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DEDICATED TO LEGAL EXCELLENCE SINCE 1908 www.scba.org

Vol. 31, No. 3 – November 2015

SUFFOLK LAWYER

T H E

THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

INSIDE…

NOVEMBER 2015

FOCUS ON

PROFESSIONAL

LIABILITY DEFENSE

Mechanics’ Liens 101.................... 6

Timely malpractice claim.................10

Design professionals’ exposure ......8

Strict liability in excavation actions ..9

Restrictive covenant........................8

_____________________________

Meet your SCBA colleague............3

Judiciary Night ...............................5

SCBA photo gallery................19, 22

____________________________

Legal Articles

ADR..............................................16

Bench Briefs ...................................4

Consumer Bankruptcy ..................20

Court Notes...................................10

Entertainment................................13

Environmental...............................16

Future Lawyers Forum .................15

Inside the Courts.............................4

Land Title .....................................18

Matrimonial ....................................3

Medical Malpractice.....................12

Policy/Constitution - Opinion.......18

Practice Management....................21

Pro Bono.......................................14

Tax ................................................12

Touro.............................................17

Trusts and Estates .........................15

Vehicle and Traffic........................14

Who’s your Expert........................11

_____________________________

Among Us.......................................7

Calendar: Academy.......................30

Calendar: SCBA .............................2

CLE Course Listings...............28-29

Freeze Frame ................................23

FOCUS ON

PROFESSIONAL LIABILITY

DEFENSE

SPECIAL EDITION

BAR EVENTS

PRESIDENT’S MESSAGE

Is LegalZoom and Others Like It Illegal?

____________________

By Glenn P. Warmuth

Just this morning on the way to work

I heard a commercial for LegalZoom

on the radio. I knew I would be writing

this article today so I listened more

carefully. According to LegalZoom’s

advertising, LegalZoom offers “an eas-

ier, less expensive option than using a

traditional lawyer.” LegalZoom’s

advertisements consistently state that

LegalZoom is not a law firm and that it

“provides self-help services at your

specific direction.”

LegalZoom creates legal documents

by having clients answer questions,

which are posed to the client by a com-

puter in the form of an online question-

naire. The comput-

er uses a decision

tree to determine

what questions to

ask. For example, if

the client wants a

will the computer

may ask whether

the client had chil-

dren. If the client

answers yes, then the computer will ask

questions regarding the children. If the

client answers no, the computer will

move on to a different topic. At the end

of the process the computer compiles

the information and creates a draft of a

will. The same formula is used to create

other legal documents including trusts,

leases, business formation documents,

etc. Once the document is created a

LegalZoom employee proofreads the

finished document and makes format-

ting corrections.

The obvious question is whether these

services violate New York’s prohibition

on the unauthorized practice of law,

which is set out in Judiciary Law §478.

LegalZoom equates the basic process

Enjoying Judiciary Night were from left, Executive Director Jane LaCova, Judges Randy Sue

Marver and William B. Rebolini and SCBA President Donna England. See more photos on pages

20-21.

Judiciary Night a big success once again

________________

By Donna England

While I know that I am preaching

to the choir, I would like to make all

of you ambassadors of our associa-

tion. And I’d I like to give to you the

facts and figures that make our

membership so important to our

profession.

This past month I attended the

Long Island Hispanic Bar Dinner

Dance, the Amistad Long Island

Black Bar Association Gala and a

monthly meeting of the Suffolk

County Matrimonial Bar Asso-cia-

tion. The Hispanic and Amistad bars

celebrated their heritage, culture and

achievements over the past 50 years.

Each event was enjoyable, entertain-

ing and informative.

However, the suc-

cess of the Hispanic

and black legal

community is due

to the camaraderie

and the spirit of joy that prevails.

The Matrimonial Bar strives to

stay current in the ever changing law

through legislation and case law.

What’s most important to the mem-

bers is to get to know their fellow

attorneys and judges, who practice

matrimonial law and to share the tri-

als and tribulations with each other.

There is a strong esprit de corps

among the attorneys who work in

this emotionally charged and com-

Photo by Barry Smolowitz

Donna England

Glenn P. Warmuth

(Continued on page 25)

(Continued on page 27)

Pro Bono Recognition

Night

Thursday, Oct. 29, at 6 p.m.

Captain Bill’s Restaurant, Bay

Shore

The SCBA’s Pro Bono Foundation

working in concert with

Nassau/Suffolk Law Services will

honor the pro bono attorneys who

assist the poor and disabled in our

community.

SCBA’s Holiday Party

Friday, Dec. 11, from 4 to 7 p.m.

Bar Center

Celebrate the season with friends

and colleagues at the SCBA’s

annual holiday get together.

Being a SCBA

Member is Important!

Our Mission

“The purposes and objects for which the Association is established

shall be cultivating the science of jurisprudence, promoting reforms

in the law, facilitating the administration of justice, elevating the

standard of integrity, honor and courtesy in the legal profession and

cherishing the spirit of the members.”

The Suffolk Lawyer

USPS Number: 006-995) is published monthly except July and August by Long Islander

News, LLC, 14 Wall Street, Huntington, NY 11743, under the auspices of the Suffolk

County Bar Association. Entered as periodical class paid postage at the Post Office at

Huntington, NY and additional mailing offices under the Act of Congress. Postmaster

send address changes to the Suffolk County Bar Association, 560 Wheeler Road,

Hauppauge, NY 11788-4357.

SUFFOLK LAWYER

LAURA LANE

Editor-in-Chief

Leo K. Barnes, Jr.

