate Cancer:
Incidence: 186,320
Death Rate: 28,660
2nd cause of cancer among men
1-in-6 lifetime probability
30% of all new male cancer cases
11% of all male cancer deaths
Before the era of PSA testing, advanced
and metastatic prostate cancer was more common.
Who should be screened?
Start at age 40
Males with family history – father, grandfather, brother, etc.
African-Americans have a higher incidence
of prostate cancer
Start at age 50
All other males
How is it diagnosed?
Physician sends a blood test (PSA) and performs
a digital rectal exam (DRE)
and treatment of urologic diseases, kidney
cancer, bladder cancer and prostate cancer
performs surgery using a robot. He began
using the Da Vinci Robot after having
been trained in traditional open surgery
If either is abnormal, the patient is referred to a urologist who
performs a prostate biopsy
What is an abnormal PSA?
PSA cut-off of 4 is not 100% reliable
PSA velocity- a measure of how fast the PSA
is changing over time
--0.75 per year in men less that 50 years
--0.3-0.5 per year in men over 50 years
PSA density- takes into account the size of a man’s prostate
Organ-Confined Cancer Treatment Options:
Based on the stage of the cancer, three major
options to consider:
Active surveillance
Radiation
Surgery (recommends robotic prostatectomy
performed by surgeon experienced in specific
procedure and traditional surgery)
and laparoscopic surgery. Some of the
evening’s program coordinators had successfully undergone robotic surgery by
Dr. Samadi and shared their experiences.
All were happy to announce they remain
cancer free and lead a life like most
healthy males their age.
Dr . Samadi’s discussion was highlighted by a power point presentation which
included bar graphs diagrams and photos.
15
FREEZE FRAME
Hon. Gigi A. Spelman and Governor Madeleine M. Kunin.
The Suffolk County Women’s Bar Association held its 25th
Anniversary Gala recently at the Watermill. The evening that
was well attended, included welcoming remarks from
Presiding Justice of the Appellate Division, Second Judicial
Dept. A. Gail Prudenti and further remarks from the keynote
speaker the Honorable Madeleine M. Kunin, Ambassador
and former Governor of Vermont and the author of “Pearls,
Politics and Power.” SCBA Executive Jane LaCova, center, an
honorary member of the Women’s Bar was recognized for her
hard work and given a special gift. Joining her were, Eileen
Ryan, Hon. Hertha Trotto (87-88); Valerie Manzo (84-85);
Hon. Anne F. Mead; SCWBA President Barbara Nieroda (0809); Pamela Greene; Hon. Gigi A. Spelman (99-2000); Hon.
Madeleine M. Kunin; Ambassador and former Governor of
Vermont; Joan McNichol; Hon. Marion McNulty; Linda
Marrone; and Margery Weinroth.
16
RESTAURANT REVIEW
Mill Pond House Hits Where The Kitchen Misses
Sumptuous dining in Centerport
__________________
By Dennis R. Chase
Although prior reviews of this restaurant described the views from within as
unbeatable and spectacular, we truly
were unprepared for the elegance that is
the Mill Pond House located at 437 East
Main Street in Centerport. Upon entering
the candlelit dining room, one is immediately whisked away to that radiant river-
“
Mill Pond’s menu offers
something for everyone
including steaks, seafood,
and a raw bar, and
seemingly does all
this to perfection.
”
front palace, La Rive, located inside the
InterContinental Amstel hotel in
Amsterdam. For restaurant snobs, La Rive
is Michelin rated. The wonderfully
romantic views of Mill Pond seriously
rival that of the Amstel River. But one
should not define their dining experience
merely upon the amazing view, the splendidly furnished surroundings, the knowledgeable, friendly, and efficient staff, but
Mill Pond offers all of these important
attributes and more exquisitely more.
Our dining experience got off to a bit of
a rocky start, but I’ll choose to
of this wonderful introduction
blame the very minor inconveto our meal.
nience by our waiter’s quite
Mill Pond’s menu offers
understandable distraction. I was
something for everyone includdining with two stunningly beautiing steaks, seafood, and a raw
ful women. Upon requesting the
bar, and seemingly does all this
availability of single malt scotchto perfection if our experience
es, I was informed there was
was typical fare based upon
Glenlivet available. Only upon
other reviews including The
further inquiry, however, was I
New York Times, Newsday, and
Dennis R. Chase
provided with the restaurant’s
Zagat. Apparently, we are not
fairly extensive menu of fine single malts
alone in enjoying the fabulous dining
from which to make my selection. Happy
experience.
to see an 18 year old Glenmorangie availFrom the raw bar, a fellow diner found
able, I placed my order for same, straight
the sushi, more specifically the Volcano
up. My first selection, however, arrived on
Roll comprised of tuna, yellow tail and
the rocks, but was quickly replaced upon
salmon with cucumber and kabayaki, and
request. This was the only misstep in an
topped with crunchy panko to be fresh,
otherwise extraordinary dining experience.
pristine, delicately cut, and served at the
As our cocktails arrived, so did a basket
ideal temperature and texture. The requestof warm, freshly baked, thinly sliced,
ed exclusion of the hot sauce was “no
crusty French bread served with rich,
problem.” The jumbo shrimp cocktail may
delicious, creamy butter. Butter is just
be the finest I’ve ever enjoyed, again each
butter right? Not necessarily. Although I
of these tremendous shrimp served impecgenuinely wanted to ask the staff about
cably fresh, wonderfully cold, devoutly
their butter (and if we could perhaps take
crunchy and, of course served with a freshsome home), my fellow diners cajoled me
ly made horseradish/tomato based cocktail
(and rightfully so, in retrospect) not to do
sauce that was just this side of heaven. The
so. I’d like to believe the butter served at
Cheese Plate consisting of Pecorino,
Mill Pond is the Elle and Vire brand
Sardinia, Asiago, Vicenza, Foglie de
imported from France or an equally
Noce, drizzled with balsamic vinegar and
splendid Krowka Maslo Wiejskie brand
served with glazed walnuts, strawberries,
from Lieberman Dairy (imported all the
and apple slices impressed us all.
way from Pennsylvania) a butter, that is,
Entrees were very well portioned,
tasting so amazingly sweet and fresh, it’s
expertly prepared, and, most importantly,
impossible to not partake in another slice
wonderful tasting. The Parpardella
Bolognese was so well portioned - we
fought for the leftovers the next day at
lunch. The fresh, very broad fettuccine (the
name derives from the verb “pappare”
meaning to gobble up) was topped with a
rich veal/pork tomato based sauce simmered (seemingly) for hours with a touch
of cream, and delicately seasoned with
rosemary. It left no one disappointed. The
Classic Surf & Turf matched an extremely
generous (10 oz.), perfectly tender, sweet
Brazilian lobster tail with an equally tantalizing, melt in your mouth, well portioned
(10 oz.) filet mignon of prime beef. One
should be able to cut a good filet with nothing more than a fork, and this evening, we
never went to the knife. This filet rivaled
those filets found at only the best steak
houses in New York, yes, including Peter
Luger’s . . . in Brooklyn. The Hash Browns
were golden brown with finely minced
onions, rich and buttery with a perfectly
even consistency rarely achieved in this traditional side dish. While the Creamed
TRUSTS AND ESTATES UPDATE
______________________
By Ilene Shewryn Cooper
Deed Declared Invalid
In Bryant v. Bryant, the Appellate
Division, First Department, unanimously
affirmed a Decree of the Surrogate’s
Court, Bronx County (Holzman, S.),
which, after a non-jury trial, declared a
deed null and void. The court found that
the plaintiff had demonstrated by clear and
convincing evidence that the deed conveying the decedent’s interest in the subject
property to defendant was a forgery.
Plaintiff’s forensic expert presented
detailed testimony regarding the discrepancy between the signature on the deed
and those on the exemplars in evidence.
Moreover, there was additional documentary evidence and testimony indicating that
the deed was not properly executed,
acknowledged and delivered. The court
refused to disturb the Surrogate’s credibility determinations.
Bryant v. Bryant, 2009 NY Slip Op
00133, decided January 15, 2009 (App.
Div. 1st Dept.)
Issuance of Temporary Letters of
Administration
Reversed/Preliminary Executor
Found Eligible to Serve
In a probate proceeding, the petitioner
appealed from an Order of the Surrogate’s
Court, New York County (Roth, S.), which
denied the application of petitioner and the
two other nominated co-executors under
the propounded will for preliminary letters
testamentary, and instead granted
Accordingly, the Order of the
estate, to set aside a deed of real property
temporary letters of administraSurrogate’s Court, insofar as
given by the decedent to her son, the
tion to the Bank of New York.
appealed from, was reversed, the
defendant. The decedent and the defenThe court found that there was
letters of temporary administradant continued to live at the subject
no viable basis for the Surrogate’s
tion issued to the Bank of New
premises until the decedent’s death, durCourt to deny preliminary letters
York was vacated, and petitioning which time the decedent paid the
to the nominated executor, even
er’s application for preliminary
taxes on the property. The decedent did
though it had the discretion to do
letters testamentary was granted.
not record the deed reflecting the transfer
so under circumstances where
Matter of Lurie, 2009 NY
allegedly because she was concerned that
process has not yet issued. While
Slip Op 00446, decided
her daughters would create trouble if she
the distant cousin of the decedent Ilene S. Cooper January 29, 2009 (App. Div.
learned that the property had been transremained to be served, there was
1st Dept.)
ferred to the defendant. Moreover, the
nothing in the record which indirecord revealed that the decedent executcated that this individual had any informaed the deed in the presence of the defenGift of Real Property Sustained
tion that would impact upon the adminisdant and her attorney, and that upon doing
In Bader v. Digney, appeal was taken
tration of the decedent’s estate. Further,
so, it was handed to the defendant at the
from an Order of the Supreme Court,
the court concluded that the possibility that
decedent’s direction, and accepted by the
Onondaga County (Paris, J.), which, inter
the propounded will could be contested did
defendant.
alia, denied the defendant’s motion for
not militate against appointing the named
Based upon the foregoing, the Appellate
summary judgment dismissing the comexecutor to serve during the pendency of
Division concluded that defendant had
plaint.
the probate proceeding.
established an inter vivos gift had been
The action was commenced by the
As the nominated executor, the petitionplaintiff, the public administrator of the
er had a prior right to appointment as fiduciary unless declared ineligible. The court
held that there was nothing in the record
that established petitioner was unfit, or
lacked the requisite understanding or qualifications to manage the decedent’s assets.
Petitioner’s business relationship with the
decedent did not constitute such a conflict
as would disqualify him. Finally, the court
Sunday, May 31, 2009 at 2 p.m.
concluded that the Surrogate’s concern
Touro Law Center
that a bond would be required at the
estate’s expense was misplaced, finding
225 Eastview Drive, Central Islip, N.Y.
that under SCPA 1412(5), a bond may be
All are welcome.
required solely upon a finding of “extraordinary circumstances,” and not on the
Judy, Dave & Carol Abrams [email protected];
basis of what the Surrogate determined to
(703-566-3314)
be “problematic facts underlying the propounded instrument.”
Memorial for Judge Arthur J. Abrams
(1925-2009)
17
ADR
Mediation Comes to Suffolk County
Supreme Court’s Commercial Division
____________
By Steve Dely
The Suffolk County Supreme Court
recently unveiled its initiative to introduce
court sponsored mediation in its
Commercial Division. The program, to be
fully developed and implemented over the
coming months, contemplates court credentialed mediators providing mediation
services to acquiescing litigants and their
counsel in court selected cases.
On February 4, 2009 an informational
session, co-sponsored by the Court’s
Commercial Division and our own Suffolk
County Bar Association, was held for
interested attorneys including those hoping
to serve as mediators. Comprising the
Panel was Hon. Emily Pines, Justice of the
Suffolk County Supreme CourtCommercial Division; Jeremy R.
Feinberg, Esq. Statewide Special Counsel
for the Commercial Division; and Daniel
M. Weitz, Esq., Deputy Director of the
Division of Court Operations and
Statewide Coordinator of the Office of
Alternative Dispute Resolution and Court
Improvement Programs for the Unified
Court System. Also present was Kathryn
Coward, Esq. the Commercial Division’s
Principal Court Attorney/Special Referee.
The Great Room of our Bar Association
was packed and heard the Panel enthusiastically discuss their aspirations and expec-
tations for a successful program
although a different rate is negoimplementation. A handout was
tiable if the litigants and the
made available which, in part,
mediator agree in writing.
contained highlights and protoBesides the obvious financial
cols of the program; a copy of
implications for the mediators,
Part 146 of the Rules of the Chief
this provision, I believe, helps
Administrative
Judge:
commercial mediation take its
Guidelines for Qualifications and
rightful place among other valued
Training of ADR Neutrals
business services and helps
Serving on Court Rosters; and an
silence the critics who question
Steve Dely
application form for those intendmediation’s worth by suggesting
ing to apply for selection to the Panel of
that if it had real value its services would
Mediators. Still to be issued by the court is
not be “given away.”
the Code of Ethical Standards for
To appreciate the positive impact which
Mediators and the training protocols for
I believe this initiative will have on comapplicants the court deems require further
mercial litigants one need only to have
training to meet the requirements of Part
experienced first hand the vagaries of the
146. The panel made clear that they expect
litigation process. As a former subsidiary
both the court and the litigants to benefit
general counsel and later a senior corporate
from the program. The court will see relief
officer I learned early that sensibly avoidfrom an ever growing calendar through an
ing litigation or seeking resolution early in
increase in settlements and a decrease in
the litigation process nearly always made
protracted litigations, since even where
good business sense. Litigation was very
mediation does not result in settlement;
expensive, took employees away from their
issues in dispute often become better
normal corporate duties, sometimes trigdefined and focused. The litigants will
gered shareholder disclosure requirements
benefit by being able to craft their own
and negative publicity, effectively removed
agreement and avoid the ramifications of a
the management of the dispute from corpocostly and uncertain outcome.
rate control and often resulted in irreparaThe panel also advised that the mediable fracture of an otherwise valuable busition program provides for mediators to be
ness relationship. Additionally, even
compensated at the rate of $300 per hour,
though I knew our in-house lawyers were
after three hours of non-compensable time,
not trained litigators, I always felt discom-
fort relinquishing day-to-day control of a
matter which could have a substantial company impact despite the fact that we
reviewed pleadings, participated in developing case strategy, monitored case status,
attended trials and had great admiration and
respect for the outside trial attorneys we
engaged. I knew, however, that even with a
a former subsidiary
“ Asgeneral
counsel and later
a senior corporate ofﬁcer
I learned early that sensibly avoiding litigation or
seeking resolution early
in the litigation process
nearly always made good
business sense.
