1 THE SUFFOLK LAWYER A PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Bars Come Together for Annual Event Speaker suggests future of profession include the experienced By Laura Lane Everyone enjoyed the joint Nassau- Suffolk Board of Directors dinner meeting, an opportunity for members from both Long Island Bar Associations to catch-up with colleagues, share a few laughs, and profit from the wisdom of invited speakers. Nassau County Bar Association President Elect Lance Clarke, left, and Barry M. Smolowitz, Suffolk County Bar Association President Elect. photo: Laura Lane SCBA President John L. Buonora said he was pleased that so many members from both associations attended the dinner meeting. Moreover, he believed the Long Island Bar Associations privileged to have speaker Kathryn Grant Madigan, president-elect of the New York State Bar Association, who traveled from Binghamton to attend the meeting. Ms. Madigan spoke eloquently regarding the challenges and opportunities that attorneys face with an aging lawyer population and the bar s role in helping to make viable this second season of service. The first woman and youngest president of the association, Ms. Madigan, 54, believes that the concept of age has changed considerably in the 21st century. There is no fixed number anymore where you stop being middle aged and are sentenced to being old, said Ms. Madigan. Given the falling death rate among our oldest Americans, today s healthy 75 year-old is equivalent to yesterdays 60 year old. Even the concept of middle age has evolved and stretches well beyond the now old fashioned notion of middle age at 55. Ms. Madigan stressed that older attorneys MORE PHOTOS page 20 need to embrace their elder status, and see their careers not as coming to an end but as entering a new beginning. She added that it is up to the bar to help provide opportunities for this second season of service. The younger members of the bar they seek greater connectivity to the wisdom base of more experienced lawyers, a need to be served through our local bar associations, said Ms. Madigan. Law schools can also play a role by tapping into this aging lawyer population who now have more time to share their stories with law website: Vol. 23 No. 9 May 2007 Nassau County Bar Association Douglas Good, District Administrative Judge H. Patrick Leis, III, Nassau County District Administrative Judge Anthony F. Marano, and SCBA President John L. Buonora at the Nassau-Suffolk Board of Directors dinner meeting. photo credit: Laura Lane students. And let us strengthen our civic education and Lawyer in the Classroom programs...redouble efforts to get back into our community and senior centers. Ms. Madigan reminded aging attorneys to also mentor younger practitioners. Mentoring can be one of the most fulfilling and important things you will ever do as a lawyer, said Ms. Madigan quoting George Kaufman. In the end, the only thing you take with you when you depart from this world is what you leave behind. INSIDE SCBA Hosts joint boards meeting Kathryn Grant Madigan focuses on the future Pro Bono Recognition Night Paying tribute to volunteer lawyers Same Time Next Year Elections and awards at annual meeting New Attorney Ad Rules Take Effect Learn what is and what isn t acceptable Good Things Lawyers Do Penny Kassel s triumph Freeze Frame Memorable moments for SCBA members Book Review The life of President Millard Fillmore Legal Articles ADR American Perspectives (Op Ed) Consumer Bankruptcy DWI/DMV Identity Theft For the Defense Second Circuit Briefs Trusts and Estates Academy News Advantage Card Listings Among Us Calendar: Academy Calendar SCBA Committee Corner Court Notes Pro Bono Attorney of the Month PRESIDENT S MESSAGE Today s Peacock is Tomorrow s Feather Duster In ancient Rome, a triumphant general would enter the city on a golden chariot with a slave holding a crown over his head whispering in his ear reminding him that he was only mortal. The slave s words have sometimes been said to be sic transit gloria which loosely translated means, fame is fleeting. Even more loosely translated, this could mean, Don t get too full of yourself. This could John Buonora all end pretty soon. Fast forward a couple of thousand years to 1979 and I am on trial during my other life in the District Attorney s Office prosecuting about 600 anti-nuclear demonstrators who were trespassing and sitting in during an attempt to block the opening of the Shoreham nuclear power plant. (They were eventually successful, the plant never opened). Among the defense lawyers was Barry Scheck, a cause lawyer, before he gained fame as part of O.J. Simpson s Dream Team, or as a leader of the Innocence Project. (You didn t ask, but yes, we did win). The trial was attended by hundreds of the supporters of the defendants, many of whom were middle-aged alums of the anti-war demonstrations of the 1960 s. Most of them had the uniform of the protestors of the previous era, which included raggedy jeans, bandanas, scraggly beards and layers of dirt and odors resulting from not bathing. Each day of the trial, I would (Continued on Page 3) BAR BRIEFS SCBA S 99th ANNUAL INSTALLATION DINNER DANCE Friday, June 1, 2007 At The Inn at East Wind, in Wading River. Cocktails 6:30 p.m., program and dancing 7:30 p.m. Cost: $125 per person, black tie optional. Please join your colleagues for this spectacular annual event. THE SUFFOLK LAWYER DEADLINE The June issue is the last issue until September. Please send your submissions no later than June 6 to If possible, please send your submission in Word and include your bio as well as a photograph.
2 2 Suffolk County Bar Association 560 Wheeler Road Hauppauge NY Phone (631) Fax # (631) Board of Directors John L. Buonora President Barry M. Smolowitz President Elect James R. Winkler First Vice President Ilene S. Cooper Second Vice President Sheryl L. Randazzo Treasurer Matthew E. Pachman Secretary John R. Calcagni Director (2007) Dennis Richard Chase Director (2007) J. David Eldridge Director (2007) Derrick J. Robinson Director (2007) Justin M. Block Director (2008) Neil M. Block Director (2008) Jonathan C. Juliano Director (2008) John B. Zollo Director (2008) Patricia M. Meisenheimer Director (2009) Ted M. Rosenberg Director (2009) Richard L. Stern Director (2009) Richard Alan Weinblatt Director (2009) Douglas J. Lerose Past President Director (2007) Scott M. Karson Past President Director (2008) Robert F. Quinlan Past President Director (2009) Sarah Jane LaCova Executive Director SCBA Calendar MAY 2007 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: Monday Board of Directors meeting, 5:30 p.m., Board Room. 22 Tuesday Lawyers Assistance Foundation Committee meeting, 5:30 p.m., E.B.T. Room. Supreme Court Committee meeting, 5:30 p.m., Board Room. 23 Wednesday Lawyers Committee on Alcohol & Substance Abuse, 4:30 p.m., E.B.T. Room. Insurance & Negligence - Defense Counsel Committee meeting, 6:00 p.m., Board Room. 31 Thursday County Court Committee meeting, 5:30 p.m., Board Room. JUNE Friday 99 th Annual Installation Dinner, installing Barry M. Smolowitz as President, 6:30 p.m., The Inn at East Wind, Wading River, $100 per person. Call Bar Center for reservations. 12 Tuesday Animal Law Committee meeting, 12:15 p.m., Board Room. 14 Thursday Pro Bono Project Limited Share Raffle, Barbecue at the Bar Center, 6:00 p.m., First Prize $7,500. Only 300 tickets will be sold. Price per ticket is $100. Call Bar Center to purchase a ticket. 18 Monday Executive Committee meeting, 12:00 noon, Board Room. 19 Tuesday Education Law Committee meeting, 12:30 p.m., Board Room. Supreme Court Committee meeting, 5:30 p.m., Board Room. 25 Monday Board of Directors meeting, 5:30 p.m., Board Room. JULY Monday Executive Committee meeting, 12:00 noon, Board Room. AUGUST Monday Executing Committee meeting, 12:00 noon, Board Room. 13 Monday SCBA s Annual Golfing & Fishing Outing, Great Rock Resort & Golf Club, Sound Avenue & 25A, Wading River. Further information forthcoming. IF YOU NEED HELP WE ARE HERE FOR YOU! The Lawyer s Assistance Foundation 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 judgement. 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, 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 judgements. 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. THE SUFFOLK LAWYER LAURA LANE Editor-in-Chief DOROTHY PAINE CEPARANO Associate Editor Academy News ILENE S. COOPER SHERYL L. RANDAZZO DENNIS R. CHASE Assistant Editors Donna England Managing Director 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 3 Giving Recognition to Those Who Give of Themselves Foundation honors pro bono attorneys at annual awards dinner By Laura Lane The Pro Bono Recognition Awards Reception, held this year at the scenic Captain Bill s restaurant, pays tribute to the commitment and exemplary work of Suffolk County volunteer attorneys. The honored guests for the evening included Supreme Court Justice Marion T. McNulty and Joseph Mauro, who Pro Bono Foundation Managing Director and SCBA First Vice President James R. Winkler said have devoted their distinguished professional careers to public service and the law. The Pro Bono Foundation award recipients were James Curran, Jodi Ann Donato, Lewis C. Edelstein, Linda A. MORE PRO BONO NIGHT PHOTOS page 29 Kurtzberg, Michael Macco, Patricia O Donnell, Eric Sackstein, Patricia A. Waite and the law firm Blumberg, Cherkoss, Fitzgibbons & Blumberg, LLP. Pro bono night is important to the SCBA because it gives us an opportunity to reward those people who see our profession as something more than a means to make money, said Mr. Winkler. It highlights the importance of providing access to the legal (Continued on page 29 Award recipients and honored guests at the SCBA Pro Bono Foundation awards reception. photo credit: Arthur Shulman Today s Peacock is Tomorrow s Feather Duster (Continued from page 1) enter the room and approach the well of the court, accompanied by two younger assistant district attorneys who were second seating me, wearing our uniforms; haircuts, business suits with white shirt, tie, freshly shaved, and bathed. We, no doubt, were perceived by the demonstrators as smug arrogant defenders of the status quo opposing everything that they held near and dear to their hearts. One day, as we entered for the day s session, and walked down the center aisle of the courtroom amidst the pungent aromas of the gathered demonstrators and supporters, one of them leaned over to me from his end seat and intoned: today s peacock is tomorrow s feather duster. I know that I don t have to translate that for you, but just in case, he meant don t be too full of yourself because just like the peacock who eventually became a feather duster you can find yourself down, out and forgotten in a heartbeat. Remember what happened to that peacock. Remember what happened to Julius Caesar who was one of those Roman generals. (Actually, contrary to popular belief, Julius Caesar did not enter Rome as a triumphator but that s another long story I digress). I remember bursting out into a spontaneous and hearty laugh at that remark. It was funny, and I never forgot it, because although the man who uttered it really didn t have a clue about who I was or what my beliefs were, he uttered an eternal truth which is to never get too arrogant or self important when you are in a position of prestige or perceived power because it will sooner or later pass and many people won t even say hello to you or even remember your name. So what do peacocks, feather dusters, triumphators (Latin for one who entered ancient Rome in triumph), and Julius Caesar have to do with me? Well, for me, this glorious year has truly passed by fleetingly. It has been a year filled with people and events that have brought great joy and gratification to me. I thought that I knew many lawyers before this year. (My friend Nick Campasano once told me how his daughter once marveled at how many people her father knew. Nick explained to her, honey, it s just a function of living a long time. But I digress again). This year has allowed me to meet and to know even hundreds more lawyers both within our Association and elsewhere, which has reinforced my belief that attorneys are special people and part of a special profession. I have never stopped being amazed at how wonderfully people have responded to me this past year, not because of who I am but because of what I have been; namely, President of the Suffolk County Bar Association. I have tried never to forget the peacocks or those slaves who rode into ancient Rome with the triumphant generals. One Brief Shining Moment Benjamin Franklin once wrote an essay he entitled Ephemera: An Emblem of Human Life. Ephemeron, the singular form of ephemora, is defined as a short-lived thing or something useful or important for a short time. It is also the name of a type of insect that lives but for one day. Franklin s thesis could be summed up in three words: life is short, or, as some might say, life is too short. Franklin went on to say: My friends would comfort me with the idea of a name they say I shall leave behind me; and they tell me I have lived long enough to nature and to glory. But what will fame be to an ephemera who no longer exists. I think that Franklin, like that Roman slave and that antinuclear demonstrator, was trying to tell us not to get too full of ourselves. With that advice in mind, I d like to briefly review what I consider the highlights of this past year (and not necessarily in order of importance) George Washington s Farewell Address It s Not It all started with our Installation Dinner Dance. We wanted to keep it light, warm and less rigid than other similar functions without sacrificing the dignity and significance of the occasion. No dais, no processional, no longwinded speeches with a speaker s podium in the middle of the crowd and not raised on a stage with the speakers aloof from the rest of us. We wanted it to set the tone for the presidential year to come. Tomorrow s feather duster? Our Financial Strides photo credit: Arthur Shulman We made great strides in improving our financial condition, coming to grips with our fiduciary responsibilities. This is something that was long overdue. There was a moment or two of angst when it was rumored that we were having major financial difficulties. While the problem was nowhere near as great as the concern that some had, it was a wake up call that taught all of us that we have to be ever (Continued on page 22)