Alison Arden Besunder

Elaine Colavito

Ilene S. Cooper

Robert Flynn

Hillary A. Frommer

James G. Fouassier

Justin Giordano

Candace J. Gomez

Robert M. Harper

Andrew Lieb

David A. Mansfield

Patrick McCormick

Lance R. Pomerantz

Lisa Renee Pomerantz

Craig D. Robins

Allison C. Shields

Barry Smolowitz

Stephen L. Ukeiley

Louis Vlahos

Frequent Contributors

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

of The Suffolk Lawyer, The Suffolk County Bar Association, the SuffolkAcademy of Law, and/or any

of the respective affiliations of these organizations.

Publisher

in conjunction with

The Suffolk County Bar Association

The Suffolk Lawyer is published monthly, except for the months

of July and August, by Long Islander News under the auspices of

The Suffolk County Bar Association. © The Suffolk County Bar

Association, 2015. Material in this publication may not be stored

or reproduced in any form without the express written permission

of The Suffolk County Bar Association. Advertising offices are

located at Long Islander News, 14 Wall Street, Huntington, NY

11743, 631-427-7000.

Send letters and editorial copy to:

SUFFOLK LAWYER

560 Wheeler Road

Hauppauge, NY 11788-4357

Fax: 631-234-5899

Website: www.scba.org

To Advertise in

The Suffolk Lawyer

Call

631-427-7000

T H E

T HE

Suffolk County

Bar Association

560 Wheeler Road • Hauppauge NY 11788-4357

Phone (631) 234-5511 • Fax # (631) 234-5899

E-MAIL: SCBA@SCBA.ORG

Board of Directors 2014-2015

Donna England .............................................................................President

John R. Calcagni .................................................................President Elect

Patricia M. Meisenheimer............................................First Vice President

Justin M. Block........................................................Second Vice President

Lynn Poster-Zimmerman..............................................................Treasurer

Hon. Derrick J. Robinson.............................................................Secretary

Leonard Badia ....................................................................Director (2016)

Cornell V. Bouse.................................................................Director (2016)

Jeanette Grabie ...................................................................Director (2016)

Peter C. Walsh ....................................................................Director (2016)

Vincent J. Messina, Jr.........................................................Director (2017)

Luis Antonio Pagan ............................................................Director (2017)

Richard L. Stern .................................................................Director (2017)

Daniel J. Tambasco.............................................................Director (2017)

Harry Tilis...........................................................................Director (2018)

Robin S. Abramowitz .........................................................Director (2018)

Laura C. Golightly..............................................................Director (2018)

Robert M. Harper ...............................................................Director (2018)

Arthur E. Shulman......................................Past President Director (2016)

Dennis R. Chase..........................................Past President Director (2017)

William T. Ferris........................................Past President Director ( 2018)

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

SCBA

OF ASSOCIATION MEETINGS AND EVENTS

All meetings are held at the Suffolk County Bar Association

Bar Center, unless otherwise specified. Please be aware that

dates, times and locations may be changed because of con-

ditions beyond our control. Please check the SCBA website

(scba.org) for any changes/additions or deletions which may

occur. For any questions call: 631-234-5511.

Calendar

Important Information from the Lawyers Helping Lawyers Committee

Thomas More Group

Twelve-Step Meeting

Every Wednesday at 6 p.m.,

Parish Outreach House, Kings Road - Hauppauge

All who are associated with the legal profession welcome.

LAWYERS COMMITTEE HELP-LINE: 631-697-2499

NOVEMBER 2015

05 Thursday Animal Law Committee, 5:30 p.m., EBT Room

05 Thursday Bench Bar Committee, 6:00 p.m., Board Room

06 Friday Academy of Law meeting, 7:30 a.m., Board Room

09 Monday Executive Committee meeting, 5:30 p.m., Board

Room

10 Tuesday Surrogate’s Court Committee, 6:00 p.m., Board

Room

11 Wednesday Officers closed – Veterans Day

12 Thursday Elder Law Committee, 12:15 p.m., Great Hall

16 Monday Board of Directors meeting, 5:30 p.m., Board Room

17 Tuesday Young Lawyers Committee meeting, 6:00 p.m., EBT

Room

18 Wednesday Education Law Committee, 12:30 p.m., Board Room

18 Wednesday Leadership Development Committee, 6:00 p.m.,

Board Room

19 Thursday Neuroscience & The Law Committee, 6:00p.m.,

Board Room

DECEMBER 2015

01 Tuesday Surrogate’s Court Committee, 6:00 p.m., Board

Room

04 Friday Academy of Law meeting, 7:30 a.m., Board Room

07 Monday Executive Committee Meeting, 5:30 p.m., Board

Room

10 Thursday Elder Law Committee meeting, 6:00 p.m., Great Hall

11 Friday SCBA’s Holiday Party, featuring the Just Cause

Band, 4:00 p.m. – 7:00 p.m. All invited to attend.

14 Monday Board of Directors meeting, 5:30 p.m., Board Room

2 THE SUFFOLK LAWYER – NOVEMBER 2015

Write for The Suffolk Lawyer

Did you ever wonder how you could get involved in your bar association’s month-

lynewspaper? Do youhavea great idea for an article orbelieve your colleagues would

benefit from information you’ve recently learned? Or do you just enjoy writing?

You too can writeforTheSuffolkLawyer. Writing for the paper is open to all mem-

bers and doing so is encouraged. The Suffolk Lawyer is a reflection of the fine mem-

bers that belong to the Suffolk County Bar Association. Why not get involved? For

additional information please contact Editor-in-Chief Laura Lane at

scbanews@optonline.net or call (516)376-2108. Look forward to hearing from you!

________________

By Vesselin Mitev

Ask a lawyer, or another lawyer, or a

law school student, or your plumber’s

assistant, what rights, if any, grandpar-

ents have when it comes to child cus-

tody or visitation, and you are liable to

get four different answers, all of which

are likely to be incorrect.

