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THE

SUFFOLK LAWYER
THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION
DEDICATED TO LEGAL EXCELLENCE SINCE 1908 www.scba.org Vol. 31, No. 8 – March 2016

INSIDE…
MARCH 2016
American Mock Trial Association Holds Its First
Regional Competition at Cohalan Court Complex
____________
By Harry Tilis tournament featured over two dozen meet with the team from the U.S.
teams from across the northeast, Military Academy at West Point.
With over 70 volunteers from the including entrants from Brown The Suffolk County bench generous-
Suffolk Academy of Law membership University, the US Coast Guard ly contributed with Judge Andrew
serving as judges and jurors, the Academy, Brandeis University and Tarantino and Judge Chris Ann Kelley
American Mock Trial Association held both Boston University and Boston presiding over trials all day Sunday.
its first ever regional competition at the College. Judge Pierce Cohalan, who is Several other members of the bench
Cohalan Court Complex in Central a member of the U.S. Army JAG Corps also donated half a day of their expert-
Courts’ Black History Month event...16 Islip. This undergraduate mock trial Reserve Component, stopped by to (Continued on page 20)
_____________________________
SCBA ANNUAL MEETING, ELECTIONS AND RECOGNITION
Legal Articles The 2016 Annual Meeting will be held on Monday, May 2, 2016 cates of appreciation, as will members who provided exemplary serv-
at the Bar Center, starting at 6 p.m. ice to the Association and profession for this administration. Attorneys
Included in the business to be transacted is the annual election, pur- who have practiced with honor and dignity for 60 and 50 years will
ADR ...............................................6 suant to Article VI Sec 2 of the SCBA’s Bylaws, the Nominating receive special recognition awards. The Diamond (60 years awards)
American Perspectives..................19 Committee has submitted the following report of the names of the can- will be presented to: Bernard L. Burton; Richard C. Cahn (past presi-
didates to be placed in nomination for the election as follows: dent 1981-’82); Gustave Fishel III (past president 1982-’83); John J.
Bench Briefs ...................................4 President Elect .................................................Patricia M. Meisenheimer Hart (past president 1975-’76); Martin J. Kushnick; Hon. Daniel J.
Commercial Litigation....................3 First Vice President ............................................................Justin M. Block Loughlin; William F. Mackey, Jr.; William Hubert Plummer; Patrick J.
Constitutional................................12 Second Vice President .......................................Lynn Poster-Zimmerman Purcell. Golden Anniversary (50 years) awards will be presented to:
Treasurer............................................................Hon. Derrick J. Robinson Hon. W. Gerard Asher; Hon. John C. Bivona; Roger H, Bohrer; John L.
Consumer Bankruptcy ..................18 Secretary....................................................................Daniel J. Tambasco Buonora (past president 2006-’07); Kathleen A. Carlsson; William P.
Corporate .....................................17 Directors (four) with terms expiring 2019.............................Hon. John J. Leo Griffin; Stephen A. Grossman; Hon. Donald Kitson; Ronad E. Lipetz;
.....................................................................................Patrick McCormick Harvey G. Lockhart; Gerald L. Lotto; Steven G. Pinks; Donald A.
Court Notes.....................................6 .............................................................................Jennifer A. Mendelsohn Rettaliata; Thomas J. Spellman, Jr. (past president 1992-’93); Hon.
Criminal ........................................14 .......................................................................................Francine H. Moss Patrick A. Sweeney; Harold G. Trabold; Francis J. Yakaboski; Edward
Cyber ............................................13 Members of Nominating Committee (three) with terms expiring 2019 Zinker.
............................................................................................Leonard Badia The SCBA leadership is hoping for a wonderful membership turnout
Elder ..............................................5 ..........................................................................................Donna England for the Annual Meeting – not only to conduct the Association’s busi-
Ethics ............................................14 .........................................................................................Jeanette Grabie ness, but to share in honoring those members who have served us so
Awards of recognition will be presented at the meeting. Outgoing well. Call the association for registration information or look for the
Future Lawyers Forum ...................8 SCBA Directors and outgoing Academy Officers will receive certifi- eblast containing the registration information. – LaCova
Health and Hospital ........................9
Inside the Courts.............................4 PRESIDENT’S MESSAGE BAR EVENTS
International Regulatory and
Enforcement..................................10
Land Use.........................................8
Many Changes
________________
SCBA Annual Meeting
Family Court. For May 2, at 6 p.m.
Practice Management ...................12 By Donna England SCBA Great Hall
the past eight years
Pro Bono.........................................6
As we start the New Year off there Judge Whalen has
Real Estate ...................................11 are many changes at hand. First and been part of the Peter Sweisgood Dinner
Real Property ................................10 foremost is the appointment of the Family Court Bench Hosted by Lawyers Helping
Chief Judge of the Court of Appeals by and has handled all Lawyers Committee
Tax ..................................................3 Thursday, April 7, at 6 p.m.
Trusts and Estates – Cooper .........15 Governor Cuomo, the Honorable Janet aspects of the court. Donna England Watermill Caterers, Smithtown
DiFiore. The former Court of Appeals We look forward to For further information, please
Who’s your Expert........................18 the new initiatives she will bring to this
Judges Judith S. Kaye and Jonathan contact the bar.
_____________________________ Lippman had a profound effect upon busy and hardworking court.
the judicial system in the State of New In the District Court, we congratu- The Annual Installation
Among Us.......................................7 York and it is with great anticipation late the Honorable Karen Kerr who, of Officers and Directors
Calendar: Academy ......................30 that we welcome Judge DiFore, some- effective January 1, has been appoint- Friday, June 3, at 6 p.m.
one who has practiced law, sat as a trial ed Supervising Judge. This, too, is a Cold Spring County Club,
Calendar: SCBA .............................2 judge and has served as a county-wide very busy court that comprises not Huntington
Academy News.............................30 district attorney. only the Criminal Courts in Central Please join your colleagues for
CLE Course Listings ...............28-29 Closer to home, we congratulate the Islip, but also the outlying courts in what promises to be a wonderful
Freeze Frame ................................31 Honorable Theresa Whalen, who was each of the six districts handing civil event. For further information,
appointed Supervising Judge of the (Continued on page 27) contact Jane LaCova at the bar.
2 THE SUFFOLK LAWYER – MARCH 2016

Suffolk County Our Mission


Bar Association “The purposes and objects for which the Association is established
shall be cultivating the science of jurisprudence, promoting reforms
in the law, facilitating the administration of justice, elevating the
560 Wheeler Road • Hauppauge NY 11788-4357 standard of integrity, honor and courtesy in the legal profession and
Phone (631) 234-5511 • Fax # (631) 234-5899 cherishing the spirit of the members.”
E-MAIL: SCBA@SCBA.ORG

Board of Directors 2015-2016


Donna England .............................................................................President
John R. Calcagni .................................................................President Elect
Thank you
Patricia M. Meisenheimer ............................................First Vice President SCBA member Scott Michael Mishkin contributed the flagpole, which
Justin M. Block........................................................Second Vice President was erected at our Bar Center when we moved in about 22 years ago. Scott
Lynn Poster-Zimmerman..............................................................Treasurer has been supplying the flags all of these years and we take this opportuni-
Hon. Derrick J. Robinson.............................................................Secretary ty to recognize his generosity and contribution to our bar center. We are
Leonard Badia ....................................................................Director (2016) most fortunate to have Scott as a devoted member of our wonderful bar
Cornell V. Bouse.................................................................Director (2016) association.
Jeanette Grabie ...................................................................Director (2016)
Peter C. Walsh ....................................................................Director (2016)

Thomas More Group Twelve-Step Meeting


Vincent J. Messina, Jr. ........................................................Director (2017) Important Information from the Lawyers Helping Lawyers Committee
Luis Antonio Pagan ............................................................Director (2017)
Richard L. Stern .................................................................Director (2017) Every Wednesday at 6 p.m.,
Daniel J. Tambasco.............................................................Director (2017)
Parish Outreach House, Kings Road - Hauppauge
Harry Tilis...........................................................................Director (2018)
All who are associated with the legal profession welcome.
LAWYERS COMMITTEE HELP-LINE: 631-697-2499
Robin S. Abramowitz .........................................................Director (2018)
Laura C. Golightly..............................................................Director (2018)
Robert M. Harper ...............................................................Director (2018)
Arthur E. Shulman ......................................Past President Director (2016)
Dennis R. Chase..........................................Past President Director (2017)
THE SUFFOLK LAWYER
r
William T. Ferris........................................Past President Director ( 2018)

nda
Sarah Jane LaCova ........................................................Executive Director

Cale
LAURA LANE Publisher
Editor-in-Chief
All meetings are held at the Suffolk County Bar Association
SCBA Bar Center, unless otherwise specified. Please be aware that
dates, times and locations may be changed because of con-
Leo K. Barnes, Jr.
ditions beyond our control. Please check the SCBA website Alison Arden Besunder
in conjunction with
(scba.org) for any changes/additions or deletions which may Elaine Colavito
occur. For any questions call: 631-234-5511. Ilene S. Cooper The Suffolk County Bar Association
OF ASSOCIATION MEETINGS AND EVENTS Robert Flynn
Hillary A. Frommer The Suffolk Lawyer is published monthly, except for the months
MARCH James G. Fouassier of July and August, by Long Islander News under the auspices of
The Suffolk County Bar Association. © The Suffolk County Bar
01 Monday Appellate Practice, 6:00 pm, EBT Room Justin Giordano Association, 2016. Material in this publication may not be stored
03 Thursday Cohalan Cares for Kids Event, Great Hall, 6 pm – 8 pm Robert M. Harper or reproduced in any form without the express written permission
Andrew Lieb of The Suffolk County Bar Association. Advertising offices are
07 Monday Executive Committee Meeting, 5:30 pm, Board Room located at Long Islander News, 14 Wall Street, Huntington, NY
David A. Mansfield
08 Tuesday Matrimonial & Family Law and Family Court Committees, Irish 11743, 631-427-7000.
Patrick McCormick
Coffee Pub, W. Islip, NY, 6:00 pm
Lance R. Pomerantz
10 Thursday 18-b Task Force, 5:30 pm, Board Room Send letters and editorial copy to:
Lisa Renee Pomerantz
16 Wednesday Education Law, 12:30 pm, Board Room
SUFFOLK LAWYER
THE

Craig D. Robins
15 Tuesday Surrogate’s Court Committee, 6:00 pm, Board Room Allison C. Shields
17 Thursday Elder Law & Estate Planning, 12:15 pm, Great Hall 560 Wheeler Road
Barry Smolowitz
22 Tuesday Young Lawyers Committee, 6:00 pm, EBT Room Stephen L. Ukeiley
Hauppauge, NY 11788-4357
Louis Vlahos Fax: 631-234-5899
24 Thursday Supreme Court Committee, 5:30 pm, Board Room
Frequent Contributors Website: www.scba.org
28 Monday Joint Board Meeting – Suffolk & Nassau Bar Associations, 6:00
pm, Great Hall
The opinions, beliefs and viewpoints expressed by the various authors and frequent contributors of
The Suffolk Lawyer are theirs alone and do not necessarily reflect the opinions, beliefs and viewpoints
APRIL of The Suffolk Lawyer, The Suffolk County Bar Association, the Suffolk Academy of Law, and/or any
04 Monday Executive Committee Meeting, 5:30 pm, Board Room of the respective affiliations of these organizations.
05 Tuesday Appellate Practice Committee, 6:00 pm, Board Room
07 Thursday The Annual Peter Sweisgood Dinner, 6:00 pm, Watermill
Restaurant, honoring Eileen Travis, for further information call
The Suffolk Lawyer
USPS Number: 006-995 is published monthly except July and August by Long Islander
the Bar Center News, LLC, 14 Wall Street, Huntington, NY 11743, under the auspices of the Suffolk
12 Tuesday Surrogate’s Court, 6:00 pm, Board Room County Bar Association. Entered as periodical class paid postage at the Post Office at
12 Tuesday Matrimonial & Family Law and Family Court Committees, Irish Huntington, NY and additional mailing offices under the Act of Congress. Postmaster
send address changes to the Suffolk County Bar Association, 560 Wheeler Road,
Coffee Pub, 6:00 pm Hauppauge, NY 11788-4357.
14 Thursday Elder Law & Estate Planning Committee, 12:15 pm, Great Hall
14 Thursday Elder Law & Estate Planning, 12:15 pm, Great Hall
18 Monday Board of Directors Meeting, 5:30 pm, Board Room To Advertise in
The Suffolk Lawyer
Call 631-427-7000
19 Tuesday Young Lawyers, 6:00 pm, Board Room
20 Wednesday Education Law Committee, 12:30 pm, Board Room
THE SUFFOLK LAWYER – MARCH 2016 3

TAX

Did You Say a Taxable Partnership?


_____________
By Lou Vlahos ber, size, and complexity, the partners, the IRS generally for reporting and audit purposes, part-
IRS has found it increasingly applied the audit procedures nership adjustments generally flowed
According to a recently released IRS difficult to audit them and to for individual taxpayers, through to the partners for the year in
analysis of tax return data, the number collect any resulting income auditing the partnership and which the adjustment took effect, rather
of partnerships and partners in the U.S. tax deficiencies, especially in each partner separately. For than the year under audit.
continues to increase, as do the total the cases of large partner- most large partnerships with
receipts and the value of total assets for ships and tiered partnerships. more than 10 partners, the The BBA’s changes
all partnerships. LLCs classified as In response to these diffi- IRS conducted a single Under the BBA, the TEFRA and
partnerships account for the majority culties, Congress recently administrative proceeding ELP rules are repealed, and the part-
of this growth. enacted the Bipartisan Budget (under the so-called nership audit rules are streamlined into
These figures are a manifestation of Act of 2015 (“BBA”), adding Louis Vlahos “TEFRA” rules, which were a single set of rules for auditing part-
the fact that the partnership represents a number of new tax compliance provi- adopted in 1982) to resolve audit issues nerships and their partners at the part-
the most flexible form of business enti- sions to the code. A key feature of the regarding partnership items that were nership level.
ty: there are no restrictions on who BBA is that it imposes liability for any more appropriately determined at the Under the streamlined audit approach,
may be a partner; the only limitation audit adjustments with respect to an partnership level than at the partner the IRS will examine the
on the economic arrangement among earlier partnership tax year on the part- level. Under the TEFRA rules, once the partnership’s items of income, gain,
the partners is that it have substantial nership, rather than on those persons audit was completed and the resulting loss, deduction, credit, and the partners’
economic effect; and partnerships do who were partners during the audited adjustments were determined, the IRS distributive shares, for a particular year
not pay federal income taxes on their tax year. recalculated the tax liability of of the partnership (the “reviewed year”).
income, but “pass through” any profits each partner in the partnership for Any adjustments (including interest and
and losses to their partners, who must Partnership audits the particular audit year. In the case penalties) will be taken into account by,
include those profits and losses on Prior to the BBA, three different of partnerships with 100 or more part- and will be collected from, the partner-
their own income tax returns regimes existed for auditing partner- ners that elected to be treated as ship — not the reviewed year partners
As partnerships have grown in num- ships. For partnerships with 10 or fewer Electing Large Partnerships (ELPs) (Continued on page 20)

COMMERCIAL LITIGATION

Boundaries of Protection for Drafts of Expert Reports Pursuant to FRCP 26(b)(4)(B)


_________________
By Leo K. Barnes, Jr. to produce the documents in Webster’s Dictionary, the The court then rejected plaintiff’s
requested arguing that the court found that draft is a argument that summaries and notes
The 2010 amendments to the Federal documents were protected “preliminary sketch or rough created by an expert in drafting an
Rules of Civil Procedure modified Rule under the work product doc- form of a writing or docu- expert report may still be protected
26 to provide greater protection con- trine and Rule 26. Plaintiffs ment, from which the final or from disclosure by Rule (26)(b)(4)(B),
cerning the discovery of communica- subsequently moved to com- fair copy is made.”6 The court and likewise rejected the suggestion
tions and drafts of expert disclosure pel disclosure of the docu- further held that whether a that only a draft of a complete report
reports.1 Specifically, Rule 26(b)(4)(B) ments. 5 document is a draft, depends is entitled to protection, finding to the
provides that drafts of any expert report The court began its analy- on the circumstances of its contrary that portions of a report are
or disclosure is protected under Rules sis with a discussion of the Leo K. Barnes creation. In Deangelis, the equally entitled to protection as limit-
26(b)(3)(A) and (B), regardless of the application of Rule 26 before expert made clear that he ing protection to entire reports would
form in which the draft is recorded.2 and after the 2010 amendments. Prior requested the documents to aid him interfere with experts’ drafting, which
What constitutes a draft for purposes of to the amendments, courts read Rule with his report and anticipated that they is what the 2010 amendments sought
protection depends on the document 26(a)(2) to require disclosure of all would be included in the report. to avoid. Finally, the court dismissed
itself and the circumstances surround- draft reports and all communications During an in camera review of the doc- the plaintiffs’ argument that experts
ing its creation and use.3 between the attorney and expert wit- uments at issue, the court confirmed the could undermine the discovery
A recent decision in Deangelis v. nesses. This broad interpretation cre- expert had in fact added the documents process by simply placing discover-
Corzine4 analyzes the boundary of the ated a real danger of disclosing attor- to his draft report. This evidence was able information into a draft to avoid
protection afforded to drafts of expert ney work product, and led to problems sufficient to suggest that the documents disclosure, reasoning that although
reports and disclosure under Rule for attorneys and testifying experts were created “as preliminary versions this may be possible in the abstract,
26(b)(4)(B). In Deangelis, Southern who struggled to strike a balance of portions of the expert report.”7 (Continued on page 25)
District Magistrate Judge James between working effectively and pro-
Francis evaluated whether specific tecting work product. In an attempt to
documents requested in a subpoena
duces tecum issued to a testifying
expert were drafts for purposes of pro-
resolve this issue, Rule 26(a)(2) was
amended in 2010 and now limits dis-
closure to all “facts or data” consid-
In Memoriam
tection under Rule 26(b)(4)(B). ered by an expert witness, rather than It is with profound sorrow, the Board of Directors of the Suffolk County
During the deposition of defendants’ all “data or other information.” Bar Association record the sudden passing of U.S. Supreme Court Senior
expert, the expert stated that he request- Additionally, Rule 26(b)(4)(B) now Justice Antonin Scalia. The country has lost an influential and most respect-
ed a “write-up” and chart from defen- addresses concerns about the revela- ed icon on the US Supreme Court Bench.
dants, which he intended to use to assist tion of attorney work product through Justice Scalia was a legal giant who devoted his energies to defending the
him with his report. The expert used expert discovery, and provides that Constitution and the Rule of Law. He was incredibly well respected by his
the summaries and write-ups he drafts of any report or disclosure colleagues. He left an indelible mark on history and will be remembered as
received in the initial draft of his report, required under Rule 26(a)(2) are pro- one of the most important people in the history of the US Supreme Court.
but then excluded them from the final tected from discovery. The legal profession has benefited greatly by the many contributions of
report. Following the expert’s deposi- The court first considered whether this extraordinary jurist and our deepest sympathy is extended to his wife
tion, plaintiffs served a subpoena duces the documents requested by plaintiffs and family during this difficult time.
tecum upon the expert requesting pro- were in fact drafts for purposes of pro- Donna England
duction of the materials referenced dur- tection under Rule 26(b)(4)(B). Citing President
ing the deposition. Defendants refused to the plain meaning of the term “draft”
4 THE SUFFOLK LAWYER – MARCH 2016

BENCH BRIEFS
_______________
By Elaine Colavito davit of the facts constituting the court granted the motion, ly the motion was granted. However,
the claim, it must allege which sought summary judg- with regard to the legal fee request, the
SUFFOLK COUNTY SUPREME enough facts to enable a court ment in lieu of a complaint. court found that although Section 5(E)
COURT to determine that a viable In this action, the court of the promissory note entitled plaintiff
cause of action existed, and a noted that plaintiff submitted to reasonable attorneys fees for
Honorable Paul J. Baisley, Jr. person having personal proof that the defendants bor- enforcement of the provisions of the
Motion for leave to enter a default knowledge of the facts must rowed from plaintiff the note, in the event of the defendants’
judgment against defendant Brodbeck verify it. In denying the amount of $30,000.00 at an default, plaintiff’s counsel had not sub-
denied; neither the complaint nor plain- application, the court rea- interest rate of 12 percent per mitted any proof of reasonable attor-
tiff’s affidavit in support of the motion soned that the plaintiff failed Elaine Colavito annum, pursuant to the terms neys’ fees incurred in connection with
contained an allegation as to what to allege sufficient facts to allow the of a promissory note dated April 30, the matter. As such, the request for
caused her to fall in the parking lot. court to ascertain whether she had a 2009, and that defendants had failed to $5,000.00 in attorneys’ fees was
In Kelly Amantea v. BMB viable negligence claim against the make any of the payments due thereun- unsubstantiated and denied without
Management, LLC & Jon Neil defendant, as neither the complaint nor der. In relevant part, the court stated prejudice.
Brodbeck, Index No.: 2572/2015 decid- plaintiff’s affidavit in support of the that CPLR §3213 provides that when
ed on August 18, 2015, the court denied motion contained an allegation as to an action is based upon an instrument Motion for default judgment denied;
the motion for leave to enter a default what caused her to fall in the parking for the payment of money only or upon failure to submit evidentiary proof of
judgment against defendant, Brodbeck. lot. Accordingly, the motion was any judgment, the plaintiff may serve compliance with the personal service
The court stated that on a motion for denied. with the summons a notice of motion provisions of CPLR §308; failure to
leave to enter a default judgment based for summary judgment and the sup- submit an affidavit: stating whether or
on a defendant’s failure to appear or Honorable Peter H. Mayer porting papers in lieu of a complaint. not the defendant is in military service.
answer the complaint, a plaintiff is Motion for summary judgment in The summons served with such motion In Brentwood Plaza, LLC v. Imad
required to submit proof of service of lieu of complaint granted; counsel fee papers shall require the defendants to Alden Yousef Nasser Mansour, Talal
the summons and complaint, proof of application denied; no proof of reason- submit answering papers on the motion Rashid and Ali Mohammed, Index No.:
the facts constituting the claim against able attorneys’ fees incurred in con- within the time provided in the notice 16045/2014 decided on April 29, 2015,
the defendant, and proof of the defen- nection with the matter. of motion. the court denied the portion of the
dant’s default. The court continued In Marty Borenstein v. Gina Lienick Since the plaintiffs’ motion was motion which sought a judgment
and pointed out that while a verified & Susan Lienick, Index No.: unopposed, the uncontroverted facts against defendants, Imad Alden Yousef
complaint may be submitted as an affi- 18501/2014 decided on May 4, 2015, were deemed admitted, and according- (Continued on page 21)