4 4 Same Time Next Year... Elections, awards, and camaraderie at SCBA s traditional annual meeting In sum and substance, the SCBA Annual Meeting does not differ much from one year to the next. It s always held on the first Monday of May, and, as is standard at most annual meetings, the agenda comprises certain set items. Yet the event is always characterized by a sense of accomplishment and the promise of new beginnings, making each annual meeting significant and special. The 2007 Annual Meeting, held at the SCBA Center on Monday, May 7, was true to form. Accomplishments galore were recognized by President John Buonora, who dispensed numerous certificates of recognition as the gathering of more than 80 members well beyond the 50 required for a quorum applauded. The new beginning aspect of the evening was also palpable and was symbolized by the election of new SCBA Officers and Directors, who, like their predecessors, undoubtedly bring with them the desire to carry out a new year s goals and aspirations. The elections were accomplished, with no further nominations coming from the floor, by the Association s current secretary, Matthew Pachman, casting one ballot for the slate selected by the SCBA Nominating Committee: James R. Winkler as President Elect, Ilene S. Cooper as First Vice President, Sheryl L. Randazzo as Second Vice President, Matthew E. Pachman as Treasurer, and the newest member of the SCBA Executive Committee, Arthur E. Shulman, as Secretary. Also elected were new SCBA Directors, with terms expiring in 2010, Lynne. M. Gordon, Maureen T. Liccione, Hon. Peter H. Mayer, and Outgoing SCBA Directors Derrick Robinson, J. David Eldridge, Dennis Chase, and John Calcagni with President Buonora (left) Photo by Arthur Shulman Recognized for their contributions to Academy CLE programs: Harvey Besunder, John Juliano, John Bracken, George Roach, Barry Warren, Richard Stern, Vincent Ferro, Hon. John Kelly, Wende Doniger, Daniel Engstrand, Hon. Mark Cohen, and Hon. James Flanagan with President Buonora Photo by Arthur Shulman Daniel J. Tambasco. Finally, John L. Buonora, John L. Juliano, and William J. Porter were elected to the Nominating Committee, also with terms expiring in President Elect Barry M. Smolowitz, who takes office as President on June 1, did not stand for election at the Annual Meeting, since, under the Association bylaws, the ascension from president elect to president is automatic. The awards portion of the meeting recognized various forms of service rendered by SCBA members. Awards of recognition for outstanding service in the development and presentation of Academy CLE programs were presented to Hon. Mark D. Cohen, Daniel Engstrand, Jr., Wende Doniger, Vincent Ferro, Hon. James Flanagan, Richard Stern, and Hon. John Kelly. In addition, five past SCBA Presidents, who, year after year, participate in Academy seminars virtually any time they are asked, were recognized: Harvey B. Besunder, John P. Bracken, Barry L. Warren, John L. Juliano, and George L. Roach. Awardsof recognition were also presented to members who have chaired or cochaired SCBA Committees: Gene D. Barr and Lisa Pomerantz ADR Committee; Michael J. Miller Appellate Practice; Leif Rubinstein Bankruptcy; Elliot M. Portman and Lester P. Taroff Creditors Rights; Hon. Gaetan Lozito and Ira S. Rosenberg District Court; Rita Fishman Sheena and Pamela L. Steen Education Law; George Tilschner and Deborah Harper Elder Law; Frederick Eisenbud Environmental Law; Eric H. Holtzman and Fredric Scheinfeld Fee Disputes; Arthur Shulman Grievance Committee; A. Craig Purcell Judicial Screening; Richard Rappaport Labor and Employment Law; Joseph K. Strang LRIS; Dennis R. Chase Membership Services; Maureen T. Liccione Municipal Law; Susan LeBow Professional Ethics; Eric L. Morgenthal Taxation Law; Patricia Meisenheimer Women & the Law; George Trovato Jr. and Dennis R. Chase Workers Compensation. (Continued on page 28) 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 We ve got a Patent on Experience Over 8,000 patents granted Over 15,000 trademarks obtained Over 40 years of experience Our expertise extends to all areas of technology We represent everyone from individuals to multinational corporations We serve clients with distinction in both foreign and domestic intellectual property law We help clients identify emerging technologies and ideas For more information, call us today at or fax us at (631) Fax: (631) Northern Blvd., Roslyn, NY
5 5 New Attorney Advertising Rules Take Effect By John C. Zaher After months of uncertainty and debate, the New York State Office of Court Administration adopted new rules regarding attorney advertising effective February 1, The new rules clearly define what is and isn t acceptable for attorney advertising. The rules defend the dignity of the profession by establishing clearer guidelines. The new rules favor attorneys who wish to build their practice through responsible advertising. Since our firm s inception, PRMG has always been committed to those principles. In June of 2006, the Office of Court Administration issued proposed rules that would have required that attorney advertising needed to be informational and raise public awareness of issues requiring legal representation. Actors, celebrities, testimonials and re-enactments would not be permitted in any legal advertising. The proposed rules forbade statements that created an expectation of results, comparisons and characterizations of services. The proposed rules also required an inordinate number of disclaimers, making television and radio advertising difficult. In addition, the rules greatly increased the filing requirements. In sum, the proposed rules were highly restrictive, making attorney advertising far more challenging. The Bar Associations, practitioners and marketing professionals, including the author of this article, criticized the rules. Under the adopted rules, attorney advertising is defined as communications primarily designed to attract new clients. Under the new rules, communication to existing clients or other lawyers is not considered advertising. The new rules distinguish what is considered advertising versus a solicitation, the latter including filing requirements and 30-day prohibition from soliciting personal injury or wrongful death claimants (15 days if there is a filing requirement within 30 days). A solicitation is defined as any advertisement initiated by or on behalf of a lawyer or a law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives... Copies of a solicitation must be filed with the attorney disciplinary committee of the judicial district. The attorney must retain copies and solicitation lists for at least three years. The new rules permit re-enactments, actors and celebrity endorsements if clearly disclosed. Clients may appear in advertisements if there are no pending matters involving the attorney. The hard to define informational provision has been deleted. The use of nicknames, monikers, motto or trade names is not permitted as it implies special abilities to get results. Additionally, advertising must be relevant to the selection of counsel and cannot focus on gimmicks to attract clients. As in the original draft, attorneys will have to retain copies of their advertisements for three years, but and website solicitations for only one year. Under the new rules, attorneys may use a domain name that doesn t include the name of the lawyer or law firm if the name of the lawyer or firm is clearly and conspicuously included on all pages of the website. The domain name cannot imply an ability to obtain results. The use of a telephone number based on a domain name, nickname, moniker or motto is permitted if it doesn t violate a disciplinary rule. The following is an outline of some of the key provisions of the new attorney advertising rules. Readers should consult the new rules in their entirety. Key Provisions of New Attorney Advertising Rules In addition to education, practice areas, public offices, teaching positions, publications, bar and professional memberships, foreign language fluency and other details, the new rules now permit bona fide professional ratings. An advertisement shall not include an endorsement or testimonial from a client with respect to a matter that is still pending. If an advertisement includes a paid endorsement or testimonial, it must disclose that the person is being compensated. An advertisement shall not include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm that is not the case. An advertisement may use actors or depictions of fictionalized events provided that such is disclosed. Advertisements shall not be made to resemble legal documents. An advertisement shall not use a nick- name, moniker, motto or trade name that implies an ability to obtain results. An advertisement may contain statements that are reasonably likely to create an expectation of results, a comparison of the lawyer s ser- John C. Zaher vices to other lawyers, testimonials of current or former clients (provided that the matter is not pending), or statements describing the (Continued on page 26)
6 6 On the Move Jennifer L. Deaver, Wayne F. Crowe, Jr., Marc Stein, and Jonathan M. Marmo have joined the firm of Bryan L. Salamone, P.C. as associates. The firm has completed its fourth office expansion in three years and continues to practice exclusively in the areas of matrimonial and family law. Jackson Lewis LLP is pleased to announce Jeffrey W. Brecher has been elevated to partner. Mr. Brecher, who is resident in the firm s Melville office, litigates employment law cases in defense of management and has particular expertise in litigating national collective and class actions. Lakeshia N. Highsmith and John J. Porta were named as associates with Jackson Lewis LLP. Ms. Highsmith and Mr. Porta will reside in the firm s Melville office. Ms. Highsmith joins the firm s Affirmative Action practice, and Mr. Porta joins the Employment litigation practice. Donald A. Rettaliata has relocated his firm to 4250 Veterans Memorial Highway, Suite 275E, Holbrook, New York His telephone number is, (631) , and his fax is (631) Mr. Rettaliata at The Law Offices of Robert C. Gottlieb have moved their Commack office to 75 Prospect Street, Suite 109, Huntington, NY Ruskin Moscou Faltischek, P.C. have added associates Matthew F. Didora and Thomas A. Telesca in the firm s Litigation Department, and William J. McDonald in the firm s Health Law Department. SIDNEY SIBEN S AMONG US Announcements, Achievements, & Accolades SCBA member Craig D. Robins was voted best in show at a juried photography exhibition, Long Island Through a Lens. Mr. Robins s Montauk Train Station will be on display through May 28 at the Long Island Museum of American Art, History and Carriages in Stony Brook in the art museum. His award-winning photograph is included in the exhibition The Best of Photography and Film from the George Eastman House Collection. Mr. Robins was featured in the Long Island section of The New York Times and in Newsday in Long Island Life. David H. Besso, an SCBA member, has been appointed to the Judicial Hearing Officer Selection Advisory Committee for the Second Judicial Department, Tenth Judicial District in Nassau and Suffolk counties, a two-year term that was effective April 1, 2007 through March 31, Richard J. Guercio, a partner in the law firm of Guercio & Guercio, presented at the Annual Legislative Conference of the New York State School Boards Association in Albany in March, the issue of Reality Based Collective Bargaining in school districts. Gary L. Steffanetta, a partner in the firm, made a presentation at Southhampton College in March on the issue of Collective Bargaining and Education Law, and Gregory J. Guercio, senior partner in the firm made a presentation on Collective Bargaining and Education Law in March. Jacqueline Siben Congratulations Rose Elefante-Link, an SCBA member, her husband Bill Link, and children Will and Lilly are proud of a new addition to their family with the birth of Rose Antoinette Link, 7 lbs, 3 oz., on April 24. In the Legal Community Ruskin Moscou Faltischek, P.C. partners Alexander Bateman and Jay Silverman have assumed chairmanship of the Health Law Transactional & Regulatory Department. Speedy recovery Wishing a speedy recovery from heart surgery for Selma Mitchell, SCBA member Ilene Cooper s mother-in-law and Mitchell Cooper s mother. Get well wishes for Margaret Mistretta, wife