Managing Today's Law Office
Managing a law firm in today's environment requires an individual to deal with a wide variety of issues. These include (1) technology - ranging from assisting attorneys to understand the new standards associated with electronic evidence to determining what hardware and software to purchase for the office; (2) marketing - how do you not only grow your firm's business but maintain the client base currently in place, all at the same time being sure to do so within the rules of professional conduct; (3) increasing profitability - completing an analysis of your billing rates against the costs associated with same, to a review of your every day expenses such as rent, office supplies, and other overhead; (4) the human resource function - providing an adequate level of cost-effective benefits and dealing with the wide range of issues that arise between staff on a daily basis; and (5) the hiring and motivation of staff to serve the firm's clients in the best manner possibl
Keeping the Client Happy While Protecting Your Practice
To borrow the cadence from a well-known real estate mantra - nothing matters more in maintaining the attorney-client relationship than communication, communication, communication. Nearly 17% of all claims asserted against attorneys directly result from a breakdown in communication and yet, this is one of the easiest type of claims to prevent.
Home Is Where the Firm Is - Some Guidelines and Observations from a Solo Practitioner Who Practices Out
David Aker does not need to concern himself with frenzied commutes to the office, inconvenient staff meetings, and cantankerous coworkers. Mr. Aker practices patent law as a solo practitioner from his home in Westchester County. His client base includes some large business entities, some of which are located on Long Island, as well as a number of private clients. Running a thriving home law practice requires careful detail to business issues that a lawyer who works in a firm may not normally be exposed to. Mr. Aker (who is also an adjunct Professor of Law at Touro Law Center in Central Islip) agreed to be interviewed to discuss how he manages his home-based practice, and to discuss his approach to the practice of law. Jim Fiorillo, who graduates this May from Touro Law School, conducted the interview on behalf of Nassau Lawyer.
Business Succession Planning: What You Need to Consider
Why should business owners make plans for business succession now even though they may have no plans to retire in the near future? Engaging in business succession planning does not mean that you must etch in stone a departure date from your business.
Silencing the Laughter Planning for the Future
Someone once said, "Men plan, G-d laughs." I for one don't think there is any harm in hedging our bets about the future; the worse that can happen is we amuse a deity. Estate planning should comprise more than the mere passing of wealth from one person to another; ideally, it should incorporate safeguards for the future of the client and those she wishes to benefit.
Medicaid Planning Through Trusts Has Become More Attractive
The Deficit Reduction Act of 20051 ("DRA") was not all bad news for our clients. Sure there's the extended look-back period, the delayed running of the penalty period, the annuity and home value limitations, as well as several other provisions that make it more difficult for seniors to become eligible for Medicaid benefits. However, by extending the look-back period to five years for all asset transfers, the DRA has resulted in the increased use of trusts by elder law practitioners, and this is good news for clients.
Providing Educational Opportunities For Students With Disabilities
Until the mid-20th century, students with disabilities were largely segregated or ignored by public and private education providers. The struggle for civil rights provided the roots for the development of educational opportunities regardless of a student's racial, social, economic or physical condition. The current philosophy, requiring an equal opportunity in education, is entrenched in the landmark case of Brown v. Board of Education.1 In Brown, the Supreme Court reversed years of constitutional history permitting the segregation of students on the basis of race and the Country ushered in an era of equal educational opportunity.
Enforcement Guidance for Workers with Caregiving Responsibilities
The Equal Employment Opportunity Commission ("EEOC") recently issued "Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities" ("Enforce-ment Guidance"). The Enforcement Guidance signals the EEOC's intent to look very critically at allegations of caregiver discrimination under Title VII and the ADA. The Enforcement Guidance is not a law or a statute, rather it provides a guide for the EEOC (the administrative agency charged with enforcing Title VII) to follow when investigating and administering discrimination charges. Further, courts may consider the guidance as persuasive authority when adjudicating discrimination lawsuits. Consequent-ly it is very important for employers to be aware of situations where discrimination could be found against an employee because of their caregiving responsibilities.
Can an E-Mail Exchange Form a Real Estate Contract?
In today's fast-paced business environment of cell phones, wireless Internet and Blackberry's, sending an e-mail is second nature. Indeed, an argument can be made that e-mail exchanges are taking over for telephone conversations and correspondence by "snail mail." There is no question that an oral conversation between a buyer and seller of real estate which contains all of the necessary elements for a contract of sale would nonetheless violate the Statute of Frauds. See, GOL §5-703. But, if instead of an oral conversation those same parties engaged in an e-mail exchange, there very well may be such a question. A 2004 Kings County Supreme Court decision held that such an exchange may not violate the Statute of Frauds and could create a binding contract. A recent Queens County Supreme Court decision, however, held that such an exchange could not form a real estate contract.
Beware of the Verbal Notice to Proceed in Jordan V. Turner, the Appellate Division Enforeces Requirement for Written Contracts
A recent case in the Appellate Division, First Department, Jordan Panel Systems Corp. v. Turner Construction Company, 841 N.Y.S.2d 561 (1st Dept. 2007), may have broad and long-lasting effects on the construction industry. The case addressed the specific issue of whether a subcontractor had the right to claim money damages after the revocation of a verbal bid award – for work performed pursuant to such verbal award – when the bid documents explicitly required execution of a signed writing for the contractor to be liable for any such damages. Moreover, while the case is important precedent as it relates to this specific question, the ramifications of the decision may extend past that discrete issue and have far-reaching effects on other aspects of construction contract management and performance.
Can It Be Said That 'No Good Deed Goes Unpunished'?
Much media attention has been given to the recent case of the sperm donor who finds himself obligated to pay support for his biological offspring 18 years after the birth of the child, see UIFSA Proceeding, P.D. v. S.K. (2007 NY Slip Op. 52443(U), Nassau County Family Court, Nov. 16, 2007).
When Does a Private Road Become a Public Street by Prescription?
Surprisingly, there are three cases pending in Nassau County Supreme Court involving this rather esoteric question. In the cases The Incorporated Village of Bayville v. Viteritti, et al. (Nassau County Index No. 000239/05) and Marchand v. New York State Department of Environmental Protection, et al. (Nassau County Index No. 013478/06), the Incorporated Village of Bayville contends certain private roads have become public streets by prescription, because, although the village does not maintain the roads, they are used by the public and village to provide municipal services. In the case Connolly v. O'Mally, et al. (Nassau County Index No. 021466/06), the Village of Plandome Manor contends certain private roads have not become public streets by prescription, despite the village having performed snow plowing, street cleaning and some maintenance on the roads.
Reverse mortgages offer senior homeowners a better quality of life
With the first baby boomer turning 62 in January, there is perhaps no better time to discuss reverse mortgage products than now. These FHA-insured, negatively-amortizating mortgages afford seniors the opportunity to exercise equity in their primary residence without having to make a monthly payment or qualify for a traditional refinance or home equity loan. The debt must only be repaid upon the sale of the primary residence or death of the last borrower.
What attorneys should know about landlord-tenant law
It is a practice filled with technicalities, short deadlines and hard to define standards. It is further complicated by the fact that most of the lower court cases or the appellate cases on the subject are not widely reported. Add to the mix that the loss of one's residence or business location can have tremendous economic and psychological consequences. Always in the background is the historic battle between landlord and tenant and the ever-changing social and legal policies which attempt to balance the rights of both landlord and tenant. Finally factor into the equation that the proceeding is called a "summary proceeding" because it is supposed to result in the prompt determination of the parties' rights, but, with appeals, a landlord tenant proceeding can linger for years. It is beyond the ken of this article to give full details as to all of the laws and procedures affecting this practice, but every lawyer should be knowledgeable about some basic landlord tenant principles so that
A brief synopsis of non-municipal premises liability in NY
Over the past few years, much attention has been given to the Court's strict interpretation of the serious injury threshold requirement in the area of motor vehicle liability actions. The Courts have been dismissing these threshold cases more and more frequently, citing grounds from the substantive principle of ‘gap in treatment' doctrine to the purely technical justification (e.g. doctor reports failing to list 'normal' ranges of motion of the spine). However, not as much attention has been given to the Court's increasing willingness to dismiss premises liability cases for a myriad of other reasons. In order to avoid dismissal, a diligent practitioner should be aware of the general requirements for premises liability actions before a suit is brought. This article outlines a recommended analysis for evaluating a non-municipal premises liability action.
Top Ten special needs tips and considerations for personal injury and medical malpractice attorneys
Less litigation, more resolution
Without question, American society is a litigious one. While litigation is indeed necessary and inevitable in a society built upon laws, and certainly better than the alternative of jousting in the street or engaging in violent behavior to resolve civil matters, litigation in modern society has become voluminous, time consuming and costly. Given this reality, the questions arise: How can civil litigation be streamlined and resolution of such matters be expedited in an equitable manner, and how can the Court assist in achieving this goal?
Representing the medical industry in business transactions
The purpose of this article is to address those health law issues that relate to medical professionals in their professional and business transactions. Aside from malpractice and liability, the most common types of problems which may require legal representation for a health professional are commercial transactions and business contracts. Specifically, the acquisition or sale of a practice (either medical or dental practices, with or without real property), contracts for professional services or with other professional providers, and contracts with providers who are employed by other professionals, hospitals, and/or health care facilities. Attorneys who counsel physicians and health care professionals must be aware of these potential problem areas.
Evolving medical challenges may affect provider liability
As bacteria evolve, the medicine for coping with them must also evolve. Various approaches are currently being pursued to deal with ever more virulent and resistant diseases. A recent Slate Magazine article listed five approaches beyond the development of new and more powerful antibiotics. The question this article explores s is whether the law of professional liability must evolve as the medicine seeks to keep up with the pathogens. My conclusion is that the current law is flexible enough to remain predominantly the same as medicine changes. However, some changes in approach may affect the relationships among patients, visitors and providers, and may lead to different conclusions of law as a result. We have grown used to thinking of medicine as a largely monolithic profession, particularly since the advent of antibiotics. In gross oversimplification the role of the medical professional is to avoid the bacteria if possible, identify it when it cannot be avoided, and then choose the app
End of life decisions: Who can make them?
When a patient is terminally ill, families, physicians, and facilities often struggle with end of life decisions. Physicians and families sometimes feel compelled to use all methods available to prolong life. Far too often, a patient loses capacity to make decisions about his/her care and treatment before the provider discovers that the patient has neither appointed a Health Care Proxy Agent nor expressed his/her written wishes regarding end of life treatment (Living Will). Without a proxy agent to make health care decisions and written evidence of the patient's wishes, the patient may be subjected to life-sustaining care that he/she would not have wanted and that might not even be in his/her best interests. Families with conflicting views about treatment and death are often divided and/or angry at each other and the patient's providers. These emotionally charged situations may well lead to legal proceedings.
Adoption law: A primer for attorneys
The subject of adoption touches the hearts and lives of many people. Whether you are a general practitioner or specialize in a particular area of law, some day a client may approach you to represent them in an adoption. Although blissful in concept and simple in theory, adoption law is technical, inconsistent from state to state, and rife with procedural variations that cannot be ignored. A simple mistake can affect individuals for many years and prove emotionally and financially costly.
Free speech at school and the First Amendment
As parents, we are often called upon to sit our children down and engage them in serious conversations on an assortment of topics that affect their young lives and that have consequences on their daily activities. So no better time than this month, September, the start of the academic school year, to sit them down, perhaps at the dinner table, and discuss with them their respective rights under the First Amendment of the United States Constitution and the line of case law that interprets these rights. What could be time better spent than discussing with your teenager (or precocious youngster) the nuances of free speech constitutional law? The following survey should guide.
Legislative Update
The New York State Legislature adjourned for summer recess in late June. The session did see accomplishments on some issues, while many remained unresolved.
Focus on Criminal Law
As with hate crimes and other new areas of the law, New York became one of the last states to formally enact an anti-stalking statute. In 1992, the state legislature originally amended the menacing and harassment sections of the Penal Law to include the problem of a person stalking another in a threatening, frightening or violent manner. However, it was not until 1999 that the legislature decided to create a separate stalking set of offenses. In the 1999 legislative memorandum in support, the legislature stated that stalking victims have been forced to live in fear of their stalkers and that "current law does not adequately recognize the damage to public order and individual safety caused by these offenders. Therefore, our laws must provide clear recognition of the dangerousness of stalking."
Arrest, initial appearance, arraignment in Federal Court
The initial steps of a criminal case set the tone for the entire defense. This article addresses the practice and procedures of arraignment in federal court on felony cases,1 focusing on the Long Island Division of the Eastern District of New York. Even if you do not practice criminal law, you should be aware of these procedures, in case a client is unexpectedly arrested by federal agents.
How to handle a criminal case in New York City
While I grew up in Nassau County, law school led me to Manhattan and I spent the next eight years practicing criminal law in New York City. Having switched jobs before, I prepared myself for the inevitable adjustment period that comes with such an undertaking. New personalities, different office policies, even the telephone system can take some getting used to. What I failed to prepare myself for were the logistical changes I would face when it came to actually handling a criminal case. Quite frankly, I hadn't realized how many differences exist in various standard procedures, such as appearances and pleas, in NYC as opposed to Nassau County.
Focus on Personal Injury
Every defense attorney who conducts trials in personal injury cases would agree that the trial subpoena is a valuable tool. Obtaining records concerning plaintiff's treatment, employment history and prior related injuries can lead to an excellent cross examination of the plaintiff and of the physicians who testify during plaintiff's case. The CPLR allows the trial court to admit most records obtained by a subpoena directly into evidence if the records contain the proper certification that satisfy the business records foundationrequirements.
Available remedies under the NYS Labor Law
Construction workers who are injured on the job and who have remedies other than workers' compensation typically avail themselves of New York's Labor Law. The sections most commonly relied upon are200, 240(1),and 241(6). This article will provide a brief overview of each of these sections including parties covered, parties liable, burdens of proof, and defenses.
Arbitrary Medicaid home health care cuts: Advocating for your clients
Nassau County has again begun balancing its budget at the expense of the neediest of our population - the frail elderly. In recent weeks, a number of seniors have received notice that their Medicaid home care benefits are being terminated allegedly because the individual's care needs can no longer be adequately met at home. Those seniors therefore must choose between going without care at all and being forced into a nursing home. As attorneys, we need to be aware of this kind of termination of benefits and be prepared to protect our clients and their families if it happens.
Kelo echoes over the legal landscape
On June 23, 2005, the United States Supreme Court issued the much noted, and much misinterpreted, decision in Kelo v. City of New London.1 Because the case was seized upon by advocates of particular political points of view, the case garnered publicity that would be the envy of every celebrity. While most knowledgeable observers have concluded that the decision is unremarkable, of little legal consequence, and actually a legal non-event, the case continues to generate litigation and controversy.
The changing dynamics of zoning boards
The standard of proof required to obtain an area variance has changed dramatically over the past fifteen years. Striving to give zoning boards maximum discretion, early case law held that a homeowner must prove conclusively that "extreme circumstances" or "practical difficulties" exist that warrant variance relief. Looking to allow landowners more control, in 1991 the New York State Legislature amended the New York State Village Law by introducing a balancing test that weighs equally the discretion of the zoning board and the rights of the individual landowner. The courts are interpreting the 1991 amendment of Village Law Section 7-712-b as an attempt by the legislature to standardize the variance review process by imposing statewide criteria, regardless of local zoning ordinances. In addition to the creation of a standardized statewide variance review process, case law indicates that local zoning boards are becoming more savvy and understand the court imposed "burden" placed on zoning
Environmental insurance for contaminated property transactions
Many real estate deals disassemble when the specter of contamination arises as a potential issue on the target property. One or more of the deal parties - or their attorneys - either run from the deal, or run to their respective corners to dig in their heels until the other party gives sufficient concessions. Neither strategy productively resolves the deal.
Focus on Trusts and Estate Law New law on disposition of remains
On June 7, 2006, Governor George Pataki signed into law a bill (New York Laws, 2006, Chapter 76) which amends Public Health Law Section 4201 to provide that an individual can by written instrument designate a person to act as his agent for the purpose of the disposition of his remains. In addition, the statute provides (i) an order of priority of those individuals who shall have control over the disposition of the remains in the absence of a written designation, and (ii) provides the mechanism for such designation and contains a model form for the designation. It is anticipated that the new law will reduce or eliminate disputes relating to the disposition of remains.
Tax housekeeping - Remember the follow through
This article picks up after the tax planning has been done and the documents have been signed. Many practitioners may feel that now is the time to sit back and relax … Wrong!!! Once an estate plan has been created, follow through is important to protect the plan and make sure it will survive the audit test. There has to be coordination between the compliance and the planning ends of the estate plan.
Estate planning for non-citizens
Attorneys practicing in the area of estate planning are ever more likely to confront clients who are either non-citizens or of ambiguous status, given the increasing pace of globalization, with New York serving as a major international center for business and a magnet for immigrants. It is important to be aware of the myriad of special rules and exceptions that significantly impact planning strategies for such clients. While this article focuses on matters affecting estate planning and transfer taxation, the estate planner should also take into account the income tax effects of any proposed strategy for such clients, perhaps with the aid of a qualified tax professional.
Why Kelo didn't matter and what can be done about it
A public furor followed the recent Kelo decision by the Supreme Court of the United States. Kelo v. City of New London, 125 S.Ct. 2655 (2005). Yet, after the dust had settled, many commentators realized that there was nothing new about the Kelo case. The eminent domain power, as construed by the federal and state courts over decades of decisions, was virtually limitless. It didn't matter whether the taking was seemingly nonsensical or even bordered on the government bending to the economic carrots offered by multinational corporations. It also didn't matter that the taking was in connection with fanciful projects having little possibility of success.1 If the government wanted to take property, any purpose would do.2 It is (and, as this article goes to press, still is) the law that property could be taken by the government for a standard governmental purpose (park, recreation, road, etc.). What so alarmed the public (and what Kelo reaffirmed) was that property could be taken by the gove
Compensation and related party disclosure - New rules for the 2007 proxy season
On Nov. 7, 2006, the new compensation and related party disclosure rules adopted by the U.S. Securities and Exchange Commission over the summer went into effect.1 The new rules are a sweeping overhaul of the old disclosure rules, which were substantially rewritten and reorganized in an effort to make the disclosure clearer and easier for investors to follow, analyze and compare from year to year, and from company to company.
Beginning the appeal process: Noticing the appeal and what comes before
The appellate process is available to a party that wants to challenge the order or judgment of a court on grounds of judicial error committed in the process of arriving at it. However, there are important steps that should have been taken before the stage at which an appeal is filed arrives. An appeal can be lost before it is ever taken if the trial attorney has failed to protect the record in the course of the trial or motion in the court below.
Focus on Real Estate - Effective Jan. 1, 2007: Nassau County housing discrimination complaints will be heard by the Nassau County Human Rights Commission
Last summer, County Executive Thomas Suozzi signed into law an amendment to the Nassau County Administrative Code that the 19-member Nassau County legislature had unanimously passed to expand the powers of the Nassau County Human Rights Commission (NCHRC). The law combats discrimination in housing on the basis of race, color, creed, gender, age, disability, religion, source of income, sexual orientation, national origin, marital status, familial status or ethnicity.1 The law is targeted against "acts of prejudice, intolerance, bigotry, and discrimination which deny a person the opportunity to sell, purchase or lease, rent, or obtain financing for the purchase or lease of housing accommodations because of actual or perceived race, creed, color, gender, disability, age, religion, source of income, sexual orientation, familial status, marital status, ethnicity or national origin..."2 Prohibited practices include not only the refusal to sell, rent, lease or provide financing for any housin
Focus on Real Estate - Does "As Is" prevail over fraud by active concealment when there is a discovery of mold?
The case which I will refer to below, Lohan v. Teja, began as a typical real estate transaction. With the post-closing discovery of mold, what later followed can only be described as a nightmare for the seller. The facts are simple: Seller purchases a residential property for investment purposes. Seller renovates the house, including installing new sheetrock in the finished basement. Purchasers inspect the house on their own (she is a licensed real estate agent with twenty years experience and he is a supervisor with a commercial construction company who, as part of his job, inspects and oversees the work of sub-contractors). After the contract is negotiated and forwarded to the purchasers, the purchasers engage a home inspection company. With the exception of a few minor items, the engineer's report finds no structural or adverse conditions. Specifically excluded from the report is any determination of whether the premises contains mold. Unbeknownst to the seller until well into the l
Focus on Real Estate - Use of the constructive trust remedy to enforce oral promises
The classic constructive trust case involves a "reconveyance" where title to property is taken in the name of one person who holds bare title for the benefit of another person. The person who takes title promises that he will reconvey the property back to the other person upon demand or upon the occurrence of some event. However, in the fact pattern discussed below, like in many cases a real estate litigator maybe confronted with during the course of his career, the element of "reconveyance" (or, "conveyance" or "transfer," as some cases refer to it) may not occur resulting in an injustice requiring the imposition of a constructive trust.
Focus on Labor/Employment Law Burlington Northern & Santa Fe Railway Co. v. White: An expansive view of retaliation discrimination
In Burlington Northern,1 the Supreme Court reviewed Section 704(a) which sets forth Title VII's anti-retaliation provision in the following terms: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
The whistleblower aspects of the Sarbanes-Oxley Act of 2002
The Sarbanes-Oxley Act of 2002 (the "Act")1 was enacted on July 30, 2002. The stated purpose of the Act, which was passed largely in response to the financial scandals of the late 1990s and early 2000s, is to "protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities law."2 While the majority of this law addresses corporate-governance, accounting and auditing issues, it also contains provisions which impact directly upon employer-employee relations. The Act applies to any company which has issued a class of securities registered with the Securities and Exchange Commission (SEC) or which is required by the federal securities law to file reports with the SEC.
'Adverse Employment Action' and Title VII
Historically, before a plaintiff could proceed in an employment discrimination action under Title VII, the employee had to demonstrate that he/she expected an "adverse employment action." However, the term "adverse employment action" does not appear in the text of Title VII of the Civil Rights Act of 1964.1 Instead, Title VII states that it is unlawful: (1) to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify . . . employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a) (emphasis added). Yet, from this statutory text, courts have
NCBA Task Force on lawyer advertising
On June 15, 2006, the New York State Unified Court System announced that sweeping changes to the rules pertaining to advertising in the Lawyer's Code of Professional Responsibility had been approved for public comment by the four Presiding Justices of the Appellate Division. The period for public comment expires Sept. 15, 2006. According to the press release issued by the Office of Court Administration, the proposed amendments
Settling cases early in the litigation process
Nearly all cases settle. Some cases settle with little effort. Others settle only after each side has thoroughly bludgeoned each other with discovery demands, document productions, depositions, motions, cross-motions, replies, unauthorized sur-replies, unauthorized replies to the sur-replies, and the like. Early resort to settlement should be commonplace. Conceptually speaking, it makes little sense to expend valuable client resources over an extended time to arrive at the same result that could have been reached months and thousands of dollars earlier had clearer heads prevailed.1 Yet in many instances, parties do not raise the issue of settlement until late in the litigation process.
Child custody and home state jurisdiction
The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)1 is a uniform State law that was approved in 1997 by the National Conference of Commissioners on Uniform State Laws (NCCUSL) to replace its 1968 Uniform Child Custody Jurisdiction Act (the UCCJA)2 and to reconcile it with the Parental Kidnapping Prevention Act (PKPA)3 enacted in 1981 by the Federal government. The UCCJEA governs State courts' jurisdiction to make and modify "child-custody determinations," a term that expressly includes custody and visitation orders. The Act requires State courts to enforce valid child-custody and visitation determinations made by sister State courts.
Tenant assignors and their guarantors beware
Unless tenant-assignors express an intention to be released, they will continue to be liable under the lease. The assignment must bear an express provision that upon consent of the landlord, the assignor and its guarantors are relieved of any liability accruing after the date of assignment. In the absence of language to that effect, the tenant will continue to be liable for any rent, additional rent or damages accruing under the lease after the date of assignment. It is immaterial that the tenant is current on its rent and additional rent payments on the date of the assignment. It is no defense that the landlord consented to the assignment. It is equally unavailing that the landlord accepts rent from the assignee. None of these actions are considered an acceptance by the landlord of the assignor's surrender. The repercussions of this liability extends to guarantors of the tenant/assignors.
Our Toast to DOMUS
This year marks the seventy-fifth anniversary of Domus, the permanent home of the Nassau County Bar Association and a source of pride for all its members. Since its completion in 1931, Domus has served and continues to serve as a gathering place for attorneys practicing law in Nassau County, enhancing every facet of the profession. The Nassau County Bar Association was founded in early 1899, over 107 years ago. However, it was not until early 1931, after 32 years of existence, that the Bar Association officially dedicated its permanent home, Domus. The Bar Association initially numbered 19 charter members in 1899, with the number of members slowly increasing through the first years of the twentieth century. In 1927, the New York State tax law was amended to exempt real property held by bar associations from tax liability, setting the stage for creating Domus as the permanent home of the Bar Association.
Employee claims for split shifts and spread of hours on the rise
Increasingly, employees who work split shifts and/or who work over ten hours a day, inclusive of breaks, are bringing claims against their employers for "spread of hours" violations. These spread of hours claims are brought pursuant to the New York State Department of Labor's Wage Orders. Pursuant to the Department of Labor's spread of hours regulation, employers are required to pay their employees an extra hour at the state's minimum wage for each day in which: (a) the employee's spread of hours exceeds ten (10) hours; (b) the employee works a split shift; or (c) both situations apply. New York State Department of Labor's Wage Order. See 12 N.Y.C.R.R. §142-2.4.
The State's vapor intrusion policy: new issues to consider
The New York State Department of Environmental Conservation (DEC) and the Federal Environmental Protection Agency have become increasingly concerned about vapor intrusion in buildings that negatively affects indoor air quality, potentially threatening the health of building occupants. Vapor intrusion can occur from a number of sources, for instance, from groundwater or from soil beneath a building's foundation. It results typically from a chemical source, such as volatile organic chemicals in groundwater.
DWI: The reason for the focus
The reasons for the focus are simple: Katie Flynn. Stanley Rabinowitz. Gina Marie Dell'Anno. Matt Adducci - and so many more victims of this senseless, completely preventable, violent crime. For each of the last five years in Nassau County there were more people killed in drunk driving crashes than there were intentional homicides. In total, 171 people died in DWI crashes over those five years while 91 people were killed in intentional homicides.
The war on steroids gets more muscle
A federal grand jury is investigating whether Giants slugger Barry Bonds committed perjury in 2003 when he told a grand jury that he never knowingly used anabolic steroids. While the home run king's saga plays out in San Francisco, the investigation provoked by rumors of his steroid use has already led to the convictions of others connected to the BALCO scandal and has galvanized influential policy-makers in Washington, D.C. Practitioners in the criminal courts should take heed that new developments in federal legislation and tougher criminal sentencing guidelines support law enforcement statements announcing a dramatic escalation in the Government's resolve to prosecute and imprison anabolic steroid offenders.
Federal sentencing following Booker
The revolution in federal sentencing law following the Supreme Court's decision in United States v. Booker, 543 US 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) has continued increasing the discretion which federal judges have to impose sentences in criminal cases and increasing the opportunities which we have as advocates to serve our clients' interests.
Identifying, analyzing and resolving conflicts of interest
Conflicts of interest must be addressed every day of a legal career; they are the bane of every attorney's existence. No single topic in the Code of Professional Responsibility ["Code"] is more problematic than the determination as to whether a conflict exists between an attorney and client or former client and how to resolve it. Attorneys who believe that the client's consent to a conflict immunizes the attorney or law firm from the consequences of conflict issues are sadly mistaken. Attorneys who believe that conflicts are relevant only in the litigation context are grossly misinformed. In litigation, conflicts are more transparent since the relevant parties are usually clearly identified. In other areas of representation, the identity of the relevant parties is not always apparent and it is up to the attorney to disclose the existence of a conflict.
Understanding the grievance process
New York Judiciary Law §90 charges the Appellate Divisions with the power and control over attorneys and expressly permits the Court to discipline attorneys for acts beyond mere "professional misconduct" including "malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice." In pursuit of the statutory mandate, each of the four Appellate Divisions has promulgated rules governing the conduct of attorneys who practice, reside or commit acts within their jurisdiction: 22 NYCRR Part 603 (First Dept.): 22 NYCRR Part 691 (Second Dept.); 22 NYCRR 806 (Third Dept.); 22 NYCRR Part 1022 (Fourth Dept.). Although only the Rules of the First and Second Departments expressly define professional misconduct to include acts of a "personal" nature, it is well settled by case law that any lawyer admitted to practice in New York may be disciplined "even though such misconduct was outside of and not part of his professional acts."
Report of the NC Women's Bar Association Juvenile Shelter Task Force
Children between the ages of 8 and 16 who are respondents in juvenile delinquency proceedings and young people less than 16 who are charged as adults with certain serious enumerated crimes as juvenile offenders under the Criminal Procedure Law can be remanded to a juvenile detention center or shelter.
Insurance companies face another hurdle in defending no-fault cases
Insurance companies face numerous hurdles in defending a no-fault matter whereby a medical provider seeks reimbursement for services provided to an automobile accident victim (its assignor). For example, an insurer must mail a denial within 30 days from receiving a bill or be precluded from proffering a defense (except in limited circumstances, such as a staged accident) and the burden at trial is on the insurer to prove that medical services are not medically necessary before a Provider has to testify regarding the services' necessity.
Interviews with subsequent treaters
The Health Insurance Portability and Accountability Act (HIPAA) of 1996 (42 USCA § 1320d et seq., as added by Public Law 104-191) continues to impact the practice of law, especially in the areas of personal injury and medical malpractice. One effect concerns a defendant's access to a plaintiff's subsequent treating physicians for purposes of interviews.