”
positive verdict or a negotiated settlement
just before trial, much of the litigation fallout would have already occurred. I certainly would have welcomed a court sponsored
program using proven methodology which
DMV
VTL Practice Tips
_____________________
By David A. Mansfield
Although confronted with a difficult
economic landscape, defense practitioners
must deliver effective representation to
their clients in Vehicle and Traffic Law
matters. The best advice is to stick to the
fundamental principles for a mutually beneficial relationship with your client.
The success of any relationship with the
client begins at the initial interview or telephone consultation. The initial consultation should be the foundation for obtaining
as much information about the client and
their particular situation as well as building
a rapport.
A computerized fact sheet is essential in
order to gather enough personal information about the client, such as telephone
contacts, their occupation and the facts of
the case, as well as the scheduled court
dates. The advantage of a computerized
fact sheet is twofold: is that it will be as
readable six months from now as it is from
the initial interview and the fact sheet can
also be retrieved on your computer in the
event you cannot immediately locate your
client’s file.
Determine what is important to your
client, if it can be reconciled and whether
you can work with them. The old adage
that you should not take on a client you
can’t handle, has never been truer.
Obtain the client’s driving record, by
having them execute an MV15-GC or
General Release for Personal Information
to be in compliance with the
for this purpose.
Driver’s Privacy Protection Act
Should your client’s situation
18 §U.S.C 2721 et seq. which can
involve matters returnable in the
be found on the official New
District Court, you should go to
York State Department of Motor
http://iapps.courts.state.ny.us
Vehicles website at http://www.
/webcrim_attorney/ Login to
nydmv.state.ny.us/forms/
determine the exact court date
mv15dppa.pdf The form is readiand courtroom, nature and date of
ly accessed at http://www.
the charges, number of dockets
nydmv.state.ny.us/forms/mv
outstanding and whether if the
David A. Mansfield
15gc.pdf. Be sure to obtain and
case has been pending for a
make a file copy of the photo identification
while, whether they already have previouswhich was presented.
ly retained counsel.
It’s very advantageous to have an online
Should your client wish to retain your
service with the Department of Motor
services you should always obtain a writVehicles to obtain your client’s license,
ten fee agreement. A written fee agreement
registration, and driving record, which can
is like the saying, “fences make good
allow you to accurately determine your
neighbors”. It will define not only what the
client’s situation. Please note that the
client has retained you to do, but more
Department of Motor Vehicles rigorously
importantly what is not included in the
audits attorneys and all users to insure that
scope of your representation, such as trials
they can demonstrate that they have busior jury trials, appeals, administrative
ness record(s) evidence of a relationship to
appeals or CPLR Article §78 actions for
the client. A simple narrative account of
judicial review.
your professional relationship with the
Where required, a letter of engagement
client will not be acceptable. The MV15for those matters expected to exceed
GC is conclusive proof of authorization to
$3000 in fees should always be executed in
obtain the records necessary to assist your
accordance with the rule Part §1215 of The
client.
Joint Rules of The Appellate Division.
You may supply a redacted credit card
Seek to keep the client informed by telerecord or redacted retainer agreement or
phone and a follow-up correspondence of
copies of Uniform Traffic Tickets or court
the progress in your representation. Should
notices. While you can use your own
the client wish to have correspondence
authorization, it is strongly recommended
sent by email, please ask which email
that you use the form, which the
address they would prefer. Your client
Department of Motor Vehicles has created
may not want you to send an email to their
email address at their place of employment, unless authorized by your client, or
you may prefer not to do so. You will be
unable to know who has access to their
employee account, all things being equal;
the practical and preferred method would
be to use their private email account.
Correspondence via email should be
treated the same as any business level correspondence with a confidentiality notice
and proofread. Do not send anything by
mail or email that you would cringe after
review a week later. I will usually send a
regular business, which will be reviewed,
and then send as an attachment to an email
cover letter a confidentiality notice.
Voice mail also presents challenges for
the defense lawyer. Routine messages such
as adjournments or if indeed the case has
been dismissed are easily left with detail.
Should you have handled the case pursuant to written authorization and your
client was found guilty, it is the better
practice to make a point to leave a message
and discuss the matter in a live telephone
conversation to allow for the opportunity
of give and take. A telephone call should
be returned within 24 hours where practical. Should you be away or unable to do
so, at least have your staff contact the
client to let them know your office will
speak to them as soon as you are able.
The use of correspondence to confirm a
result in court and telephone conversations should cover the exact result, the col(Continued on Page 24)
18
CONSUMER BANKRUPTCY
Attorney Caught Cheating on Credit
Counseling Requirement
$40,000 sanction against local attorney who tried to bypass rules
_________________
By Craig D. Robins
Although attorneys are supposed to be
smart, every now and then, I come across
a practitioner whose stupidity truly baffles me.
This happened last year when a consumer debtor in a pending Chapter 7 bankruptcy proceeding contacted me to take
over his case from his existing attorney. As
it turned out, the attorney tried to pull a fast
one and paid dearly for it by being sanctioned and losing his ability to practice in
the bankruptcy court.
No one likes the credit
counseling requirement
When Congress overhauled the bankruptcy laws in 2005, it imposed a credit
counseling requirement as a prerequisite to
filing a bankruptcy petition. The new law
requires any consumer debtor seeking
bankruptcy relief to take a credit counseling session from a non-profit, courtapproved credit counseling agency prior to
filing.
I previously wrote many columns about
this controversial requirement. The only
reason we have it is because the credit card
and banking industry spent tens of millions
of dollars lobbying for it.
My opinion remains that credit counseling is a waste of consumers’ money and
time, and an unnecessary nuisance.
No one likes credit counseling – not
debtors; not judges; and certainly not
bankruptcy attorneys. By all accounts, the
law is an abysmal failure which is not
doing what the lobbyists led Congress to
believe it would do.
The law is the law
In a number of decisions across the
country, judges have lambasted the
credit counseling requirement,
but have indicated that they are
constrained to enforce it because
it is the law. Accordingly, virtually all bankruptcy courts have
insisted that debtors strictly
comply with their credit counseling statutory obligations.
counseling requirement. The
attorney thought that doing so
would be easier for the client
and easier for himself.
However, this misconduct
was grossly improper. By filing
the credit counseling certificate
at the time the petition was filed,
the attorney made an implicit
representation to the court that
Credit counseling is a pain
Craig D. Robins
the debtor had properly comin the neck for debtors and
plied with the statutory credit counseling
attorneys
requirement.
As a Long Island bankruptcy attorney, I
Upon reviewing the debtor’s facts, I
have to deal with the credit counseling
learned that, for reasons I will not get into
requirement on a daily basis. That means
here, the case never should have been filed
advising clients how to do it; reminding
in the first place. Thus, not only did Mr.
clients to do it, and yelling at clients
Shin mess up with the credit counseling
because they were supposed to do it and
requirement, but he also neglected to adehaven’t done it yet.
quately review the facts. If he had, he
Nevertheless, the law is the law, and
would have ascertained that it was not in
every client must undergo credit counselthe debtor’s best interest to file at the time
ing prior to filing.
that he did.
One attorney tries to
cheat the system
Last year a client came to me after
attending his meeting of creditors in the
Central Islip Bankruptcy Court before
trustee Andrew Thaler. The trustee refused
to close the meeting. The debtor told me
that he thought there were a number of
“irregularities” with his case and that he
did not get good legal advice from his
attorney, E. Peter Shin, Esq.
Apparently, the attorney never told the
debtor about the credit counseling requirement and this came to light at the meeting
of creditors.
It later came out that the attorney tried to
circumvent the credit counseling requirement by having his secretary, instead of
the debtor, engage in the credit counseling
over the internet. Mr. Shin never even
bothered to tell the debtor about the credit
Persuaded the prior
attorney to refund fees
I called and wrote Mr. Shin and told him
that he was in hot water. Although he actually denied any wrongdoing, I persuaded
him to not only refund the debtor’s legal
fee and the court filing fee, but to also pay
the debtor $700 for his inconvenience, and
pay me $1,000 for my legal work in having to undo the mess. This was all before
the U.S. Trustee got involved.
The U.S. Trustee then brought a motion
to dismiss the bankruptcy case for various
reasons, and also sought my cooperation,
as the debtor’s new attorney, to have the
debtor help the U.S. Trustee with its investigation of Mr. Shin.
Since I decided that it was actually in the
debtor’s best interest to have his case dismissed, I filed an affirmation in partial
support of the trustee’s motion. Last
month, the judge dismissed the case.
The U.S. Trustee aggressively pursues debtor’s prior attorney
The U.S. Trustee’s Office took this matter extremely seriously and sought to
intensively investigate Mr. Shin and his
staff. It learned that Mr. Shin circumvented the means test -- not only for this debtor
-- but for a number of other debtors whose
cases he filed in the Eastern District of
New York.
The U.S. Trustee’s case against Mr.
Shin was so strong that Mr. Shin agreed to
a settlement prior to being deposed. The
settlement, which was filed just last
month, called for him to pay a sanction of
$40,000, be suspended from practicing in
the Bankruptcy Court for a year, and take
12 hours of continuing legal education in
bankruptcy law and ethics.
The U.S. Trustee then brought a separate miscellaneous proceeding in U.S.
District Court seeking disciplinary action
against Mr. Shin to enforce the terms of
the stipulation. (In re: E. Peter Shin, Esq.,
1:09-mc-00066-bmc). Last week, Mr.
Shin paid the first installment of $30,000,
with the balance to be paid over the next
six months.
The lesson here is obvious. Whether we
like them or not – we must abide by the
bankruptcy laws.
Note: Craig D. Robins, a regular columnist, is a Long Island bankruptcy lawyer
who has represented thousands of consumer and business clients during the past
20 years. He has offices in Medford,
Commack, Woodbury and Valley Stream.
(516) 496-0800. He can be reached at
[email protected], or visit
his Bankruptcy Website: www.Bankruptcy
CanHelp.com and his Bankruptcy Blog:
www.LongIslandBankruptcyBlog.com.
Independent Judicial Election Qualification Commissions
State of New York Appellate Division Second Judicial Department
PUBLIC NOTICE
A. Gail Prudenti, Presiding Justice
The Independent Judicial Election
Qualification Commissions (IJEQC) for
the Second, Ninth, Tenth, Eleventh and
Thirteenth Judicial Districts, Second
Judicial Department is accepting
Questionnaires for judicial candidates
who wish to have their qualifications
reviewed by a commission in the Second
Judicial Department for public election
to the Supreme Court, County Court,
Surrogate’s Court, Family Court, New
York City Civil Court, District Courts
and City Courts. The voluntary statewide
screening process for evaluating judicial
candidates was established in 2007 by
the New York State Unified Court
System.
Information concerning the IJEQC in
the Second Judicial Department is available at: http://www.courts.state.ny.us
/courts/ad2/IJEQC/IJEQC2.shtml.
Candidates who wish to have a
Commission issue a rating prior to the
September 2009 primary election, are
strongly encourage to submit the
Questionnaire by June 5, 2009 to enable
the Commission to have sufficient time
to review their qualifications. An original and fifteen copies of the
Questionnaire must be submitted to
Vivian McCallum, Director, IJEQC, 335
Adams Street, Suite 2400, Brooklyn, NY
11201. Candidates should carefully
review the rules and procedures to determine if their questions are answered
therein. If further information is
required, candidates may contact Vivian
McCallum at (347) 401-9248 or [email protected].
Candidates should also be aware of the
2009 Mandatory Campaign Ethics
Training Program. The Judicial Ethics
Campaign
Center’s
website
is:
www.nycourts.gov/ip/jcep or call the
Center directly at 1-888-600-5232.
TRIAL COURT VACANCIES IN SUFFOLK COUNTY
IN THE SECOND JUDICIAL DEPARTMENT
(AS OF MARCH 6, 2009)
Judicial
District
Title
Court
10th JD
Supreme Court Justice
Supreme Court
3
10TH JD
District Court Judge
District Court
Suff. County 1st District
6
Vacancies
19
SECOND CIRCUIT BRIEFS
Vessels and Crossings
___________________
By Eugene D. Berman
This month we discuss two decisions
that the United States Court of Appeals
for the Second Circuit issued in March,
2009. The first decision concerns maritime attachments, the second, railway
preemption.
Found by Filing
The remedy of maritime attachments
has existed as a feature of admiralty
jurisprudence for centuries. A maritime
attachment serves “two purposes: to secure
a respondent’s appearance and to assure
satisfaction in case the suit is successful.”
Swift & Co. Packers v. Compania
Colombiana Del Caribe, S.A., 339 U.S.
684, 693,70 S.Ct. 861, 867, 94 L.Ed. 1206
(1950).
The maritime attachment procedure, set
forth in the Supplemental Rules for
Admiralty or Maritime Claims and Asset
Forfeiture
Actions
(“Supplemental
Rules”), Rule B (“Rule B”), provides for
orders of attachment in cases where a
defendant is not found within the federal
court’s judicial district.
If a defendant is not found within the district … a verified complaint may contain a
prayer for process to attach the defendant’s
tangible or intangible personal property
***
The court must review the complaint
and [supporting] affidavit and, if the con-
ditions … appear to exist, enter an
requiring the foreign corporation
order … authorizing process of
– in its application for authority
attachment and garnishment.
– to designate New York’s
Rule B(1)(a) and (B) (emphasis
Secretary of State as its agent for
added).
service of process.