of SCBA member Joe Mistretta, following surgery. Condolences Andrew D. Weinberg, M.D., son of SCBA attorney Renee E. Schell, died on February 6, 2007 after a yearlong battle with colon cancer. Dr. Weinberg was a nationally renowned geriatrician, having authored 20+ books dealing with risk management in long-term care facilities as well as 48 original research reports concerning the care and treatment of the elderly. He held clinical professorships in Harvard, Yale, Emory and the University of South Carolina medical schools and is listed in Who s Who In the World. As a Captain in the U.S. Naval Reserves, he served as a flight surgeon in both Desert Storm and Operation Iraqi Freedom and was accorded full military honors at his funeral. Dr. Weinberg s family has established a Scholarship Fund in his memory at SUNY Upstate Medical School. Scholarships will be awarded specifically to medical students interested in pursuing a medical career in geriatrics. Friends and colleagues of Renee E. Schell, who graciously wish to contribute to this fund in her son s memory, may send same to: Medical Alumni Foundation (SUNY Upstate Medical Center), In memory of Dr. Andrew D. Weinberg, 155 Elizabeth Blackwell St., CAB 306, Syracuse, NY To the family of longtime SCBA member John Armentano the founding partner of Farrell Fritz, P.C. who passed away on April 18 after a long illness. To Lawrence Raful, and SCBA member and his wife Dinah on the loss of Mr. Raful s father-in-law Abe Maurer. To SCBA member Lara M. Harmel, on the loss of her grandfather, George M. Harmel Sr. The Association joins the family in mourning the passing of long-time member Carl P. Maltese. New Members The Suffolk County Bar Association extends a warm welcome to its newest members: Christopher B. Abbott, Craig A. Andreoli, Elizabeth Bloom, Linda M. Boswell, Joseph R. D Addario, Brian Giehl, Gina M. Lopez-Summa, Mildred Michalczyk, Brian C. Mitchell, Kim Novak, Doreen J. Shindel, Lauren E. Stiles and Joanne Zalud-Crawford. Still handling Medicaid cases yourself? Please be seated. 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7 7 SECOND CIRCUIT BRIEFS By Eugene D. Berman This month we discuss two decisions that the United States Court of Appeals for the Second Circuit issued in April 2007 concerning federal court jurisdiction and practice. A moot issue The Second Circuit, in ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 1 addressed the distinction between Constitutional 2 and issue mootness in an appeal from a judgment awarding money damages that had been granted, over the plaintiff s objection, without a liability determination. Plaintiff ABN Amro Verzekeringen BV ( ABN ), a shipper s insurer, subrogee, and assignee, sought $500,000 from a freight forwarder and a carrier for damages to a printing press that was being transported from Europe to the United States. After the district court granted partial summary judgment, holding that each defendants maximum liability to the shipper was capped at $50, 3 the defendants each tendered $50 and, without conceding liability, offered to acquiesce to a judgment. ABN rejected the defendants tenders. Thereafter, the district court, relying on Judge Friendly s decision in Abrams v. Interco Inc., 4 granted the defendants Federal Rules of Civil Procedure Rule 12(b)(1) 5 motion to dismiss the complaint for lack of subject matter jurisdiction, and entered judgment against each defendant in the amount of $50, and against ABN, dismissing its claims for damages in excess of $50. 6 The district court deemed the case moot because this Court cannot grant plaintiff any effectual relief beyond the $50 already offered by defendants. 7 Although it affirmed, 8 the Second Circuit held that the district court erred in its view that the dismissal of the case was based on mootness and lack of subject matter jurisdiction. 9 Citing the Supreme Court s 1983 opinion in Iron Arrow Honor Society v. Heckler, 10 the Second Circuit explained that the district court would have been powerless to act if it had lacked subject matter jurisdiction. 11 In analyzing the district court s error, the Second Circuit distinguished Abrams v. Interco Inc. from the case on appeal. Abrams concerned a private antitrust action for treble damages, in which class certification was denied. Defendant Interco, without admitting liability or that the plaintiffs suffered any damages, offered to allow a judgment to be taken against it for more than the plaintiffs individual claims for damages, together with costs and reasonable attorneys fees. 12 As a result, with respect to the plaintiffs individual claims for damages, nothing of practical significance remained to adjudicate. 13 By contrast, the ABN defendants offered a small fraction of ABN s $500,000 demand, albeit the maximum under the district court s liability finding. While the defendants $50 tender mooted the district court s last remaining issue, a case and controversy remained because ANB s $500,000 claim remained in dispute. 14 A missing foundation U.S. v. Kaplan 15 concerned the foundation requirement necessary before a lay witness may provide opinion evidence under Federal Rules of Evidence Rule Solomon Kaplan, an attorney, was convicted of seven counts of an indictment that charged him with participating in an insurance fraud scheme. danger of losing his license to A medical doctor and his practice law, the Shermans chose brother (the Shermans ), Kaplan as Galkovich s replaceoperated a medical clinic that ment. The Shermans then strucprovided unnecessary treattured a transaction that gave the ment to accident particiappearance that Kaplan had purpants in staged or exaggerated chased Galkovich s practice. automobile accidents. The At Kaplan s trial, Galkovich Shermans set up a law office testified about his conversation and hired Alexander Galkovich to run the office in Eugene D. Berman with Kaplan that occurred when they were driving to the law his name, and to serve as counsel of record to submit the accident office s closing, during which Kaplan participants false or inflated insurance stated that he had handled cases like this claims for bodily injury. The Shermans before. 17 The district court then allowed medical clinic then referred the accident Galkovich to offer his lay opinion testiparticipants to the Galkovich law mony regarding Kaplan s knowledge of office. the fraud. 18 After Galkovich was arrested, and in In reviewing Galkovich s testimony, the Second Circuit explained that FRE 701(a) s rationally based on the perception of the witness language requires that lay opinion testimony be both (a) based on the witness s firsthand perceptions and (b) rationally derived from those firsthand perceptions. 19 The court found that Galkovich s basis for his opinion I based it on the only thing I could base it on, which is my experience there, what people said about Kaplan, my conversation with Kaplan, everything that I had been involved in. That s what my opinion could be based on 20 was extremely vague [and] º failed to show that his opinion as to Kaplan s knowledge was rationally based on facts he had observed. 21 (Continued on Page 19) Serious personal injury, seriously pursued. The Finz firm was founded in 1984 by Leonard L. Finz, a former New York State Supreme Court justice. The tradition of excellence continues with Stuart L. Finz, a prominent and accomplished trial lawyer, who has scored record verdicts and settlements for the firm s clients. The Finz firm is a personal injury law firm devoted to aggressively representing the injured and recognized as a leader in advancing the rights of victims. The firm has a team of highly skilled attorneys, the desire to win, and a proven record of results. $5,000,000 verdict against a chemical company for an explosion victim $4,500,000 settlement with a hospital that failed to diagnose a cerebral bleed $20,520,000 landmark product liability verdict for a smoker against Big Tobacco $8,000,000 settlement with New York State for a victim injured on a tube slide $22,575,000 verdict for a parent s death and her childrens emotional suffering And many more... You can count on the Finz firm to fight hard on behalf of your clients and to offer them the highest level of respect, ethics, and a continuous commitment to achieve the fullest measure of justice. Call (888) FinzFirm for all of your personal injury referral needs or visit FinzFirm.com to learn more about the firm, its proven record of success, and how the firm can help you and your clients. Prior results cannot and do not guarantee or predict a similar outcome with respect to any future matter, including yours, in which a lawyer or law firm may be retained. 100 Jericho Quadrangle, Jericho, NY 44 Wall Street, New York, NY
8 8 The New York Center for Neuropsychology & Forensic Behavioral Science [ Over 20 Years \ Providing Consultation to Attorneys & the Courts on Psycho-legal Matters Criminal Cases: Competency Issues, Criminal Responsibility, Extreme Emotional Disturbance, Risk Assessment, Sex Offender Workups & Dispositional Planning Dr. N.G. Berrill, Director Matrimonial & Family Court Cases: Custody/Visitation, Neglect/Abuse, Termination, Delinquency, Family Violence, & Adoptions Civil Cases: Competency Issues, Head Trauma, Sexual Harassment, Discrimination, Immigration, & Post-Traumatic Stress Disorders Comprehensive Diagnostic & Treatment Services 26 Court Street, Suite 912, Brooklyn, NY & 45 North Station Plaza, Suite 404, Great Neck, NY BOOK REVIEW From Self-Taught Attorney To President of the U.S. By Charles F. Howlett While visiting Buffalo a couple of years ago with my wife, SCBA attorney Patricia M. Howlett, a devotee of Millard Fillmore, we decided to drive to the home of our thirteenth President. It was closed! How fitting, for historians and others have portrayed him as a pompous, colorless individual who rose far beyond his ability and to discuss him is to overrate him. To the rescue comes author George Pendle. His The Remarkable Millard Fillmore received the Noblesse Oblige Prize in Literature. This is not a scholarly biography, nor a work of historical accuracy. Rather, it is an entertainingly, engagingly written work of imagination based on historical circumstance and events covering the nineteenth century. After completing the book, readers will know much more about Fillmore, even though they will continue to find little to discuss. The strength and contribution of this work is really the period in which Fillmore lived and the events surrounding his life which are brought to life by Pendle. There are a few reasons why members of the bar will wish to read this book. First, it is about an attorney who was self-taught in matters of law and politics and became President of the United States. And Fillmore hailed from New York State where we all reside. But, perhaps most importantly, Pendle has sought to resurrect an individual of less import in American history in order to demonstrate how maligned figures can often be made into true American heroes. Perhaps its best to point out that what Pendle has done is no different from what was done by most American writers of the Romantic Period in our history (early nineteenth century). Devotion to hero figures in order to promote American nationalism was the order of the day for writers like Jared Sparks, George Washington s biographer. He corrected all of our First President s grammatical mistakes and created the Cherry Tree story, and James Fennimore Cooper s Leatherstocking Tales, whose affinity for the first inhabitants and the landscape itself familiarized many readers with the wonderful beauty of our virgin land. In many ways, Pendle s book is a throwback to that time when writers sought to encourage Americans to take stock in their own land and make the young nation something of which to be proud. So along comes Fillmore, an accident in history, or a person deserving our attention? For Pendle why not give it a shot. Resurrecting Fillmore from the dustbin of history was no easy task. The late Pultizer Prize-winning historian Merle Curti s The Rise of the American Nation, the most widely-used high school American history textbook for generations, simply noted in one sentence that after the death of President Zachary Taylor, his successor, President Millard Fillmore of New York, signed the compromise bills (p. 350, 1982 ed). That is all the attention he merited in this textbook and all others. Nevertheless, the author provides a humorous, yet intelligent, view of nineteenth century American history through the life of Fillmore. Pendle has managed to extrapolate unbelievable conclusions from the most inconclusive of facts and place them in rich historical context. Thus, we see a young boy learning and questioning the meaning of labor exploitation while working for Samuel Slater, comprehending the art of political intrigue under the tutelage of Thurlow Weed, and assuming Tocqueville s role as roving reporter and encountering the evils of slavery while having a Charles F. Howlett chance meeting with Nat Turner. We see him rescuing Edgar Allen Poe from the Erie Canal near Buffalo and developing a long relationship through letters, avoiding death in a duel with Andrew Jackson, and engaging in a lifelong campaign against the Freemasons, staying at Brook Farm and meeting Ralph Waldo Emerson, questioning the forced removal of Cherokees and the Trail of Tears, contempt for Martin Van Buren, another New Yorker, and much more. These are just some of the tidbits Pendle throws at the reader along with an engaging and humorous writing style. For example, consider this one paragraph: The fact was that Congress was staggering under a surfeit of divisive political issues. Environmentalists were warning of woodland encroachment, fearing that forests were rampaging across our country unchecked. Creationists were encouraging the mass slaughter of buffalos, their absence from biblical scripture proof of their sinful nature. The budding women s rights movement was beginning to rear its bonneted head in outrage at the poor selection of cleaning liquids and kitchen implements available to them, and the fearsome stillbirth lobby furiously fought for a mother s right to die in childbirth, as God intended (p.91). There is no question as to the author s social and political commentary. His lens is focused on change and in the process he successfully makes Fillmore look real. Equally important, he asks readers to ponder the events and outcomes in order to make meaningful comparisons to issues confronting us today. This is a fun book to read and one you will enjoy. Clearly, it is not the way history should be written, but it is the way it should be read. Although I still cannot fathom my wife s fascination with Fillmore, I can understand why he is the subject of historical curiosity after reading this book. Note: The author is an Assistant Professor of Graduate Programs in the Education Division at Molloy College and the husband of SCBA member Patricia M. Howlett. He is also an Air Force Academy Admissions Liaison Officer. Book Reviews Wanted Nearly everyone likes to read, but finding the right book can be a challenge. If you ve enjoyed reading a book, review it in The Suffolk Lawyer. The length and style of the review is up to you. Just share with SCBA members why you liked the book or, if it s a legal publication, how you found it useful in your practice. Send your book review to