Medical malpractice derivative actions and statutes of limitations
The focus of this article is the divergence among the Appellate Divisions on the issue of whether the toll of the statute of limitations for continuous treatment in a medical malpractice benefits the derivative plaintiff. Since the Court of Appeals has not yet addressed this issue, the difference in their holdings is a significant one that can make or break a derivative claim depending on venue.
New statewide uniform rules for commercial division
In May 2003, a panel of the justices assigned to the New York State Supreme Court Commercial Division met and compared all of the different individual rules of eligibility and practice in each of the Commercial Parts throughout the state. A consensus quickly developed that practicing in the Commercial Parts should be more uniform and consistent. Justice Leonard B. Austin of Nassau County's Commercial Division was enlisted to spearhead the effort to draft a set of rules and guidelines that would apply to the Commercial Parts for all of the Counties of the State.
Protecting "unlabeled" attorney work product
Production of documents is a major element in commercial litigation cases and counsel is often confronted with requests that call for the production of documents covered by the attorney work product doctrine. The work product doctrine is a common and valid basis to object and withhold production of documents that are otherwise relevant and responsive. However, the party asserting the work product doctrine bears the burden of establishing that the privilege1 applies. In a recent case, the court finds that the work product doctrine applies, but requires that counsel provide a supporting affidavit.
License agreements: Five factors to consider to protect your trademark
For trademark owners, a trademark is a reflection of a brand which the public associates with a type of product, style or quality. A trademark is "any word, name, symbol, or device, or any combination thereof" used "to identify and distinguish. . . goods, including a unique product, from those manufactured or sold by others." 15 U.S.C. §1127.
Post divorce interspousal tort suits and the doctrine of res judicata
It is well established that a final judgment of divorce issued by a Court settles the parties' rights pertaining not only to those issues that were actually litigated, but also with respect to those that could have been litigated.
Interim counsel fees in matrimonial actions
In the Donna Reed world of 1960, the nuclear family consisted of 2.4 children, a stay-at-home mother, and a breadwinner-father. Divorce, if not rare, was infrequent. Today, Donna Reed and her nuclear family has gone the way of black and white television. Matrimonial attorneys are plentiful, and in many families, both spouses are gainfully, but not necessarily equally, employed. When one spouse earns all or most of the family income, he or she is referred to in the matrimonial vernacular as the "monied spouse." The lesser employed (or unemployed) spouse is the "non-monied spouse." In prosecuting or defending a divorce action, the non-monied spouse may have to borrow the funds necessary just to retain counsel. That retainer often expires before the action does.
The economics of marital fault: Part II
Part I of this article which appeared in the October, 2005 issue of the Nassau Lawyer discussed the status of the law and the role of marital fault in obtaining a judgment of divorce in New York, a "fault" state, which unlike the other forty-nine states, does not recognize some form of "no fault" divorce. Proposed legislation to reform New York's Domestic Relations Law to include as grounds for divorce a "no fault" provision died in the respective judiciary committees of the 2005 legislature.
The potential pitfalls of failing to provide notice of a trial subpoena duces tecum
Here is a scenario that civil practitioners should find appalling: your adversary attempts to conduct non-party document discovery through a discovery subpoena duces tecum. You move to quash the subpoena, and the judge grants your motion. But then, all of a sudden, when you get to trial, you learn that your adversary has served a trial subpoena duces tecum for the same records, never served you with a copy of the subpoena, and the records miraculously became available to your adversary at trial without your knowledge. Sound fair? Well, believe it or not, that was the law prior to Jan. 1, 2004 in New York.
Court of Appeals clarifies inheritance rights of adopted-out children
Recently, the Court of Appeals decided a case clarifying the rights of adopted-out children, and the issue of such children, with respect to testamentary inheritance. In Matter of the Estate of Murphy,1 the Court was called upon to address the interplay, under the facts before it, between section 3-3.3 of the Estate, Powers and Trusts Law (EPTL) – New York's "anti-lapse" statute – and section 117 of the Domestic Relations Law ("DRL"), which addresses the limited ability of an adopted-out child to inherit from a birth relative.
Condemnation landscape following the Supreme Court's Kelo decision
The power of eminent domain, colloquially known as the power to condemn, vests government with the power to permanently dispossess a landowner of all title and right to his or her property in exchange for "just compensation." The Federal government's power to condemn is circumscribed by the Fifth Amendment to the Constitution, which requires that the land be taken for a public use. The States are similarly prescribed by this restriction through application of the Fourteenth Amendment to the Constitution and, frequently, their own constitutions and statutory enactments.
Understanding easements and licenses
This article contains an overview of the creation and construction of easements and licenses in real property. An easement is best described as the enforceable interest in real property held by one or more property owners over the land of another, while a license is a personal privilege to enter onto land for a particular purpose. Easements can be classified by their method of creation into express, implied and prescriptive easements.
Attorney's pre-lease due diligence
The following serves as a primer for identifying preliminary considerations in commercial lease transactions. Given the scope of all the areas which could be addressed, I have opted for a checklist format which can be used by both the experienced and general practitioner. Most significantly, insure you have sufficient expertise to represent the client effectively and to maintain a reasonably even playing field in the negotiations. The relative complexity of the transaction, experience of the other attorney and sophistication of the parties are all factors contributing to your effectiveness on the client's behalf. The lease itself, while fundamentally serving as a possessory interest in real estate, may have considerable other elements which may involve interests more significant than the leasehold itself, some of which are noted below.
Educational and religious land uses: Revisited
New York municipalities are authorized to enact and enforce zoning legislation as a valid exercise of their police power provided the restrictions are not arbitrary and bear a substantial relation to the health, welfare and safety of the community.1 Educational and religious land uses, however, cannot be prohibited outright by a municipality's zoning code, since the uses enjoy the presumption they further the public health, safety and morals.2 Thus, if a practitioner finds himself representing an educational or religious institution seeking to use its land in a manner not permitted by the local municipality's zoning code, there may be relief under court decisions. However, the practitioner should not fall into the municipality's trap of applying for a variance or requesting an amendment to the zoning code to permit such use. The more appropriate procedure is to apply for a special use permit, regardless of whether the municipality's zoning code provides special use permits for religiou
Escrow Task Force report examines allegations of LI attorneys' misuse of funds
In response to wide press coverage of the 2004 Annual Report of the Lawyers' Fund for Client Protection, which reported that attorneys in the 10th Judicial District, comprised of Nassau and Suffolk counties, were responsible for a disproportionate number of real estate escrow fund thefts, NCBA President Christopher T. McGrath appointed a Task Force comprised of Lance D. Clarke, Abraham B. Krieger, Eric S. Rosenblum and Douglas J. Good to: (1) consider and comment on the Report, particularly with regard to its comments that Long Island attorneys are responsible for a disproportionately high number of thefts of real estate escrow funds; and (2) respond to proposals made of means to address the issue of real estate escrow misappropriations by attorneys.
The New York State Long Term Care Compact: An innovative approach to long term care payment
It appears that radical changes to New York's Medicaid program are on the horizon. Currently the state and its counties shoulder a large portion of rising Medicaid costs that increasingly burden taxpayers. In the last several years, legislators have offered proposals to drastically limit participation in the Medicaid program and tighten eligibility requirements. Such proposals if enacted would largely affect the elderly and disabled who have the greatest need for expensive long term custodial care not covered by Medicare. The proposed legislation would also affect spouses who require sufficient resources and income to remain in the community.
New York now makes it easier to avoid probate
The new "transfer-on-death security Registration Act" (TOD Act) makes it easier for clients to avoid probate. This new provision, contained in Article 13-4 of the New York Estates, Powers and Trust Law (EPTL), permits the registration of securities in beneficiary form, so that the beneficiary may obtain title by operation of law upon the death of the owner, rather than turnover the probate process. This new provision takes effect on Jan. 1, 2006.
Dying before your case is decided: A growing threat to the elderly veteran
A veteran who is denied a benefit by the Department of Veterans' Affairs has an administrative appeal, followed by an appeal to the courts established under Article I of the United States Constitution, sometimes followed by an appeal to an Article III court. The process is, however, so slow that it is illusory for many veterans who die before it is completed.
Inadvertent Tax Opinions By Real Estate, Matrimonial, Negligence and All Other Attorneys
The following is an excerpt from the instructions to our personnel for using Microsoft Outlook to set up the statement
Our State Senators visit Domus
Our State Senators visit Domus
The economics of marital fault Part I
"No Fault" Divorce renewed with vigor this year as proposed legislation was presented to New York legislators to amend Section 170 of the New York Domestic Relations Law (DRL §170). For those practitioners unfamiliar with this statute, it sets New York apart from the other 49 states who recognize some form of "No Fault" divorce; California being the first of our sister states to enact no fault divorce legislation when then Governor Ronald Reagan signed the Family Law Act of 1969. As a condition precedent to the division of assets of married parties, a spouse must first prove grounds. The initial hurdle of a grounds trial is costly and time consuming, win or lose. As noted by Justice Jeffrey D. Lebowitz in a recent decision, according to the New York State Bar Association's Family Law Section survey of matrimonial practitioners across the state, a party incurs additional counsel fees of $2000 to $15,000 to resolve fault as a component of the matrimonial action.
Emerging issues in electronic discovery
Electronically-stored documents and data have become a prime source of evidence in litigation because of the ubiquity of computer technology. As discovery of this potential evidence has become an increasing fixture in pre-trial proceedings, a growing body of case law has developed to bridge the gap in statutory provisions governing this relatively new subject of discovery.1 These case law developments, which are defining the scope and rules of electronic discovery, have impacted commercial, intellectual property, and employment law practitioners, who now routinely seek and produce in litigation electronically-stored documents and data. These developments are impacting other areas of practice such as corporate law, where practitioners must advise their clients on document retention policies, and matrimonial law, where electronically-stored information may provide valuable evidence regarding fault and location of assets. This article reviews some of these developments.
Countdown to major bankruptcy law changes
After the expenditure of multi-millions of dollars by lobbyists for the credit card industry over a period of eight years, Congress enacted a new bankruptcy law that will take effect on October 17, 2005. The new law is called the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA”). Despite its name, the provisions for the most part, have little to do with protecting the consumer. Although this legislation was promoted as a way to curb consumer abuse, its effect will be to discourage bankruptcy filings by non-abusing citizens who incur primarily consumer debt. Under the old law, there was a presumption of granting a debtor a discharge and a debtor could more easily enter bankruptcy and obtain a "fresh start" which would discharge most debts. BAPCPA shifts most burdens to the debtor, including the creation of a presumption that anyone who files bankruptcy seeking to discharge primarily consumer debt is an "abuser." In the opinion of bankruptcy experts, the abuse which BAPC
Should no-fault grounds for divorce be enacted in NY
Recently, in her State of the Judiciary address, Chief Judge Kaye of the State of New York urged the Legislature to consider enacting the one step no-fault divorce in New York.1 The Judge noted in her report that the statutory law of New York requiring proof of fault or separation for one year has become increasingly inadequate. In fact, New York is the only state without a one step no-fault divorce ground. The Judge admitted that the issue raised difficult questions, on the other hand, she emphasized that no-fault divorce would be a "fair" compromise to dissolve the marriages that are obviously over, to protect the rights of both spouses and to help the victims of domestic violence who may be trapped in an abusive marriage and unable to obtain a divorce based on fault.2
New York's new limitation of vicarious liability
On Aug. 10, 2005, President Bush signed HR3, the Transportation Equity Act, legislation, repealing vicarious liability,1 into law. 2 As a result of this repeal, car leasing and rental companies will no longer be held liable for accidents that their leased or rented vehicles are involved in. But, what does this really mean? Basically, this industry has been granted a special exemption that no other vehicle owner enjoys, an exemption that will be paid for by the taxpayers of this State and by those people who have been maimed or who have lost family members through no fault of their own. The New York State statute which is repealed by operation of law, section 388 of Vehicle and Traffic Law (VTL), was enacted to ensure that individuals who are seriously injured in the State as a result of the negligent operation of a motor vehicle have a financially viable vehicle owner from whom the victim can seek redress.3 Although the law's most vocal critics have been the leasing companies, the sta
Commercial bad faith – A cause of action in search of a case
In the landmark case of Prudential-Bache Securities v. Citibank, 73 N.Y.2d 263, 539 N.Y.S.2d 699 (1989), the Court of Appeals upheld the sufficiency of a complaint by a bank customer alleging a cause of action for "commercial bad faith" against a depositary bank. In Prudential-Bache, an employee of Prudential who had responsibility for the issuance of dividend checks embezzled almost 19 million dollars from Prudential by causing hundreds of checks to be issued to fictitious payees and depositing those checks into accounts which he had opened at various banks in the names of those fictitious payees. The Court of Appeals upheld dismissal of Prudential-Bache's causes of action for conversion and money had and received, because of the general rule that a drawer of a check must proceed against the drawee bank rather than the depositary bank for collecting the proceeds of checks bearing forged or unauthorized endorsements, and because of the fictitious payee rule of U.C.C. § 3-405(1)(c).
The Jury Trial Project
The Jury Trial Project, a statewide initiative launched by Chief Judge Judith Kaye in 2003 to experiment with innovative practices in jury trials in New York has completed its work and issued its final report. Fifty-one judges from 16 counties throughout New York state who hear both civil and criminal cases experimented with a number of proposed jury trial innovations. Among the innovations studied were:
The Fourth Amendment search and seizure rules
Searches of students, government employees, and government buildings – courthouses, airports, government offices, schools, etc. – may evoke special search and seizure rules. Specifically, unique rules exist for (1) security searches in government buildings, (2) using canines to detect illegal drugs, (3) searches of government employees for work-related purposes and searches in government-employee work areas, and (4) searches of students at their schools. For these types of searches, both the Fourth Amendment of the U.S. Constitution and Article 1, § 12 of the New York Constitution relax the general requirement that the police obtain a search warrant, issued upon probable cause, before conducting a search and seizure.
The valuation and inherent importance of golf
Few people are aware that there are more than 30 private golf courses in Nassau County. When considering the assessment value of these courses, many people would fail to generate much sympathy for their continued existence. After all, these courses are exclusive to only those that can afford them and add nothing to the general well being of the County - or so the way some thinking goes.
Booker ends the 'tyranny' of the U.S. Sentencing Guidelines
On Jan. 12, 2005, the Supreme Court upset 17 years of federal sentencing practice by rendering the United States Sentencing Guidelines "advisory." In the three months following the decision in United States v Booker,1 federal district judges freed from a generation of "guidelines tyranny" have struggled to develop sentencing jurisprudence.
The Grand Jury and the 'top 10' grounds to dismiss or indict
After arraignment on the Indictment, defense counsel will evaluate the strengths and weaknesses of the potential trial, and the possibilities of a plea bargained disposition. However, before moving ahead, defense counsel should first consider the procedure, form and content of the Grand Jury proceedings to determine if the Indictment itself was proper.
Part 9 update
As any criminal defense attorney who regularly practices in Nassau County knows, having a case in Part 9 often leads to a wildly unpredictable amount of time for each court appearance in comparison to other courtrooms. To address this issue and reduce the number of appearances needed to resolve a case, the Judiciary and the District Attorney's Office have recently made changes to improve Part 9.
Historic Preservation Law in New York State
The National Trust for Historic Preservation, a private not-for-profit group dedicated to historic preservation, has deemed the month of May as National Historic Preservation Month. This celebration of our nation's heritage by honoring our historic resources, including our communities, culture, architecture, archaeological sites and engineering originally began in 1971 as a week long festival. Due to its success, the National Trust has expanded Preservation Week into Preservation Month. In light of this national celebration, and in honor of our growing appreciation and awareness of our local historic treasures, it seems fitting that an article be dedicated to historic preservation law.
Free speech and public employees
For those who represent municipalities or their employees and are charged with the responsibility of balancing the rights of an employee to speak out as a citizen against the rights of an employer to be protected from comment that could harm its workplace, the United State Supreme Court decision in City of San Diego, California, et al v. John Roe,1 decided on Dec. 6, 2004, is important. Although the facts in this case are bizarre enough to impact the outcome, the Supreme Court's discussion provides a good review of earlier United States Supreme Court decisions on this issue. In addition, the decision clarifies the Supreme Court's position on the relevance of comment or activity that takes place outside of the workplace and on the employee's own time.
Civil rights actions and zoning decisions
Plaintiffs bringing lawsuits pursuant to 42 U.S.C. § 1983 for violations of their civil rights regarding zoning decisions have always had a tough burden. However, a decision by the New York Court of Appeals last year has made it even more difficult.
FOCUS on Personal Injury Jury foreman's letter provides a window into jury room
At a March 22, 2005 meeting of the Theodore Roosevelt Inns of Court, Justice F. Dana Winslow presented a case which had been tried before a jury in 2003 which he referred to as "demonstrating outstanding advocacy" with "extraordinarily interesting medicine."
2005 new regional look back rates Calculating disqualification period penalties for medicaid coverage for nursing home care
The new 2005 regional rates for calculating transfer penalties for Medicaid nursing home coverage are as follows: Region Monthly Regional Rates Long Island (Nassau and Suffolk Counties) $9,612 New York City $8,870 (New York, Queens, Kings, Bronx and Richmond Counties) Northern Metropolitan $8,332 Northeastern $6,501 Rochester $6,981 Western $6,181 Central $5,988 See, GIS 04 MA/033
New CPLR article 50-A: Old problems resolved - new complexities created
In the recent statutory revision of CPLR Article 50-A, the legislature has recognized that the existing statutory scheme for periodic payments of judgments "possibly over compensates the plaintiff in a manner inconsistent with the original statutory intent." This new version is expected "to better carry out the original statutory intent," which was to reduce insurance premiums. The legislature also articulated a need to correct the holdings by the Court of Appeals in Desiderio v. Ochs 100 N.Y.2d 159 [ "averaging method" that resulted in an initial annuity payment that exceeded plaintiff's proof] and Schultz v. Harrison Radiator Division of General Motors 90 N.Y.2d 311, [ double counting of inflation that was created by permitting the jury to consider inflation and then adding an additional increase to annuity payments (4 percent compounded annually) by statute]. This will have a significant impact in reducing 50-A judgments.
The value of letters of intent in business transactions
Historically, parties entering into business transactions have often memorialized their commitment to enter into a deal by setting out the most important terms of their agreement in a "letter of intent." Although letters of intent are often criticized as being nothing more than non-binding agreements in principle, the letter of intent can actually be a useful tool in any transaction, not only by setting out the essential terms of the agreement, but by forcing the parties to identify and focus on critical issues early in their negotiations.
Sarbanes-Oxley goes private
The chorus of public company grousing in reaction to the increasingly burdensome and expensive financial reporting and corporate governance requirements under Sarbanes-Oxley may soon extend to many private companies. This is because certain important provisions of Sarbanes-Oxley actually do apply to private companies.
New check 21 legislation poses challenges in bank litigation
On October 28, 2004 the Check Clearing for the Twenty-First Century Act, otherwise known as Check 21, went into law. Check 21, 12 U.S.C. § 5001, et seq., allows banks to dispense with the physical transportation of original checks from bank to bank in the collection process, and instead permits the transmission of electronic images of the checks instead.
Focus on Matrimonial Law Counsel fees in family offense cases
One of the least known and hardly used provisions of the Family Court Act is found at FCA §842(f), regarding final orders of protection. It states that with respect to such an order, it may require the petitioner or the respondent "to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order if such order is issued or enforced."
For whom the statute tolls
Consider the following. A couple signed a Pre-Nuptial Agreement shortly before marrying. For the first six years plus, theirs was an idyllic marriage. But, in the following year, the proverbial seven year itch strikes one of them, and the bliss is soon replaced by animus.
Domestic violence not a (sole) basis for neglect proceedings in Family Court
Like most complicated phenomena, domestic violence is an area not well understood by the public, nominally understood more by those who regularly deal with it, such as the Family Court and matrimonial bars, and, not surprisingly, best understood by those who have experienced it first-hand – the victims.
WE CARE FUND recipients express their gratitude
Throughout the year NCBA has fundraisers with the proceeds going to the WE CARE Fund. Many of the NCBA members regularly make donations to the Fund, to commemorate a marriage, a birth, a professional milestone or to offer condolences to a family who has said good-bye to a loved one.
From the lunch counter to the courtroom
In the year 2005, there continues to be the tendency on the part of Americans to take many things for granted because they have become part of our every day life. I think back to when I began practicing law some 26 years ago and remember creating a real estate contract of sale with a typewriter and three sheets of carbon paper. I remember having to get my payoff letter request in the mail early, especially if the mortgagee was on the west coast, because it could take a week to get the payoff letter in the mail. Today, we have computers that will spit out the average home sale contract in moments and fax machines that will send the request for the payoff letter to the west coast in seconds and the payoff letter return in hours, if not, minutes.
Golf course liability to adjoining landowners
Over the past fifteen years or so, there has been an explosion in the number of people who golf. This, in turn, has led to an increase in the number of golf courses. As the number of golf courses has increased, so too has the number of homes which adjoin those golf courses. Since, as the Court of Appeals has noted, "even the best professional golfers cannot avoid an occasional 'hook' or 'slice,'" Nussbaum v. Lacopo, 27 N.Y.2d 311, 319, 317 N.Y.S.2d 347, 353 (1970), one would think that the proximity of the homes to golf courses is a liability disaster waiting to happen.
Peep-holes: Potential civil and criminal liability
In recent years, there has been an increasing number of cases in which it was discovered that, through the use of a "peep-hole" or some type of electronic viewing device, there had been a violation of the privacy of an individual using a dressing room or a bathroom in a commercial establishment such as a store, hotel or apartment. Adding insult to injury, some photographs and videos which were obtained in this surreptitious manner have been published on the internet on pornographic web sites. Victims of such violations may have legal remedies.
Focus on Real Estate A reverse mortgage is just the right medicine an aging America needs
There was a time, when America was young. At the signing of the Constitution the median age was 16. Life expectancy was a mere thirty five. In a short historical span of 228 years much has changed. Our country is growing old. This trend will continue at an increasing speed.
A primer on residential real estate transactions
The single most valuable item that most Americans buy is their home. Ironically, it's also one of the least understood purchases, and one in which buyers must rely completely on the skills and knowledge of a handful of professionals. This is a guide to assist lawyers as they counsel residential real estate clients undertaking the purchase of a home.
New tax legislation relating to real property transactions
State and Federal tax legislation has been enacted that will have a major impact on a variety of real estate transactions in New York State.
Focus on Bankruptcy Law When the Trustee comes knocking on your client's door
If you have business clients you may have already received an irate and somewhat frantic phone call from one of them, asking for your advice with regard to a letter the client received from a Bankruptcy Trustee. The Trustee had demanded the return of money your client received, possibly several years before, from a former customer that had filed for bankruptcy (or had been forced into an involuntary bankruptcy). Your client indignantly wants to know what right anyone has to ask for the payment back. After all, she was legitimately owed that money. The client goes on to relate how she had actually breathed a sigh of relief when she first learned about her customer's bankruptcy filing and realized that, unlike many of her colleagues, she had been paid in full before the filing. The question to you is whether the client might actually have to pay back money long since spent. The answer rarely is simple. The Trustee has the power to avoid pre-bankruptcy transfers that are either preferenti
Various avenues to pursue bankruptcy - Chapter 11
Although there are five types of bankruptcy proceedings, this article will deal with reorganization under Chapter 11 of the Bankruptcy Code and the anatomy of Chapter 11. Solely for informational purposes, the other four Chapters of bankruptcy are: (a) Chapter 7 (liquidation), (b) Chapter 9 (adjustments of debts of municipality), (c) Chapter 12 (adjustment of debts of a farmer) and (d) Chapter 13 (adjustment of debts of individual with regular income).
Consumer Bankruptcy: Defending motions to lift the stay
Motions to lift the stay must comply with the various rules. The most common type of motion in consumer bankruptcy practice is a motion to lift the stay. Such motions are typically brought by a secured creditor, such as a mortgagee or auto lender, because the debtor has fallen behind with his or her payment obligations.
Beware the unexecuted contract: It may be enforceable
Attorneys and dealmakers beware: if a court in the Southern District of New York has its way, it may soon be possible to force a party to perform obligations set forth in a contract it never executed. In an opinion by Judge Richard Owen in July 2003, that surely caused many sleepless nights for transactional practitioners, the Court handed down a decision that raises many questions and is disquieting to those who hold to the belief that until both sides "sign on the dotted line," there is no deal. This article summarizes the District Court's decision, the subsequent vacatur of this decision by the Second Circuit, and suggests ways in which attorneys can avoid the pitfalls of Judge Owen's decision, client embarrassment, and potential malpractice claims.
Chaos in federal sentencing How Blakely v. Washington has altered the landscape
On June 24, 2004, the United States Supreme Court sent tremors through the world of federal sentencing with its much publicized decision in Blakely v. Washington.1 Although Blakely itself addresses the unconstitutional aspects of the State of Washington's sentencing guidelines, Washington's sentencing scheme is so similar to the United States Sentencing Guidelines that the Blakely decision has created "confusion and inconsistency" in the federal courts.2 In the weeks that have followed, courts all over the country have struggled with the Blakely decision's meaning, implications and applicability. Almost every day new federal district and circuit court decisions based upon Blakely are released. "Blakely blogs" have sprung up on the internet keeping lawyers updated on the latest decisions, articles and commentaries regarding Blakely.3 In this article, I will attempt to lay out the major implications of the Blakely decision and the questions it raises. By the time this article is publishe
Buying at foreclosure sales: pitfalls explained
This is one of the truly common questions posed to attorneys: "I want to buy a property at a mortgage foreclosure sale; are there problems, and what do I need to know?" Of course the expectation is that there is money to be made buying at a distress sale. Sometimes this surmise is correct, sometimes not. But this exploration is designed to address these potentially significant and often obscure problems .
Focus on Criminal Law United States v. Milikowsky: Can the impending doom of your client's business prevent his or her incarceration?
Since Nov. 1, 1987, sentencing of defendants convicted of crimes in the federal courts has been controlled by the Sentencing Guidelines promulgated by the United States Sentencing Commission. As the long line of high profile CEO's and executives who have been caught up in the tidal wave of corporate scandals get convicted at trial of, or plead guilty to, various frauds, embezzlements, and obstructions of justice, the Sentencing Guidelines will be looked at, analyzed and dissected by talk show pundits and the media.
Focus on Criminal Law Back to the future: Crawford v. Washington
Like the "Big Bang" theory on the creation and expansion of the universe, the United States Supreme Court issued its own "Big Bang" on March 8, 2004 when it re-created and contracted the universe regarding the admissibly of hearsay statements by unavailable declarants. In Crawford v. Washington, __ U.S. __, 124 S.Ct. 1354, the Court reversed Defendant's convictions for attempted murder and assault holding that the Confrontation Clause of the Sixth Amendment cannot be abrogated by an exception to the hearsay rule allowing a non-testifying declarants statements to be admitted into evidence at trial unless such exception, sui generis, exited historically prior to the enactment of the Confrontation Clause.
Consumer bankruptcy: A primer on adversary proceedings
Adversary proceedings. Even what appears to be the simplest Chapter 7 consumer bankruptcy filing may result in an adversary proceeding which is basically a federal lawsuit brought within a pending bankruptcy proceeding. The Bankruptcy Rules provide that certain contested matters in bankruptcy proceedings must be litigated in this way. Bankruptcy Rule 7001 sets forth ten such matters. They include objections to discharge; determination of the validity, priority, or extent of a lien or interest in property of the estate; actions to recover property of the estate; and proceedings to sell property in which the debtor is only a part owner. Bankruptcy Rule 7001, et. seq., sets forth all of the rules applicable to adversary proceedings.
FOCUS ON MATRIMONIAL/FAMILY LAW Elements of a valid marriage
The validity of a marriage in New York derives mainly from its status as a civil contract to which the consent of parties, who are capable at law of making a contract, is essential.1 This definition of marriage became law in 1909, and remains the threshold definition.2 A valid marriage is subject to regulation by New York State and confers upon the parties thereto certain liabilities and benefits. Marriage is not, however, a contract, protected by the constitution against impairment by the states of the obligation of contract (U.S.C.A. Const. Art. 1 § 10, cl. 1) Therefore, rights which derive from the marital relationship may be modified or terminated without violating provisions of Federal or State Constitutions which guarantee due process of law.
FOCUS ON MATRIMONIAL/FAMILY LAW What constitutes child abuse or neglect?
§1012(e) defines an "abused child" as a child less than 18 years of age whose parent or other legally responsible person for his care inflicts or allows to be inflicted upon such a child physical injury by other than accidental means which causes or creates a substantial risk of death … or protracted impairment of physical or emotional health … or creates or allows such risk to be created. Section (f)(i) defines a "neglected child" as a child less than 18 years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other legally responsible person to exercise a minimum degree of care, (A) in supplying the child with adequate food, clothing, shelter or education … or medical care, though financially able to do so; or (B) in providing the child with proper supervision or guardianship … including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by a
Are undocumented aliens barred from collecting lost wages in personal injury suits?
The answer to this question may no longer be clear. I currently represent the estate of an undocumented alien who died as a result of an automobile accident. During a mediation conference my adversary presented the mediator with the recent trial court decision in Majlinger v. Cassino Construction Corp., 1 Misc. 3d 659, 766 N.Y.S.2d 332 (Sup. Ct. Richmond Co. 2003), which appeared to reverse decades of case law and New York State public policy permitting undocumented aliens to collect future lost wages in personal injury actions.