INSIDE THE COURTS


________________________
By Hon. Stephen L. Ukeiley at trial, who described the shot the victim as a result of a lowing week, although the jurors were
“fleeing shooter.” The prose- dispute over a mountain bike told at selection that the case would not
Assault Conviction Reversed Due to cution corroborated the defendant “had nothing to do go beyond the week. The trial court then
Trial Errors detective’s testimony with the with” after the trial court had denied the request of two jurors to be
In People v DeJesus, defendant was victim’s statement that the precluded the victim from tes- excused if deliberations extended into
convicted by a jury of assault in the defendant went by the same tifying in essentially the same the following week — one was starting
first degree and ultimately sentenced as nickname and introduced a manner. Of note, the Appellate a new job and the other had to care for
a second felony offender to 20 years photograph of the nickname Division determined that his minor children. Within nine minutes
incarceration. On appeal, the Appellate tattooed on defendant’s arm. defendant had not waived this of the denial, the jury returned a unani-
Division, First Department unanimous- The Appellate Division Stephen L. Ukeiley issue when defense counsel mous verdict of guilty (id. at *4-5).
ly reversed the judgment and sentence concluded the testimony went beyond subsequently cross-examined the victim The Appellate Division concluded
due to multiple errors at trial, including “merely explain[ing] the police investi- about the mountain bike, which was per- that under these circumstances the ver-
the denial of the defendant’s right to gation, [and, as a result,] improperly mitted as a curative measure for the ini- dict was “improperly coerced” and the
confront witnesses, misstatements dur- provided strong evidence on the central tial testimony, or argued during summa- combination of errors were not harm-
ing summations and inappropriate issue of identification” (id.). In other tion that the victim’s testimony belied less. Counsel may be inclined to con-
comments made by the trial judge dur- words, although the informants credibility (id. at *3). sider the ramifications of a compro-
ing jury deliberations. observed the defendant “fleeing,” there mised verdict and its impact on the out-
was no credible evidence that they had Jury deliberation come of a trial.
Sixth Amendment in fact witnessed the defendant partak- The Appellate Division also conclud-
The Sixth Amendment guarantees a ing in a criminal act. Moreover, the ed it was an error to refrain from grant- Note: The Honorable Stephen L.
criminal defendant’s right to confront failure to call the informants as wit- ing a mistrial during jury deliberation Ukeiley is a Suffolk County District
each witness who testifies against the nesses precluded cross-examination because the verdict was made “under Court Judge. Judge Ukeiley is also an
accused in the form of cross-examina- regarding their observations, and thus coercive circumstances.” This contro- adjunct professor at the Touro College
tion. This right was extended to state violated defendant’s right of confronta- versy centered upon the trial court’s Jacob D. Fuchsberg Law Center and
criminal proceedings by the Fourteenth tion (id. at *2). statements in response to two notes New York Institute of Technology, and
Amendment (see Pointer v Texas, 300 from the jury claiming that they were the author of numerous legal publica-
U.S. 400 [1965]). Summations deadlocked. Initially, the trial court tions, including his most recent book,
In DeJesus, the trial court permitted During closing arguments, the pros- responded that the jury had only delib- The Bench Guide to Landlord &
hearsay statements falsely suggesting ecutor expounded upon the confronta- erated a “short time” when in fact they Tenant Disputes in New York (Second
that multiple individuals had identified tion error by arguing in violation of the had been deliberating for several days. Edition)©.
the defendant when the victim was the trial court’s instruction that the inform- The trial court further instructed the jury
lone witness (People v DeJesus, 2015 ants’ statements constituted “evi- that they would have to stay late to con- * The information contained herein
N.Y. App. Div. LEXIS 9049 [1st Dept dence” that the defendant was the tinue deliberations on two successive is for informational and educational
Dec. 8, 2015]). The issue arose during assailant. Additional summation errors days — a Thursday and Friday — and purposes only. This column should in
the testimony of the investigating included “emotional appeals, safe that the members of the jury should no way be construed as the solicita-
detective in charge. Over counsel’s streets arguments and denigration of consider the extension a “tremendous tion or offering of legal or other pro-
objections, the detective testified he defense counsel.” accommodation.” Lastly, the trial court fessional advice. If you require legal
learned of the defendant’s nickname Defendant’s fair trial rights were fur- informed the jury that if a verdict were or other expert advice, you should
and whereabouts from two informants, ther held to have been violated when the not reached by week’s end, delibera- consult with an attorney and/or other
neither of whom were called to testify prosecutor argued that the defendant tions would be extended into the fol- professional.
THE SUFFOLK LAWYER – MARCH 2016 5

ELDER LAW

Working Elder-Caregivers — Help Your Staff and Your Firm


_____________________
By Jennifer B. Cona, and responsibilities. In today’s econo- share their elder-caregiving issues with
Melissa Negrin-Wiener This of course my, employers must their supervisors for fear that it might
results in personal focus on retaining change the supervisor’s impression of
Businesses, including law firms, are phone calls on the capable and knowl- them or cause their supervisor to take
beginning to feel the workplace impact job, use and abuse edgeable employees away job responsibilities. This is why
of issues related to working elder-care- of leave time, work and having them it is important to pay attention to warn-
givers. Over 65 million Americans, or hour adjustments, achieve their high- ing signs, such as changes in personal-
29 percent of all U.S. households, pro- missed deadlines, est level of perform- ity and work product, including poor
vide care for an adult family member.1 poor work quality, ance. Turnover often work quality, an increase in personal
sporadic atten- Jennifer B. Cona Melissa Negrin-Wiener results in a staff telephone calls, lack of concentration,
The growing demographic problem is
two-fold: the elderly are living longer dance, and prolonged or frequent dis- lacking in expertise, which can harm a reduced productivity, out of character
and people are working longer/retiring appearances from workstations. law firm’s ability to retain clients and emotional outbursts, arriving late or
later. This combination results in a “Presenteeism” is also an issue, that is, provide high quality legal services. leaving early, sporadic attendance,
workforce that is struggling to main- the employee is physically present on High turnover can become expensive missed deadlines and use of unpaid
tain jobs while providing care for the job but is mentally somewhere else. for firms to manage, and it can signifi- time off.
aging parents and loved ones. When work conflicts with elder- cantly lower morale in the workplace. If If it becomes evident that a valued
Elder-caregiving costs employers caregiving, employees choose to make a skillful and competent employee employee is an elder-caregiver, the
$33.6 billion annually in lost produc- changes in their work life. requires flexibility in the workplace due employer should consider accommo-
tivity.2 Absenteeism costs the U.S. Approximately 68 percent of elder- to elder-caregiving needs, the employer dating their short term needs by being
economy an estimated $25.2 billion.3 caregivers report making work accom- should do all that it can to be supportive. flexible with their working hours or
Working elder-caregivers routinely modations, including arriving Interestingly, the experience of location, such as by permitting
lose work time and wages due to pro- late/leaving early, taking time off, cut- working elder-caregivers differs from telecommuting. It is important to stress
viding care for an aging loved one. On ting back on work hours, changing that of workers with childcare respon- that these changes are temporary and
the employer’s side, businesses are jobs, or stopping work altogether.4 sibilities. Research shows that working the employee should be given a date
impacted by decreased productivity, Law firms need to consider the tools elder-caregivers report having less upon which the accommodations will
absenteeism, downtime and turnover. and support mechanisms they will put access to flexible work options to carry end. It may be necessary to temporari-
Employees caring for ill, elderly or dis- in place to help working elder-care- out their work and caregiving responsi- ly assign better-suited work for that
abled loved ones must address such givers, such as support groups, on-site bilities, and they perceive significantly employee. For example, if the job
issues as a loved one’s hospitalization, emergency elder care, access to Elder lower job security than workers with requires travel or late hours, perhaps
coordinating elder care services, and Law attorneys and access to communi- childcare needs.5 that work can be temporarily re-
handling emergency elder caregiving ty resources. Many employees are hesitant to (Continued on page 22)
6 THE SUFFOLK LAWYER – MARCH 2016

PRO BONO

Pro Bono Attorney of the Month – Stephen R. Hellman


_______________
By Ellen Krakow them in ancillary Family While a Hofstra law stu- appreciate how difficult it must be for
Court or District Court pro- dent, Mr. Hellman clerked a person to be dealing with a divorce
The Suffolk Pro Bono Project (the ceedings. He does so even for a Patchogue Village and not able to afford a lawyer. I feel
Project) is pleased to honor Stephen R. though the Project does not Court judge. During the it’s important for attorneys to give
Hellman once again, as its Pro Bono require its attorneys take on clerkship, he came to know back to the community. This is a way
Attorney of the Month. This is Mr. such additional responsibil- an attorney who frequently I can do that.” He added, “And, I
Hellman’s third time receiving this ities. appeared in the village court, like the work. I enjoy being in court,
honor. It is his recent work for several “It is his very comprehen- and who ultimately became and the Pro Bono Project’s cases are
of the Project’s most vulnerable matri- sive approach to assisting his his mentor, teaching Mr. always interesting.”
monial clients that has earned him this pro bono clients that makes Hellman key aspects of mat- In addition to operating his busy
distinction once again. Mr. Hellman such a special Stephen R. Hellman rimonial and family law. solo practice, Mr. Hellman is the
Mr. Hellman has been a solo Family asset to our program,” notes Maria With this knowledge, Mr. Hellman father of four children, Ashley,
and Matrimonial Law attorney in Dosso, Nassau Suffolk Law Services’ was able to join the Suffolk County Seaver, Matthew and Jared, and the
Suffolk County for his entire legal Director of Communications and 18b and law guardian panels soon grandfather of two, Alex and Alyvia.
career. His practice is located in Volunteer Services. “He is one of those after becoming admitted in 1998. His He is also a sports fan and spends his
Eastport, New York and his particular unique volunteers who goes above and 18b and law guardian cases provided free time following the Islanders, the
expertise is representing survivors of beyond what is required. We cannot him with a great deal of valuable Yankees and the Long Island Ducks.
domestic violence and financial thank him enough for his contribu- experience that was critical as a new The Pro Bono Project is most grate-
exploitation. The Pro Bono Project tions.” attorney. ful for Mr. Hellman’s incredible gen-
has taken advantage of Mr. Hellman’s The practice of law is Mr. Hellman’s Mr. Hellman joined the Pro Bono erosity and the excellent advocacy he
expertise, often referring to him second career. After earning his BA at Project not long after starting his provides to every referred client. For
domestic violence clients. Stony Brook University in 1983, Mr. practice. Over the years, he has suc- this reason, it is with great pleasure
Setting Mr. Hellman apart as a Pro Hellman worked in law enforcement cessfully protected the rights and that we honor him again as the Pro
Bono Project volunteer is his unlimit- for 10 years as part of SBU’s interests of numerous Project clients, Bono Attorney of the Month.
ed willingness to accept new pro University Police. He received multi- representing both plaintiffs and The Suffolk Pro Bono Project is a
bono referrals, even when several of ple “meritorious service awards” and defendants. He currently has seven joint effort of Nassau Suffolk Law
his prior Project referrals are still “excellent service awards” during active Pro Bono Project matrimonial Services, the Suffolk County Bar
ongoing, and regardless of the new those years. He left the police force in cases. Several of these clients are vic- Association and the Suffolk County
matter’s complexity. It is not uncom- 1993 after being injured on the job. tims of physical abuse or severe Pro Bono Foundation, who, for
mon for Mr. Hellman to not only Immediately thereafter, Mr. Hellman financial exploitation. When asked many years, have joined resources
assist his pro bono clients in the enrolled in Hofstra Law School, earn- why he accepts so many Project refer- toward the goal of providing free
divorce action, but also represent ing his J.D. in 1997. rals, Mr. Hellman responded, “I (Continued on page 24)

ADR

Selecting the Right Mediator for Your Client’s Dispute


______________________
By Lisa Renee Pomerantz resolutions. Generally speak- approach is desired. attorney in Suffolk County, New York.
ing, evaluative mediators are Understanding these differences is She is a mediator and arbitrator on the
While attorneys understand expected to have sufficient essential to selecting the right media- AAA Commercial Panel and serves on
that different attorneys con- subject matter expertise to tor for your client’s dispute. the Advisory Council of the
centrate their practices in dif- provide such evaluations. Commercial Section of the Association
ferent fields and have different Finally, directive mediators Note: Lisa Renee Pomerantz is an for Conflict Resolution.
skill sets, they may not realize see themselves more as
that mediators differ in their “advisors” to the parties in COURT NOTES
approaches, areas of subject fashioning a resolution based ______________________
matter expertise, and skill sets. Lisa Pomerantz not only on the legal issues By Ilene Sherwyn Cooper felony, aggravated criminal
There are several different but also the relevant interests contempt, a class D felony,
general approaches to mediation. and circumstances. Appellate Division- and unlawful imprisonment
Facilitative mediators focus on improv- Mediators’ professional backgrounds Second Department in the first degree, a class E
ing the communication between the and skill sets also influence their felony, for which he was sen-
parties so they can better resolve the approaches as mediators. For example, Attorney reinstatements tenced, inter alia, to five
dispute themselves. Facilitative medi- mediators with a background in mental granted years of imprisonment, and a
ators generally avoid expressing an health or counseling may be quite effec- The following attorneys 10 year period of post-release
opinion on the merits or suggesting tive at mediating disputes arising have been reinstated to the supervision. Accordingly, by
solutions. Transformative mediators between divorcing spouses over parent- roll of attorneys and coun- Ilene S. Cooper virtue of his felony convic-
focus on the parties and their relation- ing, child custody and mediation. selors-at-law: tions, the respondent was disbarred
ship rather than on the particular dis- Retired judges, accustomed to deciding John Joseph Leonard from the practice of law in the State of
pute, believing that if the parties are the merits of cases, may be quite adept New York.
empowered and their relationship at evaluating the merits of the parties’ Attorneys disbarred
transformed, they will be able to positions and helping them negotiate a Steven M. Drapala, admitted as Note: Ilene S. Cooper is a partner
resolve the current dispute and any settlement based on the expected value Steven Mark Drapala: On November with the law firm of Farrell Fritz, P.C.
future issues. Evaluative mediators are of their case. Finally, transactional 21, 2014, the respondent pleaded where she concentrates in the field of
willing to point out to the parties the attorneys, experienced at setting the guilty in the Supreme Court, Nassau trusts and estates. In addition, she is a
strengths and weaknesses of their stage for productive negotiations and at County, to ten felony counts, including past president of the Suffolk County
respective cases so they can better devising various approaches to structur- rape in the first degree, a class B vio- Bar Association and past chair of the
anticipate the likely outcome in arbitra- ing business relationships and transac- lent felony, aggravated sexual abuse in New York State Bar Association Trusts
tion or litigation and suggest potential tions, might be useful if a directive the first degree, a class B violent and Estates Law Section.
THE SUFFOLK LAWYER – MARCH 2016 7

SIDNEY SIBEN’S AMONG US

On the Move… Scott M. Karson has been


elected treasurer of the New
Christopher B. Abbott has York State Bar Association.
become a partner at Smith, He will take office on June 1,
Finkelstein, Lundberg, Isler 2016. Scott is a former presi-
and Yakaboski, LLP of dent of the SCBA (2004-05)
Riverhead. and currently serves as vice
president of the New York
Announcements, Jacqueline Siben State Bar Association for the
Achievements, & Tenth Judicial District.
Accolades…
Congratulations…
Former Justice A. Gail Prudenti
was appointed chair of the New York To Honorable William J. Condon,
State Permanent Judicial Commission who was inducted as the president of
on Justice for Children, succeeding the the New York State Supreme Court
late retired chief Court of Appeals Justices Association.
Judge Judith Kaye in that role.
To the Honorable Theresa Whelan
Forchelli, Curto, Deegan, Schwartz, who was appointed Supervising Judge
Mineo & Terrana, LLP partner of the Suffolk County Family Court
Douglas W. Atkins, has been selected and to the Honorable Karen Kerr who
by the Long Island Business News for was appointed Supervising Judge of
the ‘40 under 40 Award Class of 2016. the District Court. The appointments
He was recognized for his leadership in were made by Chief Administrative
business, and commitment to the Long Judge Lawrence K. Marks.
Island community.

Congratulations to Touro
Dean Patricia Salkin
Touro Dean Patricia Salkin was the recip-
ient of the New York State Bar Association’s
Ruth G. Schapiro Award. This coveted
award, which embodies the spirit of Ruth G.
Schapiro, is given annually by the
Committee on Women in the Law and was
presented to Dean Salkin by NYSBA’s pres-
ident David Miranda at their annual meeting
in New York City on Jan. 29, 2016. The
award was created in 1992 for the late Ruth
G. Schapiro, a nationally regarded tax
lawyer, who was the first chair of the
Committee on Women in the Law.

Congratulations to the Hon. Deborah Poulous


Congratulations to the
Honorable Deborah Poulous,
Class of 1988, who was the
recipient of the Keith
Romaine Elected Official
of the Year Award presented
at the 2016 Touro Law
Center Alumni Winter
Reception, held at the
Sheraton New York Hotel
on Jan. 28. The award is
presented in memory of
Touro Law Center graduate
Keith Romaine, who passed
away suddenly in 2009, and
in recognition of his inter-
est and passion for govern-
ment, Touro Law created an award in his name to be presented annually to a
graduate who serves the public as an elected official.
8 THE SUFFOLK LAWYER – MARCH 2016

FUTURE LAWYER’S FORUM

Pro Bono and Experiential Learning — Is There a Disconnect?


_________________
By George Pammer there is no particular credit Touro Law School has with both women and discuss a lack of
requirement. been ahead of the curve on access to justice on Long Island.
As has been written previously in Pathway 2 is Certification these tasks for some time. All Ms. Dosso, the Director of
this column, the Court of Appeals in of Credit Acquisition by the students enrolled at Touro in Communications and Volunteer
their authority as Judicial individual law schools. This 2015 are required to com- Services, noted she would certainly be
Administration has authorized another requires the completion of 15 plete a clinic in their last year willing to take on more students to work
hurdle for law students to jump on credits of practice-based of law school. Touro has also in a pro bono atmosphere while at the
their path towards admission to the experiential coursework. This established an Intermediate same time providing those students with

9 New York Bar. Starting with the


incoming class of 2016, every appli-
cant for admission to practice shall
demonstrate that the applicants pos-
sess experiential skills. This new
would include American Bar
Association defined experien- George Pammer
Skills Requirement for all
students. This requirement
tial courses. Courses have been defined has each student take a practice based
rather broadly and can include profes- class and requires the successful com-
sional labs, doctrinal courses, clinics, pletion of practice-based tasks such as
the experiential learning the New York
judiciary just instituted as a require-
ment. Unfortunately, with the require-
ments that are being placed on law
schools, Ms. Dosso asserts there is not
requirement is in addition to the new field placements, externships and simi- writing motions. enough time or money to complete such
Uniform Bar Exam, the online semi- lar tasks. Some of these tasks are limit- The State Bar and the New York Bar a program on a large scale. Law schools
nars and class for the New York por- ed as to how many credits can count Foundation has created a joint task must have a classroom component and
tion of the exam, the Multi-State toward the experiential learning credits. force in an attempt to raise funding for the attorneys at Nassau/ Suffolk Law
Professional Responsibility Exam and This Pathway could severely restrict a access to justice initiatives1. There cer- Services simply do not have enough
the 50-hour pro bono requirement. law student’s ability to take electives. tainly is a deficit of availability of legal hours in a day to add such work to their
Details for the Experiential Learning Pathway 3 is a paid or unpaid services for those that cannot afford schedules. Yet, Nassau/Suffolk could
requirement can be found at 22 NYCRR apprenticeship that may be completed such. This task force is comprised of certainly use the help.
520.18. The regulation provides several in any jurisdiction where the supervis- attorneys from all over New York State, The structure of the experiential
pathways to achieve the required goal. ing attorney is in good standing in that except Long Island, which certainly has learning requirements and the onus
In Pathway 1 the law school would cer- jurisdiction. The ability to complete its own unique needs in pro bono work. being placed on law schools in such a
tify competency. The school would have such a program in any jurisdiction The Nassau Suffolk Law Services limited amount of time truly eliminate
to develop, plan, and incorporate into would seem to be contradictory to the Committee, Inc. is all too familiar with students from being an important cog
the curriculum, a sequence of classes or ability of gaining experiential learning the lack of affordable representation on in providing access to justice to those
programs that addresses professional to practice in New York. Pathways four Long Island and a lack of funding for that simply cannot afford representa-
competencies. The areas of develop- and five are very limited in their appli- pro bono work according to Maria tion. The clinics requirement now
ment would be left up to the schools to cation to students and essentially apply Dosso and Melissa Greenberger of included in the curriculum at Touro
identify for basic competence and ethi- to the Pro Bono Scholars Program and Nassau Suffolk Law Services may also limit the need for external
cal participation. Under this Pathway those that are LLM students. Committee Inc. I was able to sit down (Continued on page 24)

LAND USE LAW

Zoning Boards of Appeal – How Much Variance Relief is Too Much?