The popular “jailhouse” answer is

that grandparents have essentially no

rights to even visit their grandchildren;

this is statutorily wrong (true at com-

mon law and no longer so), but never-

theless the pervasive, popular view.

Two laws govern these proceedings:

Domestic Relations Law Section 72

and Family Court Act Section 651,

with DRL 72 providing the relevant

language:

“1. Where either or both the parents

of a minor child, residing within this

state, is or are deceased, or

where circumstances show

that conditions exist which

equity would see fit to inter-

vene, a grandparent or the

grandparents of the child

may apply…” to the court

for visitation “rights,” pro-

vided such visitation is in

the child’s best interests.

Subsection (2) also provides a catch-

all clause of “extraordinary circum-

stances,” which puts the onus on the

grandparents to demonstrate, “to the

satisfaction of the court,” the existence

of such circumstances (left undefined,

except for one such circumstance),

which is defined as:

“a prolonged separation of the

respondent parent and the child for

at least twenty-four continuous

months during which the par-

ent voluntarily relinquished

care and control of the child

and the child resided in the

household of the petitioner

grandparent or grandpar-

ents…”

with the clarification that

the court may find such

extraordinary circumstances even

where the separation was less than two

years.

So what happens when a run-of-the-

mill petition is brought by a grandpar-

ent alleging that said grandparent has

not had visitation with the grandchil-

dren (but not any extraordinary cir-

cumstances), but both parents are alive,

and one parent objects to visitation? In

such a case, none of the statutory auto-

matic triggers apply, since neither par-

ent is “deceased,” nor has there been a

continuous separation from the parents

and the children.

Regardless of which side of the peti-

tion one finds themselves, the next step

is, although mandatory, many times

glossed over either due to unfamiliari-

ty with the law, or simple expedience

in disposing of a case: the court,

according to the court of Appeals

Emanuel S. v. Joseph E., must first

determine the issue of standing before

making any further determination.

In other words, before the court makes

any inquiry into whether or not visitation

would be in the child’s best interests, the

court must first determine whether the

path to the courthouse is even available

to the petitioner grandparent. In the

above example, since both parents are

alive and the children live with the par-

ents, only the “equity” clause of DRL

Section 72 remains as an option.

A Grandma’s Boy? In New York, Unlikely

THE SUFFOLK LAWYER – NOVEMBER 2015 3

_____________

By Laura Lane

You didn’t go to law school after

obtaining a bachelor’s degree, right?

No. I was actually doing some account-

ing work, but I made thedecision to go to

law school while I was going throughmy

own divorce. I watched the attorneys,

how they worked together and with the

courts. There were things I didn’t like

about the process and I thought if I was

an attorney maybe I could effect change

and be of assistance to the clients.

So were you totally committed after

your divorce to become an attorney? I

considered getting a graduate degree in

teaching but then I thought of applying

to law school to see if I could get in.

When I did get into Touro I thought it

was meant to be. Had I not gone through

the divorce I’m not sure if I’d have made

my way to the legal profession.

Was there anyone instrumental in

mentoring you?Professor Silvermanran

the Family Law Clinic at Touro. He was

of great assistance in helping me to

become involved in the intern and extern

programs. I ended up interning at

Nassau/Suffolk Law Services where I

met Margaret Schaesler, who later asked

me to work in their domestic violence

unit. Margaret is one of the best lawyers I

know and had a huge influence on what

type of lawyer I am today.

Backtracking, what did you do as an

intern at Nassau/Suffolk Law Services?

I worked in the Law Clinic and under the

supervision of an attorney worked on

orders of protection. Students would go to

court on behalf of clients and litigate with

the supervising attorney there. I got to be

anattorneybeforeI wasone.Itwasa great

experience and I got plenty of court expe-

rience. I also signed up for a class where I

was able to work in the Family Court

Clinic to do child support litigation.

What do you enjoy about being an

attorney? Every day is an adventure

filled with surprises, no matter how

much you prepare. I enjoy the contact

with my clients and my colleagues. I

enjoy getting the resolution of the case,

settling the case one way or another.

As a litigator in the matrimonial and

family law arena do you find you

need to overcome any challenges? It

can be disenchanting. The clients, who

are often from difficult socioeconomic

situations, are there for a reason and you

try to get done what needs to be done.

You need to know your boundaries and

make sure the job doesn’t affect your

personal life.

You stayed at Nassau/Suffolk Law

services for three years. Why did you

leave? Margaret left as supervising attor-

ney and funding was always an issue

since it is a non-profit. They weren’t sure

what unit would continue. I went to work

for attorney Thomas Campagna who had

an excellent reputation. I learned a great

deal from him working as an associate.

He had a big caseload, which was an

excellent teacher.

In 2007 you began your own practice.

Yes, that was always a dream of mine. I

have gotten a lot of exposure in the last

two jobs so I thought it was time to

hang out my shingle. There were chal-

lenges, financial for one, because now I

wasn’t getting a steady paycheck.

When I moved into the suite in

Hauppauge Margaret was there. She

threw some work my way. Then the

Family Court assigned me to the coun-

sel panel and the Law Guardian panel. I

represented children for the first time.

You closed your office when an

opportunity to be a law clerk came

your way for Justice John C. Bivona.

Why? I thought I’d regret it if I didn’t.

It was such a unique appointment to be

in the matrimonial part and be a

Supreme Court Justice law clerk. I

actually was surprised I was picked.

Why? I had been in his courtroom as an

attorney and law guardian but the posi-

tion was competitive. When I accepted

the job I knew Justice Bivona’s term

would be up in a few years. At 76 he’d

have to retire, so I knew the job was for

a limited amount of time. Working for

him was wonderful. The only reason

why I left was because I wasn’t com-

fortable waiting to see if another posi-

tion would be open after he retired. Last

June I went back to my own practice.

