1 SUFFOLK LAWYER THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION THE DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Historic Installation Of Judges website: Vol. 25 No 5 January 2009 By Sarah Jane LaCova The Suffolk County Bar Association sponsored its annual judicial swearing-in and robing ceremony on Monday, January 5 at Touro Law Center in Central Islip for 11 elected justices and judges. A standingroom-only crowd of dignitaries and well wishers were in attendance. The justices, judges, and members of the Executive Committee filed in behind an honor guard of Court Officers who presented the colors and formally stood at watch throughout the proceedings. James R. Winkler, president of the Suffolk County Bar Association and host of the ceremony remarked that the event continues a time-honored tradition in which the SCBA presents newly elected judges with their first set of judicial robes, a symbol of the mantle of the office to which they were elected and a gift from the members of the association. Veteran judges inducted received a crystal plaque as a memento of the occasion. President Winkler said this year is particularly memorable in our history as we are inducting our first Hispanic Justice of the Supreme Court in Suffolk County. To start the ceremony, President Winkler introduced District Court Judge Stephen M. Behar who gave the Invocation, followed by a beautiful rendition of The National Anthem sung by former SCBA director John B. Zollo. With 11 inductees and guest justices and judges, the dais was overflowing for this year s annual event. Suffolk s District Administrative Judge H. Patrick Leis III presided over the ceremony, remarking on INSIDE JANUARY 2009 Conversing Over a WWII Vet s Diary B-17 bomber operator/gunner s memories...3 Sounding the Soul of Character Tolstoy s War and Peace...16 SCBA Holiday Party Magical Moments Holidays are over but memories aren t...14 History s Tragedy Moves Artist Recreating lost statues of Buddha...4 Robing Ceremony Photos to commemorate the day...15 Nominating Committee Seeks Candidates Get involved in the SCBA...16 Future Lawyers Forum Finding loan forgiveness...7 Legal Articles American Perspectives...17 Appellate Litigation...10 Bench Briefs...5 Business Law...17 Consumer Bankruptcy...11 DMV...13 For the Defense...18 Matrimonial...6 Real Estate...12 Second Circuit Briefs...13 Trusts and Estates...12 Academy News...26 Advantage Card Listings...19 Among Us...9 Calendar: Academy...28 Calendar: SCBA...26 Committee Corner...18 Note From Your Editor...2 Suffolk County District Administrative Judge H. Patrick Leis III administering the Oath of Office to the three newly elected Supreme Court Justices, from left, Jerry Garguilo, Hector LaSalle, and William J. Condon. More photos on p.15. the excellent relationship between members of the bench and bar. He mentioned that we in Suffolk County have among us the finest judges in the state including our Presiding Justice A. Gail Prudenti, who is a Suffolk County Supreme Court Justice. In his opening remarks, Justice Leis explained to the audience that when the new judges leave the auditorium, they bring with them new titles or forms of address - Your Honor or Judge when presiding over the court. The Judges of the Supreme Court are called Justices. These titles recognize the character traits that a person elected or appointed as judge should possess. Three Suffolk County justices elected to the Supreme Court bench were installed: Hon. William J. Condon, Hon. Jerry Garguilo and Hon. Hector LaSalle. The theme the sponsors described exemplified their character, compassion, discipline and PRESIDENT S MESSAGE Is There Still a Tort Crisis? By Jim Winkler More than four years ago an article appeared in The New York Times entitled Cooking Up a Crisis. I cut it out, anticipating that I would serve a year as President of the Suffolk County Bar Association and might want to devote a column to the issue of tort reform. Four years have now passed and I hear very little from practicing lawyers here in Suffolk about this issue that was such a hot topic a few years ago. The New York Times article pointed out that Tort Reform Zealots, including doctors, insurance companies, executives and politicians were railing against crack pot jury awards and lawsuits from undeserving patients who were driving up the costs of health care insurance and driving out doctors. During the 2004 Presidential election cycle George Bush ranted against what he called junk and frivolous lawsuits and argued that these suits were discouraging doctors from practicing in the first place. In that same year, the American Medical Association issued a proclamation stating that 20 States are in a full blown medical liability crisis. The AMA argued that this crisis was causing the (Continued on Page 20) a love of the law that is needed to fulfill their roles in the justice legal system. Justice LaSalle s sponsor, Suffolk County Legislator Ricardo Montano, who represents the 9th District in which Touro Law Center sits, said he was proud of his dear friend with whom he had worked in various capacities of public service. President Winkler presented the newly elected justices with their first set of judicial robes and Justice Leis administered the Oath of Office. The Oath of Office for the three County Court Judges, re-elected Judge Joseph Farneti, newly elected Judge James F. Quinn and re-elected Judge Jeffrey Arlen Spinner was administered by the Honorable C. Randall Hinrichs, Supervising Judge of the Criminal Terms of the Courts within the County of Suffolk, Tenth Judicial District. The Honorable Jennifer Anne Henry, newly elected to the District Court was James R. Winkler Photo by Barry Smolowitz sponsored by retired Court of Claims Judge Michael F. Mullen with whom she worked for six years until his retirement. It was a poignant moment when her father, retired Justice Patrick Henry administered the Oath of Office to her. Following the break in tradition (District Court Judges are sworn in by the Supervising Judge of the District Court), Judge Madeleine A. Fitzgibbon resumed her responsibility and administered the Oath of Office to the four remaining newly elected and re-elected District Court Judges: Hon. Paul M. Hensley, Hon. William G. Ford, Hon. John J. Toomey, Jr. and Hon. Stephen Ukeiley. Judge Ford waxed nostalgically about his parents who worked for over thirty years in the Central Islip Psychiatric Hospital and remarked that it is ironic that now in 2009, he will be sitting as a Judge of the District Court on virtually the same site. Judge Toomey was sponsored by his wife Dorothy. She said that her husband was devoted to the law and love of his family and was a firm and compassionate judge. The ceremony s theme described by sponsors and inductees was one of gratitude to their political leaders, mentors, parents, spouses, children and friends, and all were proud to serve the public and their communities. Another chapter has been added to Suffolk County s judicial history and Justice Leis, in his concluding remarks, wished his judges well and asked that they be thankful every day for the very great opportunity they have been given. Fittingly, he also wished all a very happy and peaceful New Year before adjourning the proceeding. BAR BRIEFS Diversity Symposium Thursday, February 5 from 4 to 7 p.m. Bar Center Welcome To Law Students Monday, February 9, from 4 to 6 p.m. Great Hall Reception welcoming area Law Students to our Bar Association Suffolk County Women s Bar 25th Anniversary Gala Celebrating Silver Going for the Gold Monday, March 30 at 6 p.m. Keynote speaker: Honorable M. Kunin, Ambassador and Former Vermont Governor, author of Pearls, Politics and Power The Watermill, Smithtown
2 2 THE SUFFOLK LAWYER JANUARY 2009 James R. Winkler President Ilene S. Cooper President Elect Sheryl L. Randazzo First Vice President Matthew E. Pachman Second Vice President Arthur E. Shulman Treasurer Dennis R. Chase Secretary Patricia M. Meisenheimer Director (2009) Ted M. Rosenberg Director (2009) Richard L. Stern Director (2009) Richard Alan Weinblatt Director (2009) Lynne M. Gordon Director (2010) Maureen T. Liccione Director (2010) Hon. Peter H. Mayer Director (2010) Daniel J. Tambasco Director (2010) Hon. W. Gerard Asher Director (2011) Annamarie Donovan Director (2011) Joseph A. Hanshe Director (2011) George R. Tilschner Director (2011) Robert F. Quinlan Past President Director (2009) John L. Buonora Past President Director (2010) Barry M. Smolowitz Past President Director (2011) Sarah Jane La Cova Executive Director SCBA Calendar Suffolk County Bar Association 560 Wheeler Road Hauppauge NY Phone (631) Fax # (631) Board of Directors OF MEETINGS AND EVENTS 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: JANUARY Tuesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room. 21 Wednesday Solo & Small Firm Practitioners Committee, 4:00 p.m., Board Room. 22 Thursday Real Property Committee, 6:00 p.m., Board Room. 26 Monday Board of Directors, 5:30 p.m., Board Room. 27 Tuesday Health & Hospital Law Committee, 6:00 p.m., President s Office. Professional Ethics & Civility Committee, 6:00 p.m., Board Room. FEBRUARY Thursday Diversity Symposium,...in the Bar,...in the Judiciary,..., in Legal Education,...in Employment, 4:00 p.m. to 7:30 p.m., Bar Center, Complimentary Admission. Call Bar center for reservation. 9 Monday Executive Committee, 2:00 p.m., Board Room. Law Students reception, SCBA Bar Center, 4:00 p.m. to 6:00 p.m.. Further details forthcoming. 10 Tuesday Education Law Committee, 12:30 p.m., Board Room. Joint Surrogate Court/Taxation Law Committee, 6:00 p.m., Great Hall. 11 Wednesday Elder Law Committee, 12:15 p.m., Great Hall. 17 Tuesday Real Property Committee, 6:00 p.m., Board Room. 19 Thursday Appellate Practice Committee, 6:30 p.m., Board Room. 23 Monday Board of Directors, 5:30 p.m., Board Room. 24 Tuesday Professional Ethics & Civility Committee, 6:00 p.m., Board Room. MARCH Wednesday Solo & Small Firm Practitioners Committee, 4:00 p.m., Board Room. 9 Monday Executive Committee, 3:00 p.m., Board Room. 10 Tuesday Education Law Committee, 12:30 p.m., Board Room. 11 Wednesday Elder Law Committee, 12:15 p.m., Great Hall. Animal Law Committee, 6:00 p.m., Great Hall. 18 Wednesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room. 19 Thursday Appellate Practice Committee, 6:30 p.m., Board Room. 23 Monday Board of Directors, 5:30 p.m., Board Room. 31 Tuesday Professional Ethics & Civility Committee, 6:00 p.m., Board Room. Donor Barrocas & Rieger, LLP Dorothy A. Courten Joleen and Scott M. Karson Garrison LLP. Paul and Jane Ades Jane & Joe LaCova Staff at the SCBA Harvey B. Besunder Harvey B. Besundeer A NOTE FROM YOUR EDITOR Happy New Year everyone! I hope your holiday season was wonderful and wish you much happiness in Why not make one of your New Years resolutions writing for The Suffolk Lawyer? As I always say, the paper is a reflection of the members of the Suffolk County Bar Association. Why not share some of your talents and insights with your colleagues? Perhaps you d like to write about something that hasn t appeared in our publication yet, or a trend in the legal field. I m open to discussing all suggestions and ideas. So please contact me either by at or call me at (516) One last request -- feel free to write letters to the editor. It s Laura Lane refreshing to hear from you whether you write to congratulate one of the writers (always appreciated), have a suggestion, or even a criticism. The paper belongs to all of you so hearing from you is always welcome. Keep sending in those stories Peace and Prosperity, Laura Lane Editor-in-Chief Important Information from the Lawyers Committee on Alcohol & Drug Abuse: Thomas More Group Twelve-Step Meeting Every Wednesday at 6 p.m., Parish Outreach House, Kings Road - Hauppauge All who are associated with the legal profession welcome. LAWYERS COMMITTEE HELP-LINE: THE SUFFOLK LAWYER LAURA LANE Editor-in-Chief 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 We wish to Acknowledge those who contributed to the Lawyer Assistance Foundation Purpose In memory of Linda Kurtzberg s mother, Fay Hearing In memory of Paul Justin Reilly In memory of Bernard Buck Finkelstein, a retired partner at Paul, Weiss, Rifkind, Wharton & In memory of Alfred Besunder, father of Harvey B. Besunder In memory of Marc DeSimone In memory of Maurice Haberman Publisher Long Islander Newspapers in conjunction with The Suffolk County Bar Association The Suffolk Lawyer is published monthly, except for the months of July and August, by The Long Islander Newspapers under the auspices of The Suffolk County Bar Association. The Suffolk County Bar Association, 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, Send letters and editorial copy to: The Suffolk Lawyer 560 Wheeler Road, Hauppauge, NY Fax: Website: E.Mail: or 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: ) 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
3 THE SUFFOLK LAWYER JANUARY A Conversation Over A Long Lost Diary By John L. Buonora It is facing a dangerous challenge in the face of fear that is a true measure of courage and of heroism. John L. Buonora August J. Ginocchio, Gus Ginocchio, recently turned 90 years of age. He is happily retired, living with Betty, his wife of 67 years. Gus retired four years ago from a very successful law practice in Babylon Village. Before becoming a lawyer Gus, like so many young men of his generation, enlisted in the military during World War II. Also, like so many young men of his generation who went to war, when his service to his country was over, he wanted to put it behind him and return to his loving family and embark on a career in civilian life. Once his service in the United States Army Air Forces (as it was then known) was completed, Gus never thought much about the Big War nor did he think much about a diary that he kept over an approximately three month period in 1944 when he was flying missions as a radio operator/gunman in a B-17 Bomber over Europe. Gus flew 50 bombing missions during the Second World War altogether logging over 800 hours of flight time. He recorded his thoughts and exploits in this diary. They were entries in a notepad; you know, the kind you see stenographers or cops or reporters use. It is an extraordinary timeline of an extraordinary man during an extraordinary period in our history. As if that wasn t enough, he later flew numerous missions over the famous Burma Hump - but more about that later. Personal diaries are something intimate and special, usually not intended for the eyes of anyone other than the writer. Diary entries often are conversations that the writer has with himself expressing his most intimate thoughts, hopes and fears to no one but himself. It is a touching experience to read another person s diary. Doing so allows the reader to almost look into the soul of the writer. Gus recorded factual information and his thoughts in flying 50 missions over Europe. He was under no constraint or obligation to keep a diary. He just wanted to record his own thoughts and observations, perhaps for future reflection. But sometime after the War the diary was misplaced or lost, and wasn t found for decades. Once their children were grown Gus and Betty moved from their home in North Babylon to a smaller condominium in Holbrook. It was while cleaning out the house preparing for the move that Betty came upon the diary thereby resurrecting some of Gus innermost thoughts from a generation ago. The finding of that diary and my reading of it so many more years later eventually led to my sitting down with Gus in his kitchen to talk about that Gus and His Fellow Bomber Crew. Gus is second from the right in the first row. Gus Ginocchio today. diary and the life and career of a very special lawyer. As we discussed Gus life, career and military service, my mind constantly drifted to some of the mesmerizing passages from that diary. July 18, 1944: Missions One and Two Target Memminger, Germany Assembly Plant My first mission. To be honest I was dead scared. I would watch how fast I was breathing over the target by watching the oxygen indicator. To our surprise, no flak and no fighters. However we later learned fifteen of our ships were knocked down by German fighters. We were just in the right place Although we came out easy, we realized we were playing for keeps. Gus says that he was never meant to be a soldier. I