In STX Panocean (UK) Co.,
Thus, finding that the defenLtd. v. Glory Wealth Shipping Pte
dants’ BCL § 1304 applications
Ltd., _ F.3d _, 2009 WL 704722,
for authority satisfied the
Docket No. 08-6131-cv, decided
Seawind test, the Second Circuit
on March 19, 2009 (“STX”), the Eugene D. Berman held that they are “found” within
Second Circuit examined whether
the district for Rule B purposes.
the defendants, although foreign, were
nonetheless found within the district – and
Passing the Grade
therefore not subject to a Rule B attachIn Island Park, LLC v. CSX
ment – when they had previously filed an
Transportation, Inc., _ F.3d _, 2009 WL
application for authority to do business in
585649, Docket No. 07-3125-cv, decided
New York under Business Corporation
on March 4, 2009, Island Park, LLC
Law § 1304. In analyzing the meaning of
(“Island Park”) possessed an easement to
Rule B’s “not found within the district”
use a private rail crossing to cross CSX
language, the Second Circuit looked to its
Transportation, Inc.’s (“CSX”) railroad
prior interpretation of that term as it existtracks that intersected Island Park’s propered in Rule 2 of the former Admiralty
ty. While Island Park used the crossing to
Rules.i In that decision, Seawind
move heavy, slow-moving equipment from
Compania, S. A. v. Crescent Line, Inc., 320
one side of the tracks to its farm’s fields on
F.2d 580, 581-82 (2d Cir. 1963), the
the other, and high-speed passenger trains
Second Circuit had used a two-pronged
on the heavily traveled Hudson Line freinquiry – whether the respondent can be
quently passed through it, the crossing had
found in the district (1) for jurisdiction and
no automated warning system.
(2) for service of process. Id.
After finding that serious safety conWith respect to the Seawind jurisdictioncerns resulted from the crossing’s
al requirement, the Second Circuit in STX
approaches’ substantial grade, a “hump” in
stated that “[i]t is well-settled under New
the crossing, and limited sight distance
York law that registration under § 1304
caused by the track’s curvature, and that
subjects foreign companies to personal
safer alternate access points to Island
jurisdiction in New York.” STX, 2009 WL
Park’s property existed, the New York
704722*4. Further, BCL § 1304(6) satisState Department of Transportation
fies Seawind’s service of process prong by
(“NYSDOT”), pursuant to New York
Railroad Law § 97(3), issued a closure
order directing CSX to remove the crossing surface and install barricades. In
response, Island Park commenced an
action in the Northern District of New
York asserting, among other things, that
the closure order was preempted by the
Interstate
Commerce
Commission
Termination Act of 1995, Pub.L. No. 10488, 109 Stat. 803, codified generally at 49
U.S.C. §§ 10101-16106) (“ICCTA”). The
ICCTA’s preemption provision states that
“the remedies provided under this part
with respect to regulation of rail transportation are exclusive and preempt the
remedies provided under Federal or State
law.” 49 U.S.C. § 10501(b).
The district court determined that federal law preempted the closure order.
Consequently, it permanently enjoined the
NYSDOT from employing Railroad Law
§ 97(3) to order the crossing’s closure, and
permanently enjoined CSX from barricading the crossing as the NYSDOT had
directed.
Since the ICCTA preempts state law
“with respect to regulation of rail transportation,” 49 U.S.C. § 10501(b), the
Second Circuit questioned whether the state
closure order interfered with that regulation.
In doing so, the court recognized that preemption “analysis always begins with the
assumption that the historic police powers
of the States are not to be superseded by the
Federal Act unless that was the clear and
manifest purpose of Congress.” Island
SECRETARY’S REPORT
_________________
By Dennis R. Chase
Membership has its privileges. The
Suffolk County Bar Association is more
than just about delivering informative and
well planned courses at a reasonable price.
The dedication of colleagues brings our
members vital, potentially life-saving
information. In the past, we offered courses in CPR, drivers’ education, and most
recently, an incredibly informative program on prostate cancer.
Since prostate cancer is the second leading cause of death among American men,
with more than 30,000 die from this dreaded disease each year, to say the issue is
topical would be a drastic understatement.
Thanks in large part to the courage of the
program’s coordinators, Vincent C.
Berger, Jr. Louis C. England, and Hon.
William B. Rebolini, who provided their
highly personal accounts of their respective bouts with prostate cancer, the lecture,
led by renown surgeon, David B. Samadi,
Chief of Robotics & Minimally Invasive
Surgery at the Mount Sinai School of
Medicine, was not only fascinating and
informative, but successful as well.
Success in a program such as this cannot
and should not be solely measured by mere
attendance. This program inspired attendees to stay well beyond its conclusion, a
true testament that the program was a success. Dr. Samadi, with an extremely long
commute back to New Jersey, was only
more than happy to stay following the formal presentation to ensure all questions
were answered, even providing personalized contact to those in attendance seeking
more discreet answers to their questions.
Exiting finally to the parking lot,
The DLWP Foundation has raised
many small groups of men could
over $175,000.00 for breast and
be found out by their vehicles
prostate cancer awareness. Very
further discussing the topic.
special thanks to the members of
The program’s coordinators
the Executive Committee, the
brought an important health
members of the judiciary, our
issue to the forefront for our
sponsors, and Suffolk County
members and should be comExecutive, Steve Levy for joining
mended for doing so.
us on this special evening.
Similarly, the SCBA, together Dennis R. Chase
Sheryl Randazzo was again recwith the Women’s Bar
ognized, and rightfully so, for her
Association, North Shore LIJ Health
continued efforts soliciting those not pracSystem, and the Katz Women’s
ticing before the Workers’ Compensation
Hospital/Women’s Health Institute will be
Board to attend this event. If nothing else,
presenting
the
Women’s
Health
the DLWP Dinner is a tremendous opporSymposium on Tuesday, April 24 from
tunity to network with a group of attorneys
5:30 to 9:00 p.m. at the SCBA Bar Center.
other members of the SCBA rarely get to
Again, this is a program so important that
see. I’m sure you’ll find what I already
no member will want to miss it. There will
know, that those attorneys practicing
be five topics open for discussion, includbefore the board are not only fun-loving,
ing hypertension, UV Radiation and Skin
caring, and kind individuals, but some of
Cancer; Diabetes; migraines; and aging
the most dedicated, hard working, profesparents. There is, I’m sure, nary a member
sionals within the legal community.
who is not affected either directly and/or
The SCBA Center will hold its annual
indirectly by these vital health issues. The
meeting on Monday, May 4. This is a percost is only $25 thanks to the generous
fect opportunity for members to hobnob
support of sponsors Monarch Graphics and
with the Hollywood elite. Well, maybe not
Fireside Caterers. The information availthe elite from Hollywood . . . okay, some
able, however, will be priceless. Come join
of the people there may have heard of
us at the Bar Center and enjoy the benefits
Hollywood. Still, this is an excellent
of membership.
opportunity to meet and discuss
A very personal thanks to all those
Hollywood (or anything else, for that matattending this year’s DLWP Dinner beneter) with SCBA leadership. Come by as
fiting 1in9: The Long Island Breast Cancer
well to see the newly refurbished Great
Action Coalition and The Prostate Cancer
Hall freshly painted, new carpeting, and all
Foundation (a beneficiary of the funds
new furniture. Come by to see colleagues
raised by this annual event for the very
recognized for their efforts throughout the
first time). This was the Eighth Annual
past year or, for that matter, some memDinner and raised approximately
bers’ uncanny ability to achieve Honorary
$10,000.00 on this night alone. To date,
Membership status or celebrate their
Golden Anniversary. In last month’s column, I mistakenly mentioned that the cost
of attendance to this star studded gala was
free, and I apologize for the mistake. Look
for the flyers which should be in your
mailbox soon for all the salient details.
Finally, one of the most important tasks
as SCBA Secretary is to cast the single ballot for this years’ slate of Executive
Committee and Board members. This
year’s slate includes President Elect,
Sheryl L. Randazzo; First Vice President,
Matthew E. Pachman; Second Vice
President, Arthur E. Shulman; Treasurer,
Dennis R. Chase; Secretary, William T.
Ferris III; Director, Cheryl F. Mintz;
Director, Lynn Poster-Zimmerman;
Director, Richard L. Stern; Director,
Kerrie P. Stone; and Nominating
Committee members, Derrick J. Robinson;
Rosemarie Tully; and James R. Winkler.
Congratulations to all those nominated.
SAVE THE DATE!!! On Thursday, June
4, 2009, at the magnificent Oheka Castle,
Ilene S. Cooper will be sworn in as the
Association’s next President at what will
surely be a lavish affair.
Note: Dennis Chase is the current
Secretary of the Suffolk County Bar
Association, a frequent contributor of The
Suffolk Lawyer, and a partner with The
ChaseSensale Law Group, L.L.P. The
firm, with offices in Suffolk, Nassau, and
Queens Counties, concentrates their practice in Workers Compensation, Social
Security Disability, Long Term Disability,
Short Term Disability, Disability
Retirement, and Accidental Death and
Dismemberment Benefits.
20
Why Video Game Laws Are Unconstitutional
virtually inflict serious injury upon images
of human beings or characters with substantially human characteristics in a manner
which is especially heinous, cruel, or
depraved in that involves torture or serious
abuse to the victim.”
In R.A.V. v. St. Paul5, the Supreme Court
held that where the state seeks to limit
speech based on the content of that speech
the law is presumptively invalid. Such a law
can only be found to be constitutional if it is
“necessary to serve a compelling state interest and . . . is narrowly tailored to achieve
that end.”
It is not easy for the state to prove that it
has a compelling interest. Court’s have routinely required the state to come forward
with scientific evidence proving that the
games in question cause harm. It is the failure of the state to prove that there is any
causal link between video games and harm
to children which has led to the downfall of
these anti-video game laws.
In support of its act, California relied
heavily on scientific evidence. California
cited a number of scientific studies including a study by Dr. Craig Anderson called
“An update on the effects of playing violent
video games,” a study by Dr. Douglas
Gentile titled “The effects of violent video
game habits on adolescent hostility, aggressive behaviors, and school performance”
and a study by Dr. Jeanne Funk called
“Violence exposure in real-life, video
games, television, movies, and the internet,
is there desensitization?”
The Ninth Circuit completely rejected
California’s scientific evidence and held
that there was no scientific proof that
video games caused harm to children.
The court held:
Most of the studies suffer from significant, admitted flaws in methodology as they
relate to the State’s claimed interest. None
of the research establishes a causal link
between minors playing violent video
games and actual psychological or neurological harm, and inferences to that effect
would not be reasonable. In fact, some of the
studies caution against inferring causation.
Help Is On The Way…
what I want to do here.
It has often been said that we are not
judged by the challenges we face but by
the way we react to those challenges. This
is particularly true for so many lawyers
here in Suffolk County as they face a contraction in their client base and find it difficult to hold on. It is truly time to face the
present challenges head on and take
advantage of the great benefit of our profession…the ability and flexibility to
adjust our practices to the changing needs
of the public and the times.
And help is on the way. Mr. Ostertag
asked the more than 400 members of the
House of Delegates if they knew that the
NYSBA has a web site designed to help
solo and small firm practitioners. Only
about a dozen members raised their hands.
This is, in some ways telling about the
lawyers who participate in the House of
Delegates. But it is indeed a shame that the
efforts of the State Bar Association to help
small firm lawyers to prosper is not even
recognized by the very people who make
the decisions.
The Committee on Solo and Small Firm
Practice has made numerous recommendations to help small firms within the Court
System of New York. But most importantly
it maintains a web site that is comprehensive
and designed to provide needed assistance
to solo and small practitioners. Even in good
times it is easy to become overwhelmed by
the responsibility involved in maintaining a
practice, but in difficult times it is important
to be in control of one’s practice rather than
have it control you. The NYSBA web site
known as the “Solo/Small Firm Resource
Center” is, in fact, a great resource for gaining control of your firm and making it work
for you. It is chock full of both procedural
and substantive advice and many forms are
provided in PDF form that organize your
practice in a way that promises efficiency
and a high degree of professionalism. The
site provides sample intake and other basic
forms and suggests fundamental and practical ways to manage your practice so that it
does not manage you. It also provides document assembly products in DVD format and
free research through “Loislaw.com.” I urge
Condolences….
To the family of Don Perry who passed
away on March 29.
To the family of Adolph Koeppel, real
estate attorney and honorary member of the
SCBA. In addition to his law practice, Mr.
Koeppel was an attorney for the village of
Lake Success (1968-1979), and a member
of the Hofstra University School of Law
faculty (1978-1986).
To Harry Wagner and his family on the
death of his father, Rubin on March 5, 2009.
The court held that there were also less
restrictive ways to achieve the state’s
alleged goal of preventing psychological or
neurological harm. The court noted the
existence of the ESRB and the fact that
gaming systems now come equipped with
built-in parenting controls and concluded
that the state had not shown that these methods were ineffective in controlling minor’s
access to games.
Despite its repeated victories there is little reason for the video game industry to
consider the matter resolved. It is clear that
the courts would be happy to allow antivideo game laws to stand if the proponents
of such laws could show scientific evidence
of causation. The Eight Circuit spells this
out in the final paragraph of its decision
which states:
Whatever our intuitive (dare we say commonsense) feelings regarding the effect that
the extreme violence portrayed in the abovedescribed video games may well have upon
the psychological well-being of minors . . .
the State has not satisfied its evidentiary
burden. The requirement of such a high
level of proof may reflect a refined estrangement from reality, but apply it we must.
Note: Glen P. Warmuth has been working at Stim & Warmuth, P.C. for over 20
years and teaches a number of courses at
Dowling College including Entertainment
& Media Law. He can be contacted at
[email protected].
1 469 F.3d 641 (7th Cir. 2006)
2 413 U.S. 15 (1973)
3 519 F.3d 768, 771 (8th Cir. 2008)
4 http://www.ca9.uscourts.gov/datastore/opinions/2009/02/20/0716620.pdf (9th Cir. 2008)
5 505 U.S. 377 (1992)
Sidney Siben’s Among Us
include “Mamas Don't Let Your Babies
Grow Up To Be Lawyers” and “Party Like
It's 2009.”