How did you get involved in the

SCBA? I used to go to the Academy’s

CLEs but then one of the co-chairs of the

Matrimonial Committee asked if I’d be a

co-chair. I did that twice.Then I gotmore

involved on the Bench Bar Committee,

which was great. Donna England was on

the Executive Board at the time and sug-

gested I consider applying for a board

position. I was turned down the first time

but decided to try again to be a director. I

was chosen this year.

How has your experience been as a

director? It’s been great. I believe mem-

bers need a voice and being on a com-

mittee or a director you can accomplish

what needs to be changed. I am meeting

people from different areas of law as a

director, which I wasn’t able to do

before on the committees. It’s opened up

my legal professional network.

What do you like about being a mem-

ber of the SCBA? Membership offers

many benefits and support. You receive

support from your colleagues. There are

manycommitteesandtaskforcesworking

on issues that members have. The SCBA

should be an attorney’s go-to organization

to help make us better attorneys.

Any other reasons why you’d recom-

mend people join? It’s important to

belong to an organization like the

SCBA. If you practice in Suffolk you

want to take advantage of what the bar

association has to offer. It’s hard

because people are busy, but that

shouldn’t prevent you from being a

member and being as active as you can

be. I’ve been lucky. The people I’ve

worked with over the years have gotten

me where I am today; including those

I’ve known at the SCBA.

MeetYour SCBA Colleague

Laura C. Golightly

, a Hauppauge sole practitioner, and a litigator focusing

on matrimonial and family law, entered the legal profession for the love of it and to help others.

Laura C. Golightly

MATRIMONIAL/FAMILY

Vesselin Mitev

(Continued on page 25)

4 THE SUFFOLK LAWYER – NOVEMBER 2015

________________

By Elaine Colavito

SUFFOLK COUNTY SUPREME

COURT

Honorable Paul J. Baisley, Jr.

Motion to renew granted; law office

failure as reasonable justification for fail-

ure to present facts on prior motion; upon

renewal, motion for partial summary

judgment on issue of liability granted.

In Steven J. DeMartino v. Thomas E.

DiFolco and Kevin W. Gruber, Index No.:

68753/2014, decided on September 30,

2015, the court granted plaintiff’s motion

for renewal of his prior motion for sum-

mary judgment and upon renewal granted

partial summary judgment on the issue of

liability.

By order dated June 8, 2015, this court

denied a motion by plaintiff for partial

summary judgment in his favor on the

issue of liability, finding that plaintiff,

whose affidavit stated that he and defen-

dant were traveling in the same direction

at the time of the accident, failed to meet

his prima facie burden of eliminating tri-

able issues from the case. Plaintiff now

moved for leave to renew and reargue,

arguing that the statement contained in

his previously submitted affidavit that he

and the defendant were traveling in the

same direction at the same time of the

accident was a typographical

error. In support of his applica-

tion, he now submitted a cor-

rected affidavit, which stated,

in pertinent part, that the acci-

dent occurred when the defen-

dant attempted to make a left

turn from the westbound lane

of Montauk highway into a

nearby gas station and struck

the side of plaintiff’s motorcy-

cle, which was traveling on the east

bound side of the roadway.

In rendering its decision, the court

noted that a motion for leave to renew was

based upon new facts not offered on the

prior motion that would change the prior

determination and must contain a reason-

able justification for the failure to present

such facts on the prior motion. In granting

the motion to renew, the court concluded

that law office failure was a reasonable

justification. Upon renewal, the court

granted partial summary judgment on the

issue of liability finding that a driver who

had the right-of-way was entitled to antic-

ipate that other drivers will obey the traf-

fic laws requiring them to yield the right-

of-way to an oncoming vehicle.

Motion for summary judgment denied;

material issue of fact existed with regard to

the training of Target employees as to the

production, sales and service of

Starbucks coffee and whether

Starbucks had supervisory con-

trol over the manner and

method that the Target employ-

ees served Starbucks coffee.

In Lisa Ann Finti v. Target

Corporation and Starbucks

Corporation d/b/a Starbucks,

Index No.: 5797/2014, decided

on May 7, 2015, the court

denied the motion by defendant, Starbucks

Corporation s/h/a Starbucks Corporation

d/b/a Starbucks.

In rendering its decision, the court

noted that plaintiff commenced this

action to recover damages for personal

injuries she allegedly sustained when a

cup of coffee spilled onto her left hand at

the Starbucks counter located within the

South Setauket Target store. The com-

plaint alleged in pertinent part that the

defendant, Starbucks, owned and operat-

ed a coffee shop within the Target store

and the failure to properly train its per-

sonnel caused an extremely hot cup of

coffee with an improperly placed lid to

spill and burn plaintiff.

Starbucks moved for an order granting

summary judgment in its favor on the

grounds that it did not own, manage, con-

trol, maintain or employ any personnel at

the subject property at the time of plain-

tiff’s accident. Plaintiff opposed the

motion maintaining that substantial issues

existed with regard to the operation and

control of the Starbucks located within

the Target store. The court noted that the

parties’ submissions established that the

relationship between Target and

Starbucks was governed by a licensing

agreement. Unfortunately, that agreement

had not been provided as defendants’

maintained that it was a trade secret and

proprietary in nature.

In denying the motion, the court noted

that an affidavit was submitted wherein it

was stated that Starbucks was solely

owned, operated, managed, maintained

and staffed by Target, but conceded that

Starbucks provided training to Target

baristas. Here, plaintiff demonstrated that

a material issue of fact existed with

regard to the training of Target employees

as to the production, sales and service of

Starbucks coffee and whether Starbucks

had supervisory control over the manner

and method that the Target employees

served Starbucks coffee.