A refresher on children's testimony:
A rather unusual hearsay ruling in a recent Ulster County County Court sex abuse trial allowing the hearsay allegations of a three year old provides good reason to review the law on children's testimony in civil, criminal and family trials. In the upstate case of People v. Potter, 1 Misc. 3d 495, 765 N.Y.S.2d 236 (Co. Ct., Ulster Co., 2003), the trial judge, Frank J. La Buda, allowed the mother of her allegedly abused three year old daughter to testify as to the statements her daughter made to her, even though the child herself would not testify. The prosecution offered the statements as recent outcry exceptions to the hearsay rule and the defense objected. Judge La Buda allowed the testimony, ruling that "The law in the State of New York is clear that evidence from either the victim, or any witness who heard the victim, is admissible concerning the prompt complaint or outcry of sexual abuse," citing People v. McDaniel, 81 N.Y.2d 10, 595 N.Y.S.2d 364 (1993) and People v. Rice, 75 N.Y.2
Focus on Business & Corporate Law Is there a fiduciary relationship between franchisor and franchisee
In franchise litigation, it is not uncommon for franchisees to argue that a fiduciary relationship exists between them and their franchisors. Such an argument is most often advanced in an attempt to impose upon the franchisor duties that do not appear in the franchise agreement, including unwritten disclosure obligations in connection with the sale of the franchise. A fiduciary duty requires the fiduciary to act with "the highest kind of loyalty"1 and, generally speaking, does not result from an arms-length business relationship. Applying that principle, the Appellate Division, Second Department,2 as well as the vast majority of state and federal courts, have held that a franchise relationship generally is not fiduciary in nature. Recently, two Nassau Supreme Court judges reached the same conclusion.
Class action arbitration in New York after Green Tree Financial v. Bazzle
To limit litigation costs and exposure, many corporations have included mandatory arbitration clauses in their standard contracts. This approach faces increasing resistance, particularly from the plaintiffs' bar. Some plaintiffs have sought to invalidate arbitration agreements that did not provide for class actions, while others have sought to bring a class action within arbitration. The varied responses of different courts to these challenges have created considerable uncertainty. The U.S. Supreme Court's grant of certiorari in a case last year gave hope that the issue would be resolved under the Federal Arbitration Act (9 U.S.C.§1 et seq.) (the "FAA"). However, the resulting decision in Green Tree Financial Corp. v. Bazzle, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003), by a fractured court, with four separate opinions, failed to produce the desired clarity.
FOCUS ON BANKRUPTCY Truth & consequences: analyzing a company's collateral reporting
The degree and extent of the fraud or manipulation of collateral depends on the motive and extent to which the Company needs funds. A Company's principals may attempt to manipulate the Company's collateral in order to gain collateral availability, which would enable the principal to borrow more money from the lending institution. The Company may need additional availability because of either a decrease in cash flow due to losses or increase debt load, or an increase in stockholder loans or distributions to cover personal obligations (e.g. a personal margin call or stock losses)
FOCUS ON BANKRUPTCY Caveat lender: Why the race to record real property interests still matters
A common occurrence in the current home-buying and refinancing frenzy is that a mortgage will not be recorded with the County Clerk's office until several months after the signing of the closing documents. This may be the result of a lackadaisical attitude on the part of the mortgage company, a backlog in the County Clerk's office or a panoply of other reasons. In the vast majority of cases this will have no effect on the interests of any of the parties involved in the transaction. In some instances, however, the lag time in recording a mortgage can have extreme consequences, specifically where a bankruptcy petition is filed by the owner of the property subsequent the mortgage closing but before the mortgage company records with the County Clerk.
Operation of law expands minimum auto policy limits
The statutes governing the amount of insurance coverage required in a motor vehicle liability policy since Jan. 1, 1996 clearly and explicitly require, at a minimum, "twenty-five thousand dollars [$25,000] because of bodily injuries to and fifty thousand dollars [$50,000] because of death of one person in any one accident and, subject to said limit for one person, to a limit of fifty thousand dollars [$50,000] because of bodily injury to and one hundred thousand dollars [$100,000] because of death of two or more persons in any one accident, and to a limit of ten thousand dollars [$10,000] because of injury to or destruction of property of others in any one accident . . . ." See, VTL §§ 311(4); 345(b)(3). The same minimum statutory requirements apply to uninsured motorist coverage as well. See, Ins. L. § 3420(f)(1). The law also allows insurers to write policies of bodily injury liability and/or uninsured motorist coverage with "combined single limits," which include coverage for multip
Beyond the Coleman Stipulation: Assessing comes of age in Nassau County
Nassau County recently committed over $30 million to complete the mass appraisal and reassessment of each and every residential and commercial tax parcel within its borders for the 2003/04 tax year. Mass appraisal has been defined as the "process of valuing a universe of properties as of a given date, utilizing standard methodology, employing common data and allowing for statistical testing." Dictionary of Real Estate Appraisal, p. 224 (3d ed. 1993). Nassau's "universe" contained approximately 416,000 individual parcels: 366,000 single family homes (tax Class 1), 45,200 commercial parcels (tax Class 4), and 4,725 parcels improved with either condos, cooperatives or apartments representing thousands of individual dwelling units (tax Class 2).
More effective brief writing - Top 10 simple commandments
Equitably distributing licenses and degrees in a divorce
Eighteen years ago the New York Court of Appeals, in O'Brien v. O'Brien, ruled that a professional license acquired during a marriage is a marital asset subject to equitable distribution.1 Although the majority of states in the country do not agree with the O'Brien doctrine, the courts in New York have continued to hold that a professional license attained during a marriage is "a thing of value arising out of the marital relationship," and like other things acquired during marriage, is marital property.2 Since O'Brien, the state's lower courts have extended the rule to include all licenses, degrees and certifications which enhance the earning capacity of the holder, as well as the enhanced earning potential arising from professional distinction and celebrity status that pre-existed the marriage.3 It also has been established that in order for the license or degree to fit the description given in O'Brien, the coursework required for the license or degree must have been carried out durin
Recent tax law changes for conveyances by nonresidents
Members of the Bar who find themselves on the seller's side of a real estate transaction must be aware of recent changes in the Tax Law of New York State. A new statute, Article 22 Section 663, requires nonresident sellers to file an income tax return and pay the estimated tax before any deed, effective Sept. 1, 2003 or thereafter may be recorded. To facilitate this, the state created form IT-2663 (now called the Nonresident Real Property Estimated Income Tax Payment Form) and has amended the state transfer tax form (TP-584) by adding Schedule D thereto. The older version of TP-584 (prior to 7/03) will no longer be accepted.
New Brownfields cleanup program legislation enacted
On Oct. 7, 2003 Governor Pataki signed into law legislation substantially revising New York State's treatment of environmentally contaminated sites, known as "brownfields." The statute, known as the Brownfield Cleanup Act, is intended to establish clear standards for the cleanup and revitalization of brownfields, so that the abandoned properties can be remediated and redeveloped for productive use.
Ten simple steps for a smooth closing
This article is basic in nature and comes under the category of "things I didn't learn in law school, but I really need to know to earn a living." House closings are generally non-adversarial and not overly difficult. However, as is usually the case in the law, you must pay attention to detail and be prepared. After all, this may be the largest transaction of (and will certainly impact) your client's life. To help you be prepared, the following is a ten-step program (albeit not all inclusive) to guide you toward a smooth closing.
Establishing paternity in New York
Article 5 of the Family Court Act governs all paternity proceedings in New York. The family court is given exclusive jurisdiction in paternity proceedings. The purpose of a paternity proceeding is to determine if a particular male is the biological father of the child, and if so, to order support and make orders of custody or visitation as the Family Court deems appropriate.
FOCUS ON PERSONAL INJURY LAW Court of Appeals affirms validity of amended regulation 68
On Oct. 21, 2003, in In re Medical Society of the State of New York, NYLJ, p. 18 col. 1 (10/22/03), the Court of Appeals affirmed the Appellate Division, First Department's upholding of the revised No-Fault Regulations (Regulation 68), originally promulgated by the New York State Insurance Department in 1999. Although initially invalidated by the Supreme Court, New York County, in 2000 upon a joint challenge by the New York State Trial Lawyers Association, the Medical Society of the State of New York, and other public rights groups and individuals, a revised form of the these regulations have now been conclusively upheld as a lawful exercise of the Insurance Department's authority. Given the depth of the changes to the no-fault system effected by amended Regulation 68, it behooves all practitioners to become familiar with, at a minimum, the major provisions of Regulation 68.
IRS Attachment to Tenancy by the Entirety Interests
Asset Protection Advisors beware! Your entire world is about to turn upside down. Particularly if your clients have properties in multiple states. Traditionally, property ownership via tenancy by the entirety (TBE) has provided a certain level of protection to married couples. Currently, 26 jurisdictions recognize property ownership by TBE. It should be noted that New York State is one of those jurisdictions. TBE property is held through a unique single ownership via a unity of the tenants. Assets owned as TBE were considered held by the marital unit and were thus deemed protected from the third party creditors of one spouse. That was until April 2002, when the U.S. Supreme Court handed down its decision in United States v. Sandra L. Craft.
New legislation and the expansion of the IID
Last December, Governor Pataki signed into law Chapter 691 of the Laws of 2003. Effective on Sept. 30, 2003, this legislation will significantly expand the Ignition Interlock Device ("IID") Program in New York State. This new legislation targets persons convicted of driving while intoxicated ("DWI") (i.e., Vehicle and Traffic Law ["VTL"] §1192[2] or §1192[3]) more than once within a five year period ("repeat DWI offenders").1 Under this new legislation, courts sentencing repeat DWI offenders must require the installation of an approved IID on each vehicle owned by the convicted persons. This IID must remain installed during any period of licence revocation. Upon termination of such revocation period, the IID must remain installed for an additional period as required by the court. This article provides an overview of the IID Program, examining the impact of this new legislation on repeat DWI offenders.
Focus on Environmental Law Electricity and environmental law on Long Island
The blackout last August 14th is a sharp reminder that dependable electric service is critical to our daily lives and the normal functioning of our homes, offices and social order. Over the past century, Long Island, like New York and the nation, has become dependent on continuous electric energy delivered through transmission and distribution lines supplied by generators fueled with natural gas, coal, oil, nuclear fuel or hydroelectric power. Not until the lights go out do we reflect on electricity's importance. But when the lights are on, which is most of the time, electric service providers are favorite targets of critics who claim that transmission and generating facilities are unsightly and polluting, and that rates are too high.
SEQRA v. RLUIPA (When acronyms collide)
In December of 2002, the U. S. District Court for the Southern District decided the first case which dealt with the State Environmental Quality Review Act ("SEQRA") and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"). In Westchester County Day School v. Village of Mamaroneck,1 the Court initially addressed the merits of a motion to dismiss the RLUIPA complaint pursuant to Rule 12(b)(6) by the Village of Mamaroneck. In the end, RLUIPA seemed to deal SEQRA a blow on the issue of ripeness, but given the extenuating facts of the case, there is still an open question.
E-volving E-mail E-dicts
In an article in this journal two years ago, I offered the modest suggestion that "e-mail [was] emerging enormously in litigation."1 In the two years since, courts have started to shape the evolving law, guiding parties and their counsel on their obligations to preserve, search for, produce and pay for e-mail discovery.2 By now, it should be clear to any litigator that e-mail and electronic discovery are important not only in the headline-grabbing "mega- cases," but in virtually any present-day case. In view of the common and prevalent use of e-mail, even in small, closely-held businesses, the importance of e-mail discovery and evidence cannot be overlooked or underestimated. Indeed, the recent case law shows that neglecting the significance of e-mail could have serious repercussions.
Sticks and stones may break my bones, but names may not be actionable
In or about April 1996, Mrs. Orner obtained a civil divorce in Canada and Mr. Orner moved to New York. Although he initially agreed to submit to the jurisdiction of the Vaad Harabonim of Queens Beit Din (a Jewish court), Mr. Orner purportedly ignored several summonses to appear and refused for more than three years to give his wife a Get. In May 2002, the Beit Din issued a "Siruv" (an Order) holding Mr. Orner in contempt, excommunicating him and decreeing that "the entire neighborhood is obligated to refrain from doing business or conducting any dealings with [him] . . . that he is not to be included in a minyan (an organized prayer group) and should be excluded from any synagogue that he may enter . . . ." The Jewish court also mandated that the "ban is to remain in effect until [Mr. Orner] changes his ways and submits to the authority of the Beit Din."
Focus on Criminal Law Court of Appeals update on criminal law
The Court of Appeals has been fairly busy in the last five months concerning a variety of issues. Conduct of defense attorneys has been the major issue of concern (Berroa, Harris, and Abar). In addition, several other issues such as Grand Jury minutes, show-up identifications, roadblocks, jury challenges, and the definition of dwelling have resulted in interesting decisions by the Court.
Focus on Criminal Law Grammar rules and criminal law update
Too many years ago, when I was a newly admitted young and foolish attorney, I slaved at a Manhattan law firm. One of the senior partners gave all the young associates a copy of the rules that follow. I do not know the author and take no credit, other than to say that these have helped me immensely in my meager attempts at writing.
Audit Committees after Sarbanes-Oxley
The Sarbanes-Oxley Act was enacted in July 2002 in the wake of the much publicized public company financial scandals. The Act and subsequent rules promulgated by the Securities and Exchange Commission (SEC) provide public company audit committee members with significantly increased responsibilities. Audit committee members will now be required to play a much more active role in the companies that they serve. They will be responsible for not only hiring and firing the auditor, but for overseeing their work, approving services provided by the auditor, and maintaining a system whereby employees can inform them of accounting and auditing issues.
HMO's can be sued in the The Second Circuit
In a decision of substantial magnitude, the Second Circuit Court of Appeals has dramatically expanded patients' rights by allowing suits against HMOs for wrongful denials of care to proceed in state court. This ruling of first impression eliminates the federal preemption that had previously prohibited patients and their families from holding HMOs responsible for their actions in determining what care is medically necessary.
FOCUS ON LAW PRACTICE MANAGEMENT Employment pitfalls for unwary law firms
Attorney offices are places of business and subject to virtually all of the relevant labor and employment requirements embodied in Federal law and mirrored in State law. Regrettably, many offices are like the proverbial "shoemaker's children who have no shoes" – busy doing the work but not paying the requisite attention to the rights of those employed. This article suggests some of the more obvious areas in which law offices have failed to properly insulate themselves from employee suits.
Judicial review of administrative land-use determinations: The standard of review under article 78 of the CPLR
Judicial review of administrative decisions, including land-use determinations made by local zoning authorities, is fairly limited. Pursuant to Article 78 of the CPLR, courts may only overturn such determinations if they find that they are "arbitrary and capricious" and not supported by "substantial evidence." See CPLR 7803(3). As applied by the courts, this standard is extremely deferential to the determinations of local zoning authorities. In Pell v. Board of Education, 34 N.Y.2d 222 (1974), the New York Court of Appeals stated that there is not much distinction between the "arbitrary and capricious" test and the "substantial evidence" test. Under both tests the courts must determine whether the administrative action was "rational." According to the Court in Pell, arbitrary action, the antithesis of rational action, is action "without sound basis is reason and . . . generally taken without regard to the facts" or "without foundation in fact."
Mootness and zoning appeals
Most often Article 78 proceedings are brought against zoning boards to challenge the denial of an application, whether it be for the denial of an area variance to construct a house, or the denial of a special use permit for the construction of an addition to a shopping mall.1 Proceedings are also brought, however, by neighboring property owners to challenge the grant of a variance or a special use permit. An important consideration taken into account by courts in these instances is whether the challenge has been rendered moot. A recent case decided by the Court of Appeals focused on this very issue.
What, when and what if of board of appeals' findings of fact
It is a firmly established principle of law that absent findings of fact, intelligent judicial review of a decision of a zoning board of appeals is foreclosed. Greene v. Johnson, 121 AD2d 632, 503 NYS2d 656 (2d Dept. 1986). However, the principles regarding the adequacy of findings of fact and the proper time for issuance of findings of fact appear not to be so firmly established in the procedures of local boards of appeals. A discussion of these issues must begin with a review of the applicable statutes (Town Law §267 et seq., Village Law §7-712 et seq., General City Law §81 et seq.).
FOCUS ON SURROGATE & ESTATES New law: Surrogate end of life decision making
On March 16, 2003, the Health Care Decisions Act for Persons with Mental Retardation will become law1. This Act, which amends Surrogate Court Procedure Act §1750 by adding §1750-b, permits a guardian appointed under SCPA 17-A for a mentally retarded person to address end of life decisions for their ward. The new law addresses removal or refusal of life support including artificial nutrition or hydration (feeding tubes) and contains a very detailed section on the standards for making those serious decisions. There is no comparable section in 17-A for guardians of developmentally disabled person. The new section excludes corporate guardians (such as a nonprofit organization appointed under 17-A) from the independent authority to make end of life decisions.
Mandatory pre-dispute arbitration: 2003 update
On March 21, 2001, in Circuit City Stores Inc v. Adams,1 the United States Supreme Court upheld the enforceability of mandatory pre-dispute arbitration agreements in employment contracts and employee handbooks that require the arbitration of statutory claims under the Federal Arbitration Act (FAA).2 Although the Court did not address the contents of such agreements, numerous lower court decisions, both state and federal, require that the arbitration procedures be fair and afford employees due process. What is “fair”3 and “due process”4 in the arbitration context will have to await judicial clarification.
New York’s new law on construction contracts
On July 18, 2002, the New York State Legislature added a new Article 35-E (§§756-758) to the General Business Law which governs when and under what circumstances Owners, Contractors and Subcontractors (defined) must pay or may withhold payments due, respectively, Contractors, Subcontractors or Material Suppliers on a construction job. The new law went into effect 180 days after its passage, i.e., on Jan. 14, 2003 (“Effective Date”). It applies to all Construction Contracts (defined) which are entered into on or after the Effective Date for work which is first begun after the Effective Date where the work, equipment or service equals or exceeds $250,000.00. Generally, the new law applies to non-public commercial and large residential development projects in New York State.1 §757 makes void any contract provisions (except with a Material Supplier) which subjects the Construction Contract to the laws of a state other than New York or requires a dispute resolution to be held outside New Yo
New law simplifies procedures for non-party discovery
On Sept. 24, 2002, Governor Pataki signed a law 1 designed to simplify the process of obtaining discovery from non-party witnesses. The law also establishes a procedure for admitting business records obtained from non-parties into evidence at trial or hearing without the need of live testimony from a “foundation” witness. The new law, effective Sept. 23, 2003, amends three sections of the Civil Practice Law and Rules (“CPLR”) and adds a new section altogether.
Focus on Matrimonial/Family Law A practical guide to cross-examination at trial
Successful cross-examination is a combination of native ability and preparation. An attorney interested in doing trial work likely possesses the necessary innate talent to be a successful cross-examiner. While the practitioner will likely improve his or her ability to cross-examine throughout a career, thorough planning and preparation can produce effective cross-examination at the outset.
Focus on Matrimonial/Family Law Grandparent visitation rights in New York post Troxel
In the year 2000, the United States Supreme Court issued a decision in the case of Troxel v. Granville 1 in which a Washington State grandparent visitation statute was declared unconstitutional. In reaching this determination, the United States Supreme Court declared that a parent possesses a fundamental liberty interest in the care, custody and control of their children.2 The Court further ruled that so long as a parent is fit and adequately cares for his or her children, there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.
Leases and bankruptcy: What happens if the landlord files for bankruptcy protection?
In general, Section 365 of the Bankruptcy Code (the “Code”) affords a trustee or a debtor in possession certain rights far greater than those available outside of bankruptcy. This Section allows a trustee or debtor-in-possession a somewhat unfettered right to assume or reject executory contracts or unexpired leases. Section 365 even goes so far as to supplant certain restrictions or provisions contained in the body of the underlying contracts or leases that might otherwise limit assumption or assignment. It is for this reason that Section 365 provides additional protections for parties to certain types of agreements. The focus here is on the owner/landlord who seeks protection by filing for relief under Chapter 11 of the Code and such entities’ effort which restrict a debtor’s unfettered right as to reject a real estate lease thereby divesting itself of an undesirable or below market lease. The advice here is equally applicable to equipment or personal property operating leases where
Are you my father?
At the opening of the 20th century, the New York State Courts looked to English case law for counsel on when the presumption of legitimacy – one of the strongest and most persuasive known to the law – might be rebutted. The English case law advised, contrary to reason, that “if a husband not physically incapable was within the four seas of England during the period of gestation, the Court would not listen to evidence casting doubt on his paternity.”
Fore! Is a golfer liable for his lousy shots?
It is the middle of winter and thoughts wander to those beautiful spring and summer days when time can be spent on the golf course. The distinctive sound of the club hitting the ball. Watching the ball in flight. Seeing it hook and landing a few feet from a player standing on the adjacent fairway. It makes one wonder – is there liability for hitting another golfer with a ball during a round of golf?
The mind of a juror in a negligence case
Can attorneys influence how jurors respond to their case and thus affect the final verdict? Yes, but not necessarily in the manner that they expect. The process of selection and persuasion of jurors sits squarely on the intersection of psychology and law. This is an important and extensive intersection since both law and psychology involve all aspects of human interaction. Yet, the coexistence of these two fields often involves contradictions, conflicts and misunderstandings. This occurs, in part, because psychologists and attorneys are taught to think in divergent ways. The attorney bases professional judgments on precedents set by judges’ rulings which are increasingly refined and detailed. Such rulings seek to provide clear and definite rules which may then be applied to other cases. These rulings, though made by people, may nevertheless ignore human nature. For example, although courts have ruled against discrimination, people still carry prejudice with them which cannot be banishe
What insurance companies wish attorneys knew
In a perfect world, there would be no need to engage in the complex and increasingly arduous process of personal injury litigation. The reality is, however, that people are injured every day and seek compensation for those injuries. Whether or not they are entitled to the damages they seek is the question permeating the entire process, from the moment the first claim is made to the defense carrier, through the pleading and discovery stage, in pre-trial conferences and negotiations, and finally, if the case is not settled, up until that determination is made by the trier of fact.
The ABCs of workers' comp for the personal injury lawyer
Issues of workers’ compensation law invariably find their way into many personal injury cases. There are fine points of law, statutory requirements and practical applications, for which one is best advised to consult the Workers’ Compensation Law (WCL), the Workers’ Compensation Board (WCB) and/or an attorney who specializes in the field. However, what follows are workers’ compensation ABCs for the plaintiff and defendant personal injury attorney.
New legislation addresses predatory mortgage lending
Do existing mortgage foreclosure statutes (Article 13 [Sections 1301] to 1391 of the Real Property Actions and Proceedings Law and Banking Law Article 1) provide mortgagor-borrowers with the due process and equal protection of law requirements guaranteed by the Constitutions of the United States and the State of New York? This writer has doubts, questions and recommendations for amendments to these and other laws, including related sections in the CPLR, General Business Law, RPAPL and Banking Law.
Proving a real estate broker’s right to a commission
Attorneys representing sellers, landlords or real estate brokers are often called upon for advice regarding the broker’s right to a commission, or the amount of any commission due, many times under circumstances where the extent of the broker’s involvement in the transaction is disputed. This article presents an overview of the elements that need to be considered in establishing or disproving a real estate broker’s commission claim.
A primer on reverse mortgages: How the benefits can change your clients’ lives
New York has recognized reverse mortgages for about a decade. Until now, relatively few seniors have taken advantage of their features. The opportunities inherent in reverse mortgage financing are finally starting to be noticed by seniors and their accountants, elder law and estate attorneys, and financial planners.
Jury waivers: an alternative to arbitration
In the wake of several United States Supreme Court decisions, many employers have implemented mandatory arbitration procedures in order to avoid costly federal and state law employment discrimination trials. The idea that arbitration offers a cheaper alternative and avoids the possibility of a “runaway jury” has considerable appeal for employers who are now subject to a host of employment discrimination and other workplace protection statutes.
Disability insurance under ERISA It’s not your ordinary state contract claim
Disability insurance is one of those precious protections that is intended to be available at those times when life throws us a curve ball that could jeopardize our ability to provide for ourselves, our family and our loved ones. Many disability insurance companies, however, are becoming increasingly more aggressive in denying claims, forcing insureds to enforce their legal rights in formal litigation. Indeed, there has been an explosion in recent years of reported decisions concerning disability insurance claims. Lawyers that intend to assert and enforce such claims should be aware, however, that enforcing a disability insurance policy may not be as straightforward as it seems. If, for example, the disability insurance arises from an employer-sponsored plan, the insured’s rights are likely to be governed by the Employee Retirement Income Security Act of 1974, commonly known as “ERISA.”
New York’s a holdout against the majority Employee access to personnel files and reference-giver protection
Granting employees access to their personnel files and candid job references by employers are statutorily protected activities in most states. New York is not among one of those states. In fact, New York has consistently been among the minority of states that have yet to enact legislation regarding either access to personnel files or protection for employers giving honest references. Almost all states, including some of the most populous ones such as California, Massachusetts and Pennsylvania, currently have laws or regulations giving individuals the right to inspect their personnel files, but some with restrictions. At least thirty-six states grant some degree of statutory protection to reference givers.
Independence Day comes early for local zoning boards
The Appellate Division, Second Department of the New York State Supreme Court had a rough day on July 1, 2002 when the New York State Court of Appeals reversed three of its decisions in cases dealing with zoning determinations made by local municipal boards. In each case, the Court of Appeals reversed the Appellate Division and reinstated the decision of the local zoning board that denied the zoning relief requested by the applicant/developer. The three cases decided were: Ifrah v. Uschig, 2002 Lexis 1881, Matter of Retail Property Trust v. Zoning Board of the Town of Hempstead, 2002 Lexis 1882, and Matter of P.M.S. Properties Ltd. v. Zoning Board of Appeals of the Village of Pleasantville, 2002 Lexis 1883.
Appellate Practice 'Affirmed on other grounds'
The familiar expression, "If it ain't broke, don't fix it", does not necessarily apply when representing a respondent on appeal. This is because an argument that succeeded below may not be persuasive to the reviewing court. To increase the odds of obtaining an affirmance, counsel for respondent should present not only the ground which was cited by the lower court as the basis for its decision, but every ground upon which an affirmance could be based. The appellate court may affirm the order or judgment for reasons that are different from those which were cited by the lower court as the basis for its decision.
Real property re-assessment: Now is the time for taxpayers to protect their rights
As the tax-paying Nassau County residents know full well by now, Nassau County has been sending new assessment "Tax Impact Notices" to the County's 420,000 parcel owners for the past few months. As discussed further below, it is more critical than ever that Nassau County property owners seek assistance from experienced legal counsel to make sure that the new taxes imposed are consistent with the complex web of applicable legal rules.
Focus on Criminal Law
The Court of Appeals has published several decisions that those who practice criminal law would find of great significance. The following are a few of the more prominent decisions that have been made this year concerning criminal procedure and sentencing.
Street encounters made simple
The leading New York case on street encounters is People v. De Bour,1 where the Court of Appeals set forth four levels of permissible police conduct when confronting individuals on the street.
Prosecutors and defense counsel take note of recent changes
New hearsay exceptions, declining to rein in the trial court’s discretion in Sandoval hearings and confusion over the application of Frye to expert testimony are just a few of the recent Court of Appeals holdings which should interest prosecutors and defense counsel.
Durable powers of attorney: practical considerations
Durable powers of attorney have been authorized in New York since 1975 under the New York General Obligations Law, §§5-1501(1) and 5-1505(1). A power of attorney is durable if it contains language that the document will survive the incapacity of the principal (§5-1505(1)). The durable power of attorney allows an individual to put in place substitute financial management and decision-making. If the principal does become incapacitated, the document is likely to avoid the need for a guardianship proceeding under article 81 of the Mental Hygiene Law which can at times be costly, complex and difficult. Of course, the durable power of attorney must be properly executed while the principal still has capacity. Durable powers of attorney are a key element in planning for disability and this is why, as elder law attorneys, we discuss durable powers of attorney with most of our clients. Our client discussion includes several important issues: who will be appointed as agent; what powers to give to
IRS issues final rules on distributions from retirement plans and IRAs
On April 16th the Internal Revenue Service announced final regulations covering distributions from deferred compensation and IRA accounts. These final regulations were issued some 27 years after the enactment of ERISA and almost 15 years after proposed regulations were issued in July, 1987. In the interim, the proposed regulations were amended in 1997 and 2001. These final regulations encompass the changes that were proposed in 1997 and 2001, as well as suggestions made by attorneys, accountants and other financial specialists in retirement planning. These final regulations greatly simplify the process of determining who is a Designated Beneficiary of an IRA and how the required minimum distribution (RMD) is determined.
Living wills and health care proxies
As a result of today's advanced medical technology, we are faced with the possibility of being asked to make difficult decisions regarding life sustaining treatment and extraordinary medical treatment.
Representing doctors/employees in employment agreements
Physicians newly entering private practice often must negotiate an agreement with a medical group or other private entity. The following are common concerns. Spell out all terms of employment as specifically as possible, regardless of whether the prospective employee trusts or likes his prospective employer. Relationships change; economic circumstances change; people die and become disabled; new parties may enter the picture. Relying upon others' memory or good-will leads to litigation. Once a dispute arises, it is difficult to negotiate any acceptable agreement.
Corporate healthcare transactions: Avoiding crimes, dismissals and embarrassment
In today's complex legal healthcare world, it has become increasingly more important for lawyers in one practice group to consult with specialists in other areas of the law to ensure that all of the legal implications of a client's particular situation are understood and properly addressed. A recent decision of the Supreme Court, New York County, is a perfect example of the importance of coordinating the specialties of a law firm's different practice groups in analyzing and implementing a comprehensive legal plan that is best suited to protect the client. As explained below, effective use of corporate, healthcare, litigation and criminal practitioners could have avoided a very costly, embarrassing ? and criminally and professionally volatile ? situation.
Supreme Court decides three cases affecting employers
The United States Supreme Court recently decided three cases of particular importance to employers.
Legal Weapons Against Telemarketers (Part II)
Live Telephone Calls The federal Telemarketing and Consumer Fraud and Abuse Prevention Act was enacted by Congress in 1994 (15 USC § 6101 et seq) to address the problem of telemarketing fraud which was costing the American public an estimated $40 billion per year (15 USCS § 6101[3]).