New Members…
The Suffolk County Bar Association
extends a warm welcome to its newest
members: Jennifer Assaro, Michael
Avella, Heidi Mia Bernstein, Daniel E.
Cerritos, Edward J. Grossman, Jeffrey
Guttentag, Allison Hickey, Aimeemarie
Loinig, Diane Maltese, Joanna
Nicholson, Daniel C. Ross, Darlene T,
Treston and Connell J. Watters.
The SCBA also welcomes its newest student members and wishes them success
in their progress towards a career in the
Law: Izabela Kropiwnicka and Louis
Palermo.
a visit to the “Solo/Small firm Resource
Center” by anyone needing some guidance
in running their firm. It is an invaluable tool.
As well, I urge our membership to take
advantage of the mentoring program available through our own Bar Association.
Many seasoned lawyers here in Suffolk
have volunteered to be available to help
lawyers who are struggling with practical
advice in their areas of practice. Please contact the Bar Association if you want the
name of an attorney willing to help in your
area of practice.
Soon, under the leadership of our First
Vice President, Sheryl Randazzo, the
Suffolk County Bar Association, in conjunction with Academy of Law, will be presenting a
program designed to address the changing landscape of the small firm practice
here in Suffolk County. This will be an
extraordinary program that will, among
many other things, provide advice to
lawyers looking to change their areas of
practice and address the many and varied
problems faced by our friends who are
struggling in this unprecedented time.
The role of a bar association is, most
importantly, to look after the needs of its
membership. Today that role is highlighted
by the effects of the worst economic climate since the Great Depression. We cannot shirk our responsibility to our brothers
and sisters here in Suffolk County. We are
all in this together and those of us who are
in a position to help must do so.
Vessels and Crossings
Park, 2009 WL 585649*3 (internal quotation marks and brackets omitted). Further,
Congress’ purpose is primarily found in the
statute’s language and the surrounding statutory framework. Id.
In defining “transportation,” the ICCTA
provides that the term “includes a locomotive … property … or equipment of any
kind related to the movement of passengers
or property … by rail … and services related to that movement … of passengers and
property.” 49 USC § 10102(9). In this
regard, and in reversing the district court,
the Second Circuit held that “NYSDOT’s
order closing the rail crossing does not
relate to the movement of passengers or
property … by rail.” Island Park, 2009 WL
585649*5 (emphasis in original, internal
quotation marks and brackets omitted).
In reaching its decision, the Second
Circuit reasoned that the NYSDOT did not
attempt to regulate the tracks or the rail carriers that use them. Rather, the closure
order prevented Island Park from crossing
the tracks at a particular location. “To the
extent there is an impact on rail transportation, it is confined to eliminating the risk of
a collision between a train and one of Island
Park’s vehicles or equipment attempting to
cross the tracks.” Island Park, 2009 WL
585649*6.
The Second Circuit also found that the
Federal Railroad Safety Act (“FRSA”), that
specifically addresses railroad grade crossing safety, 49 USC § 20134, supported its
decision. Under the FRSA, “[a] State may
adopt or continue in force a law, regulation,
or order related to railroad safety … until
the Secretary of Transportation (with
respect to railroad safety matters) … prescribes a regulation or issues an order covering the subject matter of the State requirement. 49 USC § 20106(a)(2). In the Second
Circuit’s view, “[i]n determining whether
Congress intended to pre-empt state regulation of rail crossings, the district court erred
in failing to consider the impact of FRSA.”
Island Park, 2009 WL 585649*8.
Note: Eugene D. Berman is Of Counsel
to DePinto, Nornes & Associates, LLP in
Melville.
1 The Admiralty Rules were rescinded, effective
July 1, 1966, by the Supplemental Rules and by
amendments to the Federal Rules of Civil Procedure
to unify the civil and admiralty procedure. See, the
1966 Advisory Committee Notes concerning the
Supplemental Rules’ adoption.
21
COMMITTEE CORNER
News & Notes From SCBA Committees
Health and Hospital Law
Thomas J. Force, Chair
The January meeting was held on the
26 with approximately six people in
attendance.
The recent developments concerning
the AMA settlement against UHC and
Aetna and NYS Attorney General's
Office's settlement with UHC (regarding
out of network reimbursement) were discussed. Handouts concerning these
important developments were given to the
committee. The structure of the CLE
Course that the committee expects to conduct in May 2009 was also
discussed. There are plans for three hour
evening course, with one hour dedicated
to a speaker from the NYS Attorney
General's Office, Health Bureau, to discuss recent developments including the
United Healthcare settlement regarding
out of network reimbursement. The
remaining two hours will be dedicated to
topics presented by the committee.
The topic will be: "Representing
Clients who are Patients - What to do
when your Client's Medical Bills remain
unpaid?" Each presenter will impart to the
audience an example of a real life situation to help the audience relate to the
issues being discussed.
Additionally, the following topics were
proposed:
- Medical Liens from Third Party
Payors, Government Payors, No Fault
and Workers Compensation
- Appeals of Third Party Insurance and
Government Payor Denials and the
Regulatory Complaint Process
- Balance Billing a Patient Who is Under
a Managed Care Contract - What is
Permissible and What is Not.
- Use of Small Claims Court Against
Insurance Carriers Who Refuse to Pay
Medical Claims; various theories of
recovery.
- Charity Care Policies and
Medicaid/Government Assistance
The committee met on March 24. It
was the fifth meeting of the SCBA
Hospital and with approximately seven
people attending.
There was a discussion regarding the
committee's upcoming CLE program to
be held on May 18th from 6 to 9 p.m.
Those that are presenting at the CLE must
provide the final in final form to Thomas
J. Force, chairman, via email:
(1) Powerpoint slides
(2) Bio of Presenter
(3) Any material for handouts
Additionally, committee members
must provide bios.
There was a discussion on External
Appeals and it was decided that Tom will
include a discussion about this topic in his
presentation at the CLE.
The next meeting is scheduled for May
5th at 6 pm at SCBA.
Supreme Court
Hon. Denise Molia
and Thomas J. Stock, Co-chairs
10th and a discussion was held with the
Suffolk County Administrative Judge H.
Patrick Leis III regarding the current
operation of the court and the allocation
of its judicial resources and personnel in
light of the fiscal crisis. Also discussed
was its effect on the state’s financial
resources. .
Preparations were put in motion for the
committee’s upcoming CLE program on
Summary Jury Trials.
Matrimonial & Family Law
Francine H. Moss
and Kim Brennan Joyce, Co-chairs
The January meeting was held on the
28 with approximately nine people
Real Property
Thomas J. Vicedomini,
and Jeannie Virginia Daal, Co-chairs
LETTERS
New column by
attorney a hit
To the Editor:
I just read Mr. Chase’s review--I loved
it! I am a true foodie and find that
reviewers never tell it as it truly is. I really hope that he does more of these--it was
also nice to read something a bit different
in the Suffolk Lawyer.
Kimberly Schechter, Esq.
The February meeting was held on the
attending. Guest speaker, Jeffrey Horn,
Esq. gave a presentation on how to conduct a jury trial on divorce grounds.
Information was imparted, questions
answered and handouts distributed.
The turn out for our meetings has been
disappointing, despite e-mail reminders
being sent, flyers left on counsel tables in
the matrimonial courtrooms, and discussions had with the Matrimonial Bar
Association of Suffolk County.
Discussions are being had as to how to
improve attendance.
Letters policy
The Suffolk Lawyer welcomes letters, which should be no longer than
300 words and must contain the name
of the writer and phone number for
verification.
Anonymous letters will not be published, but names may be withheld
upon request if the editor deems it
appropriate. Letters should be sent to
[email protected].
SCBA Connects Working Parents
A list serve has been created for Suffolk County Bar Association members who
are working parents and interested in connecting with one another. The idea behind
this most recent member benefit is that many attorneys in Suffolk County, both
male and female, are working parents who face the daily challenges of handling the
significant responsibilities of being an attorney while simultaneously having the
even more significant responsibilities of being a parent. Childcare alternatives, flexible schedules, integrating work and family life effectively, networking within particular time limitations, and career development are just some of the potential topics of discussion for participants.
Ideally, the list serve can provide an opportunity for members to feel connected
to other similarly situated parent-attorneys, which may reduce feelings of stress and
isolation. At the same time, participants can make a true contribution to peers and
colleagues by offering practical suggestions and meaningful assistance based upon
their own experience as attorney-parents.
There is no obligation once you are a member of the list serve – you may stay on
the periphery and observe the members’ exchanges or you can become an active
participant. Either way, the Working Parents List Serve is a member benefit of the
SCBA that you are welcome and encouraged to join. To do so, please send a brief
e-mail expressing your interest to SCBA 1st Vice President Sheryl Randazzo at
[email protected]. Your working parent colleagues are looking forward to
your involvement.
— Randazzo
SCBA Foundations Need
Your Support
The Suffolk County Bar Association is comprised of several foundations. They
include the Pro Bono Foundation, Lawyer Assistance Foundation, Charity
Foundation, Scholarship Foundation and Academy of Law.
These foundations rely on your generosity. Won’t you help us to keep these foundations viable? Please consider making a tax-deductible gift to the foundation of
your choice. For further information, call SCBA headquarters at (631) 234-5511.
22
SUFFOLK ACADEMY OF LAW
OF
THE
SUFFOLK
COUNTY
BAR
ASSOCIATION
5 6 0 W H E E L E R R O A D , H A U P PA U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8
SPRING CLE
The Suffolk Academy of Law, the educational arm of the
Suffolk County Bar Association, provides a comprehensive
curriculum of continuing legal education courses. For the
most part, CLE courses listed here will be presented from
late April through May; a few take place later on in the year.
For information on other courses to be offered during Spring
2009, watch for publicity fliers and see the Academy’s Spring
Catalog and Academy calendar on the SCBA website.
ACCREDITATION FOR MCLE:
The Suffolk Academy of Law has been certified by the New
York State Continuing Legal Education Board as an accredited provider of continuing legal education in the State of
New York. Thus, Academy courses are presumptively
approved as meeting the OCA's MCLE requirements.
NOTES:
Program Locations: Most, but not all, programs are held at the
UPDATES
Jointly Presented with the Nassau Academy
EVIDENCE UPDATE
Thursday, June 11, 2009
Federal and state, civil and criminal: all the latest developments
affecting the collection and presentation of evidence will be presented with style, humor, and incomparable expertise! It’s not to
be missed.
Faculty: Professor Richard Farrell
(Brooklyn Law School // Author Richardson on Evidence)
Time: 5:30 – 8:30 p.m. (Registration from 5:00 p.m.)
Location: Nassau County Bar Center–Mineola
Refreshments: Light supper
MCLE: 2.5 Hours (professional practice)
[Non-Transitional and Transitional]
Coming Soon (Date TBA):
AUTO LIABILITY
(Jonathan Dachs & Professor Michael Hutter)
SEMINARS &
MULTI-PART
PROGRAMS
Afternoon Practice Management Series
GUIDED BOOK DISCUSSION BASED
ON COVEY’S 7 HABITS OF HIGHLY
EFFECTIVE PEOPLE
Built around Stephen Covey’s 1990 publication, this guided
book discussion aims to help lawyers achieve meaning and
effectiveness in their professional and personal lives.
Topics & Dates (Wednesdays)
Habit 7 - Sharpen the saw.....................................April 22, 2009
Conclusion & Recap...............................................May 13, 2009
Discussion Leaders: Sheryl L. Randazzo
(Randazzo & Randazzo // SCBA First Vice President);
Gail Blasie (Academy Officer)
Each Session
MCLE: 1.5 Hours (practice management)
[Transitional/Non-Transitional]
Location: SCBA Center Time: 4:00–5:15 p.m. //
Registration: 3:30 p.m. Refreshments: Afternoon Snacks
INTRODUCTION TO ELDER LAW
Monday, April 20, and Monday, April 27, 2009
This two-part program, presented by an experienced faculty, is
directed toward attorneys with minimal experience in the field of
elder law. Attendees will increase their comfort level in handling
the various aspects of advocacy for older clients facing issues
related to health, capacity, benefits and finances.
Topics & Speakers
PART ONE (April 20)
Ethics & the Elder
Law Consultation ..............................Sheryl L. Randazzo, Esq.
(Randazzo & Randazzo, LLP // SCBA First Vice President)
Guardianships & Capacity .....................Ralph Randazzo, Esq.
(Randazzo & Randazzo, LLP)
Medicare ...............................................George Tilschner, Esq.
(Huntington // SCBA Director; Academy Officer)
Medicaid Planning, General (Basic Rules/
Making Someone Eligible) .....................Ronald S. Lanza, Esq.
N.B. - As per NYS CLE Board regulation, you must attend a CLE program or a specific section of a longer program in its entirety to
receive credit.
SCBA Center; be sure to check listings for locations and times.
Tuition & Registration: Tuition prices listed in the registration
form are for discounted pre-registration. At-door registrations
entail higher fees. You may pre-register for classes by returning the registration coupon with your payment.
Refunds: Refund requests must be received 48 hours in
advance.
Non SCBA Member Attorneys: Tuition prices are discounted for
SCBA members. If you attend a course at non-member
rates and join the Suffolk County Bar Association within 30
days, you may apply the tuition differential you paid to your
SCBA membership dues.
(Futterman & Lanza, LLP)
PART TWO (April 27)
Advocacy for Home Care Services.......Jeannette Grabie, Esq.
(Grabie & Grabie, LLP)
Nursing Home Placement and
Medicaid Applications ......................................Kim Smith, Esq.
(Burner, Smith & Associates, LLP)
Trusts in Elder Law..........................Richard A. Weinblatt, Esq.
(Haley, Weinblatt & Calcagni, LLP // SCBA Director)
Implementation of the Elder Law
Plan & Ethics............................................Robert Howard, Esq.