Honorable Peter H. Mayer

Plaintiff affirmatively placed her phys-

ical and mental issue in condition; docu-

ments sought by defendants were materi-

al and necessary to defense.

BENCH BRIEFS

(Continued on page 24)

Elaine Colavito

___________________

By Stephen L. Ukeiley

It is well established under federal law

that a felon may not possess a firearm (see

18 U.S.C. § 922(g)). However, the statute

omits any instruction on how to dispose of

the firearms following conviction. Thus,

the issue arises whether a defendant may

sell or otherwise transfer a firearm post-

conviction without court approval. In what

appears to be a case of first impression, the

United States Supreme Court held unani-

mously, with limited restrictions, that a

defendant has the right to oversee the dis-

posal of his or her firearms post-felony

conviction.

Convicted felons may not possess

weapons

As a general matter, at the conclusion of

a case the court may authorize the return of

property obtained in connection with the

investigation to its rightful owner or

designee (see, e.g.,Rufu v United States, 20

F.3d 63 [2d Cir 1994]). However, Congress

placed restrictions on the court’s ability to

return firearms with the enactment of 18

U.S.C. § 922(g). Section 922(g) makes it

unlawful for a convicted felon to possess a

firearm and/or ammunition. Under federal

law, a “firearm” is defined as “any weapon

(including starter gun) which will or is

designed to or may readily be converted to

expel a projectile by the action of an explo-

sive” or the frame or receiver of any such

weapon, a firearm muffler or silencer, or

any destructive device, including, but not

limited to, bombs, grenades and propelled

rockets with a charge in excess

of four (4) ounces (18 U.S.C. §

921(3),(4)).

The felony conviction need

not be related to a weapons

charge to invoke the mandatory

post-conviction relinquish-

ment. Towards this end, section

922(g) succinctly states that a

defendant convicted of any

felony is prohibited from “pos-

sessing” or “receiving” a firearm or

ammunition. The transfer of the firearm

is made more complex where the govern-

ment is in possession of the weapon or

where the defendant surrendered the

firearm as a condition for his release

pending trial. The latter was the situation

in Henderson v United States where the

defendant, after serving his prison sen-

tence, moved the court to have the

firearms delivered to his friend, who

intended to purchase them from the

defendant. Alternatively, the defendant

requested that they be transferred to his

wife.

The underlying facts of the case were

straightforward. The defendant was a for-

mer U.S. Border Patrol agent charged

with felony distribution of marijuana.As a

condition for his release, the defendant

turned over to the FBI more than one

dozen firearms with an estimated value of

$3,500 (135 S.Ct. 1780 [2015]; see Sam

Hananel, Supreme Court Says Convicted

Felons Can Sell Their Guns, , May 18,

2015). When the defendant later plead

guilty to the felony distribution of the

marijuana charge, the court was

prohibited from returning the

firearms to defendant (see 18

U.S.C. § 922(g). The District

Court further refused to transfer

the guns to either defendant’s

wife or to the friend of defen-

dant. The federal court opined

that permitting the defendant to

dictate where the firearms

would be transferred was tanta-

mount to defendant’s continued “posses-

sion,” albeit constructively, of the guns

which is expressly prohibited by law (135

S.Ct. 1780).

The legislative intent behind section

922(g) was to ensure that felons did not

possess firearms for fear they would not

use them in a responsible manner (Small

v United States, 544 U.S. 385 [2005]). In

Henderson, the Supreme Court presum-

ably granted certiorari to resolve the split

on this issue in the Circuits. The Second

(New York), Fifth (Louisiana) and

Seventh Circuits (Illinois) had held that a

similar transfer of firearms was permitted

pursuant to section 922(g), while the

Eighth (Missouri) and Eleventh Circuits

(Georgia) prohibited such transfers.

In Henderson, the parties agreed that a

“felon cannot evade the strictures of §

922(g) by arranging a sham transfer that

leaves him in effective control of his guns”

(Henderson, 135 S.Ct. at 1780). However,

the defendant argued although the law pro-

hibited him from “possessing” a firearm, it

in no way, expressly or impliedly, deprived

him of his right to own firearms or restrict

his ability to transfer, discard or otherwise

dispose of his property. The government

countered that the transfer of firearms to a

friend, associate or close family member

contravenes the spirit and intent of section

922(g) as it was likely probable that the

defendant would select recipients who

were willing to grant him access to the

firearms beyond the purview of the court.

In other words, the government sought an

order that excluded the defendant from the

transfer process altogether, and, in the

process, eliminated the temptation of

defendant having control or influence over

the firearms.

Gun transfer or sale

The Supreme Court limited its deci-

sion to matters where the court was in

possession of the firearms at issue, or

otherwise capable of supervising their

transfer, following a felony conviction.

In those circumstances, Justice Kagan,

writing for the unanimous court, rea-

soned that 18 U.S.C. § 922(g) merely

prohibited possession of firearms and

ammunition, actual and constructive.

Accordingly, provided the trial court was

satisfied that the intended recipient,

whether an independent gun dealer or

individual, was legally permitted to pos-

sess the weapons and would not grant

defendant access or influence over them,

then the court may heed the wishes of the

defendant and transfer the firearms to the

recipient of defendant’s choosing

(Henderson, 2015 U.S. at 3199, *13-14).

INSIDE THE COURTS

(Continued on page 24)

Stephen L. Ukeiley

Post-Felony Conviction Transfer of Firearms

THE SUFFOLK LAWYER – NOVEMBER 2015 5

____________________

By Sarah Jane LaCova

The Suffolk County Bar Association

held its annual Judiciary Night at the

Larkfield in East Northport on

October 8, 2015. This year was a very

special event, as the Board of

Directors chose to honor our former

Chief Administrative Judge, the

Honorable A. Gail Prudenti, one of

“our own” – a long time member of

the Association who has had an

extraordinary judicial career. Justice

Prudenti has entered a new chapter in

her life bringing her love of the law

and public service experiences to the

Maurice A. Dean School of Law at

Hofstra University.