_________________
By Vincent Messina and Town Board route one its magnitude, a change of 450 N.Y.S.2d 698) which are
must take in seeking an zone application requiring passed and enforced by the Town
Often times, land use practitioners amendment to the zoning relief from the Town Board? Board (see Town Law, § 261).
are faced with the choice between ordinance. However, this There is no question that When performing this function, as
applying for variance relief or making sometimes leads to requests the under the statutory scheme contrasted to its function of review-
a change of zone application. The for very significant variance provided for in the laws of the ing determinations by town admin-
variance option is usually more relief, which can lead to State of New York, the land istrative officials (see Town Law, §
appealing, since it can generally be opponents of the application, use policy of a town is set by 267, subd. 2), the Zoning Board acts
accomplished faster, since it only or even the ZBA itself, to ask the duly elected members of in an administrative capacity inde-
involves an appearance before the the question: At what point Vincent Messina the Town Board via enactment pendent from the Town Board. The
Zoning Board of Appeals (ZBA), does a variance application of a zoning ordinance. respondent Zoning Board, while an
rather than both the Planning Board go too far, and really become, due to The role of Zoning Board of Appeals agency of the municipality, never-
in land use policy is to protect the zon- theless possesses an independent
ing system established by the legisla- and direct interest . . . as a repre-
SAVE THE DATE tive body (the Town Board). The sentative of the public interest in
The SCBA Installation Dinner analysis undertaken by the Court of protecting the zoning system set up
Appeals in Commco, Inc. v. Amelkin, by the Town Board”
Dance will be held on Friday, June 3, 62 N.Y.2d 260, 465 N.E.2d 314 (1984)
2016, at 6 p.m. at the Cold Spring with respect to this issue remains the Commco, Inc. v. Amelkin, 62 N.Y.2d
Country Club, Cold Spring Harbor, guidepost for zoning boards: 260, 266, 465 N.E.2d 314, 317
NY. (1984)(emphasis added)(citations and
“It is undisputed that under this footnotes omitted).
The dinner will honor and install State’s statutory scheme, the As one commentator has stated:
the new SCBA President, John R. Zoning Board has been vested with
the exclusive power to grant or “The zoning board of appeals is an
Calcagni, officers and directors. deny, in the first instance, a variance administrative body, not a legisla-
Tickets are $150 person. For further from the zoning ordinances (see tive one. Accordingly, it is without
information call the bar association. Town Law, §§ 261, 267, subd. 2; authority to amend the zoning
Jaffe v. Burns, 64 A.D.2d 692, 407 ordinances that it administers.
N.Y.S.2d 577; Blumberg v. Town of Zoning boards of appeals were
North Hempstead, 114 Misc.2d 8, (Continued on page 27)
THE SUFFOLK LAWYER – MARCH 2016 9

HEALTH AND HOSPITAL LAW

A Significant Case of General Interest


____________________
By James G. Fouassier perhaps common law negli- allegedly did not do. risk of harm” and the balancing of
gence) risks. The defendants moved to factors such as the expectations of
A recent decision from our Court of Ms. Walsh, the patient, was dismiss, raising what we all the parties and society in general,
Appeals should be of interest to the discharged from the hospi- were taught was a black-letter the proliferation of claims, and
bench and bar generally, as it presents tal’s emergency department defense: they did not owe the public policies affecting the duty
issues that significantly transcend what shortly after treatment with plaintiffs a duty of care proposed herein tilts in favor of
otherwise might be considered of inter- an opioid painkiller adminis- because the plaintiffs were establishing a duty running from
est only to the specialized health law tered intravenously. Less than third parties to the treatment defendants to plaintiffs under the
practitioner. a half hour after discharge rendered to the patient. facts alleged in this case.
It is the high court’s dramatic and Ms. Walsh was involved in a James G. Fouassier Plaintiffs then cross-moved for [T]o take the affirmative step of
potentially game-changing decision in car crash, crossing a double yellow leave to amend to assert a cause of action administering the medication at
Davis v. South Nassau Communities line. Observations were to the effect for common law negligence. The trial issue without warning Walsh about
Hospital, 2015 N.Y. LEXIS 3897; that she was in a state of disorientation court granted the motions to dismiss and the disorienting effect of those
2015 NY Slip Op 09229, Dec. 16, and under the influence of a drug. Later denied the cross-motion to amend. As drugs was to create a peril affecting
2015, a medical malpractice case. expert testimony would adduce that the might be expected the Appellate every motorist in Walsh’s vicinity.
While the majority expressly limited its particular drug, Dilaudid, had two to Division affirmed, finding that only Ms. … Defendants are the only ones
holding to the facts and offered that the eight times the painkilling effect of Walsh had a “physician-patient relation- who could have provided a proper
decision only minimally expands the morphine. The victims of the crash ship” and thus the defendants owed no warning of the effects of that med-
current state of the law, even a cursory brought suit against the hospital and duty of care to the injured plaintiffs. ication. Consequently, on the facts
examination of the ruling demonstrates the treating physicians, alleging that The Court of Appeals reversed. The alleged, we conclude that defen-
that an application of the rationale of they were under a duty prior to her dis- rationale and analysis of the court — dants had a duty to plaintiffs to
the court to other fact patterns invari- charge to warn Ms. Walsh of the effects and the dissenting opinion — should be warn Walsh that the drugs admin-
ably may result in a substantial, if not of the drug and that it could affect her required reading for every health care istered to her impaired her ability
dramatic, expansion of a health care ability to operate a motor vehicle safe- and personal injury attorney. What the to safely operate an automobile.
provider’s medical malpractice (and ly, something which the defendants court appeared to do is approach the
question from the perspective of who Anticipating an outcry, the court
created the risk: attempts to ameliorate the breadth
Wanted: SCBA FunRun This is an instance in which defen-
and the possible effect of this novel
ruling by making three “observa-
Team Members dants’ “relationship with … the
tortfeasor… place[d] [them] in the
best position to protect against the
tions.” First, all the ruling requires is
that a medical provider “warn” the
(Continued on page 23)
The Suffolk County Bar Association is looking for walkers and runners to
join our team for the Corporate FunRun 5k on May 18, 2016 at the Bethpage
Ballpark in Central Islip (right next door to the Courthouse). Bar Association
members, their families, office staff and friends are all invited to join our
team. Glenn Warmuth is the team captain. Come for the fun-run, stay for the
party! Entry is $40/person. To sign up for our team go to: http://corporate-
funrun.com/registration/?id=27&teamid=1919
SECURITIES LAW
JOHN E. LAWLOR, ESQ.

• Securities • Arbitration / Litigation


• FINRA Arbitrations
• Federal and State Securities Matters

(516) 248-7700
129 Third Street • Mineola, NY 11501
johnelawlor.com
10 THE SUFFOLK LAWYER – MARCH 2016

INTERNATIONAL REGULATORY AND ENFORCEMENT

Princelings – Expanding Definition of “Value” Under FCPA


____________________________
By Jonathan “Jack” Harrington The evolving definition and answer is very clear. The prover- hard to gauge such benefits.
interpretation of each element, bial suitcase full of unmarked Hiring a family member of a govern-
Congress enacted the Foreign let alone all five, is beyond the bills delivered in a dark alley to ment official is not necessarily a viola-
Corrupt Practices Act (“FCPA”) in scope of this article. a foreign minister in exchange tion of the FCPA’s anti-bribery provi-
1977 in the wake of the Watergate Since 2013, however, one of for a lucrative government con- sions. But if a company does so with
investigation and in response to reports the most interesting develop- tract is a clear violation. Cash is the intent to induce the official to do
of widespread bribery of foreign offi- ments has been the meaning of certainly something of “value.” something in their official capacity,
cials by U.S. companies. The FCPA “anything of value” in relation But what if the thing of value is such as award a contract or approve a
prohibits U.S. persons, companies, and to U.S. financial services insti- not promised or delivered deal, that hire would potentially cross
issuers from, among other things, brib- tutions hiring children of directly “to” the official? For the line. Reporting has indicated that JP
ing or attempting to bribe a foreign influential foreign officials, or Jonathan Harrington instance, in SEC v. Schering- Morgan referred to the hiring pipeline
official in order to secure an improper so-called “princelings” as they are Plough Corp., No. 04-CV-00945 (D.D.C. as the “sons and daughters” program,
business advantage. In basic terms, the referred to in China. In August 2013, JP June 16, 2004), the Commission argued and had created a spreadsheet linking
elements of an FCPA bribery charge Morgan Chase disclosed an investiga- that gifts given to a third-party charity were specific princeling hires to specific
include: offering, paying, or authoriz- tion into a hiring program targeting the intended to influence the charity’s founder, deals being pursued by the bank. JP
ing “anything of value” directly or children of top Chinese officials. For a senior Polish official. The charity was Morgan and its officials have not been
indirectly, to a foreign official, to years, it has been standard practice for legitimate and the donation never went into charged with any wrongdoing.
improperly gain a business advantage. western banks to hire relatives or close the personal coffers of the official, but the In prosecuting this recent line of
For decades, the FCPA laid relatively friends of senior Chinese officials in government staked a clear position as to princeling cases, the DOJ and SEC are
dormant. In recent years, however, the order to build up “guanxi” (meaning what it considers to be something of sending a very clear signal that it is con-
Department of Justice (“DOJ”) and “networks” or “connections”). “value” for the purposes of the FCPA. tinuing to seek ways to expand the reach
Securities and Exchange Commission As you might expect, the government’s Returning to the recent princeling and scope of the FCPA. The princeling
(“SEC”) have dramatically stepped up theory is that the job or internship consti- cases, can a job (even an unpaid intern- investigations to date have been settled,
enforcement of the act. For instance, tutes something of value under the FCPA ship) offer to a relative of a foreign official so there is no case law to help compa-
since 2008, the top 10 FCPA enforce- and that it is being offered to improperly inure to the benefit of the official himself? nies determine the left and right bounds
ment actions have cost those 10 compa- gain a business advantage. The interesting If the job is lucrative, then arguably the when it comes to hiring the relatives of
nies a total of $4.4 billion in fines and dis- question becomes, however, does net- salary received by the relative is a savings foreign officials. The U.S. government’s
gorgement. During the FCPA’s renais- work-building or even blatant nepotism to the official, but that assumes some level public statements on these cases, how-
sance, the government has actively rise to the level of an FCPA violation? of financial dependence. One could also ever, are certainly instructive.
sought to extend the jurisdictional reach The answer appears to be “maybe.” argue that there is an intrinsic or prestige First, companies that might hire a
of the act, as well as expand the definition What constitutes something of value is value associated with working at a rep- relative of a foreign official should not
of the five elements of a bribery charge. not always easy to answer. Sometimes the utable financial services firm, but it is very (Continued on page 24)

REAL PROPERTY

Foreign Ownership of Real Property in the United States


________________
By Robert B. Moy the United States has also out of the ownership of the eign corporations may be subject to
helped to increase the flow of real property. more income tax since they are not
There has been tremendous growth in foreign investment into One form of ownership entitled to any reduced capital gains
foreign investment in real property, United States real estate. available to foreign buyers to tax rates upon sale of the real property,
both residential and commercial, locat- There are many tax and shield themselves from per- a benefit that is available to individu-
ed in the United States in the past five to liability implications appli- sonal liability is a limited lia- als. In addition, there might be an
ten years. Some states, such as New cable to foreigners buying bility company (“LLC”). additional income tax imposed upon
York and California, have seen a large real property in the United Ownership of real property foreign corporations known as a
number of investors from Asia, espe- States, which should be in an LLC provides liability “branch profits tax.”
cially from China, purchasing real addressed with some protection for the LLC’s Perhaps the most advantageous
property and investing in real estate advanced planning prior to Robert B. Moy owners or “members,” and an structure for foreign buyers to own real
development projects. Florida and the signing of a contract and/or the LLC is a pass through entity that is property in the United States is a
other southern states have seen a large closing of the purchase. One of the taxed only to each of its members. hybrid structure whereby a foreign cit-
influx of investment dollars from South key considerations for foreign buyers Thus, LLC’s avoid the double taxation izen owns a foreign corporation, which
America pouring into real estate. is structuring the ownership of the real of other entities such as C corpora- in turn, owns an LLC set up in the
Although there are many reasons for property to minimize taxation and to tions, which are taxed once at the cor- United States. A foreign citizen in this
this growth, perhaps the key factor is maximize protection from personal porate level and again at the share- dual structure will have liability pro-
that real estate in the United States is liability arising out of ownership. holder level. An LLC does not neces- tection, and avoids the possibility of
perceived to be a safe and stable sarily provide estate tax savings to United States estate taxes upon death.
investment by foreign investors. Ownership structure individual foreign owners of the entity, The tradeoff is the potential for higher
Foreign investment flowing into the The simplest form of real property but it has become a popular entity to income taxes and capital gains tax
United States from China has been ownership in the United States is own- use for owning real estate. rates upon sale of the real property.
fueled by the incredible wealth created ership in a foreign buyer’s individual Another option available to foreign It is also worth noting that upon the
by the Chinese economy and stock name. There are, however, significant buyers is to own real property through disposition of any real property, all
market, and the easing of restrictions disadvantages to individual ownership, a foreign corporation. In addition to foreign individuals and foreign corpo-
on currency controls, which has such as the potentially onerous estate the limited liability offered by foreign rations are subject to withholding
allowed the free flow of money out of tax in the event that the individual dies corporations, individual owners of for- under the Foreign Investment in Real
China. The increased popularity and while the owner of real property locat- eign corporations are not subject to Property Tax Act of 1980 (FIRPTA).
use of the EB-5 Immigrant Investor ed in the United States. In addition, an United States estate taxation upon the Under FIRPTA, the buyer of real prop-
Program to allow foreign investors to individual owner is exposed to person- death of the individual shareholders. erty from a foreign owner is required
obtain permanent residency status in al liability for any obligations arising There are some disadvantages, as for- (Continued on page 26)
THE SUFFOLK LAWYER – MARCH 2016 11

REAL ESTATE

CPLR Rule 3408 Addressed by Second Department Again, Again and Again
_____________
By Andrew Lieb court’s finding of bad faith Sarmiento is “considering records to establish that the documents
was based upon “the Bank … whether the totality of the requested for a modification, the dates
In January 2016, the Second engag[ing] in dilatory con- circumstances demonstrates of such requests and/or the grounds for
Department was again asked to explain duct by ‘making piecemeal that the party’s conduct did denial are inconsistent or contradictory.
the trial court’s authority to enforce the document requests, providing not constitute a meaningful Simply stated, a party who
good faith negotiation requirement contradictory information, effort at reaching a resolu- “obfuscate[s], delay[s], and prevent[s]
applicable to CPLR Rule 3408 settle- and repeatedly requesting tion.” When Sarmiento estab- CPLR 3408 settlement negotiations by
ment conferences in three separate documents which had lished the totality of the cir- acting negligently” can be found to have
cases. As the Second Department ini- already been provided’.” cumstances standard, the negotiated in bad faith. Nevertheless, a
tially reminds us, “[p]ursuant to CPLR In Aurora Loan Services, court expressly rejected the lender is not required to accept a bor-
3408(f), the parties at a mandatory LLC v. Nelli Chirinkin, et al.3, Andrew Lieb plaintiff’s proposed standard rower’s offer (e.g., a modification with a
foreclosure settlement conference are the court was asked to address whether “of gross disregard of, or conscious or lower principal or interest rate, or
required to negotiate in good faith to the trial court properly denied an appli- knowing indifference to, another’s instead, a lump sum payoff) by way of
reach a mutually agreeable resolu- cation to restore the action to the mort- rights.” In fact, the court in Sarmiento the totality of the circumstances stan-
tion.”1 In all three cases, the court gage foreclosure settlement conference set forth illustrations of bad faith nego- dard. So, there will never be a windfall
remained steadfast to its previously set part calendar. The court affirmed the tiations that are triggered “by acting to a borrower from a meritorious CPLR
standard for CPLR Rule 3408 as artic- trial court’s denial of the application by negligently,” including “[w]here a Rule 3408 application because sanctions
ulated in US Bank N.A. v. Sarmiento2. holding that “refusing to lower the plaintiff fails to expeditiously review are restricted to waiving the interest, dis-
In LaSalle Bank, N.A. v. Dono, the principal or the interest rate or by submitted financial information, sends bursements, costs, and attorney’s fees
court affirmed the trial court’s imposi- rejecting the terms of the defendants’ inconsistent and contradictory com- that accumulated during the period of
tion of sanctions “abat[ing] all interest, counteroffer” is not bad faith. munications, and denies requests for a bad faith only. Therefore, a sanctions
disbursements, costs, and attorney’s In Deutsche Bank Natl. Trust Co. v. loan modification without adequate application should only be used as a
fees that had accrued during the period Twersky4, the court held that the refusal grounds, or, conversely, where a defen- matter of last resort.
between October 1, 2010, and August by a foreclosing plaintiff to accept “a dant fails to provide requested finan- Moving forward, the only question
12, 2014,” which represented the peri- lump sum payment … in full satisfac- cial information or provides incom- that remains open is the degree that
od “that the Bank had failed to negoti- tion of the outstanding loan balance,” plete or misleading financial informa- HAMP guidelines play in the totality of
ate in good faith.” However, the court did not constitute bad faith negotiations tion, such conduct could constitute the the circumstances standard. While this
reversed the trial court’s imposition of pursuant to CPLR Rule 3408. failure to negotiate in good faith to precise issue was raised in US Bank N.A.
additional sanctions, which “perma- In each of the three cases, the reach a mutually agreeable resolution.” v. Sarmiento, and the court rejected the
nently barr[ed] the Bank from collect- Second Department cited to US Bank CPLR Rule 3408 has a clear standard common-law alternative standard
ing any interest, disbursements, costs, N.A. v. Sarmiento for the good faith for enforcement. The result of a CPLR advanced in the case by the plaintiff, it
or attorney’s fees in the future absent standard applicable to CPLR Rule Rule 3408 sanction’s application can be did not expressly hold that HAMP
further court order.” In Dono, the 3408(f). The standard set forth in predicted by whether the mortgagor has (Continued on page 25)

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12 THE SUFFOLK LAWYER – MARCH 2016

CONSTITUTIONAL

Respondent’s Invocation of Fifth Amendment Results in Stayed Eviction


_____________
By Cory Morris The matter was set down for a Ms. Moorer was represented sends the same message: innocent or
trial due to occur on Nov. 21, by the Nassau/Suffolk Law guilty, demand an attorney and exercise
A civil legal service provider 2015. Ms. Moorer, by order Services, Committee Inc. your right to remain silent. You need not
invoked their client’s Fifth Amendment to show cause, made a motion (“NSLS”), a legal service be a movie buff to know that on the
rights in eviction proceedings, resulting to stay the proceedings on or provider “dedicated to provid- screen and in reality you do have the
in a stay and allowing the client to about Oct. 23, 2015. ing equal access to basic right to remain silent and everything you
remain in her residence. The client, In her affidavit in support human rights and services say can be used against you.4 Making a
Deborah Moorer (“Moorer”), was of the motion to stay the through provision of high qual- Murderer simply buttresses the impor-
simultaneously being evicted by the action, Ms. Moorer invoked ity legal representation, public tance of exercising one’s Fifth
Hempstead Housing Authority and her Fifth Amendment rights, information and community Amendment rights in the face of police
prosecuted by the Nassau County stating, inter alia, that: Cory Morris advocacy training to ensure questioning even if that person is factu-
District Attorney’s office for hitting I wish to preserve my constitutional that low income, disabled and disadvan- ally innocent.
someone with her cane, which she rights while for fighting for my acquit- taged individuals have equal access to the The Fifth Amendment to the United
denied doing. This case should serve as tal and defeat of this summary eviction civil justice system on Long Island.”2 The States Constitution is as follows:
a reminder to civil practitioners whose proceeding, and I ask the Court to stay quality of the representation is in the
clients are facing criminal charges that this matter pending the outcome of my result. Aside from the importance to the No person shall be held to answer
civil courts have the discretion to stay criminal trial… My criminal defense bar, we should be reminded that the for a capital, or otherwise infa-
the proceedings pending the resolution attorney advised me that testifying in impact of this case is profound for Ms. mous crime, unless on a present-
of a criminal matter. this matter effectively sacrifices my Moorer, a woman who resided in low- ment or indictment of a Grand
The case, Hempstead Housing right to exercise the Fifth Amendment income housing in Hempstead, New Jury, except in cases arising in the
Authority v. Moorer,1 started out as a in my criminal trial, as my testimony in York, for over a decade before she was land or naval forces, or in the
simple eviction. On April 21, 2015, the civil matter becomes public record. charged with a crime and subsequently Militia, when in actual service in
Petitioner, Hempstead Housing The Housing Authority responded notified that she was being evicted. time of War or public danger; nor
Authority (“Housing Authority”) filed that Ms. Moorer had “waited too long Civil Practitioners should note that shall any person be subject for the
a holdover proceeding in District to make the application for a stay the Fifth Amendment is multifaceted same offence to be twice put in
Court, Nassau County, Landlord and because this matter was scheduled for and, in this case, was not only a funda- jeopardy of life or limb; nor shall
Tenant Part. The Housing Authority trial.” Judge Scott Fairgrieve found that mental protection in the criminal matter be compelled in any criminal case
alleged that the tenant defaulted on the Ms. Moorer’s “right against self but sufficiently prolonged the civil mat- to be a witness against himself, nor
lease because “[o]n or about January incrimination is more important than ter throughout the winter. “In the wake be deprived of life, liberty, or prop-
22, 2015 [she] assaulted another tenant any prejudice and delay suffered by of Netflix’s Making a Murderer docu- erty, without due process of law;
with a cane.” The respondent, Deborah Petitioner.” After the resolve of the mentary … interest in the recognized nor shall private property be taken
Moorer, averred in her answer that, criminal matter (which was set for trial right to remain silent has been reignited for public use, without just com-
even if proven, these allegations would due to occur on Feb. 5, 2016) the land- amongst the populace.”3 This documen- pensation.
not be a material breach of the lease. lord tenant matter will be tried. tary is the latest in a string of media that (Continued on page 24)

PRACTICE MANAGEMENT

Dealing with Interruptions


__________________
By Allison C. Shields interrupted, make a note interruptions simply because example, schedule a meeting with your
about what you were doing your staff doesn’t know assistant every day at 4:00 p.m. to
Interruptions are enormous time and, ideally, what the next when you will be available resolve any remaining issues from the
wasters that represent huge productiv- step is. Then put the original next. And once they have day and plan for the following day. Or
ity losses. Studies have shown that it task away so that you can your attention, they may be have a weekly meeting with your asso-
can take more than 25 minutes, on focus completely on the new afraid to let it go because it’s ciate to report on progress of ongoing
average, to resume a task after being priority. so difficult to get it in the projects or cases.
interrupted. After resuming complex Allowing interruptions first place. Block out do not disturb time to con-
tasks, such as those performed by most permits the priorities of oth- But you can limit or elimi- centrate on complex tasks. Instruct oth-
lawyers daily, it can take an additional ers to override your own. But nate these problems with ers not to interrupt unless an emergency
Allison M. Shields
15 minutes to return to the level of most interruptions don’t rep- these basic actions. arises — and define what constitutes an
focus or concentration as before the resent real emergencies or significant First, train staff to hold all questions emergency. If possible, put your office
interruption. A September 10, 2013 priorities that trump your original task. for a specific time, so you can tackle phone in do not disturb mode to alert
article in the Wall Street Journali In those instances it’s better to avoid several issues at once rather than deal- others that you are not available and
linked frequent interruptions to higher the interruption entirely. You can cir- ing with multiple interruptions for close your office door. If all else fails,
rates of exhaustion, stress-induced ail- cumvent many of these interruptions if individual questions. Next, implement leave your office in favor of a confer-
ments and a doubling of error rates. you set some ground rules for how oth- “available” and “unavailable” (or “do ence room or remote location to ensure
Constant interruptions can even mimic ers interact with you. not disturb”) time in your office. Give that important work gets done.
the symptoms of sleep deprivation. staff a clear time when you’ll be acces- Colleagues present another oft-cited
Given the number of interruptions Staff and colleague interruptions sible to them, and follow through con- source of interruptions. Even solos
most lawyers experience daily, this is Not all lawyers have staff, but those sistently. Establish regular daily or can experience these interruptions,
an issue that cannot be ignored. who do frequently find that staff inter- weekly office hours, or provide a particularly if they work in an office
Sometimes interruptions are ruptions can represent a major loss of changing block of time daily when you suite or shared office arrangement.
unavoidable; emergencies do arise, productivity. Staff interruptions can be will be on hand for questions. Either Colleagues may stop by for feedback
and some interruptions need to be the result of the lawyer’s limited avail- way, staff must know when they can or questions, or they may simply want
addressed immediately. In my May ability or an inability of staff to predict reach you. This will eliminate (or at to take a break and shoot the breeze.
2015 column, I talked about blocking when the lawyer will be able to answer least reduce) their urge to grab you Let them know your office hours and
time for priority work and leaving their questions. When you are present every time they see you. do not disturb policy. If they interrupt
room for the “chaos factor.” By doing in the office — usually when you’re Schedule recurring meetings with anyway, give them a time to come
so, you plan time to handle emergen- alone in your office trying to get work those who are accountable to you or back with their questions. Don’t be
cies that may arise. If you must be done — you can be bombarded with have regular questions for you. For (Continued on page 25)
THE SUFFOLK LAWYER – MARCH 2016 13