Ministering to clients' needs in post-Sept. 11th America
In addition to the other profound changes in the lives of most Americans caused by the events of Sept. 11, 2001, there has also been a clear shifting of the legal landscape involving people's concerns as to what will become of the families and property of persons who are suddenly killed, missing or severely disabled as a consequence of a terrorist attack.
The Nassau Lawyer
Several recent changes affect both domestic and international pursuit of patents. This article will highlight certain of the most significant changes:
The hidden battle: Determining whose last name children born out of wedlock should bear
The parents of children born out of wedlock are faced with a multitude of important and life-altering issues. Establishing paternity, custody, visitation, child support, medical insurance and life insurance1 are just a few of the obvious examples. The children born out of such relationships are also fraught with numerous challenges such as confusion, alienation, embarrassment and the stigma that continues to attach to children whose parents are never married, and who no longer, or perhaps never resided together in the same household.
Matrimonial and Family Law Update
During the past year there have been several statutory, court rule and case law developments in matrimonial and family law. These developments include the following:
Legal weapons against telemarketers
During the last decade, telemarketing has come under increased regulation as a series of statutes was enacted by Congress and the legislatures of various states, including New York. There are few reported cases construing these new statutes. This may be due, in part, to a lack of public awareness of the available remedies. Part one of this article discusses automatic telephone dialing systems and junk faxes. Part two will discuss live telemarketing calls.
Attorney fees and attorney-client fee disputes
This article will explore the current state of attorney-client mandated Fee Dispute arbitrations and conclude with some observations on how best to enforce and defend attorneys fees.
Durable powers of attorney: practical considerations
Durable powers of attorney have been authorized in New York since 1975 under the New York General Obligations Law, §§5-1501(1) and 5-1505(1). A power of attorney is durable if it contains language that the document will survive the incapacity of the principal (§5-1505(1)). The durable power of attorney allows an individual to put in place substitute financial management and decision-making. If the principal does become incapacitated, the document is likely to avoid the need for a guardianship proceeding under article 81 of the Mental Hygiene Law which can at times be costly, complex and difficult. Of course, the durable power of attorney must be properly executed while the principal still has capacity. Durable powers of attorney are a key element in planning for disability and this is why, as elder law attorneys, we discuss durable powers of attorney with most of our clients. Our client discussion includes several important issues: who will be appointed as agent; what powers to give to
Sports, steriods and the media
Preventing athletes from "cheating" with performance-enhancing pharmaceuticals and protecting teenagers from drug abuse are laudable societal goals. In their furtherance, the sports community, government agencies and a few physicians have for several decades waged a propaganda campaign against anabolic steroids. Regrettably, many of these well-intentioned statements have been exaggerated, misleading or simply false, resulting in a "demonized" view of anabolic steroids1 in the public perception and in the attitudes of key figures in the criminal justice system. Based upon what they have heard or read, many prosecutors and judges see no reason to distinguish between the relative dangers of "hard drugs" like cocaine and heroin and the inherent risks of steroids. Indeed, media reports of the death of sports figures like Lyle Alzado and tales of violent steroid-induced rages have provoked some jurists to perceive anabolic steroids as an even greater social menace than narcotics.
Summary of year 2001 real property legislation
During the 2001 sessions of the New York State Legislature, the following legislation affecting Real Property was passed, and signed into law by the Governor.
The Public Administrator's role in wrongful death actions
The office of the Nassau County Public Administrator has been in existence virtually as long as the Surrogate's Court itself. The position of Public Administrator was once held by Alphonse D'Amato, who subsequently become presiding Supervisor of the Town of Hempstead and later United States Senator. Yet many attorneys are unaware of the full scope of the Public Administrator's duties, and the manner in which the office might be of utility to others.
Focus on Real Estate - Tax Deferred Exchanges gaining popularity
Tax Deferred Exchanges (also referred to as 1031 Exchanges or "Like - Kind" Exchanges) are an underutilized tool for deferring taxes payable by real estate investment clients. The Tax Deferred Exchange is most popular on the West Coast, but is gaining in popularity in New York as more clients hold properties for investment purposes. An exchange can be a useful tool not only for transactions as simple as a one family house held for investment purposes, but for multimillion dollar commercial properties.
Focus on Real Estate
In December, 2000, Nassau Lawyer published my article on the practical tips for representing a Buyer in a typical real estate transaction. Hopefully, you have made it through that closing and last year's Buyer has turned into this year's Seller. This article reviews some practical tips for representing a Seller in a residential house closing.
Evidentiary issues involving digital photographs
The recent emergence of digital photography as an alternative to traditional "emulsive film" photography for capturing visual images has raised important evidentiary issues. An image produced by a digital camera can be manipulated, potentially without tell-tale signs of alteration, to produce an image that was never seen through the camera viewfinder. While the manipulation and alteration of photographs did not begin with the advent of digital cameras, for traditional photographs have long been the subject of alterations, it is the relative ease with which digital images can be altered that has raised concerns. Indeed, anyone with a personal computer and some affordable software can alter a digital image with the "point and click" of a computer mouse. From an evidentiary perspective, it is the lack of a photographic "negative," in contrast to traditional emulsive film photographs, that raises authentication and best evidence concerns.
Does "Virtual Child Pornography" harm actual children?
This term, in Ashcroft v. The Free Speech Coalition, Case No. 00-795, the United States Supreme Court will decide the constitutionality of the Child Pornography Prevention Act (18 U.S.C. §2256 (8) (2001)). The Act expanded the federal definition of "child pornography," making it a criminal offense to possess or distribute expressive material that "appears to be" or "conveys the impression" of minors engaged in sexually explicit conduct. This broader definition targets so-called "virtual child pornography," which, unlike traditional child pornography, includes sexually explicit images that were not created with actual minors but, instead, were created with computers. The end product is child pornography which is indistinguishable to the unsuspecting viewer from actual photographic images of real children engaging in sexually explicit conduct.
"Anti-Spam" legislation long overdue
In the past five years, junk e-mailers have been sued successfully, not by the individual recipients of such e-mails, but by certain electronic mail service providers. Those EMSPs have sued on the theory that the spam had trespassed upon their servers, placing an increased burden on their resources.1 For instance, in one case, it was shown that, over a 10 month period, the defendant had sent over 60,000,000 unsolicited e-mails to AOL customers which resulted in over 50,000 customer complaints.
Court of Appeals update: Recent criminal law decisions
People v. Marion Arnold, N.Y.L.J. 6/13/01 pg. 18, col 1 ___ NY2d ___ (June 12, 2001) (A must-read case!). The Court of Appeals here sets forth guidelines to determine juror bias, particularly in those cases when the juror's professional expertise could be an issue in the trial. In Arnold, the Court clarified two recent decisions of note: People v. Maragh, 94 NY 2d 569 (2000) (the impact of jurors with professional expertise sitting as jurors when their expertise could come into play) and People v. Johnson, 94 NY 2d 600 (2000) (potential jurors who state a potential bias must provide the Court with "unequivocal assurance" of their impartiality and ability to sit fairly on the case).
Children who commit criminal acts: Juvenile Delinquency
The family court has exclusive original jurisdiction over any proceeding to determine whether a person is a juvenile delinquent.1 Juvenile delinquency proceedings have a dual nature. While involving criminal conduct, the process itself is a civil proceeding. This is the result of early decisions to accord greater flexibility in responding to the wayward child than for the adult offender (see McKinney's Session Laws of NY, 1962, pp 3433-3434; Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Part 1, Family Ct. Act § 711, pp 548-549). The goal is not to punish a malefactor, but rather to supervise and guide a troubled youth (see McKinney's Session Laws, op cit; Besharov, op cit; see, also, People v Lewis, 260 NY 171, 176-177). References to the Criminal Procedure Law and the Penal Law are frequent, and the practitioner must be conversant with several sections of these statutes. For example, a juvenile delinquency proceeding must be commenced within the period of limi
Terrorism and civil liberties: Where do we go from here?
In the wake of the most devastating act of domestic terrorism in our Nation's history, the American people are seemingly of one mind when it comes to their resolve in hunting down the perpetrators and bringing them to justice. Indeed, the U.S. House and Senate have authorized President Bush to use "all necessary and appropriate force" against those responsible for the September 11 attack on the World Trade Center and the Pentagon. What is done overseas in the name of war is one thing, but in this Country the Fourth Amendment to the Constitution protects all "people," including aliens and illegal aliens, from unreasonable searches and seizures. The Fifth Amendment guarantees due process of law.
FEDERAL FORUM By Daniel F. De Vita
This monthly column will focus on the latest news, information, and practice developments in the Eastern District of New York. The Court in the EDNY serves nearly 8 million people, making it one of the busiest courts in the country. While burdened with the heaviest caseload of any U.S. District Court in the country, the hard working EDNY Bench consistently produces decisions on the cutting edge of federal civil and criminal practice. This column will help keep practitioners abreast of those decisions.
Notwithstanding any errors that may have been committed during a trial, an appellate court will generally not order a new trial if, upon a review of the entire record, 1 it appears that the trial was fair. In such a case, the error is said to be "harmless". "Harmless error" is shorthand for the notion that the error did not unduly prejudice the appealing party, i.e., that the court is satisfied that it did not affect the outcome.
Search and Seizure decision: Illegal custody requires suppression
Defendant is charged with Criminal Possession of a Weapon in the Third Degree (Count 1 and 2); Criminal Possession of Marijuana in the Fifth Degree (Count 3) and Unlawful Possession of Marijuana (Count 4.) By Stipulation in Lieu of Motions dated July 10, 2000, Defendant requested and the People consented to a Huntley hearing regarding a written admission given by Defendant to police on November 7, 1999 and to a Mapp hearing regarding marijuana and a 9mm semi-automatic pistol seized at the time of his arrest. A hearing was held at which time Defendant withdrew his Huntley application and proceeded solely on the Mapp issues. Based on the hearings held in this case, the Court now makes the following Findings of Fact and reaches the following Conclusions of Law.
Previous Court of Appeals case updates By Robert G. Bogle
Proposed regulations for qualified plans and IRAs. By Howard M. Sterces
On January 11, 2001, the Internal Revenue Service, without warning, changed the rules for determining required minimum distributions from IRAs, 401(k)s, 403(b)s, and other qualified plans.1 The new rules are much simpler, and substantially reduce amounts which must be withdrawn each year. IRAs and qualified plans will now be even more important than ever in accumulating wealth. Following is a summary of the new rules in question and answer form.
Know before you go - distributing options equitably
KNOW BEFORE YOU GO - DISTRIBUTING OPTIONS EQUITABLY BY NANCY E. GIANAKOS Lest you think you are immune from this quagmire that plagues the matrimonial bar and bench, think again. In 2001, it was estimated that Americans holding stock options numbered 10 million, and with the growth in popularity among employers and employees of this form of compensation for past and future service, rest assured that the next client with a stock option distribution issue is just outside your door.
'Trust' in your marital agreements: Overlooked planning opportunities
Providing financial security for a spouse or children through life insurance is an effective and frequently used technique in estate planning as well as in the context of marital agreements. Pre- and post-nuptial agreements, separation agreements and stipulations of settlement routinely require one or both spouses to maintain life insurance for the benefit of those for whom there is, or otherwise would be, an obligation to support.
Bennett v. Jeffreys: Child's best interest is paramount, but secondary
In determining an issue of custody between two parents, the court must look at the totality of circumstances, and consider, inter alia, the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent.
Second Dept. Provides a New Tool for DWI Investigators
Imagine if there was a Constitutionally mandated hearing available within days of an arrest where the prosecutor was not allowed to participate and the defendant's legal counsel had the right to confront the arresting officer and test probable cause, and in this county, it was never utilized. You would be justified in challenging the competence of defense counsel, and if requested and denied, the competence of the local judiciary. Such a state of affairs currently exists in this county.
DWI: Pre-Conviction License Suspension: Pringle Hearings
Imagine if there was a Constitutionally mandated hearing available within days of an arrest where the prosecutor was not allowed to participate and the defendant's legal counsel had the right to confront the arresting officer and test probable cause, and in this county, it was never utilized. You would be justified in challenging the competence of defense counsel, and if requested and denied, the competence of the local judiciary. Such a state of affairs currently exists in this county.
Update on Criminal Legislation and Collateral Consequences
Any attorney who represents criminal clients on a fairly regular basis has, at some point, been asked by a client how the disposition of the case will affect his current employment status or any potential future job opportunities. Conun-drums such as these are known as collateral consequences and can be unintended, unexpected and more devastating then the sentence handed down by the Court.
New York State passes its own WARN Act
On August 5, 2008, Governor David Patterson signed into law the New York State Worker Adjustment and Retraining Notification (WARN) Act. The law goes into effect 180 days after enactment. It generally parallels the federal WARN Act but provides for longer notification periods and covers smaller employers. The New York Warn Act is a new Article 25-A to the New York Labor Law.
New York State passes its own WARN Act
On August 5, 2008, Governor David Patterson signed into law the New York State Worker Adjustment and Retraining Notification (WARN) Act. The law goes into effect 180 days after enactment. It generally parallels the federal WARN Act but provides for longer notification periods and covers smaller employers. The New York Warn Act is a new Article 25-A to the New York Labor Law.
On August 5, 2008, Governor David Patterson signed into law the New York State Worker Adjustment and Retraining Notification (WARN) Act. The law goes into effect 180 days after enactment. It generally parallels the federal WARN Act but provides for longer notification periods and covers smaller employers. The New York Warn Act is a new Article 25-A to the New York Labor Law.
On August 5, 2008, Governor David Patterson signed into law the New York State Worker Adjustment and Retraining Notification (WARN) Act. The law goes into effect 180 days after enactment. It generally parallels the federal WARN Act but provides for longer notification periods and covers smaller employers. The New York Warn Act is a new Article 25-A to the New York Labor Law.
On August 5, 2008, Governor David Patterson signed into law the New York State Worker Adjustment and Retraining Notification (WARN) Act. The law goes into effect 180 days after enactment. It generally parallels the federal WARN Act but provides for longer notification periods and covers smaller employers. The New York Warn Act is a new Article 25-A to the New York Labor Law.
In Pachter v. Bernard Hodes Group, Inc., 2008 NY Slip Op. 5300 (June 10, 2008), the New York State Court of Appeals answered two important questions concerning the scope of the protections afforded by Article 6 of New York State Labor Law (“Article 6”). Specifically, the Court held that (1) an “executive” falls within the ambit of the protections afforded to “employees” under §§ 190 and 193 of Article 6, which generally prevent deductions from compensation, and (2) whether a “commission” has been earned, and therefore has become a “wage” subject to the prohibition on deductions in §193, is governed by the parties’ express or implied agreement. Pachter will have implications for executive compensation and commission arrangements that are subject to New York State Law.
In Pachter v. Bernard Hodes Group, Inc., 2008 NY Slip Op. 5300 (June 10, 2008), the New York State Court of Appeals answered two important questions concerning the scope of the protections afforded by Article 6 of New York State Labor Law (“Article 6”). Specifically, the Court held that (1) an “executive” falls within the ambit of the protections afforded to “employees” under §§ 190 and 193 of Article 6, which generally prevent deductions from compensation, and (2) whether a “commission” has been earned, and therefore has become a “wage” subject to the prohibition on deductions in §193, is governed by the parties’ express or implied agreement. Pachter will have implications for executive compensation and commission arrangements that are subject to New York State Law.
On July 31, 2008 at 3:45 p.m. it was finally over. Four years of evening law school, followed by eight weeks of bar review instruction and then two weeks of cramming and seclusion, all culminating in three straight days of testing. I had reached a major plateau on the way to legitimacy as a practicing attorney; I completed the bar examinations for New York and New Jersey. I now wait along with my fellow “examination sitters” and future colleagues of the Bar, optimistically hoping that I showed the right stuff on my essays by carefully identifying the issues presented, specifying with particularity the black letter law to apply, and then artfully layering in the facts to the application of the law in a legal analysis that would be the envy of Benjamin Cardozo. But that in itself would not be enough, because a successful Bar candidate also has to learn to navigate his or her way through the mean streets that comprise the nether world of the Bar examiners. This world is presented to th
On July 31, 2008 at 3:45 p.m. it was finally over. Four years of evening law school, followed by eight weeks of bar review instruction and then two weeks of cramming and seclusion, all culminating in three straight days of testing. I had reached a major plateau on the way to legitimacy as a practicing attorney; I completed the bar examinations for New York and New Jersey. I now wait along with my fellow “examination sitters” and future colleagues of the Bar, optimistically hoping that I showed the right stuff on my essays by carefully identifying the issues presented, specifying with particularity the black letter law to apply, and then artfully layering in the facts to the application of the law in a legal analysis that would be the envy of Benjamin Cardozo. But that in itself would not be enough, because a successful Bar candidate also has to learn to navigate his or her way through the mean streets that comprise the nether world of the Bar examiners. This world is presented to t
Planning for families of people with special needs
Estate planning is for the benefit of our clients’ spouses, families and other beloved individuals. No one enters into an estate plan for their own benefit. By definition the fruits of this labor will inure to the benefit of third parties. The benefit to the party undertaking the planning is primarily peace of mind.
Planning for families of people with special needs
Estate planning is for the benefit of our clients’ spouses, families and other beloved individuals. No one enters into an estate plan for their own benefit. By definition the fruits of this labor will inure to the benefit of third parties. The benefit to the party undertaking the planning is primarily peace of mind.
Planning for families of people with special needs
Planning for families of people with special needs. Estate planning is for the benefit of our clients’ spouses, families and other beloved individuals. No one enters into an estate plan for their own benefit. By definition the fruits of this labor will inure to the benefit of third parties. The benefit to the party undertaking the planning is primarily peace of mind.
Planning for families of people with special needs
Planning for families of people with special needs. Estate planning is for the benefit of our clients’ spouses, families and other beloved individuals. No one enters into an estate plan for their own benefit. By definition the fruits of this labor will inure to the benefit of third parties. The benefit to the party undertaking the planning is primarily peace of mind. Nowhere is this desire for peace of mind more evident than in planning for a loved one of a person with special needs. The prevailing concern I hear from parents and siblings of people with special needs is “who will take care of my loved one when I die?” Following up that question, I will ask: “how do you want your loved one cared for, and how will the person you entrust your loved one to know what to do?” Quite often the answer is: “I never thought about that before.”
New law for landlords regarding indoor air quality disclosure
New law for landlords regarding indoor air quality disclosure. On September 4, 2008 Governor Paterson signed a bill which will become effective in 90 days that requires landlords to disclose to tenants evidence of adverse indoor air quality. The law applies to owners of either residential or commercial real property. Up until now there were only requirements to inform property owners and landlords of certain environmental hazards, but not tenants. No system or law was in place to protect renters unknowingly exposed to potential carcinogens possibly present in their dwellings as a result of the volatilization of subsurface contamination or other sources of indoor air contamination. The new law amends New York State (NYS) Environ-mental Conservation Law (ECL) Article 27-Collection, Treatment and Disposal of Refuse and Other Solid Waste, by introducing a new Section 27-2405 Tenant Notification of Indoor Air Contamination. It applies to all landlords who receive indoor air test results e
The devolution of the homemaker - It’s time for legislative redress
The devolution of the homemaker - It’s time for legislative redress. Since the enactment of the Equitable Distribution Law in 1980 (Chapter 281 of the Laws of 1980), “national surveys have reported that women and children tend to suffer an immediate decline in their standard of living in the aftermath of divorce while men enjoy an increased standard of living.”1 This is not surprising given that a woman’s earnings for the same job have yet to keep pace with a man and, the “glass ceiling” remains intact. The economic reality is that a woman leaving the workforce for a 10 to 20 year hiatus to raise a family, re-enters older, less skilled and often in an entry level position. Think of the senior associate in a law firm, who worked 80-100 hours per week on the path to partner. If the senior associate, having spent 5-7 years on the partners track, leaves the firm to raise a family, is there any doubt that the “senior” associate would re-enter on a track at a pay scale very different from th
New law for landlords regarding indoor air quality disclosure
New law for landlords regarding indoor air quality disclosure. On September 4, 2008 Governor Paterson signed a bill which will become effective in 90 days that requires landlords to disclose to tenants evidence of adverse indoor air quality. The law applies to owners of either residential or commercial real property. Up until now there were only requirements to inform property owners and landlords of certain environmental hazards, but not tenants. No system or law was in place to protect renters unknowingly exposed to potential carcinogens possibly present in their dwellings as a result of the volatilization of subsurface contamination or other sources of indoor air contamination. The new law amends New York State (NYS) Environ-mental Conservation Law (ECL) Article 27-Collection, Treatment and Disposal of Refuse and Other Solid Waste, by introducing a new Section 27-2405 Tenant Notification of Indoor Air Contamination. It applies to all landlords who receive indoor air test results e
Planning for families of people with special needs
Planning for families of people with special needs. Estate planning is for the benefit of our clients’ spouses, families and other beloved individuals. No one enters into an estate plan for their own benefit. By definition the fruits of this labor will inure to the benefit of third parties. The benefit to the party undertaking the planning is primarily peace of mind. Nowhere is this desire for peace of mind more evident than in planning for a loved one of a person with special needs. The prevailing concern I hear from parents and siblings of people with special needs is “who will take care of my loved one when I die?” Following up that question, I will ask: “how do you want your loved one cared for, and how will the person you entrust your loved one to know what to do?” Quite often the answer is: “I never thought about that before.” Special needs can take many forms; they may be physical, cognitive, behavioral, psychological or even medical, and we often forget that medically fragi
New matrimonial rules and programs for Nassau County Promoting non-litigious forums for conflict resolution
The Honorable Anthony Marano, Administrative Judge for Nassau County and the Honorable Robert A. Ross, Supervising Judge of the Matrimonial Parts, announced a new matrimonial initiative to the Nassau County Bar Association Matrimonial Law Committee members at their October 15th meeting. This initiative, which encompasses both mediation and neutral evaluation, is the latest program that the Matrimonial Center offers for litigants to resolve issues before embarking on what is often protracted costly litigation. It complements the Model Custody Part, which is designed to address acrimonious custody disputes. The assigned Supreme Court Justice in any contested action, with the consent of the parties, shall recommend an issue or matter for mediation or neutral evaluation. However, a matter shall be deemed ineligible for mediation if there are: a. Prior domestic violence proceedings between the parties; b. Prior adjudication of guilt or responsibility in an independent civil or crim
The home sale exclusion – not a delusion
The home sale exclusion – not a delusion Although real estate values are declining, the homes of many of our client have substantially appreciated in value since being acquired. The provisions of Internal Revenue Code (“IRC”) Section 121, which detail the exclusion of capital gains under certain circumstances, are important to these clients. IRC Section 121 provides that a taxpayer may exclude from taxable income up to $250,000.00 of the gain realized on the sale or exchange of a principal residence, provided that the taxpayer owned and used the home as a principal residence for periods aggregating at least two years during the five years before the sale date and did not take advantage of the home sale exclusion for other property within the two year period before the sale. A qualified married couple, as well as a surviving spouse, may exclude up to $500,000.00 under certain situations. Moreover, a partial exclusion is available pursuant to IRC Regulation 1.121-3 to some taxpayers who
Seniors and companion animals need more local protection
On September 19, 2008, the U.S. Department Justice filed a complaint against 75 Main Avenue Owners Corp., a coop apartment board in Rockville Centre that is attempting to enforce its no-pet policy against a 90-year-old tenant, Mary Pasko. The United States has argued that Ms. Pasko’s right to live with her dog, a toy poodle named Coco, is protected by the Fair Housing Act Amendments of 1988 (“FHAA”), 42 USC §§ 3601-3619, and that the coop board’s refusal to waive its no-pet policy constitutes discrimination. According to the complaint, Ms. Pasko suffers from depression, severe rheumatoid arthritis, hypertension, hearing loss and other disabilities. In a Newsday interview, Ms. Pasko stated that Coco gave her a reason to get out of bed and that the poodle is “like medicine for me. If I have her with me, I seem to feel better.” On several occasions since 2007, Ms. Pasko allegedly asked the coop board to waive its no-pet policy and offered to give the coop board a note from her psych
Property assessment inventories now accessible through FOIL
Last term the Legislature amended both the Real Property Tax Law ("RPTL")1 and the Public Officers Law ("PBO")2 declaring that making publicly available records relating to right, title and interest in real property, or relating to the inventory, status or characteristics of real property shall not be deemed an unwarranted invasion of personal privacy under New York's Freedom of Information Law ("FOIL"). Prior to the enactment of these amendments, the Courts in the Second Department had interpreted those statutes3 by finding such records to be private and not intended for commercial use, thereby exempting the records from disclosure under FOIL. These prior court interpretations gave local municipalities the basis for denying public access to the records, and in particular real property inventories. This position put the Court at odds with the State of New York Department of State Committee on Open Government (the "Committee"), which is the executive body charged with inter
New York Voluntary Tax Disclosure and Compliance program
Every few years, state tax governments adopt amnesty programs to meet budget shortfalls by triggering the acceleration of tax revenue. However, tax agencies know that amnesty programs convey a risky message… that the benefit of current revenue collection exceeds the cost to the system of allowing wrongful conduct to go unpunished. Oftentimes, taxpayers who know they are skirting the law wait for amnesty opportunities to arise in lieu of stepping forward to resolve their tax issues. Their wait may now be over. What is it? Recently, Chapter 57 of the Laws of 2008 added section 1700 of Article 36 to the New York State Tax Law which establishes the Voluntary Disclosure and Compliance (VDC) program. As indicated in the New York State tax guidance “the program is designed to encourage eligible taxpayers who owe back taxes, regardless of the reason, to voluntarily disclose tax liabilities that are not known to the Tax Department. The significant incentives provided by the VDC program t
Decanting an irrevocable trust: Are these trusts really irrevocable?