m not a risk taker. I could never see myself sticking a bayonet into someone s gut, he said. July 20, 1944: Missions Five and Six Still scared. Realize more than ever this is a dangerous business. Why didn t they send me to clerical school Later learned that Mike Higgins, a close friend of our pilot, got it here on his first mission God stay with our crew. There are no atheists in foxholes is a saying whose origin is unclear. Among others, it is attributed to legendary World War II correspondent Ernie Pyle. This truism can certainly be said for those who face combat in the air as well. July 22, 1944: Mission Nine Target Ploesti, Rumania Still feel scared about this business God please stay with us. Gus has always been a devoutly religious man. He was greatly influenced by Catholic nuns and brothers while growing Photo by John L. Buonora up. In speaking with Gus one readily sees his love for his family, his country, his profession and his God. July 24, 1944: Mission Ten. Target Turin, Italy There was flak today but it wasn t accurate... That stuff still scares hell out of me. There is an old English proverb that a hero is a man who is afraid to run away. Some people say that a person has no fear meaning that person possesses courage. But I think that it takes no courage to face something one does not fear. It is the facing of a dangerous challenge in the face of fear that is a true measure of courage and of heroism. July 25, 1944: Missions Eleven and Twelve Target Linz, Austria. Another day of horror for us. Expected heaviest flak of our missions. Got it. Gus has always been devoted to his wife Betty. July 26, 1944: Missions Thirteen and Fourteen. Target Weiner Neudorf, Austria.. Today wasn t the best day to celebrate my third wedding anniversary, but I am living and that is important. As a member of the 15th Air Force, Fifth Wing of the 463rd Bombardment Group flying over 800 hours Gus earned many honors. Among these honors were a Presidential Unit Citation (with his entire unit), three Air Medals (including one with oak leaf clusters for the American Theater, European Theater, China-Burma-India Theater, The World War II Victory Medal and the Good Conduct Medal. August 3, 1944: Missions Seventeen and Eighteen Target Friedrichshafen, Germany Ran into mechanical trouble today. Oil sputtered out of #1 engine. We had to feather our prop. Lost altitude and speed and fell behind formation, made us worry because Germany is not a place for a straggling B-17. At one point the commander of the 463rd Bombardment Group was Lt. Colonel Frank Kurtz who his men referred to as the War Lord because he was a risk taker of the highest type. Lt. Colonel Kurtz named his plane the Swoose because it seemed to be a combination of a swan and a goose. The plane had such a colorful history and Lt. Colonel Kurtz became so attached to that appellation that Photo courtesy of Gus Ginocchio. Birth Of A New Column The last article I wrote for the November Suffolk Lawyer, The Greatest Generation Maybe All of Them generated a lot of feedback. I received a nice letter from SCBA member, Don Farinacci, who served in Vietnam and wrote a book entitled Last Full Measure of Devotion, A Tribute to America s Heroes of the Vietnam War. I always enjoy hearing from our members, even if it is to point out some of my inadequacies. Former District Attorney and Retired Supreme Court Justice Patrick Henry reminded me that he served in the Navy during the Korean Conflict and not in the Merchant Marine during World War II as my last article indicated. The computer that sits between my ears had a bunch of information but it came out garbled as happens more and more often with some of us through the advancing years. The World War II service I meant to refer to was that of former District Attorney Lindsay Henry whose service is memorialized in a book written with his son and Patrick s brother, Tom Henry. It was Tom whose I career as a merchant mariner in addition to his service in the Navy that I misremembered. The book Tom wrote with his Dad is entitled Cracking Hitler s Atlantic Wall which I d like to talk about in a future article. I also received a call from my good friend Gus Fischel who told me he has all of this really great material on members who served their country in World War II. It was Gus call that was the inspiration for the accompanying article on another Gus, August J. Ginocchio, who served his country so well during the Second World War. I mentioned to Gus (Fischel, that is) that Suffolk Lawyer editor Laura Lane suggested, since there are so many really interesting stories out there, that we might want to consider including some of our members patriotic service in a regular column. We both considered the possibility that perhaps our younger members might not identify with the exploits of the old timers. We will let you, the reader, be the judge. - Buonora he named his daughter Swoosie, as in Swoosie Kurtz who went on to be a renowned actress of stage and screen. August 6, 1944: Mission Nineteen:. Target Le Pouzin, France Our engineer is no longer with us. He is in the hospital being treated for a mental disorder. Years later and after establishing a successful law practice in Babylon, Gus became very active in the Suffolk County Bar Association s Lawyers Assistance Foundation as well as being one of the founders of the New York State Bar Association s Lawyers Assistance Foundation. Always ready to help those in need, Gus would say that Lawyers helped me when I was down and he would and (Continued on page 21)
4 4 NEED? SOLUTIONS THE SUFFOLK LAWYER JANUARY 2009 FEATURE Communicating By Creating Art Tragedy Far Away Inspires Photo courtesy of Chuck Von Schmidt ELDER LAW AND ESTATE PLANNING BC&S BURNER & Medicaid Eligibility Estate Planning Trusts & Estates Litigation CHERCHES Nursing Home Placement Guardianships Last Wills & Testaments Trusts, Irrevocable & Revocable Strategies for Saving Estate Taxes Long Term Care Insurances Supplemental SMITH, Needs Trusts LLP ATTORNEYS AT LAW BURNER, SMITH Nancy Burner, Esq., CELA CERTIFIED AS AN ELDER LAW ATTORNEY* & ASSOCIATES, LLP Eric D. Cherches, Esq. Kim M. Smith, Esq. ATTORNEYS AT LAW ELDER LAW AND ESTATE PLANNING Medicaid Eligibility Last Wills & Testaments NANCY BURNER, ESQ., Estate Planning Trusts, Irrevocable & Revocable Trusts & Estates Litigation KIM M. SMITH, Strategies ESQ. for Saving Estate Taxes Nursing Home Placement Long Term Care Insurances Guardianships Supplemental Needs Trusts 46 Route 25A, Suite 4 Setauket, NY Phone Fax Phone Fax Main St. Westhampton Beach, NY Phone Westhampton Fax Beach, NY 46 Route 25A, Suite 4 Setauket, NY By Appointment * 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. Artist Chuck von Schmidt bending a piece of steel to weld together a form to slump a piece of fused glass for the Ark he made for Temple Beth Torah in Melville. By Laura Lane Spirituality guides many people s lives. For some it is a fascination, a quest of sorts to unravel and study. And for others it is a passion expressed best artistically. Although SCBA member Chuck von Schmidt never considered spirituality to be a driving force in his life, it has nonetheless touched him artistically. His most successful pieces personify spirituality as do his most recent works. Mr. von Schmidt is currently preparing for his upcoming one-man exhibition, Bamiyan, From Silk To Lava that celebrates the lost colossal statues of Buddha on the historic Silk Road in Afghanistan. Religion is not important to me consciously, but it seems to be a continuing thread in my work, he said. My first piece I considered to be a sculpture, I made as a preteen. It was the Virgin Mary. And three of my best pieces are involved in some kind of religion; I think it s a coincidence. But I do believe that in many respects certain aspects of religion are a part of our life. He was inspired to create the pieces included in his next exhibit in Manhattan s Chelsea by the destruction of other artwork. In March of 2001, the Afghan Taliban blew up statues of Buddha on the Silk Road in the Bamiyan Valley in Afghanistan. The statues measuring 55 and 37 meters high respectively, were the largest examples of standing Buddha carvings in the world and were probably erected in the 4th or 5th century. When Mr. von Schmidt learned of the destruction of the ancient works he remembered the pieces and was devastated. And the more he thought about it, the more it (Continued on page 20) Chuck von Schmidt s one-man exhibition Bamiyan, From Silk To Lava Noho Gallery 530 West 25 th St., Chelsea January 20 to February Two sculptures from Bamiyan, From Silk To Lava, included in Chuck von Schmidt s upcoming exhibition in Chelsea. SCBA member Chuck von Schmidt s crystal sculpture, The Ideals of Aaron, presented to Pope John Paul II, in 2005.
5 THE SUFFOLK LAWYER JANUARY Suffolk County Supreme Court Honorable Joseph Farneti Motion to restore the instant action to the calendar denied; CPLR 3216 inapplicable. In Sean Marcolin Bunting v. Harry C. Demiris, Jr. and the Law Offices of Harry C. Demiris, Jr., Index No , decided on September 9, 2008, the court denied plaintiff s motion for an order pursuant to CPLR 3216, restoring the instant action to the court s calendar, and upon restoration, compelling defendants to perform its remaining obligations under the terms of a settlement agreement. The court noted that plaintiff s argument was misplaced. The court reasoned that CPLR 3216 may not be utilized if a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof. Honorable John J.J. Jones Petition for stay of arbitration denied; conclusory allegations insufficient to establish contract of adhesion or unconscionability. In In the Matter of the Application for an Order Staying Arbitration Between Randolph Rydout v. Swimming Pools by John Schoeck, Inc., Index No , decided on November 13, 2008, the court denied the petition for a stay of the arbitration sought by the respondent and dismissed the petition. The court reasoned that the petitioner s conclusory allegations failed to demonstrate that the agreement between the parties was a contract of adhesion or that the agreement to arbitrate was unconscionable. The court noted that the enforceability of arbitration agreements was governed by the rules applicable to contracts generally. The court further noted that mutuality of remedy was not required in an arbitration agreement and if there was consideration for the entire agreement such consideration would support the arbitration option as well as every other obligation in the agreement. Honorable Peter H. Mayer Motion for judgment of default denied; failure to satisfy CPLR 306(a). In P.C. Richard & Son Long Island Corp., v. Crystal Springs Resort Development, Index No , decided on November 25, 2008, the court denied plaintiff s motion for a judgment of default against the defendant. The court reasoned that despite the specific addresses attributed to the defendant in the summons and invoice, the affidavit of service was nondescript with regard to the address at which service was purportedly effectuated. The court found that such a vague description failed to satisfy the specificity required by CPLR 306(a). The court further noted that since the affidavit of service failed to set forth the specific address at which service was purportedly made, it was unreliable proof upon BENCH BRIEFS which to establish jurisdiction over the defendant or to grant a judgment by default. Honorable Emily Pines Motion for summary judgment denied; untimely. In Doreen Henry v. Dominican Village, Inc., Index No , decided on July 10, 2008, the court denied defendant s summary judgment motion. The court held that it did not have discretion to entertain the motion on its merits. The court noted that where a court does not set a date by which summary judgment motions must be made pursuant to CPLR 3212(a), such a motion must be made no later than 120 days after the filing of the note of issue except with leave of the court on good cause shown. The court reasoned that absent a showing of good cause, a late summary judgment motion may not be considered, even if it appeared to have merit and the delay had not prejudiced the adversary. Motion quashing subpoena ad testificandum granted; defendants failed to demonstrate special circumstances. In Brittany Owens v. Petland Discounts, Inc., and Christopher Prokop, Index No , decided on February 4, 2008, the court granted plaintiff s motion quashing the Subpoena Ad Testificandum served upon non-parties. Plaintiff argued that the subpoenas should be quashed because the defendants failed to demonstrate the special circumstances required to conduct non party witness depositions or treating physicians. Plaintiff further argued that the subpoenas were defective because they fail to state any special circumstance or reason which would require the depositions of the non-party health care providers. In granting the motion, the court reasoned that the defendants had not demonstrated that the notes/records provided by these treating providers were insufficient to enable them to prepare for trial. Honorable Sandra L. Sgroi Motion to renew and reargue denied; matter remitted to a different arbitrator. In Christopher Dorney v. CRC Group, LLC, Index No , decided on May 2, 2008, the court denied defendant s motion to renew and reargue. The court further affirmed the holdings of its prior order. The court noted that the case involved an arbitration clause in a broad agreement between the parties that required any unresolved dispute to be determined by a final arbitration after mediation. The court pointed out that both federal and state statutes favor the resolution of disputes though mediation or arbitration if that is what is called for in a contract previously agreed to by the persons who have a dispute. The court further reasoned that where as here, the proceeding before the court involved challenges to the arbitrator s exercise of powers and the legality of the decision; (Continued on page 20) Still handling Medicaid cases yourself? Please be seated. Thanks to the passage of the Deficit Reduction Act of 2005, planning and applying for Medicaid is more challenging than ever before and filled with uncertainty. Every Medicaid case is now complex and requires the knowledge and experience associated with a firm that lives and breathes Elder Law. 