9 Robin S. Abramowitz 9 PRO BONO ATTORNEY OF THE MONTH Guided firm to take pro bono cases By Rhoda Selvin Having been a member of the Pro Bono Project since 1993, Robin S. Abramowitz, Pro Bono Attorney of the Month for May 2007, pointed out to her partners in Lazer, Aptheker, Rosella & Yedid, P.C. that although as individuals they accepted PBP cases, the firm ought to commit itself to do more pro bono work through the Project. Agreeing to this, in September 2006 the firm set up a committee to handle their pro bono work and notified the Project of their intention to take debt collection, guardianship, and litigation cases. In addition, Ms. Abramowitz has amassed 254 hours in 134 cases since she was last named Pro Bono Attorney of the Month in January And eleven of these cases are still open. Most of Ms. Abramowitz s cases have come to her through the Bankruptcy Clinic, in which she has participated throughout her PBP career with just four of the concluded cases divorce actions. It s so sad to see people who have hit bottom or are falling off the wall, Ms. Abramowitz observed. Our clients are so grateful someone will listen to them, even if we have to tell them that bankruptcy can t help them. That the need is still so great is overwhelming. Ms. Abramowitz did not start out as an attorney. When she was in high school, one of her teachers told her she ought to be a lawyer, but believing she was too shy, she entered the State University of New York, College at Geneseo, expecting to become a special education teacher. Soon deciding against that field, Ms. Abramowitz changed her major to political science. After graduation in 1979, she worked as a paralegal for eight years. When an associate from the firm convinced her to go to law school, she entered the daytime, two-year program at Hofstra University School of Law, graduating in August Ms. Abramowitz s firm was most cooperative; permitting her to come to work after the day s courses had ended and work into the evening. Even with a toddler at home in addition to her full-time job, she graduated with distinction. Ms. Abramowitz became a law clerk in the firm of Lazar & Aptheker in 1988 and has stayed with the firm (in its various iterations), becoming News & Notes from SCBA committees Education Law Rita Fishman Sheena and Pamela L. Steen, Co-Chairs COMMITTEE CORNER Approximately 12 people attended the April 17 meeting. The committee engaged in a lively discussion on issues raised by the State Education Department s April 2007 revised interim guidance on parentally placed private school students with disabilities under IDEA 2004 and New York s dual enrollment statute. Members also participated in a discussion lead by Robert Cohen, Esq., on the current state of the law a partner in She has also been an arbitrator on the Long Island General Commercial Panel for the American Arbitration Association since In addition to the Suffolk County Bar Association, Ms. Abramowitz is a member of the Robin S. Abramowitz Suffolk County Women s Bar Association and the Women s Bar Association of the State of New York. She was a member of the Board of Managers of the Suffolk County Bar Pro Bono Foundation for six years ending in 2002, chaired SCBA s Bankruptcy/Insolvency Law Committee in , was a member of the Judicial Screening Committee in , and was a co-presenter at the CLE seminar, Attention to the Ethics of Transactional Law in October She is deeply involved in women s bar activities. On the county level, Ms. Abramowitz has moved from being a SCWBA director in through various posts, including state delegate in , , and , to being the current president. She was a presenter at the organization s CLE program, How to Save Your Client s House from Foreclosure, in November Her history with WBAS- NY has likewise shown a steady increase in responsibility. In addition to serving on and co-chairing several committees, she was co-editor of the newsletter, The Women s Bar News, from 2004 to She is now co-chairing of the CLE Committee for Convention 2007 and the Judicial Screening Committee Delegate for Suffolk Chapter for screening candidates for the Court of Appeals. She was a co-presenter of a program concerning the interaction of bankruptcy law with matrimonial law at the WBASNY 1996 convention, as well as the co-presenter at a 2004 Convention CLE Seminar, State Court Issues and Bankruptcy Court What Every State and Bankruptcy Practitioner Should Know. Ms. Abramowitz s excellent service to the profession has not gone unnoticed. Since her earlier designation as Pro Bono respecting public employees right to have a representative present during questioning which may lead to disciplinary action. Elder Law Deborah Harper and Ronald S. Lanza, Co-Chairs The April 11 meeting was held to discuss Medicare, social security and an EPIC update. Approximately 12 attorneys attended the meeting. Speakers from Medicare, the Social Security Administration and New York State EPIC discussed changes for 2007, available health insurance plans available to seniors from Medicare, extra help for low-income seniors from Social Security and the interplay between the plans with EPIC. Attorney of the Month in 1999, she received the Suffolk County Women s Bar Association President s Award for extraordinary service and dedication to the Association in 2003, and the New York State Bar Association President s Award for Pro Bono Services in That toddler who graced Ms. Abramowitz s law school career, long since was joined by a younger brother, who is Penny Kassel now a sophomore in high school. With her extensive professional activities and her family, Abramowitz does not have much spare time, but she loves reading and hiking, and recently joined a hiking club. The Pro Bono Project has long depended on the enthusiastic and effective service always given by Robin S. Abramowitz and is proud to name her, once again, Pro Bono Attorney of the Month. Making A Difference Penny Kassel GOOD THINGS LAWYERS DO On April 29, 2007 in St. Petersburg, Florida, after five months of very strenuous training, I participated in the St. Anthony s, Olympic distance, Triathlon, an Olympic distance triathlon. I participated as a member of Team in Training, one of the fundraising arms of the Leukemia and Lymphoma Society. The spirit and excitement during this event weekend was incredible. There were 4,300 participants from all over the world, both amateurs and professionals. Approximately 550 of those athletes were members of Team in Training chapters throughout the country, including 50 from the Long Island chapter. The Long Island chapter of Team In Training raised $230,000 and, nationally, Team in Training raised $2,100,000 (for this event alone), to help find a cure for Leukemia and Lymphoma. The members of Team in Training often talk about how our hard work pales in comparison to those who undergo treatment for leukemia and lymphoma and it is a reminder to us not to take for granted anything in our lives and to appreciate what we have, including our health. We think of others, like my good friend, Sandra Brooks Edwards, who fought so hard, but lost her battle with leukemia. During the weekend, we heard many inspirational speeches. A keynote speaker at the Team in Training pasta party (the night before the event), was a 28-year-old participant who had finished treatment for Hodgkin s Lymphoma the prior year. As a result of his treatments, he suffered temporary paralysis. One year later he was participating in an Olympic distance triathlon! Dave Scott, a six time Iron Man competition winner also spoke words of encouragement and admiration for those of us who were working so hard for such a deserving cause. Sunday morning, as we swam a mile, biked 25 miles through 20 mph winds, and ran six miles in 87 weather, we were reminded how lucky we are that we can participate in such an event and how proud we should be for our fundraising achievements. In the end, I feel good about what I have accomplished. Through Team in Training, I get to stay in shape, enjoy myself, meet wonderful new friends and raise money to fight leukemia and lymphoma. Hopefully, all of our fundraising will get us that much closer to finding a cure and increasing the survival rate for those with blood related cancers. I am honored that The Leukemia & Lymphoma Society has selected me as a mentor for the Team In Training participants for the Tobay triathlon in Oyster Bay in June, and the Disney triathlon in September. So, I am still fundraising and accepting donations. If anyone would like to make a tax-deductible donation, please make the check payable to the Leukemia & Lymphoma Society and send it to Penny Kassel & Associates, 300 Garden City Plaza, Garden City, NY Thank you all for your support in my undertaking and for your generous donations to The Leukemia & Lymphoma Society. You should all be proud.
10 10 NEED? SOLUTIONS BC&S BURNER & CHERCHES ATTORNEYS AT LAW Nancy Burner, Esq., CELA CERTIFIED AS AN ELDER LAW ATTORNEY* Eric D. Cherches, Esq. Kim M. Smith, Esq. ELDER LAW AND ESTATE PLANNING Medicaid Eligibility Estate Planning Trusts & Estates Litigation Nursing Home Placement Guardianships SMITH, LLP Last Wills & Testaments Trusts, Irrevocable & Revocable Strategies for Saving Estate Taxes Long Term Care Insurances Supplemental Needs Trusts 46 Route 25A, Suite 4 Setauket, NY Phone Fax Main St. Westhampton Beach, NY Phone Fax * 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. CONSUMER BANKRUPTCY Bankruptcy vs. Debt Forgiveness Filing for bankruptcy doesn t create tax consequences By Craig D. Robins I was prompted to write this article by the unusually large number of calls that I received last month from old bankruptcy clients and their tax preparers. For some reason, many tax preparers, not knowing how to treat bankruptcy for tax purposes, mistakenly believe that a taxpayer s bankruptcy must either be reported on a tax return, or there would be tax consequences involving the concept of debt forgiveness. Understanding the concept of debt forgiveness is important as that may trigger tax consequences. However, bankruptcy does not. There May Be Tax Consequences for Forgiveness of Debt. I frequently represent clients with negotiating settlements of credit card debt as an alternative to filing for bankruptcy. Let s suppose that I negotiate a settlement on behalf of a client in which I reduce a $10,000 MasterCard bill to $5,000. The Internal Revenue Service views the $5,000 savings as discharge of indebtedness or debt forgiveness and consequently treats this savings as earned and taxable income to the client. The basic premise here is that any debt that is forgiven is counted as income and the IRS requires the taxpayer to pay taxes on the amount that is forgiven. This requirement is set forth in Internal Revenue Code section 108. Sometimes debt forgiveness income is referred to as imputed income. The IRS Form 1099-C. The tax laws require creditors to issue their customers a form 1099-C when a debt is forgiven or settled for less than full value. The creditor must also file a copy of the form with the IRS. There are Several Exceptions to Treating Debt Forgiveness as Income. IRC section 108 provides two pertinent exceptions. They include discharging the debt in bankruptcy and being financially insolvent just before the time of forgiveness. Insolvency simply means that the value of the taxpayer s debts exceeded the value of the taxpayer s assets immediately before the forgiveness of debt. The IRS has form 982, entitled Reduction of