CYBERLAW

‘Technological Competence,’ a New Ethical Obligation


________________________
By Victor John Yannacone Jr. minimum, a basic understand- merce, particularly interna- in the early days of IBM mainframes,
ing of, and facility with, issues tional trade and finance, must “machine-readable format,” whether the
Rule 1.1 Competence: a lawyer related to e-discovery, attain a level of technological material is stored in personal computers,
shall provide competent representa- includingiii the discovery of competence commensurate laptops, tablets, servers, and now, more
tion to a client. Competent represen- electronically stored informa- with that of their clients. This frequently than ever, mobile devices
tation requires the legal knowledge, tion (ESI),” adding this omi- is critical when the client such as smart phones.
skill, thoroughness and preparation nous warning to the unpre- becomes involved in litiga- To be considered a “competent” liti-
reasonably necessary for the repre- pared attorney — “Lack of tion and e-discovery involves gator in the context of professional lia-
sentation. i competence in e-discovery identification and collection bility considerations, at the very mini-
In August 2012 Comment 8 was added issues also may lead to an eth- of documents and data from mum, an attorney must understand the
to the rule, “To maintain the requisite ical violation of an attorney’s Victor Yannacone Jr. structured data sources and technology of ESI and should be able
knowledge and skill, a lawyer should duty of confidentiality.” analysis of global information architec- to handle the basic elements common
keep abreast of changes in the law and its The California State Bar estab- ture, among other tasks involving a to all e-discovery:
practice, including the benefits and risks lished three options for attorneys combination of legal, technical and • Assessing the e-discovery needs
associated with relevant technology …” “lacking the required competence for business skills. and issues of the litigation.
Although this was a nonbinding com- e-discovery issues: “acquire sufficient • Implementing ESI preservation pro-
ment to the rules, over the three years learning and skill before performance E-discovery cedures.
since that amendment, at least 15 states is required; associate with or consult Any lawsuit in any court, which • Analyzing and understanding the
— Arizona, Arkansas, California, technical consultants or competent requires production and examination of ESI systems and storage of both
Connecticut, Delaware, Idaho, Kansas, counsel; and decline the client repre- “documents,” involves electronically your client and the opposing party.
Massachusetts, Minnesota, New sentation. stored information (ESI) and calls for e- • Determining options for collection
Hampshire, New Mexico, North Particularly in the area of e-discov- discovery. From relatively uncomplicat- and preservation of ESI.
Carolina, Ohio, Pennsylvania and West ery, failure to understand the technolo- ed contested matrimonial actions • Identifying the custodians of poten-
Virginia — have amended their ethics gy creates a genuine risk of legal mal- through mass toxic torts and product lia- tially relevant ESI.
rules or issued ethics opinions with pro- practice and professional liability. bility class actions, counsel managing • Conferring with opposing counsel
visions on attorneys’ competence with the litigation for plaintiffs or defendants concerning e-discovery plans.
technology. Business considerations must understand the technology associ- • Conducting data searches with your
Earlier this year, the State Bar of There is also a significant business ated with electronic media in all its client.
California in its Formal Opinion No. component to cyberlaw and technolog- forms and the storage and management • Designing data searches of the
2015–193,ii determined that attorney ical competence. Attorneys who repre- of business and personal records as opposing party.
competence in litigation requires, “at a sent clients engaged in modern com- computer records; or, as they used to say (Continued on page 22)

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14 THE SUFFOLK LAWYER – MARCH 2016

ETHICS

The Self-Defense Exception to the Attorney-Client Privilege


_____________________
By Janice J. DiGennaro a lawyer-rating website. initiated by the client. or privileged communications.
The short answer is no. The committee concluded
Responding to Client Critical The lawyer may not rely that rules permitting disclo- Note: Janice J. DiGennaro is a part-
Commentary on a Website upon the self-defense excep- sure of client confidences ner in Rivkin Radler’s Professional
NYSBA Ethics Opinion 1032 (Oct. tion to the attorney-client should be read restrictively. Liability, Directors & Officers Liability
30, 2014) privilege to reveal privileged Unflattering but less formal and Compliance, Investigations &
Under R.P.C. 1.6 a lawyer is per- or confidential information criticism of the lawyer’s White Collar, Practice Groups, where
mitted to disclose privileged commu- about the client to respond to skills, whether in the hallway, she represents attorneys for claimed
nications in certain circumstances critical comments about the newspaper or on a website, malpractice, fiduciary breaches, and
when needed for his or her defense. lawyer on a website where are an inevitable incident of fraud. She can be reached at: (516)
R.P.C. 1.6(b)(5)(i) states that a there were no pending or Janice J. DiGennaro the practice of law and pro- 357-3548 or janince.digennaro@riv-
lawyer “may reveal or use confidential imminently threatened proceedings vide no license to divulge confidential kin.com.
information to the extent he believes is
reasonably necessary … to defend the SAVE THE DATE
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associates against an accusation of
wrongful conduct.” Cyber-Insurance and Cyber-Security:
The cases and commentators
have held either an actual civil, When Hackers Strike Your Practice, Will You Be Prepared?
criminal, disciplinary or other pro-
ceeding in which sanctions can be April 20, 2016, 12:30 – 2:15 p.m. – insurance and IT fields.
imposed must be commenced or a
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will be commenced. Late last year, Glasser Tech; Elizabeth Simoni, Travelers Insurance;
the New York Bar Association It is no longer a matter of whether your practice will Tom Rizzuto, Esq., Travelers Insurance; Shari Claire
Committee on Professional Ethics be hacked – it’s just a matter of when. This program Lewis, Esq., Rivkin Radler LLP
issued Opinion 1032. In that opin- will tell you what you need to do to be prepared, how
Location: Suffolk County Bar Association, 560
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Wheeler Road, Hauppauge, NY
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CRIMINAL

“Best Practices” at a Wade Hearing


_______________
By Vesselin Mitev court’s discretion) only if the gestive. ness’ line of eyesight so as not to give
People establish by clear and For example, the typical even inadvertent cues. Were any state-
Eyewitness identification of a sus- convincing evidence that said photo array sheet comes with ments made to the witness such as,
pect, once heralded as the gold standard identification(s) were “neither a set of pre-printed instruc- “Are you sure you got a good look at
of proof for the prosecution in criminal the product of, nor affected by, tions that are supposed to be number 5?” or did the witness ask any
cases, has been time and time again the improper pretrial” proce- read to the identifying wit- questions and were said questions
demonstrated to be faulty, erroneous, dure, see People v. Rahming, ness. Often, these are never answered in any fashion. Did the offi-
easily influenced, and altogether unreli- 26 NY2d 411, 416 [1970]). read at all. Nine times out of cer/detective clear his throat while the
able. Yet few things are more powerful The standard photo array 10 the officer/detective does witness paused her finger over a par-
than an in-court identification of the Wade hearing involves the not first ask the witness ticular photograph or was the room
Vesselin Mitev
defendant as the person who committed People calling the police whether or not they can read stone silent?
the crime, with the witness pointing to officer or detective who will attempt to or write English. The state District Attorneys’
the defendant as they are asked if they establish that he or she presented sev- The photo array sheet asks of the Association has a best practices guide-
see the suspect in court today, even if eral (usually six) pictures of possible witness a series of questions, such as: line as to identification procedures.
that witness is sorely mistaken. suspects to the identifying witness and “Do you recognize any of the photo- This is a helpful checklist for any
The pre-trial Wade hearing (after the then the identifying witness, without graphs above?” and has pre-printed defense counsel looking to poke sub-
1967 U.S. Supreme Court case U.S. v. any hint or suggestion by the blank spaces for the witness to fill out. stantial holes in the testifying offi-
Wade), codified under CPL 710.30, officer/detective, simply picked out the Of course, if the good officer/detective cer/detective’s narrative, especially if
puts the burden on the People to prove defendant charged with the crime. did not inquire whether the witness it does not conform with the state pros-
that the pre-trial identification of the The witness is a disinterested public could understand what was being ecutors’ own guidelines (which the
suspect was the product of reasonable servant and enjoys the patina of credi- asked of him/her (since he failed to court should be asked to take judicial
police conduct and the lack of any bility of a sworn law enforcement inquire whether the witness spoke or notice of).
undue suggestiveness in a pre-trial agent while your client is a suspect wrote English), then necessarily the For example, the photo array should
identification procedure (photo array, charged with a crime. The scales are photo array display was not conducted be handed to the witness covered up
line-up, show-up); if the People meet not balanced at the outset, one might correctly on its face. (in an envelope or a folder) so that nei-
this initial burden, the burden then say, yet there is fertile ground for Subtle suggestiveness lurks every- ther the witness nor the officer can see
shifts to the defendant to prove that the cross-examination to determine the where. Inquiry should be made where the pictures. The witness should be
process was unduly suggestive. “lack of any undue suggestiveness,” the officer stood as related to the wit- told by the officer/detective before
Importantly, prevailing at the Wade which is a horse of a different color ness, i.e., was he hovering over her viewing the array that 1) the person
hearing means that at trial, in-court iden- than whether taken as a whole the shoulder while she reviewed the array, who committed the crime may or may
tification(s) will be admissible (at the entire procedure was not unduly sug- or was he removed and out of the wit- (Continued on page 26)
THE SUFFOLK LAWYER – MARCH 2016 15

TRUSTS AND ESTATES UPDATE


_____________________
By Ilene Sherwyn Cooper intestacy, the court will rule in executor and trustee of the bate on April 4, 1986. Ancillary pro-
favor of standing. trusts created under the dece- bate was granted in California on the
Standing Accordingly, the petition- dent’s will. Although objec- same date the will was admitted to pro-
Before the Surrogate’s Court, New er’s motion to dismiss was tions to the account were ini- bate in New York, and ancillary letters
York County, in In re Bruno, was an denied. tially filed by the decedent’s testamentary were issued to the corpo-
application by the petitioner to dismiss In re Bruno, NYLJ, Oct. 23, spouse, his daughter, and his rate fiduciary on June 6, 1986. The
the objections filed by one of the dece- 2015, at 42 (Sur. Ct. New York two grandchildren, after assets of the decedent’s estate included
dent’s distributees on the grounds that County)(Anderson, S.) many years of litigation all a valuable parcel of real property
she lacked standing to pursue her claims. the objectants, but for the located in California that was the sub-
The decedent died, survived by 11 Estoppel Ilene S. Cooper decedent’s daughter, settled ject of a long-term lease agreement,
first cousins once removed, who were Before the Surrogate’s Court, Suffolk with the fiduciary. which expired on July 23, 2014.
her sole distributees. The approximate County, in In re Lowe, was an account- The decedent died on February 23, Pursuant to the pertinent provisions
value of her estate at death was ing by JP Morgan Chase Bank as 1986, and his will was admitted to pro- (Continued on page 23)
$482,000. Pursuant to the pertinent
terms of her will, she bequeathed her
cooperative apartment, valued at
approximately $400,000, to Rose, who
was one of her said distributees, and
left the residue of her estate to the peti-
tioner. Under a penultimate instru-
ment, Rose received one-half of the
cooperative apartment, and a one-fifth
share of the residuary estate.
Objections to probate were filed by
five of the decedent’s distributees,
including Rose, alleging, inter alia, lack
of due execution, lack of testamentary
capacity, fraud and undue influence.
The petitioner moved to dismiss the
objections filed by Rose, claiming that
she was not adversely affected by the
probate of the propounded will and
therefore lacked standing.
The court opined that the provisions of
SCPA 1410 authorize any person whose
interest in property or in the estate of the
testator is adversely affected by the
admission of the propounded will to pro-
bate to file objections to the probate of
the instrument. The court noted that the
“interest” contemplated by the statute,
need not be absolute, and can include a
contingent stake in the estate.
Within this context, and based upon
the estimated value of the estate, the
petitioner argued that the objectant
received more under the propounded
instrument than under the penultimate
will or in intestacy. The objectant, on
the other hand, maintained that the
petitioner was withholding assets from
the estate that he wrongfully converted
from the decedent, and that the recov-
ery of those assets would result in the
estate exceeding $2.5 million. She thus
maintained that she would have more
to gain under the prior instrument,
once the petitioner was made to turn
over the property in issue.
The court held that where a party’s
standing to object in a probate proceed-
ing is in question, it is generally recog-
nized that the probate estate assets
should be deemed to include “any prop-
erty transferred before death, which for
one reason or another can or should be
recovered or brought into the estate…”
(citations omitted). Thus, where it cannot
be readily determined whether a would-
be objectant’s interest will prove to be
greater under the propounded instrument
than it would be under a prior will or in
16 THE SUFFOLK LAWYER – MARCH 2016

Black History Month Celebrated at the Courts


___________________
By Sarah Jane LaCova

Since 1976, every U.S. president


has officially designated the month of
February as Black History Month. It
is a month to recognize the many
achievements of African Americans
since our country’s beginning and is a
moment in time when we recommit
to the belief that people are only
judged by the content of their charac-
ter.
When we in Suffolk County cele-
brate Black History Month at the
courts, we not only mark the month-
long event, but also celebrate our
legal community’s diversity. The cel-
ebration emphasizes our common
goals of working together for the
common good. ues. If you have standards, you are
Last year the court established an middle class.”
award in the name of a well known Justice Ford also said that the
and beloved jurist, the Honorable churches where the black community
Marquette L. Floyd, who served for gathered found much of its true
19 years as a District Court judge expression and were definitely hal-
before being elected to the Supreme lowed grounds since they are spiritual
Court Bench in 1989, where he centers of the community. He said he
served with distinction, including a thought about Justice Marquette
term as the Presiding Justice of the Floyd, the first person of color to be
Appellate Term for the 10th Judicial elected to the Supreme Court Bench in
District. Justice Floyd’s accomplish- Suffolk County, and closed by saying,
ments are many, including service as “Every judge of color in this county
a director of our bar association. His stands on Justice Floyd’s shoulders.” choral selections. The Amityville HS
is a story of a legend that persevered. District Administrative Judge C. Jazz Ensemble played several jazz
This year, the second annual Hon. Randall Hinrichs, who did the wel- numbers and they were sensational
Marquette L. Floyd Award was given come, thanked our wonderful and so professional.
to an equally deserving recipient, the Mistress of Ceremony the Honorable Justice Hinrichs thanked Presiding Suffolk County Bar Association host-
Honorable William G. Ford. Justice Toni A. Bean, who has chaired the Officer of the Suffolk County ed the program. Presidents Maxine
Ford was elected to the Supreme committee for many years and who Legislature DuWayne Gregory for his Broderick and Donna England both
Court Bench this past year. Prior to deserves our recognition and appreci- inspiring remarks. He also recog- gave poignant remarks
his elevation to the Supreme Court, ation. Thank you to the Amityville nized Captain David Santiago and the
he served as an Acting County Court High School Select Choir who gave Honor Guard for the Presentation of Note: Sarah Jane LaCova, is the
judge from 2014-2015, having first us a rousing rendition of “Lift Every Colors. The Amistad Long Island Executive Director of the Suffolk
been elected to the District Court Voice and Sing” as well as other Black Bar Association and the County Bar Association.
bench in November 2008. He is an
active member of the SCBA, who
served on the Bench Bar Committee,
the Neuroscience, County Court and
Appellate Practice committees; he
also served as co-chair of our District
Court Committee for several terms.
Justice Ford has also served our
Academy of Law as a lecturer and as
program coordinator.
This year’s theme, “Hallowed
Grounds,” gave pause to Justice Ford,
who waxed nostalgia about growing
up in Suffolk County, citing that the
Central Islip courthouse is the spot
where his family worked at the for-
mer Central Islip Psychiatric
Hospital, certainly a hallowed ground
where many black families were able
to enter middle class life through
employment at the hospital. Our own
beloved Justice Floyd used to say,
“Middle class is not based on your
possessions. It’s based on your val-
THE SUFFOLK LAWYER – MARCH 2016 17

CORPORATE

Letters of Intent
_________________________________
By Stella Lellos and Sean N. Simensky Though a letter The purpose of the sions of a letter of intent are designed to
of intent can and “no-shop” provi- protect a seller’s interests. An inherent
Modern business transactions can be should be tailored sion is to protect a aspect of a business transaction is the
costly, both financially and temporally, to the specifics of buyer who is need for the buyer to have access to the
particularly if after long periods of the deal, there are expending time seller’s information, much of which will
negotiation and due diligence a final certain provisions and resources per- be confidential. Whether it is client lists,
agreement is never reached. In an that appear in most forming due dili- employee information, or trade secrets,
attempt to reduce the likelihood that an letters of intent. gence from the the seller needs a certain level of protec-
agreement will fall through, it is often Set forth below are threat that the sell- tion during the due diligence period
advantageous for the parties to sign a some of such key er will engage in when its business is most exposed and
Stella Lellos Sean N. Simensky
letter of intent. provisions, each of discussions with or vulnerable. Such protection is provided
This letter, usually sent from the which should be expressly designated solicitations of potential third-party for in the letter of intent through binding
buyer to the seller, is designed to set as either binding or non-binding. buyers. The length of the “no-shop” confidentiality and non-solicitation pro-
out the main deal points of the con- exclusivity period will depend greatly visions, thereby preventing the buyer
templated transaction at an early stage, Business terms and description of on the size of the deal and the extent of from using information learned during
prior to major expenditures by the par- transaction due diligence required, and should due diligence to its own advantage.
ties. The letter of intent is typically The letter of intent should begin with provide a timeframe long enough to That said, to the extent that parties to a
non-binding, except for specific provi- the most important aspects of the trans- allow the buyer to conduct thorough transaction have signed a separate non-
sions. As such, the letter of intent action. That is, it should identify the due diligence and to negotiate and sign disclosure agreement, the non-disclo-
serves as a guideline, subject to the parties and describe the type of transac- a definitive agreement. During, the sure agreement would suffice to protect
drafting and execution of a future tion contemplated, whether an acquisi- exclusivity period, it is important that the buyer’s interests, and additional con-
definitive agreement. tion of assets or stock, merger, acquisi- the business of the target company fidentiality provisions would not be nec-
The letter of intent allows the parties tion or otherwise. The letter of intent continue to be conducted in substan- essary in the letter of intent.
to understand the major business should also include payment or other tially the same manner consistent with
points and develop an overall frame- consideration amounts and terms. past practices, and the “no shop” pro- Additional provisions
work of the transaction, as well as to vision should so provide. Additional provisions in the letter of
identify any major deal-breakers. As No-shop and exclusivity intent may include provisions regard-
an added benefit, the letter of intent Generally, one of the few binding Confidentiality and non-solicitation ing employee retention, restrictive
can also help streamline negotiations provisions of a letter of intent, which Much in the way the “no-shop” provi- covenants, whether employment or
and create at least a soft timeline for should be expressly indicated as such, sion protects a buyer’s interests, the con- consulting agreements will be offered

LAW OFFICES OF
the transaction. is the so-called “no-shop” provision. fidentiality and non-solicitation provi- (Continued on page 21)

BARRY D. LITES, LLP


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18 THE SUFFOLK LAWYER – MARCH 2016

WHO’S YOUR EXPERT

Confronting the Expert Under the Sixth Amendment


________________
By Hillary Frommer by the Sixth Amendment, to violation because that testi- Importantly, however, the court further
hold that “testimonial state- mony was an “out-of-court held that the introduction of the report
In People v M.F.,1 the Bronx County ments of witnesses absent statement … related by the into evidence would not have violated
Supreme Court addressed for the first from trial [can be] admitted expert solely for the purpose the Confrontation Clause because it
time since the U.S. Supreme Court’s only where the declarant is of explaining the assumptions was prepared before any suspect was
controversial 5-4 decision in Williams v unavailable, and only where on which [the expert] opinion identified and therefore, was not gen-
Illinois2 in 2012, whether the Sixth the defendant has had a prior rests” not offered for the truth erated specifically for the purpose of
Amendment rights of a defendant opportunity to cross-exam- and, therefore, outside of the obtaining evidence against the defen-
standing trial for rape are violated if the ine.”5 The ultimate import of Confrontation Clause. In dant (who the victim had subsequently
results of a DNA report are introduced Crawford, was that a defen- Hillary A. Frommer reaching this opinion, the identified in a line-up).
into evidence at a jury trial without pre- dant had a right to confront all of the court made the following determina- Not surprisingly, the dissent took a
senting the testimony of each laborato- analysts who authored the lab analy- tions: the expert’s remaining testimony sharply different view. It considered
ry analyst or technician who con- sis/reports offered into evidence was based on personal knowledge and, Williams an “open-and-shut case” of a
tributed to the report. The court strug- against him. However, the court reaf- therefore, did not implicate the violation of the Confrontation Clause,
gled to strictly apply Williams, as it firmed the proposition that the Confrontation Clause; the questionable because the state prosecuted the defen-
noted key factual differences between Confrontation Clause does not bar out- factual statement was “a mere premise dant based on a DNA profile created in
the cases, and the fact that “no five jus- of-court statements that are not offered of the prosecutor’s question,” which the a lab, but did not afford the defendant
tices agreed on the rationale for the for the truth of the matter asserted – expert assumed when testifying that the right to cross-examine the analyst
result [which] has been the subject of i.e. non-hearsay. there was a match between two DNA who created the very profile, which
much debate in the courts since it was The issue in Williams was whether profiles; and the judge presiding over linked the defendant to the victim. The
issued.”3 To understand how the court the defendant’s confrontation rights the bench trial presumably “understood dissent rejected the plurality’s opinion
reached its result, which “split the were violated when a forensic expert that the portion of [the expert’s] testi- that the questionable statement that the
baby” if you will, we must examine testified at a bench trial that the DNA mony … was not admissible to prove profile came from the swab of the vic-
Williams and what it has left in its wake. profile provided by an outside laborato- the truth of the matter asserted.”7 The tim was merely an assumption which
Williams was one of several cases ry was produced from semen found on court noted, however, that there may was not offered for its truth, as it saw
before the Supreme Court involving the victim’s vaginal swabs, because the have been a Confrontation Clause issue no meaningful distinction between a
the expert testimony and the expert did not have personal knowl- if the trial had been before a jury, rather hearsay statement, which forms the
Confrontation Clause. In its 2004 deci- edge of that fact, and there was no other than bench. basis of the expert’s opinion and the
sion in Crawford v Washington,4 the expert or fact witness with such per- The court also concluded that the hearsay statement offered for its truth.8
court changed its long-held position sonal knowledge that testified. Justice questionable testimony did not through Faced with Williams, the Bronx
that out-of-court statements that fall Alito6 wrote the plurality decision, in the backdoor introduce the substance Supreme Court was asked to deter-
into a hearsay exception are not barred which the court found that there was no of the report into evidence. (Continued on page 26)