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6 6 THE SUFFOLK LAWYER JANUARY 2009 MATRIMONIAL & FAMILY LAW Women Should Defend The Grounds Law By John Ray Last month a female divorce attorney wrote an article in The Suffolk Lawyer in support of no-fault divorce. But women have good reason to defend the grounds law. Women, especially those with children, usually have the weaker bargaining position in divorce cases (which is especially true on Long Island, where so many The law could use some change, but it should be in favor of consequences for wrongful conduct, including bringing on a case when grounds are not proven. men are self-employed in primary or secondary businesses controlling their own books and income). It is common that the wife foregoes a career and continued education, taking menial jobs and raising the children, or undergoing the heroic stresses of supermom/careerist; whilst the husband grows in his own stature and then entitles himself to a fresh start with a new love or sex interest, leaving his wife and family as flotsam as he speeds away. This is still largely the case today, notwithstanding the changing social atmosphere often asserted as a basis to change the law. A grounds trial is a perfectly good defense for the wife under these circumstances, especially when her spouse who pledged himself to her for life, now is pressed by a new pledgee to cut his ties and suck out of the marriage all the assets he can. Indeed, sacred religious morals are not the sine qua non to uphold New York s grounds law. Instead, marriage is also an executory contract which has been carried out. Marriages are, however, deprived of protections which other contracts give: e.g. a spouse cannot claim or counterclaim for breach of it, nor sue a third-party for tortiously interfering with the contract, for it is a felony to do so. Nor can third-party beneficiaries, namely the children, sue for breach (actually, children are really junior partners in the marriage but unfairly have no standing to oppose the dissolution or receive the assets), nor is there any ability to claim or counterclaim for egregious violation of the contract, converting the action into a tort with the remedies of tort. Yet the courts say that the marriage is to be treated as a partnership, but without the other civil remedies and protections a partnership contract has. How is a wife recompensed under the law John Ray for carrying a child in her womb and giving birth, a real investment brought by her into the marriage partnership? How, is she recompensed, even in a childless marriage, when she has invested fecund youthful years in the marriage to one man? He can produce a child at any age; she cannot. When she brought a child into the world, there was no condition that the husband retained some right to give another future spouse his treasure, or to produce a child by another woman in the future who would have a competing claim to the fruits of his labor. These unforeseen losses are not compensated when the husband seeks divorce. Indeed, there are other prescriptive, substantial investments in a marriage, and losses which are not recompensed when divorce comes such as: affection, comfort of the certainty of marriage, security, career potential as a wife (isn t choosing to be a wife or mother also choosing a career in its own right?), finality, love, even unrequited love. No doubt one can identify other losses as well which are not recompensed. Nor is there any reason for a woman to accept the denigration of the religious marital vow. If the parties chose to exchange religious vows, rather than only civil ones, by choosing themselves the dictates inherent in the religious marriage, that marital partnership necessarily included the value of those religious vows, for the law always insists that words have the force of their clear meaning. Yet there is no remedy for the loss of the value of the religious bond, in a divorce. All these remedies are lost to a woman if a divorce is imposed upon her. Her best defense left to her in attempting to preserve her greatest investment in her life, is to contest grounds. She can insist that the divorcing husband prove that she has done wrong, egregious enough to deprive her and her children of the fruits of marriage. There are also arguments that the state has a compelling non-sacred interest in preserving the value of marriage by insisting upon proof of grounds for divorce, but those are for a different article. I m just interested here in the plight of women who are not mere random atoms in a changing social atmosphere. They are still the majority, living in an atmosphere called marriage. The law could use some change, but it should be in favor of consequences for wrongful conduct, including bringing on a case when grounds are not proven. This will help protect women. Note: The author, a former history teacher, semi-pro football player, and still a lacrosse goalie for 45 years, is the owner of John Ray & Associates since He has worked on numerous cases in tort, criminal, matrimonial, family, guardianship, municipal, libel, employment, and education law
7 FUTURE LAWYERS FORUM Loan Forgiveness THE SUFFOLK LAWYER JANUARY Frederick Eisenbud, Esq. Practicing Environmental and Municipal Law Since 1984 Public sector jobs may be your ticket By Andrew Van Singel While General Motors is on the brink of failure and Macy s is slashing prices on everything from blenders to chinos, there is one business that seems to be recession proof Law School. Over the past ten years, nearly all law schools have increased tuition above inflation rates. In fact, many law school s tuition rates have increased over 250 percent, while some institutions hiked tuition as high as 500 percent. The effect of this increase is twofold: the sticker shock prevents many people from entering the legal profession, and those who do enter, are forced to take out substantial amounts of student loans, and leave their institution with enormous amounts of debt. Most studies indicate the average law student has $80,000 in loans by the time they graduate (I have always prided myself on being above average, but this is one instance where I would really like to be below average). Keep in mind these figures reflect indebtedness of today s graduate, which were paying slightly less ridiculous tuition. Like many others, when I started law school, I wanted to do more than push papers around or perform mindless discovery for cases that would be settled. I wanted to work with the public and actually see myself making a difference. Unfortunately, my education is financed heavily by the government, and if I ever want to see a zero balance on my loans, I feel as if I am forced into entering the private sector in lieu of a higher paying job. To make matters worse, these law school factories are churning out more graduates than job openings, making an already tough job market even tougher. With the increase in graduates comes greater competition for what little jobs are available, allowing employers to pull down starting salaries, knowing As many of you know, The Suffolk County Bar Association gives a One thousand Dollar Scholarship every year to a deserving Suffolk County High School Senior who is continuing on with his or her education. A very dedicated committee including the Bar Association staff, spends many hours distributing the scholarship packets, redacting names, and reading through voluminous applications to select a winner. I instituted this scholarship when I was president of the Association as a way of reaching out to the community and letting the public know that we care about the families here in Suffolk County. Our Association has more than 4,000 members and I am saddened when I Andrew Van Singel that for every person who won t work for $50,000 per year, twenty people will be standing at the front door, resume in hand, asking when they can start. It is ironic. I left a job driving a forklift before I started law school, dreaming of a brighter future, and now, almost two years into my legal education, the jobs that I have applied for are paying less than what I was doing a few years ago a job that only required a semi functional temporal lobe, the ability to count to 10, and a foot to hit the gas and brake of a forklift. One job was offering $8 per hour. I think that is illegal. The real losers are the public interest agencies, such as legal aid. These offices are losing out on talented lawyers because nobody can afford to work there and make their student loan payments. Some schools have tried to ease the strain by creating loan forgiveness programs for those who take a public interest job. At Touro Law Center, where I currently attend, the school has a Loan Repayment Assistance Fund that offers help to those earning less than $55,000 per year with grants averaging $2,000 per year. However, most schools are finding it harder to adequately offer such programs, due to the dramatic increase in tuition over the past few years. Such programs may have been suitable 10 years ago when it only cost $200 to take a contracts class (and the endowment wasn t tied in a devalued stock market). However, there is a light at the end of the tunnel. Last year, President Bush signed into law the Higher Education Opportunity Act. It sets forth several programs that may reduce or forgive loans to those who work in the public sector. For example, the Prosecutor and Defender Incentive Act will give (Continued on page 8) Suffolk County Bar Association Scholarship Donation Request report that we have not raised enough in donations for even one scholarship to be given out this year. While I recognize that times are tough, if every member donated one dollar, we could give out four scholarships, something students could certainly use. I am asking all of you to send your donations to the SCBA s Scholarship Fund. Also, a big jar will be available at the Bar Center for your dollars. I believe many of you care as much as I do about the future of our young people and are willing to pitch in. On behalf of our committee, thank you for your support and we wish all of you the best for the coming New Year. Lynne Adair Kramer Co-Chair, Environmental Committee Hauppauge Industrial Association Ready to assist you or your client with: Environmental Law and Litigation [Civil Criminal Administrative Municipal] Hazardous Waste/Oil Spill Cost Recovery Litigation Environmental Issues in Commercial Real Estate Law Office of Frederick Eisenbud 6165 Jericho Turnpike Commack, New York Phone: (631) Fax: (631) More Than 40 Years Of Significant Experience In: CONDEMNATION, TAX CERTIORARI, ZONING, LAND USE LITIGATION, COMMERCIAL AND REAL PROPERTY LITIGATION Flower, Medalie & Markowitz 24 E. Main Street Suite 201 Bay Shore, NY (631) Fax: (631)
8 8 THE SUFFOLK LAWYER JANUARY 2009 More work than you can get to? Not enough hours in the day? Let me help you increase your profits and get that work off your desk. Call today for top-quality research, writing, & litigation support. GAIL M. BLASIE, ESQ. Licensed in NY and CA (516) Lake Shore Drive, Massapequa Park, NY THE Law Of fice OF CHRIS MCDONOUGH DISCIPLINARY MATTERS ETHICS OPINIONS Served as Assistant Counsel to the Appellate Division Grievance Committee for the Tenth Judicial District for 13 years. Practice concentrated on all matters related to the practice of law. Adjunct Professor of Professional Responsibility. Noted author and CLE instructor on practice management and professional ethics. Executive Committee member for the Nassau County Bar Association Committee on Professional Ethics. Offices in Suffolk, Nassau and Manhattan. Main office 115 Broadhollow Road Suite 250 Melville, New York Loan Forgiveness (Continued from page 7) lawyers $10,000 per year, for a maximum of $60,000 in exchange for a three year commitment to qualifying prosecution and public defender positions. A similar provision exists giving legal aid employees $6,000 per year. The Perkins Loan Cancellation for Public Service program will reduce a percentage of the borrowers Perkins Loan every year, with 100 percent of the loan forgiven for five years of service. These amendments to the Higher Education Opportunity Act were recently enacted, so it is unclear as to how the programs will be executed. Regardless of the details that will inevitably be ironed out, the foundation has been laid which will enable law school graduates the opportunity to take a position they want to take, rather than a position they have to take. As the wages in the private sector continue to become more and more deflated, not only is working in public interest a viable option, but it may become an attractive option. A public sector job, which includes health insurance, loan forgiveness programs, and a nine-to-five lifestyle, may be an advantageous trade for the all day and night private sector firm. While the chilling reality of having a $1,500 per month student loan payment may be a sure thing for some students, those who desire to work in the public sector are not without hope. Thanks to the new amendments to the Higher Education Opportunity Act, working in the public sector may be more of a reality than it was in the past few years. It might not be a bailout, but it may be the closest thing we will get to one. Note: The author is a second year student at Touro Law School, a member of Touro Law Review, and treasurer for the New York Democratic Lawyers Council, Touro Chapter. He can be reached at Submit To Suffolk Lawyer Special Sections The upcoming special sections and the special section editors are as follows: April Education Law Christopher Gatto June Women & the Law Allison C. Shields SCBA members are encouraged to contribute to the special sections. Please contact the special section editors to discuss guidelines, deadlines, your submission idea and any questions. DO YOUR CLIENT S OWE YOU MONEY? LET ME COLLECT THE FEES YOU VE EARNED! CALL THE LAW OFFICE OF ELAN MARKEWITZ, ESQ SOUTHFIELDS ROAD RIVERHEAD NY Practicing in Collections *Commercial *Consumer *LEGAL
9 On the Move In response to its increased presence and client base on Long Island, Davidoff Malito & Hutcher LLP is expanding its Garden City office space by 20 percent on March 1. The extra space will accommodate five additional attorneys. Susan Cozzolino has joined the law firm of Haley Weinblatt & Calcagni, LLP as Medicaid Benefits Administrator. Prior to joining the law firm, Sue spent over 28 years in the Medicaid Services Division of the Suffolk County Department of Social Services (DSS). Additionally, Cindy Raskin Rocco has joined the law firm of Haley Weinblatt & Calcagni, LLP as an Associate. Ms. Rocco s areas of concentration are elder law, estate administration and guardianship proceedings. Karen J. Halpern, RN, Esq. has become a partner in the Mineola firm of Farley, Glockner & Halpern, LLP. She will continue to concentrate her practice in the areas of medical malpractice defense litigation, general liability defense litigation and professional licensure defense. Eun C. Jo a 2008 graduate of St. John s University School of Law, was recently named an associate in the litigation practice group at Capell Vishnick LLP, a Lake Success, New York law firm. Congratulations To Scott M. Karson, of Lamb & Barnosky, LLP, who in December was selected for inclusion on the New York Super Lawyers list for 2008 in the appellate law practice area based on peer nominations, blue ribbon panel review and independent research. Congratulations to Richard K. Zuckerman, of Lamb & Barnosky, LLP, who was also selected in December for inclusion on the New York Super Lawyers list for 2008 in the labor and employment law practice area based on peer nominations, blue ribbon panel review and independent research To David S. Shotten and his wife Karen who celebrated their 30th wedding anniversary. To Benjamin Theodore Shotten, SCBA member David Shotten s son, who graduated in September from Thomas M. Cooley Law School on the dean s list and earning the Thomas Cooley Book Award for the highest grade for New York practice. Benjamin externed at Druckman & Sinel, LLP in New York City. Marvin Salenger, a partner at Salenger, Sack, Schwartz & Kimmel (SSS&K) was recently named to two elite "Best of" lists, Best Lawyers in America and New York Super Lawyers. The Best Lawyers in America list will appear in the December 15, 2009 issue of New York Magazine, in the New York Law Journal and at those publications' online sites. The Super Lawyers list was published earlier this fall in The New York Times Sunday magazine THE SUFFOLK LAWYER JANUARY SIDNEY SIBEN S AMONG US Jacqueline M. Siben and in the Super Lawyers magazine, distributed to all members of the New York Bar Association. Announcements, Achievements, & Accolades On October 28, 2008, Lisa A. Azzato, of Lamb & Barnosky, LLP, served as a judge at the Touro Law School Alternative Dispute Resolution (ADR) Client Counseling Competition. Lisa Renee Pomerantz will present a free workshop on January 20 entitled Protecting and Exploiting Your Intellectual Property Assets in the Digital Age at the Bohemia HQ Global Center conference room. Networking and breakfast begin at 8:30 with the workshop scheduled to run from 9:00 to 10:00 a.m. Seats are limited, so please contact Ms Pomerantz at or (631) for advance registration. On September 22, 2008, Michael Krauthamer, of Lamb & Barnosky, LLP, was a panelist at a seminar entitled "Joint Employer Relationships" at the New York State United Teachers Community College Conference at the Gideon Putnam Hotel in Saratoga Springs. On December 14, 2008, Lisa Renee Pomerantz was interviewed by Newsday about the potential for corporate criminal liability in the Wal-Mart stampede matter. Robert H. Cohen, of Lamb & Barnosky, LLP, co-chaired the 2008 Annual School Law Conference on December 8 that was presented by the Nassau and Suffolk Academies of Law and Education Law Committees. Eugene Barnosky, of Lamb & Barnosky, LLP, was a panelist in a program entitled, "Navigating Through Controversial Times (Board Ethics, Audits, Who is Your Client, Role of Special Counsel, Confidentiality, Pecuniary Interest, Required District Policies); Richard K. Zuckerman, was a panelist in a program entitled "Labor Law Update (Teacher Tenure, Drug Testing, Screenings, FMLA, PERB Trends); and Sharon N. Berlin, was a panelist in a program entitled "Administrator Retirement & Compensation". The SCBA and the Suffolk Academy of Law collected toys for SCBA member Charlie Russo s Holiday Magic providing toys for underprivileged children in Suffolk County. On January 29, 2009, Richard Zuckerman, of Lamb & Barnosky, LLP, will be speaking on the topic "Municipal Labor and Employment Law in Tough Economic Times" at the NYS Bar Association's Municipal Law Section Annual Meeting, which will be held at the New York Marriott Marquis in Manhattan. The law firm of Ferro, Kuba, Mangano, Sklyar, P.C. organized a (Continued on page 19) 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)