Tax Attributes Due to Discharge of Debt, that can be filed with a return to indicate the exception. There are No Tax Consequences From Discharging Debts in Bankruptcy. When the forgiveness of debt occurs in a bankruptcy case, Internal Revenue Code section 108(a)(1)(A) specifically provides that it is not to be treated as income. Thus, discharge of a debt through a bankruptcy proceeding is excluded from gross income for tax purposes. Creditors Sometimes Cause Problems by Issuing Form 1099-C. Even though the law is clear that discharged debts are not to be treated as taxable income, some creditors erroneously believe that they are required to send a bankruptcy debtor a form 1099-C when a debt is discharged in bankruptcy. Obviously this causes confusion to tax preparers who are Craig D. Robbins often accustomed to including all income reflected in 1099 forms as income to the taxpayer. What Should a Debtor Do if Creditor Issues a 1099-C after Bankruptcy? If a credit card company issues a debtor an IRS form 1099-C after a debtor has received a bankruptcy discharge, the debtor has two options. The first would be to contact the creditor to advise them that the 1099-C was issued in error. However, since such creditors have no incentive to actively resolve this, the better option would be for the debtor to directly advise the IRS about the filing of the bankruptcy. The debtor can do this by writing a simple letter to the IRS supported by a photocopy of the bankruptcy discharge order and the schedule containing the specific debt. Alternatively, the debtor or his accountant can file an IRS form 982, which enables the debtor to point out to the IRS that the debt forgiveness (by virtue of the bankruptcy discharge) occurred in a bankruptcy proceeding and has no tax consequences. It is very easy now to go on line and obtain a PDF copy of IRS form 982 (or any other tax form). Advise Your Clients That There Are No Adverse Tax Consequences. I will now be advising my debtor clients, in my closing letter to them, that discharging debts in bankruptcy is not a taxable event. So should you. Remember: Tax Refunds Must 20 e Scheduled. Around this time of year, many debtors will have filed their tax returns just a few weeks ago and will be expecting tax refunds. Remember that the right to receive a tax refund is an asset that must be scheduled as personal property. Since each debtor can only exempt a total of $2,500 of liquid assets, which most commonly includes cash, money in bank accounts and entitlement to tax refunds, it might be necessary to delay the filing until after the debtor receives the refund, if the expected refund is substantial. Note: The author is a bankruptcy attorney who has represented thousands of consumer and business clients for over twenty years. His office is in Westbury (516) He can also be reached by at
12 12 Appelate Division- Second Department By Ilene Sherwyn Cooper Attorney Resignations Granted/ Disciplinary Proceeding Pending: Colin S. Fiske: By affidavit, respondent tendered his resignation, indicating that he was aware that he is the subject of an ongoing investigation by the Grievance Committee concerning his handling of three IOLA accounts, and, inter alia, his failure to account for monies deposited and disbursed from those accounts, and the existence of three checks drawn from those accounts made payable to cash. Respondent acknowledged his inability to successfully defend himself on the merits against any charges predicated upon his misconduct under investigation. He stated that his resignation was freely and voluntary rendered, and acknowledged that it was subject to an order directing that he make restitution and reimburse the Lawyers Fund for Client Protection. In view of the foregoing, the respondent s resignation was accepted and he was disbarred from the practice of law in the State of New York. John R. Kelligrew: By affidavit, respondent tendered his resignation, indicating that he was aware that he is the subject of an ongoing investigation by the Grievance Committee concerning allegations of failure to maintain required bookkeeping records of his attorney operating and escrow accounts, COURT NOTES and use of an ATM card to make cash withdrawals from said accounts. In addition, it was alleged that respondent retained personal funds in a corporate bank account in order to conceal those funds and shield them from execution by lienholders. Respondent acknowledged his inability to successfully defend himself on the merits against any charges predicated upon his misconduct under investigation. In addition, he affirmed that he would not take on any new clients, notify all clients and opposing counsel of his resignation, and would promptly disburse all funds held in escrow on behalf of clients or other third parties entitled to their receipt. Respondent stated that his resignation was freely and voluntary rendered, and acknowledged that it was subject to an order directing that he make restitution and reimburse the Lawyers Fund for Client Protection. In view of the foregoing, respondent s resignation was accepted and he was disbarred from the practice of law in the State of New York. Decisions of Interest in the Second, Ninth and Eleventh Judicial Districts Attorney Resignations Granted/ Disciplinary Proceeding Pending: Sheldon H. Kronegold: By affidavit, respondent tendered his resignation, indicating that he was aware that he is the subject of an ongoing investigation by the Grievance Committee concerning allegations that he aided a disbarred attorney in the unauthorized practice of law. He acknowledged his inability to successfully defend himself on the merits against any disciplinary charges initiated against him. He stated that his resignation was freely and voluntary rendered, and acknowledged that it was subject to an order directing that he make restitution and reimburse the Lawyers Fund for Client Protection. In view of the foregoing, respondent s resignation was accepted and he was disbarred from the practice of law in the State of New York. Attorneys Disbarred: Tina Fellows: On January 20, 2006, the respondent entered a plea of guilty to two counts of grand larceny in the second degree, one count, a Class C felony, and the other count, a Class E felony. The respondent acknowledged in connection with both counts that she stole in excess of $100,000 from two persons, by causing the fraudulent transfer of property to herself and/or others with whom she was acting in concert. Accordingly, by virtue of her conviction of a felony, the respondent ceased to be an attorney and was automatically disbarred from the practice of law in the State of New York. Michael C. Scoon: By Order of the Supreme Court of New Jersey, the respondent was disbarred by consent, and he was permanently restrained and enjoined from practicing law. In addition, the Court ordered, inter alia, that the respondent reimburse the Disciplinary Oversight Committee for appropriate administrative costs incurred in the prosecution of the matter. In accordance with a decision and Order of the Appellate Division, Second Judicial Department, the petitioner was authorized to serve respondent via substituted service of a notice pursuant to 22 NYCRR The respondent did not defend the notice or request a hearing. The respondent submitted a disbarment by consent from New Jersey, and averred that his consent to disbarment was voluntarily given. He stated that he was aware of the implications of submitting to disbarment, and that he was not under any mental or physical disability or coercion. The respondent consented to disbarment with full knowledge that it constituted an absolute barrier to his ever seeking reinstatement to the Bar of the State of New Jersey, and the understanding that it could be entered in evidence as an admission in any legal proceeding against him, other than in a disciplinary or Lawyers Fund for Client Protection proceeding in New Jersey or other jurisdiction. Based on the foregoing, the petitioner s motion for the imposition of reciprocal discipline pursuant to the petitioner s notice was granted and the respondent was disbarred from the practice of law in the State of New York. Note: The author is a partner with the law firm of Farrell Fritz, P.C. where she concentrates in the field of trusts and estates. She is Second Vice-President of the Suffolk County Bar Association and a member of the Advisory Committee of the Suffolk Academy of Law.
13 13 IDENTITY THEFT Declaring War on Those Who Enable Identity Theft New laws and victim s rights By D. Daniel Engstrand, Jr. Note: This is part two of a three part series on identity theft. We read and hear about reported instances of identity theft on a grand scale almost daily. i This second part of a threepart series on identity theft will focus on the victim s rights under the federal identity theft statutes and New York s Fair Credit Reporting Act. The interaction of these statutes in actions against creditors, the credit reporting agencies (i.e., TransUnion, Equifax and Experian) and debt collectors will be explored at length. Emphasis will be placed on civil liability for the intentional and negligent violation of these statutes as well as for the wrongful disclosure of credit reports. Also covered in this part will be jurisdictional issues, statutes of limitations and federal preemption issues pertaining to the common law of defamation, privacy and negligent reporting of claims. PART II Victim s Rights Under Federal Identity Theft Statutes and N.Y. Fair Credit Reporting Act As of December 2004, 15 U.S.C. 1681c- 1 provides that whenever an identity theft claim is now made, a credit reporting agency is required to place a 90-day fraud alert on the victim s file once such an actual or suspected claim of identity theft is reported to them. 15 U.S.C. 1681c- 1(a)(1). You can request that an extended fraud alert be placed on your file D. Daniel Engstrand, Jr. for seven (7) years. To have an extended fraud alert placed on your file, you must provide the credit reporting agency with an identity theft report. ii 18 U.S.C. 1681c- 1(b). Essentially, an identity theft report means that the victim must provide the credit reporting bureau with a police report, and, in addition to that, a sworn affidavit that the particular transaction was not authorized. By placing a fraud alert (extended fraud alert or active duty alert (for active duty military personnel which is good for one year) on your credit file with the credit reporting agency, it insures that [n]o prospective user of a consumer report... may establish a new credit plan or extension of credit, other than under an open-end credit plan[i.e., Visa, Master Card or Amex].., in the name of the consumer, or issue an additional card on an existing credit account requested by a consumer, or grant any increase in credit limit on an existing credit account requested by a consumer, unless the user utilizes reasonable policies and procedures to form a reasonable belief that the user knows the identity of the person making the request. 15 U.S.C. 1681c-1(h)(1)(B)(i). Any adverse information resulting from the identity theft that appears in your credit file is automatically blocked and will not appear on the credit report within four (4) days of the credit reporting agency s receipt of the following: (1) appropriate proof of the identity of the consumer; a copy of an identity theft report; the identification of such information by the consumer; and a statement by the consumer that the information is not information relating to any transaction by the consumer. 15 U.S.C. 1681c-2. Damages for Willful Violation of Federal and New York Statutes A credit reporting agency may decline or, if the block has already been effectuated, rescind the block if it determines that the information was blocked in error or that the consumer who requested the block made a material misrepresentation of fact... relevant to the request to block or received the goods, services, or money as a result of the blocked transaction. 15 U.S.C. 1681c-2(c)(1). This can happen in a number of ways. It is unlikely that a credit reporting agency would decline or rescind a block on its own once it has been furnished with a copy of the police report and the identity theft affidavit. A credit reporting agency has a duty when it prepares a credit report, to follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates. 15 U.S.C. 1681e(b). Willful violation of this statute would subject the credit reporting agency to actual and punitive damages and attorney s fees. 15 U.S.C. 1681n. New York s Fair Credit Reporting Act, N.Y. Gen l Bus. Law 380- j(e), also requires that [c]onsumer reporting agencies shall maintain reasonable procedures designed to assure maximum possible accuracy of the information concerning the individual about whom the report relates. N.Y. Gen l Bus. L. 380-j(e). Under N.Y. Gen l Bus. Law 380-l, willful failure to comply with New York s Fair Credit Reporting Act (which includes N.Y. Gen l Bus. Law 380-j(e)), could subject the credit reporting agency to actual and punitive damages as well as reasonable attorneys fees in a private civil action. If a creditor, for whatever reason, continues to dispute the claim of identity theft, the victim, under the federal Fair Credit Billing Act, has the right to contest the billing error (identity theft) directly with the creditor. 15 U.S.C Moreover, the victim, pursuant to 15 U.S.C (Fair Credit Billing Act), is not liable beyond the first fifty dollars. Bear in mind, also, that [i]n any action by a card issuer [Visa, Master Card, AMEX] to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized. 15 U.S.C. 1643(b). (Continued on page 24) WE ARE PLEASED TO ANNOUNCE THAT OUR LAW FIRM WILL NOW BE KNOWN AS Our practice is devoted to handling all litigated matters with emphasis on wills. trusts, estates, real estate, civil and commercial litigation. We thank you for your trust and pledge to continue providing the same high level of service that you deserve and have come to expect. DONALD NOVICK JOHN P. GRAFFEO MICHAEL J. SULLIVAN KIMBERLY A. SCHECHTER AND STAFF 202 EAST MAIN STREET HUNTINGTON, NY PHONE: FAX:
14 14 FLORIDA ATTORNEY Law Offices of Randy C. Botwinick Formerly of Pazer & Epstein Miami Office One Biscayne Place Biscayne Blvd. Suite 405 Miami, FL P: F: but when it comes to accounting, taxes and business advice, Jimmy doesn t fish around. He chooses AVZ. More than an accounting firm, AVZ is dedicated to making your business operate more efficiently. We offer expert guidance on everything your business needs to remain profitable and enjoy continued growth. Call AVZ and discover what so many of our satisfied clients already know... at AVZ, we re more than just accountants. Specializing in Personal Injury 21 Years Experience Co-Counsel and Participation Fees Paid Palm Beach Office Peninsula Executive Center 2385 NW Executive Center Dr. Suite 100 Boca Raton, FL P: F: Toll FREE: FLA-ATTY ( ) Jimmy may dive with sharks and play with sea lions... Jimmy Bissett, Managing Partner and Owner of Atlantis Marine World Albrecht, Viggiano, Zureck & Company, P.C. More than just accountants. CERTIFIED PUBLIC ACCOUNTANTS, BUSINESS ADVISORS AND CONSULTANTS 25 Suffolk Court, Hauppauge, New York Fax By David A. Mansfield The Suffolk Traffic Violations Bureau has made an important change in the way your client s information may be released. The Driver s Privacy Protection Act with 18 U.S.C et seq. requires that counsel secure a general consent for the release of personal information. The general consent for personal information, or MV-15GC, can be found at gc.pdf. This form must have the notarized signature of your client and an original must be furnished to the Traffic Violations Bureau when obtaining any written documentation other than a substitute summons, reschedule notice or TVB fine print out. General consent will be required to obtain any information concerning your client, including the Open Ticket Displays for pending matters. The Open Ticket Display is very useful for showing the court dates, the status, and whether a bond has been posted or a fine is due. The Open Ticket Display clearly itemizes each charge, date of violation and the return date. The Open Ticket Display, is essential to properly organize your file for diary dates. You will need the general consent to obtain the open stops for your client whether they are at Traffic Violations Bureau, or DMV System such as revocation and suspension orders. This document will refer to the summons or the docket numbers and inform you of how much money your client must pay. The DMV stops would show you the length of any lapse of insurance suspension, or discretionary license suspension, and the applicable suspension termination fee. The open stops display will also indicate your client s eligibility for a restricted use or a conditional license. A consent form must be presented in order to obtain a list of open suspensions for cases pending outside the Traffic Violations Bureau system such as District Court, local town, village and criminal courts. The consent will be required should your client pay a fine and you need written proof before closing your file. Any other documents that are issued by the Traffic Violations Bureau, basically, other than the substitute tickets, will not be available to counsel unless the original notarized form is presented at the service counter. Defense counsel should download MV- 15GC and have their clients sign whenever practical, such as during an office consultation. You may want to bring your notary stamp to court with a completed form and request that the client execute their signature. Please be sure to ask for photo identification and make a note of the document presented on your file. The Suffolk Traffic Violations Bureau has also instituted a policy change that requires attorneys appearing on behalf of their clients seeking a first postponement after a timely not guilty plea, to appear DMV Procedural Changes At Suffolk TVB Consent for personal information needed before an administrative law judge. Previously the matter was merely adjournable at the service counter for only the first instance as per 15 N Y C R R Part c1(i). David A. Mansfield I would like to follow up on the April 2007 Suffolk Lawyer article regarding changes in defense of VTL (a) at TVB. A Department of Motor Vehicles Administrative Law Judge at the Safety Hearing under 510 and 15 NYCRR Part 127 for a fatal accident could find another safety factor or a violation of another section of the Vehicle & Traffic Law besides 1140 through 1146 such as 1180(a) speed not reasonable, and prudent or 1129 following too closely. This could result in a suspension or revocation issued for a reason other than the mandatory provisions of 1140 through When defending unobserved infractions, the defense lawyer should be prepared to cite Crawford v. Washington, 541 US 36, 124 SC 1354, 154 L.Ed, 2d, 170, 2004 and People v. Pacer, 6 N.Y. 3d 504,814 N.Y.S.2d 575,2006 Slip Op for the principle that the motorist, as TVB defendants are designated, are entitled to confront and cross-examine the witnesses against them. A seminal case is People v. Genovese, 156 Misc. 2d 569, 593 N.Y.S.2d 925 (Town of Mendon 1992)) where a Town Justice declined to find the defendant guilty of a violation of 1160(a), or improper right turn because the officer did not witness the violation. The contrary authority of People v. Boback, 23 N.Y. 2d 189, 295 N.Y.S.2d 912. (1968), that officers can issue summonses for unobserved infractions based upon belief can be distinguished. The decision upholds the conviction relying upon the availability of discovery devices to defendants such as bills of particulars. The Traffic Violations Bureau does not permit supporting depositions or bills of particulars under 15 NYCCR Part 124.The decisions predate the advent of administrative adjudication of traffic infractions pursuant to 225 et seq. Farkas v. State, 96 Misc. 2d. 784, 409 N.Y.S.2d 696 (Ct. Cl. 1978) was a malicious prosecution suit arising out the issuance of a uniform traffic ticket issued outside the administrative adjudication system in a local town or village justice court governed by the Criminal Procedure Law. While it is far from certain that defense counsel may be successful with these points of view at least at the hearing stage, you will present a well thought out professional and researched argument. Note: The author practices in Islandia and is a frequent contributor to this publication.
15 15 By Ilene Sherwyn Cooper Summary Judgment The preliminary executor of the decedent s will moved for summary judgment dismissing the objections to probate of the decedent s mother and sole distributee. The decedent had committed suicide by hanging. The objections to probate were based on lack of due execution, lack of testamentary capacity, lack of genuineness and undue influence. The court found that the terms of the decedent s will suggested that the decedent knew the approximate extent of his assets, and had an express reason for disinheriting his family. On the other hand, the court noted that two days before the execution of the will, the decedent s treating psychiatrist described her as suffering from major delusional depression at best and a probable paranoid psychosis. The court held that inasmuch as the doctor had not been deposed of yet, and his testimony was critical to the issue of capacity, summary judgment on the issue of capacity was premature. On the issue of undue influence, the court found that the decedent had a confidential relationship with the principal beneficiary of his estate, who was his accountant and trusted financial advisor. Moreover, the record revealed that he arranged for the execution of the will in his apartment, and was present when it was executed. Further, the attesting witnesses to the instrument were the accountant s girlfriend and former girlfriend, and co-business venturers. The court found that the decedent lacked the benefit of independent counsel in connection with the instrument, at a time when he was debilitated by mental illness. Under such circumstances, TRUSTS AND ESTATES UPDATE the court held that the primary beneficiary had the opportunity to exercise undue influence, and whether in fact he did so could only be determined after trial. Further, the court held that the issue as to the genuineness of the decedent s signature was a matter to be determined after trial, given the proof of decedent s signature submitted by the objectant. However, the court granted the petitioner s motion for summary relief on the issue of due execution, finding that objectant s contentions were conclusory in nature and failed to overcome the evidence of due execution provided by the attestation clause. In re Estate of Katz, New York Law Journal, 3/15/07, p. 23 (Surrogate s Court, New York County)(Sur. Glen). Compromise Pursuant to SCPA 2106 In a contested probate proceeding, a motion was made for the court s approval of a stipulation of settlement. The motion was opposed by the nominated executor and the nominated alternate executor, who also received a small bequest. The court approved the settlement. In doing so, the court held that absent good cause, which had not been shown, the fiduciaries should not be permitted to frustrate the settlement of a probate contest arrived at by the beneficiaries. The court also rejected the objectants argument that their share could not be diminished without their consent. The court pointed out that the objectants had received notice pursuant to SCPA 1411, and as such, had been informed that their share of the estate could be caused to contribute proportionately to a settlement. Inasmuch as the proposed settlement was in compliance with SCPA 1411(6), the court dismissed the objections. Matter of Corbin, 13 Misc.3d 1244(A), 2006 N.Y. Slip. Op (Surrogate s Court, Nassau County)(Surr. Riordan). Tenancy by the Entirety In an action regarding title to real property located in Queens, the Supreme Court was confronted with the issue of whether title to the property was in the decedent s name as tenant in common or as tenant by the entirety with his wife. The matter was assigned to a referee to hear and determine the matter. The records in the Office of the Register of Queens County revealed that title to the subject property was in the name of the decedent and his wife. There was no evidence that the decedent ever divorced his wife or that the marriage between the parties was annulled or that the parties ever legally separated. Approximately five weeks before his death, the decedent executed a will in which he devised the premises to his brother. Subsequent to the decedent s death, his brother died. Thereafter, the administrator cta of both the decedent s estate and the estate of his post-deceased brother brought suit seeking a determination that the premises was partly or wholly owned by the decedent at the time of his death. Specifically, the fiduciary claimed that the decedent was not married at the time the subject property was purchased, and that as such, he took title to the premises as tenant in common with his purported wife, and his 50% interest passed by his will to the heirs of his post-deceased brother. The referee held that the fiduciary of the estates failed to sustain her burden of proof that the decedent was not married at the time the subject property was purchased, or that the marriage was subsequently severed or that the parties separated prior to the decedent s death. In particular, the referee rejected the evidence offered by the estates, and found the documentary evidence supporting the existence of the marriage to be persuasive. Significantly, the deed between the Ilene Sherwyn Cooper parties described title as being held in the names of the decedent and his wife, and the decedent s will made a bequest to this same woman whom he referred to as his wife. Furthermore, she was the informant on the decedent s death certificate, and described herself as the decedent s surviving widow. With this evidence in mind, the referee opined that [w]here persons live as husband and wife and are reputed as such, a presumption arises that they have been legally married and this presumption can only be rebutted by the most cogent and satisfactory evidence (citations omitted). The referee concluded that such evidence had not been presented by the fiduciary, and thus concluded that the property passed on the decedent s death by operation of law to his surviving spouse. Bethea-Rowlett v. Sanders, New York Law Journal, 2/7/07, p. 20 (Supreme Court, Queens County) (Referee Lonschein) Note: The author is a partner with the law firm of Farrell Fritz, P.C. where she concentrates in the field of trusts and estates. In addition, she is Second Vice-President of the Suffolk County Bar Association and a member of the Advisory Committee of the Suffolk Academy of Law.