CONSUMER BANKRUPTCY

Mrs. Robinson Exempts the Book of Mormon in Bankruptcy


US Circuit Court addresses whether valuable bible is exempt
________________
By Craig D. Robins Many states, including the time, it was valued at Mrs. Robinson moved the court to
New York, have exemption $10,000. It was worth sub- reconsider on the ground that the
The opening stanza to Simon & statutes that, in addition to stantially more than that bankruptcy court’s opinion was
Garfunkel’s 1968 chart-topping song, permitting consumers to when she filed her bankrupt- unconstitutional because it permitted
Mrs. Robinson, is very appropriate here: protect a certain dollar cy case. the exemption statute to interfere with
And here’s to you, Mrs. Robinson, amount of essentials like Mrs. Robinson kept the the free exercise of her religion as she
Jesus loves you more than you will cars, houses and home fur- bible in a Ziploc bag to pre- chose to exercise it, which interfered
know, woe woe woe nishings, also enable them serve it. She did not use it with her right to choose which items
God bless you, please, Mrs. to protect items like the regularly, and only took it to exempt.
Robinson family bible. But what hap- Craig Robins out to show her children and The bankruptcy court denied the
Heaven holds a place for those who pens if that bible is an fellow church members. The motion. Undeterred, Mrs. Robinson
pray, exceptionally rare collector’s item debtor owned other bibles, which she then appealed to the U.S. District
Hey, hey, hey worth a tidy sum? The trustee object- used to pray, including several copies Court, arguing that the bankruptcy
Hey, hey, hey ed to Mrs. Robinson’s exemption. of the Book of Mormon that did not court’s decision ignored the plain
Just a few weeks ago, the United have collector value. meaning and structure of the statute,
Two years ago, Mrs. Anna States Court of Appeals for the Seventh Years later, when she filed her as well as the judicial rule that bank-
Robinson in Illinois sought Chapter 7 Circuit ruled against the trustee and Chapter 7 bankruptcy case, she ruptcy exemption statutes should be
relief to discharge the relatively mod- held that it was fully exempt. Hagan v. exempted the bible but the trustee construed liberally in favor of the
est sum of $23,000 of typical con- Robinson (In re Robinson), 14-3585 objected. The debtor relied on the debtor.
sumer debt. She just happened to own (7th Cir. Feb. 4, 2016). typical state exemption statute that The district court agreed with the
a very rare, first edition Book of In the Robinson case, the debtor, permits debtors to protect a bible. debtor and reversed the bankruptcy
Mormon from 1830. while working at the local public However, the court sustained the court, stating that the legislature did
When consumers file for bankruptcy library in 2003, was permitted to keep trustee’s objection, stating that “allow- not place monetary limitations on cer-
they can keep a number of posses- any books she found while cleaning ing the debtor’s exemption would vio- tain items such as bibles.
sions. The legislatures have deter- out a storage area. While cleaning, she late the intent and purpose of the This time the trustee appealed, now
mined what is fair and reasonable for found the Book of Mormon, which she statute,” namely “to protect a bible of to the circuit court, which started its
debtors to keep while seeking to dis- later authenticated as a first edition, ordinary value so as not to deprive a analysis by looking at the statute,
charge their debts in bankruptcy. one of only 5,000 copies printed. At debtor of a worship aid.” (Continued on page 25)
THE SUFFOLK LAWYER – MARCH 2016 19

AMERICAN PERSPECTIVE

The Case of Natural Born Vs. Native Born


The eligibility for President 2016 question
________________
By Justin Giordano section 1, Clause 5, spells out who has lived in the U.S. for That status was gratuitously conferred
what the requirements neces- five years or more, at least on him by Canadian law premised on
The 2016 contest for the Republican sary for eligibility as follows: two of those years after the his being born on Canadian soil.
nomination for president of the United “No person except a natural age of 14. If the mother fits It’s worth underscoring that the
States has seen its shares of surprises, born Citizen, or a Citizen of those criteria, the child is a Supreme Court, although not directly
unexpected twists and turns and con- the United States, at the time U.S. citizen at birth, regard- ruling on a case focusing strictly on the
tentious debates typically associated of the Adoption of this less of the father’s nationali- definition of “natural born citizen,” has
with the nomination process that takes Constitution, shall be eligible ty. Senator Ted Cruz fits the nonetheless long recognized that there
place every four years. to the Office of President; nei- requirements of this law to are two sources that are considered
In this 2016 nomination contest an ther shall any Person be eligi- the letter. highly valuable in understanding con-
Justin Giordano
issue that is not generally a main con- ble to that Office who shall In the broader context in stitutional terms and they are the
cern is the “legal” eligibility of a candi- not have attained to the Age of thirty- addition to the above, individuals who British common law (Smith v.
date running for the nomination of his five Years, and been fourteen Years a are born outside the United States are Alabama, 124 U.S. 465, 478 (1888),
party. That is not to say that this has not Resident within the United States.” also considered natural born citizens if and the enactments of the First
been raised on prior occasions. In fact, Putting the question even more sim- both parents who are citizens, provid- Congress) (Wisconsin v. Pelican Ins.
in the 2008 during the Democratic Party ply does “natural born citizen” mean ed either parent has lived in the United Co., 127 U.S. 265, 297 (1888). Both
nomination race and later during the that an individual has to be a “native” States for any period of time. Also con- of these sources confirm that the origi-
presidential election itself then candi- born in order to qualify as natural born sidered natural born citizens are indi- nal meaning of the phrase “natural
date and now President Obama had citizen and thus eligible to run for the viduals born outside the United States born citizen” includes persons born
similar questions raised about him. The presidency of the United States? to one parent who is an American citi- abroad who are citizens from birth
charge in his case dealt with the charge Obviously this issue is uniquely perti- zen and the other who is an American based on the citizenship of a parent as
that he was born in Kenya and not nent to the presidential office and no national, the latter meaning that that has been discussed in detail above.
Hawaii. In the same year Senator other elected office. It has been estab- parent is from an outlying possession More specifically, the British prac-
McCain, the Republican Party presi- lished law that for an individual to run of the U.S. The proviso is that the citi- tice, which were the laws in force in
dential nominee also faced equivalent, for any other federal or state office, be it zen parent has lived in the United the 1700s in the original thirteen
if not exactly the same challenges. In as mayor, congress, or governor, there States or its possessions for at least one colonies prior to the Revolutionary
Senator McCain’s case he was born in is no natural born citizen requirement, year prior to the birth of the child. War and the founding of the United
the Panama Canal zone, which was at only the requirement to be a naturalized One way to sum all of this up is that States, recognized that children born
the time an American territory, but not citizen and certain residency mandates anyone that does not need to go outside of the British Empire to sub-
on the American mainland. Obama had depending on the elected office sought. through any naturalization proceed- jects of the Crown were considered
several suits filed against him challeng- Prior to addressing directly the “nat- ings is considered a natural born citi- subjects (i.e. put in modern terms citi-
ing his eligibility to run and mostly, ural born citizen” it’s worth noting that a zen. A non-natural born citizen has to zens of Great Britain) themselves and
once he secured his party’s nomination, situation very much mirroring the cur- go through the process of becoming a in fact the term “natural born” was
to prevent him from assuming office. rent one occurred in the 1968 presiden- naturalized American citizen by legal- explicitly used to describe the status
The better known of these lawsuits tial election cycle. That year running for ly migrating to the United States and of these children. This language is
being the Berg v Obama case, filed by the nomination of the Republican Party becoming a permanent resident, i.e. a found in the British Nationality Act of
Philip J. Berg, a Democrat and former was George Romney, the father of the “green card” holder. The permanent 1730 as well as in the case United
deputy state attorney general, and the 2012 Republican presidential nominee resident status will enable that individ- States v. Wong Kim Ark, 169 U.S. 649,
Essek v Obama case filed by Daniel Governor Mitt Romney. George Romey ual to apply for U.S. citizenship after a 655–72 (1898). Furthermore, lan-
John Essek. The former lawsuit failed was born in Mexico from American par- five-year period if he/she so wishes. guage echoing the aforementioned is
for lack of standing while the latter for ents. However there was no issue raised Next that individual will have to meet found in the Blackstone’s
lack of subject matter jurisdiction. as to Romey senior’s eligibility to run or all other legal requirements set by law Commentaries (pg. 354-63). The
Senator John McCain also had to serve had he won the presidency. (such as not being a felon or having Blackstone Commentaries were very
contend with lawsuits, or threat of First it must be pointed out that for lied on the application to be granted familiar to and widely read by the
same, along these lines. In his circum- those who state that the matter of “nat- permanent resident status), passing a framers of the constitution (many of
stance the U.S. Senate drew and voted ural born citizen” is not a settled issue test administered by the INS whom were part of the First Congress)
on a resolution that affirmed his natu- given that the United States Supreme (Immigration and Naturalization as well as the justices of the original
ral born status and ascertained his eli- Court has never taken a case that dealt department), and taking an oath of Supreme Court who were quite versed
gibility to run for the highest office in directly with said issue are indeed cor- allegiance to the United States in a for- in this subject matter.
the land, basically putting the matter to rect. Unquestionably the high court has mal swearing in ceremony. Will the current Supreme Court ever
rest in his race for the White House. never provided any definitive interpre- As a side issue, which has been agree to hear a case directly pertaining
Moving forward to the 2016, Senator tation regarding the full breath and lim- brought up in the Senator Cruz situa- to the meaning of “natural born citi-
Ted Cruz, a leading candidate for the its of “natural born citizen.” However it tion, pertains to the dual citizenship zen” or does it consider this a settled
Republication nomination, was born in would also seem quite evident, if only case. In fact that has no bearing simply matter? Based on historical precedent
the province of Alberta in Canada, thus by extrapolation of the court’s historical because any nation can opt to bestow it would seem that the high court is not
clearly on foreign soil. His mother was actions or lack thereof, that it did not its citizenship on an individual. The inclined in the least to take up the
and is an American citizen, having been wish to intervene on this question. If it key point is whether an individual has issue. But then again the U.S. Supreme
born in the state of Maryland while his had wanted to do otherwise there is lit- taken an active step to seek or even Court, while steeped in American legal
father was a resident of the United tle doubt that there was plenty of oppor- accept that citizenship by taking an tradition, has not always been averse to
States born in Cuba. Senator Cruz’s par- tunity to give voice to the question over oath such as in a naturalization pro- taking up contentious matters that
ents were working in the oil industry in the two centuries plus since the creation ceeding. And incidentally Canada does many experts never predicted they
Canada at the time of his birth. of the court and the nation for which it have such a proceeding; a legal immi- would. As usual only time will tell.
Consequently the issue of his eligibility interprets its constitution. grant can apply for citizenship after a
to run for president of the United States As it stands we are left with federal period of time (I believe three years). Note: Justin A. Giordano, Esq. is a
comes to this — what does a “natural law, in 8 U.S. Code, Section 1401. All information available indicates that professor of Business & Law at SUNY
born citizen” mean in its fullest scope. Under said law all that is required is Senator Cruz has never taken any oath and also teaches Constitutional Law at
The U.S. Constitution under Article II, that the mother be an American citizen or steps to become a Canadian citizen. John Jay College of Criminal Justice.
20 THE SUFFOLK LAWYER – MARCH 2016

Did You Say Taxable Partnership? (Continued from page 1)

— in the year that the audit or any judi- (e.g., ordinary income, dividends, cap- partnership) will take the adjustments they include trusts or other partner-
cial review is completed (the “adjust- ital gains). into account on their individual returns ships as partners.
ment year”), and the tax resulting from in the adjustment year through a sim- In any case, partners and partner-
such adjustments will be computed at Important exceptions plified amended-return process. ships will have to ensure that their part-
the highest marginal rate for individuals Under the BBA, a partnership with A partnership must elect this alterna- nership agreements address the new
or corporations without regard to the 100 or fewer partners is permitted to tive not later than 45 days after the date rules. This may include whether to
character of the income or gain. elect out of the new rules, in which of the notice of partnership adjustment elect out of the new regime or to elect
case the partnership and partners will (a “6226 election”). Where the election to pass-through the adjustments to the
A “taxable partnership” be audited under the general rules is made, the reviewed year partners review-year partners.
This marks an important change in applicable to individual taxpayers. will be subject to an increased interest Partnerships may also want to
the audit of closely held partnerships. In order to qualify for this “small charge as to any tax deficiency. include indemnity provisions in their
The IRS will collect the tax from the partnership” election, each partner of agreements, pursuant to which current
partnership, even if the persons who the partnership must be an individual, a Looking ahead partners and former partners of a part-
were partners in the reviewed year are C corporation, an S corporation, or the Because the BBA marks a signifi- nership will agree to indemnify the
no longer partners in the adjustment estate of a deceased partner. Another cant change in the audit of partner- partnership or each other for their pro
year. Stated differently, the current- partnership and a trust cannot be part- ships, and because it applies to both rata share of any deficiencies resulting
year partners will bear the economic ners of an electing small partnership. existing and new partnerships, its from an IRS audit of the partnership.
burden even though the adjustments Among other things, it should be effective date is delayed: the new rules This may be especially important to
relate to a prior year in which the com- noted that the election is to be made on will first become effective for returns transferees of partnership interests,
position of the partnership may have an annual basis, it must be made on a filed for partnership tax years begin- including potential new investors, who
been different. timely filed partnership return, and the ning after 2017. are also likely to insist upon increased
Partnerships will have the option, partnership must notify the partners of Until then, the IRS should have suf- levels of due diligence before acquir-
however, of demonstrating that the the election. ficient time to promulgate any regula- ing such an interest.
adjustment would be lower if it were A partnership that does not qualify tions to implement the changes. It I don’t know about you, but the
based on certain partner-level informa- for the small partnership election, or should also afford partnerships the years seem to be going by faster and
tion from the reviewed year rather which does not elect to be treated as time to adjust to the new audit regime, faster. Before you know it, these rules
than imputed amounts determined such, will be permitted (in accordance and especially to the new default rule will go into effect. Don’t wait. Start
solely on the partnership’s information with rules to be issued by the IRS), that applies to every partnership unless your preparations now.
in such year. This information as an alternative to taking the adjust- the partnerships elects out.
could include amended returns of part- ments into account at the partnership Most partnerships that qualify will Note: Lou Vlahos, a partner at
ners opting to file, the tax rates appli- level, to pass the adjustments along to likely make the annual election to be Farrell Fritz, heads the law firm’s Tax
cable to specific types of partners (e.g., its partners by issuing adjusted Form treated as a small partnership. Practice Group. Lou can be reached at
individuals, corporations), and the type K-1s to the reviewed-year partners, in However, many small partnerships will (516) 227- 0639 or at lvlahos@farrell-
of income subject to the adjustment which case those partners (and not the not qualify for this election because fritzcom.

American Mock Trial Association Regional Competition (Continued from page 1)

ise: Justice John Leo, the chair of the The local Family and Matrimonial Giammarusco were instrumental in King’s College and CCNY won an
Academy of Law’s Strategic Planning Bar were well represented in our judg- assisting Academy of Law Dean Harry aggregate of 11 ballots.
Committee, Justice Jeffrey Arlen ing pool. Evie Zarkadis and Francine Tilis in organizing the tournament. In The Suffolk Academy of Law is giv-
Spinner, Justice James Quinn, Judge Moss were two stellar presiding addition, the Touro student leaders ing all volunteers 50 percent off of a
James Matthews, Judge James judges, and Jennifer A. Mendelsohn, spoke to the undergraduates about the future live Academy program. Local
McDonaugh, and Support Magistrate the treasurer for the Suffolk Academy unique opportunities Touro makes businesses also supported the tourna-
Aletha Fields. of Law, served as a scoring juror in one available under the dynamic leadership ment — Love Sushi, 26 North
The top eight teams from the CI round and the presiding judge in anoth- of Dean Patricia Salkin who kindly Research Place, Central Islip (near the
regional continue in the national cham- er. Similarly, the criminal bar had a sig- opened the auditorium at the law Home Depot) and Foo Chow Kitchen,
pionship series by competing in March nificant turnout with each of Scott school for the closing ceremonies. 142 Wheeler Road, Central Islip (on
in an Opening Round Championship Lockwood and John Powers presiding Individual award winners included the southwest corner with Motor
tournament in Wilmington, Delaware, over two trials. Lawyers from both the Andrew Nassar from Tufts University, Parkway) are offering a 20 percent dis-
and the top teams from that and other Legal Aid Society and the District who received a perfect score in his role count to volunteer judges.
similar tournaments being held around Attorney’s office also volunteered. The as a witness, as did Molly Stewart from This tournament joins the American
the United States will travel to Abbates, Mary Beth and John, worked Fordham Rose Hill, in her role as a Collegiate Moot Court competition
Greenville, South Carolina in April for all weekend long, and each of them criminal defense attorney. Chosen by (held in November) and the NYSBA
the National Championship Tourna- presided over four trials. their competitors, Queensborough sponsored high school mock trial tour-
ment. Those moving on were: two “This was a terrific event,” said Community College won the Spirit of nament as outstanding opportunities
teams from Fordham Lincoln Center Nancy LeJava, former assistant district AMTA Award, as the team that best for SCBA members to enjoy socializ-
(one of which went undefeated through attorney. “Not only did we get to see exemplified good sporting conduct and ing and networking with colleagues in
the four rounds), two teams from incredibly talented undergrads, but positive energy, which these events conjunction with valuable public legal
Columbia University, Tufts University, also I had the chance to reconnect with generate. education programs and the develop-
St. John’s University, New York so many old friends before and after In what is believed to be a first, a ment of our profession.
University and College of the Holy the trials.” team of all freshman students without
Cross. William Floyd High School Numerous law student members an attorney coach participated, the Note: Harry Tilis is the Dean of the
graduate Vincent Kappel whose family from the Touro College Jacob D. SUNY Albany team, who picked up Suffolk Academy of Law, a member of
attended the tournament is a member Fuchsberg Law Center contributed to two ballots during the weekend. the SCBA Board of Directors and of the
of the Fordham Lincoln Center team. make the tournament successful. Dana Monroe College also picked up two Executive Committee of the Suffolk
Mr. Kappel’s high school coach, Mangiacapra not only served as a scor- ballots in its first year participating in County Criminal Bar Association and
William Hennessey, attended round ing juror in all four rounds, but also the AMTA events. Siena College, a trial and appellate practitioner in
three. she, Alida Marcos and Michael Fairleigh Dickenson University, The criminal cases.
THE SUFFOLK LAWYER – MARCH 2016 21

Bench Briefs (Continued from page 4)

Nasser Mansour, and Ali Mohammed, delayed production of plaintiff’s con- sonal injuries allegedly sustained as pute that he adjourned the deposition
as the application failed to submit evi- crete work. Defendant Dave Kunzler the result of a motor vehicle accident. scheduled for September 26, 2013 and
dentiary proof of compliance with the Tire Service, Inc. d/b/a Kunzler Tire The defendants sought an unrestricted that he continued to adjourn deposi-
personal service provisions of CPLR Service is alleged to have sold the sub- authorization to obtain records from tions for December 16, 2013, April 16,
§308 regarding “due diligence” for ject tires to the plaintiff. Continental the Concern for Independent Living, 2014, June 20, 2014, and October 1,
those defendants served by the “nail now moved pursuant to CPLR which operates a group home in which 2014. Plaintiff’s contention was that he
and mail” method pursuant to CPLR §3211(a)(7) for dismissal of all causes plaintiff resides. adjourned the depositions for “personal
§308(4). This was sufficient to estab- of action. In deciding the application, In rendering its decision, the court reasons” and he submitted that he is
lish jurisdiction over said defendants, the court noted that the economic loss noted that while there shall be full dis- readily available to submit to an elec-
not merely a showing of several rule provides that tort recovery in strict closure of information that is material tronic/digital/live deposition in the state
attempts to serve the defendants at products liability and negligence and necessary in the defense of an of Florida but cannot return to the state
their residences without a showing that against a manufacturer is not available action, a party is not entitled to unlim- of New York for the EBT and IME.
there was first a genuine inquiry about to a downstream purchaser where the ited and uncontrolled unfettered dis- In rendering its decision, the court
the defendants’ whereabouts and place claimed losses flow from damage to closure. Here, since the defendants stated that depositions of parties to an
of employment; and failure to submit the property that is the subject of the failed to demonstrate how records from action are generally held in the county
an affidavit: stating whether or not the contract, and personal injury is not a housing program that provided serv- where the action is pending. And the
defendant is in military service and alleged or at issue. The rule is applica- ices to the plaintiff were either materi- defendant who will retain a doctor in
showing necessary facts to support the ble even where the allegedly defective al or necessary to the defense of the whom the defense has confidence and
affidavit; or if the plaintiff is unable to product is or may be unduly hazardous. action, the application to compel their who is in a position to testify at the
determine whether or not the defendant Here in rendering its decision, the disclosure was denied. time of trial will generally specify the
is in military service, stating that the court pointed out that each of plain- location and time of the examination.
plaintiff is unable to determine that, as tiff’s five causes of action was Complaint to be dismissed unless the Since plaintiff failed to establish that
requires by 50 USCS §521[b]. premised upon property damage and plaintiff appeared for a deposition and traveling from his home in Florida to
consequential damages from the appeared for an independent medical New York to be deposed and to submit
Motion to dismiss granted; since all allegedly defective tires. Accordingly, examination within Suffolk County; to a medical examination would cause
five causes of action may be character- since all five causes of action may be plaintiff failed to establish that travel- undue hardship, the deposition and
ized as those for economic loss due to characterized as those for economic ing from his home in Florida to New independent medical examination of
alleged product failure, all claims were loss due to alleged product failure, all York to be deposed and to submit to a plaintiff will be conducted within the
dismissed. claims were dismissed. medical examination would cause county in which the action is pending.
In Sears Ready Mix, Ltd. V. undue hardship. Please send future decisions to
Continental Tire the Americas, LLC Honorable William B. Rebolini In Thomas Shelton v. Maurocio O. appear in “Decisions of Interest” col-
a/k/a Continental Tire AG and Dave Motion to compel disclosure of Larrea, Index No.: 31012/2012 decid- umn to Elaine M. Colavito at
Kunzler Tire Service, Inc., d/b/a Dave housing program records in personal ed on February 3, 2015, the court elaine_colavito@live.com. There is no
Kunzler Tire Service, Index No.: injury matter denied; records not granted the defendant’s motion to dis- guarantee that decisions received will
9271/2014 decided on June 17, 2015, shown to be material and necessary to miss the complaint to the extent that be published. Submissions are limited
the court granted the motion by defen- the defense of the action. the complaint was to be dismissed to decisions from Suffolk County trial
dant for dismissal of the first, second, In Sonja Hawkins v. Brook Alyssa unless the plaintiff appeared for a dep- courts. Submissions are accepted on a
third, fourth, and fifth causes of action Simeone and Chris D. Simeone, Index osition and appeared for an independ- continual basis.
asserted by plaintiff against defendant No.: 3180/2012 decided on November ent medical examination within
Continental. 4, 2015, the court denied the motion to Suffolk County. Note: Elaine Colavito graduated
In the complaint, plaintiff alleged compel to the extent that it sought dis- The court noted that the determina- from Touro Law Center in 2007 in the
that on July 30, 2012, while plaintiff’s closure of records from the housing tion whether to strike a pleading for top 6 percent of her class. She is an
truck was en route to a job site, two program that provides services to the failure to comply with court-ordered associate at Sahn Ward Coschignano,
tires on the truck blew out causing plaintiff. The court stated the pertinent disclosure lies within the sound distri- PLLC in Uniondale, concentrating her
plaintiff to sustain damage to the truck, facts as follows: plaintiff commenced bution of the trial court. The court practice in matrimonial and family
as well as monetary damages related to the action to recover damages for per- pointed out that the plaintiff did not dis- law, civil litigation and immigration