10 10 THE SUFFOLK LAWYER JANUARY 2009 APPELLATE LITIGATION Would You Help Out A Friend? By Steven A. Feldman The Talmud says, [h]e who saves a single life, saves the entire world. But being a Good Samaritan just got a lot riskier. A recent California Supreme Court ruling found that a woman who pulled a co-worker from a vehicle that had crashed is not immune from civil liability because the care she rendered was not medical. The case stems from a car crash, following a night of Halloween revelry in Lisa Torti, of Northridge, California was driving behind her coworker, Alexandra Van Horn, when Horn crashed. Fearful that the car would explode, Torti rushed to the car, and dragged Horn outside. Horn, then sued Torti, alleging she yanked her like a rag doll from the wrecked car, rendering her a paraplegic. In 1980, the California Legislature enacted the Health and Safety Code, which provides that no person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. Although the law did not use the word medical in describing the protected emergency care, it was included in the section of the code that deals with emergency medical services. By placing it Steven A. Feldman there, lawmakers intended to shield only those persons who in good faith render emergency medical care at the scene of a medical emergency, the majority wrote. They thus found Torti was not shielded from liability. But three of the seven justices dissented. They said that, by making a distinction between medical care and emergency response, the court was placing an arbitrary and unreasonable limitation on protections for those trying to help. One dissenter even called the ruling illogical because it recognized legal immunity for nonprofessionals administering medical care, while denying it for potentially life-saving actions, like pulling a drowning victim from the ocean, or carrying an injured hiker from the forest. Highlighting this incongruity, he added: One who dives into swirling waters to retrieve a drowning swimmer can be sued for incidental injury he or she causes while bringing the victim to shore, but is immune for harm he or she produces while thereafter trying to revive the victim. The plaintiff s response, no doubt, would be that Good Samaritan s should be reluctant to offer aid to a crash victim with potential spinal injuries, because such emergency care should be left to medical professionals. But how could she possibly know? Should she have to call a doctor before touching the victim, and Printing for the Profession quick printing letterhead - business cards forms - four-color work fast turnaround [ specialty printing (866) then call her lawyer, before moving her? What happens if the car explodes before she can pull the victim from the car? For Torti, those questions are too late. Her liability will be determined at a trial next year. The plaintiff s position may be that it was one thing for Torti to be a Good Samaritan, and another to bumble the job. But society s position may very well be that a well-meaning bystander should be able to help without worrying about putting her life savings at risk. Note: The author is from Feldman & Feldman where he handles state, federal, civil and criminal appeals in New York and throughout the United States. Inquiries from the bar on this, or any other appellate matter, are welcome at (516) One of the true joys of the Holiday Season is to say thank you to the following people for their generous contributions that made our Holiday Celebration at the SCBA a memorable occasion: Ron and Glenn Hoffman for the beautiful wreath which adorns the Bar Center building every year; Sheri and SCBA Secretary Dennis Chase for the wine from Marcari Vineyards; Joel Sikowitz for his donation that helped defray the cost of the party. Thank you to State Bank of Long Island for underwriting the jazz trio that played so beautifully. Once again thank you to Fireside Caterers for their continued support and gourmet fare. Thank you to member Tom Keegan s Son Tommy who provided us with beer from his local brewery. DIANA C. GIANTURCO ATTORNEY AT LAW P.O. BOX 419 LONG BEACH, NY Tel: Fax: APPEARANCES IN QUEENS COUNTY 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! FAX: Birchwood Court Mineola, NY (Across from Nassau County Courts) NYC Location: 108 Greenwich Street, New York, NY 10006
11 CONSUMER BANKRUPTCY THE SUFFOLK LAWYER JANUARY Cash Advances Not Pre-Petition Income THE BARBARA LAW FIRM Dominic A. Barbara Case further defines means test criteria By Craig D. Robins Judicial interpretation of the means test, which is the controversial centerpiece of the 2005 Bankruptcy Amendment Act, has resulted in hundreds of decisions around the Craig D. Robins country during the past three years. A recent decision from Judge Robert E. Grossman, sitting in our own Central Islip Bankruptcy Court, has further defined the parameters for how the means test should be prepared and utilized. Basic Purpose of the Means Test For the uninitiated, the basic purpose of the means test is to determine whether a debtor is eligible to file a Chapter 7 petition based on a rather comprehensive calculation of the debtor s income and expenses during the preceding six-month period. If the means test indicates that the debtor should be in Chapter 13, the test also provides the minimum amount that the debtor should pay on a monthly basis in a Chapter 13 plan. In a nutshell, the means test determines the debtor s current monthly income by taking the debtor s household s gross income and subtracting certain specified exclusions and deductions. Generally speaking, no matter what chapter the debtor files, the lower the final figure on the means test, the better. Income to be Included in the Means Test Technically, almost all income that the debtor receives in the six-month window before filing must be included in the means test. Social Security income is the general exception. However, strictly complying with the statute in some instances can produce a skewed means test result. In a recent case, the issue was whether the debtor is required to treat cash advances as income for the purposes of calculating the means test. Chapter 13 Trustee Claims Cash Advances Are Income In July 2008, Melville bankruptcy attorney Richard Kantor filed a routine Chapter 13 case for Rafael Almonte (Bankr.E.D.N.Y ). During the six-month means test period, the debtor had taken $24,000 in cash advances from his credit cards. Believing these cash advances would not have any relevance to how much income the debtor would have in the future, Mr. Kantor did not include the cash advances as income in the means test. Chapter 13 trustee Michael J. Macco objected to confirmation of the debtor s plan, arguing that the debtor s current monthly income used in the means test for purposes of determining the Debtor s projected disposable income under Section 1325(b)(1)(B), must include, as income, the amount of the cash advances that the debtor took within the six months prior to filing. Judge Rules that Cash Advances Are Income and Not Income Judge Grossman, in a well-worded, 16- page decision, analyzed the concept of current monthly income and determined that cash advances do constitute "current monthly income," under the forward-looking approach to the calculation of a Chapter 13 debtor's projected disposable income. However, he also held that the cash advances did not constitute part of the debtor's projected disposable income, as they would not be repeated in the future. In going through an elaborate analysis that highlighted the ambiguous and poorly-worded statute, Judge Grossman commented that this Court is not the first to recognize the discrete differences among current monthly income, disposable income, and projected disposable income, and grapple with the imprecise language of this statute. He then concluded that the line of cases adopting the forward-looking, or "crystal ball" approach to calculating a Chapter 13 debtor's projected disposable income is the correct interpretation of the statute. However, the court said that if the Chapter 13 trustee or an unsecured creditor objects to confirmation, the calculation of "disposable income" under Code 1325(b) and the means test (Form B22C) is but a starting point in reaching the debtor's "projected disposable income." If a debtor's "disposable income" on Form B22C differs from the debtor's actual monthly disposable income reported on Schedules I and J, the court may analyze the debtor's actual projected income over the life of the plan. The Trustee May Not Use a Strictly Mechanical Approach In choosing the approach to take, the judge adopted the line of cases that holds that the Chapter 13 trustee may not use a strictly mechanical approach to evaluating the debtor s projected disposable income. The Judge further implied that the trustee s position would lead to the absurd result that a debtor would be required to repay more than the debtor can afford. The court commented that the debtor could not possibly include the cash advances in projected disposable income because the debtor would not reasonably be expected to take additional cash advances during the life of the plan. It would be absurd to assume that the debtor would continue to take cash advances in order to fund his Chapter 13 plan, and the Court is not prepared to require that result. The Court Takes the Logical Position In reaching the determination that cal- (Continued on page 19) JASON BARBARA LANCE MEYER JUDITH ACKERMAN LESLIE ALTMAN JORDAN TRAGER CINDY PRUSINOWSKI PENNY BERGER MELANIE MANDERY AMY SKLAR Takes Pleasure In Announcing The Relocation Of Their Offices 401 Franklin Avenue Garden City, NY Tel: Fax:
12 12 By Jeannie Daal What is an attorney to do? I am pretty sure that none of our law schools ever offered a class that could have prepared us for what is going on in the legal field today. While there are no legal specialties recognized in the State of New York, few of us have a desire or ability to diversify to the extreme that would be necessary to go unaffected by what has happened to our practices these past two years. If you call yourself a real estate attorney, your head is probably spinning about now. With fewer and fewer normal sales, the attorney that dedicated his time to real estate has probably been jumping from one short sale seminar to another to learn how to make a living. The answer is Prepare! The only problem is that as soon as you THE SUFFOLK LAWYER JANUARY 2009 REAL ESTATE What Is The New Wave? Maybe short payoff refinances? Lenders are changing their guidelines faster than the wind blows. TRUST AND ESTATES think you have some working knowledge of short sales, they too become few and far between, only to be replaced with modifications. Suddenly, we must become modification experts; and if you are just learning the ins and outs of modifications, you have more to learn than you could possibly imagine. It seems like lenders are changing their guidelines faster than the wind blows. I offer a word of advice. Pay close attention and ask as many questions as possible. Most importantly however, don t bother taking notes. Just because the lender said it today, doesn t mean it will hold true tomorrow! Remember the wind is always changing direction, without notice. Until recently it was almost impossible to negotiate a short payoff refinance. Wells Fargo was amongst the first to agree to accept one, now it is the new wave. With the results of the first round of modifications showing over a 50 percent default rate in the first year, many of the lender s investors are lessening their desire to enter into modification agreements and do everything possible to convince the homeowner to sell, sell, sell! While some Lenders will only accept a short payoff refinance if the borrower is unable to do a modification, many are giving you the option (or pushing for it) from the onset. One of the major problems with a short payoff refinance is the fact that your client must still qualify for it. FHA is not always an option and hence modification, if possible, is usually the better choice. It all boils down to the fact that many more homes will be on the market for short sales, soon. Remember that true investors do not get emotionally attached to their investments. They abide by the rule that a bad investment must be dumped without delay in order to reinvest in a more lucrative vehicle. The investor s vision is cold and calculated. Therefore, we must direct our focus to the quiet investors, patiently waiting for just the right time to buy. They, too, are paying close attention to the indicators of a second wave of short sales. At first glance it may seem like they are watching lenders struggle to figure out what is best for them while they waste precious time and lose millions of dollars each day because they don t have the personnel to handle the workload and the potential income from short sales is slipping through their fingers. Last year ASC almost stopped completely for around 5 months while they hired and trained personnel to handle the load of short sale requests being sent to them daily. Today, it is believed that Countrywide and a couple of others are going through the change. The question remains are the lenders just slow or are they preparing for a second, larger, wave of short sales? If the lender s investors are unwilling to reduce principal, forgive arrears and reduce interest rates, then the likelihood of a vast majority of these loans being dumped via short sales is overwhelming. Are they fools or are they preparing? Hence, we too should prepare! Note: The author is a Brooklyn Law School graduate who began working as a sole practitioner in 1995, dedicating her practice to real estate for the Latin community. After three years as a bank attorney, she changed her practice to that of Foreclosure Prevention. She is presently in her 2nd year as the co-chair of the Suffolk County Bar Association Real Estate Committee and a volunteer for Raising Community Standards, Inc., a notfor-profit organization dedicated to educating distressed homeowners of their options. Reimbursement From Supplemental Needs Trusts State entitled to Medicaid paid for infant By Robert M. Harper Until recently, the question of the extent to which the State of New York is entitled to reimbursement for Medicaid payments made on behalf of an infant in connection with a Supplemental Needs Trust was unsettled. In In re Abraham XX, however, the Court of Appeals definitely resolved that question. This article provides general background on Supplemental Needs Trusts, discusses the Abraham XX decision, and explains why the state is entitled to recover the entire value of any Medicaid assistance paid for the infant. A Supplemental Needs Trust ( SNT ) is a planning tool used to shelter a severely disabled person s assets for the dual purpose of securing or maintaining eligibility for state-funded services, and enhancing the disabled person s quality of life with supplemental care paid by his or her trust assets. 1 First recognized in New York in In re Escher in 1978, 2 the SNT authorizes the use of a discretionary trust to supplement the care of [a] severely disabled [individual] without jeopardizing the individual s right to government-provided medical care during the beneficiary s lifetime. The New York Legislature enacted section of the Estates, Powers and Trusts Law in 1993 to provide greater clarity and consistency with respect to SNTs. 3 That same year, Congress passed the Omnibus Budget Reconciliation Act ( OBRA ) for dual purposes: to tighten eligibility requirements for Medicaid[;] and to prevent abusive asset transfers... 4 This was significant because, under OBRA, the trust assets of a Medicaid recipient, including those in a SNT, were available resources and affected the receipt s eligibility for Medicaid assistance. Following OBRA s enactment, Congress passed 42 U.S.C. 1396p ( Section 1396p ), which was designed to balance the concerns of the severely disabled and the government s need for heightened Medicaid eligibility requirements. 