(Hampton Bays // Academy Officer)
Each Night
MCLE: 3 Hours (2.5 Professional Practice;.5 Ethics)
Time: 6:00–9:00 p.m. (Registration from 5:30)
Location: SCBA Center Refreshments: Light supper
BUYING & SELLING A BUSINESS
Wednesday, April 22, 2009
A bargain has been struck; now what needs to be done? This
succinct program, featuring two highly experienced presenters,
will cover key aspects of buying and selling a business:
Documents Needed to
Facilitate the Transaction .........................Thomas Killeen, Esq.
(Farrell Fritz, PC)
Valuation and Tax Issues...........................Arnold Haskell, CPA
(Holtz Rubenstein Reminick LLP)
MCLE: 3 Hours (Ethics) [Non-Transitional and Transitional]
FORECLOSURE SETTLEMENT
CONFERENCES IN SUFFOLK COUNTY
Americans with Disabilities Act: If you plan to attend a program
and need assistance related to a disability provided for
under the ADA,, please let us know.
Disclaimer: Speakers and topics are subject to change without notice. The Suffolk Academy of Law is not liable for
errors or omissions in this publicity information.
Tax-Deductible Support for CLE: Tuition does not fully support
the Academy's educational program. As a 501©)(3) organization, the Academy can accept your tax deductible donation. Please take a moment, when registering, to add a contribution to your tuition payment.
Financial Aid: For information on needs-based scholarships,
payment plans, or volunteer service in lieu of tuition, please
call the Academy at 631-233-5588.
INQUIRIES: 631-234-5588.
MCLE: 3 Hours (Professional Practice)
HANDLING A LANDLORDTENANT DISPUTE
Thursday, April 30, 2009
This seminar will review the important aspects of landlord-tenant relationships, the prevailing statutory and case law, and the
elements of common disputes. A “mock trial” will be included,
and you will gain tips for representing both landlords and tenants. Topics include: landlords’ rights; tenants’ rights; lease
agreements and “fine print”; repairs, privacy and lease violations; non-payment of rent; security deposits; evictions and eviction notices; negotiation and litigation strategies, and more.
Faculty: Hon. James Flanagan (Suffolk District Court); Stanley
J. Somer, Esq. (Somer & Heller, LLP); Victor Ambrose, Esq.
(Nassau-Suffolk Law Services)
Coordinator: Stephen Beyer, Esq. (Academy Advisor)
On the East End
HISTORIC ESTATE TAX SAVINGS
OPPORTUNITIES: Taking Advantage
of the Down Market
Under recently passed laws, court intervention is mandated in
many (sub-prime, high-cost, etc.) potential foreclosures.
Homeowners may participate in a settlement conference and
attempt to work out a modification or other deal that allows
them to keep their homes. Too often, however, such homeowners do not have attorneys to advise and negotiate for them. This
seminar seeks to train attorneys to represent homeowners in
settlement conferences on a pro bono basis. Representation will
not extend beyond the conference itself. The program is presented tuition-free for all; those who volunteer to represent
defendants at settlement conferences will receive four MCLE
credits.
Faculty: Hon. Jeffrey Spinner (Foreclosure Part–Suffolk);
Eric Sackstein, Esq. (Port Jefferson); Michael Wigutow, Esq.
(Nassau-Suffolk Law Services); Others TBA
Planning Committee: Cheryl Mintz (Coordinator); Barry M.
Smolowitz; Alan Todd Costell; Eric Sackstein
MCLE: 4 Hours (3 Skills; 1 Professional Practice)
A skilled and prestigious faculty will show you how to take
advantage of current times and conditions to improve your
client’s estate plan. Instruction promises to move from Estate
Planning 101 (basics) to Estate Planning 201 (basic lifetime gift
planning) to Estate Planning 301 (sophisticated lifetime gift
planning). A fabulous reception, courtesy of the program sponsor, follows the formal program.
Topics & Speakers
Taking Advantage of the Down Market.......Scott S. Small, Esq.
(BNY Mellon Wealth Management)
Estate Planning for
Non-Traditional Families ...................Edward B. Pennfield, Esq.
(BNY Mellon Wealth Management)
Top 15 Drafting Blunders...............David J. DePinto, Esq., CPA
(DePinto Nornes & Associates, LLP)
Program Coordinator: Eileen Coen Cacioppo, Esq.
(Academy Advisor)
Program Sponsor: Bank of New York Mellon
Location: Four Seasons Center
(235A North Sea Road, Southampton)
Refreshments: Reception at 7:00 p.m.
Presented by the SCBA ADR Committee
Lunch ‘n Learn
NUTS & BOLTS OF A MATRIMONIAL
MEDIATION BUSINESS
FINANCIAL FRAUD: How to Detect It,
and What to Do About It
Tuesday, April 28, 2009
This program will show matrimonial litigators how to supplement
their practices with mediation. Topics include: formation of the
mediation entity; soliciting businesses; fee arrangements; protection against being subpoenaed into court; techniques to use
with easy and difficult couples; settlement agreements; net
worth statements vs. financial waivers; submitting the divorce,
and much more.
Faculty: Alan L. Finkel, Esq.; Patricia N. Gillard, Esq.;
Rosemarie Bruno, Esq.
Coordinator: Nancy Ellis, Esq. (Academy Officer)
Friday, May 1, 2009
In this lunch-and-learn seminar, three nationally known lawyers
in the field of securities arbitration share their experience to
help attorneys identify the warning signs of financial fraud and
impropriety and recover money for victims of financial wrongdoing. Topics include:
an exploration of the financial services industry and regulatory
framework
an examination of the legal rights and remedies available to
investors
23
SUFFOLK ACADEMY OF LAW
O F
T H E
SUFFOLK
COUNTY
BA R
A S S O C I A T I O N
5 6 0 W H E E L E R R O A D , H A U P PA U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8
a guide to identifying and evaluating investment cases
an introduction to the securities arbitration and mediation
processes and procedures
Faculty: Seth E. Lipner, Esq. (Deutsch & Lipner–Garden City);
Howard Eilen, Esq. (Lehman & Eilen–Garden City); Stanley
Meyerson, Esq. (TIA Group, Securities Analysis & Consulting
Services)
Program Coordinator: Nancy Ellis, Esq. (Academy Officer)
Time:12:30–2:15 p.m. (Registration from noon)
Location: SCBA Center Refreshments: Lunch
Presented with the Elder Law & Estate Planning
Committee of the Suffolk County Women’s Bar
Association
ARTICLE 81 vs. ARTICLE 17A
GUARDIANSHIP PROCEEDINGS
Tuesday, May 5, 2009
This seminar, featuring an outstanding faculty, will address
lawyers’ questions about the “who, what, when, why, and
where” of guardianship proceedings. You will learn how to competently handle what are extremely important, but ofttimes confusing, proceedings. Any attorney who works with the elderly or
disabled will want to attend.
Faculty: Hon. Sandra L. Sgroi (NYS Supreme Court–Suffolk);
Hon. John M. Czygier, Jr. (Suffolk County Surrogate); Saundra
M. Gumerove, Esq. (Jericho)
Coordinator: Linda Toga, Esq.
Extended Lunch ‘n Learn
SHOW ME THE MONEY: Hidden
Assets, Madoff Securities & Other
Famous Frauds
Wednesday, May 6, 2009
This program featuring an always well-received guest lecturer
will use high profile cases as a jumping-off point for instruction
that will be of practical value for any attorney handling a
divorce, bankruptcy, corporate malfeasance, or white collar
crime case where hidden assets are suspected. You will learn
how to seek the assets and how to proceed with your case
when they are located. Topics include: case studies of asset
concealment; red flags for an asset search; asset interdiction
and offshore remedies; other legal remedies; ramifications of
U.S. privacy laws.
Faculty: Fred L. Abrams, Esq. (New York City)
Time: Noon–2:45 p.m. (Registration from 11:45 a.m.)
Location: SCBA Center Refreshments: Lunch
Morning Program
HOW TO PROFIT FROM 1031
EXCHANGE TRENDS IN 2009
Thursday, May 7, 2009
This seminar will provide fresh information, offer insightful
analysis, and, most important, show attorneys ways to help
their clients take advantage of creative tax savings strategies
that can result in the best real estate purchase opportunities in
decades. You will learn, among other things:
how to use seller financing to put new deals together (plus four
different approaches in a 1031 exchange situation)
how to use a 1031 exchange in a foreclosure or short sale scenario and invest the funds that would otherwise have been
needed to pay capital gain taxes for the purchase of a replacement property at below market prices
how to use a “non-safe harbor” reverse exchange to purchase
favorable priced properties from distressed sellers
the latest developments with fractional ownership
the due diligence questions to ask when selecting a qualified
intermediary
and much more....
Faculty: Michael Brady, Esq.
(Asset Preservation, Inc. // Academy Treasurer)
Time: 9:00 a.m.–Noon (Registration from 8:30 a.m.)
Location: SCBA Center Refreshments: Breakfast buffet
HANDLING A SEX ABUSE CASE IN
NEW YORK
Monday, May 11, 2009
This information-packed seminar, providing a variety of perspectives, will focus on investigation, plea negotiations, treatment options, sex offender registration, as well as trial issues.
Speakers & Topics
Hon. Barbara Kahn (Suffolk County Court)
Judicial perspective; evidentiary issues; SORA assessment
determination; and settlement of the case
Dr. Eileen Treacy (forensic psychologist)
Interview techniques with the child-complainant; family dynamics; child abuse trauma syndrome; and the use of expert testimony
Dari Schwartz, Esq. (ADA–Suffolk County // Bureau
Chief–Child Abuse and Domestic Violence Bureau
The D.A.’s perspective on handling a sex abuse case
Kevin Keating, Esq. (defense attorney)
The defense perspective regarding medical and forensic evidence; cross-examination of the child witness
Donald Silverman, Esq. (Suffolk County Legal Aid Society)
The SORA assessment and hearings – defense perspective
Program Coordinator:
Stephen Kunken, Esq. (Academy
Advisor)
MCLE: 3 Hours (Professional Practice) [Non-Transitional and
Transitional]
MATRIMONIAL & ELDER LAW
Wednesday, May 13, 2009
Exploring the intertwining matrimonial and elder law issues that
may affect clients, this seminar will address issues that arise
before, after, and during marriage. Topics will include: pre-nuptial agreements, second marriage issues, Medicaid and spousal
rights, separation agreements, and more. Both elder law and
family law practitioners will want to attend.
Program Coordinator: Sheryl Randazzo, Esq. (SCBA First V.P.)
Presented by the SCBA Health & Hospital
Committee
REPRESENTING CLIENTS WHO ARE
PATIENTS: What to Do When Your
Client’s Medical Bills Remain Unpaid
Monday, May 18, 2009
Developed by the SCBA’s Health & Hospital Committee, this
seminar will examine key issues in patient advocacy.
Topics & Speakers
Medical Liens from Third Party Payers, Government Payers, No
Fault and Workers’ Compensation
– James Fouassier, Esq.
Appeals of Third Party Insurance & Government Payer Denials
& the Regulatory Complaint Process
– Thomas Force, Esq.
Balance Billing a Patient Who is Under a Managed Care
Contract (Permissible vs. Impermissible Conduct)
– William J. McDonald, Esq.
Inappropriate Claims Against Third Parties for Medical
Expenses (Overview of FDCPA)
– Anthony Ballato, Esq., and Denise Snow, Esq.
Charity Care Policies and Medicaid/Government Assistance
– Denise Snow, Esq., and Mary Kane, Esq.
New York State Attorney General’s Office, Health Bureau:
Discussion of Recent Settlements
Program Coordinator: Thomas J. Force, Esq. (Chair–SCBA
Health & Hospital Committee)
Looking to the Future–What to
Remember and What to Expect:
A GUIDE FOR THE ESTATE
PRACTITIONER
Thursday, May 28, 2009
This cutting-edge seminar, featuring an acclaimed faculty, provides essential insights for attorneys who advise clients on
estate planning.
Speakers & Topics
Mitchell J. Cooper, Esq. (Spizz & Cooper, LLP)
The “Obamatization” of the Estate Tax: What Changed and
What Stayed the Same
John J. Barnosky, Esq. (Farrell Fritz, PC)
Prudent Investing Under the Prudent Investor Act – Delegation
and the Impact of Arbitration Clauses on the Jurisdiction of the
Surrogate’s Court
Hon. John M. Czygier, Jr. (Surrogate–Suffolk County)
Unforseen Ethical Dilemmas in T&E Practice
Joseph T. LaFerlita, Esq. (Farrell Fritz, PC)
E-Filing: The Wave of the Future in the Surrogate’s Court
Program Coordinator: Ilene S. Cooper (SCBA President Elect)
24
News & Notes From SCBA Committees
The committee met in January on the 22
with 13 people attending. There was a
2008/2009 Real Property Committee round
table discussion with members of LIBOR
regarding the new Commission Escrow
Act CEA (effective January 1, 2009) under
Section 294-b of the Real Property Law and
other issues of mutual concern.
The committee met on February 17 with
four people attending. There was a round
table discussion. Topics covered included
(1) Revised Power of Attorney (General
Obligations Law 5-1513), (2) Follow-up
on brokers issues including the Broker
Commission Escrow Act, and (3)
Discussion of recent case law concerning
return of deposit check for insufficient
funds.
Taxation Law
Eric Lee Morgenthal
and Richard Alan Weinblatt, Co-chairs
Mill Pond House
Spinach may sound like a boring traditional
steak house standby, we used the remaining
bits of that wonderful bread to make sure we
soaked up every enchanting bite.
We opted for dessert, but only because
we were so very pleased with the meal
thus far, and not because there was much
room left. Jen’s Dreamy Rice Pudding
with golden raisins was the overall
favorite with a creamy light pudding well
equipped with plump, juicy, sweet, golden
raisins. The Classic Crème Brulee was
presented as advertised . . . classically, not
overly sweet, overly rich, nor extensively
bruleed. Our frozen treat, the Tartuffo, a
dark chocolate coated vanilla and chocolate gelato with a cherry center, was fresh,
soft, and delicious.