More than 200 members and

guests of the Association attended

the memorable evening to honor

Judge Prudenti and the members of

Suffolk County’s judiciary, who have

dedicated themselves to public serv-

ice on the bench. Justice Prudenti

acknowledged some of members of

the judiciary she has known and

worked with over the years. In par-

ticular, we would like to thank our

Presiding Justice Randall T. Eng,

who braves the Long Island

Expressway for hours to come to our

special events, and our District

Administrative Judge C. Randall

Hinrichs for his dedicated service to

the citizens of Suffolk County and

for his continued friendship to the

Bar Association.

SCBA President Donna England

said Judiciary Night is always a spe-

cial occasion, and we are so very for-

tunate to have in our county a dedicat-

ed and engaged judiciary committed

to professionalism, compassion and

the administrative of justice.

Many kudos to the Larkfield, whose

chefs prepared culinary magic for our

guests and we appreciated how the

maitre d’ and staff worked so diligent-

ly and were always courteous and

cooperative. They all contributed to

making our Judiciary Night a spectac-

ular evening.

Enjoying Judiciary Night from left was, Justices Randy Sue Marver and William B. Rebolini,

District Administration Judge C. Randall Hinrichs and past SCBA President Arthur E. Shulman.

Join our Leadership

Nominating Committee Seeks Candidates for

SCBA 2016-17 Board of Directors

Each year the membership of the SCBA elects a President Elect, two Vice

Presidents, a Treasurer, Secretary and four Directors. The Directors’ terms

are for three years, and the officer positions are for one year. The next elec-

tion will take place on Monday, May 2. 2016 at the SCBA’s Annual Meeting.

The Nominating Committee is now seeking nominations for the

Directors’ positions (four with terms expiring 2019). The basic require-

ments for eligibility for election to the Board of Directors is that the person

has to be an active member of the association for at least five years and a

member of a committee, task force, recognized foundation of the associa-

tion, an officer of the Suffolk Academy of law, or any combination thereof,

for at least four years during such period.

If you are interested and willing to assume an active leadership role in the

SCBA, please send your resume addressed to the SCBA Nominating

Committee, Attn: Arthur E. Shulman, at Bar Headquarters or email

[email protected].

— Jane LaCova, Executive Director

The Suf folk Lawyer wishes to thank

Professional Liability Defense Special

Section Editor Vincent Messina for

contributing his time, ef fort and expertise

to our November issue.

SCBA Honors Judiciary and

Former Chief Administrative

Judge Hon. A. Gail Prudenti

Photo by Barry Smolowitz

6 THE SUFFOLK LAWYER – NOVEMBER 2015

_______________

By Jarrett Behar

When an architect performs work on

a project and does not get paid, his or

her remedies are not limited to suing the

client for breach of contract. The New

York Lien Law provides a powerful

additional tool for the unpaid architect,

especially when the project involves an

investment property or a construction

loan that needs to be refinanced post-

completion. While a mechanic’s lien

can be filed on both private and public

projects, this article will focus on pri-

vate projects for non-governmental enti-

ties. These types of projects generally

come in two forms so far as a mechan-

ic’s lien is concerned: a commercial

project and a single-family dwelling.

Benefits of filing a lien

The major benefit of filing a

mechanic’s lien is that the architect’s

right to be paid will be secured by the

real property that he or she worked to

improve. Thus, to the extent that the

client does not have any assets and

cannot pay the architect’s fee, in the

event that there is equity in the real

property, the architect would be able to

foreclose on the lien and get paid from

the proceeds of an eventual foreclosure

sale. That right can be an

effective tool in assisting an

architect in getting paid

from an unwilling client.

In addition, to the extent

that the client is not the owner of the

real property, the mechanic’s lien will

provide an architect with an additional

party from which to seek payment. The

only caveat is that the architect will

want to ensure that his or her contract

with the non-owner client specifically

states that the work is being performed

with the real property owner’s consent

or, even better, has the owner’s signed

acknowledgement that this is the case.

This will prevent a future claim from

the owner that the work was performed

without his or her consent, which could

invalidate the lien.

Mechanic’s liens will take priority

over any mortgage that has not yet been

recorded as of the date that

the lien was filed. As a result,

an owner seeking to refinance

a construction loan would

likely have to deal with any

outstanding mechanic’s lien

prior to obtaining new financ-

ing. Similarly, a new owner

would take subject to out-

standing mechanic’s liens if

they were not satisfied prior to

or at closing.

All mechanic’s lienholders on a

piece of real property take in propor-

tion to each other regardless of when

the individual liens are filed. So, for

example, if a piece of real property was

worth $2 million and had a pre-existing

$1 million mortgage, then there would

be a pool of $1 million from which all

mechanic’s lienholders would get paid.

In this example, if an architect had a

$200,000 mechanic’s lien out of $2

million in total liens, then the architect

would recover 10 percent of the $1

million pool available for the mechan-

ic’s lienholders for a total of $100,000.

Types of services covered

Essentially, mechanic’s liens are

intended to cover labor and services

provided in the course of permanently

improving a piece of real

property. The term

“improvement” is a

defined term and specifi-

cally includes “the draw-

ing by any architect or engineer or sur-

veyor, of any plans or specifications or

survey, which are prepared for or used

in connection with such improve-

ment…” In addition, although not

specifically identified in the Lien Law,

courts have held that mechanic’s liens

also cover construction supervision or

superintending. It does not, however,

cover costs incurred for the solicitation

of bids and the securing of contractors

and subcontractors.