If revocable trusts are not irrevocable, could irrevocable trusts be revocable? Under the decanting statute in New York Estates, Power and Trusts Law (“EPTL”) § 10-6.6(b), trustees and beneficiaries of an irrevocable trust can decide to modify the trust without the need for court intervention. By “decanting a trust,” trust assets from the irrevocable trust are poured into another trust, whose terms may be different from the first trust, providing many benefits which once seemed unattainable. The decanting statute is applicable to inter vivos and testamentary trusts. The “new” trust designated to receive the trust assets may be formed anew or may be a trust formed under the old instrument. To be sure, not every irrevocable trust can be decanted, nor can all of the terms and objects of the trust be changed, as we shall see. Why and When to Decant a Trust One difficult issue which arises due to the immutable nature of irrevocable trusts is the choice of applicable law. Circumstance
Law practices can survive these difficult economic times
Now that the election is behind us, instead of the constant barrage of news about presidential politics, there’s no escaping news about the economy – and that news seems to keep getting worse. By now, most lawyers have experienced at least the beginnings of the economy’s impact on their practice. The obvious warning signs include clients’ in-creased focus on rates; a decrease in new matters; requests to postpone projects or deals; delays in payment or in return of engagement agreements; decreased responsiveness of clients; reduced attendance at functions; and an overall reduction in phone calls. Other warning signs may not be quite as obvious. Be alert for clients whose trust in you seems to have eroded along with their trust in the economy. Clients may begin questioning you more, trusting you less and scrutinizing your work more closely than before. Still, opportunities abound, even in this economy, if you take a realistic look at your practice and develop strategies that take t
If business clients go overseas, it doesn’t have to be goodbye
What do you do if one of your major client calls your office and tells you that he or she has a desire to start a business somewhere off shore from the United States? It would be simple to give up the client and refer the business to another law firm. There are also other alternatives which you should first consider. You may not have to totally give up the client. But keep in mind; you cannot practice law in a foreign country. At the same time, by following these suggestions, you will probably provide better advice to your client and have a better chance of retaining the client for work in the United States as well as providing guidance for a foreign country. Before getting into the details of what you can do, let me take you briefly through some of the background I bring to this piece. Back in the 1970’s and 1980’s, I held several corporate officer positions at Avon Products, Inc. In those days, I was responsible for opening new operations throughout Asia, including Malaysia, Th
Finding your voice as a new attorney - Thoughts from the employer and the court
The Employer’s Perspective It’s your first week at work. Your client is fighting over a contract. Your supervisor asks you to review some letters and the contract to which they refer. Your supervisor wants you to prepare a short working internal and confidential office memo before her meeting later that day with the adversaries’ attorneys. You’re confident you’ll understand the letters: You’ve written and read letters your entire life. You’re more scared about the contract, even though you took contracts as a first-year law student. The contract makes sense when you read it. You identify the important clauses after you study the attorneys’ back-and-forth. You study the letters. The issues are apparent because the contract is straightforward. You easily write a memo to your supervisor, being sure to spell check and proofread it. She then re-schedules the meeting for the next day. You seize on the extra time to re-read your memo. “Gee,” you think. “I’m an attorney now. Shouldn’t I soun
Finding The Attorney-Client Privilege Protection Act of 2008
The Attorney-Client Privilege Pro-tection Act of 2008 (S. 3217/H.R. 3013), if passed by Congress and signed into law by the President, will afford better protection to the American people from overzealous federal civil and criminal investigations and prosecutions by further safeguarding attorney-client privileged communications and attorney work product. The bill’s sponsor, Senator Arlen Specter (R-PA), explained that the Attorney-Client Privilege Protection Act addresses the Department of Justice's corporate prosecution guidelines, which have “erode[d] the attorney-client relationship by allowing prosecutors to request privileged information backed by the hammer of prosecution if the request is denied.”1 Significant Provisions of the Attorney-Client Privilege Protection Act This bill is a comprehensive reform measure designed to counteract a number of harmful federal agency policies, including those adopted by the Securities and Exchange Commission, the En-vironmental Pro
Family law may clarify education law when enrolling a child in public school
Every child is guaranteed a public education, but student residency requirements limit which particular school district a child may attend.1 The premise is simple: students are entitled to enroll tuition-free only in the school district where they actually reside. However, the law of student residency is less clear when a court transfers legal custody or guardianship of a child to a third party. A court order of guardianship is ‘determinative’ for residency purposes, so that a child may enroll in the school district where he and his guardian both reside. The misconception is that the presence of a court order somehow limits the authority of a school district to verify whether the child actually resides in that district with his guardian. This article intends to dispel the misconception, and describe how new legislation in the area of family law clarifies when a guardian or custodian may enroll a child in school. Overview of Student Residency New York Education Law §3202(1)
NY landlords must alert tenants of indoor air contaminants
On September 4, 2008, Governor Paterson signed a bill that requires landlords, as of December 3, 2008, to advise tenants and occupants, under certain circumstances, of evidence of adverse indoor air quality (IAQ) in their premises. The law applies to owners of both residential or commercial real property, and landlords could be fined as much as $500 per violation for each day that they are in violation of this requirement. Until now, no system or law was in place to protect tenants from being unknowingly exposed to potential airborne carcinogens in their premises resulting from either the volatiliz-ation of subsurface contamination or other sources of indoor air contamination. The new law amends New York State (NYS) Environmental Conservation Law (ECL) Article 27 – Collection, Treatment and Disposal of Refuse and Other Solid Waste, by introducing a new Section 27-2405 – Tenant Notification of Indoor Air Contamination. This provision was previously vetoed in 2006 and again in 2007
Financing of judgments by local governments
Traditionally, municipalities and school districts (hereinafter “local governments”) issue bonds or notes to fund capital projects and equipment purchases, including improvements to roads, buildings, water and sewer systems and parks and other recreational facilities owned by the local government. The interest paid by a local government to the holders of its bonds or notes is exempt from taxation, provided that the local government has complied with certain statutory and regulatory requirements at the time of issuance and continues to comply with such provisions until such indebtedness is retired. An important policy consideration that underlies the constitutional and statutory framework for the issuance of debt in New York State is the premise that present generations should not be permitted to unduly burden future generations with debt. Another policy consideration is that there ought to be a link between the benefit derived from the item financed with bonds or notes and the t
The issue of whether to amend the General Municipal, Town, and Village Laws to provide for municipal consolidation of special districts, villages, and the like has become a highly debated topic in the past year. In some circles, consolidation symbolizes the death of local control. Others see it as an effective way to consolidate resources and reduce spending, thereby saving taxpayer dollars in a trying economy. This article will not address the proposed laws or those issues associated therewith. Instead, this article will provide lawyers with the ability to answer its municipal or taxpayer client’s questions about consolidation. Can two districts with different methods of assessment consolidate? Special districts typically employ two methods of assessment, those are, benefit assessment or ad valorem rate charge. Where the special districts to be consolidated employ two different methods of assessment, the town law permits a town board to consolidate the districts so long as it
Ordinances to protect trees on private property
A growing concern with environmental issues has prompted a number of municipalities in Nassau County (as well as elsewhere) to enact ordinances to prevent the destruction of, or undue harm to, trees on private property. The perceived necessity of such ordinances arises from the awareness, now widely shared, that trees are of substantial value to the community as a whole and that their benefits reach far beyond the boundaries of the property on which they are situated. The issue takes on added urgency every time a concerned resident witnesses the destruction of a mature tree and realizes that, even if a replacement is promptly planted, it could take generations for the new planting to replace the lost tree in any meaningful way. Local governments are increasingly willing to devote time and resources to safeguarding trees even where such action brings the municipalities into conflict with their own taxpayers and property owners. The drafting and enactment of a tree protection ordinance r
Boundary lines: post Madoff
A post judgment action presently pending in Manhattan Supreme Court may well be this millennium’s “O’Brien”.1 In O’Brien, the definition of marital property was broadly interpreted to include a professional degree earned during the marriage and the enhanced earnings resulting therefrom subject to equitable distribution. New York stands alone among the 50 states in its interpretation. Judicial good intention to right marital wrong opened “Pandora’s Box,” unleashing a plethora of vexing cases for years to come. Like O’Brien, the facts of the pending matter seemingly call the Court to right the wrong perpetrated upon the plaintiff, one of many misguided investors who suffered losses in the millions of dollars, not as a result of market forces, but as a result of fraud. As a general rule, the boundary line for distributing marital assets is the entry of the judgment of divorce with no post judgment modification of equitable distribution including distributive awards, either as a result of
Current issues in land use and zoning law
A. The Interpretation of Zoning Ordinances As cities, towns and villages throughout the State face more complex land use and development issues, they enact more detailed, complex, and comprehensive zoning regulations and ordinances. As a result, the proper interpretation of these regulations and ordinances by municipal officials responsible for applying them has become a more prevalent theme in court proceedings brought under Article 78 of the CPLR. In general, judicial review of determinations made by an administrative tribunal or officer “... is limited to ascertaining whether the action was illegal, arbitrary and capricious, or an abuse of discretion.” Matter of Rendely v. Town of Huntington, 44 A.D.3d 864, 865 (2d Dept. 2007). Thus, courts give administrative determinations considerable deference and will not substitute their judgment for that of the administrative tribunal or officer. See, e.g. Pecoraro v. Board of Appeals of Town of Hempstead, 2 N.Y.3d 608, 613 (2004) Not
Evidentially Speaking - 2008 Hearsay review
While certainly not a blockbuster year for hearsay decisions, there were several noteworthy cases decided in this always interesting area of our evolving evidence law. Readers of this column know that I have long railed (that’s not a word that really goes with my judicial demeanor, but bear with me) against the blind use of the “business record” exception in all cases but especially civil and matrimonial matters tried here in Supreme Court. Last year we discussed the hearsay contained within expert reports that is all too often admitted without redaction of objectionable material. (See People v. Goldstein, 6 N.Y.3d 119). Along these lines I point out to you a terrific September, 2008 decision out of Bronx Supreme Court by Justice Dineen Riviezzo, In the Matter of the State of New York v. J.A., 21 Misc. 3d 806(Sup Ct, Bronx County, Riviezzo, J.), that addressed the admissibility of certain hearsay documents offered in a Mental Hygiene Law Art. 10 proceeding. Specifically the issue pr
The 'new era' of ethics rules: Are they really new?
On March 26, 2009, the Jewish Lawyers Association of Nassau County sponsored a CLE lecture at the Nassau County Bar Association on the new Rules of Professional Conduct that presently govern the practice of law in New York as of April 1, 2009. Speakers at the lecture were Supreme Court Justice Ira Warshawsky and former District Court Judge Kenneth Gartner. The parallel between ancient Jewish law and present ethics in New York was explored by Justice Warshaw-sky in great depth. The ancient principle of “G’nay vaht da’at,” or the prohibition on the “theft of one’s mind, thoughts or knowledge” rings true to many practitioners, especially in modern times where law and justice conflict and when considering the new Rules of Professional Conduct. Under the ancient principle, words that result in others forming improper opinions, or the diminished ability to make a fair and honest evaluation were inappropriate and not to be used. For example, this can occur when an individual gives a gift bu
What will happen to your practice if something happens to you?
Attorneys spend countless hours devoting themselves to their profession by becoming a knowledgeable and tireless advocate for their clients. Every day attorneys invest their blood, sweat, tears and financial resources to build a practice and a list of clients that consider them their trusted advisor, part of their inner circle and provider of exceptional service. In addition, their presence in the office is crucial to the smooth operation of the firm – from overseeing the staff to generating the income that funds day-to-day expenses. What if you were injured or became sick? Could your practice survive? Would your clients leave? Life isn’t just about making it. At some point, it’s about keeping it and everything you’ve worked so hard to build. Few attorneys and their partners have a plan in place to protect their business in the event of a prolonged or permanent disability of a partner. In fact, few attorneys or business owners realize that an illness or accident could cause such a
Global Warning Issues affecting the gay and lesbian community
The LGBT (short for lesbian, gay, bisexual and transgendered) community’s struggle for equality may well be this country’s new civil rights frontier. The last 12 months have witnessed both historic successes and disturbing defeats. The mixed results are especially troubling since the country has enthusiastically embraced change in other areas and recently ushered in a new era for political and social reform. Yet, the LGBT community has still not attained the rights and privileges that the heterosexual community has historically enjoyed. While victories are celebrated, the specter of Proposition 8 in California, to name just one battle, serves to alert the community that the final result is far from settled. On a positive note, in 2008, the New York law office of Vishnick McGovern Milizio LLP successfully filed and obtained what may be the first signed judgment of divorce between two gay men in New York. The outcome, and ultimately the judgment in this case, are in keeping with the rec
Judicial conscience: Wherefore art thou?
You learn today that your four year old child you have nurtured and raised from infancy is not your biological child. If the error was on the part of the hospital in a confused identity of your baby at birth, would you look to hold the hospital accountable? What if, instead, it was your spouse who was ultimately responsible? Would you expect a court to hold the responsible party accountable to you, at least financially, for the emotional upheaval foisted upon you and your family? Would you expect punitive action by a court to deter the “guilty/responsible” party or others from this action in the future? This past March, the First Depart-ment in the context of a matrimonial action had before it this very issue. The court was called upon, in making an allocation of marital assets between the parties, to consider as a factor the misconduct of a spouse. Its analysis, not surprisingly, rested upon the law and precedent; its application of the law and precedent to the facts before them and
As the walls come tumbling down ...
Recent New York cases and Governor Paterson’s Memorandum directing that New York state agencies recognize same gender marriages legally performed in other jurisdictions,1 as well as a New York State Depart-ment of Health directive advising that same gender spouse are to be treated the same as traditional spouses in regard to Medicaid eligibility2 appear to be leading the way to extending constitutional protections afforded all Americans, irrespective of gender. These actions signal the loosening of the stranglehold of puritan ideals and the realization that fairness and equality apply to all and is not exclusive to those who look, think and live as the framers of the constitution did. These actions signal a true separation of religion and the law, and allowing people to be treated equally without regard to the gender of their partner. Maybe the framers of the constitution never envisioned that equal rights would extend to same gender couples, and it is doubtful they envisioned such
New law shakes up estate planning for divorcing couples
The repeal of EPTL §5-1.4 and its replacement with a new EPTL §5-1.4 in August of 2008 addressed the long-overlooked area on the effect of divorce on previous estate planning. However, estate planners understand that changes in the law yield benefits only if their clients understand they must affirmatively act to take advantage of the opportunity. It was standard good practice until last year for a matrimonial attorney to advise his or her client that the last will and testament he might have previously executed might be changed as a result of the entry of the Judgment of Divorce. As provided by the previous EPTL §5-1.4(a), if the testator was divorced, his marriage annulled or its nullity declared or such marriage is dissolved on the ground of absence, the divorce or other such dissolution revokes any disposition or appointment of property made by the will to the former spouse and any provision therein naming the former spouse as executor or trustee. The provision was added to New
Update on pending 'No Fault' divorce legislation
There are several bills now under consideration in the New York State Assembly and Senate that would provide for “No Fault” divorce. “No Fault” divorce would give litigants an option of obtaining a divorce on a basis that does not require proving grounds, such as abandonment, adultery or cruel and inhuman treatment. Under current law when each spouse agrees to the divorce they must still agree that one of the litigants will allege grounds, such as abandonment or cruel and inhuman conduct, which the other will not deny. In the alternative, the couple who reaches an agreement on all issues other than grounds has the option of entering into a separation agreement, but then waiting a year to obtain a “conversion” divorce. Under current law when a spouse opposes the granting of the divorce, a trial is required. The cost of a contested divorce trial goes beyond the financial burden that it places on the couple and can exert a tremendous emotional burden on the litigants as well as th
Hard lessons learned from Ponzi and other schemers
One cannot turn on the television, open a newspaper, or click on the Internet without hearing or reading about the term “Ponzi scheme.” Starting with the dramatic story involving Bernie Madoff and his record breaking $50 billon scheme, there appears to be constant news accounts about individuals who have lost their fortunes to a new scam. In this article, we will examine how a Ponzi scheme works, how people become involved in them, and finally offer some tips on how to avoid becoming the next victim of a Ponzi scheme. The term “Ponzi scheme” dates back over 90 years ago to the case of Charles Ponzi. Ponzi came to America in 1903 as a 21 year old. He became involved in a variety of unsuccessful businesses over the next 16 years. He also at times engaged in criminal activity and was convicted for passing a bad check and assisting Italian immigrants in illegally entering the United States from Canada. In 1919, however, his life changed forever when he received a letter with an Internat
Proper service and the accusatory instrument in the criminal case
Whether you are litigating a criminal case in a district, city, village or town court for the first time or for the thousandth time, it is always important never to forget two important issues that come up almost immediately: 1. Service of Process and 2. Sufficiency of the Accusatory Instrument It is important to remember that litigation in this area is continuous, and is not settled by any means. The Court of Appeals in People v. Kalin, 12 NY 3d 225, 878 NYS 2d 653(March 2009) is an example where sufficient court information can be declared defective even after the issue had previously been considered settled. Service of Process With the exception of the warrant of arrest, the two primary means of service of process, in a criminal action are by appearance ticket under Article 150 of the Criminal Procedure Law “CPL” and criminal summons under Article 130 of the CPL. Article 600 of the CPL relates to service on corporations. The appearance ticket directs a person to appear
Using law enforcement experts in federal criminal cases
On October 6, 2008, the United States Court of Appeals for the Second Circuit in United States v. Mejia, 545 F.3d 179 (2d Cir. 2008),1 placed new limits on the use of law enforcement agents as experts in federal criminal cases. The court reversed the convictions of two young men accused of participating in drive-by shootings to enhance their positions within a street gang known as MS-13 or Mara Salvatrucha.2 The Second Circuit held that the testimony of a member of the task force investigating MS-13 as an “expert” in gangs violated the Federal Rules of Evidence and the defendants’ confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004).3 This article discusses (1) the rise of the federal agent as expert gang witness; (2) the limits placed on the use of such experts by Mejia; and (3) the next area of litigation – discovery. The Use of the Agents as Expert Witness on Gangs The use of agents as expert witnesses in gang cases paralleled the federal prosecution of organi
Green building construction and legal exposure
The incentives to “build green” are strong among U.S. corporations, with 82% of corporate America expected to be greening at least 16% of its real estate portfolio this year.1 Developers see “green” as a market advantage for new projects, employing words, symbols and other depictions to herald their “sustainable” construction and “green” features to attract high-end tenants. Bragging rights aside, however, what do the terms “sustainable” and “green” really mean, and – absent reliable evidence – are such claims legally defensible? What happens if the buildings fail to obtain whatever specified green building certification is attached to the project? Who is liable when the local government will not issue a use and occupancy certificate because of that failure? These are some of the new legal risks in the field of green building construction. This article discusses sources of legal exposure and talks about the potential nature of “green” lawsuits. Green Marketing Claims Industry an
Laws affecting solar energy purchases and installation
There has been a lot written lately about the “green” revolution and the use of solar energy. This article will provide a general overview of solar energy basics and the laws and regulations governing solar energy’s installation and use. Why solar energy? A solar energy system generates reliable, long-term clean energy. By installing a solar energy system on your house or commercial building, you can reduce emissions of greenhouse gases, reduce your carbon footprint and help reduce our dependence on foreign oil. Once properly installed, a solar energy system will generate clean energy for at least 20 years with minimal maintenance. How does it work? Solar panels installed on your roof1 (preferably facing south to south west with unobstructed access to the sun) use the sun to generate electricity. The sun shines on the solar panels and the energy is transferred from the panels through an inverter (which converts the power generated by the solar panels from dire
Tips on how you can make your law practice 'greener'
The "green" movement is everywhere. Suddenly, everyone is becoming a bit more environmentally conscious. How can lawyers contribute to the green movement by making their practices more environmentally friendly? The key may be in the 3 Rs: Reduce, Reuse, and Recycle. Reduce The first R, reduce, is the most powerful because it stops waste before it happens. The easiest reductions for lawyers to make are those involving paper and use of unnecessary energy. Paper Lawyers can be more mindful of the supplies used in the office, how they are being used and whether they are necessary in the first place – particularly paper. Some law firms are still creating paper-based “chrons” for each of their attorneys – copies of every document generated by the attorney in chronological order. This is a colossal waste of paper, particularly when documents can be searched by date in almost every computer system. Keep it digital – in many circumstances, paper is not necessary at al
Beyond biological boundaries
In drafting legislation regarding parental rights and obligations, did the Legislature envision societal changes whereby the definition of “parent” included persons other than the biological mother or father? Are the courts bound by the definition of a common term contemporaneous with the enactment of the statute? Search throughout the New York Domestic Relations Law or Family Court Act and nowhere is “parent” defined. (By statute, an adult unmarried person or an adult husband and his adult wife may adopt another person, and as the “adoptive parent,” thereby acquire all rights and obligations of “parent.”1) Black’s Law Dictionary has no less than 24 categories of parent, and in addition, the following definition of “parent:”2 “1.The lawful father or mother of someone. In ordinary usage, the term denotes more than responsibility for conception and birth. The term commonly includes (1)either the natural father or the natural mother of a child, (2)the adoptive father or adoptiv
Criminal risk creation - a deterrent to ambitious vehicular prosecutions
It is a genuinely positive development when the courts begin to alter the tendency of prosecutors and law enforcement agencies to over-criminalize unfortunate vehicular accidents. In this context, the cases in question are not instances of driving under the influence of either drugs or alcohol but rather circumstances where drivers commit errors in the operation of their vehicles which are, at best, negligent or circumstances involving the occurrence of a judgmental error. There has been a disturbing trend to remove mistakes involving vehicular operation outside the realm of civil liability and to elevate responsibility into the criminal realm. Fortunately, the New York State Court of Appeals has recently elected to place restraints on prosecutorial attempts to sustain felony charges in the context of motor vehicle operation. In People v. McGrantham, 2009 WL1789125 and People v. Cabrera, 10 N.Y.3d 370 (2008), defense attorneys and prosecutors have definitive assertions of the p
Insurance coverage update: notice, prejudice and disclaimers
Most policies of insurance, whether personal or commercial, auto or homeowners, include a condition requiring an insured to provide notice of an occurrence or loss to the insurer as soon as practicable or as soon as reasonably possible. Absent an excuse for the delay, notice provided by the insured more than a month after the loss is typically held to be untimely, often as a matter of law. This is exemplified by the 1st Department's recent decision in Juvenex Ltd. v. Burlington Ins. Co., 2009 NY Slip Opinion 05166 (1st Dept. 2009). In Juvenex, the court held that the insured's delay of two months in giving the insurer notice of the claim was unreasonable as a matter of law, citing 2130 Williamsbridge Corp. v. Inner State Indem. Co., 55 AD 3d 371 (2008). Addressing the right of an injured party to provide notice to the insurer, the court declined to consider the plaintiff's argument that notice of the claim provided to the defendant by the injured person was timely, noting that
Partnership agreements grant certainty in uncertain times
In this challenging era, and any time important decisions need to be made, the certainty of a partnership agreement takes on greater importance. A well-founded agreement sets the culture of the firm. It spells out the decision-making process and sets forth each partner's rights and responsibilities. Perhaps most significantly for today, it lets partners know how decisions will be made and how much influence they have in making those decisions. It limits the potential for discord when resolving big issues. Here are essential points that should be addressed in a partnership agreement. Management One of the key provisions of any partnership agreement addresses how issues are resolved and by whom. Many firms are run by an executive committee, so your agreement should designate the number of members that will comprise the committee and how they are chosen. They might be selected by the managing partner, other executive committee members, or by a vote of the entire partnershi
Recent amendment to NYSHRL protects domestic violence victims from workplace discrimination
According to the Center for Disease Control and Prevention, one in four women in the United States will experience domestic violence at some point in her lifetime.1 Domestic violence is the leading cause of injury to women between the ages of 15 and 44 in the United States; more than car accidents, muggings, and rapes combined.2 The numbers are staggering. What was once a personal problem to be dealt with privately by a victim has now become a social pandemic in the U.S., requiring new laws and regulations to curtail its growth and minimize its harmful effects. Fortunately, legislatures have responded to these issues by increasingly taking steps to remedy this national problem. On July 7, 2009, Governor David A. Paterson signed legislation amending the New York State Human Rights Law (NYSHRL) to protect victims of domestic violence. The amendment to the NYSHRL makes it unlawful for employers to take actions against employee-victims for work-related problems that they experience as a re
Is a private employer permitted to 'hire' a law student without pay?
We are dealing with an economic climate and legal job market in which the supply of legal talent seemingly outweighs the demand by employers for same. This new economy has given rise to a somewhat unforeseen and mostly unwelcome byproduct - an increase in the number of private, for-profit organizations that seek to "hire" law students without pay. While there may be a great temptation for an organization to take advantage of a free source of labor - and an equally great temptation for a student who is eager to accept such a position because of the professional experience that can be gained and the belief that permanent employment may result- there are potentially significant risks to employers, particularly for-profit employers such as law firms, that engage the services of students without pay. The key issue for the employer? Whether the student qualifies as an "employee" under the Federal Fair Labor Standards Act ("FLSA") (and/or the New York State Labor Law) and is thus entitled to
It is called a knee jerk for a reason
Could it be because there is no thinking involved, it is reflexive, automatic, and involuntary? A colloquialism for an action taken without thought is not what we think of when we contemplate the practice of law. Often, when considering an area of the law that is outside of the scope of our individual practices, those areas can seem deceptively simple. I'm settling a medical malpractice action for a child who now has disabilities, I must direct the settlement into a first party special needs trust, I'll just copy the one John Doe did for another client of mine ten years ago. Well, it might seem like a good plan, but if the child is neither receiving, nor anticipated to receive means tested benefits1 the first party payback trust may be premature. This type of a trust, commonly called a D4a trust, can be set up at any time prior to the beneficiary turning 65.2 The parents can establish the trust on their own and seek court approval to transfer the assets of the child to that tru
SNTs: Preserving government benefits for the disabled
Special and Supplemental Needs Trusts (SNTs) are designed to protect the assets of individuals with physical and/or mental disabilities while still allowing such persons to be eligible for government benefits. The trust assets are used to enhance the beneficiary's quality of life. The law surrounding the creation of SNTs is complex and administration of the trust requires specialized knowledge. Planning for the financial and emotional care of people with disabilities has become the an integral part of the practice of Elder and Estates and Trust Planning lawyers through enactment of the federal Omnibus Budget Reconciliation Act of 1993 (OBRA '93) and New York Estates Powers and Trusts Law §7-1.12 (EPTL). Personal Injury attorneys must structure settlements so that beneficiaries are not disqualified from eligibility for means-tested benefits such as Supplemental Security Income (SSI) and Medicaid and should consult with an attorney with expertise in planning for individuals with disa
Till - planning for - death do us part
Trusts and estates practitioners often provide joint representation to married couples as they create their estate plans. In these situations, there exist ethical considerations that the attorney cannot ignore regardless of the clients' marriage. However, an additional significant issue may arise as a result of joint representation, namely, the potential for malpractice suits that may be commenced by the survivor upon the death of his or her spouse in the event that an estate plan is deemed less than satisfactory. When jointly representing clients in the estate planning context, it is the attorney's duty to protect the interests of each client by creating a plan that maximizes benefits, minimizes tax consequences, and fully satisfies their individual wishes.1 Indeed, although married couples often seek joint representation with the belief that their interests are aligned, they are sometimes mistaken;2 this is often the case in situations of blended families, or possibly where one sp
Workers' Compensation: Controlling costs and employer obligations
With few exceptions, New York employers must have their employees insured under the Workers' Compen­sation Law (WCL).1 Insurance coverage and related costs can be a major expense for any employer, even in good economic times. This article provides an overview of employer obligations under the WCL, and offers examples of how employers can help control expenses related to workers' compensation. Overview The purpose of workers' compensation is to provide reasonable - not full - compensation to employees for a work-related injury, illness or death, regardless of fault.2 On balance, workers' compensation is the exclusive remedy of the injured employee against the employer so that, with few exceptions, the employee may not bring a negligence action against the employer for such injury.3 Workers' compensation does not provide compensation for an accident or injury solely because it occurred at work.4 Rather, an employee must establish that his injury was caused by employment in order
Burns v. Varriale: The effect of third party settlements on a workers' comp case
On October 1, 2009, the Third Department affirmed that Owen Burns' former employer, the Town of Colonie, remained responsible to provide workers' compensation benefits to him for the reduction in earnings caused by his work related motor vehicle accident. The issue was whether or not Mr. Burns had voluntarily limited his post injury earnings. If he had voluntarily limited his earnings, his right to collect further workers' compensation benefits may have been extinguished, despite his permanent disability from that accident. The decision rendered by the Third Department represented the culmination of a lengthy legal battle with his former employer over its contribution towards the expenses incurred by Mr. Burns in bringing a personal injury action that had also arisen out of this work related accident. This action had resulted not only in a monetary settlement to Mr. Burns, but also in a substantial benefit to his employer, which had recovered its workers' compensation lien fro
Constructive disappearance to show extraordinary circumstances under FRCP 60 (b) (6) a small avenue of hope in the Second Circuit
Federal Rules of Civil Procedure Rule 60 (b) (6) Federal Rules of Civil Procedure rule 60 (b) provides, in pertinent part, "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:…(6) any other reason that justifies relief."1 Therefore, the aforesaid rule arms a court with the discretionary power to relieve a party from a final judgment when the motion is "addressed to the sound discretion of the district court."2 The relief provided under Federal Rules of Civil Procedure rule 60 (b) (6) is guided by principles of equity, and "the rule is designed to strike a balance between the interests of fairness and finality of judgments; nevertheless, [courts have held that] final judgments should not be lightly reopened."3 Further, the relief under subsection six is available only if said grounds are not encompassed within the first five clauses of Rule 60 (b).4 Moreover, before s
The question: Is integrity on the wane? "The wise man doesn't give the right answers, he poses the right questions." - Claude Levi-Strauss, French Anthropologist 1908-2009
Legislative response often lags behind societal demand for immediate gratification. The courts, in an effort to redress legislative procrastination, may use their interpretative and discretionary powers to find a basis in existing law to resist or embrace the change within the confines of reason and precedent. A law which seemingly has outlived its historical purpose or whose application results in unfair (though legal) distinctions, is nonetheless a law to be reckoned with by the courts. Many existing laws are perceived by the public as onerous and unfair. Citizens have been known to take the law into their own hands as evidenced by the thousands of acts of falsely filed tax returns. The taxpayer who under-reports income or fails to file a return invites criminal consequences for fraud under Article 37 of New York's tax laws. Prior to the 2009 revision of the tax fraud provisions, the courts were faced with an enforcement scheme that punished exaggeration of charitable deduct
The appeal of family law cases ... in the Appellate Division
True, the title of this piece recycles an old pun, but it should get you thinking about the appeal of family law cases. That appeal may not be to your sense of humor ... but to a higher court. When it comes to matrimonial or Family Court cases, the Appellate Division is the ultimate appellate forum. In theory, there is a tribunal that sits higher, but the Court of Appeals decided just 172 civil appeals in 2008. New York is a big State with many unhappy litigants, not many of whom have cases reaching Albany's hallowed halls. For the overwhelming majority of Nassau County family law cases, the Appellate Division, Second Department, is the court of last resort. An effective advocate appreciates the Second Department's workload; it is the busiest appellate forum in the State, perhaps the galaxy. The Second Department has jurisdiction over a region inhabited by more than half of the State's population. The residents of our crowded Department generate lots of divorce cases and Famil
Equitable does not mean equal
In New York, the Courts are required to "equitably" distribute all marital assets. (DRL 236B). Despite the relative abundance of case law citing to the proposition that, "Equitable distribution does not necessarily mean equal distribution" (Evans v. Evans, 57 A.D.3d 718, 870 N.Y.S.2d 394; Groesbeck v. Groesbeck, 51 A.D.3d722, 858 N.Y.S.2d 707); Falgoust v. Falgoust, 15 A.D.3d 612, 790 N.Y.S.2d 532), for practical purposes, a 50-50 distribution is generally presumed in a long term marriage, particularly for settlement purposes. 1 It is evident that compelling facts must be presented to the Court in order to achieve a deviation from the unofficial presumption of a 50-50 distribution. However, even in those cases where such compelling facts are presented, the deviation from an equal distribution is rarely substantial. Moreover, it is difficult to distinguish those facts that will warrant a substantial deviation from the 50-50 standard as opposed to a slight or modest deviation. T
The tax implications of settling troubled debt
That the country is awash in troubled debt obligations is hardly news. Perhaps more newsworthy are the sometimes surprising tax consequences of revising this debt.1 This article gives a whirlwind overview of tax aspects of revisions of debt from both the debtors' and the creditors' sides. Debtor Aspects It is widely known that when an amount of debt is reduced, the debtor may recognize taxable income from the cancellation of debt ("COD"). COD income is the subject of Internal Revenue Code §108, a comprehensive discussion of which would consume several times the length of this article. In general, however, when a debtor's obligation is reduced (including to zero) other than by payment, the debtor recognizes COD income (which is ordinary income) unless one of the many exceptions contained in §108 applies. The exceptions most likely to apply are: - The cancellation occurs in a Title 11 proceeding (in the case of a partnership, at the partner level) - To the extent the taxpayer
1031 exchanges ain't just for dirt!
Internal Revenue Code §1031 provides that "No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like-kind which is to be held either for productive use in a trade or business or for investment." Commonly known as "1031 Exchanges" or "Like Kind Exchanges," taxpayers have taken advantage of this tax code section to defer taxes on the exchange of a variety of properties, including aircraft, collectibles, trucks, restaurant equipment, and even coins. Of course, any property being exchanged must be exchanged for "like kind" property, which in the context of personal property narrowly means restaurant equipment for other restaurant equipment, gold coins for gold coins, etc. However, most attorneys who have been involved in 1031 exchanges are more familiar with exchanges involving real property. The concept of "like kind" has been much more broadly construed
SHHH! Don't tell the tax guy!