5 Section 1396p struck this balance by excluding certain trust assets, including the assets of SNTs, from available resources, thereby enabling numerous disabled people to receive Medicaid funds to which they otherwise would not have been entitled under the original version of OBRA. However, Section 1396p also provided for the transfer of all amounts remaining in the trust upon the death [of the disabled person] up to an amount equal to the total medical assistance paid on behalf of the [disabled person] under a state-sponsored Medicaid plan to the State. The New York Legislature followed suit by enacting a similar statutory section in Against that background, the Abraham XX case addressed whether the State can recover its remainder interest in [a SNT in] an amount equal to the total medical assistance paid on behalf of the recipient, or whether the State is limited to the amount expended from the trust s effective date to the recipient s death. 7 There, the decedent s mother suffered a seizure while she was pregnant with the decedent, and delivered the decedent prematurely by an emergency Caesarian section operation. The decedent suffered severe side-effects as a result, and then entered into the custodial care of a New York State facility. Shortly thereafter, the decedent s mother commenced a medical malpractice action against her physicians and the hospital on Robert M. Harper the decedent s behalf. After the decedent s mother secured a $5,000, settlement for the decedent, the state filed a $1,707, lien against the decedent s settlement and ultimately received payment in full for the value of its lien. Nevertheless, a dispute concerning the allocation of the settlement proceeds resulted in a delay of the distribution thereof. During the dispute, the decedent remained Medicaid eligible and under the care of the state. Additionally, the settlement proceeds did not render the decedent ineligible for Medicaid because they were paid to the SNT. The decedent died in June Following the decedent s death, the state sought reimbursement for $1,500,000 in Medicaid payments made from the date on which the state s lien expired in March 1998 to the date upon which the decedent left the state s care in October 2001, including the gap period from the date of the lien s expiration to the date of the SNT s funding in September The State based its claim on the language of the SNT agreement, which provided for reimbursement to the extent then required by law... such amount as shall be necessary to provide reimbursement for expenditures made for medical assistance for Abraham [XX]... through Medicaid The decedent s mother agreed to the payment of the state s claim, subject to her right to seek a refund from the state. After paying the state s claim, the decedent s mother petitioned for a refund of approximately $960,000 for Medicaid payments during the aforementioned gap period. She argued that the state was precluded from recovering funds in excess of its Medicaid lien based on res judicata. The Supreme Court, Broome County, directed the state to make a partial refund of the Medicaid payments made during the gap period. However, in modifying the Supreme Court s order, the Appellate Division, Third Department, reversed the partial refund and granted summary judgment in favor of the state. The Appellate Division reasoned that the SNT agreement was dispositive and that res judicata did not apply. The Court of Appeals affirmed the Appellate Division s decision. In doing so, the court explained that although the trust agreement would usually govern, the decedent s SNT agreement expressly referred to the Medicaid statutes, which provide for reimbursement of all properly paid Medicaid payments made during the decedent s lifetime. Thus, the state was entitled to reimbursement for Medicaid funds paid even before the funding of the decedent s SNT during the gap period. The scope of reimbursement to which the State is entitled from a SNT for Medicaid payments made for the benefit of a disabled person is now settled. Indeed, subject to the applicable laws and the terms of the SNT agreement, the state can recover the entire value of properly paid Medicaid funds, regardless of when the SNT is funded. Note: The author is an associate in the Trusts and Estates and Commercial Litigation Department at Farrell Fritz, P.C. 1 In re Abraham XX, No. 165, 2008 WL (N.Y. Nov. 20, 2008). 2 In re Escher, 94 Misc.2d 952 (1978), aff d, 75 A.D.2d 531 (1980), aff d, 52 N.Y.2d 1006 (1981). 3 EPTL Joseph A. Rosenberg, Supplemental Needs Trusts for People with Disabilities, 10 B.U. Pub. Int. L. J. 91, 127 (2000) U.S.C. 1396p. 6 N.Y. Soc. Serv. Law See generally Abraham XX, 2008 WL (discussing SNT reimbursement).
13 THE SUFFOLK LAWYER JANUARY DMV Driver Responsibility Assessment Madness By David A. Mansfield New York State celebrated the fourth anniversary of the institution of the Driver Responsibility Assessment (DRA) on November 18, It is set forth in VTL 503(4). The general rule requires a $300 payment for anyone who accumulates six or more points on their driving record for acts committed within an 18 month period under VTL 503(4)(a). 503(4)(b) sets forth the amount of $100 per year for three years and the first six months and an additional $25 per year for each additional point over six months. The point system is set forth under 15 NYCRR Part 131. There is a separate Driver Responsibility Assessment under VTL 1199 for Chemical Test Refusal or any alcohol related criminal conviction. Please note: violations of Section 1192(a) or 1194(a) Zero Tolerance Law is not covered by the Driver Responsibility Assessment. A colleague recently questioned an additional $150 assessment for a violation. It was committed more than 18 months after the first violation that resulted in the imposition of the mandatory Driver Responsibility Assessment. DMV counsel s office has interpreted the law to provide the 18 month period to run from the date of the first violation that caused the motorist to have accumulated six or more points within an 18 month period. Thus, it is the activation of the minimum 6 points not the violation date that governs. It is the belief of DMV that otherwise motorists who commit a single violation, as opposed to two separate violations, would have a benefit. You can t argue with that logic. So the situation becomes - how does defense counsel advise your client of the Driver Responsibility Assessment? Defense counsel must always refer to it as the mandatory Driver Responsibility Assessment. When representing clients pursuant to written affidavit or authorization, a clause should always be inserted instructing that not only is their license subject to suspension or revocation as prescribed by law, but it may also be subject to a Driver Responsibility Assessment as determined by the Department of Motor Vehicles (based upon accumulation of six or more points). When your client is subject to a mandatory assessment as a result of either a plea David A. Mansfield or a trial, it is incumbent upon the defense lawyer in an exit letter to inform the client in clear terms that they are subject to a mandatory minimum Driver Responsibility Assessment of an estimated amount. I usually recommend that the client should pay it in full if they are in a financial position to do so, as experience has shown that many clients will fail to pay the subsequent installments and have their driver s license suspended with more dire consequences. The defense lawyer, though sensitive to the general economic plight of many of their clients, should emphasize that the mandatory Driver Responsibility Assessment paid in installments is a driver s license suspension waiting to happen. Any correspondence referring to the Driver Responsibility Assessment should refer to it as a mandatory minimum assessment. The Department of Motor Vehicles has chosen to calculate the assessment in a manner to ensure that it raises the maximum amount of revenue (but probably not enough to close the state s budget gap). What can defense counsel do to try to avoid having your client assessed for a Driver Responsibility Assessment? When representing someone with a clean record and charged with a 76/55, a six point speed in the Suffolk Traffic Violations Bureau, and unable to get a dismissal, you should certainly argue that the general degree of accuracy of the officer s visual estimate as well as the speed measuring device should be sustained to a lesser extent of 75/55 as a four point violation. DMV will notify your client by letter regarding how to make the payment in full or in part. They will list the various methods of payment including in person, by phone or on line credit card, credit card, check or money order (by mail). You should advise your client that the Driver Responsibility Assessment can be explained by DMV and paid online at The defense lawyer should advise their client to be prepared to pay the mandatory Driver Responsibility Assessment and this should be clear from the start of the attorney/client relationship until the conclusion. Note: The author practices in Islandia and is a frequent contributor to this publication. SECOND CIRCUIT BRIEFS Injury And Redressability Addressed In Two Standing Decisions By Eugene D. Berman This month we discuss two decisions concerning standing that the United States Court of Appeals for the Second Circuit issued in December Where s Your Injury? W.R. Huff Asset Management Co., LLC v. Deloitte & Touche, LLP, 2008 WL (2d Cir, decided on December 3, 2008), concerns an investment advisor s attempt to recoup losses that its clients occasioned as a result of Adelphia Communications Corporation s ( Adelphia ) dissolution in bankruptcy. Adelphia filed for bankruptcy approximately two months after disclosing on March 27, 2002 that it had up to $2.3 billion in previously undisclosed debt and that its controlling shareholders used those undeclared borrowings to purchase Adelphia s stock for their own benefit. The disclosures resulted in Adelphia stock value plunging from a $20.39 per share closing price on March 26, 2002 to $0.30 per share on June 7, See, In re Adelphia Communications Corp., 2005 WL *1 (S.D.N.Y. 2005) (not reported in F.Supp.2d). W.R. Huff Asset Management Co., LLC ( Huff ) is an investment advisor. Its clients, for whom Huff has discretionary authority to make investment decisions, are institutional investors, such as public employee pension funds. Huff with a power of attorney from its clients to bring the action alleged in its complaint that in providing underwriting, auditing, or legal services, the defendants violated federal securities laws by preparing, facilitating, or certifying inaccurate and misleading disclosures in Adelphia's financial statements. Huff further asserted that its clients, as a result of the defendants misconduct, suffered financial losses. Crucially, Huff did not claim that it suffered any individual damages. The defendants moved to dismiss the complaint, alleging that Huff lacked standing to maintain the action on its clients behalf. U.S. Const. art. III, 2 limits federal courts jurisdiction to the resolution of cases and controversies. One element of the case-or-controversy requirement is that a complaint must demonstrate a plaintiff s standing to sue. See, Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 2317, 138 L.Ed.2d 849 (1997). The district court denied the relief, but granted the defendants motion for certification of an immediate appeal under 28 USC 1292(b). That statute authorizes a court of appeals to permit an immediate interlocutory appeal when a district court s order certifies in writing that it involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from Eugene D. Berman the order may materially advance the ultimate termination of the litigation. In analyzing the issue of Huff s standing, the Second Circuit reviewed the irreducible elements of Article III standing. Article III standing consists of three irreducible elements: (1) injury-in-fact, which is a concrete and particularized harm to a legally protected interest; (2) causation in the form of a fairly traceable connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a nonspeculative likelihood that the injury can be remedied by the requested relief. Huff, 2008 WL *4, quoting from Lujan v. Defenders of Wildlife, 504 U.S. 555, , 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (emphasis added, internal quotation marks omitted). Since Huff, as mentioned above, did not claim that it suffered any individual damages, the Second Circuit stated the dispositive question as whether Huff can demonstrate an injury-in-fact through some other means. Huff, 2008 WL *4. In this regard, Huff urged that the power of attorney from its clients and its discretionary authority to make investment decisions for them provided it with an injuryin-fact. The Second Circuit disagreed. Although a cause of action may be freely transferred or assigned to others, Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 17 (2d Cir. 1997), the Second Circuit held that Huff's power-of-attorney is not purported to be a valid assignment and does not confer a legal title to the claims it brings. Huff, 2008 WL *6. The Second Circuit also rejected Huff s argument that its discretionary trading authority qualified it for a prudential exception to the injury-in-fact requirement. That exception permit[s] third-party standing where the plaintiff can demonstrate (1) a close relationship to the injured party and (2) a barrier to the injured party s ability to assert its own interests. Id. The Court of Appeals reasoned that the investment advisor-client relationship is not the type of close relationship [that] courts have recognized as creating a prudential exception to the third-party standing rules [and that] Huff has failed to demonstrate that, absent a recognition of its standing claim, there is a hindrance to [its clients ] ability to protect their own interests. Huff, 2008 WL *7. Can There Be Redress? In Coalition of Watershed Towns v. United States Environmental Protection Agency, Second Circuit Docket Nos ag and ag, decided on December 29, 2008, i three towns in the Catskill and Delaware watershed region of (Continued on page 25)
14 14 THE SUFFOLK LAWYER JANUARY 2009 Memories From The SCBA Holiday Party 2008 SCBA President Jim Winkler and his wife, Nancy. SCBA Treasurer Art Shulman and his wife, Ruth. Alan Todd Costell, left and SCBA Second Vice President Matt Pachman. Hon. Patrick A. Sweeney and former SCBA president Lynne Adair Kramer. William McSweeney, right, his wife Jacqueline Shortell- McSweeney and Judge Timothy Bowersox. Catching up at the holiday party. Suffolk s District Administrative Judge H. Patrick Leis III, former SCBA presidents John L. Juliano, Louis C. England and retired Supreme Court Justice Don Kitson. Riva and Alan Schwartz, Robert Wilk and Gail Blasie.
15 THE SUFFOLK LAWYER JANUARY Judicial Swearing-In & Robing Ceremony Honorable H. Patrick Leis III, Suffolk County District Administrative Judge begins the Judicial Swearing-In & Robing Ceremony Jim Winkler donning newly elected District Court Judge Stephen Ukeiley. Elected Supreme Court Justice Jerry Garguilo donning his first set of judicial robes presented by SCBA President Jim Winkler on behalf of the members of the bar. Honorable Hector LaSalle is the first Hispanic Justice of the Supreme Court in Suffolk County. Judge John J. Toomey, Jr. was reelected to the District Court. Suffolk County District Attorney Tom Spota enjoys a light moment. Retired Supreme Court Justice Patrick Henry was proud of his daughter, Jennifer Anne Henry who he administered the Oath of Office to as a District Court Judge. Suffolk County Legislator Ricardo Montano sponsored Hector LaSalle, Supreme Court Justice. SCBA President Jim Winkler donning newly elected County Court Judge James F. Quinn. Jim Winkler presented Honorable Joseph Farneti with a crystal plaque as a memento for his reelection as a County Court Judge. Honorable C. Randall Hinrichs administers Oath of Office to newly elected James F. Quinn, reelected Jeffrey Arlen Spinner and reelected Joseph Farneti, as County Court Judges. Reelected County Court Judge Jeffrey Arlen Spinner receives a memento for his reelection as a County Court Judge from Jim Winkler as Judge Leis looks on.