16 16 SUFFOLK ACADEMY OF LAW OF THE SUFFOLK COUNTY BAR ASSOCIATION 560 WHEELER ROAD, HAUPPAUGE, NY (631) The Suffolk Academy of Law, the educational arm of the Suffolk County Bar Association, provides a comprehensive curriculum of continuing legal education courses for attorneys, judges, and other professionals and paraprofessionals. This centerfold lists CLE courses scheduled from late May through June. ACCREDITATION FOR MCLE: The classes listed in this centerfold qualify for MCLE credit. The Suffolk Academy of Law has been certified by the New York State Continuing Legal Education Board as an accredited provider of continuing legal education in the State of New York. Thus, all Academy courses are presumptively approved as meeting the OCA s MCLE requirements. Mandatory continuing legal education in New York is required of both newly admitted lawyers (16 hours during each of the first two years of practice) and veteran lawyers (24 hours during each biennial registration period). New lawyers (admitted less than two years) should check that the courses they select are deemed acceptable as transitional training for new lawyers. Veteran lawyers (admitted more than two years) may take either non-transitional or transitional classes. Please note that as per NYS CLE Board regulation, you must attend a CLE program or a specific section of a longer program in its entirety to receive credit. NOTES: SPRING CLE N.B. - As per NYS CLE Board regulation, you must attend a CLE program or a specific section of a longer program in its entirety to receive credit. Program Locations: Most, but not all, programs are held at the SCBA Center; be sure to check listings for locations and times. Tuition & Registration: Tuition prices listed in the registration form are for discounted pre-registration. At-door registrations entail higher fees. You may pre-register for classes by returning the registration coupon at right with your payment by check (payable to the Suffolk Academy of Law), cash, or charge card (Master Card, Visa, American Express or Discover Card). Refunds: Refund requests must be received 48 hours in advance. Those canceling after that cut-off time should inquire about converting their registration fees to tape orders. Non SCBA Member Attorneys: Tuition prices are discounted for SCBA members. If you attend a course at nonmember rates and join the Suffolk County Bar Association within 30 days, you may apply the tuition differential you paid to your SCBA membership dues. Americans with Disabilities Act: If you plan to attend a program and need assistance related to a disability provided for under the Americans with Disabilities Act, please let us know. Disclaimer: Speakers and topics are subject to change without notice. The Suffolk Academy of Law is not liable for errors or omissions in this publicity information. Tax-Deductible Support for CLE: Tuition does not totally support the Academy s educational program. As a 501(c)(3) organization, the Academy can accept your tax deductible donation. Please take a moment, when registering, to add a contribution to your tuition payment. No amount is too small, and your support will help to sustain a comprehensive and affordable curriculum. Financial Hardship: In an effort to make continuing legal education courses accessible to all who need them, the Academy maintains a reasonable tuition schedule that considers the financial exigencies of the surrounding legal community, accepts charge cards, provides extended payment options, provides opportunities for volunteer service in lieu of payment, and grants full or partial tuition scholarships for those who are in circumstances of extreme financial hardship and are unable to avail themselves of other tuition abatement opportunities. For more information on full or partial tuition waivers, call the Academy Executive Director. INQUIRIES: UPDATES 2007 EVIDENCE UPDATE Presented with Nassau Academy of Law Monday, May 21, 2007 Presenter: Professor Richard Farrell Brooklyn Law School; Author, Richardson on Evidence Time: 6:00 8:30 p.m. (Registration from 5:30 p.m.) Location: Nassau County Bar Association (15 th & West Streets Mineola) Refreshments: Light Supper MCLE: 3 Hours (2.5 professional practice;.5 ethics) [Non-Transitional and Transitional] 2007 AUTO LIABILITY UPDATE Wednesday, June 6, 2007 Presenters: Jonathan Dachs, Esq. (Shayne, Dachs, Stanisci, Corker & Sauer) Professor Michael Hutter (Albany Law School) Time: 6:00 9:00 p.m. (Registration from 5:30 p.m.) Location: SCBA Center Refreshments: Light Supper MCLE: 3 Hours (3 professional practice) [Non- Transitional and Transitional] 2007 REAL PROPERTY UPDATE Wednesday, June 13, 2007 Presenters: Scott Mollen, Esq. (Herrick Feinstein, LLP NYC) Time: 6:00 9:00 p.m. (Registration from 5:30 p.m.) Location: SCBA Center Refreshments: Light Supper MCLE: 3 Hours (3 professional practice) [Non- Transitional and Transitional] SEMINARS Presented in Conjunction with the SCBA Women and the Law Committee COMMUNICATING YOUR WAY TO THE TOP Wednesday, May 23, 2007 Career advancement, experts and analysts stress, does not just happen. This program will provide tips for success in the legal world and address how to avoid self-imposed obstacles. Among other things, the presenters will cast light on: the art of self-promotion; effective communication; self-marketing; networking; effective advocacy; effective courtroom style, and work-life time management. The program will conclude with an interactive discussion based on vignettes taken from popular Hollywood movies about the law. As the silver-screen lawyers try to influence or impress judges, clients, and other lawyers, the panel will talk about what works, what doesn t work, what is highly effective, what is an absolute no-no... and why. Program & Presenters Keynote Remarks: Ilene S. Cooper, Esq. Partner, Farrell Fritz; SCBA Vice President View from the Bench Hon. Michael Mullen NYS Supreme Court, Suffolk Communicating for Success Dr. Richard Atkins CEO, Improving Communications, LLC Networking & Rainmaking Melissa Martin Founder of Career Women s Initiative; Author and Lecturer (NYC) Moderator Allison Shields, Esq. Founder of Legal Ease Consulting, Inc. Program Coordinators: Hon. Hertha Trotto; Patricia Meisenheimer; Erin M. Benesch; Terri P. Minott; Allison Shields Technical Assistance: Arthur E. Shulman Program Sponsor: Public Relations and Marketing Group (John Zaher) Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 6 9 p.m. // Registration from 5:30 p.m. Refreshments: Light supper MCLE: 3 Hours (practice management) [Transitional/Non-Transitional] Lunch n Learn BUSINESS VALUATIONS Thursday, May 24, 2007 Whether it s a buy-sell situation, litigation, or a matrimonial matter, a clear understanding of the worth of a business can be crucial to effective representation of your client. In this lunch n learn seminar, you will learn how the numbers are derived and what they mean. Such concepts as multiple of earnings, book value, and discounted cash flow will be explained and de-mystified. You ll come away better equipped to render sound advocacy in any matter that calls for a business valuation. Presenter: Phil Kanyuk, CPA Holtz, Rubenstein & Reminick, Moderator: William J. Bernstein, Esq. (Academy Advisor) Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 12:30 2:10 p.m.. // Registration from Noon Refreshments: Lunch MCLE: 2 Hours (professional practice OR skills) [Transitional/Non-Transitional] Lunch n Learn EMPLOYEE HANDBOOKS Thursday, May 31, 2007 Employee handbooks can provide specific answers to questions regarding paid holidays, vacations, sick leave, benefits, dress codes, and so forth. They can also spell out issues related to performance, raises, and promotions. Often, handbooks can help to prevent disagreements between employers and employees and forestall litigation. Sometimes, however, employee handbooks can lead to disagreements and litigation. What happens, for example, if employees draw unintended conclusions from vague handbook language? Or if the procedures laid out in the handbook are not followed? Or if an employee is fired and then contends that handbook provisions gave him an implied contract? In this succinct lunchtime seminar, an experienced employment law attorney will shed light on what should and should not be included in an employee handbook. Attorneys who advise businesses, large and small, as well as business owners and human resource professionals, will not want to miss this program. Presenter: Ellen R. Storch, Esq. Moritt Hock Manroff & Horowitz, LLC Garden City Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 12:30 2:10 p.m.. // Registration from Noon Refreshments: Lunch MCLE: 2 Hours (professional practice) [Transitional/Non-Transitional] Lunch n Learn NEW YORK NOTARY LAW: What You and Your Staff Must Know Tuesday, June 12, 2007 How often do you or a member of your staff notarize a document? Are you sure you are always in compliance with the law? This quick lunch-time program will bring lawyers and members of their support staffs up to date on key liability issues and what notaries may and may not do. Topics include: a synopsis of New York notary law the attorney notary, notary acts, notary disqualifications, technical requirements, judicial standard, attorney misconduct, intra-state cooperation, fees, pending legislation, Don t miss it and bring staff!
17 17 SUFFOLK ACADEMY OF LAW OF THE SUFFOLK COUNTY BAR ASSOCIATION 560 WHEELER ROAD, HAUPPAUGE, NY (631) Presenter: Michael J. Isernia, Esq. Program Sponsor: Fidelity Title Insurance Nick Magro, Vice President for Sales & Marketing Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 12:30 1:30 p.m.. // Registration from Noon Refreshments: Lunch MCLE:1 Hour (practice management) [Transitional/Non-Transitional] COMPUTER-GENERATED SIMULATIONS AND ACCIDENT RECONSTRUCTION Tuesday, June 12, 2007 Seeing is believing... or can be when cutting-edge technology is used strategically and the rules governing discovery and admissibility are properly followed. This seminar will begin with a demonstration of computer animation that can be used to reconstruct key accident scenarios. Representatives of Technology Associates will show you the technology that exists in this area and discuss how to establish their expertise as accident reconstruction specialists and in computer generated animations. Following the demonstration, a panel of distinguished jurists will discuss such key issues as: Frye acceptability as a recognized scientific discipline Pre-trial discovery Admissibility at trial The program is a must-attend for all litigators and personal injury lawyers, in particular. Faculty From Technology Associates: Dr. Irving Ojalvo (Bio-mechanics & Safety Expert) Kristopher J. Seluga (Mechanical Engineering Accident Reconstruction) Panel of Jurists: Hon. Edward Burke (NYS Supreme Court Suffolk) Hon. Ralph Costello (NYS Supreme Court Suffolk) Hon. John J. J. Jones (NYS Supreme Court Suffolk) Hon. James Flanagan (District Court) Program Chair & Moderator: Hon. James Flanagan Program Coordinator: Wende Doniger, Esq. (Academy Advisor) Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 6 9 p.m. // Registration from 5:30 p.m. Refreshments: Light supper MCLE: 3 Hours (professional practice OR skills) [Transitional/Non-Transitional] Lunch n Learn ATTORNEY MARKETING Friday, June 15, 2007 Law firms cannot exist without clients, and practice development is an important part of managing any practice. Marketing methods available to lawyers range from word of mouth through firm brochures, newsletters, TV spots, print ads, websites, networking, and so forth. Some methods are more effective than others, and some enhance a lawyer s professional image, while others can detract from it. In this lunchtime seminar, a knowledgeable speaker, who is both an attorney and a public relations professional, will help you to identify marketing methods that are effective, professional and affordable. A segment on the new advertising rules will be included. Presenter: John Zaher, Esq. Public Relations & Marketing Group Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time:12:30 2:10 p.m.. // Registration from Noon Refreshments: Lunch MCLE: 2 Hours (1.5 professional practice;.5 ethics) [Transitional/Non-Transitional]
18 18 FOR THE DEFENSE No-Fault MRI Providers Suits Stayed Pending Declaratory Judgment Action By Damin J. Toell In 2005, AIU Insurance Company, and other related carriers, filed suit in Supreme Court, Nassau County against Dr. Robert Scott Schepp, M.D., and three MRI facilities purportedly owned by Dr. Schepp: Deajess Medical Imaging, P.C., Preferred Medical Imaging, P.C., and Boston Post Road Medical Imaging, P.C. Also named in the suit were, among other people and entities, Hillel Sher and management companies owned by him. In sum, AIU alleged that Dr. Schepp s facilities were owned by him on paper only, and that the control of the facilities actually rested in the hands of Mr. Sher, a layperson. Moreover, AIU alleged that Mr. Sher was the recipient of the actual profits of the facilities, and that this was being accomplished through excessive rates charged to the facilities for management services, as well as rental of MRI equipment and office space. AIU based their contention on the Court of Appeals decision in State Farm v. Damin J. Toell Mallela, 4 N.Y.3d 313 (2005), where it was held that fraudulently incorporated medical facilities are not entitled to receive payments for no-fault claims. In Mallela, the Court of Appeals noted that the core of the fraud was that at those facilities, [t]o maintain the appearance that the physicians owned the entities, the nonphysicians caused the corporations to hire management companies (owned by the nonphysicians), which billed the medical corporations inflated rates for routine services. In this manner, the actual profits did not go to the nominal owners but were channeled to the nonphysicians who owned the management companies. Id. at On February 1, 2006, Justice Stephen A. Bucaria of the Supreme Court, Nassau County issued an order denying AIU s request for a preliminary injunction whereby Dr. Schepp s facilities would be enjoined from commencing arbitrations of no-fault claims before the American Arbitration Association ( AAA ). The Supreme Court denied AIU s motion, finding, inter alia, a lack of likelihood of success on the merits. Thereafter, on April 5, 2006, the District Court, Nassau County, Hempstead Part, in two no-fault actions defended by Progressive Insurance Company, found Boston Post Road Medical Imaging, P.C. to be fraudulently incorporated within the meaning of Mallela. Around the same time, numerous AAA arbitrators found that Schepp s facilities were fraudulently incorporated and/or lacked standing to obtain nofault benefits due to factoring agreements whereby the facilities no-fault claims were sold outright. In order to resolve these disparate results, in 2006 and early 2007, Dr. Schepp filed suit in Supreme Court, Nassau County on behalf of himself and his MRI facilities against numerous automobile insurance carriers, including Allstate, State Farm, Utica Mutual, MetLife Auto & Home, Ameriprise, Response, and others. Those new suits, seeking declarations that Dr. Schepp s facilities are not fraudulently incorporated and retain standing to pursue no-fault claims, have since been consolidated with the original AIU action. Thus far, the complaints in Dr. Schepp s declaratory judgment actions have withstood motions to dismiss by the carriers. The parties to the declaratory judgment action have now stipulated to stay all pending no-fault actions, as well as all no-fault claims that have not yet been put into litigation or arbitration. Furthermore, the parties have agreed to a schedule whereby discovery will be conducted throughout the remainder of 2007 and into Thus far, the parties expect a trial to be held in Spring, It should be noted that the declaratory judgment action, inclusive of the scope of the stay, does not apply to claims from Preferred Medical