The staff at Mill Pond was knowledgeable, courteous, and attentive while simultaneously friendly, warm, and inviting.
Although in a restaurant of this caliber, it is
easy for the staff to rely too heavily upon
The committee met in February on the
10th and conducted a joint meeting with
the Surrogates Court Committee to discuss
"Navigating the Federal and NYS Estate
Tax Audit." The speakers were from the
IRS Garden City Office and the New York
State Department of Taxation and Finance
in Albany. Committee members discussed
current issues and concerns relating to
Estate Tax Filings. Also discussed was the
impact of the Madoff scandal upon the
Estate and Gift tax reporting process.
Family Court
Isabel E. Buse
and Marjorie E. Zuckerman, Co-chairs
The committee met on December 10,
January 14 and February 11. The purpose
of these meetings was to network and to
discuss topics of mutual interest. The
the fine décor, the breathtaking views, or
the sumptuous fare, the staff at Mill Pond
never let the diner lose sight of one of the
most satisfying aspects of the dining experience being able to truly enjoy the meal
without feeling rushed or feeling as though
trespassing in the ostentatious room. Mill
Pond is all the diner should, can, and will
expect from the experience the diner
expects it to be superb.
Editors Note: Dennis R. Chase is the current Secretary of the Suffolk County Bar
Association, a frequent contributor of The
Suffolk Lawyer, and a partner with The
ChaseSensale Law Group, L.L.P. The firm,
with offices in Suffolk, Nassau, and Queens
Counties, concentrates their practice in
Workers= Compensation, Social Security
Disability, Long Term Disability, Short
Term Disability, Disability Retirement, and
Accidental Death and Dismemberment
Benefits.
Trusts and Estates Update
made of the property in question, and that
summary judgment should have been
granted in his favor. Significantly, the court
opined that the delivery of the deed to the
defendant was not changed by the decedent’s subsequent access to the deed or
even her repossession of it. Nor was the
fact that the decedent continued to pay
taxes on the property inconsistent with the
making of a present
gift, in view of the decedent’s continued
residence at the property.
Bader v. Digney, 55 AD3d 1290 (4th
Dept. 2008).
Note: Ilene Shewryn Cooper is a partner
with the law firm of Farrell Fritz, P.C.,
where she concentrates in the field of trusts
and estates. In addition, she is PresidentElect of the Suffolk County Bar Association
and a member of the Advisory Committee
of the Suffolk Academy of Law.
VTL Practice Tips
lateral consequences, if known, and the
various fines and driver responsibility
assessment, civil penalties and suspensions
or revocations.
Your client should be advised of their
right to appeal and that your office will not
undertake to file such an appeal unless you
are retained to do so well in advance of the
filing deadline.
The foregoing may all seem tried, true
and even trite, by sticking to the basics,
defense counsel will maximize their
chances for effective representation of their
client even in difficult economic times.
Note: David Mansfield practices in
Islandia and is a frequent contributor to
this publication.
December speaker was Tom Sartain,
Bureau Chief of the Family Court Division
of Legal Aid. His topic was “Advocating
for Parents in Termination of Parental
Rights.” In January, Support Magistrates
Denise Livrieri, John Raimondi and Isabel
Buse spoke about “Modifications of
Support Orders.” In February our program
was “How Different Psychological
Problems Impact on Parenting Skills.”
The discussion was facilitated by Dr. Neil
Grossman and Dr. Kelly of the Suffolk
County Psychological Association.
Attendance at the December, January
and February meetings ranged from as low
of 25 to a high of 42. The Committee
Chairs are pleased that so many attorneys
are coming to network and have lunch
with us in Judge John Kelly's court room
the second Wednesday of each month.
Any attorney who wants to be added to
our e-mail list should contact Marjorie
Zuckerman at [email protected]
Insurance & NegligenceDefense Counsel
Claude N. Grammatico
and Robert Stafford, Co-chairs
The committee met on February 25 with
approximately nine people attending. The
committee discussed its purpose and
future agendas. The members participating
had varied experiences as defense counsel
which made it a very lively group. Future
topics for meetings were discussed including the recently enacted No Prejudice Bill,
the enactment of the new Ethics rules,
CLE being offered by the SCBA, collateral attacks on experts, and summary jury
trial just to mention a few.
The committee members will provide
topics they wish to share at upcoming
meetings by notifying the co-chairs.
Roundtable discussions of cases of interest
whether reported of currently pending will
be discussed as well.
The March meeting was held on the 24
to discuss new legal issues and developments and the upcoming CLE.
Unfortunately, since the vast majority of
the members were attending the PJI semi-
nar being conducted at the same time, we
could not hold the meeting. Only three
people attended. A suggestion was made
to schedule meetings when they do not
conflict with seminars that will be of major
interest to committee members.
Education Law
Deborah Berger
and Robert H. Cohen, Co-chairs
The committee met on March 1 with
approximately six people attending. They
discussed the new law regarding pre budget
information to be provided and issues in
special education. Also discussed were
issues related to employment of non instructional personnel. A suggestions was made
that the next meeting be for CLE credit
Intellectual Property Law
Thomas A. O’Rourke, Chair
The committee met on March 25 with
approximately five members attending.
John Vodopia presented the Patent
Office's Program on Accelerated
Examination of Patent Applications.
We are planning two additional programs in the near future. One is on trademark filings under the Madrid Protocol
and the other is on intellectual property
issues for the start up business.
Surrogate's Court
Mary K. Kane
and Kurt P. Widmaier, Co-chairs
The committee met on February 1 with 25
people attending. Scott McBride, a Court
Attorney-Referee at the Suffolk County
Surrogate's Court, was the speaker regarding miscellaneous proceedings filed with the
Court. Each member was able to receive one
credit of Continuing Legal Education for
attending this committee lecture.
The next meeting is March 23, 2009 at 6
pm with Surrogate Czygier as the guest
speaker on the topic of attorney's fees in
the Surrogate's Court.
Mediation Comes to Suffolk
County Supreme Court’s
Commercial Division
gave me the opportunity for a negotiated
settlement.
All that being said, I fully recognize that
a fair number of commercial litigations will
be either protracted or go to verdict, some
even after a mediation or other ADR intervention. The reasons for this can be as simple as a disputant’s belief that complete
vindication is required and can only be
attained by a positive trial verdict or as
complex as the human personality. What’s
clear today, however, is that our clients are
becoming much more knowledgeable with
respect to their choices.
As I was completing this article I happened to read Jim Winkler’s President’s
Message in The Suffolk Lawyer’s March
edition and was gratified for his support of
ADR, including mediation, and for his
encouragement to fellow lawyers that they
understand that both our clients and our
courts are embracing, in ever increasing
numbers, more collaborative methodologies of dispute resolution. Consistent with
Jim’s message please know that our SCBA
ADR Committee stands ready to assist you
with any ADR related questions you may
have or provide you with resource information on any number of ADR issues. Finally,
for those who want to keep current on the
Commercial Division’s new mediation program, I refer you to its website:
www.nycourts.gov/courts/comdiv/suffolk.shtml.
Note: Steve Dely is a former commercial
subsidiary General Counsel and aerospace
corporate Senior Vice President and
Secretary, responsible for corporate
administrative functions, including the
legal department. He has spent the last 10
years as an Arbitrator and Mediator.
25
Shared Services, Cost Savings: A Taxpayer Win-Win
one for the other of their respective functions, powers and duties on a cooperative or
contract basis or for the provision of a joint
service….” School districts are vested with
the authority to enter into intergovernmental cooperation agreements under § 119-o
of the General Municipal Law.
The reasons two or more school districts
may jointly agree to perform their duties are
manifold, even obvious, but bear repeating.
Just as with purchases made under General
Municipal Law § 103(3), purchasing power
can be leveraged, economies of scale can be
achieved, duplication of services can be
eliminated, facilities and resources can be
shared, or sometimes, simply for convenience if one entity can perform a task more
readily than another entity.
In general, intergovernmental cooperation agreements fall into two categories, to
wit, service agreements and joint function
agreements. An excellent example of sharing a joint function agreement is in the area
of health insurance. Municipalities and
school districts are authorized under
General Municipal Law § 92-a to purchase
health insurance. Hence, health insurance is
the proper subject of a joint function agreement under 119-o of the General Municipal
Law. Indeed, as discussed below, it is
becoming more common for school districts to share that function.
Health Insurance Consortiums
Some school districts on Long Island
have already joined together to form “consortiums” for health benefit plans. In addition to joint function agreements covered
by the General Municipal Law, New York
State Insurance Law Article 47 provides a
mechanism through which school districts,
as well as other municipal corporations
such as counties and towns, can join together to “share, in whole or part, the costs of
self-funding employee health benefit plans;
provide municipal corporations, school districts and other public employers with an
alternative approach to stabilize health
claim costs; lower per unit administration
costs; and enhance negotiating power with
health providers by spreading such costs
among a larger pool of risks.” However,
Article 47 currently contains procedures on
the formation and oversight of these health
benefit plans that some school districts
might find overly cumbersome. Among
other things, Article 47 places reserve and
surplus requirements, stop-loss requirements, contingent liability requirements,
and plan benefits and disclosure requirements on these types of plans. There is,
however, legislation pending in Albany that
would reduce these requirements for this
type of plan in Suffolk.
Drafting Intergovernmental
Cooperation Agreements
In every case, each of the governing
boards of the participating school districts
must consent to the intergovernmental
cooperation agreement. Such agreements
should also conform to certain basic elements of contract drafting. Care must be
taken to capture and convey the clients’
intent on the scope of services, responsibilities of administering those services, costs
and charge-backs, indemnification and liability, and term, termination and options,
Can schools regulate off campus student speech?
the content of off campus speech. It cited
the Fraser and Hazelwood cases in support
of this idea. This case is important because
it seems to sanction the idea that schools
may regulate the content of off-campus student speech.
Has the Morse case changed the legal
landscape? It seems likely. In Layshock v.
Hermitage School District, a Third Circuit
Court of Appeals case, a student created a
fake “My-Space” page using a computer in
his grandmother’s house, which parodied
his high school principal.6 The student suggested that the principal had an alcohol
problem. School officials found the page,
suspended the student for 10 days, refused
to allow him to attend graduation. The
District Court agreed that the school violat-
Global Warning
month, the California State Supreme Court
issued a decision finding that same sex couples should be given access to civil marriage. While in September 2008, the
Queens County Surrogate’s Court ruled that
the parents of a deceased same-sex spouse
had to be included in a proceeding to probate the decedent’s will. This is despite the
fact that New York law provides that only
spouses need be included in such a proceeding. By February 2009, the New York
County Surrogate’s Court ruled the exact
opposite, holding that a man married to the
decedent in a valid same-sex marriage (in
Canada) is the decedent’s surviving spouse
and that no other persons were entitled to
participate in the probate proceedings.
2008, however, was not all about victory
and achievements. On Election Day, while
America celebrated an historic new chief
executive that reflected hard won civil
rights victories, same sex marriage bans
were passed in Arizona (Proposition 102)
and Florida (Amendment 2). Arkansas
banned all unmarried couples, including
gay and lesbian couples, from fostering or
adopting children. And finally, Proposition
8 - the initiative to eliminate the newly won
ed his First Amendment rights and granted
summary judgment on that issue. The case
was argued before the Third Circuit on
December 10th, 2008, with a decision
pending.7 Assuming the Third Circuit
agrees with the District Court, the Supreme
Court could ultimately hear the case. If it
does, the Morse case will be an important
precedent which could result in further
reduction of off-campus student speech
rights.
May schools regulate off-campus student
speech? The Supreme Court appears
willing to permit regulating the content of
student speech, even if it is off-campus.
Internet speech is putting schools in the
place where no one could have anticipated.
It is forcing them to monitor internet speech
just to name a few key provisions.
The New York Department of State is an
excellent resource for publications on local
government. It should be book-marked on
the computer of every municipal lawyer.
The department also offers sample agreements and legal assistance. Much information can be accessed on-line at
http://www.dos.state.ny.us. Inter-governmental Cooperation, a publication which is
part of the James A. Coon Local
Government Technical Series which provided invaluable guidance for this article.
Armed with the basic knowledge outlined above, the lawyer representing
school districts will be able to assist in
navigating a course to cost savings
through shared services.
Note: Dennis M. Brown is the Municipal
Law Bureau Chief in the Suffolk County
Attorney’s Office.
Note: Jessica Hogan is a Senior Assistant
County Attorney in the Municipal Law Bureau
of the Suffolk County Attorney’s Office.
of its students and restrict the speech when
it feels necessary.
Note: Joseph Gatto is a teacher at
Smithtown High School West. He is a district coordinator for the New York State
Bar Association’s We the People program.
He teaches Advanced Placement Government classes which emphasize civil liberties. Joseph is also a licensed attorney.
Before becoming a teacher, he was a Staff
Attorney at the Nassau/Suffolk Law
Services Committee, Inc.
1 In loco parentis is defined as “in the place of the
parent; instead of a parent; charged, factitiously, with a
parent’s rights, duties, and responsibilities.” Black’s
Law Dictionary 787 (6th ed. 1990).
2 Tinker v. Des Moines Pub. Sch., 393 U.S. 503, 89
S.Ct. 733 (1969); Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675, 106 S.Ct. 3159 (1986); Hazelwood Sch.
Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562 (1988).
3 Beussink v. Woodland R-IV Sch. Dist., 30 F.
Supp.2d 1175 (E.D. Mo. 1998).
4 See Emmett v. Kent Sch. Dist # 415, 92 F. Supp.2d
1088 (W.D. Wash. 2000); Killion v. Franklin Reg’l
Sch. Dist., 136 F. Supp.2d 446 (W.D. Pa. 2001).
5 Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618
(2007).
6 See Layshock v. Hermitage Sch. Dist., 412 F.
Supp.2d 502 (W.D. Pa. 2006); Layshock v. Hermitage
Sch. Dist., 496 F. Supp.2d 587 (W.D. Pa. 2007).
