April 2009 - The Suffolk County Bar Association
Transcription
April 2009 - The Suffolk County Bar Association
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) Past President Director (2010) Past President Director (2011) 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued on Page 25) 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 (Continued on Page 26) 4 THE SUFFOLK LAWYER — APRIL 2009 ? 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 (Continued on Page 25) THE SUFFOLK LAWYER — APRIL 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued on Page 10) 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] THE SUFFOLK LAWYER — APRIL 2009 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 (Continued on Page 25) 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 THE SUFFOLK LAWYER — APRIL 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued on Page 20) 10 THE SUFFOLK LAWYER — APRIL 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued on Page 24) 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 (Continued on Page 24) 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued on Page 24) 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 THE SUFFOLK LAWYER — APRIL 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued on Page 20) 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued from page 9) 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) (Continued from page 1) Sidney Siben’s Among Us include “Mamas Don't Let Your Babies Grow Up To Be Lawyers” and “Party Like It's 2009.” (Continued from page 1) 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 (Continued from page 19) 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued on Page 24) 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 THE SUFFOLK LAWYER — APRIL 2009 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) [Non-Transitional and Transitional] 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] Time: 6:00–9:00 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper 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) [Non-Transitional and Transitional] Time: 6:00–9:00 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper 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) MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional] Time: 6:00–9:00 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper On the East End HISTORIC ESTATE TAX SAVINGS OPPORTUNITIES: Taking Advantage of the Down Market Thursday, April 30, 2009 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) [Non-Transitional and Transitional] Time: 5:00–9:00 p.m. (Registration from 4:30) Location: SCBA Center Refreshments: Light supper 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 MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional] Time: 4:00–7:00 p.m. (Registration from 5:30) 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 Thursday, April 23, 2009 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 THE SUFFOLK LAWYER — APRIL 2009 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) MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional] 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. MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional] Time: 6:00–9:00 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper 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) MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional] 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) MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional] 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] Time: 6:00–9:00 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper 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.) MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional] Time: 6:00–9:00 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper 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) MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional] Time: 6:00–9:00 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper 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) MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional] Time: 6:00–9:00 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper 24 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued from page 16) 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 (Continued from page 16) 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. (Continued from page 17) 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. (Continued from page 21) 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 (Continued from page 17) 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued from page 3) 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. (Continued from page 4) 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>. (Continued from page 7) 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 THE SUFFOLK LAWYER — APRIL 2009 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 (Continued from page 3) 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 (Continued from page 28) 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 THE SUFFOLK LAWYER — APRIL 2009 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. 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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 THE SUFFOLK LAWYER — APRIL 2009 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. Sign-in and light supper from 5:30 p.m. 23 Thursday Foreclosure Settlement Conferences. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m. 27 Monday Introduction to Elder Law– Part Two. 6:00–9:00 p.m. Sign-in and light supper from 5:30 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. Sign-in and light supper from 5:30 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. Sign-in and light supper from 5:30 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. Sign-in and light supper from 5:30 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. Sign-in and light supper from 5:30 p.m. 18 Monday Representing Clients Who Are Patients. Presented by the SCBA Health & Hospital Committee. 6:00–9:00 p.m. Sign-in and light supper from 5:30 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
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