16 16 THE SUFFOLK LAWYER JANUARY 2009 BOOK REVIEW Sounding The Soul of Character By William E. McSweeney The characters that populate Tolstoy's epic novel of Russia's resistance to Napoleon's invasion of to have known them is to never forget them: the vivacious Natasha, evolving from a feckless 16-year-old into the mature, rounded heroine who evacuates her loved ones from a threatened Moscow; the bold Andrei; the calculating Helene; the myopic, ever-questing Pierre; the grasping Napoleon. And the unpredictable Kutusov, the field marshal, the essential War and Peace By Leo Tolstoy Translated from the Russian by Richard Peaver and Larissa Volokhonsky pp. Alfred A. Knopf peasant who Tolstoy lovingly refers to as a lackey, a man who, in the face of calamity on all sides, clings to the three principal Russian values: the Tsar, the Church, and Mother Russia (the nurturing earth) -all of which form the troika that will carry him to eventual success. He is the commander who wisely sleeps during briefings, giving no credence to his inept western advisors, generals whose own nations have themselves already surrendered to France. When he awakens, he invariably intones the enigmatic words "Patience and time... patience and time." Implying restraint, it is an unorthodox strategy (if it can even be so-termed) that ultimately leads to victory. Would that all current world leaders should adopt it as their own guiding principle! The novel's simplicity of language eases the reader's entry into Tolstoy's fecund, wide-ranging mind; makes character accessible and encourages a brooding over those things Tolstoy broods over. By means of an approachable idiom, his overriding humanity subtly imposes itself upon the reader, engages him, renders him complicit, and makes of him the novelist's partner. To read "War and Peace" is to constantly thrill to simultaneous discovery, as between reader and author: all marriages, all births, are shared celebrations; all heartbreaks create joint despair; all misfortunes inflict joint sorrow; all deaths are mourned together; all triumphs - especially, at long last, the routing of Napoleon - are exulted in together. Tolstoy's masterwork continuously sounds the soul of character, descending ever deeper into the mystery of human motivation, itself never reducible to mere rationality. Certainly irrational - sacrilegious - on its face is Kutusov's decision to abandon to the French the sacred city, an arguably defensible Moscow. This decision compounds an earlier facial irrationality on the part of the field marshal, namely, his insistence -notwithstanding the contrary judgment of his contemporaries, indeed, that of history -that the recently fought Battle of Borodino was a Russian victory. Yet Kutusov's conviction regarding that battle's outcome is, paradoxically, ratified by the subsequent abandonment of Moscow; for, by abandoning the city, by precluding any future mass confrontation between Napoleon and the Russian Army (thereby preserving that army) Kutusov, by indirection, by letting the severe Russian winter serve as his army's surrogate, defeats the French. Thus the actual, historic defeat at Borodino cloudily merges into the ultimate "victory" at Moscow. Soon enough thereafter, Tsar Alexander, the nobility, Kutusov's officer corps, his soldiers, his countrymen--all, upon reflection, join the visionary, oneeyed field marshal in viewing Borodino as an outstanding Russian success. In an extended simile, Tolstoy depicts vividly that necropolis which Napoleon found upon entering its precincts--this after his having finally despaired of receiving any Russian deputation seeking terms of surrender. "Moscow was empty," Tolstoy writes. An Invitation to Join Our Leadership: Nominating Committee Seeks Candidates For SCBA Administration Each year, our membership elects a President, President Elect, two Vice Presidents, a Treasurer and a Secretary and four Directors. The Officers positions are for one year, the Directors terms are for three years. The next election, pursuant to our Bylaws, will be at our Annual Meeting, Monday, May 4, The membership also elects at the Annual Meeting, three members to serve on the Nominating Committee for a period of three years. Each member of the Nominating Committee must have previously served as a Director of the Association, and one member of each class shall be the immediate past president of the Association. Except for the office of the president, the Nominating Committee is now seeking applications for the aforementioned positions. If you are interested in becoming a leader and willing to assume a role in the activities of the SCBA, please send your resume, either by mail or , to the Executive Director by December 31, As Officers and Directors of the SCBA, you manage the affairs of the Association subject to and in accordance with the Association s Bylaws and all applicable laws; elevating the standard of integrity, honor and courtesy in the legal profession and cherishing the spirit of brotherhood among the members. The membership is deeply appreciative of the energy, dedication and hard work performed by the officers and directors of the Association especially in these challenging times. The Directors are required to attend all scheduled Board meetings of the Association. Eligibility of Board Members as noted in the Associations Bylaws: No member shall be eligible for election to the Board of Directors who has not been an Active Member of the Association for at least five years and a member of a committee, task force, recognized foundation of the association, an Officer of the Suffolk Academy of Law, or any combination thereof, for at least four years during such period. -- LaCova William E. McSweeney "There were still people in it, there was still a fiftieth part of all the former inhabitants left in it, but it was empty. It was empty as a dying-out, queenless beehive is empty. There is no life in a queenless beehive, but to a superficial glance it seems as alive as the others. In the hot rays of the noonday sun, the bees hover just as merrily around a queenless hive as around the other living hives; from afar it has the same smell of honey; bees fly in and out of it in the same way. But we need only take a closer look at it to realize that there is no longer any life in this hive. The bees do not fly in the same way as in a living hive, the smell is not the same, and it is not the same sound that strikes the beekeeper's ear. To the beekeeper's tapping on the wall of an ailing hive, instead of the former instantaneous, concerted response, the hissing of tens of thousands of bees, menacingly tucking their behinds under and producing this vital, airy sound by the rapid beating of their wings, there comes in response a scattered buzzing that resonates at various points of the empty hive. The entrance does not give out, as before, a spirituous, fragrant smell of honey and venom, no feeling of the warmth of fullness comes from it, but the smell of honey is mingled with the smell of emptiness and rot...the beekeeper opens two central frames so as to see into the nest. Where formerly the entire space was covered by the black circles of thousands of bees sitting tightly back to back, guarding the lofty mysteries of generation, he now sees hundreds of dejected, half-alive and somnolent husks of bees...they smell of decay and death...the beekeeper closes the frames, marks the hive with chalk, and, when he finds time, breaks it open and burns it out." So writes Tolstoy, the apiarist, on the unhealthy hive, in an idiom that, like the healthy hive, hisses with life. George Orwell urged all writers - if they would avoid employing abstract, lifeless language - to both experience the physical world and draw their vocabulary from it. The author of War and Peace surely experienced the physical world. Though Count Leo Nikolavitch Tolstoy ( ) was truly to the manor born-- specifically, to the ancestral estate of his family, Yasnaya Polyana, in central Russia - and was of the nobility - his father, Count Nikolai Ilyvitch Tolstoy, was friend and companion to Tsar Peter The Great - he soon enough ventured a field from both home and lineage. At 23, a drop-out from the University of Kazan, Tostoy was commissioned a subaltern of artillery in the Russian army. While on garrison duty near the Baltic provinces, he began his long career as novelist, publishing in rapid succession Childhood and Youth, An Attack" and The Cossacks. During the Crimean War ( ), he was wounded during the siege of Sevastopol; with the Treaty of Paris ending hostilities, Tolstoy resigned his commission and went to St. Petersburg. There, enveloped in a treble-layered aura of nobleman, returning hero, and published ecrivain, he was, like his alter ego, Pierre (a bountiful inheritance was his requisite aura), warmly accepted into Petersburg's French-speaking society. But his disgust for the drinking, debauchery, and idleness of society life soon drove him, as it did Pierre, away from Tsar Peter's "western" city to his ancestral estate, where he was to embrace and cultivate his "Russianness." At Yasnaya Polyana, donning peasant clothing, he freed his serfs and, alongside them, labored as a wheat-harvester, forestthinner, log-splitter, and beekeeper. In 1862 he met the young Sophie Behrs, his Natasha, whom he would marry; who would beget and nurture their 13 children; become his devoted helpmeet, editor, and translator from the Russian into French and German. It was during the first five years of his marriage that Tolstoy labored on and completed "War and Peace." An inveterate reader of history, and a brooder over it, Tolstoy was largely impelled to write his epic in reaction to the historical concept of L'Homme Grand, a prevailing theory that propounded the "The Great Man" as motivator of world events, with Napoleon as its chief representative. For his part, Tolstoy, like Kutusov, resisted historical certitude; as to Napoleon, the author harbored scorn for the diminutive Corsican, the mischiefmaker, the self-proclaimed L'Empereur who had impudently ventured to place Russia within his hegemony. Accordingly, Tolstoy put into print his contempt for The Great Man, and as against this, his exaltation of both the common man (the peasant, the soldier), and the unexceptional woman (the wife, the mother, the protector of the home). The novel was published in 1869 to universal acclaim, and it remains today as vibrant, as compelling, as it did across all those yesterdays. In The New Yorker of November 26, 2007, the erudite James Wood reviews, and favors over all forerunners, the new translation of "War And Peace" by Richard Peaver and Larissa Volokhonsky. Principally, he values their "roughening up" of the translation when the Russian calls for it, and he shouts "bravo!"(i echo his shout) to their unapologetic duplication of Tolstoy's persistent repetition as a rhetorical device. ("Moscow was empty...it was empty. It was empty as a dying-out, queenless beehive is empty.") Indeed, it is by his use of repetition that Tolstoy so infallibly leads his reader to clarity, to comprehension, to a cumulatively attained emotional truth. Though I have read, enjoyed, and found perfectly serviceable Ann Dunnigan's translation, not dealt with by Wood, I haven't read those predecessors he examines, the translations of Constance Garnett, Rosemary Edmunds, and Aylmer and Louise Maude. Thus I don't presume to join in his judgment that the new translation is superior to all. Nonetheless, Wood is persuasive. Pevear-Volokhonsky's translation, with its adherence to Tolstoy's language-- and language conveys spirit--will likely become, deservedly, "the" translation. With that in mind, I'd suggest to the reader the obvious: Kenneth Fearing's The Big Clock. If there's time for but one War and Peace, seize the new version. Note: The author is a member of the SCBA, lives in Sayville, and practices Criminal Law and Family Law. His written work has appeared in the Quinnipiac Law Review, The ABA Journal, The New York Law Journal, and The New York Times.