As a result, in addition to being able

to file a lien for all of the work that the

architect performs designing the proj-

ect, to the extent that the architect is

also charged with project supervision

responsibilities – for exam-

ple, reviewing and approving

contractor applications for

payment — the costs for

these services may be includ-

ed in the lien amount.

What the lien needs to

state

The preparation of a Notice

of Mechanic’s Lien can be

technical, and it is encouraged that

architects use their counsel to ensure

that it is done properly. That being

said, the notice should state:

a.) The name and address of the

lienor (in this case, the architect);

b.) The name and address of the

lienor’s attorney, if any;

c.) The name of the client;

d.) The name of the owner of the real

property and the interest of that

owner (for example, “fee simple”);

e.) A description of the labor per-

formed or materials furnished;

f.) The agreed value or price for the

labor and/or materials and the

amount unpaid for each;

g.) The dates that the first and last

items of work were performed

and/or materials were furnished;

h.) A description of the property sub-

ject to the lien, usually by address

and block and lot if available; and

i.) A notarized, signed verification

by the lienor or his agent that the

statements contained in the lien

are true to his or her knowledge,

except as to matter stated to be

alleged on information and belief,

and that as to those matters he or

she believes it to be true.

When and where you need to file

the lien

If the real property is a “single-fami-

ly dwelling,” then an architect has four

months from the last date that services

were rendered to file the Notice of

Mechanic’s Lien with the clerk for the

county in which the real property is

located. For all other private projects, an

architect has eight months from the last

date that services were rendered to file.

If that date falls on a weekend or a pub-

lic holiday, the filing may be completed

on the next succeeding business day.

The lien needs to be filed in the

office of the county clerk where the

real property is situated. Then within

five days before, or 30 days after the

filing, the lien needs to be served on

the owner and the client (if different)

by, among other methods, certified or

registered mail addressed to the

owner’s and client’s last known place

of business. An affidavit attesting to

such service should be filed with the

same county clerk no later than 35

days after the notice was filed.

How long the lien lasts

The mechanic’s lien will be valid for

one year from the date of filing. Other

than for a lien on a single-family

dwelling, a lienor may obtain a single

one year extension as of right by filing

an extension with the county clerk. For

any extensions of a lien on a single-

family dwelling, or for a second exten-

sion on other real property, a court

order extending the lien must be

obtained. If no legal proceeding to fore-

close on the lien is brought prior to

expiration of the lien, then the lien will

automatically expire.

Enforcing the lien

Assuming that the simple filing and

service of the lien does not get the

architect paid, he or she will have to

commence a legal proceeding to fore-

close on the lien prior to the lien’s

expiration. The architect can include

breach of contract and related claims in

the same lawsuit, even if the client and

the property owner are separate parties.

When the suit is commenced, a Notice

of Pendency will also have to be filed

with the county clerk. This notice puts

the world on notice of the architect’s

secured claim against the real property

and operates to protect that secured

interest during the pendency of the

lawsuit, even after the lien would have

otherwise expired.

A mechanic’s lien can be a powerful

tool in assisting an architect in getting

paid on a particular project. The

requirements of the lien law are highly

technical and it is recommended that

an architect have counsel prepare, file

and arrange for enforcement of the

lien, especially when a large amount of

unpaid fees hangs in the balance.

Particular attention should be paid to

the client’s and/or owner’s financing

requirements. In the event that the

architect has not been paid a significant

amount and believes that the owner is

in the process of obtaining financing or

refinancing secured by its real proper-

ty, it is advisable to file a lien as soon

as practicable to ensure that there is

sufficient equity in the property to sat-

isfy the architect’s claim.

Note: Jarrett M. Behar is a member

of the law firm Sinnreich Kosakoff &

Messina LLP. He practices in the areas

of commercial litigation, construction

law and professional liability defense,

and has represented architects in the

filing of mechanic’s liens and prosecu-

tion of lien foreclosure and related

contractual claims. For additional

information concerning this article or

other issues of significance to archi-

tects, please feel free to contact Jarrett

M. Behar at jbehar@skmlaw.net.

Jarrett Behar

Mechanics’ Liens 101

FOCUS ON

PROFESSIONAL

LIABILITY

DEFENSE

SPECIAL EDITION

Academy Happenings

Bankruptcy forms are changing

Find out the latest on Thursday, Dec. 3 from 5 to 7 p.m. Light supper and 3

credits.

New Maintenance Rules Legislation

Be aware of these important new rules on Tuesday, Dec. 1, from 6 to 9 p.m.

Light supper and 3 credits.

BRIEFS

THE SUFFOLK LAWYER – NOVEMBER 2015 7

SIDNEY SIBEN’S AMONG US

On the Move…

David Welch of

Huntington has joined the

law firm of Roe Taroff &

Taitz in Bohemia as an asso-

ciate.

Joshua D. Brookstein has

joined the firm of Sahn Ward

Coschignano, PLLC as an associate.

Mr. Brookstein concentrates his prac-

tice in litigation and appeals, criminal

defense, zoning and land use, and

municipal law.

Announcements,

Achievements, &

Accolades…

Karen Tenenbaum, tax attorney of

the Melville tax law firm, Tenenbaum

Law, P.C., was recently quoted in two

articles featured in Bloomberg BNA’s

Daily Tax Report, “Does NewYork State

Overreach in Its Tax Enforcement?” and

“New York Practitioners Look for

‘Moderate’ Policies as New Tax

Commissioner Confirmed.”

Jaime Linder of Tenenbaum Law,

P.C., wrote an article on the topic of

“E-Commerce in New York State:

Sales Tax Tips” that was published by

Avalara, a company that provides

cloud-based sales tax compliance

solutions.