Letters of Intent (Continued from page 17)

to seller’s principals and “conditions to contract. Drafters should be cautious, reached at: stella.lellos@rivkin.com or tract: “(1) whether there is an express reserva-
closing” provisions, which set forth the with the addition of too many provi- (516) 357-3373. tion of the right not to be bound in the absence
of a writing; (2) whether there has been partial
conditions that must be satisfied before sions as some courts have found provi- performance of the contract; (3) whether all of
the agreement may be fully executed. sions within a letter of intent to be bind- Note: Sean Simensky is an associate the terms of the alleged contract have been
A letter of intent can of course have as ing, despite the objectives of the parties, in Rivkin Radler’s Corporate & agreed upon; and (4) whether the agreement at
many additional provisions as the par- where the parties have agreed upon all Commercial Practice Group where he issue is the type of contract that is usually
committed to writing” (citing to Adjustrite
ties require; however, the purpose of of the salient terms and have left little, concentrates his practice on general Sys., Inc. v. GAB Bus. Servs., Inc., 145 F.3d
the letter of intent is to streamline if anything, left to negotiate.1 Most corporate representation of private 543 (2d Cir. 1998)).
negotiations, not burden them. Thus, importantly, each provision should be national and international companies. 2
See Cohen v. Singer, 2001 U.S. App. LEXIS
provisions should not be mindlessly clearly designated as either binding or He can be reached at (516) 357-3227 2435 (2d Cir.) (holding that where a document
explicitly “characterizes the agreement as an
added in a letter of intent when they are non-binding so that the parties may reap or sean.simensky@rivkin.com.
1 ‘agreement in principle’ and a ‘letter of intent,’
better suited to be part of the negotia- the greatest benefits of their letter of See, e.g., Brown v. Cara, 450 F.3d 148 (2d
Cir. 2005) (explaining that New York courts and explicitly makes binding agreement ‘subject
tions of the definitive agreement. intent without risking entering into an apply a four factor test to determine whether a to and contingent upon’ formal agreement
The utility of a letter of intent is in its undesirable binding contract.2 preliminary agreement is enforceable as a con- between the parties’” it is not a binding contract).
ability to address major deal-breakers Note: Stella Lellos is a partner in
To Advertise in
and to streamline negotiations early on Rivkin Radler’s Corporate Practice
The Suffolk Lawyer
in the transaction process. There can be, Group, where she advises companies

Call 631-427-7000
however, a fine line between developing from startup to maturity and has signif-
a thorough plan for reaching an ultimate icant experience in all aspects of com-
agreement and entering into a binding plex corporate transactions. She can be
22 THE SUFFOLK LAWYER – MARCH 2016

“Technological Competence,” a New Ethical Obligation (Continued from page 13)

• Collecting ESI from your client ty breaches, particularly the cost of cross-examining such an expert during Note: Victor John Yannacone Jr. is
while preserving the integrity of defending litigation brought by those a trial or deposition. an advocate, trial lawyer, and litiga-
that ESI. clients affected by the breach. Do not Unless an attorney has sufficient tor practicing today in the manner of
• Producing non-privileged ESI in a forget that professional liability insur- understanding of the technology the a British barrister by serving of coun-
recognized and appropriate manner. ance is not really meant to shield attor- expert may use to complete the task sel to attorneys and law firms locally
• Selecting a qualified expert in e-dis- neys from sanctions for their lack of for which they have been retained, and throughout the United States in
covery technology. technological competence. Because that attorney is prima facie, not com- complex matters. Mr. Yannacone has
If you, as an attorney, do not feel this type of insurance policy protects petent to make the decision about been continuously involved in com-
comfortable in your ability to meet the insured attorney from liability to retaining the expert. Unfortunately, puter science since the days of the
these basic needs of e-discovery, then third parties, it is no substitute for this lack of competence on the part of first transistors in 1955 and actively
ethically, and as a matter of concern property and casualty insurance. the attorney may only be discovered involved in design, development, and
over professional liability, you should Therefore, it would be wise to immedi- in the context of an action for legal management of relational databases.
consider associating a technologically ately determine whether your property malpractice or a hearing on sanctions He pioneered in the development of
competent litigator of counsel. and casualty insurance policies cover by the court environmental systems science and
the cost of data recovery when the There is an additional ethical obliga- was a cofounder of the Environmental
Cybersecurity, an ethical and pro- cause is a cyber security breach or tion upon attorneys who engage experts Defense Fund. Mr. Yannacone can be
fessional liability issue cyber theft. in litigation. The litigation attorney has a reached at (631) 475–0231, or vyan-
Attorneys have always considered One of the more unpleasant reality nondelegable duty to supervise the nacone@yannalaw.com, and through
themselves guardians of their clients’ checks for attorneys, even in large expert by remaining regularly engaged his website https://yannalaw.com.
privacy and custodial trustees of the law firms, is how difficult it is to in the work of the expert and educating
i
property and documents of their obtain cyber insurance and how large the expert about the legal and factual American Bar Association Model Rules of
clients. Now, many of the documents the deductibles or retained self- issues in the case. Ethical Considerations Professional Conduct.
ii
http://ethics.calbar.ca.gov/Portals/9/docu-
important to clients are maintained in insured risk are for the policies that and Disciplinary Rules mandate that ments/Opinions/CAL%202015-
electronic form on a variety of comput- are available. attorneys ensure that their experts com- 193%20%5B11-0004%5D%20%2806-30-
ing devices in electronically insecure ply with the same ethical obligations that 15%29%20-%20FINAL.pdf.
and vulnerable law offices. Storing this Technologically competent counsel govern attorneys.
material in the cloud makes it even To satisfy the ethical mandate,
more vulnerable and insecure. which requires an attorney to associ-
Recently, the computers of a number ate with or seek advice from technical Working Elder-Caregivers (Continued from page 9)
of law firms have been infected with consultants and competent counsel
ransomware and the attorneys have been when cyber issues may be involved, is assigned to another employee. It is cru- er. Empowering working elder-care-
forced to buy back access to data on not as simple as retaining an expert, cial for the employer to check in with givers with knowledge and informa-
their computers after hackers had locked the way personal-injury lawyers the employee during the crisis and tion to handle an elder care crisis, or to
them out. Small firms have been forced retain the services of expert medical refocus the employee after the crisis plan ahead to avoid the crisis altogeth-
to pay up to $10,000 to regain access to witnesses. has passed. Most important, however, er, promotes job security for the
their own computers and there is no In the area of cybersecurity, data- is to refer the employee to the appro- employee and protects the employer’s
guarantee that after paying the ransom base management, and social network- priate resources. bottom line.
that their data is free from infection with ing, working effectively with experts It is helpful to realize that in many Studies show that giving employees
the virus which originally compromised requires a level of understanding, sadly instances, the elder-caregiver becomes the tools they need to navigate the
their systems. Unfortunately, such lacking among attorneys. the healthcare decision maker, the elder-care landscape greatly reduces
attacks also compromise client data as Large firms can afford IT depart- bookkeeper, the accountant, the chauf- absenteeism, downtime and turnover
well as critical firm data that may have ments or at least a full-time IT manag- feur, the housekeeper/cook and the sec- and promotes productivity and job
been stored on the infected machines er, but solo practitioners, small and retary to the aging or disabled loved security.
end any of the networks with which they medium-sized law firms generally can- one. It is impossible to wear all of these
are associated. not. As every lawyer who has followed hats and wear them well, especially Note: Jennifer B. Cona, Esq. and
Few, if any, law firms have conduct- the constant upgrades of their smart when someone is juggling their job and Melissa Negrin-Wiener, Esq. are part-
ed a cybersecurity audit, and most law phone and tablet, and the regular secu- their own family matters. The confu- ners in the Elder Law firm Genser
firms do not have well-established rity and operational patches to the sion between Medicare, Medicaid and Dubow Genser & Cona, LLP, located
cybersecurity policies with respect to Microsoft operating systems and Medigap insurance can be extremely in Melville. They practices exclusively
client and firm critical data access by application software such as Office and overwhelming, as can the difference in the field of Elder Law, including
laptops and mobile devices operating Outlook is now aware, it is becoming between Community Medicaid and asset protection planning, Medicaid
from locations remote to the law extremely difficult for lawyers to stay Institutional Medicaid. Many elder- planning, representation in Fair
office and often over insecure public on top of every new trend. caregivers struggle with decisions Hearings and Article 78 proceedings,
networks at places such as bars and Before undertaking to represent a regarding taking care of their loved one estate planning, trust and estate
coffee shops. client in any kind of litigation, it is at home, in an assisted living facility or administration, guardianships and
In addition to the economic loss wise to contemplate the observation of in a nursing home. Asset protection and estate litigation.
lawyers and law firms can suffer as a the late Chief Justice Warren Burger, the appropriate way to handle financial 1
National Alliance for Caregiving Study,
result of a cybersecurity breach, cer- “There are too many Piper Cub matters leaves many people in a dire AARP Research on Caregiving in the US,
tain violations of the Health Insurance lawyers at the controls of 747 litiga- state of confusion. When individuals www.aarp.org.
Portability & Protection Act (HIPPA) tion.” are made aware of the healthcare choic- 2
MetLife Mature Market Institute Study:
can lead to criminal prosecution, as In many cases, the duty of techno- es, government benefits programs, and “Metlife Study of Working Caregivers and
Employer Health Care Costs,”
well as civil liability. logical competence may require a the legal and financial options avail- www.metlife.com.
higher level of technical knowledge able, they can more easily navigate the 3
Gallup poll: “Caregiving Costs U.S. Economy
Cyber liability insurance and ability and an attorney may require elder-care landscape, get their loved $25.2 Billion in Lost Productivity,”
The most important single act any the services of an expert. one the care and assistance they need, www.gallup.com/poll/148670.
4
and keep their focus on their job. National Alliance for Caregiving and AARP,
attorney can do is check their profes- Caregiving in the U.S. 2009.
sional liability insurance policy and Retaining the services of experts Bringing in outside professionals to 5
M. Pitt-Catsouphes, C. Matz-Costa and E.
determine whether they are covered Evaluating the credentials of experts educate employees can be a great ben- Besen, “Age and Generations: Understanding
for losses associated with cybersecuri- in technology is no different than efit to both the staff and to the employ- Experiences in the Workplace”.
THE SUFFOLK LAWYER – MARCH 2016 23

Health and Hospital Law (Continued from page 9)

patient; no other action is needed. this service to his patient,” a very small to [plaintiffs] — or any other mem- sure almost without limit. Emphasizing
Second, providers comply with this class at best. The dissent distinguishes ber of the public who may have the depth of feeling obviously generat-
duty “merely by advising one to the cases relied upon by the majority come into contact with, and been ed by this issue, it concludes with
whom such medication is adminis- on just this ground — that the actions harmed by, Walsh after her dis- something that this writer has never
tered of the dangers of that medica- of the providers in those cases impli- charge — to warn Walsh against, or before seen; an invitation to the
tion.” Lastly, “our decision herein cated “a determinate and identified prevent her from, driving (citations Legislature to redress the erroneous
should not be considered as an ero- class” whose relationships with the omitted). majority decision in the very case in
sion of the prevailing principle that patient “have traditionally been recog- Under the Court’s decision in this which the dissent is issued:
courts should proceed cautiously and nized as a means of extending and yet case, the class of potential plaintiffs
carefully in recognizing a duty of limiting the scope of liability...” In case cannot be logically restricted or It is, therefore, my hope that the
care.” (While the court expressly says after case, so the dissent finds, liability identified. ... [E]ven where the Legislature — a which has long
that this case is not about preventing only was possible based on a plaintiff’s defendant is best positioned to pre- expressed its concern regarding the
the patient from leaving, I wonder reasonable reliance on the provider’s vent harm, a duty should be impact of the costs of medical malprac-
how long it will be before another services to the patient combined with imposed only where “the specter of tice insurance and litigation on the
court at another time will say that the fact that the provider created the limitless liability is not present affordability and availability of med-
knowledge that the patient wanted to risk of harm: because the class of potential plain- ical care — will carefully consider
drive home should be imputed to the tiffs to whom the duty is owed is cir- whether the majority’s holding is con-
provider, requiring some “reason- The rule of law that emerges from cumscribed by the relationship.” … sistent with New York’s statutory med-
able” response in addition to a mere this line of cases is easily discerned. [O]ur jurisprudence, both in gener- ical malpractice schemes and the aims
warning.) In New York, a physician’s duty to a al and in the specific context of of tort recovery in New York.
One almost can hear the howls of the patient and the corresponding lia- physician-owed duties, has repeat-
dissenting minority. Citing to weighty bility, may be extended beyond the edly rejected the imposition of a As an aside, I wonder whether this
authority and precedent from its own patient only to someone who is both duty that will have such far-reach- decision broadens the scope of “med-
court the dissent argues that the fore- a readily identifiable third party of ing and unmanageable conse- ical malpractice” liability or whether it
seeability of Walsh’s side effects does a definable class, usually a family quences. … [I]t is the responsibility could — or should — be considered to
not resolve the question of the defen- member, and who the physician of the courts when fixing duty to “to be an expansion of common law negli-
dants’ liability because, absent a duty knew or should have known could protect against crushing exposure gence? If the latter, could the new rule
running directly to the injured party, be injured by the physician’s affir- to liability.” (citations omitted). promulgated by the high court be
there can be no liability in damages, mative creation of a risk of harm expanded to other areas of professional
however careless or foreseeable the through his or her treatment of the The dissent also engages in an inter- malpractice and to other areas of activ-
harm may be. “This restriction is nec- patient. I am not aware of anything esting and relevant analysis of the pos- ity generally?
essary to avoid exposing defendants to — and the majority makes no sible social and financial consequences
unlimited liability to an indeterminate attempt to identify anything — indi- of the potential outcome of the majori- Note: James Fouassier, Esq. is the
class of persons conceivably injured by cating that this clear rule has ty’s decision, which I will leave to the Associate Administrator of the
any negligence in a defendant’s act.” become so unworkable that the sig- interested reader to explore at his or Department of Managed Care at Stony
A physician does not take on a duty nificant redefinition of the scope of her leisure. Brook University Hospital, Stony
of care to an entire community when a physician’s duty adopted by the Lastly, the dissent argues that a line Brook, New York and Co-Chair of the
he treats one patient. A provider’s duty majority is warranted. Under a rea- must be drawn between competing Association’s Health and Hospital Law
of care is limited to the patient and “to soned application of our precedent public policy considerations of provid- Committee. His opinions are his own.
persons he knew or reasonably should to the facts of this case, it is evident ing a remedy to everyone who is He may be reached at: james.fouas-
have known were relying on him for that defendants owed no legal duty injured, and extending liability expo- sier@stonybrookmedicine.edu.

Trusts and Estates (Continued from page 15)

of his will, the decedent created sever- judgment dismissing the objections, ter vigorously opposed any sale, and even fiduciary summary judgment dismiss-
al trusts for the benefit of his wife, and any related claims for damages or threatened to bring a suit to enjoin any ing the objections by the decedent’s
daughter and grandchildren. surcharges, and the objectant opposed effort to bring a sale to fruition. The daughter on this issue.
Significantly, the trust created for the and cross-moved for summary relief in daughter’s deposition testimony con- On the other hand, the court denied
benefit of the decedent’s daughter pro- her favor. firmed that she objected to any sale of the the fiduciary’s request for summary
vided for principal distributions to her With regard to the principal issue property and wanted to keep it in the fam- relief on the issue of legal fees, finding
in five equal installments at stated ages, involving the California realty, the ily in order to preserve her father’s lega- that the record was insufficient to
commencing on December 27, 1989, record revealed that offers had been cy. The court found that since the daugh- determine their reasonableness.
and concluding on December 27, 2009. made by a corporate purchaser to ter’s individual interest in the property Finally, the court granted summary
The thrust of the objections asserted purchase the property as early as vested upon her attaining each of the ages judgment on the issue of commissions,
by the daughter were addressed to the 2005, for a gross selling price of set forth in the testamentary trust for a concluding that the objectant had
fiduciary’s failure to sell the real prop- $41,330,000.00. Additional offers by distribution of principal, she had the failed to demonstrate any basis for
erty located in California, which con- the same purchaser were thereafter power, as a co-owner, to prevent its sale, denying commissions in their entirety,
stituted a portion of the principal of the made, with the highest offer being and the fiduciary, under California law, or for not awarding same in the
testamentary trust created for her ben- $43,750,000.00. After the national lacked the authority to bind any of its co- amount sought.
efit, as well as legal fees and commis- decrease in value in the real estate tenants to a contract of sale. In re Lowe, NYLJ, June 16, 2015, at
sions. More particularly, the objectant market, a final offer by the purchas- Accordingly, based upon the forego- p.27 (Sur. Ct. Suffolk County).
claimed that the fiduciary’s retention er, in January 2009, was to purchase ing, the court held, as a matter of equi-
of the realty constituted a breach of the property for $34,000,000. 00. ty, that the decedent’s daughter could Note: Ilene S. Cooper is a partner
fiduciary duty that the payments to the Despite the foregoing, none of the not hold the fiduciary responsible for with the law firm of Farrell Fritz, P.C.
fiduciary’s counsel were unreasonable, foregoing offers resulted in a sale of the its inability to sell the California prop- where she concentrates in the field of
and that commissions or payments to property. Indeed, the court noted that erty, when it was her obstructionist trusts and estates. In addition, she is
the fiduciary relating to the rents or although the fiduciary recommended to behavior that precluded its sale. The past-chair of the New York State Bar
management of the subject property the beneficiaries that the property be sold, court therefore held she was estopped Association Trusts and Estates Law
were excessive. and although the decedent’s spouse from contending that the property Section, and a past-president of the
The fiduciary moved for summary agreed to the sale, the decedent’s daugh- should have been sold and granted the Suffolk County Bar Association.
24 THE SUFFOLK LAWYER – MARCH 2016

Invocation of Fifth Amendment Results in Stayed Eviction (Continued from page 12)