Imaging, P.C. that occurred after December 31, 2004, the date when Dr. Schepp severed his ties with Hillel Sher. Note: The author is a graduate of Cardozo School of Law and an associate at Bruno, Gerbino & Soriano, LLP, located in Melville, New York. ADR Mediation: Managing Neutrality By Gene D. Barr Note: This is part two of a three part series. Mediation is simply negotiation by intermediary. It is part shuttle diplomacy and part intervention by village elder. It is a process reliant upon the participants per- ceived neutrality of the mediator (perceived because it is equally important that the participants believe the mediator to be neutral as it is for the mediator to actually be neutral). The incentive for participants to mediate is therefore the promise that the environment within which the mediation occurs will be conducive to reasoned debate and that the mediator will be, and LAW BOOK DONATION REQUESTED The Legal Aid Society of Suffolk County, Inc., , has need for and will accept a charitable donation of an up-to-date, hard cover set of law books for McKinney s Consolidated Laws of New York (West Publishing). Law Services will acknowledge any donor (for tax purposes) in writing. Attorneys retiring from practice or converting to Nexis/Lexis are kindly requested to consider this notice. DUFFY & POSILLICO AGENCY INC. Court Bond Specialists BONDS * BONDS * BONDS * BONDS Administration Appeal Executor Guardianship remain, neutral and objective ensuring that the resolution is a product of the participants and not the mediator. Although the mediation process is structured and controlled, it lacks the formality, directed resolution and mandatory participation found in litigation. While this lack of structured formality, an inherent characteristic of mediation, fosters self-directed resolution, the ultimate goal of mediation, it exposes the process to those extraneous influences brought to the process by participants that tend to corrupt it. Compounding the corruptive effect of extraneous influences brought to the process by the participants, are the personal (and external to process), perceptions and biases brought to the mediation by the mediator. Managing the mediation process, the participants and the negotiating environment without influencing the participants decision making process, and thereby the resolution, requires clinical neutrality. This is because it is Gene D. Barr neutrality that ensures purity of process. Neutrality guards against the mediator interjecting his or her own values into the process. It prevents the process from becoming corrupted by the preconceived political, socio-economic, cultural and (dare I say) religious biases of the mediator. It provides for a balancing of equities based upon the particular needs, wants and circumstances of the participants. Neutrality ensures participant drive resolution and provides the elemental material from which the mediator s professionalism develops. True neutrality enlightens. It is objectivity personified. It encourages honest debate and reasoned dissension. It is bal(continued on page 19) THE DRAMATIC DIFFERENCE IN THE PRESENTATION OF YOUR EVIDENCE WMA GRAPHICS DEMONSTRATIVE EVIDENCE Injunction Conservator Lost Instrument Stay Mechanic s Lien Plaintiff & Defendant s Bonds Serving Attorneys since 1975 Complete Bonding Facilities IMMEDIATE SERVICE! 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19 Mediation Managing Neutrality 19 (Continued from page 18) last that provides stability to the process. It fosters thoughtful consideration. It neither criticizes, nor favors the participants, their positions, observations, strengths, weaknesses or values. It accepts that which is presented without judgment. It is that substance from which the mediator finds the inner calm and subsequent strength necessary not only to endure, but function with clarity in a perpetual arena of conflict. It is that elemental force that drives the participants too willingly, if somewhat begrudgingly, accept the often harsh observational realities presented by the mediator. Conceptually neutrality is a necessary characteristic of mediation and mediator alike. Philosophically it is the goal that mediators should strive to achieve believing that perfection is never achievable, but must always be sought after. Intellectualizing neutrality is considerably easier than achieving it as each of us, mediator and participant alike, is a product of our own formative, educational, social and environmental influences, influences that define not only who we are, but what we believe. Each of us has our own biases and opinions that are products of past experience. Those experiences define the values by which we judge others. We are a nation of free thinkers who, understating the obvious, are opinionated, outspoken and verbally expressive. Often, those opinions are expressed as judgmental values, values that judge other s by their ethnicity, where they live, what they do, how much they earn, the level and quality of their education, their moral fiber and social graces, how they drive, eat, dress, speak and look. Although those values are protected expression, they are nonetheless opinions. As a mediator charged with neutrality, Second Circuit Briefs The Second Circuit therefore, concluding that the district court erred in admitting Galkovich s lay opinion testimony because it did not satisfy the foundation requirements set forth in FRE 701, 22 reversed Kaplan s convictions on five (of the seven) indictment counts that depended on Galkovich s lay opinion testimony. The author is a Partner of Fine, Fine & Berman, LLP in Melville, NY. (Continued from page 7) FOOTNOTES 1. ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., F.3d,, 2007 WL , Docket No CV (2d Cir. April 23, 2007) ( ABN ). 2. Constitutional mootness occurs when a Case or Controversy within the meaning of the U.S. Constitution s Art. III 2, cl. 1 no longer exists. Id., *6. 3. The district court based the $50 liability cap on contractual provisions concerning the defendants liability to the shipper. 4. Abrams v. Interco Inc., 719 F.2d 23 (2d Cir.1983). 5. Federal Rule of Civil Procedure Rule 12(b)(1) sets forth the procedure to present a defense based on the district court s lack of subject matter jurisdiction. 6. ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 2005 WL *4 (S.D.N.Y. 2005), affirmed, 2007 WL (2d Cir. 2007). 7. Id., at*3 (internal quotation marks omitted). The district court continued, stating that [e]ven if it prevailed at trial, plaintiff would be entitled to a maximum of $50 from each defendant, no more, and each defendant has already offered to pay $50. Id. 8. In affirming, the Second Circuit held that the judgment was a binding adjudication of each defendant s obligation to pay $50 and no more, notwithstanding that the [district] court s justification depended in part on a concession by the defendants, which made it unnecessary to litigate certain potentially disputed issues. ABN, at *8. 9. Id., at * In Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983), the Iron Arrow Honor Society, an allmale honorary organization, sought to prevent the Secretary of Health and Human Services from interpreting a regulation prohibiting federal fund recipients from providing significant assistance to organizations that discriminate on the basis of sex in a manner that required the University of Miami to bar Iron Arrow s on-campus activities. During the litigation, the university s president sent a letter to Iron Arrow that expressed the university s voluntary and unequivocal decision, regardless of the lawsuit s outcome, to bar Iron Arrow from its campus as long as it refused to admit women. The university s president publicly released the letter and also sent copies to all of Iron Arrow s undergraduate members. The Supreme Court held that the university s decision rendered the case moot the expression of our individual opinion in relation to the mediation process is anathema. Recognizing that most personal observations are judgmental utterances of prejudicial values, we, as mediators, must guard against our personal observations corrupting our neutrality and thereby fatally flawing the process. To ensure that our personal beliefs do not taint or unduly influence the mediation process we should (read must ), on a regular basis, self-assess our actions, efforts and work product to guard against our own beliefs and principals substituting themselves for those of the participants, because the loss of neutrality by the mediator will result in resolution that is more a product of the mediator than the participants which is wholly unacceptable. Practically speaking, maintaining neutrality is a two-step process. The first is managing your own internal perceptions, biases and prejudices (Knowing others is wisdom, knowing yourself is Enlightenment) 1 ; the second is managing the totality of internal and external influences exerted upon the participants. Managing the gross external environment of a mediation requires a comprehensive understanding of the history, structured hierarchy, cultural, social, religious and economic influences that define the participants; understanding that is typically more intuitive and observational than clinical. It requires careful observation receptive to body language, reactive and reflexive posture, facial tells and verbal and physical nuance without reaction of your own. It also requires sensitivity to the structural history of the participants, particularly as it relates to the participant s internal structure. The mediator should understand that her/his observations are time limited and often subject to perceptions based upon restricted access to biased or incomplete information and observation. In effect, the comprehensive understanding of the gross combined environmental and historical experiences influencing the participants are often only observable on the fly. Families, as well as business entities, live, by their very nature, in cloistered environments. Each having its own internal structure, each having an internal unspoken acknowledged hierarchy that subtly subverts the process by exerting its historic dominance over the submissive. It is that hierarchal dominance that designates which participant shall lead, control or dominate the process. The mediator should understand that dominance and control may be products of culture, religion, control of the purse strings, business necessity and/or reliance, unequal bargaining position, physical stature, gender or abuse (to name a few). The mediator must remain ever vigilant against one party corrupting the process by exerting his or her control over the less aggressive or submissive participant. The mediator must remain sensitive to the internal ebb and flow of communications between the participants, whether spoken, unspoken, physical and/or mental, counteracting and counterbalancing obvious and subtle efforts to stifle or control meaningful communication and participation in the process, remembering that the purity of process and value of resolution is denigrated by the lack of choice, control and/or participation of one party at the efforts of the other. The manifestation of stress or tells of control are typically observable as visual tics, defensive or closed postures, aggressive verbal interruption of one participant and subsequent acquiescence of because it left the federal courts unable to redress any actual injury to Iron Arrow that the Secretary s regulatory interpretation could cause. The federal courts therefore lacked jurisdiction because the Constitution s Art. III 2, cl. 1 Case or Controversy requirement was no longer met. 11. If the case had truly become moot and the court had lacked subject matter jurisdiction, the court would have been without power to enter a judgment in plaintiff s favor for $50 and in defendants favor as to the balance of the plaintiff s claim. It would have been compelled simply to dismiss, leaving the dispute unadjudicated. ABN, at *6 12. Id., at *8; Abrams, 719 F.2d at ABN, at * Id. 15. U.S. v. Kaplan, F.3d, 2007 WL , Docket No cr (2d Cir. April 11, 2007). 16.FRE 701 provides: If the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule Kaplan, at * [Prosecutor]: What did you understand him to mean when he said these kinds of cases? the other, one participant seeking approval from the other before speaking, closed or limited response, accepting unreasonable or unfavorable settlement terms by the submissive participant, unprovoked emotional outburst and spontaneous unexplained emotional distress. If mediation is negotiation by intermediary and a process reliant upon the neutrality of the mediator, and if the incentive for participants to mediate is the promise that the environment within which the mediation occurs will be conducive to reasoned debate, then perceived or actual loss of neutrality by the mediator fatally flaws the process delegitimizing both the mediator and the resolution. Additionally, each of us is defined by the sum total of our experiences, and those experiences define the values by which we judge others, as mediators we must be ever vigilant against introducing our own values into the process. And finally, as the mediation process lacks the formality, directed resolution and mandatory participation found in litigation we, as mediators, must manage those extraneous influences brought to the process by participants that tend to corrupt it. To effectively mediate we must manage the process, the participants, the extraneous influences and our own prejudices while remaining neutral a task easier said than done. Note: The author is co-chair of the SCBA ADR Committee and an attorney/mediator specializing in family and construction law with a private practice in Patchogue. 1 Lao Tzu: Believed to be the founder of Taoism ( BCE), a contemporary of Confucius. [Defense Counsel]: Objection. The Court: I will allow it. [Galkovich]: That he understood that these were car accident cases where people exaggerated their injuries, where it was crucial to have a narrative report that exaggerated the injuries, that these reports were bought for the best of prices to get the best of reports and that you could settle these cases for very good money in a short period of time. * * * [Prosecutor]: What happened in this conversation? [Galkovich]: I asked him what experience he had with the car accident cases and generally what kind of experience he had, and he told me that he knew about these car accidents, he knew how to handle these cases, he knew how to maximize potential recoveries, and what is supposed to be in the files, how they are supposed to be worked up. [Prosecutor]: What was your purpose in asking Kaplan this question? [Galkovich]: I wanted to know how much he knew about the fraudulent office that he is participating in. [Prosecutor]: And after you got this answer from Mr. Kaplan, what did you think? [Galkovich]: I think he knew exactly what he was getting into. Id. at * Id., at *6 (emphasis in original). 20. Id. (internal brackets omitted). 21. Id. 22. Id., at*7.
20 30 Nassau-Suffolk Boards Meet SCBA welcomes Nassau Bar for get-together Kathryn Grant Madigan, president-elect of the New York State Bar Association who was the speaker at the Nassau-Suffolk Board of Directors dinner meeting with SCBA President John L. Buonora. photo credit: Arthur Shulman The joint bar association dinner was an excellent occasion for the members of the Nassau and Suffolk County Bar Associations to see one another again. photo credit: Laura Lane Ilene S. Cooper, SCBA Second Vice President and Richard Weinblatt. photo: Laura Lane SCBA Treasurer Sheryl L. Randazzo, Marilyn Genoa, and Emily F. Franchina, an SCBA member enjoy the evening. photo credit: Laura Lane Suffolk County District Administrative Judge H. Patrick Leis, III, left, and Nassau County District Administrative Judge Anthony F. Marano enjoyed listening to speaker Kathryn Grant Madigan. photo credit: Arthur Shulman
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