7 Sam Bayard, Federal Appeals Court Examines
Two MySpace Student Speech Cases (visited March
26, 2009) <http://www.citmedialaw.org/blog/2008
/federal-appeals-court-examines-two-myspace-student-speech-cases>.
right to marry for same sex couples in
California, was voted into law.
This fight for equality has a significant
impact on lives and livelihoods. Many
income tax and other advantages heterosexual couples enjoy remain outside the
grasp of the LGBT community. Only
opposite-sex spouses, for instance, can
collect Social Security benefits based on
each other’s earnings. Federal law allows
opposite-sex spouses to make unlimited
gifts to each other without incurring gift
tax, while unmarried couples and samesex spouses are limited to gifts of no more
than $13,000.00 per year to each other
without paying gift taxes. There is also no
estate tax for any assets passing to a surviving opposite-sex spouse.
In New York, an opposite-sex spouse
automatically inherits at least one third of
the other’s assets regardless of what a will
may provide, and only opposite-sex married couples can make unlimited transfers
to each other at death without tax consequences. Unlike a surviving opposite-sex
spouse, a same-sex partner is not entitled
to any portion of the deceased partner’s
retirement account unless specifically des-
ignated as the beneficiary. In addition,
alimony is tax deductible for heterosexual
couples, but not for same sex couples.
Only opposite-sex married couples can file
joint tax returns and there are no survivor
Social Security benefits or wrongful death
proceeds for LGBT partners. The reason
for all of the above: neither the IRS nor the
New York State Department of Taxation
will recognize same-sex marriages.
While it is true that these rights and privileges carry certain obligations and legal
precedents that may not always be advantageous, the community must remain vigilant and forge ahead to attain equality
while maintaining and protecting previously gained ground. It is our responsibility to create awareness for change. This is
not a time for complacency, but rather
comradery and community spirit. It is not
a time to reflect on achievement, but what
continues to be denied. A global warning:
victory and equality are not a certainty.
Note: Joseph Trotti is a partner in the
law firm of Vishnick McGovern Milizio
LLP. He practices in the area of traditional family law, as well as in the firm’s
LGBT practice.
Joseph G. Milizio is also a partner in
Vishnick McGovern Milizio. He practices
in the areas of business representation and
real estate, as well as in all aspects of the
firm’s LGBT practice. Both can be
reached at (516) 437-4385.
Advertise in
The Suffolk Lawyer
Call (866) 867-9121
26
Suffolk Decisions Of Interest
schedule to be ordered; while CPLR 504(3)
requires an action against the City of New
York to be commenced in the County within the City of New York where the cause of
action arose, inapplicable to a third-party
action commenced against the City.
In Anonymous and Mrs. Anonymous v.
Wyckoff Heights Medical Center Dr.
Nagendra Sagar Katari, South Shore
Medical Associates, P.C., and (Third Party
Complaint) Dr. Cary Levin, and South
Shore Medical Associates, P.C., and Dr.
Cary Levine M.D. s/h/a Dr. Cary Levine v.
Charles Michael Martinez, M.D., and
Myron J. Jacobson, M.D., Index No. 897801, decided on September 25, 2008, the
court denied the motion by third-party for
an Order pursuant to CPLR 603, dismissing
the third-party complaint without prejudice
to recommence in Queens County, or in the
alternative, severing the third-party action
and, pursuant to CPLR 504(3)transferring it
to Queens County. In support of their
motion, the third-party defendants asserted
that dismissal was warranted because the
third-party plaintiffs inexcusably delayed in
bringing the action. Third-party defendants
further asserted that at a minimum, the
action should be severed as a failure to
sever the third-party action would deprive
them of the “extensive discovery necessary
to defend themselves against a claim that
accrued almost ten years ago.” In the event
the Court denied severance, third-party
defendants urged the Court to transfer
venue of this action to Queens County pursuant to CPLR 504(3). In rendering its decision, the court reasoned that a determination to grant or deny a request for severance
is a matter of judicial discretion, such discretion should be exercised sparingly. The
court further noted that although CPLR
504(3) requires an action brought against
the City of New York to be commenced in
the County within the City of New York
where the cause of action arose, such does
not apply to a third-party action commenced against the City.
Honorable Thomas F. Whelan
Honorable Sandra L. Sgroi
Motion to compel granted unless defendant responds within thirty days; Corporate
defendant must be held in default if it fails
to appear by an attorney
In Schwing Electrical Supply, Corp. v.
C.R. Electrical Contracting, Inc., and
Christopher Russo, Index No. 2722-06,
decided on January 28, 2009, the court
granted plaintiff’s motion to strike the
answer of the Defendants for failure to
comply with a Preliminary Conference
Order and for failure to respond to various
demands for unless the Defendant served
and filed a response to the Notice of
Discovery and Inspection and the
Preliminary Conference Stipulation and
Order within 30 days. The court pointed out
that Defendant C.R. Electrical Contracting,
Inc. was a corporation and since it was a
legal entity with limited liability, it could
not represent itself but must instead be represented by a licensed attorney, whether
outside counsel or staff counsel, who is
answerable to the court and to the other parties for his or her own conduct in the matter. The court further stated that a corporation cannot appear "in person" when prosecuting or defending a civil action because
Statement Of
H. Thomas Wells Jr.,
President, American
Bar Association
The American Bar Association Standing
Committee On The Federal Judiciary
The Obama Administration has
requested that the American Bar
Association Standing Committee on
the Federal Judiciary resume its historical role in evaluating the professional
qualifications of potential federal judicial nominees on a pre-nomination
basis.
The ABA Standing Committee,
which has been involved in the evaluation process for over 50 years, is
pleased to continue to perform this
important public service on a pre-nomination basis. Our goal is always to
assist both the administration and the
Senate Judiciary Committee as they
deem appropriate in this process. As
ABA president, I can assure you that
our Standing Committee takes its role
in the process very seriously.
The Standing Committee makes a
unique contribution to the process by
conducting an extensive peer review of
corporations are fictional persons with limited liability, which are created by law, and
unlike natural persons, corporations can
only act through agents. The court also
pointed out that, where, as here, one of the
Defendants was a corporation, that corporate Defendant must be held in default if it
fails to appear by an attorney
each potential nominee’s integrity, professional competence and judicial temperament. The Standing Committee
does not consider a potential nominee’s
ideological or political philosophy. Its
work is fully insulated from, and completely independent of, all other activities of the ABA, and is not influenced
by ABA policies. The Standing
Committee itself never proposes or
endorses a particular candidate for the
federal judiciary; its sole function is to
assist the administration and the Senate
in evaluating the professional qualifications of potential nominees for a lifetime appointment to the federal bench.
The Standing Committee and the
ABA look forward to working with the
new administration.
For additional information, visit the
ABA Standing Committee on the
Federal Judiciary's Web site at
http://www.abanet.org/scfedjud/
Motion for stay denied; stay not available
under CPLR 5519 (c) where no proceedings
are necessary to enforce the order or judgment appealed from and said order or judgment commands no acts or proceedings
In Leonard J. Augello v. Laura KoeningRivkin and Andrew Jay Nill, Jr., as
Administrator of the Estate of Andrew Jay
Nill, Deceased, Index No. 28286-00, decided on December 10, 2008, the court denied
plaintiff’s motion for an order staying the
action pending the determination of an
appeal filed by the plaintiff from the
September 3, 2008 order of the court. The
court reasoned that the scope of the stay
available under CPLR 5519(c) is co-extensive with that contemplated by CPLR 55
19(a),which provide for a stay of enforcement proceedings only, not a stay of acts or
proceedings other than those commanded
by the order or judgment appealed from.
The court further pointed out where no proceedings are necessary to enforce the order
or judgment appealed from and said order
or judgment commands no acts or proceedings, a stay is not available to an appellant
under CPLR 5519(c).
Motion to withdraw as counsel denied;
attorney/client relationship with the plain-
tiff terminated by operation of law.
In Patricia Hopson v. Simon Property
Group, Inc, Simon Property Group LLP
and Control Building Services, Inc., Index
No. 18375-03, decided on March 17,
2009, the court denied Plaintiff’s attorneys’ motion to withdraw as counsel. In
denying the motion, the court considered
CPLR 321 and 1021, and pointed out that
the plaintiff, Patricia Hopson, died during
the pendency of the action and that no personal representative of her estate had been
substituted in this action. The court pointed out that by operation of law, upon the
death of the plaintiff, all proceedings herein were stayed and the attorney/client relationship between the plaintiff and the
movant was terminated.
Please send future decisions to appear in
“Decisions of Interest” column to Elaine
Colavito at [email protected].
There is no guarantee that decisions
received will be published. Submissions are
limited to decisions from Suffolk County
trial courts. To be considered for inclusion
in the June 2009 issue, decisions must be
received by May 1, 2009. Submissions will
be accepted on a continual basis. All decisions sent to previously listed mailing
address will still considered for inclusion in
future “Decisions of Interest” column.
Bio: Elaine Colavito graduated from
Touro Law Center December 2007 in the
top 6 percent of her class. She is an associate at Heidell, Pittoni, Murphy, & Bach,
LLP, in Garden City, New York, concentrating in litigation defense. She can be
contacted at (516) 408-1600.
Of Age and Wealth
ditions to improve your client’s estate
plan. Scott S. Small, Esq. (BNY Mellon
Wealth Management) will discuss
“Taking Advantage of the Down Market.”
Edward B. Pennfield, Esq. (BNY Mellon
Wealth Management) will cover “Estate
Planning for Non- Traditional Families.”
And the always popular David DePinto,
Esq., CPA (DePinto Nornes & Associates)
will dissect the “Top 15 Drafting
Blunders.” Eileen Coen Cacioppo, the
Academy’s Curriculum Co-Chair, is the
program coordinator.
Another program addressing current
challenges and opportunities for the estate
planner will be held right at the bar center
on the evening of May 28. Entitled
“Looking to the Future–What to
Remember and What to Expect: A
Guide for the Estate Practitioner,” this
cutting-edge program will cover issues of
paramount importance to all in the field.
Mitchell Cooper, Esq. (Spizz & Cooper,
LLC) will cover “The Obamatization of
the Estate Tax: What Changed and What
Stayed the Same.” John J. Barnosky, Esq.
(Farrell Fritz, PC) will talk about “Prudent
Investing Under the Prudent Investor
Act–Delegation and the Impact of
Arbitration Clauses on the Jurisdiction of
the Surrogate’s Court.” The always wellreceived Suffolk Surrogate, Honorable
John M. Czygier, will discuss
“Unforeseen Ethical Dilemmas in T& E
Practice.” And, finally, Joseph LaFerlita,
Esq. (Farrell Fritz, PC) will address “EFiling – The Wave of the Future in the
Surrogate’s Court.” SCBA President Elect
Ilene S. Cooper is the program coordinator.
Estate practitioners who missed
Seymour Goldberg’s well received seminar on “Inherited IRAs” last fall will
have a second chance to attend on the
morning of June 3 (9:00 a.m. – 12:45
p.m.). The information-packed seminar
will include discussion of common errors
in retirement distribution planning; why
many IRA beneficiary forms are defective; how the inherited IRA rules work
(including 2008 tax law changes); how
spousal IRA rules work; how to use a trust
as a plan beneficiary, and much, much
more. Participants receive Mr. Goldberg’s
outstanding treatise Inherited IRAs–What
the Practitioner Must Know at no extra
cost. Dual license practitioners should
note that the program provides four
MCLE credits and four CPE credits. Also
of interest to practitioners in the field is a
second seminar by Mr. Goldberg this summer (tentatively the morning of July 27) on
“New York Trusts & Estates.” Eileen
Coen Cacioppo serves as coordinator of
both programs.
Finally, this spring, representatives of
the IRS will present a four-hour program
on June 17 (10 a.m. – 2:00 p.m.) that will
cover, among other tax topics, issues related to “Taxation of Trusts in an Estate.”
For further information on or to register
for these or other Academy programs, call
the Academy office at 631-234-5588.
Note: The author is the executive director of the Suffolk Academy of Law.
27
SUFFOLK LAWYER SERVICE DIRECTORY
TO PLACE YOUR AD, CALL 866-867-9121
SERVICES
IMMIGRATION
ATTORNEY
MARKET LOSSES
STOCK MARKET LOSSES
IMMIGRATION
LITIGATOR
due to misrepresentation,
variable annuities, unsuitable investments,
unauthorized trading, churning, etc.
W. ALEXANDER MELBARDIS, M.B.A., J.D.
Deportation
Green Cards
Attorney Experienced in Securities Law
FINRA SECURITIES ARBITRATIONS
(FORMERLY NASD, NYSE)
David M. Sperling
631-427-1158
194 Main St., Setauket, NY
631-751-1100
[email protected]
SERVICES
IMMIGRATION
ATTORNEY
EXPERIENCED
IMMIGRATION
ATTORNEY
LEGAL SERVICES
Court Appearances
Bronx, Westchester,
Rockland & Orange
Referrals to
other counties
Julia R. Binger
631-261-0960
Trial and conferences.
Experienced. Reasonable
914-762-5815
Cell 914-714-4354
FAX 914-945-7158
OFFICE FOR RENT
LAWYER TO LAWYER
OFFICE FOR RENT
SECURITIES
LAW
Wall Street Office
SMITHTOWN LAW OFFICES
Phone & Mail $125/mo.
195 East Main Street, Smithtown, NY
John E. Lawlor, Esq.
Securities
Arbitration / Litigation;
FINRA Arbitrations;
Federal and State
Securities Matters
(516) 248-7700
129 Third Street
Mineola, NY 11501
johnelawlor.com
HELP WANTED
JOEL ZUCKERBERG
Attorney at Law
168 Laurel Avenue
Northport, NY 11768
REAL ESTATE SECTION
HELP WANTED
Mail Service Only $79/mo.