only advise their clients of this right, idence but her ability to effectively just a line rattled off some movie screen,
In New York State, the Fifth but recognize that the court may grant a defend herself against Criminal through the advocacy of the NSLS, its
Amendment attaches the indelible right stay to protect a civil litigant’s Fifth Possession of a Weapon and Criminal invocation allowed her to remain in her
to counsel once invoked. Indeed, Amendment right against self-incrimi- Assault charges stemming out of the home for nearly a year since the
“[o]nce a suspect in police custody nation. same alleged facts that resulted in the holdover proceeding was filed.
unequivocally requests the assistance of In Hempstead Housing Authority v. termination of Ms. Moorer’s lease.
counsel, the suspect may not be asked Moorer, Judge Scott Fairgrieve found Ms. Moorer’s case shows that time Note: Cory Morris is a civil rights
any more questions in the absence of that Ms. Moorer’s Fifth Amendment and delay will not defeat a litigant’s Fifth attorney, holding a Masters Degree in
counsel.”5 “A defendant’s unequivocal rights were more important than any Amendment rights. In some instances, General Psychology and is currently the
invocation of counsel while in custody delay suffered by the Housing the Constitutional implications, that Principal Attorney at the Law Offices of
results in the attachment of the right to Authority. Ms. Moorer was being being the right against self-incrimina- Cory H. Morris. He can be reached at
counsel, indelibly so, meaning that, as a evicted based on the same events that tion, will trump the interests of the plain- www.corymorris.com
matter of state constitutional law, a resulted in criminal charges. “It is well tiff or, here, the petitioner.9 Additionally,
defendant cannot subsequently waive settled that a court has the authority to the criminal matter may very well 1
Hempstead Housing Authority v. Moorer, LT-
the right to counsel unless the defendant stay an action pending the outcome of resolve the pending civil matter.10 001957-15, NYLJ 1202745486079, at *1
is in the presence of an attorney repre- criminal proceedings.”7 However, “a Although the pendency of a crimi- (Dist., NA, Decided December 16, 2015).
2
Nassau/Suffolk Law Services Committee,
senting that defendant.”6 Sworn testi- stay is not constitutionally required nal proceeding does not give rise to an Inc., About NSLS (last accessed Jan. 22, 2016),
mony made in a civil context can whenever a litigant finds himself fac- absolute right under the United States http://nslawservices.org/wp/?page_id=2.
impact a criminal proceeding. Ms. ing the dilemmas inherent in pursuing or New York State Constitutions to a 3
Asa J., Law Professor Warns “Don’t Talk To
Moorer could have waived her Fifth civil litigation while being the subject stay of a related civil proceeding Police” In Viral Making a Murderer Video,
Copblock (Jan. 21, 2016), available at
Amendment right in the civil context of a related criminal investigation.”8 (United States v Kordel, 397 U.S. 1; http://www.copblock.org/152166/law-profes-
had she testified in the landlord tenant The interest at hand was not merely Langemyr v Campbell, 21 NY2d 796, sor-warns-never-talk-to-police-in-viral-video/.
matter. Civil practitioners should not Ms. Moorer’s ability to stay in her res- remittitur amended 21 NY2d 969, 4
See Miranda v. Arizona, 384 U.S. 436 (1966).
5
rearg denied 21 NY2d 1040, cert People v. Carrino, 114/12, NYLJ
denied 393 U.S. 934), it has also been 1202745595679, at *4 (App. Div., 2nd, Decided
Pro Bono and Experiential Learning (Continued from page 8) held that “[there] is no question but
December 16, 2015)(citations omitted).
6
People v Harris, 93 AD3d 58, 66 (2d Dep’t.
that the court may exercise its discre- 2012), affd 20 NY3d 912.
placements such as at Nassau Suffolk Program has some similarities) tion to stay proceedings in a civil 7
Parker v Dawson, 2007 US Dist LEXIS
action until a related criminal dispute 63068, at *9 (E.D.N.Y. Aug. 27, 2007, Nos. 06-
Law Services. Ms. Dosso says that, The concept of experiential learning CV-6191 (JFB) (WDW), 06-CV-6627 (JFB)
historically, students and Nassau instituted by the judiciary, and the pro is resolved. See, e.g., United States v. (WDW), 07-CV-1268 (JFB) (WDW)) (citations
Suffolk Law Services staff has a more bono task force to improve access to Kordel [supra]; DeVita v. Sills, 422 omitted).
meaningful placement experience justice are noble, respectable, achiev- F.2d 1172” (Klitzman, Klitzman & 8
Sterling Nat’l Bank v A-1 Hotels Int’l, Inc.,
able and understandable goals. The Gallagher v. Krut, 591 F Supp 258, 175 F Supp 2d 573, 576 (S.D.N.Y. 2001); see
when students participate voluntarily
269-270, n 7, affd 744 F2d 955).11 Parker, 2007 US Dist Lexis 63068 at * 9.
for at least 100 hours per semester. only problem is that there is a real need 9
See De Siervi v Liverzani, 136 AD2d 527, 528
Although this would be more hours for access to justice that is being Further, “[w]hile this will undoubted- (2d Dep’t. 1988).
than is required for the pro bono ignored and the solutions that are ly cause inconvenience and delay to 10
Merchants Mut. Ins. Co. v Arzillo, 98 AD2d
requirement for admission to the New being implemented are creating road- plaintiffs, protection of defendants’ con- 495, 495 (2d Dep’t. 1984).
11
stitutional rights against self-incrimina- De Siervi v Liverzani, 136 AD2d at 528
York Bar, it is the more successful blocks in their accomplishment. If (external quotation marks omitted and internal
internship scenario. Part of the issue is only the right hand knew what the left tion is the more important considera- citations and quotations preserved).
the staff attorney’s investment of time hand was doing. tion.”12 Indeed, for Ms. Moorer, the right 12
Dienstag v Bronsen, 49 FRD 327, 329
for on-the-job training when a student against self-incrimination is more than (S.D.N.Y. 1970) (citations omitted).
placement is relatively short term. Note: George Pammer is a 3rd year
law student at Touro Law School.
Time is limited and funding is short.
Ms. Greenberger of Nassau/Suffolk George is a part-time evening student Expanding Definition of “Value” (Continued from page 10)
Law Services (and a Touro Law gradu- and the President of the Student Bar
ate) mentioned the former existence of Association. He has also held the posi- change their hiring standards. operating in Asia. In August 2015, BNY
a Public Interest Externship at Touro tion of Vice-President in the SBA as well Although certainly not dispositive, it Mellon agreed to pay the SEC $14.8
which included a classroom compo- as in the Suffolk County Bar Association will be much easier to allege improper million to settle FCPA charges in con-
nent and was an innovative program to – Student Committee, where he was one motive if the hire in question is not nection with providing student intern-
not only help their clients, but to assist of the founding members. even remotely qualified for the posi- ships to family members of foreign offi-
in creating practice ready attorneys out 1
New York State Bar Association State Bar
tion. Jobs at the world’s leading invest- cials affiliated with a Middle Eastern
of law school. (The Pro Bono Scholar News January/February 2016, Vol. 58, No. 1 ment banks, for instance, are highly sovereign wealth fund. You can bet that
coveted and competitive even among the government has its eye on hiring
the best credentialed graduates. Of practices at U.S. companies and issuers
Pro Bono (Continued from page 6)
course, “princelings” by definition
tend to have greater access to presti-
operating in different industries and in
other corners of the world. Stay tuned.
gious educational opportunities and
legal assistance to Suffolk County financial need and funding is often may nevertheless be qualified. Second, Note: Jonathan (“Jack”) Harrington
residents who are dealing with eco- inadequate in these areas. ensure that you follow the same hiring is counsel to Campolo, Middleton &
nomic hardship. Nassau Suffolk Law Furthermore, there is no funding for process for all applicants, regardless of McCormick, LLP. He counsels multina-
Services is a non-profit civil legal the general provision of matrimonial their familial connections. Third, tional corporations and individuals in
services agency, providing free legal or bankruptcy representation, there- ensure your business units and human securities, white-collar, anti-money laun-
assistance to Long Islanders, prima- fore the demand for pro bono assis- resources department are well trained dering, and Foreign Corrupt Practices
rily in the areas of benefits advoca- tance is the greatest in these areas. If and resourced to identify potentially Act (FCPA) matters. He also represents
cy, homelessness prevention (fore- you would like to volunteer, please problematic candidates and ensure that clients in litigation and appeals before
closure and eviction defense), access contact Ellen Krakow, Esq. 631 232- any hiring is done in accordance with state and federal courts and in commer-
to health care, and services to spe- 2400 x 3323. your company’s anti-corruption policy. cial arbitrations, often with an interna-
cial populations such as domestic Of course, when in doubt, consult with tional component. Jack’s combination of
violence victims, disabled, and adult Note: Ellen Krakow Suffolk Pro an FCPA expert. legal, policy, and international business
home resident. The provision of free Bono Project Coordinator Nassau The princeling investigations have not experience enables him to advise clients
services is prioritized based on Suffolk Law Services. been limited to financial services firms on transactions and strategy.
THE SUFFOLK LAWYER – MARCH 2016 25

Dealing With Interruptions (Continued from page 12)

shy about telling a colleague that from co-workers, it’s possible to pre- can schedule time for technology in ic times during the day to be sure they
you’d love to hear about his or her lat- vent them — or at least a significant the same way that you schedule time don’t get lost.
est vacation but that you can’t do so portion of them — with good planning for staff. Only check email at specified Realistically, you can’t eliminate
until you’ve completed your task. Or and communication. For example, if times during the day, and turn off interruptions entirely, but being mind-
set a time for coffee, lunch or a drink you call a client but don’t get through, email and social media notification ful of them and taking steps to prevent
outside of work instead of chatting leave a message with the best time to sounds and pop-ups. Designate a block them can result in a significant
during regular work hours. reach you during the time you’ve of time for social media, and exit out increase in productivity.
When you learn to set expectations blocked out to make and answer calls. of those programs on your computer
and follow through, staff and col- Similarly, if you’re in the middle of when you’re not actively using them. Note: Allison C. Shields, Esq. is the
leagues know when they will have important work and don’t want to be Turn off your cell phone when you are Executive Director of the Suffolk
access, so they will hold questions. You interrupted, have an assistant screen working on a focused task. Academy of Law and the President of
may even find that when staff can count your calls or use an answering service, Legal Ease Consulting, Inc., which
on your availability, they learn how to just as if you were in a client meeting. Self-induced interruptions provides productivity, practice man-
resolve some issues on their own. Instruct them to provide callers with a Some interruptions are self-created. agement, marketing, business develop-
Keep these same concepts in mind definite time when you will return They can occur as a result of boredom, ment and social media training, coach-
when interacting with others in your calls to avoid repeated client calls, and procrastination, or just feeling over- ing and consulting services for lawyers
office. Respect their time, just as you then follow through. whelmed. Simply becoming more and law firms nationwide. A version of
expect them to respect yours. If you aware of these interruptions can help this article originally appeared in the
don’t want to be interrupted with Technology interruptions to eliminate them. For example, when Simple Steps column in Law Practice
“quick” questions, don’t do it to oth- Technology such as smart phones, you are working on a task and some- Magazine and is adapted from the
ers. Ask if you can schedule a time to social media, emails and text mes- thing unrelated comes to mind that you book, “How to Do More in Less Time,
talk. Save up questions for those you saging constitutes another major dis- need to do or remember, those the Complete Guide to Increasing Your
work with frequently to ask all at once, traction, and they can give people thoughts can easily distract you. Productivity and Improving Your
preferably at a designated time. the sense that you are available 24/7. Instead of using brainpower to try to Bottom Line.”
But just because you have a cell remember or wasting time switching i
“The Biggest Office Interruptions Are ...,” The
Client interruptions phone doesn’t mean you should from what you’re doing to the new Wall Street Journal, September 10, 2013,
While client interruptions may be always be available. task, simply make a note and continue http://online.wsj.com/news/articles/SB1000142
more difficult to ignore than those It may take some discipline, but you working. Process those notes at specif- 4127887324123004579057212505053076.

Mrs. Robinson Exempts the Book of Boundaries of Protection (Continued from page 3)

Mormon in Bankruptcy (Continued from page 18) there was no evidence that defendants expert witnesses so to maintain protec-
engaged in such deception. tion from disclosure.
which is slightly similar to New tion statute was not ambiguous and the In conclusion, the court held that
York’s. In relevant part, it states that debtor was entitled to her Book of sufficient evidence existed for the doc- Note: Leo K. Barnes, Jr. a member
“the following personal property is Mormon. The plain wording of the uments to obtain protection from dis- of BARNES & BARNES, P.C. in Melville,
exempt from judgment: necessary statute applied. The trustee, who had closure under Rule 26(b)(4)(B). practices commercial litigation in
wearing apparel, bible, school books, taken possession of the bible, had to Specifically, the court stated: Melville and can be reached at
LKB@BARNESPC.COM.
and family pictures of the debtor and return it to the debtor. The documents were prepared not
1
the debtor’s dependents.” This decision makes one wonder simply to aid (the expert) in drafting Similar protection is afforded to an attorney’s
The court, which consisted of a whether some debtors can purchase his report, but rather to form part of the communications with an expert witness pur-
suant to Fed. R. Civ. P. 26(b)(4)(C).
three-judge panel, stated that when the expensive bibles as an asset protection report itself and were in fact included 2
Fed. R. Civ. P. 26(b)(4)(B).
language of a statute is clear, as is the strategy. However, those debtors in in preliminary versions of that report. 3
Deangelis v. Corzine, 11 Civ. 7866 (S.D.N.Y.
case here, the court must give it effect New York will not have such luck. They are, in short, drafts of his report.8 2016).
4
and should not look to extrinsic aids Our state’s bible exemption, which The Deangelis decision provides an Id.
5
Id., at 3.
for construction. is found in CPLR section 5205(a)(1), important illustration why counsel 6
Id., at 9.
The court found that there was no states that “religious texts” and other must be mindful of all communica- 7
Id., at 10.
dispute that the Book of Mormon falls books are exempt, but limits the tions and interaction with a proposed 8
Id., at 11.
within the meaning of a bible. The value for items in this category to
court pointed out that the legislature, in
enacting the exemption statute used
$500. Meanwhile, the federal exemp-
tions do not include a bible, but per-
CPLR Rule 3408 Addressed (Continued from page 11)

here, did not intend to limit the value mit the exemption of books, subject guidelines govern the totality of the cir- Note: Andrew M. Lieb is the
of certain items like bibles, whereas to a limit of $400 per item, as indi- cumstances standard. Regardless, Managing Attorney at Lieb at Law,
they did include dollar limitations for cated in Bankruptcy Code section Version 5.0 of the Making Home P.C., a law firm with offices in Center
other items. 522(d)(3). Affordable Program Handbook for Moriches and Manhasset. Mr. Lieb
The court also shot down the So here’s to you, Mrs. Robinson. Servicers of Non-GSE Mortgages serves as a Co-Chair of the Real
trustee’s arguments that the debtor was became available on January 6, 20165. Property Committee of the Suffolk Bar
only entitled to exempt one bible, and Note: Craig D. Robins, a regular This Handbook, at least, plays an impor- Association and has been the Special
that the term “bible” is susceptible to columnist, is a Long Island bankruptcy tant role in the totality of the circum- Section Editor for Real Property in
various interpretations and requires an lawyer who has represented thousands of stances standard and should be studied The Suffolk Lawyer for several years.
examination of the legislative history consumer and business clients during the by both plaintiff and defense counsel 1
to discern the legislature’s intent. past twenty-nine years. He has offices in LaSalle Bank, N.A. v. Dono., 2016 WL
who engage in foreclosure litigation. In 229744 (2d Dept., 2016).
The trustee argued that only bibles of Melville, Coram, and Valley Stream. all, educating lenders on the handbook’s 2
US Bank N.A. v. Sarmiento, 121 A.D.3d 187
“negligible” value should be exempt. (516) 496-0800. He can be reached at requirements is often the most cost (2d Dept., 2014).
However, the court stated that the CraigR@CraigRobinsLaw.com. Please effective strategy for a borrower, as 3
Aurora Loan Services, LLC v. Nelli Chirinkin,
trustee “is asking us to read a restriction visit his Bankruptcy Website: opposed to engaging in protracted et al., 2016 WL 143780 (2d Dept., 2016).
4
Deutsche Bank Natl. Trust Co. v. Twersky,
— a dollar-value limitation — into the www.BankruptcyCanHelp.com and his CPLR Rule 3408 motion practice, if the 2016 WL 314001 (2d Dept., 2016).
statute where one does not appear.” Bankruptcy Blog: www.LongIslandBank- borrower’s ultimate goals are a loan 5
https://www.hmpadmin.com//portal/programs/
The bottom line was that the exemp- ruptcyBlog.com. modification and to avoid foreclosure. docs/hamp_servicer/mhahandbook_5.pdf
26 THE SUFFOLK LAWYER – MARCH 2016

Foreign Ownership of Property in the United States (Continued from page 10)

to withhold 10 percent of the gross erty in the foreign individual’s name or the use of the property for another pur-
purchase price at the closing. The for- the foreign citizen’s ownership interest Other considerations pose or to expand or develop the prop-
eign investor may apply for any refund in an LLC set up in the United States. There are many other issues for for- erty, great care must be taken to deter-
at the end of the tax reporting year If a foreign citizen owns real property eign buyers that arise in connection mine whether that new use or expan-
once any applicable taxes have been in the United States through a foreign with purchasing or investing in real sion is permissible.
paid from the withholding. corporation, or through the hybrid struc- property in the United States. Title Due diligence, financing options,
ture discussed above, there is no estate insurance is a concept that is new to property management issues, USA
Estate and gift tax considerations tax upon the death of the individual many foreigners, but it insures that the Patriot Act considerations and even
As noted above, there is generally because shares in a foreign corporation purchaser is receiving clear title. At whether the foreign buyer needs to be
an estate tax imposed on the estate of a are not considered assets located in the closing, it is imperative that the for- physically present at the closing are all
foreign citizen who owns real property United States, even if the real property eign buyer secure title insurance and issues that arise and need to be
situated in the United States at the time owned by that entity is located in the have adequate homeowners and/or lia- addressed by a foreign buyer. Thus, it
of death. A foreign citizen receives United States. Similarly, a gift by a for- bility insurance. is vital that foreign buyers assemble a
only a $60,000 exemption on estate eign citizen of stock in a foreign corpo- Land use and zoning issues fre- team of trusted advisors, including real
taxes for any property owned in the ration is not subject to gift tax in the quently arise with real estate and it is estate brokers, engineers, appraisers,
United States at the time of death United States. If, however, a foreign cit- important to determine whether the bankers, attorneys, accountants, con-
(compared to the $5,430,000 exemp- izen wishes to gift real property located property is properly zoned for the tractors and property managers to
tion from federal estate taxes that in the United States directly, the donor intended use of the foreign buyer, guide them through the process.
United States citizens currently of the gift would be subject to a gift tax preferably before a contract is signed.
receive), and an estate tax return must on the value of the gift and the recipient Local zoning laws and regulations may Note: Robert B. Moy is a partner in
be filed for the estate if the gross estate would be subject to reporting require- permit only certain uses for the real the Tax, Trusts and Estate and
exceeds $60,000 in assets located in ments to the United States government property or place restrictions on Corporate departments of Forchelli,
the United States. These assets would if any such gifts exceed $100,000 in the expansion or development of the prop- Curto, Deegan, Schwartz, Mineo &
include direct ownership of real prop- aggregate in any given year. erty. If a purchaser wishes to change Terrana LLP.

Confronting the Expert Under the Sixth Amendment (Continued from page 18)

mine whether the prosecution could supervising analyst, were testimonial however, the sole evidence linking ings and contested accounting pro-
admit a DNA report only by calling in nature and therefore, could be the defendant to the crime was the ceedings. She has extensive trial and
to testify each of the many criminolo- admitted only by the testimony of the DNA profile, which resulted from appellate experience in both federal
gists who participated in preparing very individuals who conducted that laboratory analysis. Finding that “the and state courts. Ms. Frommer also
the report for the Office of the Chief work. The court found however, that original profile developed to identify represents large and small businesses,
Medical Examiner, as the defense “machine driven” testing which was a suspect is critical,” the court held financial institutions and individuals
argued, or he could rely solely on the performed by various technicians was that “more scrutiny is necessary of in complex business disputes, includ-
testimony of the supervising analyst not testimonial and evidence thereof the initial steps taken by the analyst ing shareholder and partnership dis-
who made the final assessment of the could be admitted through the prose- who received the specimen and con- putes, employment disputes and other
data, which is the only witness the cution’s proffered supervising ana- ducted the first stage protocols.” With commercial matters.
prosecution intended to call to testify. lyst. this heightened “scrutiny” in mind, 1
2016 NY Slip Op 26012 (Sup Ct, Bronx
The defense argued that the testimo- In making this decision, the court the court was persuaded that the first County Jan. 20 2016).
ny of each lab analyst was necessary noted a significant factor, which dis- analyst did not merely apply a formu- 2
132 S Ct 2221 (2012).
because of the risks of contamination tinguished the case from Williams: la, but rather engaged in “assertive 3
2016 NY Slip Op 26012.
4
and the presumptions technicians the identification of the defendant. In conduct” which rendered her section 124 S Ct 1354 (2004).
5
Id.
make, and because the defendant’s Williams, the DNA profile was made of the report “testimonial” and 6
He was joined by the Chief Justice, Justice
right to confront them outweighed when the defendant was not a sus- required her testimony at trial. Kennedy, and Justice Breyer. Justice Thomas
any practical difficulties of trial. The pect. Thus, it was not prepared for the concurred in the judgment. Justice Kagan,
court agreed in part with the defense. purpose of identifying the defendant Note: Hillary A. Frommer is counsel Justice Scalia, Justice Ginsburg, and Justice
It found that the work performed by as the perpetrator. The victim had in Farrell Fritz’s Estate Litigation Sotomayor dissented.
7
Id. at 235.
the initial analyst who took the sam- made a personal identification of the Department. She focuses her practice 8
This article does not examine all aspects of the
ple from the victim, and the final defendant as her attacker. In the case in litigation, primarily estate matters dissent.
analysis and conclusions of the before the Bronx Supreme Court including contested probate proceed-

“Best Practices” at a Wade Hearing (Continued from page 14)

not appear in the photo array; 2) not to Another tactical consideration is are less likely to recant their story from mistaken identification has been
assume that the officer/detective whether you want your client to be once they have taken the witness box; the degree of suggestion inherent in
knows who the perpetrator is; and 3) present at the Wade hearing. in fact, they are much more likely to the manner in which the prosecution
not to ask anyone for guidance during Although it is beyond cavil that your embellish their original narrative. presents the suspect to witnesses for
the viewing process. client has a right to be there, there is Although the prosecution may pretrial identification;” a properly
According to the best practices a strategic element to perhaps keep- object to your decision, the CPL is done Wade hearing ensures more grist
guidelines (again, promulgated by the ing the seat next to you empty. This is unequivocal: the defendant is only for the justice mill.
NYS prosecutors’ association) the so especially where the testifying required to be present at trial, and even
identifying witness’ words should be witness is not a law enforcement then there are two exceptions: if she/he Note: Vesselin Mitev is a partner at
written down or recorded somehow. agent but, for example, the com- has waived that right in writing; or if Ray, Mitev & Associates, a New York
This is important because a witness plainant or the victim, since once she/he is so disruptive to the proceed- litigation boutique with offices in
saying: “If I had to pick someone, I they are on the stand, they have ings that the trial cannot continue, see Manhattan and on Long Island. His
would pick number three” is a very dif- essentially “doubled down” that your CPL 340.50. practice is 100 % devoted to litigation,
ferent response than merely indicating client is the person who did it. The Wade court stated that “[a] including trial, of all matters including
that the “witness identified number Human nature tells us that even if the major factor contributing to the high criminal, matrimonial/family law,
three.” complainant/victim is mistaken, they incidence of miscarriage of justice Article 78 proceedings and appeals.
THE SUFFOLK LAWYER – MARCH 2016 27

President’s Message
and landlord tenant cases. As March is actively participated in the negotiations In March, our Board of Directors Nassau and Suffolk and the New
Women’s History month we applaud for pay raises for the judiciary. Our bar will be hosting a joint meeting with York State Bar Association President
these extraordinary women. association is especially proud of our our neighbors to the west, the Elect Claire Gundekunst. We look
It is with great pride that we congrat- leaders who continue to contribute their Nassau County Bar’s Board of forward to an exchange of valuable
ulate SCBA past president (2004-’05) expertise in championing the interests Directors. We have also invited the information and ideas that benefit
Scott M. Karson who has been elected of our members. District Administrative judges of the practice of law.
Treasurer of the New York State Bar The Suffolk County Bar
(See our picture of Scott at the New York Association, together with the FREEZE FRAME
State Bar’s Annual Meeting in New York Suffolk County Criminal Bar
City were many members of the Association and the Suffolk County Honoring Chief Judge
Executive Committee wore red sneakers Defender Plan, are in the process of
in honor of the late former Court of applying for a full-time administrator Judith Kaye
Appeals Judge Judith S. Kaye). Scott for the 18-b Plan. The revised plan is
continues to do important work at our in the process of being presented to SCBA past president Scott M.
bar association. He has authored the the Appellate Division and the Office Karson, NYSBA Vice President for
bylaws changes for the Association for Indigent Legal Services for the Tenth Judicial District, appeared
including Judicial Screening and has approval. Once that takes place, the on the floor of the NYSBA House of
recently authored a Leadership Guide search committee will be taking Delegates wearing red sneakers to
for Leadership Development applications and interviewing candi- honor the memory of the late Chief
Committee; he has served on the dates. The new administrator’s posi- Judge Judith Kaye, who died on Jan.
Executive Committee of the State Bar tion will be full time and will have a 7, 2016. Scott was one of several
for several years and is just ending his staff including a deputy administrator delegates to honor the late Chief
tenure as the NYSBA Vice President for and three other employees.
Judge by wearing a pair if red sneak-
the Tenth Judicial District; he also serves It is my belief that a full time admin-
ers at the Jan. 29 meeting of the
as our delegate to the American Bar istrator will be a new and exciting
Association. change for Suffolk County. The Suffolk House in New York City. Chief
My dear friend, Supreme Court County Defender Plan established in Judge Kaye was known to favor red
Justice William Condon, has been 1965, has grown tremendously over the shoes and, at her funeral, members
elected President of the New York State years from when it was first established. of her family wore red sneakers in
Supreme Court Justices Association There are now more than 300 attorneys her memory.
representing Supreme Court justices who serve on panels in Supreme,
throughout the state. Justice Condon County, Family and District Courts.

