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
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
COMMERCIAL LITIGATION
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)
ELDER LAW
PRO BONO
ADR
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.
(516) 248-7700
129 Third Street • Mineola, NY 11501
johnelawlor.com
10 THE SUFFOLK LAWYER – MARCH 2016
REAL PROPERTY
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)
IMMEDIATE SERVICE!
1-800-841-8879
65 Broadway Suite 1104 New York NY 10006
1 Birchwood Court Suite 1L Mineola NY 11501
www.duffybonds.com
12 THE SUFFOLK LAWYER – MARCH 2016
CONSTITUTIONAL
PRACTICE MANAGEMENT
CYBERLAW
Law Offices of
Dennis M. Lemke Winkler Kurtz & Winkler, LLP
Attorneys at Law
1201 Route 112, Suite 200
Port Jefferson Station, New York 11776
is pleased to announce
ETHICS
CRIMINAL
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)
2 3 G RE E N S T R E E T, S UI T E 2 0 9
We’ve got a Patent H U N T I N G TON , N E W YO RK 1 1 7 4 3
on Experience ® In the heart of Huntington Village
Over 8,000 patents granted
Over 15,000
trademarks obtained C ALL FO R A FREE C ON SU LTATIO N
Over 45 years of experience 6 31- 415- 2219
www.bdllaw.com
18 THE SUFFOLK LAWYER – MARCH 2016
CONSUMER BANKRUPTCY
AMERICAN PERSPECTIVE
— 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.
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
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
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
• 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
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.
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
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-
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
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.
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
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
SERVICES
LEGAL NOTICES OFFICE SPACE OFFICE SPACE
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
PRESENTED BY:
s!
Join U
Incorporated in 1925, the Huntington Township Chamber of Commerce represents
the interests of business, not- for–profit and other professionals looking for growth
and community involvement. Its mission is the promotion of business and economic
development through the coordinated effort of staff and membership. The Chamber
is dedicated to serving the needs of its members through government advocacy, net-
working, community support and education.
DINEHUNTINGTON.COM