I address this article to attorneys who prepare tax returns for compensation, as such persons are among those classified as "tax preparers" under the Internal Revenue Code ("IRC"). Tax professionals have long recognized the potential for conflict between their role as tax planner for a client versus their duty to adequately disclose potential audit issues in a return (such as by filing F.8275-"Disclosure Statement", which many consider to increase the risk of an IRS audit) in order to protect the client (and themselves) from penalties. In Rev. Proc. 2010-15 (issued 1/28/2010), the IRS significantly revised what it considers "adequate disclosure" on 2009 and subsequent year tax returns for a taxpayer to avoid liability under IRC 6662(b) (Accuracy Related Penalty)1 and for a preparer to avoid liability under IRC 6694(a) (Tax Return Preparer Penalty).2 The determination of what constitutes "adequate disclosure" is often critical where an uncertain position is taken on a tax return,
Real property planning in second marriages
According to National Stepfamily Resource Center, a division of Auburn University's Center for Children, Youth and Families, about 75 percent of divorced persons eventually remarry.1 In addition, there certainly are additional divorced individuals who engage in long term cohabitation with a new partner, choosing not to marry. Using the most recent statistics available, in 2007 there were nearly 2,200,000 marriages and only 856,000 divorces,2 making it about forty percent of marriages ending in divorce. Estate planning in these second marriage/cohabitation scenarios is more difficult than in the traditional marriage situation. The couple may have conflicting desires and external influences. If spouse A were to predecease spouse B, spouse A typically would want to provide that surviving spouse B continue to live comfortably after spouse A's death. However, at the same time, spouse A wants to ensure that their inheritance goes to their children from their first marriage and not the
Practically speaking, the best and worst of LLCs
The New York limited liability company (LLC)1 recently celebrated its 15th anniversary. In its 15 years, it has reformed the legal landscape for the way in which most businesses operate. Here is a thought provoking analysis to be considered for existing LLCs and future LLCs. The Best 1. Tax Flexibility Why an LLC? The LLC is a tax driven entity. It is the best type of entity for almost any type of business and in its 15 years, 511, 8392 LLCs and LLPs have been formed or registered to do business in New York State. Here are a few well known uses of the LLC: a. Real estate investment. It permits the owners to refinance the property (once the economy gets back to normal) and withdraw the proceeds without tax consequences. b. Professionals. Before the advent of LLCs and LLPs, most professionals practiced as general partnerships because it gave them operating flexibility, but it also exposed them to personal liability. Since 1970, New York professionals could form pro
The role of debtor's counsel from the trustees' perspective
The opinions expressed in this article are those of the authors only and do not necessarily reflect the opinion of the Office of the United States Trustee or any other Panel Trustees. Debtor's counsel may be surprised to learn that Chapter 7 Trustees generally hold them in high regard and appreciate the role they play in the Chapter 7 bankruptcy process. Trustees' roles and duties, beyond the scope of this article, in the first instance, depend to a considerable extent upon the cooperation and diligence of debtor's counsel. Because a trustee's first involvement with any case is the review of the petition and schedules, the accuracy of those schedules is essential. When schedules are deficient or inaccurate a great deal of time can be wasted. Although debtor's counsel clearly represents the interests of the debtor, and therefore may perceive the trustee as an adversary, they should know that the role of the trustee does not start out as adversarial to the debtor. Trustees
Fine tuning practice to changing standards
Due to the current acceleration in the evolution of the music industry, attorneys must change the ways that they represent their musical clients. Historically, music was primarily marketed and distributed by record labels through physical albums. The current trend in the industry involves distribution through various forms of digital media that create an entirely new set of rights issues that directly affect how musicians profit from their intellectual property. Some attorneys believe that if they focus solely on the underlying rights within music, they can sufficiently represent their clients. Lawyers, however, must address rights issues as well as understand both how new media has changed the music industry and how those changes affect their clients. Attorneys who represent musicians secure the artists' rights in their work and negotiate deals that allow their clients to reap the financial benefits of those rights. Every songwriter and singer wants to exploit their music in a manner
Social Security Income (SSI) and Special Needs Trusts
SSI, is a federal program that provides a cash stipend to the aged, blind and disabled whose available resources and income do not exceed the guidelines of the program.1 An individual eligible for SSI automatically qualifies for Medicaid in New York State. The resource level for SSI is $2000 for a single individual and $3000 for a couple or family. For individuals with a disability under the age of 65, no ineligibility period for SSI will be assessed to transfers of their own assets into a trust for their benefit which provides a payback to the State for the lifetime of Medicaid provided2 or to a pooled trust.3 For individuals with a disability over the age of 65, the funds in the pooled trust are protected after the expiration of an ineligibility period. For 2010, the federal benefit level for SSI for an individual residing in his own household is $674/month. New York State provides an optional state supplement of $87/month, bring the amount to $761/month. When computing
Protecting the thoroughbred of athletes
No citation is needed to support the assertion that, pound for pound, thoroughbred racehorse jockeys are the strongest athletes in all of pro sports. Most weighing less than 115 pounds, they are charged with guiding half-ton, highly fractious four legged animals around an oval course at speeds of over 40 miles per hour. They quickly accelerate from a stationary position in a starting gate, their steeds clumped together in packs, often with only inches separating one another. Their trip is no pleasure ride; each is attempting to do whatever is necessary to get their mount to the finish line first, usually taking perilous chances in the process. While fatalities are fortunately rare, the question is not if a jockey will be injured, but when.1 For every one jockey at a racetrack, there are scores of exercise riders. These individuals come in all shapes, sizes and ages. The younger ones dream of being noticed for their performance in morning workouts such that trainers will give the
A unique forum: The Traffic and Parking Violation Agency
The Nassau County Traffic & Parking Violations Agency is solely the creation of the Nassau County Bar Association and the Lawyers of Nassau County, who collectively joined in protecting the rule of law and fundamental due process for the citizens of Nassau County. The Problem In the mid 1980's, two events joined to forecast a substantial legal problem to both the legal community and the citizens of Nassau County. Suffolk County was considering the elimination of their traffic court and joining the New York State Department of Motor Vehicles Traffic Adjudication Bureau, relieving their newly-formed District Court of Vehicle and Traffic Law prosecution. Additionally, the county hoped to generate additional revenue from the Department of Motor Vehicles. The Nassau County District Attorney, Denis Dillon, was contemplating a withdrawal of his office from the prosecution of vehicle and traffic offenses to free those resources to prosecute more serious crimes and to expand his
Old problems, new world: Cyberbullying and sexting
Old problems, new world: Cyberbullying and sexting. June 2010. In the world of law, 1990 was merely 20 years ago. I was prosecuting petit larcenies and drunken driving cases, much as the new ADAs do today. There was one computer centrally located in the secretarial area. If you forgot to write down an adjourn date you could, with the permission of the head secretary, look up the date in the computer, if you knew how to get into the court system. Most of us choose to call the Court and asked the Clerk. But in the world of technology, 1990 was light years ago. Now every ADA has a desk top computer. Most of us have laptops that we take to court, and we give summations with PowerPoint. Papers are now electronic data; telephone messages and correspondence between attorneys are now e-mails and instant messages. Crimes are committed electronically and evidence is often found through and in electronic forums. As a result, our profession is faced with the need to catch up with the ever-evolving
Mind your own business records exception
Mind your own business records exception. By Andrew Engel. June 2010. In People v. Kennedy, 68 N.Y.2d 569, 510 N.Y.S.2d 853 (1986) the Court of Appeals observed that "[t]he business records exception has been recognized as probably the most important hearsay exception,…" I have observed that "it may also be the most misunderstood and misused hearsay exception." Rushmore Recoveries X, LLC v. Skolnick, 15 Misc.3d 1139(A), 841 N.Y.S.2d 823 (Dist. Ct. Nassau County 2007). In an effort to clear up some misconceptions concerning what are (and what are not) business records, as well as what is necessary to lay a proper foundation for the admission of such records into evidence, this article reviews the history and purpose of the exception, identifies which records qualify as business records and addresses a few anomalies. It bears repeating up front that the business record rule is a hearsay exception. If you are not offering records for the truth of the statements contained therein, by defin
Community service as a sentencing option
Community service as a sentencing option. By Mark Silverman. June 2010. As you leave the courtroom your client inundates you with a barrage of questions: • What is this requirement of Community Service all about? • What if I don't want to do the Community Service? • What type of Community Service do I have to do? • Can I work at my brother's landscaping business to complete my Community Service? • My friend is charged with burglary, can he get Community Service too? • Can the Judge mandate that I do Community Service? • What if I don't complete the Community Service? As you listen to your client's questions you may ask yourself, "Does the Court have the authority to make Community Service part of my client's sentence?" You may also ask, "What is the standard custom and practice used by the Courts and the District Attorney's Office regarding Community Service in Nassau County?" Hopefully this article will provide answers to all of the aforementioned questions.
Emergency vehicle operators protected from liability
Emergency vehicle operators protected from liability. By Anthony Michael Sabino and James N. Sabino. June 2010. Operators of emergency vehicles must work under the burden of two competing priorities: to make haste to arrive at the scene as quickly as possible; but still to arrive safely and without causing an accident themselves. In both instances, lives hang in the balance: the lives first responders are racing to save, and concomitantly the lives they safeguard by exercising appropriate caution en route. New York law has long recognized these difficulties, and by statute has provided qualified immunity from liability for emergency vehicle drivers. Most recently, New York's highest court has reaffirmed that legal protection, yet in the context of ensuring that the law is always used as a shield and not a sword. Members of the profession, be they on the side of plaintiffs, defendants or merely interested observers, should take note. In Ayers v. O'Brien, 13 N.Y.3d 456 (2009), the
The proposed Patent Reform Act of 2010
The proposed Patent Reform Act of 2010. Negative consequences for patent owners in ex parte reexaminations. By Charles E. Miller and Daniel P. Archibald. June 2010. America's patent system, currently administered by the Patent and Trademark Office ("PTO"), was created when Congress enacted the Patent Act of 17901 pursuant to its power "to promote the Progress of ... the useful Arts by securing for limited Times … to Inventors the exclusive Right to their ... Discoveries."2 Over the ensuing 220 years, Congress continued to exercise that power through successive legislative enactments the most recent comprehensive manifestation of which is the Patent Act of 1952,3 codified as title 35 of the United States Code.4 Subsequently, the Patent Act of 1952 has been revised a number of times by amending and deleting certain sections, and adding others. Introductory Background The March 4, 2010 "Manager's Amendment" of S.515 is the current Senate version5 of the pending "Patent Reform Act
Expert reports in summary judgment motions ... in or out?
Expert reports in summary judgment motions ... in or out? By Hon. Arthur M. Diamond. June 2010. Recently, I had the opportunity to participate in an evidence program at the County Attorney's Office which led to a lively (seriously!) discussion about the admissibility of expert reports submitted within summary judgment motions (CPLR§ 3212). Specifically, this discussion centered around several recent Second Department decisions which were striking expert reports submitted as part of summary judgment motions that had not been "noticed" pursuant to CPLR §3103(d)(1). In view of the fact that the notice requirement in CPLR§ 3101 (d)(1) specifically refers to admissibility at trial, this month's column looks at those cases and the statutes involved. The summary judgment section of the CPLR §3212(b) states in relevant part that the motion for summary judgment "...shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written ad
Cancelling child support arrears
Cancelling child support arrears. Will the recently decided case of Carlton v. Heller start a trend? By Russell I. Marnell and Scott R.Schwartz. June 2010. A client calls you and tells you that their former spouse has been interfering with their visitation rights and that they haven't seen their kids in three months. Another client tells you that they have lost their employment through no fault of their own, and they cannot find another job, no matter how hard they try. A third client calls to inform you that they have become disabled and can no longer afford to pay child support while a fourth tells you that their child has become emancipated, either through entry into the military, by getting married or by becoming financially independent. In any event, these respective clients ask you what their rights are with respect to their child support obligation. You advise these clients that under those circumstances, they might be entitled to a downward modification or a suspen
Inherited IRAs and Bankruptcy
Inherited IRAs and Bankruptcy . July/August 2010. By Robert Barnett and Renato Matos. Individual Retirement Accounts (IRAs) are generally exempt from claims in bankruptcy. Under Bankruptcy Code Section 522(d)(12), an individual debtor may exempt from property of the bankruptcy estate "retirement funds to the extent that those funds are in a fund or account that is exempt from taxation under section 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986."1 Although New York has opted out of the federal exemptions, New York law provides a similar exemption for individual retirement accounts. Section 282 of New York's Debtor and Creditor Law allows an individual debtor domiciled in the State of New York to exempt from the property of the estate, personal and real property exempt from application to the satisfaction of money judgments under Section 5205 of the CPLR.2 That section of the CPLR provides in relevant part that "all property while held in trust for a judgm
Chapter 11 asset sales - Section 363 sales vs. sales under Chapter 11 plans
Chapter 11 asset sales - Section 363 sales vs. sales under Chapter 11 plans. By Scott Mandelup. July/August 2010. Recent decisions in the Chrysler and General Motors Chapter 11 bankruptcy cases have focused attention on the use of § 363 of the Bankruptcy Code1 to sell substantially all of the assets of a debtor, rather than selling the assets pursuant to a duly confirmed Chapter 11 plan of reorganization.2 In those cases, bankruptcy judges in the Southern District of New York approved multi-billion dollar sales under § 363(b) of substantially all the assets of GM and Chrysler, prior to confirmation and without a Chapter 11 plan.3 In a Chapter 11 reorganization, a sale of substantially all of the assets of the debtor can be accomplished in two ways; either a sale prior to confirmation of a plan of reorganization, under § 363(b),4 or pursuant to a confirmed Chapter 11 plan providing for the sale. Plan confirmation is usually a time consuming process requiring Bankruptcy Court approval of
Exemptions in bankruptcy
Exemptions in bankruptcy. By Kenneth Kirschenbaum and Stacy Spector. July/August 2010. Upon the filing of a voluntary Chapter 7 bankruptcy petition title to all property owned by the debtor, both legal and equitable, become property of the bankruptcy estate; title passes to the Trustee by operation of law.1 Debtors in all jurisdictions are entitled to certain exemptions; exempt property does not become property of the estate.2 New York has opted out of the Federal Exemptions, pursuant to 11 U.S.C. Section 522(b)(1), and therefore it is the state exemptions that apply. Debtors filing chapter 7 petitions in New York are entitled to exempt certain property from their bankruptcy estate. The exempt property does not become property of the estate upon filing, and if taken into the estate should promptly be returned to the debtor. Exemptions can be found in a number of New York statutes, primarily Civil Practice Law and Rules, Personal Property Law and Debtor and Creditor
Can this marital residence be saved? Declaring Bankruptcy to prevent foreclosure after divorce
Can this marital residence be saved? Declaring Bankruptcy to prevent foreclosure after divorce. By Heath S. Berger and Jessica A. Gould. July/August 2010. Picture the following: while divorcing, the custodial parent is granted exclusive use and occupancy of the marital residence with the children. The noncustodial parent is then directed to pay the monthly mortgage payment and other carrying charges on the marital residence. For whatever reason, the noncustodial parent falls behind on those payments, the house enters foreclosure, and a sale is scheduled. To stay in the marital residence, the custodial spouse is forced to file a motion seeking to either compel payment or hold the noncustodial parent in contempt. Can the noncustodial parent stay the foreclosure, avoid contempt, and obtain more time to make the payments by filing a Chapter 13 bankruptcy petition? In certain circumstances the answer is yes, and attorneys representing debtor spouses should investigate this option at
Bankruptcy law vs. employment discrimination. Debt should never be the sole reason behind treatment of an employee or applicant.
Bankruptcy law vs. employment discrimination. Debt should never be the sole reason behind treatment of an employee or applicant. By Stuart I. Gordon and Matthew V. Spero. July/August 2010. The ongoing economic crisis has caused a significant increase in the number of individuals who are filing for bankruptcy on Long Island, throughout New York, and across the nation. More and more people, in a final effort to escape crushing debt, have sought to obtain a financial "fresh start" by availing themselves of the protections of the Bankruptcy Code to stop creditors from attaching their assets or foreclosing on their property. Since individuals who seek bankruptcy protection are already financially burdened, the Bankruptcy Code bars employers from taking certain actions against bankrupt employees and job applicants which may be detrimental to their "fresh start." In particular, Section 525 of the Bankruptcy Code, 11 U.S.C. § 525, protects persons who have sought bankruptcy protecti
The slow road to economic recovery
The slow road to economic recovery. By James C. Ricca and Kathryn Sammon Burns. July/August 2010. Despite the real estate and financial markets' efforts to rebound, global, national and local pressures are squeezing the markets, causing them to sputter. In an effort to assist delinquent homeowners, our State and Federal Governments have promulgated laws that delay the foreclosure process and have increased banks' expenses and liabilities. Though well intended, the new laws and government programs will most likely cause a continuation of the depressed real estate market and more bank failures, which ironically, was the impetus of the current recession. This article seeks to explore the new State and Federal foreclosure laws and to illustrate their impact on real property foreclosures and the banking industry. The Recession According to the United States Department of Labor, national unemployment figures are presently 9.5 %, New York stands at 8.6%, and the Long Island metro ar
Want to find more clients? How about 250 potential new clients a week?
Want to find more clients? How about 250 potential new clients a week? By Gregory S. Lisi. October 2010. At a time when the economy is spiraling down, advertising is becoming more expensive, and clients are becoming harder to acquire, the question I hear on most attorneys' lips is, "How do I find more clients?" Many attorneys are turning to internet advertising, or increasing their presence in the yellow pages or newspapers. Some are trying radio or television advertising, or examining print advertisements in ethnic newspapers. Some are flying around the country to industry functions or insurance conventions to meet with potential clients. All of these are viable options, but all of these cost thousands, if not tens of thousands of dollars per year. Everyone is complaining about these costs but see little alternative. However, there is an option right here in our own back yard, which any member of the Nassau County Bar Association has access to, but far too few are taking advan
Enjoining State Courts under the All Writs Act
Enjoining State Courts under the All Writs Act. By Thomas F. Liotti. October 2010. How to stop frivolous litigation The article defines what the All Writs Act1 states and then briefly explores the history of the Act, dating back to the origins of issuing writs in English law and the origin of the enactment of the Act, from the Judiciary Act of 1789 and former versions in the United States Code from the early 20th century. This article then examines the purpose and scope of the Act, as well as the specific limitations of it, stemming from the Anti-Injunction Act. Finally, this article analyzes how federal courts may utilize the Act to enjoin state courts and the litigants who bring frivolous claims in those proceedings. The All Writs Act The All Writs Act, 28 U.S.C. §1651 (2008)2 (hereinafter "AWA") is separated into two sections: "(a) The Supreme Court and all courts established by the Act of Congress may issue all writs necessary or appropriate in aid of their respective ju
The federal estate, gift and generation skipping transfer taxes
The federal estate, gift and generation skipping transfer taxes. By Barry C. Feldman. October 2010. Where are we now? And where are we going? The Economic Growth Tax Relief Reconciliation Act of 2001 ("egtrra")1 provided significant estate and gift tax relief through 2009. By 2009, the aggregate amount which could be transferred by a person during his lifetime by gifts in excess of the annual per donee exclusion (that's the amount a person can give to anyone each year - currently $13,000) increased to a maximum of $1 million and the combination of lifetime taxable gifts and transfers at death increased to a maximum of $3.5 million. In addition, the maximum unified estate and gift tax rate was reduced to 45%. EGTRRA also contained a provision by which both the estate tax and the generation skipping transfer ("gst") tax were repealed for tax years beginning after december 31, 2009. However, if nothing more were done, the law as it was prior to the enactment of egtrra would come back
Timing is everything; in filing for bankruptcy as in life
Timing is everything; in filing for bankruptcy as in life. By Kenneth Silverman and Mark J. Friedman. October 2010. In a time of greater economic complexity and financial hardships, bankruptcy has become more than just a tool of financial survival. When coupled with divorce, it often leads to a true fresh start. The timing of either the filing for relief under the Bankruptcy Code or filing a divorce proceeding can be critical and there are important factors to consider when contemplating either. Bankruptcy Before Divorce Filing a joint bankruptcy case before a divorce can be beneficial because it could save a married couple thousands of dollars in attorney's fees and court costs. When a husband and wife file jointly for bankruptcy the discharge of their debts is easily understood. The main advantage to the married couple filing for bankruptcy before divorce is to know, before going into the divorce process, how the parties' debts and property rights will be handled. The parties
Ballot box blues
Ballot box blues. October 2010. The Nassau Lawyer October 2010. By Cheryl Helfer. It's September 14th, primary day in New York. As I have done every year since I registered to vote, I arrived, bright and early at the high school around the corner from my house, my designated polling place. This year, however, was going to be different. The 80-year-old lever machines with which I had long since become comfortable and familiar had been replaced by 2010, state of the art, computerized machines. Have I told you how much I don't like change? What was wrong with the old machines, anyway. I had long since compensated for the fact that I was too short to read the top line by looking at the paper ballot spread out on the sign in table before I went into the booth. I liked the way the machine made sure I didn't vote for more than the number of candidates designated in any one category. And I particularly liked that I could bring my children into the booth with me so that they could "help" me
Making a law degree a good investment in the recession
Making a law degree a good investment in the recession. October 2010. By Meryl Serotta. While the recent recession statistically ended in June 2010, this economic climate has presented additional and ongoing challenges for practicing lawyers. There have been significant associate layoffs, reduced hiring of new graduates and shrinking partnership opportunities.1 Some law firms, particularly when pushed by clients for cost savings, have turned to the use of "contract lawyers:"2 outsourcing or "offshoring" their legal work to independent lawyers outside their firm who are paid by the hour and have neither job security nor benefits. Yet law school applications continue to rise, fueled by this difficult economy where college grads have limited job offers.3 Practicing attorneys must accept that times have changed, and modify their advice to their adult children or to young lawyers whom they mentor. How can we as lawyers best prepare our adult children to meet the new increase in competit
Nathel v. Commissioner: Recent case provides guidance for S corporation losses
Nathel v. Commissioner: Recent case provides guidance for S corporation losses. By Robert S. Barnett. November 2010. Nathel v. Commissioner1 provides a good review of S corporation loss utilization, open account debt issues and loss recognition for payment of shareholder guarantees. In the current economic downturn, these are all extremely important issues confronting tax return preparers. Ira and Sheldon Nathel organized three corporations, all of which elected to be taxed as Internal Revenue Code (IRC) Subchapter S corporations (hereinafter referred to as "S corporations"), which election generally permits income to be subjected to only one level of taxation. They personally guaranteed $2.5 million in loans made by two banks, and they each made substantial personal loans to the food distribution businesses operating pursuant to the corporation's purposes. The business experienced losses, and under the S corporation rules, these losses were passed through to the shareholders.2 I
Consular Notification under the Vienna Convention
Consular Notification under the Vienna Convention. By Andrij V.R. Szul. November 2010. On Thursday, November 18th, the Nassau Academy of Law (NAL), presented a Dean's Hour entitled "Requirements of Foreign Consulate Notification Upon the Arrest/ Detention Of A Foreign National." The Dean's Hour addressed the unique challenges facing the Criminal Defense and Immigration Bars concerning Consular Notification1 mandates under U.S. and International law. If not handled properly, Consular Notification cases may raise profound constitutional questions given the U.S. Supreme Court decision in Sanchez-Llamas v. Oregon (548 U.S. 331), in which the high court held that state courts did not have to exclude evidence admitted into court in violation of Article 36 of the VIENNA CONVENTION ON CONSULAR RELATIONS (1963; U.S. 1960 at 21 UST 77; TIAS 6820; 596 UNTS 261). At issue are key concerns of evidentiary exclusion or prosecutorial preclusion, and violations and sanctions under International Law a
Managing your practice from afar
Managing your practice from afar. By Anthony Emanuel. November 2010. Everyone needs to get away, whether it's just for a few days or several weeks. The grind can be relentless. During these periods of respite we are able to clear our minds and refresh ourselves both in body and soul. However, there are both pragmatic and ethical challenges to be met in order to grant oneself this time to rejuvenate. Careful planning for your chosen time away from the office should also address ethical considerations. This will enhance the potential for a relaxing and enjoyable vacation. Make a plan and keep it. Plan your voluntary time away well in advance. Thereafter, be disciplined enough to schedule your calendar, court appearances, client meetings and trials around your planned time away. Selfdiscipline regarding scheduling is sometimes difficult due to the demands of individual cases and clients.
Preparer Tax Identification Number ("PTIN") – Attention: Estate, elder care and other attorneys
Preparer Tax Identification Number ("PTIN") – Attention: Estate, elder care and other attorneys. By Alan E. Weiner. November 2010. If you expect to sign any (and I do mean ANY – there is no de minimus rule) Federal tax return for which you receive compensation, you need a PTIN (Preparer Tax Identification Number) from the Internal Revenue Service ("IRS"). If your answer is 'no,' you can skip the rest of this alert. Certified Public Accoun­tants and non-licensed storefront tax preparers seem to be aware of this new IRS initiative but my experience over the last month from speaking with fellow attorneys is that many never have heard about a PTIN (which has been in existence for many years but was not required for tax preparation) and the rules announced by the IRS on September 28, 2010 requiring all compensated tax preparers (and, in many cases, many of their employees such as paralegals) to register with the IRS before the tax preparer signs and files his/her first tax return on or aft
How to get paid: Collecting fees in tough times
How to get paid: Collecting fees in tough times. By Allison C. Shields. November 2010. Cash flow is always an important issue for law firms, but this economy and the availability of online and "do it yourself" options has put additional pressure on lawyers. What should you do to improve the chances that your clients will pay you in full and on time? Talking to Clients About Fees Every problem with fees, billing or getting paid, relates back to the initial meeting with the client. That meeting is where you determine whether the client is a good fit for your practice, which may include rejecting clients who are unwilling or unable to pay at the outset - before work is begun. The initial meeting sets the stage for the entire engagement, and lawyers should be careful not to gloss over financial matters. Most people are uncomfortable talking about money, including clients. But whether they want to talk about it or not, clients will certainly be thinking about money and how mu
Outsider trading - Lawyers' liability for securities fraud
Outsider trading - Lawyers' liability for securities fraud. By Stanley H. Fischer. November 2010. The sequel to Wall Street having been released, it appears appropriate to reflect that insider trading scandals are not only a vestige of the 1980's but are as active as ever. Gordon Gecko may be wavering on if "greed is good," but the SEC certainly continues to fight the Martha Stewarts of this world. Through their positions of trust, corporate lawyers are not immune to the siren song of greed. On occasion they find themselves in situations that present a lucrative yet illicit investment opportunity. Such opportunities place the attorney at a crossroads as a guardian of insider information versus liability for breach of an ethical duty. Federal regulation, common law, and corporate policies are all mechanisms to combat the increasing amount of insider trading by attorneys, including a probe at the SEC in 2009 of its own attorneys.1 Attorney liability for insider trading may result in impr
Corporate governance and the family business
Corporate governance and the family business. By Richard G. Gertler. November 2010. Clients who own small and family businesses, particularly in these tough economic times, are often resistant to the suggestion of spending money on legal fees to document the ownership of the corporate entity, draft a shareholders' or operating agreement and/or document the responsibilities of key personnel. The mere suggestion by counsel that the time and money be expended to properly document the ownership and operations of the business immediately becomes scrutinized by the business person as just another self-interest effort by counsel to churn fees. However, the small and family business owner is often unaware that the legal fees associated with such preventive measures likely will be far lower than the financial and emotional cost of future litigation. This article addresses the need to document ownership and to outline the duties and responsibilities of key employees in small and family businesse
Family Health Care Decisions Act A surrogate decision-making framework
Family Health Care Decisions Act A surrogate decision-making framework. By Jennifer B. December 2010. New York State recently passed a new public health law regarding health care decisions for individuals who lack capacity to make their own decisions and who have not appointed a health care agent to act on their behalf. The Family Health Care Decisions Act ("FHCDA"), codified under Article 29-CC of the Public Health Law and effective as of June 1, 2010, establishes a decision-making process in which a surrogate1 is selected and authorized to make health care decisions for such a patient. This article highlights critical aspects of the new law.2 Priority of Decision A Health Care Agent appointed under a Health Care Proxy has decision-making priority under existing law before looking to the new Family Health Care Decisions Act ("FHCDA"). Health care providers are required to make reasonable efforts to determine if there is an appointed health care agent and to contact that agen
Testamentary substitutes and the right of election
Testamentary substitutes and the right of election. By Sharon Kovacs Gruer. December 2010. New York Estates Powers and Trust Law ("EPTL") Section 5-1.1-A provides a right of election for the surviving spouse to take a share of his or her spouse's estate, no matter what the will provides. The current law pertaining to the right of election states that the elective share of the surviving spouse is the greater of one-third of the net estate, as augmented by the statute, or Fifty Thousand Dollars ($50,000). However, if the estate is less than Fifty Thousand Dollars ($50,000), the elective share is the value of the net estate.1 In computing the net estate, debts, administration expenses and reasonable funeral expenses are deducted, but all estate taxes are disregarded.2 The amount to which the spouse is entitled under the elective share is, of course, reduced by any interest which passes outright to the spouse, whether by the decedent's will, testamentary substitute or intestacy.3
The New York State Physician Profile: A practitioner's guide
The New York State Physician Profile: A practitioner's guide . By David A. Zarett and Joshua A. Boxer. December 2010. After some highly publicized cases involving "bad outcomes" by physicians with prior disciplinary histories which were otherwise unknown to the public, in particular the Lisa Smart matter of 1997, the New York State Legislature passed and Governor George Pataki signed into law, the New York Patient Health Information and Quality Improvement Act of 2000 (the "Act"), creating what we now know as the New York State Physician Profile ("the Profile").1 The Act can be found at New York Public Health Law § 2995 et seq. ("the Profile Statute") and its regulations can be found at Title 10 N.Y.C.R.R. 1000 et seq. (hereinafter, the "Profile Regula­tions"). In general the Profile is a publically available online database which contains a wealth of information about every physician licensed in New York State, including background on a physician's medical education and tr
Estate of Schneider v. Finmann A direct breach of the front lines of privity? No - more of a flanking action.