Zoning Boards of Appeal – How Much Variance Relief is Too Much? (Continued from page 8)

intended to obviate the need for Salkin, 2 N.Y. Zoning Law & Prac. § and the grant is invalid for want of Misc.3d 1196, 824 N.Y.S.2d 768
frequent amendment of ordinances 29:24 (footnotes omitted)(emphasis authority (Matter of Reed v. Board (Sup.Ct., Suffolk Co., 2006).
through the use of their power to added). of Standards and Appeals of City of The result in Van Deusen represents
grant variances. Indeed, the dis- Thus, the role of the ZBA is to pro- N.Y., 255 N.Y. 126, 135-136, 174 the worst possible outcome for the
tinction between legislative and tect the zoning ordinance enacted by N.E. 301, 303-304; Matter of applicant and the practitioner. Not
administrative relief from the strict the Town Board; not usurp it: Thomas v. Board of Standards and only is the variance ultimately
application of zoning regulations “A zoning board of appeals cannot Appeals of City of N.Y., 290 N.Y. annulled after costly litigation, but the
was sometimes lost or obscured by under the semblance of a variance exer- 109, 114, 48 N.E.2d 284, 285). applicant must also now request relief
the forms of relief that involved cise legislative powers ... The legislative More precisely, the board of from a legislative body, which could
both kinds of power. Therefore, it body forms zoning policy in the shape appeals must make certain that the reasonably view the ZBA application
is necessary to distinguish sharply of a comprehensive plan after ‘reason- effect of a variance would not intro- as an attempt to avoid their scrutiny.
between a variance, which may be able consideration, among other things, duce such an incongruity into the As a result, a practitioner should
granted by a zoning board of as to the character of the district and its ordinance that the zoning pattern perform a careful analysis in such
appeals and an amendment, which peculiar suitability for particular uses’ would be seriously disarranged.” instances, and seek to avoid placing the
can only be adopted by the legisla- (Town Law, s 263). The comprehensive client in this difficult position.
tive authority of the municipality. plan, essentially general in scope, may Id., 35 A.D.2d 58, 61, 312 N.Y.S.2d
cause disproportionate injury to a prop- 853 (emphasis added). Note: Vincent J. Messina, Jr. is a
A variance is a use of land author- erty owner and, for the purpose of eas- The court in Van Deusen further held partner at Sinnreich, Kosakoff and
ized by a zoning board of appeals upon ing that injury, the board of appeals that, by permitting a density higher Messina, LLP. A significant portion of
a showing of circumstances previously hears and determines individual appli- than that permitted by the applicable his practice is devouted to land use and
required by the legislative authority. A cations for relief ‘in harmony with * * * zoning ordinance (in fact, even higher related litigation in trial courts,
variance does not alter the zoning reg- (the) general purpose and intent’ of the than a more lenient provision of the Appellate Divisions and Court of
ulations or the zoning of the parcel; it ordinance (Town Law, s 261) ...” zoning ordinance), the ZBA invaded Appeals. He is a former town attorney
merely permits a use that is proscribed Van Deusen v. Jackson, 35 A.D.2d the province of the legislative body of the Town of Islip, a position he held
by those regulations as applied to the 58, 312 N.Y.S.2d 853, 856-57 (2d (the Town Board), and annulled the for approximately 13 years and cur-
particular parcel. A variance may be Dept. 1970)(emphasis added)(citations variance it had granted. rently represents both developers and
regarded as an amendment if it alters in omitted). The Van Deusen court went The holding in Van Deusen, and the zoning boards of appeals. He is the
any fundamental respect the zoning on to hold that statutory construction contained therein, SCBA co-chair of the Real Property
scheme articulated in the ordinance. If continues to be utilized by the courts of Committee and chair of the Legislative
a variance is destructive of the purpose “When the variance violates the this State. (See, e.g., Santora v. Town of Committee and has lectured on a vari-
to be achieved by the zoning ordi- general purpose of the ordinance, Poughkeepsie Zoning Bd. of Appeals, 55 ety of issues for the Suffolk Academy of
nance, that constitutes a clear invasion the board of appeals invades the A.D.3d 741, 865 N.Y.S.2d 361(2d Dept. Law, New York State Bar Association
of the legislative process. province of the legislative body, 2008); Deon v. Town of Brookhaven, 12 and private legal education providers.
28 THE SUFFOLK LAWYER – MARCH 2016

SUFFOLK ACADEMY OF LAW


O F TH E S U FF O L K C O U N T Y BA R A S S O C I AT I O N

WINTER CLE
The Suffolk Academy of Law, the educational arm of Association within 30 days, you may apply the tuition
N.B. - As per NYS CLE Board regulation, you must attend a
the Suffolk County Bar Association, provides a com- differential you paid to your SCBA membership
CLE program or a specific section of a longer program in its
prehensive curriculum of continuing legal education dues.
entirety to receive credit.
courses. Programs listed in this issue are some of Americans with Disabilities Act: If you plan to attend
those that will be presented during the winter of a program and need assistance related to a disabil-
2016. MCLE requirements. ity provided for under the ADA, please let us know.
REAL TIME WEBCASTS: Many programs are avail- NOTES: Disclaimer : Speakers and topics are subject to
able as both in-person seminars and as real-time Program Locations: Most, but not all, programs are change without notice. The Suffolk Academy of Law
webcasts. To deter mine if a program will be webcast, held at the SCBA Center; be sure to check listings is not liable for errors or omissions in this publicity
please check the calendar on the SCBA website for locations and times. information.
(www.scba.org).. Tuition & Registration: Tuition prices listed in the Tax-Deductible Suppor t for CLE: Tuition does not
RECORDINGS: Most programs are recorded and registration form are for discounted pre-registration. fully support the Academy’s educational program.
are available, after the fact, as on-line video replays At-door registrations entail higher fees. You may pre- As a 501(c)(3) organization, the Academy can
and as DVD or audio CD recordings. register for classes by returning the registration accept your tax deductible donation. Please take a
coupon with your payment. moment, when registering, to add a contribution to
AC CRED ITAT ION FO R MCLE : The Suffolk your tuition payment.
Academy of Law has been certified by the New York Refunds: Refund requests must be received 48
hours in advance. Fin ancial Aid: For information on needs-based
State Continuing Legal Education Board as an
Non SCBA Member Attorneys: Tuition prices are dis- scholarships, payment plans, or volunteer service in
accredited provider of continuing legal education in
counted for SCBA members. If you attend a course lieu of tuition, call the Academy at 631-233-5588.
the State of New York. Thus, Academy courses are
presumptively approved as meeting the OCA’s at non-member rates and join the Suffolk County Bar INQUIRIES: 631-234-5588.

SEMINARS & CONFERENCES


Matrimonial Mondays Series Carol MacKenzie, Hon. James F. Location: Suffolk County Bar
MATRIMONIAL Quinn, Hon. David T. Reilly, John J. Association, 560 Wheeler Road,
Fellin, Esq., James R. Winkler, Hauppauge, NY
MONDAYS SERIES Esq., Christopher J. Chimeri, Esq. MCLE: 3 Hours (2 ½ Professional
Mondays, March 7, 14, 21, 2016 Time: 6:00 p.m. – 9:00 p.m. Practice; ½ Ethics) [Transitional or
6:00-9:00 pm (Registration from 5:30 p.m.) Non-Transitional]; $95
This year’s Matrimonial Mondays in Location: Suffolk County Bar
March series consists of three programs Association, 560 Wheeler Road, Matinee Program
featuring experienced practitioners, Hauppauge, NY ADVANCED 1031
experts and members of the Judiciary. MCLE: 3 Hours (2 Professional EXCHANGE CONCEPTS
You may choose to attend for the full Practice; 1 Skills) [Transitional or
series or only the one program. Each ses- Non Transitional]; $95 AND RELATED
sion provides 3 MCLE credits. TAX ISSUES
Time: 6:00 p.m. – 9:00 p.m. Evening Program March 15, 2016, 4:00 -6:00 p.m.
(Registration from 5:30 p.m.) MATRIMONIAL MONDAYS Attendees at this program will learn how
Location: Suffolk County Bar IDIOSYNCRASIES AND to structure 1031 exchanges to maximize
Association, 560 Wheeler
Road, Hauppauge, NY
UNEXPLORED ISSUES IN the tax benefits to their clients. Faculty will
MATRIMONIAL LAW cover the different formats available and
MCLE: 3 Hours each session
the benefits of and requirements for each,
[Transitional or Non-Transitional]; $95 March 14, 2016 6:00-9:00 pm as well as reviewing noteworthy caselaw,
This program will cover issues includ- and recent developments. Practical solu-
Evening Program tions to real life obstacles in performing an
ing: dealing with the mentally unstable
MATRIMONIAL MONDAYS client, untapped court resources, includ- exchange will be provided. Additional
PENDENTE LITE MOTIONS: ing case analysts, court referees and edu- highlights will include a review of current
DO’S AND DON’TS cational advocates, and the appointment tax rates applicable to investment sales,
March 7, 2016 6:00-9:00 pm of special referees for disclosure in com- like-kind property, vacation home
plex cases.. exchanges and more.
This session will cover Pendente Lite
motions and when you need a plenary Faculty: Hon. James F. Quinn, Jeffrey Faculty: Pamela Michaels, Esq.;
action. Attendees will learn what should Horn, Esq., Gayle Rosenblum, Program Coordinator: Vincent
and should not be included in pendente Esq., Howard Leff, Esq., Special Danzi, Esq.
lite motions, how to obtain a temporary Referree Matthew Deedy, Case Time: 4:00 p.m. – 6:00 p.m.
restraining order, and when a plenary Analyst Jeanmarie Massetti, LIAC (Registration from 3:30 p.m.)
action, as opposed to an Order to Show Educational Advocate Eileen Location: Suffolk County Bar
Cause, is required. Buckley Association, 560 Wheeler Road,
Hauppauge, NY
Time: 6:00 p.m. – 9:00 p.m.
Faculty: Hon. Andrew A. Creca, Hon. MCLE: 2 Hours Professional Practice
(Registration from 5:30 p.m.)
John Iliou, Hon. John J. Leo, Hon. [Transitional or Non-Transitional]; $60
THE SUFFOLK LAWYER – MARCH 2016 29

SUFFOLK ACADEMY OF LAW


O F T H E S UF F O L K C O U N T Y BA R A S S O C I AT I O N

BRIDGE THE GAP of an experienced mediator. The program Evening Program


will cover how to identify cases that are ANNUAL
WEEKEND good candidates for mediation, how to
March 18 and 19, 2016 select a mediator, what the mediation state- MATRIMONIAL UPDATE
This year’s Bridge the Gap weekend pro- ment should include, what to consider in March 29, 2016 6:00-9:00 pm
gram is currently being developed in accor- pre-mediation negotiations, and general
Come find out the latest developments
dance with the new rules for newly admitted do’s and don’ts during the mediation itself.
in Matrimonial and Family Law with our
attorneys which will go into effect on January Faculty: Joseph C. Tonetti, Esq., spon- Annual Case Update.
1. The Friday program will be given live and sored by the Jansen Group, Inc. Faculty: Vincent F. Stempel, Esq.
will also be webcast live, in accordance with
Time: 6:00 p.m. – 8:00 p.m. Time: 6:00 p.m. – 9:00 p.m.
the new rules. This year’s weekend program
(Registration from 5:30 p.m.) (Registration from 5:30 p.m.)
includes segments on the following topics:
Location: Suffolk County Bar Location: Suffolk County Bar
Practical Ethics, Handling a Civil Case,
Association, 560 Wheeler Road, Association, 560 Wheeler Road,
Handling a Criminal Case, Practicing in
Hauppauge, NY Hauppauge, NY
Family Court, Foreclosures, Grievances,
MCLE: 2 Hours Professional Practice MCLE: 3 Hours Professional Practice
Forming a Small Business, Wills, Trusts and
[Transitional or Non-Transitional]; $60 [Transitional or Non-Transitional]; $125
Estates, Residential Real Estate, Elder Law,
and New York Notary Law. The program will
offer newly admitted attorneys the full com-
plement of credits required for the full year.
Location: Suffolk County Bar
Association, 560 Wheeler Road,
Hauppauge, NY
MCLE: 17 Hours [Transitional or Non-
Transitional]

Evening Program
MATRIMONIAL MONDAYS
USE AND PRESENTATION OF
EVIDENCE IN
MATRIMONIAL CASES
March 21, 2016 6:00-9:00 pm
Learn the use of matrimonial evidence
from one of the top divorce lawyers in New
York State, who presents on this topic at
Judge School to both newly elected and
experienced judges. The case law update
provided will be invaluable to your practice.
Faculty: Steve Gassman, Esq.
Time: 6:00 p.m. – 9:00 p.m.
(Registration from 5:30 p.m.)
Location: Suffolk County Bar
Association, 560 Wheeler Road,
Hauppauge, NY
MCLE: 3 Hours (1 Professional
Practice; 2 Skills) [Transitional or
Non-Transitional]; $95

Evening Program
MEDIATION: HOW TO
SETTLE CASES WITH-
OUT GOING TO TRIAL
March 23, 2016 6:00 -8:00 p.m.
Formulated specifically for plaintiffs’ coun-
sel, this program will provide an overview of
the mediation process from the perspective
30 THE SUFFOLK LAWYER – MARCH 2016

ACADEMY OF LAW NEWS


MARCH ACADEMY HAPPENINGS
Bridge the Gap Training for New requirement for Skills. Newly admit- a result, we have changed the format Pendente Lite Motions: Do’s And
Lawyers – An Economical Option ted attorneys are required to take a of our Bridge the Gap program to put Don’ts, March 7, 2016. Learn when
for a Full Year of Credits minimum of 16 credits per year: 7 in all of the credits that are eligible to be you need a plenary action, what to
The New York State CLE Board has Areas of Professional Practice or Law taken as a webcast on one day, and all include in your motions, and how to
made some changes to the rules Practice Management, 6 in Skills, and of the programs that must be taken obtain a TRO. Faculty for this pro-
regarding CLE credits for newly 3 in Ethics. live on the alternate day. This will not gram includes several members of the
admitted attorneys, and these changes In the past, newly admitted attor- only allow for us to offer part of our matrimonial bench as well as experi-
went into effect as of January 1, 2016. neys (those to whom Bridge the Gap Bridge the Gap program to individu- enced matrimonial practitioners.
While veteran attorneys (admitted is directed) were required to take all als across New York State, but will Idiosyncrasies and Unexplored
more than two years), do not need to of their credits at live programs. also permit local attorneys to appear Issues in Matrimonial Law, March
distinguish between Skills and Areas Those restrictions have now been live for only one day of programming 14, 2016. Matrimonial actions are
of Professional Practice or Practice relaxed somewhat, and certain credits if they wish. complicated enough, why make them

r
Management credits, newly admitted are permitted to be taken either in Our Bridge the Gap 2016 program more difficult? Hear from judges, spe-

e n d a
attorneys have a specific credit recorded form or as live webcasts. As offers 17 CLE credits (one more than cial referees and practitioners and

Ca l
required per year) and was specifical- earn what court and outside resources
ly formulated to ensure that those who may be available to help you with
ACADEMY attended in 2015 can also attend in complex matrimonial matters.
2016. The Friday program will be Use And Presentation Of
given live and will also be webcast Evidence In Matrimonial Cases,
of Meetings & Seminars live, in accordance with the new rules. March 21, 2016. Attorney Steve
This year’s weekend program Gassman, Esq. is back again this
Note: Programs, meetings, and events at the Suffolk County Bar Center (560 Wheeler includes segments on the following year to demonstrate the use and pres-
Road, Hauppauge) unless otherwise indicated. Dates, times, and topics may be topics: Practical Ethics, Handling a entation of evidence in matrimonial
changed because of conditions beyond our control. Most CLE programs involve tuition Civil Case, Handling a Criminal Case, matters. Since Mr. Gassman presents
fees; see the CLE Listings pages in this publication and the SCBA online calendar for Practicing in Family Court, on this topic to the judges at Judge
course descriptions and registration details. For information, call 631-234-5588.
Foreclosures, Grievances, Forming a School, you know you’ll be learning
Small Business, Wills, Trusts and from the best!
MARCH
Estates, Residential Real Estate, Elder March also brings our Annual
7 Monday Matrimonial Mondays: Pendente Lite Motions- Law, and New York Notary Law. Matrimonial Update with Vincent
Do’s and Don’ts, 6:00 p.m.-9:00 p.m., 3 credits, $95. Best of all, the Suffolk Academy of Stempel, Esq., another three credit
A light supper will be served Law’s Bridge the Gap program is evening program (this time on
offered for $195 total for both days of Tuesday, March 29), featuring an
14 Monday Matrimonial Mondays: Idiosyncrasies and programming, a significant discount update of new cases and legislation
Unexplored Issues in Matrimonial Law, 6:00 p.m.- over other Bridge the Gap programs, from the past year.
9:00 p.m., 3 credits, $95. A light supper will be so register now!
served More March Programs
Matrimonial Mondays (and one On March 15, a two credit program
15 Tuesday Advanced 1031 Exchange Concepts and Related
Tuesday) in March on 1031 Exchanges will be presented
Tax Issues, 4:00 p.m.-6:00 p.m., 2 credits, $60. A
The Academy’s Matrimonial at the Bar Center. And on March 23,
light supper will be served
Mondays Series is back again this Joseph Tonetti, Esq. will be present-
18 Friday Bridge the Gap, Day 1, This full day program will year with three intensive programs ing a program on how plaintiff’s attor-
be offered both live and webcast and will cover geared specifically toward neys can use Mediation and
Professional Practice and Ethics Credits. Day 1 or 2 Matrimonial and Family practitioners Arbitration for Effective Case
live - $125; Full weekend live - $195. Continental and featuring experienced practition- Management.
breakfast and a light lunch will be served. ers, experts and members of the judi- Details about all of these programs
ciary. You may choose to attend for can be found in the centerspread.
19 Saturday Bridge the Gap, Day 2, This full day program will the full series or only the one pro-
be offered live, and will cover Skills and Ethics cred- gram. Each session provides 3 MCLE Online, On-demand and
its. Day 1 or 2 live - $125; Full weekend live - credits and each session runs from 6 Recorded CLE Programs
$195.Continental breakfast and a light lunch will be to 9 p.m. at the SCBA. But in addition to our live pro-
served. Our three Matrimonial Mondays grams, the Academy also offers live
programs this year are: (Continued on page 31)
21 Monday Matrimonial Mondays: Use and Presentation of
Evidence in Matrimonial Trials, 6:00 p.m.-9:00
p.m., 3 credits, $95. A light supper will be served
23 Wednesday Mediations: Effective Case Management for ACADEMY OF LAW OFFICERS
Plaintiffs, 6:00 p.m.-8:00 p.m., 2 credits, $60. A light
DEAN EXECUTIVE DIRECTOR
supper will be served Harry Tilis Allison C. Shields
29 Tuesday Annual Matrimonial Update, 6:00 p.m.-9:00 p.m., Officers Gerard J. McCreight Arthur E. Shulman
3 credits, $125. A light supper will be served Sima Asad Ali Peter D. Tamsen Leonard Badia
Brette A. Haefeli Associate Dean Charles Wallshein Vincent Danzi
Robert M. Harper Michael G. Glass Paul Devlin
Please note: Materials for all Academy programs are provided online and Jennifer A. Mendelsohn Treasurer Patrick McCormick Associate Dean Jeffrey Horn
are available for download in PDF format prior to or at the time of the pro- Marianne S. Rantala Hon. James F. Quinn Cory Morris Secretary
gram. Printed materials are available for an additional charge. Hon. John J. Leo Debra L. Rubin Curriculum Chair Janna Visconti
LEGAL SERVICE DIRECTORY
THE SUFFOLK LAWYER – MARCH 2016 31

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Boundaries of Protection (Continued from page 3)

webcasts of many of our programs, as website, scba.org, provides valuable ed information, sign up for the SCBA the minute announcements affecting
well as a full array of online, on- and resources and information to both member’s alert system and receive the profession. (This is especially
demand CLE programs and CLE pro- members and non-members alike, but text messages about closings, post- important during the winter months,
gramming available on DVD or CD. unfortunately, many of our members ponements and other important up to when weather can be unpredictable).
These additional formats allow attor- do not take advantage of the wealth of
neys to take advantage of the learning information available on the website. FREEZE FRAME
opportunities and CLE credits avail- In addition to the availability of online,
able from the comfort of their home or on-demand and DVD programming,
office (or even on the road!). you may register online for any of our
To view the online, on demand pro- live Academy programs through the
grams available, go to scba.org, click scba.org site by clicking on MCLE
on MCLE and then Online video and then Register for a Live CLE pro-
replays and live webcasts to search for gram.
the programs. If you prefer to purchase Want to know what’s happening at
a CD or DVD of one of our programs, the SCBA or the Academy? Head on
you can go to scba.org, click on over to the website at scba.org and click
MCLE and then DVDs and CDs of on Calendar. Here you can view all of
prior programs to access our recorded the information about upcoming events,
program library. including committee meetings, month-
ly Academy meetings, social events and
Want to learn about upcoming Academy CLE programs. Links from
programs? each event to registration and detailed
If you’re missing Academy pro- flyers are available (if applicable). It’s a
grams, perhaps it’s because you’re not good idea to double-check the calendar
receiving our email blasts! The before coming to the SCBA for a com-
Academy has “gone green,” and is no mittee meeting or program.
longer sending out paper flyers for our The SCBA website also contains
programs. Instead, you can find infor- information about other events in the
mation on upcoming Academy pro- legal community in addition to the
grams by reading the Suffolk Lawyer, events at the SCBA. Go to scba.org
by looking at our Academy calendar at and click on Calendar of other Legal
scba.org, or by receiving our email Community Events to find out what
blasts. Blasts are usually sent twice a other legal associations and our
week and include links to view the elec- Specialty Bars have planned – and
tronic flyers and to register for our pro- contact Jane LaCova (jane@scba.org)
grams. If you’re not receiving our email
blasts, please email allison@scba.org
if you want your event listed on our
Legal Community Events calendar. Nothing like being a grandmother
and let us know you want to be added to Finally, the SCBA website sidebar
our Academy email list. contains the latest news about the Bar SCBA staffer Nicolette Ghiglieri is enjoying her two beautiful grandchil-
Association and the Academy – this dren that were born only one month apart. Joanna Rose Ghiglieri was born
Academy and SCBA Website news can be found right on the Home on Valentine’s Day and Alexa Nicole Prieto was born January 18.
The Suffolk County Bar Association Page. But if you want the most updat-
p r ing
SDINEHUNTINGTON
32 THE SUFFOLK LAWYER – MARCH 2016

MARCH 13-20, 2016


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