17 THE SUFFOLK LAWYER JANUARY BUSINESS LAW S-Corporation or LLC? That Is The Question By Gail Blasie For most clients choosing an entity, the choice comes down to a Limited Liability Company (LLC) or an S-Corporation (S- Corp). Those in the know say that LLCs are the way to go. Whichever way you go, what s most important is that the client has some kind of shareholder or operating agreement and that they do not leave matters to chance. Like an S-Corp, LLCs combine the corporation s protection from personal liability for business debts and the pass-through tax structure of a partnership. S-Corps are owned by shareholders and LLCs are owned by members. The tax rates are the same for both entities. However, LLCs offer more flexibility than S-Corps in a variety of ways. There are no restrictions on who can own an LLC, whereas corporations, nonresident immigrants, partnerships and certain trusts cannot be owners of S-Corps. One of the best features of an LLC is that there can be different classes of ownership, whereas with an S-Corp there is only one class of ownership, with the proviso that there may be differences in voting rights. This limitation makes it extremely difficult to provide for different economic sharing arrangements among shareholders because distributions from an S-Corp must be proportionate to stock ownership. On the other hand, LLCs can allocate profits, losses and cash flow to reflect the varying financial interests of the members. This is a key advantage to LLCs. The S-Corp s distribution of appreciated property generally triggers a gain that shareholders must recognize and pay taxes on. With an LLC however, a similar distribution of appreciated property will generally not trigger gain, but will merely reduce the recipient s basis. Therefore, from a tax standpoint, it is easier to move property in and out of an LLC than an S- Corp. The sale of an ownership interest in an S-Corp is treated as capital gains, whereas Gail Blasie in an LLC it is treated as ordinary income to the extent of unrealized receivables and substantially appreciated inventory, and the remainder is treated as capital gains. Unlike the BCL, the LLC Statute does not give as much protection for minority members. While the Court of Appeals recently found that LLC members have the right to bring derivative suits for fraud, waste and oppression, LLC members do not have the right to seek judicial dissolution based on the fraudulent and oppressive conduct of the majority members. LLC 702 only allows a judicial dissolution if a court finds it is not reasonably practicable to carry on the business in conformity with the articles of incorporation or operating agreement. However, a good drafter can circumvent this limitation by anticipating the need for an exit strategy and include appropriate language in the operating agreement. We are fortunate to have two LLC gurus AMERICAN PERSPECTIVES/OPINION in our midst. Peter Mahler, a partner at Farrell Fritz, frequently lectures on the issue, and posts a weekly blog highlighting interesting business divorce cases. This is one blog you should subscribe to. You can sign up for his weekly blog at And we have Alan Weiner, partner emeritus from Holtz Rubenstein Remnick, who wrote the book, so to speak, on LLCs and tax law. Both will be speaking, along with the Honorable Emily Pines and Referee Kathryn Coward, from the Suffolk Supreme Court Commercial Division, and John Calcagni, from Haley, Weinblatt & Calcagni, on S-Corps versus LLCs, on February 18, from 6:00 to 9:00 p.m. Bring your questions and add some skills to your box of tricks. Note: The author, licensed in NY and CA, is a freelance attorney, providing research, writing and litigation support to other attorneys. She is Chair of the Suffolk Commercial and Corporations Committee and is an Officer of the Suffolk Academy of Law. To Regulate Or Deregulate To Subsidize Or Not This column is dedicated to the various opinions of SCBA members. Submissions will be accepted from all members of the SCBA. By Justin A. Giordano The incoming administration of President-Elect Barak Obama and his Democrat controlled congress will be facing a major economic downturn in the economy. The downturn has been well underway for the better part of 2008, although at the mid-way mark of the year there appeared to be some signs of a turnaround when the federal government released a 3.3 percent annual rate of growth in its second quarterly report. However the next quarter showed a negative rate of growth of.3 percent for the first time since the aftermath of 9/11 and thus confirmed that an economic downturn was underway. This was followed by the October financial crisis, which dealt a further blow to a shaky economy. If the next report shows a negative rate of growth as well, which is fully expected, then officially speaking, the U.S. economy will have entered a recession. Adding to the economic woes Wall Street, as reflected by the Dow-Jones Industrial, NASDAQ and the S&P averages, seems underwhelmed by the incoming new administration's economic policies as proclaimed during the course of the campaign. Thus if we are to judge by the aforementioned averages measurement, which have dropped by approximately 20 percent since the election, this constitutes the highest drop following a presidential election since these records have been kept. However given that the formal economic policy of the incoming administration is not officially formulated or in place as of this date (late November 2008), one could arguably make the case Justin A. Giordano that a final assessment of the unfolding situation cannot be fully made since, even if a cause and effect could be established, the incoming administration has not yet taken office. One crisis that will undoubtedly be confronting the incoming administration and the new congress involves the American automobile industry. All three major American automakers are facing dire financial times. The value of their stock has plummeted in the recent past and they are asking the legislature in Washington for assistance. This essentially amounts to a request for a bailout in more or less the amount of $25 billion. After all, the argument goes, if the financial sector was or is in the process of receiving financial assistance, why should not they? But the issue goes well beyond a simple choice of to bail out or not to bail out and according to what parameters. What merits close scrutiny are the root causes that gave rise to the present circumstances. Put differently, what were the legislative policies that led to this situation and what policies should the incoming congress (and the Obama presidency) pursue to alleviate the current situation and prevent a recurrence. Invariably the legislative decision revolves around whether to regulate or de-regulate, but the underlying philosophy that guides these decisions is key in addressing these issues. In the auto industry case, this is an industry that has long been over-regulated and often used as a football to make political points. One of the major pieces of legislation that governs the industry is the CAFE [Corporate Average Fuel Economy] Standards. These were originally enacted in 1975 to regulate mileage per gallon on cars and light trucks, including SUV [Sports Utility Vehicles]. The CAFE Standards measure vehicle fuel efficiency and are controlled by the EPA [Environmental Protection Agency] and the NHTSA [National Highway Traffic Safety Administration]. Over the years the CAFE Standards have been modified to reflect congress' wishes, such required miles per gallon based on the weight of the vehicle and such. Some of these modifications and the standards themselves have served some valid purposes and undeniably have accomplished some worthwhile objectives in terms of fuel efficiency and most importantly safety. However there is also no question that some of the regulations have been extremely burdensome on the industry even when they need not have been so by setting unrealistic or difficult to achieve standards. The result is that the industry has been greatly inhibited in its ability to be as competitive as it could be in the face of increasing international competition from foreign brands/automakers. The other major factor that has legally limited the automakers' flexibility has been its onerous labor costs due to its UAW agreements. Many aspects of these agreements are now rather excessive but there is no escape clause for the automakers barring filing for bankruptcy protection. Naturally any hope that their congressional petition for a bailout be seriously considered given this congress and, even more so, the incoming congress' political and philosophical inclination prohibits the automakers' management from remotely raising the labor concessions issue. Therein lies the dilemma in the case of the American automobile industry, the case could be made that over-regulation-- with more potentially looming on the horizon in has led, or at the very least, contributed to the decline and potential demise of the three big automakers. This conclusion seems to carry substantially more weight in light of the fact that there are other automakers manufacturing cars in the United States. The latter are not Detroit based and include Japanese and European automobile manufacturers with their plants located in states such as Tennessee and mostly other southern states. The major difference between these manufacturers and the big three is cost efficiencies primarily related to labor-management issues and other regulations. On the other hand, the sub-prime crisis, which many point to as the underlying cause for the failure of many longstanding financial institutions, can be attributed in no small measure to a form of de-regulation in as much as lending institution were strongly encouraged to take an extremely permissive approach in their mortgage lending practices. This was done in order to adhere to congress' stated objective of making house ownership available to as many as possible, whether the prospective owners be credit worthy or not. In many instances congressional legislation was pushed through that practically threatened these lending institutions with legal action if they failed to lend to individuals that could not conceivably ever hope to repay their loans or even make the monthly payments once the originating sub-prime rate reverted to the market rate. This also was a case of legislation crafted to fit an ideological philosophy rather than a practical and realistic economic approach based on sound and (Continued on page 25)
18 18 THE SUFFOLK LAWYER JANUARY 2009 FOR THE DEFENSE Merely Saying Prima Facie Isn t Enough By Jeffrey S. Siegel and Ferron Lien Under CPLR 3212(g), [i]f a motion for summary judgment is denied or is granted in part, the court shall, if practicable, ascertain what facts are not in dispute or are incontrovertible. It shall thereupon make an order specifying such facts and they shall be deemed established for all purposes in the action. (emphasis added). 1 While a seemingly simple doctrine, most orders arising from such motions often fail to lay out specific facts, merely stating that a prima facie case has been established. To further complicate matters, quite often a trial Judge who hears prima facie, will rule that such has been established, without requiring an order to specify which facts are indeed incontrovertible. This is problematic because, as CPLR 3212(g) provides, incontrovertible facts become Law of the Case. Law of the Case means that Pursuant to CPLR 3212(g), such an order must specify facts that shall be deemed established for all purposes in the action. 2 However, if an order merely asserts that a prima facie case is established without eliciting those facts, has anything really been established? In Vitality Chiropractic, P.C. as Assignee of Natalye Konovalova v. NY Central Mut. Fire Ins. Co., plaintiff s counsel merely asserted that a prima facie case had been established, without detailing which facts were, in fact, not in dispute. 3 At the outset of the trial, the court accepted plaintiff's position that it had already established a prima facie case on the ground that another court, in denying plaintiff's prior motion for summary judgment, had noted that plaintiff established its prima facie case upon said motion thereby shifting the burden to defendant, which finding became the law of the case, obviating the necessity of further proof as to plaintiff's prima facie case at trial. In light of the foregoing, plaintiff noted that it had no other witnesses or proof to present at this time and rested. When defendant presented no evidence, the court found in favor of plaintiff. 4 The Appellate Court held that... the order herein identified no particular facts as established, merely a conclusion of law that plaintiff had set forth facts upon the motion sufficient to shift the burden to defendant for purposes of the motion. 5 The problem with such a lack of specificity is that plaintiff is trying to preserve for appeal that a prima facie case is established while, at the same time, shifting the burden to defendant when, in fact, no such prima facie case has been established. This defeats the very purpose of CPLR 3212(g). The purpose of the Law of the Case doctrine is... [T]o prevent relitigation of issues of law that have already been determined at an earlier stage in the proceeding. The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision. 6 It functions similarly to that of res judicata and collateral estoppel by promoting judicial economy. The law of the case rule is a rule of practice, an articulation of sound policy, that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of coordinate jurisdiction are concerned. 7 Counsel s lack of specificity at the initial proceeding does not promote judicial economy; it decreases it. The reviewing court is forced to do the lower court s job. For example, in Richard Brownrigg v. NYC Housing Authority, the lower court was reversed because... [N]o evidence had been proffered, introduced, or admitted at trial. 8 Neither counsel nor judges should be permitted to circumvent the requirements of CPLR 3212(g) by replacing it with their own interpretation. The statute clearly requires specificity and until the CPLR is re-written, anything less should not become Law of the Case. This is especially important in No-Fault Litigation where a prima facie case is established by merely proving... [T]hat [plaintiff] submitted statutory claim forms, setting forth the fact and amount of the losses sustained, and that payment of nofault benefits was overdue. 9 As No-Fault Law has become a battleground with the rules of evidence as a weapon of choice, to circumvent CPLR 3212(g) would be counterproductive. 1. CPLR 3212(g). 2. Board of Mgrs. of the Arches at Cobble Hill Condominium v. Hicks & Warren, LLC, 2007 Slip Op U, 18 Misc. 3d 1103A, 856 N.Y.S.2d 22 (Sup. Ct. Kings County 2007) NY Slip Op , 17 Misc. 3d 34, 844 N.Y.S.2d 561 (App. Term, 2d and 11th Jud. Dists. 2007). 4. Id. at Id. 6. Richard Brownrigg v. NYC Housing Authority, 29 A.D.3d 721, 815 N.Y.S.2d 681, 683 (2d Dep t 2006). 7. Malik G. Abbas v. Roy Francis Cole, 44 A.D.3d 31, 38, 840 N.Y.S.2d 388, (2d Dep t 2007) N.Y.S.2d at CPLR 3212(g). 2 Board of Mgrs. of the Arches at Cobble Hill Condominium v. Hicks & Warren, LLC, 2007 Slip Op U, 18 Misc. 3d 1103A, 856 N.Y.S.2d 22 (Sup. Ct. Kings County 2007) NY Slip Op , 17 Misc. 3d 34, 844 N.Y.S.2d 561 (App. Term, 2d and 11th Jud. Dists. 2007). 1. CPLR 3212(g). 2. Board of Mgrs. of the Arches at Cobble Hill Condominium v. Hicks & Warren, LLC, 2007 Slip Op U, 18 Misc. 3d 1103A, 856 N.Y.S.2d 22 (Sup. Ct. Kings County 2007) NY Slip Op , 17 Misc. 3d 34, 844 N.Y.S.2d 561 (App. Term, 2d and 11th Jud. Dists. 2007). 4. Id. at Id. 6. Richard Brownrigg v. NYC Housing Authority, 29 A.D.3d 721, 815 N.Y.S.2d 681, 683 (2d Dep t 2006). 7. Malik G. Abbas v. Roy Francis Cole, 44 A.D.3d 31, 38, 840 N.Y.S.2d 388, (2d Dep t 2007) N.Y.S.2d at A.B. Med. Svcs. et al v. Utica Mut. Ins. Co., 2006 NY Slip Op U, 12 Misc. 3d 139A, 824 N.Y.S.2d 760, 760 (App. Term, 2d and 11th Jud. Dists. 2006) (citing Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564, 564 (2d Dep t 2004)). COMMITTEE CORNER News & Notes From SCBA Committees Health and Hospital Law Thomas J. Force, Chair The meeting took place on Oct. 27 with the following members attending: Thomas J. Force, Pamela Selkin, James Fouassier, Christopher Litrel, and Denise Snow. The poor turnout was discussed with everyone surmising the reason was due to the timing of the meeting. The next meeting will be at 6 pm to afford more members of the committee to attend. Morning meetings were also discussed. The committee created the following mission statement: To educate our colleagues of the SCBA on current developments in healthcare law, healthcare financing, reimbursement, health insurance, managed care issues and regulatory developments. Specifically, the committee will develop programs to highlight these issues and assist the practitioners in understanding how these developments affect their particular areas of practice. Those attending discussed the great success of the CLE program put on by the committee earlier this year as a lunch and learn. Almost all participants wanted a longer program from the committee. A full day or evening session was discussed. Collaboration with NCBA, NYSDOI, Suffolk County DOH and NYS Attorney Generals Office, Healthcare Bureau, was discussed. This will be an agenda item for next meeting. The Health and Hospital Law Committee met on Nov. 24. The following members attended: Thomas J. Force, Sally Kassim, James Fouassier, Mary Kane, and Denise Snow. 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) Poor turnout at second meeting was discussed and it was decided that close proximity to the Thanksgiving holiday was probable cause. This mission statement created at the last meeting was ratified by the committee unanimously. The committee decided that this year they would like to offer a full day CLE or, at the least, an evening session. Additionally, members decided that if the committee participation stays at around five or six members, an evening session will be offered. If committee participation grows to eight to 10 members, the committee will offer a full day seminar. Mr. Fouassier agreed to contact the NYS Attorney General to gauge their interest in participation in such a CLE. Thomas Force has already received tentative agreement to participate from Laura Dillon of the Consumer Services Bureau for the NYSDOI. Tom will distribute the PowerPoint used by the committee at the lunch and learn for review by committee members. Next meeting, topics for discussion at the CLE will be assigned to committee members and an outlined prepared for submission to the Suffolk County Academy of Law. The next meeting is scheduled for January 13, 2008 at 6:00 pm. Surrogate s Court Mary K. Kane, and and Kurt P. Widmaier, Co-chairs The Surrogate s Court met on Oct. 29 with 26 members attending. Richard Weinblatt, Esq. discussed the topic of crisis planning and the execution of a promissory note when, last minute, an individual is entering a nursing home. Hand-outs were given to members. It was agreed that co-chairs will work to obtain CLE credit for upcoming speakers at future meetings. The Surrogate s Court met on Nov. 19 and was well attended. Kurt Widmaier, Esq. spoke about Supplemental Needs Trust and how the issue presents itself in the Surrogate's Court. Handouts of recent cases and sample trust were provided to members The Surrogate s Court met on December 3 with 21 people attending. Franklin Farris, the Suffolk County Public Administrator spoke on common mistakes made in filing an accounting proceeding in the Surrogate's Court, and certain updates with his office procedure. The January meeting (date to be announced) will feature Surrogate Czygier on the issue of attorney's fee in the Court. Real Property Thomas J. Vicedomini and Jeannie Virginia Daal, Co-chairs The committee met on Oct. 28 with seven members attending. Members indicated a desire to attend meeting with LIBOR representative to be held on (Continued on page 25)