•
•
•
•
Beautiful corporate setting
Attended reception area
Personalized phone services
Msg e-mail relay Patching - Voice Mail
• Mail receiving, photocopier,
fax, secretarial services
• Conference rooms,
furnished offices
at 110 Wall St., 11th Floor
(800) 205-7685
www.yourwallstreetoffice.com
[email protected]
CENTRAL ISLIP
Attorney will:
• handle cases from start to finish
• get trial experience
• get a percentage of attorney fee on each case resolved,
• have no ceiling for the amount of money that can be earned
Please e-mail Ross Cellino at
[email protected]
Call PETER C. STEIN Esq. at 631-360-1433
REAL ESTATE SECTION
OFFICE SPACE
Unique opportunity for ambitious attorney
with 5 + years civil experience
Beautiful, historic landmark building, newly renovated throughout.
Everything new. Amenities include two conference rooms, extensive law library, on-premises parking and storage, copier, full
kitchen & break room. Central air. Signage avail in front of building.
SPACIOUS PRIVATE OFFICE: 17’x14’ top notch office with
optional secretarial station. Bright, sunny; lots of windows with
nice view. $1,295
SEMI-PRIVATE OFFICES: New L-shaped desk and hutch in
semi-private, quiet area. Includes first preference for use of conference rooms for meeting with clients. Space has many windows
offering bright, sunny views. Two available at $495 ea.
Law Office
space for solo
or small firm.
Poss-overflow.
Receptionist,
Conf. rm.,
fax/copier.
Ideal location
near courts
631-827-7748
OFFICE FOR RENT
HISTORIC
STONY BROOK
Overlooking
Harbor /
Village Green
2400 square feet
2nd Floor
Office Space
Call: 631-751-2244
OFFICE FOR RENT
SMITHTOWN
furnished office &
secretarial station.
Conference
room/library, file room,
kitchen, more.
Top Quality.
Includes utilities,
library, copier,
law journal, cleaning.
631-360-1640
OFFICE CLEANING
For All Your
Cleaning Needs
FOUR STAR
OFFICE
MAINTENANCE
“The Small Office
Specialists”
Serving Western Suffolk
Since 1988
Satisfaction Guaranteed
Bonded & Insured
Andrew V. Caranante
MEET YOUR MARKET...
27,000 NY & LI ATTORNEYS
Cell: (631) 766-1825
TO ADVERTISE, CALL
866-867-9121
When Financial Fraud Affects Those You Represent
Two Timely Lunch ‘n Learn Programs
For those who follow media reports, the
words fraud and finance have become not
only alliteratively, but inexorably, linked.
It is, therefore, no surprise that clients are
seeking legal advice about possible financial fraud in their own business and professional lives.
Two Academy CLE seminars this spring
will help lawyers to address the concerns
of those they represent.
The first, scheduled for lunchtime on
May 1, is entitled “Financial Fraud: How
to Detect It, and What to Do about It.”
In this seminar, three prominent attorneys
in the area of securities arbitration will
help attorneys to identify the warning
signs of financial fraud and impropriety
and will provide advice on what attorneys
can do to recover money for victims of
financial wrongdoing. Specific topics
include: an exploration of the financial services industry and the regulatory framework; an examination of legal rights and
remedies available to investors; identify-
ing and evaluating investment cases; and
an introduction to the securities arbitration
and mediation processes and procedures.
The presenters – Seth E. Lipner, Esq.
(Deutsch & Lipner–Garden City); Howard
Eilen, Esq. (Lehman & Eilen–Garden
City); and Stanley Meyersen, Esq. (TIA
Group) – truly are a “Who’s Who” representation of the field. Mr. Lipner is one of
the country’s best-known investor attorneys and the co-author of Securities
Arbitration Desk Reference (West 2008).
He is Professor of Law at the Zicklin
School of Business at CUNY and was a
founder and president of the Public
Investors Arbitration Bar Association. Mr.
Eilen has represented investors and broker-dealers in securities cases for many
years. He is now a top securities mediator
whose services are in demand all around
the country. Finally, Mr. Meyerson is a
former corporate counsel for one of the
country’s largest securities broker dealers,
where he also directed the firm’s in-house
Compliance and Litigation Regulatory
Analysis Group. His current firm, the TIA
Group, provides expert analysis and consulting services in securities cases, and
Mr. Meyerson often testifies as an expert
witness in securities cases.
The program will run from 12:30 to 2:15
p.m. (lunch from noon) and provides two
MCLE credits. Academy Officer Nancy
Ellis is the program coordinator.
The second seminar concerning financial fraud is scheduled for lunchtime on
May 6. This program features a return visit
by the always well-received Manhattan
attorney Fred Abrams. Having addressed
SCBA members on “hidden assets” (to
outstanding reviews) in the past, Mr.
Abrams has updated his presentation with
the use of timely cases and media issues as
a jumping-off point. Entitled “Show Me
the Money: Hidden Assets, Madoff
Securities & Other Famous Frauds,” the
presentation will, among other things, analyze case studies (Madoff, Anderson, Ye
Gon, Birkenfeld, Kozlowski) of asset concealment; review red flags for an asset
search; address asset interdiction and offshore remedies; and discuss the implications and ramifications of U.S. privacy
laws.
Mr. Abrams who has built a far-reaching
reputation for his skill in seeking and
locating hidden assets has recently been
tapped by the media for commentary on
the Madoff case. His remarks were heard
on Fox News and were quoted in the New
York Times and various finance-related
publications. Despite his now “celebrity”
status, however, his presentation for the
Academy will be filled with practical
advice for lawyers seeking assets in everyday cases involving divorce, bankruptcy,
white collar crime, corporate malfeasance,
etc.
The program will fun from noon to 3:00
p.m. (lunch and sign-in from 11:45) and
provides three MCLE credits.
– Dorothy Ceparano
28
ACADEMY OF LAW NEWS
More Academy News
on pages 26
CLE Course Listings
on pages 22-23
Of Age and Wealth
CLE for Elder Law & Estate Practice Attorneys
________________________
By Dorothy Paine Ceparano
“He who would pass his declining
years with honor and comfort, should,
when young, consider that he may one
day become old, and remember when he
is old, that he has once been young.”
– Joseph Addison
Inspirational reflections on the aging
process emanate from the realm of poets
and philosophers. But no less important
to most people are the services of lawyers
who help them to plan, practically, for the
challenges of old age or for passing on
assets to heirs of their choice. This spring,
the Academy offers a number of important courses in elder law and estate prac-
tice that will help you to better serve
those you represent.
Those new to the elder law field should
keep in mind a two-part program,
“Introduction to Elder Law,” scheduled for two Monday evenings, April 20
and 27. An experienced faculty will cover
issues related to health, capacity, benefits,
and finances, as well as important ethical
issues. The first evening begins with a
presentation on the elder law consultation
and goes on to cover guardianships and
capacity, Medicare, and Medicaid planning. Evening two delves into home care
services, nursing home placement and
Medicaid applications, trusts in elder law,
and implementation of the “elder law
r
a
d
n
C ale
ACADEMY
of Meetings & Seminars
Note: Programs, meetings, and events at the Suffolk County Bar Center (560 Wheeler Road,
Hauppauge) unless otherwise indicated. Dates, times, and topics may be changed because of
conditions beyond our control CLE programs involve tuition fees; see the CLE Centerfold
for course descriptions and registration details. For information, call 631-234-5588.
April
20 Monday
Introduction to Elder Law– Part One. 6:00–9:00 p.m.
Sign-in and light supper from 5:30 p.m.
22 Wednesday Guided Book Discussion: Covey’s 7 Habits of Highly
Effective People. Habit 7 – Sharpen the saw. 4:00–5:15 p.m.
Sign in and snack from 3:30 p.m.
22 Wednesday Buying & Selling a Business. 6:00–9:00 p.m.
23 Thursday
Foreclosure Settlement Conferences. 6:00–9:00 p.m.
27 Monday
Introduction to Elder Law– Part Two. 6:00–9:00 p.m.
28 Tuesday
Matrimonial Mediation (presented by the SCBA ADR Committee).
6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.
30 Thursday
East End: Historic Estate Tax Savings Opportunities.
Southampton–The Four Seasons. 4-7 p.m.
Reception follows at 7:00 p.m.
30 Thursday
Landlord-Tenant Disputes. 6:00–9:00 p.m.
May
1 Friday
Academy Meeting of Officers and Volunteers. All invited.
7:30 a.m. Complimentary breakfast. (Last meeting of the current
administrative year.)
1 Friday
Financial Fraud: How to Detect It; What to Do About It .
Lunch ‘n Learn. 12:30–2:10 p.m. Sign-in and lunch from noon.
5 Tuesday
“Crime Lab”: Toxicology. 12:30 p.m. at the Riverhead
Courthouse. Details TBA
5 Tuesday
Article 81 vs. Article 17A Guardianship Proceedings.
Presented with the Elder Law & Estate Planning Committee of
the Suffolk County Women’s Bar Association. 6:00–9:00 p.m.
6 Wednesday Show Me the Money: Hidden Assets, Madoff Securities, &
Other Famous Frauds. Extended Lunch ‘n Learn.
Noon–2:45 p.m. Sign-in and lunch from 11:45 a.m.
7 Thursday
Advanced 1031 Exchange Concepts. Morning Seminar.
9:00 a.m.–noon. Sign-in and breakfast from 8:30 a.m.
11 Monday
Trial of a Sex Abuse Case. 6:00–9:00 p.m.
13 Wednesday Guided Book Discussion: Covey’s 7 Habits of Highly Effective
People. Conclusion & Re-Cap. 4:00–5:15 p.m.
Sign in and snack from 3:30 p.m.
13 Wednesday Matrimonial & Elder Law. 6:00–9:00 p.m.
18 Monday
Representing Clients Who Are Patients. Presented by the
SCBA Health & Hospital Committee. 6:00–9:00 p.m.
28 Thursday
Looking to the Future: A Guide for the Estate Practitioner.
6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.
plan.” Presenters are Sheryl L. Randazzo,
Ralph Randazzo, George Tilschner,
Ronald Lanza, Jeanette Grabie, Kim
Smith Richard Weinblatt, and Robert
Howard. Each evening provides three
MCLE credits, including a half credit in
ethics.
As those who practice in the field
know, elder law, a compilation of many
disciplines, can have implications for or
be intertwined with other practice areas.
One such area is matrimonial law, with
older individuals who are marrying or
divorcing facing special questions or
issues. On the evening of May 13, the
Academy will present an in-depth treatment of “Matrimonial & Elder Law,” a
seminar that is intended for both elder
law lawyers and family practice attorneys. Addressing matters that may arise
before, during, and after a marriage, the
program will cover pre-nuptial agreements, second marriage issues, Medicaid
and spousal rights, separation agreements, and much more. Program
Coordinator Sheryl Randazzo will lead a
faculty of knowledgeable presenters.
For elder law attorneys who deal with
guardianship matters, two spring programs are highly recommended. The first,
to be presented with the Elder Law and
Estate Planning Committee of the Suffolk
County Women’s Bar Association on the
evening of May 5, focuses on “Article 81
versus Article 17A Guardianship
Proceedings.” The program, which aims
to answer many of the questions practi-
tioners have regarding the “who, what,
when, why, and where” of guardianship
proceedings, features an outstanding faculty: Justice Sandra L. Sgroi, Surrogate
John M. Czygier, and Saundra M.
Gumerove, Esq. Linda Toga is the program coordinator. The program provides
three MCLE credits and is a must-attend
for any lawyer who works with the elderly and disabled. The second guardianship
program is the Academy’s Article 81
Training Program intended for both
laypersons charged with guardianship of
family members and attorneys who wish
to be placed on Part 36 fiduciary lists.
Chaired by Bronwyn Black, the program,
to be held on June 10, 1:00–4:00 p.m.,
will feature a faculty of attorneys highly
knowledgeable in the field of adult
guardianships.
Like elder law attorneys, estate practitioners will find a wealth of information
in Academy offerings this spring.
On April 30, a unique program entitled
“Historic
Estate
Tax
Savings
Opportunities: Taking Advantage of
the Down Market” will be held in
Southampton at the Four Seasons (North
Sea Road). The program (4:00–7:00 p.m.)
not only features an outstanding faculty
dispensing strategic advice, but, courtesy
of program sponsor Bank of New York
Mellon, will include a fabulous, upscale
reception following the presentations.
The seminar aims to show you how to
take advantage of current times and con(Continued on page 26)
Lessons in Conflict Resolution:
At an early April seminar, cooperatively presented by the Academy and the Brehon
Society of Suffolk County, a prestigious faculty examined the peace process in
Northern Ireland with an eye toward extrapolating universal lessons in conflict resolution any lawyer would find of value. Presenters (left to right) were: Hon. Michael
F. Mullen (a founding member of the Brehon Society), Brian O’Keefe (current president of the Brehon Society), and John D. Feerick, Dean and Norris Professor of
Law, Fordham Law School. The well-received evening was complete with an “Irish
supper” courtesy of BNY Mellon.
ACADEMY OF LAW OFFICERS
DEAN
Executive Director
Patricia M. Meisenheimer
Dorothy Paine Ceparano
Robert K. Howard
Hon. John Kelly
Cheryl F. Mintz
Felix Wienclaw
Gail Blasie
Michael S. Brady
D. Daniel Engstrand, Jr.
Richard V. Rappaport
Wayne J. Schaefer
Robert G. Wilk
Nancy E. Ellis
Diane K. Farrell
Richard L. Filiberto
Allison C. Shields
John C. Zaher
Herbert Kellner
Marilyn Lord-James
Lynn Poster-Zimmerman
George R. Tilschner
Stephen Ukeiley

April 2009 - The Suffolk County Bar Association

Transcription

Similar documents

Bobs Stores

Fall 2013 - Suffolk University

May 2009 - The Suffolk County Bar Association

SCBA Hosts Fundraiser for Cohalan Cares for Kids

Awards Ceremony - Suffolk University

LI Life Calendar - The Suffolk County Bar Association

07 Los Folkloristas.indd

norfolk suffolk - Think! Norfolk

elevateYour Practice - Colorado Defense Lawyers Association

open Office Overview Brochure

Christmas 2015-16 - Debenham High School