Estate of Schneider v. Finmann A direct breach of the front lines of privity? No - more of a flanking action. By Donald J. Farinacci. December 2010. "Fortress Privity," which had protected estate planning attorneys and others against malpractice suits brought by injured parties after the client's death, relied on the rock-solid foundation set forth in Estate of Spivey v. Pulley, 138 A.D.2d 563, 564 (1988). Set in concrete was the rule in Spivey, which proclaimed that "absent fraud, collusion, malicious acts or other special circumstances," an attorney is not liable to third parties, not in privity with the attorney, for harm caused by professional negligence. [See also, Deeb v. Johnson, 170 A.D.2d 865 (1991).] Nevertheless, stout-hearted fiduciaries and beneficiaries of estates, having suffered many rebuffs, did not retreat. For decades, their battalions gallantly mounted one direct assault after another against the well-entrenched battlements of the impenetrable wall of privity
New York State Family Health Care Decisions Act
New York State Family Health Care Decisions Act. By Stephanie M. Reilly Keating. December 2010. The New York State Family Health Care Decisions Act may impact unsuspecting clients of attorneys and accountants. It is the result of a history of conflicts between hospitals and families of patients without an executed health care proxy. It applies to health care provided in a public hospital to a patient lacking health care decision-making capacity.1 Under certain conditions, a private hospital and individual health care providers are not required to follow this statute. Prior to relying upon a surrogate, health care providers makes reasonable efforts to determine whether a health care agent has been appointed.2 If they cannot locate a health care agent, they will rely upon the surrogate.3 The surrogate is selected to make health care decisions on behalf of a patient. They notify the physician of their decision orally or in writing.4 If it is later determined the decision-making
Beware: Bequests to non-U.S. citizen spouses may not qualify for the Estate Tax Marital Deduction
Beware: Bequests to non-U.S. citizen spouses may not qualify for the Estate Tax Marital Deduction. By Patricia C. Marcin and Jordan S. Linn. December 2010. Generally, for purposes of computing the Federal estate tax (as well as the New York estate tax), bequests to a surviving spouse qualify for the marital deduction under Internal Revenue Code ("Code") Section 2056. The result of this, of course, is that assets passing to the surviving spouse are excluded from the deceased spouse's taxable estate, thus deferring any potential estate tax until the surviving spouse's death. However, unless certain conditions are met, Code Section 2056(d) disallows the marital deduction where the surviving spouse is not a United States citizen. The United States Government's obvious concern here is that a non-citizen spouse will inherit a sizeable estate from his or her spouse, and then return to their homeland without paying any estate taxes. Unfortun­ately, the imposition of a costly federal estate tax
The carry-over basis dilemma
The carry-over basis dilemma. By Robert Katz and Neil D. Katz. December 2010. The Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) repealed the estate tax for 2010. Along with the repeal, EGTRRA changed the way an estate's beneficiary computes his or her income tax basis for property that is inherited. Prior to 2010, the beneficiary's basis for property inherited from an estate was its "estate tax value." Estate tax value is, generally, the fair market value of the property on the date of the decedent's death. Section 1022 of the Internal Revenue Code of 1986 ("IRC") provides that the income tax basis for assets inherited from an individual who died in 2010 is the lesser of the decedent's adjusted basis for the property or its fair market value. One of the major problems with this change is the determination of the decedent's basis. For assets acquired many years prior to death the determination of cost basis requires records that may no longer be available. Th
As The World Turns: Immigration Law in the Post-9/11 Era
As The World Turns: Immigration Law in the Post-9/11 Era . By Andrij V.R. Szul. February 2011. "As The World Turns."1 It could be said that two important benchmarks in the development of contemporary Immigration Law over the past two decades have been the collapse of the Soviet Union2 and 9/11.3 Without question, the demise of the Soviet Union has had a profound and lasting effect on U.S. Immigration Law policy and practice. But before perestroika even had a chance to finish its reshaping of the world's map, perhaps to augur a new era of global peace and democracy, the U.S. suffered its greatest terrorist attack on the morning of September 11, 2001 ("9/11"). The reaction by our legal system to 9/11 was massive. President George W. Bush and the U.S. Congress were immediately forced to reassess how to protect our country from further attacks. Various laws, the foremost being the Patriot Act,4 were passed on a fast track, and a top to bottom overhaul, still a work in progress at best, wa
Life is But a DREAM and Anchors Away
Life is But a DREAM and Anchors Away. February 2011. Linda G. Nanos. Many of us remember the always confused character Emily Litella, played by Gilda Radner on Saturday Night Live in the 1970's. A skit today might go something like this: "What's all this fuss about people talking about angry babies and the dream act? Why are babies angry these days and who doesn't like dreams?" "Hold on, Emily. They're talk­ing about immigration issues - Anchor Babies, born in the U.S. to foreign nationals, and The DREAM Act, a bill in Congress."1 "Oh. Never mind!" Currently there are two vulnerable groups in the immigration spotlight: babies born in this country to undocumented foreign nationals who are citizens by birthright (so-called "Anchor Babies")2 and youth who arrived here as minors and have been educated in our system but lack legal immigration status. The commonality of the two is that their status, or lack thereof, was determined by the acts of their parents.
A View From the Bench Part II A Comparison of the Rules of Evidence and Trial Procedures In Federal and State Courts
A View From the Bench Part II A Comparison of the Rules of Evidence and Trial Procedures In Federal and State Courts. February 2011. The differences between the Federal and State rules of evidence and trial procedures are hardly confined to the hearsay rule. Below, I will discuss rules on unfairly prejudicial evidence, the role of the judge and expert testimony before giving an overview of some differences between Federal and State practice.
Consequences in Criminal Proceedings of Foreign Consular Notification, or Failure to Notify
Consequences in Criminal Proceedings of Foreign Consular Notification, or Failure to Notify. February 2011. By Peter J. Tomao. The arrest of a foreign national by the United States becomes an international affair. The United States has complex treaty obligations governing this situation. This article is intended to provide the practitioner with an overview of this process because Article 36 of the Vienna Convention creates obligations for arresting authorities.
Young Immigrants: Special Relief for the Most Vulnerable
Young Immigrants: Special Relief for the Most Vulnerable. February 2011. By Miriam Chocron. One of the most vulnerable segments of society is undocumented, abused children removed from the home and placed in the care and custody of the State. Many have been the targets of gang violence or exploitation by organized crime. In addition to the threat of arrest, detention, and deportation, undocumented minors are unable to obtain lawful employment and/or attend college.
Immigration Laws – Federal v. State Jurisdiction The ball is in whose 'court'?
Immigration Laws – Federal v. State Jurisdiction The ball is in whose 'court'? February 2011. By Howard Brill. Due in large measure to the perception, whether valid or not, that the federal government has failed in its attempt to enforce immigration laws and enact comprehensive immigration reform, many states have taken it upon themselves to pass their own legislation in the immigration arena. This article will discuss the proliferation of state immigration related legislation and address the various litigation brought by organizations as well as the federal government against states that have enacted this legislation. The federal government has historically been the principal authority with respect to U.S. Immigration laws, rules, regulations and policies. The courts have traditionally upheld the exclusive jurisdiction of the federal government concerning immigration matters. In Hines v. Davidowitz,1 the Court upheld the premise that state attempts to enact immigration related legisla
May an 'Undocumented Alien' Recover Lost Wages?
May an 'Undocumented Alien' Recover Lost Wages? February 2011. By David Gabor. An undocumented alien is hired by a company. He climbs up a dangerous and defective ladder fifteen feet above the ground with a heavy sack over his shoulder. The ladder tips and tosses the employee to the ground where he sustains serious injuries. Are there any remedies available for him? The answer is that it depends. Another undocumented alien is hired by the same company and is fired for getting involved in organizing a union in the workplace. Can that employee recover lost wages? Once again, the answer is that it depends.
Criminal Law and Immigration: Cross-Currents
Criminal Law and Immigration: Cross-Currents. February 2011. By Michael Kohler. At last, the interconnectivity between immigration law and criminal law has gained the attention it has long deserved. Immigration practitioners have for years encouraged criminal defense attorneys to take more of an interest in their client's immigration status when resolving their criminal law matters.
New Standard for Vehicle Search Incident to Arrest
New Standard for Vehicle Search Incident to Arrest. By Charles Holster. July/August 2009. Few areas of the law have been as subject to shifting constitutional standards as that of the exception to the warrant requirement for a search "incident to arrest."
A View from The Bench: A Comparison of the Rules of Evidence and Trial Procedures In Federal and State Courts
A View from The Bench: A Comparison of the Rules of Evidence and Trial Procedures In Federal and State Courts. January 2011. By Hon. Arthur D. Spatt. The rules of evidence used in the Federal courts are codified in a single statute known as the Federal Rules of Evidence (the "FRE"). Enacted by Congress, with great input from the Federal Judicial Conference, they took effect on January 2, 1975. Many States have adopted the Federal Rules of Evidence. New York State (the "State") has declined to do so as yet, a mistake in my view. The State's rules of evidence are found partly in statues, such as the CPLR, the Criminal Penal Law, the General Business Law, the Estate Power and Trust Laws, and the Family Court Act. That said, the State's evidentiary law has developed principally though the "Common Law," meaning by court decisions. This two-part View from the Bench column will give an overview of some of the differences between State and Federal evidentiary rules, with an empha
Protecting Anonymous Speech on the Internet with Reporters' Shield Laws
Protecting Anonymous Speech on the Internet with Reporters' Shield Laws. By Samantha Fredrickson. March 2011. The right of a news reporter or media organization to protect the confidentiality of its sources is well recognized in nearly every state. But what about the right to protect the identity of someone who comments anonymously on a news organization's website or blog? In an emerging trend, some courts have recently held that traditional state shield laws meant to protect a reporter's source also protect anonymous commenters. State shield laws provide varying degrees of protection. Whether they can be used to shield the identities of anonymous commenters depends on how broadly state statutes reach. Only a handful of shield laws have been interpreted to protect anonymous website commenters, but these cases illustrate a very important trend. As the relationship between reporters and sources evolves with the Internet, these courts are recognizing that the law must also change i
Income Tax Consequences of Cancellation of Debt
Income Tax Consequences of Cancellation of Debt. By David Kass. March 2011. The topic of Cancellation of debt (called Forgiveness of Debt when I first encountered the topic in my individual tax accounting course as an undergraduate), is a particularly timely one right now as personal and business bankruptcy filings are at all time highs. The first thing to understand is that, under the general rule laid out in Internal Revenue Code Section 61 defining what constitutes gross in­come, the cancellation of debt causes gross income to increase by the amount of debt that is cancelled (IRC 61(a) (12). Many people ask why the cancellation of debt causes an increase in their taxable income. Actually, the concept is simple and makes perfect sense. For example, if you owe your bank $100,000 on a mortgage, and the bank lets you know in writing that it will accept $50,000 in full satisfaction of your mortgage, that is the same as if you had earned the cancelled $50,000 of mortgage, combined it with
View From The Bench. The Law of E-Discovery Grows Up. Part 1: Victor Stanley v. Creative Pipe
View From The Bench. The Law of E-Discovery Grows Up. Part 1: Victor Stanley v. Creative Pipe. By Hon. Arthur M. Diamond. March 2011. My next two columns address the rapidly growing and complex area of electronic discovery and the issues that surround it. When talking to attorneys who litigate in this field and judges who have presided over cases involving these matters their common theme is that our courts and departments are "all over the place" on these issues. Given the rapidly developing technology of legal practice today that should not be all that surprising. What I hope to accomplish here is to identify and discuss problems and trends that practitioners should be aware of in this really interesting area of practice.
Courts in Conflict over Computer Hacking Statute
Courts in Conflict over Computer Hacking Statute. By Daniel J. Lefkowitz. March 2011. The Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. §1030, was enacted by Congress in 1986 to criminalize and to deter computer "hacking." The CFAA has been amended six times - most recently by the U.S.A. Patriot Act and the Identity Theft Enforce­ment and Restitution Act. The statute authorizes the imposition of fines and imprisonment against any person who "intentionally accesses a computer without authorization or exceeds authorized access" and thereby obtains "information from any protected computer." 18 U.S.C. § 1030 [a][2][c]. The statute prohibits unauthorized access obtained by persons who were physically present at the site of the protected computer as well as from remote locations via the Internet.
Hidden Use of Competitors' Trademarks on the Internet. The Second Circuit's Minority Approach
Hidden Use of Competitors' Trademarks on the Internet. The Second Circuit's Minority Approach. By Todd Bank. March 2011. A website consists of a home page and, usually, additional pages. One factor that determines whether the results of a search-engine inquiry include a particular webpage (whether a website's homepage or one of its additional pages), and where the webpage appears in those results, is the webpage's use of metatags. A metatag is a piece of text, such as a word, that is embedded in a webpage's HTML (hypertext markup language) code and is read by search engines but is not visible to internet users.
Personal Jurisdiction Questions for Trademark Claims Caused by Out of State Websites
Personal Jurisdiction Questions for Trademark Claims Caused by Out of State Websites. By Keith Weltsch. This article will analyze the factors that New York courts have utilized in determining whether it is proper to exercise jurisdiction over out of state defendants that offer or sell products on the internet that prospectively infringe upon the trademarks of others, particularly focusing on CPLR §302, or the Long Arm statute, and how each of the sections contained therein relate to this inquiry.
Potential Legal Issues Associated with Internet Promotions
Potential Legal Issues Associated with Internet Promotions. By Terese L. Arenth. March 201. Online promotions can be effective mechanisms for promoting a company's business, product or services. With the growing popularity and viral nature of social networking, social media sites, such as Facebook, YouTube and Twitter, have become hot marketing platforms for the administration of sweepstakes and contests, in addition to promotions conducted on a company's own website.
The Perils of Social Media in the Workplace
The Perils of Social Media in the Workplace. By Jennifer McLaughlin and Justin Capuano. March 2011. The Internet opened the door to the explosion of what has become known as social networking. Generally consisting of a website or discussion forum in which users can connect and share information, social networking provides employers with unprecedented opportunities to communicate with clients and potential customers. As those networks expand, with each "friend" "friending" others and each tweet inspiring another tweet, employers must consider the actions they take with respect to employees as a result of social media information. For all of the benefits that social networking provides to businesses, it can also result in serious financial and legal consequences.
Litigation in the 21st Century Impeaching Your Adversary Using Evidence From Social Websites
Litigation in the 21st Century Impeaching Your Adversary Using Evidence From Social Websites. James Fiorillo. April 2011. The use of social websites such as Facebook and MySpace has become a common way for people to socialize and share information about themselves and their activities. These websites offer members a way to create a profile to enter information. The information can be distributed on a public page available to everyone with Internet access or on private pages accessible only by "friends" that are linked to by permission of the member. The advent of social networking has created new ethical and legal challenges for attorneys. Consider attorney Jack Hammer, representing a de-fendant in a slip and fall litigation case. The plaintiff maintains that the incident allegedly caused by the defendant's negligence has resulted in severe physical and mental injuries so that the plaintiff is unable to work or function so as to enjoy life to his fullest. As such, the plaintiff
The Law of E-Discovery, Part II
The Law of E-Discovery, Part II. Arthur M. Diamond. April 2011. As most of you movie goers know, the challenging part of doing a sequel is that it is usually hard to top the original. I promise I am going to do my best in Part II of the law of e-discovery after Victor Stanley v. Creative Pipe Inc. 250 FRD 251 (US Dist. Ct., D. Md., 2008). We left off pointing out that when lawyers supervise discovery in this era of electronic discovery, they are often placed in the dual role of attorney and witness; and when there is inadvertent waiver of the work product and attorney-client privilege during discovery under their watch, the results can be disastrous for both client and counsel.
The LLC: Beware of Statutory Defaults
The LLC: Beware of Statutory Defaults. Robert H. Groman and Barry C. Feldman. April 2011. The New York Limited Liability Company Law ("LLCL") was enacted to create a form of business entity, the limited liability company ("LLC"), which would provide partnership tax status under the Internal Revenue Code while affording its owners ("members") some of the protections comparable to those of a shareholder of a corporation. In order to accomplish these results, the LLCL granted the members of a limited liability company wide latitude to modify the statutory scheme through the use of an operating agreement. Numerous sections of the LLCL begin with or contain the phrase "except as provided in the Operating Agreement." The corollary to this is that, if the operating agreement does not provide for a specific result, the LLCL provides a "statutory default." The adoption of an operating agreement was considered so important to the functioning of a limited liability company that the LLCL requires
Transference and Countertransference: A Psychoanalytic Perspective on the Attorney-Client Relationship
Transference and Countertransference: A Psychoanalytic Perspective on the Attorney-Client Relationship. Robert M. Gordon and Gail Jacobs. April 2011. Clients retain attorneys with myriad expectations, including unspoken emotions that may drive the success or failure of the legal representation. Through years of practice, attorneys develop experience and instincts that help them steer client relationships away from the shoals of misunderstanding. Yet even the most seasoned attorneys find themselves relating with certain clients, in ways that are counterproductive for reasons that are not purely logical.
CWithout Notice: 'Black Ice' Cases Against Municipalities After San Marco v. Village of Mount Kisco
CWithout Notice: 'Black Ice' Cases Against Municipalities After San Marco v. Village of Mount Kisco. Christopher J. DelliCarpini and John M. DelliCarpini. The snows of winter have melted away, but the injuries sustained in those icy conditions - and the ensuing litigation - will linger for years to come. Where plaintiffs sue municipalities over such injuries, though, their burden just got significantly lighter. In San Marco v. Village of Mount Kisco, 2010 N.Y. Slip Op. 09197 (Dec. 16, 2010), the Court of Appeals held that a plaintiff who sues a municipality for a slip-and-fall on "black ice" or other icy conditions need not prove prior written notice if the municipality's negligence created those conditions, no matter how long those conditions took to arise.
Recent Amendments to New York's Exemption Laws
Recent Amendments to New York's Exemption Laws. Joseph S. Maniscalco and Rachel P. Corcoran. April 2011.In a surprise move, as one of his final acts as governor, David Paterson signed into law a number of significant changes to the New York's exemption laws. These changes will undoubtedly change the way in which consumer bankruptcy cases proceed in New York, with greater options and protections for debtors and reduced recourse for creditors and trustees in bankruptcy. Historically, the foundations of New York's exemption laws begin in 1850. New York enacted its first homestead exemption, exempting from execution an occupied residence up to $1,000.1 In Robinson v. Wiley the Court of Appeals explained the policies underlying the then recently enacted homestead exemption: The statute is founded upon considerations of public policy, and has introduced a new rule in regard to the extent of property which shall be liable for a man's debts. The legislature were of opinion, looking to t
NY's Wage Theft Prevention Act Imposing Additional Requirements on Employers
NY's Wage Theft Prevention Act Imposing Additional Requirements on Employers. Christopher G. Gegwich and Ethan D. Balsam. On December 10, 2010, former governor David Patterson signed into law the Wage Theft Prevention Act ("WTPA"), a piece of legislation that comprehensively amends various sections of the New York Labor Law. Enacted as Chapter 564 of the Laws of 2010 and slated to take effect on April 9, 2011, The WTPA imposes additional notice and record-keeping requirements on employers. It also increases employee protections and establishes harsher penalties for non-compliance. Annual and New Hire Notice Requirements Currently, Section 195.1 of the Labor Law requires employers to notify, in writing, all new employees at the time of hiring of their regular rate of pay, regular pay day and overtime rate of pay if they will be eligible for overtime payments. The WTPA amends Section 195.1 to require every employer to provide written notice, both in English and in the primary lan
Indy-Mac Bank, F.S.B. v. Yano-Horoski
Indy-Mac Bank, F.S.B. v. Yano-Horoski. Douglas M. Lieberman. April 2011. The Nassau Lawyer. April 2011. Is the toothpaste back in the tube for equitable remedies in foreclosure cases? In 2009, Justice Jeffrey A. Spinner of the Suffolk County Supreme Court became somewhat of a folk hero when, in Indy Mac Bank F.S.B. v. Yano-Horoski, 26 Misc.3d 717 (Sup. Ct. Suffolk Co. 2009), a mortgage foreclosure action, he invoked the Court's equitable powers to cancel the underlying mortgage and note. Recently, however, the Second Department reversed Justice Spinner. Does that reversal now limit a Judge's ability to fashion an equitable remedy in foreclosure cases? The original mortgage foreclosure action was commenced in 2005. A Judgment of Foreclosure and Sale was granted on January 12, 2009. In accordance with CPLR 3408, as the underlying loan was deemed to be "sub-prime" or "high cost," Ms. Yano-Horoski req
Task Force Explores Nassau Crime Lab Problems
Task Force Explores Nassau Crime Lab Problems. June 2011. Daniel Russo. Most criminal defense attorneys have represented someone accused of possessing and/or selling a controlled substance. For the most part, in cases such as these, the client’s guilt or innocence hinges on the credibility of the police officers who observed the possession or sale and the police officers who recovered the drugs. Did the police have the lawful right to stop and search the client? Did the observing officer truly see a “white rocky substance” at the time of the alleged sale, as is claimed? These are the questions that prosecutors, defense attorneys and judges often grapple with in drug cases. Since December 2010, questions such as these have taken a back seat in courtrooms hearing drug cases throughout Nassau County. Before getting to the issue of probable cause and police officer credibility, criminal defense attorneys now find themselves asking the most fundamental of questions: Is the substance re
The Transparency of Animal Crimes Legislation
The Transparency of Animal Crimes Legislation. June 2011. Jed L. Painter. There has never been a consensus on animals. Taxonomists differ in applying the title. Individuals differ in their sympathies and empathies. It is no surprise, therefore, that there is no clear or singular message that can be divined from the New York State Agriculture and Markets Law. This law, or more specifically Article 26 of this law, houses various crimes that are often generally lumped under the vague commonplace heading of “animal cruelty offenses;” a heading which does not do the Article justice. If you wanted to find the provisions that prohibit you from unjustifiably running a horse on a plank road,1 displaying fowl that have been imparted an artificial color,2 or bartering baby rabbits under two months of age “in any quantity less than six,”3 look to this Article. As much and as often as I look to Article 26 in my role as a prosecutor, what I have discovered is that the vast majority of New York St
It's Just Pot … But it is a Big Deal!
It's Just Pot … But it is a Big Deal! June 2011. Paul Delle. It is a big deal. It is the most prevalent illegal drug used by our children, yet we know little about its effects on their developing brains. WE NEED TO KNOW! Legal consequences of pot possession A first time offender who possesses a small amount of marijuana1 is entitled to make a motion to have the case adjourned for one year and then if there are no further arrests during that year the case will be dismissed.2 Even a “dealer” of marijuana is entitled to this motion if he sells less than 25 grams and the buyer is not less than 18 years old.3 This application may be granted without the District Attorney’s consent as long as the offender has not previously been granted an adjournment in contemplation of dismissal under New York State Criminal Procedure Law §170.55; or a marijuana ad­journment in contemplation of dismissal under New York State Criminal Procedure Law §170.56; or convicted of any crime; or previously adju
Investigating your Client's Bankruptcy Petition How Much is Enough?
Investigating your Client's Bankruptcy Petition How Much is Enough? Marcus Monteiro July-August 2011 The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the "Act")1 put bankruptcy practitioners on stern notice: Put up or pay up. The Act threatened attorneys with penalties for failing to properly investigate petitions for accuracy.2 Specifically, the Act provides that the signature of an attorney on a petition constitutes a certification that the attorney has performed a reasonable investigation into the circumstances that gave rise to the petition and determined that the petition is well grounded in fact, is warranted by existing law, and does not constitute an abuse.3 Regarding the schedules contained in the petition, the Act only requires that an attorney certify that she has no "knowledge after an inquiry that the information in the schedules filed with such petition is incorrect."4 Failing to adhere to the inquiry obligations under the Act is now sanctionable.
Previous Actions Affecting Bankruptcy
Previous Actions Affecting Bankruptcy Paul Devlin July-August 2011 The existence of bankruptcy laws provides an exceptional opportunity to the honest consumer who has fallen on hard financial times. Often, consumers find themselves with no hope of repaying debt after an expensive medical procedure or loss of employment. Chapters 7 and 13 of the Bankruptcy Code allow such debtors to receive a financial fresh start or reorganize their financial affairs in order to keep secured assets such as their home. In many cases, individuals use this opportunity to regain their financial footing and begin making positive contributions to the economy once again. However, along with the benefits of having a bankruptcy system comes the risk that dishonest consumers will abuse the system. For this reason, the Bankruptcy Code has several safeguards in place.
When Limited Liability is Not so ‘Limited’
When Limited Liability is Not so ‘Limited’ Anthony V. Curto and Joseph V. Cuomo July-August 2011 It used to be that corporations and LLCs protected business people from personal liability. Not so fast! As a general rule, business owners and operators running their enterprises in a corporate or LLC form are not personally responsible for the debts and liabilities of their entities. There are, however, certain important exceptions to this general rule. This article provides an overview of these exceptions by describing those situations where a business owner or operator may have personal liability exposure.
The Pendulum Swings: NY Debtors Benefit From New Bankruptcy Exemptions
The Pendulum Swings: NY Debtors Benefit From New Bankruptcy Exemptions Andrew Thaler July-August 2011 Legislation was enacted last year that amended the provisions of New York's Debtor and Creditor Law and Civil Practice Law and Rules ("CPLR") regarding assets which may be claimed exempt from attachment by judgment creditors or a bankruptcy trustee.1 This article addresses changes to provisions of those statutes and their impact upon a debtor seeking protection under the United States Bankruptcy Code. 2 This author believes that these statutory changes represent the most significant development for financially troubled New York domiciled residents since the United States Congress' sweeping overhaul of the Bankruptcy Code in 2005.3
How Accurate is the Appraisal?
No photo for Frooks How Accurate is the Appraisal? July-August 2011George Frooks The best method of determining the value of a house is an arm's length sale,1 yet many times a sale of the property is unavailable. With residential financings, estate or real estate tax assessments, parties typically turn to appraisals. Just because an appraisal was done, does that mean it is reliable? Appraisals have strengths and weaknesses. This article is written to help an attorney evaluate whether or not any particular appraisal really is an accurate estimate of house value.
In re Soho 25 A Road Map for Lenders on Perfecting Interests in Rents
In re Soho 25 A Road Map for Lenders on Perfecting Interests in Rents July-August 2011 Mickee M. Hennessy A recent bankruptcy decision in the United States Bankruptcy Court for the Southern District of New York has provided a useful road map for lenders seeking to perfect their interest in an assignment of a borrower's rents and, conversely, a cautionary tale for borrowers who may seek to utilize the protections of the Bankruptcy Code to reorganize. In Soho 25 Retail, LLC v. Bank of America, N.A. as trustee for the Registered Holders of GS Mortgage Securities Corporation II (In re Soho 25 Retail, LLC) (Hon. Sean H. Lane presiding),1 the Bankruptcy Court addressed the issue of whether the rents from certain debtor-owned real estate were property of the bankruptcy estate or property of the lender by virtue of an assignment of rents executed by the parties.
The Recovery of Attorney Fees in NY State Litigation
The Recovery of Attorney Fees in NY State Litigation Gabrielle R. Schaich July-August 2011 When drafting a complaint, as a matter of course, most attorneys include a cause of action for attorney fees, or at least insert a boilerplate ad damnum clause demanding recovery of attorneys' fees. These attorneys, however, should be well aware of the fact that New York State courts will award attorney fees only in very limited circumstances. Indeed, the so-called American Rule requires that each litigant - even a successful one - bear his own attorney fees (which is the major expense of litigants). In contrast, the European (or English) Rule mandates that the losing party pay all of the winning litigant's legal fees.
No-Contest Clauses - Avoiding a Fight or a Contestant's Delight?
No-Contest Clauses - Avoiding a Fight or a Contestant's Delight? July-August 2011 Lisa M. Sconzo An "in terrorem" or "no-contest" clause is one of a few tricks in an estate planner's arsenal to ward off a possible contest in the Surrogate's Court. But does the inclusion of such a clause in a will necessarily have the desired deterrent effect? Yes and no. It largely depends on a thoughtful and well-informed attorney draftsperson.
Liability Issues in the Foster Care System
Liability Issues in the Foster Care System July-August 2011 Susan Levy Miller Without question, children that reside in the foster care system are members of an at-risk population. ­These children have been placed into the system, either because they were abused or neglected, "delinquent," voluntarily placed by their parent or guardian, or adjudicated in court as a "persons in need of supervision" ("PINS").