19 Cash Advances Not Pre-Petition Income THE SUFFOLK LAWYER JANUARY (Continued from page 00) culating the debtor s ability to fund a plan should not take into consideration income that simply will not be available in the future, Judge Grossman also pointed out that this approach could also work against the debtor, if the debtor were to have additional income in the future which is not reflected in the means test. Absent binding authority in this Circuit, this Court is not prepared to adopt an application of the statute which would result in a debtor either: (a) being precluded from Chapter 13 relief because a mechanical application of Form B22C would create fictional monthly disposable income that the debtor does not have, or (b) allow the debtor to withhold actual monthly disposable income from repayment to unsecured creditors because his or her historic income figures are lower than actual projected figures. Practical Tips The first point is that Mr. Kantor, in representing the debtor, did not give in to the trustee s unsound position, and in doing so, obtained a victory for his client. Secondly, it appears that the judges in our jurisdiction are adopting a logical and reasonable approach towards how much income a debtor can devote towards his creditors. Thus, a debtor s actual ability to pay appears to be the overriding criteria in determining how much the debtor will actually be required to pay. Sidney Siben s Among Us (Continued from page 9) weeklong toy drive for the holiday season for PRONTO Long Island to ensure that children in need enjoyed receiving gifts during the holidays. The organization provides services to the needy, the homeless, the unemployed, immigrants, the uninsured and anyone else in need. Condolences. To the family of Scott DeSimone on the passing of his brother, Marc, we send our heartfelt sympathy. New Members The Suffolk County Bar Association extends a warm welcome to its newest members: Michael Ende, Diana Lattanzio, John Paul Mixon, Jonathan H. Roth and William R. Sammis. The SCBA also welcomes its newest student member and wish them success in their progress towards a career in the law: Patrick J. Carney. Note: The author, a regular columnist, is a Long Island bankruptcy attorney 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) He can be reached at Please visit his Bankruptcy Website: Bankruptcy CanHelp.com. The Lawyer s Assistance Foundation Take Care of Your Brothers & Sisters In These Hard Economic Times If you know of lawyers in distress or having a difficult time know that we are here to help. The Foundation is a group of lawyers who volunteer to help others in need. Their work is totally confidential; they do not ask questions or make judgments. They are here for you, if you need help. You are not alone. The Foundation has been in existence for years. During that time, we have helped attorneys who have had professional turmoil due to illness, depression, and drug or alcohol addiction. We have worked in their offices, maintained their health insurance, and seen them through detox to recovery to re-entry into the professional world. It is our pledge to assure every lawyer in Suffolk County, whether a member of a firm or a sole practitioner, that in their time of need we will be there, no questions, no judgments. It is my hope that our members who are not a part of our Foundation will understand the importance of our work and will help us with a contribution no matter how large or small. Our goal is to put out our hand to help our fellow lawyers. Donna England Managing Director Take Advantage of the Advantages The SCBAdvantage Program provides all Suffolk County Bar Association members with an opportunity for meaningful discounts at numerous vendors and service providers in and around Suffolk County. To find out the details about each of the discounts offered by the following vendors, log on to then click on member services and SCBAdvantage Program.... just another advantage of membership offered to you by the Suffolk County Bar Association. Partake and enjoy! SCBAdvantage Program Participants (as of February 27, 2007) COMPUTER SERVICES - COMPUTER FORENSICS SERVICES - MAVERICK-SECURITY, LLC - NETWORK SOLUTIONS AND TRAINING CONSTRUCTION AND HOME/OFFICE IMPROVEMENT - ELLEN FRIEDMAN INTERIORS INC. - KLEENRITE CARPET & UPHOLSTERY CARE DINING - RUVO - Greenlawn - RUVO - Port Jefferson - THE SMITHTOWN HOUSE FINANCIAL RELATED SERVICES - CITIGROUP/SMITH BARNEY (retirement plans) - ISRAELOFF, TRATTNER & CO., P.C. - ERIC NEUWIRTH, CFP, A.G. EDWARDS & SONS INC. - NEAL E. MINTZ, CPA - STATE BANK OF LONG ISLAND FLORISTS AND GIFTS - DS INC. (custom gifts) FUNERAL SERVICES - FIVES SMITHTOWN FUNERAL HOME, INC. - VIRAG-MADDEX FUNERAL DIRECTORS, HAIR AND PERSONAL CARE - DBOTT ESTHETICS & COLOR HEALTH AND FITNESS - AMRITRAJ FITNESS AND RACQUET CLUB - RAYMOND MACOLO, DDS, LLC HOTELS AND ACCOMMODATIONS - HOLIDAY INN EXPRESS Stony Brook INSURANCE - LONG TERM CARE COMPARISONS LEGAL RELATED SERVICES - ENRIGHT COURT REPORTING INC. - FASTCASE, INC. - WMA GRAPHICS OFFICE FURNITURE, EQUIPMENT AND SUP- PLIES - MASH BUSINESS SYSTEMS INC. OFFICE MANAGEMENT/ADMINISTRATIVE SERVICES - HQ GLOBAL WORKPLACES - THE INTELLIGENT OFFICE - IRON MOUNTAIN RECORDS MANAGE- MENT - MAP COMMUNICATIONS PROFESSIONAL TRAINING - DALE CARNEGIE TRAINING PUBLIC RELATIONS - THE PUBLIC RELATIONS AND MARKET- ING GROUP REAL ESTATE RELATED SERVICES - ALL ISLAND APPRAISAL SERVICES - AMICUS MORTGAGE CORP. - CITIGROUP/SMITH BARNEY (mortgages) RETAIL - GOURMET COFFEE PLUS, LTD. TRANSPORTATION - CHICHESTER LIMOUSINE SERVICE - LIMOUSINE PLEASE TRAVEL AND ENTERTAINMENT - PRIME TIME TRAVEL CLUB, INC. TUTORING - EXCEL TUTORING SERVICE
20 20 Is There Still A Tort Crisis? legal system to run out of control and forcing physicians to retire early, relocate or give up performing high-risk medical procedures. Even as the AMA, the President and others were staking out their positions, the General Accounting Office of the U.S. Government disputed the AMA s contentions. The New York Times reported that evidence is rolling in that malpractice claims and awards are not appreciably increasing, and in some cases, declining. In the same year the Missouri Department of Insurance issued a memo stating that Missouri medical malpractice claims, filed and paid, fell to an all time low in 2003 while insurers enjoyed a cash-flow windfall. The Bergen Record in New Jersey echoed that news, reporting that malpractice payments decreased by 21 percent from 2001 to 2003 even while premiums surged during that same time, according to the Congressional Budget Office. The CBO stated that the increase in premiums was due largely to decreases in investment income of the insurance THE SUFFOLK LAWYER JANUARY 2009 (Continued from page 1) companies and cyclical factors in the insurance industry. To put it simply, premiums were often raised to make up for poor investment yields. In 2006 the New England Journal of Medicine published a study by the Harvard School of Public Health and the Harvard Risk Management Foundation which argued against the proposition that frivolous litigation represents a significant portion of malpractice claims. To the contrary, the study concluded that, from a random sample of 1452 closed malpractice files 97 percent had in fact suffered injuries. Moreover, in about one-third of these cases there was no proof of negligent treatment and these claims were correctly denied money damages. Therefore, the conclusion of the Foundation was that the move to combat frivolous litigation will have limited effect on total costs. It is important to point out, furthermore, that often litigation and the ensuing investigation through the discovery process is the only means to discern if malpractice, or for that matter any personal injury, has in fact occurred. But we are in the midst of silent tort reform, as the Harvard study points out. This movement has moved from the legislative branches of the Federal and state governments to the regulatory agencies of the Federal government. For example, in February, 2006 the bedding industry persuaded the Consumer Product Safety Council to adopt rules making it almost impossible for a consumer to win money damages under state laws for mattresses that catch fire. This was the first time in the 33 year history of the Federal agency in which consumers were limited in their ability to bring lawsuits in state court. This is but one example of what has become an unholy alliance between government and industry at a time when it has become self-evident that industry has the ability and continued desire to mislead government agencies. The argument to the contrary, of course, has been that a single standard set by the Federal Government is the best way to protect the consumer. Supporters of tort reform often point to Proposition 12 passed in Texas in It limited damages in medical malpractices cases to $250,000 per individual and $250,000 per institution not to exceed two. Local reports from Texas claim that this proposition alone has increased the new doctors coming into Texas by 14,500 through October, It is claimed that 30 new insurers are writing business in Texas since Proposition 12, rates are being cut and access to quality medical care is on the upswing. I do not claim to be an expert on the issues discussed above. I do know, however, that the question of tort reform is important to many of our members and the actions of insurers have had a direct impact on both the plaintiff s and defendant s bar here in our county. I suspect this issue is more complicated than ever. As tort reform moves into the area of Federal regulation, preempting state laws and the effects on the consumer will be more difficult to judge. Who will be watching? Communicating By Creating Art (Continued from page 4) bothered him. They deprived the whole world of the treasures and even though it was thousands of miles away it caused pain in my heart, Mr. von Schmidt said. I don t think there had been much of a Buddhist presence in Bamiyan but the Islamic people in that area were proud of the Buddha carvings. The narrow-mindedness of the Taliban, who destroyed the statues of Buddha believing them to be idols, led Mr. von Schmidt to create replacements. In recognition of the rich culture which the Silk Road and the Bamiyan Valley represent to the world I made an interpretation of the face of Buddha and reproduced it in various materials, he explained. Silk, of course was a natural for this project. Ultimately I turned to one of the most fascinating materials on earth and part of the foundation of the planet itself - lava. Going to the Vulcan s Forge and forming sculptures from the very substance of the earth was thrilling. Mr. von Schmidt doesn t think his choice to use lava unusual. He s used table saws, clay working tools, even a rolling machine to bend a piece of steel needed to weld together a form to slump a piece of fused glass. He s created sculptures out of iron, aluminum, and wax. On some pieces he s used an anvil, and in one instance cast paper to make three dimensional pieces. I pick different techniques to express the pieces I m working on at the time, he said. Mr. von Schmidt has had much success with his artwork. It has been included in exhibitions in the Anchorage Art Museum, the Nassau County Art Museum, and one of his prints is included in the permanent collection at the Brooklyn Museum and SUNY Purchase. His 1994, piece, Luncheon in The Sawgrass, a large alligator created for Woodstock 94 is currently installed in Ellwood Park in Huntington. His artwork even led to an introduction to Pope John Paul II. In 2004, Mr. von Schmidt was commissioned by Pave The Way Foundation to create The Ideals of Aaron, a sculpture he had the privilege of presenting to the Pope. The pair of crystal life-sized hands holding a globe was created to recognize the Pope for his accomplishments in furthering relations between the various world religions. During an audience at the Vatican, along with 150 rabbis, cantors, and other invited guests from the Foundation, Mr. von Schmidt personally presented his sculpture to Pope John Paul II. The experience was stupendous, he recalled. The Pope responded to my gift with a lovely speech spoken in English. I found him to be such a dynamic and engaging person. Even though he finds being an artist important, Mr. von Schmidt has always loved being an attorney too. He opened his own practice in 1989 concentrating on litigation and criminal defense. Although he currently spends much of his time working on his artwork he continues to practice law in his Dix Hills office concentrating on criminal defense and estate work. Being a lawyer began as a day job, but I ve really enjoyed it, he said. For 20 something years I was wrapped up in the law. It is a siren that sucks you in. He said he always enjoyed going to court most, fascinated by the interactions of the people there. Court is a great window into human existence, he said. Law is all about people. Currently Mr. von Schmidt is working on a piece to honor a fellow attorney, the late Dave Clayton. The bronze relief portrait will be mounted on a wooden plaque and displayed in the Lawyers Lounge where another one of his works is on view -- a bronze relief of another attorney who has passed away, Ira Kash. The whole purpose of art is to communicate, he explained. For the longest time I kept it to myself. My art is just my little statement. In all of it, if it opens somebody up to look at something differently than what I m doing is valuable. Note: The author is the Editor-in-Chief of The Suffolk Lawyer and the Deputy Press Secretary for the Nassau County Legislature, Majority Party. She is an award-winning journalist having written for the New York Law Journal, and the Herald newspapers among others. One of her short stories is included in an anthology of short stories, 2001: A Long Island Odyssey. Bench Briefs (Continued from page 5) it was not an abuse of discretion to remit the matter to a different arbitrator. SUFFOLK COUNTY COUNTY COURT Honorable Stephan L. Braslow Motion to sever each count of an indictment denied; no showing that it would be in the interest of justice or that there was good cause. In People of the State of New York v. Sean E. Tutt, Index No , decided on February 20, 2008, the court denied defendant s motion to sever each count of the indictment. The defendant argued that trying him on all three counts together would result in undue prejudice to him. In rendering its decision, the court noted that severance would be granted in the discretion of the court only if the defendant could persuade the court that the severance should be granted in the interest of justice and for good cause shown. The court reasoned that the defendant did not make a showing that he had important testimony to give concerning one charge in the indictment and that he had a strong need to refrain from testifying on another count of the indictment. Please send future decisions to appear in Decisions of Interest column to Elaine Colavito at 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 March 2009 issue, decisions must be received by February 1, Submissions will be accepted on a continual basis. All decisions sent to previously listed mailing address will still considered for inclusion in future Decisions of Interest column. Note: Elaine Colavito graduated from Touro Law Center December 2007 in the top 6 percent of her class. She is an associate at Heidell, Pittoni, Murphy, & Bach, LLP, in Garden City, concentrating in litigation defense. She can be contacted at (516)