September 11, 2001: A Remembrance
September 11, 2001: A Remembrance. By Ira Warshawsky. September 11. Where were you when JFK was assassinated? Where were you when the Challenger blew up? Where were you when President Reagan was shot? All are questions that come up in conversation on the anniversary of those infamous events. But perhaps the most frequently asked question is that posed on the anniversary of September 11, 2001, the day that terrorism permanently scarred our country, and that question is "where were you on the morning of 9/11." No one need ask what year. I remember that date for so many reasons. A medical malpractice trial was coming to an end in my courtroom; the attorneys were about to sum up that morning and I would soon charge the jury. The first plane hit the tower at 8:46 a.m., while most of us were driving to work. I am sure that those old enough, or with a sense of history, all thought the same thing: we remembered being told about the plane that hit the Empire State building so many
Supreme Court's Landmark Wal-Mart v. Dukes Ruling and its Impact on Employment Class Actions
Supreme Court's Landmark Wal-Mart v. Dukes Ruling and its Impact on Employment Class Actions. By Domenique Camacho Moran and Dariely Rodriguez. September 2011. On June 20, 2011, the U.S. Supreme Court reversed the lower courts' certification of a class of approximately 1.5 million current and former female Wal-Mart employees who alleged sex discrimination. In its decision, the Supreme Court raised the bar for plaintiffs seeking class certification, forcing plaintiffs to narrowly define the class when alleging discrimination, and arguably any other legal violation.1
U.S. Supreme Court Continues Trend of Expanding Employee Protections Against Retaliation
U.S. Supreme Court Continues Trend of Expanding Employee Protections Against Retaliation. John T. Bauer. September 2011. Many federal and state labor and employment law statutes, including Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Fair Labor Standards Act (FLSA), prohibit employers from taking retaliatory action against employees who make complaints or exercise rights under the statutes. These anti-retaliation protections exist independent of the underlying substantive provisions of each statute. Thus, for instance, in the context of litigation under Title VII, an employee can lose on an underlying claim of employment discrimination, but prevail on a claim that he/she was retaliated against by the employer for having initially complained to the employer about discrimination. In fact, this scenario – where an employee prevails on a retaliation claim, but loses on the und
The NLRB is All Atwitter About … Social Media
The NLRB is All Atwitter About … Social Media. Jennifer McLaughlin and Justin Capuano. September 2011. The increased popularity of social networking websites has provided employers and employees with unprecedented avenues of communication amongst each other and with the rest of the world. Social media has provided employers with a seemingly limitless resource to reach existing and potential customers. At the same time, social media permits employees the same limitless reach – for better or worse.
New York's Wage Theft Prevention Act: An Overview
New York's Wage Theft Prevention Act: An Overview. Thomas B. Wassel. September 2011. Is a particular employee entitled to overtime, or exempt from coverage under the wage and hour laws? What is the employee's regular hourly rate? What is the overtime rate? When is payday? How often does the employee get paid? Historically, many employees in New York State were left to wonder at the answers to these questions. Some employers took advantage of their employees' lack of knowledge to pay them less than they were owed. The law has changed, however. On December 13, 2010, Governor Patterson signed the Wage Theft Prevention Act into law. The Act attempts to address the problem of employers who fail to pay statutorily mandated minimum wage and overtime by requiring new notifications, enhancing remedies for violations, and strengthening whistleblower protections. The Act became effective April 12, 2011.
When is a Parking Lot a Highway? Prior Written Notice After Groninger v. Village of Mamaroneck
When is a Parking Lot a Highway? Prior Written Notice After Groninger v. Village of Mamaroneck. Christopher J. DelliCarpini and John M. DelliCarpini. September 2011. In Groninger v. Village of Mamaroneck, the Court of Appeals held that a municipal parking lot is a "highway" under General Municipal Law § 50-e(4).1 Plaintiffs in personal injury cases arising from defects or hazardous conditions in municipal parking lots must therefore prove that the defendant was on notice of the condition. The implications of this decision for cases involving other public spaces, however, are far from clear. To be ready to argue where the law should go from here, counsel for both sides should know how we got here.
Competition without Solicitation: Recent Developments Under the Mohawk Doctrine
Competition without Solicitation: Recent Developments Under the Mohawk Doctrine. Douglas J. Bohn and Peter J. Mastaglio. September 2011. The Mohawk Doctrine provides that the seller of a business must refrain indefinitely from soliciting those entities which were customers of the business at the time when the seller sold their interests. Recently, in Bessemer Trust Company v. Branin, in answering a certified question from the Second Circuit Court of Appeals the New York Court of Appeals revisited the Mohawk Doctrine and provided further guidance as to its application.1 Counsel should be ready to guide clients on both sides of such transactions in keeping with this latest decision.
Narrowing the Scope of the 'Reckless Disregard' Standard For Emergency Vehicle Operators
Narrowing the Scope of the 'Reckless Disregard' Standard For Emergency Vehicle Operators. Anthony Michael Sabino and James N. Sabino. September 2011. It was at about this time last year that we had occasion to review the Court of Appeals then-new case refining the liabilities and defenses of emergency vehicle operators involved in vehicular mishaps.1 As we stated then, given the vital role of police, fire, ambulance and other first responders in reacting swiftly to emergencies, yet pitted against the high traffic environment of our highways and byways, this subtopic of vehicle liability law has near-daily ramifications for litigants and counsel.
Avoiding Ethical Pitfalls of Internet Marketing
Avoiding Ethical Pitfalls of Internet Marketing. Allison C. Shields. October 2011. Lawyers have begun turning to the internet more to market their practices, provide information, and communicate with clients. New York's ethical rules1 with respect to lawyer advertising have undergone changes over the past few years, and some ethics opinions have been issued which may further clarify some of the obligations of lawyers when using these technologies. It is recommended that all lawyers fully familiarize themselves with the ethical rules, and particularly the recent rules with respect to lawyer advertising. This article discusses some of those rules, which may be unfamiliar to many practitioners.
Better Never than Late: The Improper Use of Motions In Limine
Better Never than Late: The Improper Use of Motions In Limine. Donald Jay Schwartz and Danielle B. Gatto. October 2011. Last-Minute Motions In Limine You may be surprised to learn that the court can not only permit submission of such a late motion, but can also require you to read the motion in limine for the first time while simultaneously having to argue against it. You will have no opportunity to review the cases cited in support of the motions, nor research the issues presented and provide a written response, despite the extreme importance of the decision. Indeed, in both hypotheticals, if you are unable to introduce the evidence objected to in the motions in limine, you will be precluded from meeting your burden of proof and will result in the dismissal of both actions.
Employment Discrimination Mitigating Damages in a Weak Economy
Employment Discrimination Mitigating Damages in a Weak Economy. Russell Penzer. October 2011. To prevail on a claim for employment discrimination, under Title VII of the Civil Rights Act of 1964, or any of the other federal employment discrimination statutes, a terminated employee must attempt to mitigate his or her damages by using "reasonable diligence in finding other suitable employment."1 The test for the reasonableness of a plaintiff's mitigation efforts is a flexible one, and takes into account such factors as: the individual characteristics of the plaintiff, the job market, and the quantity and quality of the measures taken by the plaintiff to procure alternate employment.2 To satisfy his or her mitigation obligations, a plaintiff need not go into another line of work, accept a demotion, or accept employment in a demeaning position that is not "substantially equivalent" to the one that he or she was denied as a result of the discrimination
Evidentially Speaking
Evidentially Speaking. Arthur M. Diamond. October 2011. Crawford v. Washington, 541 U.S. 36 (2004) remains the evidence gift that keeps on giving. This past spring and summer both the Court of Appeals and the U.S. Supreme Court continued to add to their Crawford progeny and both cases are worth updating you about. People v. Michael Duhs, 16 N.Y.3d 405[2011] was decided on March 29, 2011 by the Court of Appeals. The defendant was babysitting his girlfriend's three-year-old son and allegedly scalded the child's legs and feet when he placed them in a boiling hot bath. The mother returned home five hours later and they both took the child to the ER. At the ER the pediatrician asked the boy why he did not get out of the tub and the boy stated, "He wouldn't let me."
Post-Decision Motions that Defer Time to Appeal Civil Judgments in Federal Court
Post-Decision Motions that Defer Time to Appeal Civil Judgments in Federal Court. Dominic J. Sichenzia.October 2011. The Federal Rules of Appellate Procedure (FRAP) provide for the time to appeal a civil judgment to be deferred when certain post-decision motions are pending, provided the motions themselves are timely. When no post-decision motion is pending, the time to appeal is 30 days from entry of the judgment, pursuant to FRAP 4(a)(1)(A). The time to appeal is triggered by the entry of the judgment in the civil docket, pursuant to Federal Rule of Civil Procedure (FRCP) 79(a), and not by service of the judgment with notice of entry
Practitioners Beware: DOMA's Effect on Same-Sex Marriage
Practitioners Beware: DOMA's Effect on Same-Sex Marriage. Mary Ann Aiello. October 2011.On June 24, 2011, Governor Andrew Cuomo signed a bill into law making New York the 6th state in the union to allow same-sex marriages. Thousands of happy couples lined up outside city hall so that they could join together in matrimony and finally have their relationships viewed equally in the eyes of the law, or so they thought. While this may be true under New York State law, it is not under Federal law. For a long time, proponents of same-sex marriage have argued that same-sex couples should have the same rights as heterosexual couples. In New York State, same-sex couples now have the same right to marry as heterosexual couples, but does this mean that same-sex married couples have the same rights as heterosexual married couples.
Unintended Consequences of Matrimonial Agreements
Unintended Consequences of Matrimonial Agreements. Nancy E. Gianakos. October 2011. Common as a clause may be, drafters of matrimonial agreements need be forward thinking to the time when terms are effectuated. Custom does not always result in best practices and contract terms do not necessarily guarantee the desired result.
Social Media Advertising and Consideration of New York Privacy Laws What Businesses and Advertisers Should Know Before Advertising on Social Media Websites
Social Media Advertising and Consideration of New York Privacy Laws What Businesses and Advertisers Should Know Before Advertising on Social Media Websites. Pedram A. Tabibi. October 2011.The social media rise through websites including Facebook1 and Twitter2 and the increased use of electronic communication has dramatically shifted advertising to the Internet. Google3 and Facebook are among those websites with lucrative and growing advertising revenues. Facebook's online advertising business, in particular, is rapidly growing, taking in an estimated $1.86 billion in worldwide advertising revenue in 2010, with estimates of revenues more than tripling to $5.74 billion by 2012.4 Companies both large and small advertise on Facebook and use many creative means to market their products to Facebook's over 750 million active users.5 Many methods exist to advertise a product on Facebook, most of which are quick and inexpensive, making Facebook advertising appealing and especially attractive
New Patent Law to End U.S. First-To-Invent Patent System
New Patent Law to End U.S. First-To-Invent Patent System. Caleb D. Wilkes. January 2012. The America Invents Act signed into law by President Obama on September 16, 2011 includes new First-To-File patent provisions that in about a year and a half will end the traditional First-To-Invent patent system for U.S. patent rights. The text of the America Invents Act along with proponents of the new law assert that these changes will lead to greater certainty in the scope of patent protection for inventors and patent owners, resulting from simplification of patent office procedures and greater harmonization with foreign patent systems. In any event, the new First-To-File provisions introduce some uncertainties into the patent field, and patent experts and inventors are looking forward with interest to what the courts' interpretations of certain aspects of the new provisions will be. Prior to the America Invents Act, the U.S. had a pure First-To-Invent patent system which was largely uniqu
Patent Reform – Overview of the New Requirements for Post-Grant Review and Inter Partes Review
Patent Reform – Overview of the New Requirements for Post-Grant Review and Inter Partes Review. Susan Paiky. January 2012. The Leahy-Smith America Invents Act ("AIA"), enacted on September 16, 2011, includes significant changes to the options available for post-grant review proceedings by the United States Patent and Trademark Office ("USPTO"). Post-grant proceedings, such as ex parte reexaminations, inter partes reexaminations (now called inter partes review), and the newly created post-grant review, are conducted through the USPTO to reevaluate already-issued patents, and typically lead to the confirmation, amendment, cancellation or withdrawal of claims in a patent.
Trouble With Trademarks How 'Betty' Made Her Mark
Trouble With Trademarks How 'Betty' Made Her Mark. January 2012. James Fiorillo. Many general practice firms that have business clients will encounter trademark issues. Unlike patent prosecution and litigation, which requires an attorney to have special certification from the United States Patent and Trademark Office ("USPTO"), any licensed attorney can provide trademark representation. Provid­ing trademark service can be a way for a general practitioner to add value for business clients and perhaps be a means to attract new clients. This article's focus is to provide a general practitioner with an understanding of what is required to provide trademark service to the client and what problems may be encountered throughout the representation.
When it Comes to Removal, Timing is Everything
When it Comes to Removal, Timing is Everything. January 2012. Kathryn C. Cole. An attorney representing a defendant who has been sued in state court, even though federal jurisdiction exists, will typically consider whether to remove the action to federal court. Sometimes, however, the decision to remove the case to federal court is made only after the expiration of the 30­-day removal deadline in 28 U.S.C. §§ 1441 and 1446, a deadline that cannot be extended by consent or court order. Cook v. Traveler Cos., 904 F. Supp. 841, 842 (N.D. Ill. 1995). A recent decision from the Third Circuit Court of Appeals, however, provides guidance as how to effectively extend the removal deadline in multi-defendant actions.
Threshold Question: Proving 'Serious Injury' in Motor Vehicle Cases After Perl
Threshold Question: Proving 'Serious Injury' in Motor Vehicle Cases After Perl. January 2012. Christopher J. DelliCarpini and John M. DelliCarpini. In Perl v. Meher, decided this November, the Court of Appeals held that plaintiffs in motor vehicle cases need not present contemporaneous quantitative evidence of disability to prove "serious injury."1 In other words, the treating physician need not have measured the plaintiff's range of motion to a precise degree in order to substantiate the severity of the injury. This reverses years of Second Department precedent and removes a significant obstacle to many plaintiffs' cases. But Perl also reminds us what still does not suffice to prove "serious injury," and offers guidance to plaintiffs and defendants litigating such cases.
Recent Appellate Term Rulings Make Gaining Possession of Collateral More Difficult for Foreclosing Lenders, Purchasers
Recent Appellate Term Rulings Make Gaining Possession of Collateral More Difficult for Foreclosing Lenders, Purchasers. September 2013.
Establishing, Maintaining and Expanding Nonconforming Uses
Establishing, Maintaining and Expanding Nonconforming Uses. September 2013. Zoning ordinances are enacted with the intent to create a compatibility of uses within specific geographic areas of a municipality. However, there are certain uses that disrupt the balance that the ordinances are enacted to create. These are known as nonconforming uses. A non-conforming use is "[a] use of property that is no longer authorized due to rezoning, but lawfully existed prior to the enactment of the existing zoning ordinance …"1 "Due to constitutional and fairness concerns regarding the undue financial hardship that immediate elimination of nonconforming uses would cause to property owners … courts and municipal legislators have adopted a grudging tolerance of such uses."2 As a result, nonconforming uses are "permitted to continue, notwithstanding the contrary provisions of the ordinance."3 Nevertheless, the overriding public policy of zoning is to reasonably restrict and eventually eliminate these ty
Navigating Unchartered Waters in Land Use Development Proceeding in the Wake of the Supreme Court's Ruling in Koontz v. St. Johns River Water Management District
Navigating Unchartered Waters in Land Use Development Proceeding in the Wake of the Supreme Court's Ruling in Koontz v. St. Johns River Water Management District. September 2013. Highly publicized, recent decisions by the United States Supreme Court have dealt with a variety of social policy issues such as health care reform, marriage and civil rights. The Court's decision in Koontz v. St. Johns River Water Management District ("Koontz") has received much less public attention. Yet, Koontz has wide sweeping consequences for land owners, developers and local municipalities involved in the review and approval of applications for land-use permits. In fact, it has been feared that the decision will "work a revolution in land-use law"1 by depriving local governments of the ability to charge reasonable permit fees. In Koontz, the developer sought permits from the Water District to build a shopping center on 3.7 acres of land that comprised part of a 14.9-acre tract of wetlands located on
Real Estate Mortgage Foreclosure Receiverships Procedural Issues and Practical Observations
Real Estate Mortgage Foreclosure Receiverships Procedural Issues and Practical Observations. September 2013. Scott E. Mollen. Although it appears that the worst of the foreclosure crisis is now in the "rear view mirror," some experts believe that a new phase of residential and commercial foreclosures may be triggered by increased interest rates that will follow the federal government's eventual termination of its current quantitative easing monetary policy. Another reason why foreclosure actions are not "disappearing," is that because of the general economic recession, many tenants are still in the process of filing for bankruptcy reorganization or liquidation.
Legislature Responds to Foreclosure Issues
Legislature Responds to Foreclosure Issues. September 2013. Thomas McKevitt. The foreclosure crises of the last several years imposed a significant burden on the court system in New York. From 2005 to 2010, the number of foreclosure filings increased from 22,601 to 50,827. In Nassau County alone they increased from 1,310 to 5,378.1 Both the courts and the New York State Legislature have responded with various measures.
Viacom Requests New Judge in Case Against YouTube
Viacom Requests New Judge in Case Against YouTube. Septemberr 2013. Keith P. Black. In an ever-mounting struggle against online piracy, media giant Viacom has requested a new judge to oversee its case versus the online video site YouTube. The request comes only a few months after Judge Louis Stanton granted summary judgment in favor of YouTube, finding it was entitled to safe harbor protection under the Digital Millennium Copyright Act (DMCA). The Digital Millennium Copyright Act,1 passed in 1998, provides "online service providers," defined as "a provider of online services ... including an entity offering the transmission, routing or providing of connections for digital online communications,"2 a "safe harbor" from liability to copyright holders in the case of copyright infringement on its website. However, there are some limitations to the safe harbor provision. The service provider may not have "actual knowledge" that material constitutes infringement,3 nor may the service pro
Personal Injury Lawsuits and Workers' Compensation Claims
Personal Injury Lawsuits and Workers' Compensation Claims. October 2013. Les D. Jarmol. Whether by construction accident, motor vehicle accident, or slip and fall, often times a personal injury attorney encounters a client whose negligence lawsuit involves injuries that arise out of a work-related accident. Section 29 of the Workers' Compensation Law provides that the workers' compensation insurance carrier shall have a lien on the proceeds of any lawsuit recovery, after the deduction of the reasonable and necessary expenditures, including attorney's fees, incurred in effecting such recovery. In most cases the lien simply includes all indemnity and medical payments the compensation carrier has made, although in the case of a motor vehicle accident it includes only benefits paid over and above the first $50,000 (as well as any indemnity benefits paid beyond 3 years from the date of accident). It is well settled that a carrier's equitable share of litigation costs must be apportio
Wasteful Dissipation of Separate Property Assets: Trend or Aberration?
Wasteful Dissipation of Separate Property Assets: Trend or Aberration? October 2013. Nancy E. Gianakos. This October marks the third an­niversary of "No-Fault" Divorce in New York. The much-heralded legislation, enacted in October 2010 to eliminate the necessity of proving martial fault to obtain a divorce, also included revisions to the Domestic Relations Law that changed the landscape for interim support awards and expanded the mandatory factors utilized by courts in awarding support and dividing property. Airing marital laundry in a fault-based system though a psychological relief perhaps for the litigants has lost its impact in the courtroom. The courts of this state are of seemingly one judicial mind in regard to marital misconduct in that only egregious marital conduct of an economic nature rather than spousal morality is to be considered.1 Domestic Relations Law Section § 236B sets forth mandatory factors that a court must utilize in determining maintenance and equitable dis
Lawyers and LinkedIn
Lawyers and LinkedIn. October 2013. Allison C. Shields. Social networking is gaining in popularity, and for lawyers (and law students) LinkedIn is often the most palatable network, since it is known as the 'professional' network. Unlike other networks that revolve around more personal aspects of life such as vacations and hobbies, LinkedIn is a network of business people connecting with business people for business purposes. Why Use LinkedIn? With over 200 million members worldwide, including executives from every Fortune 500 company, LinkedIn is the 'place to be' for business people. The 2013 In-House Counsel New Media Engagement Survey1 indicates that in-house counsel are in­creasingly relying on social media as a source of information, and that LinkedIn is the social media source they use most to obtain information and expand their contacts. Sixty percent of respondents said they used LinkedIn to connect with outside counsel they work with, and almost 40% use it to connect with
Charity Case: Is a Donation a Collateral Source?
Charity Case: Is a Donation a Collateral Source? October 2013. Terrence L. Tarver. When a person sustains a traumatic injury due to an accident, the costs of the injured party's medical care and treatment or lost wages are often covered by sources other than those from the injured person. These sources may include, among others, the injured person's personal health insurance, Social Security, No-Fault Insur­ance, and Worker's Compen­sation. When these sources reimburse an injured plaintiff for lost wages and/or make payments for medical care and treatment as a result of the negligence of another, this is considered a collateral source, and collateral sources may operate to reduce the amount of recovery of an injured person in a lawsuit.1 Alternatively, when a person is injured, sometimes family, friends, and even unknown persons and/or entities may make donations or contributions to aid the injured person in his or her time of need. As long as these are voluntary donations or con
Successful Settlement Strategies
Successful Settlement Strategies. October 2013. Kenneth J. Landau. Because of the ever-increasing cost yet uncertain outcome of litigation, more plaintiffs, defendants and insurance carriers are interested in fully exploring and exhausting the possibility of settlement before they spend the money to prepare for and submit to the uncertainty of a trial. This not only reflects their economic interests but their legal obligation to protect their clients, (be they Plaintiffs or Defendants) from an adverse result and excess exposure (which can lead to a potential malpractice claim) if the results are other than what counsel has led them to expect. Even if settlement is not possible, following these strategies can help insure that discovery is complete and that both sides are fully prepared to litigate all issues to be raised at trial. TSI: Tort Scene Investigation Successful settlement strategies start shortly after the accident by ensuring that all of the potential evidence and info
Trial Tactics and Procedure
Trial Tactics and Procedure. October 2013. E. David Woycik Jr. and Nicole Maciejunes. More and more, defendants are attempting to use the testimony of biomechanical engineers to discount, or even deny, a plaintiff's claim for injuries as a result of a motor vehicle accident. The cases in which biomechanical engineers are typically introduced deal with soft-tissue injuries, but their use is occurring more frequently in cases dealing with more serious injuries, including injuries requiring surgeries to the neck, back, shoulder, and knee. In practice, the defendant's law firm often provides the biomechanical engineer expert disclosure, pursuant to CPLR 3101(d), at the end of discovery or at some latter point before the trial. Plaintiff is then faced with a decision: should he wait to make an objection to the trial judge, or should he make a formal pre-trial motion in limine to either the trial judge or the TAP judge in the county where the case is assigned? Depending on the jurisdi
Eastern District Clarifies No 'Strip Off' of Wholly Unsecured Junior Mortgage Liens
Eastern District Clarifies No 'Strip Off' of Wholly Unsecured Junior Mortgage Liens. July - August 2013. Michael L. Moskowitz and Melissa A. Guseynov. A debtor's ability to avoid or "strip off"1 an underwater junior mortgage lien2 has remained a controversial topic here in the Eastern District of New York and beyond. Within the Eastern District – which includes Kings, Queens, Richmond, Nassau and Suffolk Coun­ties – there has been a split of authority between bankruptcy judges sitting in Central Islip on the issues. Judge Trust3 and Judge Grossman4 have both ruled that lien stripping by a Chapter 7 debtor is impermissible, while Judge Eisenberg5 has held otherwise. In the recent Eastern District of New York decision Wachovia Mortgage v. Smoot,6 Judge Spatt resolved the split among the Eastern District bankruptcy judges by holding that a Chapter 7 debtor may not "strip off" an underwater junior mortgage pursuant to section 506(d) of the Bankruptcy Code. Section 506(a) of the Bankrup
Is Google Guilty of Wiretapping?
Is Google Guilty of Wiretapping? November 2013. Stephen Treglia Farrell This happens to be precisely the legal issue currently being litigated in the California federal courts, as a result of Google's desire to enhance its online Google Maps service by offering its users an additional online service called Street View. The latter allows someone using Google's website to call up a 360-degree view of how a particular address or other identifiable location actually appears from the street. How was Google capable of accomplishing this? From 2007 to 2010, the corporation sent people in cars equipped with cameras to drive on public roads and had them take photographs of what was visible from the street.
Green Technology Patents: Protecting Innovation
Green Technology Patents: Protecting Innovation. November 2013. In the ongoing aftermath of over a half-decade of floundering economies worldwide, few industries today present as much promise for the foreseeable future as green technology. Despite economic setbacks in recent years and despite the continued skepticism by some on the causes of climate change, a growing number of countries have been eager to accelerate their transition to a cleaner energy system and, to accomplish this, have been seeking access to green technologies on favorable terms and on a growing scale. What has been documented and supported by mounting evidence is that global climate changes are unquestionably occurring. In recognition of the importance of the development and implementation of green technologies in mitigating climate change, governments around the world have, in particular, recently acknowledged the value of 'green patents' in furthering efficiency, climate protection, green businesses and compet
Preserving Error For Appeal
Preserving Error For Appeal. Lauren Bristol. September 2002. The decisions made by the trial attorney during the trial are influenced by the events as they unfold, and also by the foresight to protect issues for the record, should an unfavorable verdict result in an appeal. At trial, an attorney may decide to strategically hold off on an objection when testimony appears to be moving along favorably. Perhaps, an objection is withheld based upon off-the-record discussions with the judge or objections made at a sidebar that never become part of the record. The Court of Appeals has held, "when a timely objection is not made, the testimony offered is presumed to have been unobjectionable and any alleged error considered waived." Horton v. Smith, 51 N.Y. 2d 798,799, 433 N.Y.S.2d 92, 93, 412 N.E.2d 1318, 1319 (1980).
Possibly Protected Speech: Government Employees and the First Amendment
Possibly Protected Speech: Government Employees and the First Amendment. Martha Krisel. January 2014. Government employees can raise myriad causes of actions in protest of their treatment in the workplace. First Amendment claims, however, have become increasingly tough to prove. As a general rule, and with limited exceptions, post-Garcetti Second Circuit decisions refuse to extend First Amendment protection to public employees primarily because statements or reports pursuant to official duties are not protected speech. In addition, the Second Circuit is intolerant of First Amendment claims by employees who in reality are simply expressing individual grievances or personal concerns, using the analysis set forth in Connick v. Myers.
Medicare Surtax on Investment Income: Analysis and Planning
Medicare Surtax on Investment Income: Analysis and Planning. By Alan E. Weiner. December 2013. This article is not about Medicare. It's about a new 3.8% income tax1 that you and your clients will pay beginning this year, 2013. Welcome to the tax world of Alice in Wonderland – a place where we have never been and which is mysterious in so many ways. New Internal Revenue Code Section 1411 draws from many other areas of the IRC, but the IRS is reluctant to provide new definitions needed in order to apply the 3.8% surtax on net investment income. Come down the rabbit hole with me, and let's see what we find. This "new" tax is not so new. It was enacted in 20102 as part of the Affordable Care Act to be effective for the first time this year, 2013. The IRS issued proposed regulations3 on November 30, 2012 and we await final regulations which may have been issued by the time you read this article.
IRS Disclosure of Protected Tax Data
IRS Disclosure of Protected Tax Data. By Eric L. Morgenthal. December 2013. With all of the hype in the media about government dysfunction, the IRS has not been exempt from its own series of scandals. In its recent past, it has been accused of wasting mo
"S" Corporations and the Built-In Gains Tax
"S" Corporations and the Built-In Gains Tax. By Jon H. Ruiss Jr. December 2013. Taxation is an area that most practitioners find intimidating because of the intricacies of the Internal Revenue Code, Treasury Regulations, and the technical jargon used to describe transactions and situations. While taxation is undoubtedly complex, it is important for an attorney to understand the fundamental concepts that can affect a corporate client. Over the years, the Subchapter "S" Corporation ("S Corporation") has played an important role in choice of formation for a business. However, if the S Corpor­ation has had any history as a "C" corporation ("C Corporation"), a concept known as the built-in gains tax may surface. This article will briefly explain the important aspects of S Corporations and offer an overview of the associated built-in gains tax.
Preservation Pays Off The Conservation Easement Tax Incentive
Preservation Pays Off The Conservation Easement Tax Incentive. By Beth Baldwin. December 2013. Both the federal and state governments have equipped landowners with the tools to preserve their property and receive significant tax benefits. The Conservation Ease­ment Tax Incentive is a promoter for landowners who want to preserve their property, but who also want to offset income with significant tax deduction. Under the Internal Revenue Code, a conservation easement donor can deduct the value of a qualified conservation easement, up to 30% of the donor's adjusted gross income per year, with a five (5) year carry-forward of any unused amount.1 The Conser­vation Easement Tax In­centive sweetens the deal by allowing donors to deduct up to 50% of their adjusted gross income and extending the carry-forward period from five (5) years to fifteen (15) years. Unfortu­nately, this incentive is set to expire in 2013 unless Congress extends the time period or passes the "Conservation Easement Ince
Counsel for the Defense: Effective Representation in Criminal Cases
Counsel for the Defense: Effective Representation in Criminal Cases. February 2015. Adrienne Flipse Hausch. While it has been said that ineffectiveness of counsel is always an issue for appeal, it is only recently that ineffectiveness of counsel has emerged as the issue for appeal. There also seems to be a resurgence of pro se appeals and attacks on Assigned Counsel
Good Samaritan Laws During Disasters: Balancing Altruism and Accountability
Good Samaritan Laws During Disasters: Balancing Altruism and Accountability. June 2015. By Jeffrey C. Gerson and Kristina I. Duffy. On August 28, 2005, Hurricane Katrina devastated the city of New Orleans, killing nearly 2,000 people and displacing approximately 1,000,000 residents. During the hurricane, decisions regarding priority of care had to be made by first responders and health care personnel. In one highly publicized case, medical personnel at Memorial Medical Center in New Orleans had to make life and death decisions about which of their patients would receive the limited medical supplies and resources to save their lives.1 One doctor and two nurses were even brought up on second degree murder charges for decisions they made there. A grand jury ultimately declined to indict these medical personnel, but this case raises questions regarding the appropriate standard by which emergency responders and health care providers should be judged and what legal protections are availab
The Preliminary Conference Order in Matrimonial Actions: Something's Got to Give
The Preliminary Conference Order in Matrimonial Actions: Something's Got to Give. By Jane K. Cristal Often, divorce clients' first experience with the Court is at the Preliminary Conference, which they are required to attend. At the Conference, they curiously observe their respective attorneys filling out pages of a document and, sometimes, arguing over the various provisions. Ultimately, asked to sign the document, the clients query counsel, "What is this again?" As it turns out, what this is and what this was designed to be—this preliminary conference document that emerges into the Preliminary Conference Order—are not the same. The discrepancy between the theoretical purpose of the Preliminary Conference Order and the actual, practical consequences of the Order needs to be investigated.

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