Karen Tenenbaum, Yvonne Cort

and Brad Polizzano of Tenenbaum

Law, P.C., recently spoke on the topic

of “Coping with Levies, IRS Liens,

and NYS Warrants” for the New York

State Society of Enrolled Agents,

Nassau/Suffolk Chapter.

James F. Gesualdi, P.C., celebrated

the one-year anniversary of “Excellence

Beyond Compliance: Enhancing

Animal Welfare Through the

Constructive Use of theAnimalWelfare

Act,” Maurice Bassett (2014), challeng-

ing everyone to work together towards

excellence in animal welfare by asking

one simple question, What can we do

TODAY to improve the well-being of

animals? (Named Finalist, 2014

National Indie Excellence® Book

Awards, Animals/Pets category.) For

more information on Gesualdi and his

book go to http://excellencebeyond-

compliance.com/

Congratulat ions…

For the second consecutive

year Genser Dubow Genser

& Cona was honored by

HIA as a finalist of the

BusinessAchievementAward,

small business category.

Frederick K. Brewington

of The Law Offices of Frederick K.

Brewington has been selected to the

list of New York Metro Super

Lawyers for 2015. He was recognized

in the practice areas of Civil Rights,

Criminal Defense and Employment

Litigation: Plaintiff.

James M. Wicks, a partner at

Farrell Fritz has been selected to the

2015 New York – Metro Super

Lawyers Top 100 list. This is the

third consecutive year Jim was

selected for inclusion. He has been

selected to the Super Lawyers list

annually since 2008 in the Business

Litigation practice area.

Condolences…

To the family of Acting Family

Court Judge, the Honorable Philip

Goglas on the recent passing of his

father, William Goglas. Please send

condolences to Hon. Philip Goglas, 39

Oak Street, Central Islip, NY 11722.

To the family of Howard Wurman

who died suddenly. We send our con-

dolences to Rochelle, Robert Wurman

and his colleagues.

To the family of Justice Peter J.

Graham who died on October 13.

Justice Graham was the longest-

serving judge in the history of the

Village of Port Jefferson, taking the

bench in 1983.

It is with deep sorrow that we

report the passing of Rose Marie

Czygier, wife of Suffolk County’s

Surrogate’s Court Judge the

Honorable John M. Czygier, Jr. In

lieu of flowers, donations may be

made to either of the following

organizations in Rose Marie’s

name: East End Hospice, P.O. Box

1048, Westhampton Beach, N 11978

or Peconic Bay Medical Center

Foundation, 1300 Roanoke Avenue,

Riverhead, NY 11901, checks made

payable to PBMC Foundation.

Jacqueline Siben

To Advertise in

The Suffolk Lawyer

Call

631-427-7000

8 THE SUFFOLK LAWYER – NOVEMBER 2015

_________________

By Michael Stanton

Is an architect required to discover,

interpret and explain a restrictive

covenant as part of the duties she or he

owes to a client? Under the facts pre-

sented in a pending Supreme Court,

Nassau County case, the answer is no.

In Quinn v. Marzovilla.

, the plaintiff

homeowners sought declaratory and

injunctive relief against their defendant

neighbors. The plaintiffs alleged that

the defendants’ planned home renova-

tion violated the terms of a restrictive

covenant dating from 1950 that was

entered into among the then owners of

six adjoining lots bordering Reynolds

Channel in Long Beach, New York.

After the defendants’ reno-

vation resulted in the poten-

tial encroachment beyond

the limits of the restrictive

covenant, a restraining

order was issued stopping work. The

restraint was ultimately lifted, and the

defendants were permitted to proceed

with their renovation. The court, how-

ever, cautioned the defendants that they

proceeded at their own risk,

as there was no question that

they had notice of the restric-

tive covenant because it

appeared in their title report

when they purchased the

property. Accordingly, the

defendants were left with the

prospect of suspending work,

or moving forward under the

understanding that they could

be forced to tear down their work if the

covenant were ultimately enforceable.

The defendants opted to commence a

third-party suit against their architect,

under the theory that the architect had

committed professional malpractice by

allegedly failing to discover, interpret

and explain to the defen-

dants the legal significance

of the restrictive covenant

at an early stage of their

home renovation.

According to the defendants, the archi-

tect had a legal and professional duty to

discover, interpret and explain the

restrictive covenant in providing archi-

tectural services to the defendants.

The architect appeared in

the action and immediately

moved for summary judg-

ment. He submitted an expert

affidavit asserting that archi-

tects have no particular

expertise in discovering and

analyzing legal land use

restrictions, and therefore

have no duty to explain any

such restrictions to their

clients. Even assuming any such duty

existed however, the architect further

claimed that he discharged any such

obligation simply by advising the

homeowners of the covenant’s exis-

tence. Moreover, he argued that the

homeowners were chargeable with

notice of the restrictive covenant

because it appeared in their title report

when they purchased the property.

The Supreme Court, Nassau County

held that the homeowners had notice of

the restrictive covenant through their

title report, meaning their architect was

not liable for his alleged failure to dis-

cover, interpret and explain the restric-

tion. The court also held that the plain-

tiffs had not submitted an expert affi-

davit indicating that architects in gener-

al have a professional obligation to

ascertain the existence and legal signif-

icance of land use restrictions. As such,

the court awarded the architect summa-

ry judgment dismissing the complaint.

Although the court did not go so far

as to hold that architects in general

have no duty to discovery, interpret and

explain land use restrictions, it did find

that no such duty existed under the

facts presented in this case.

NOTE: Michael Stanton is an asso-

ciate with Sinnreich Kosakoff &

Messina, LLP, and has a broad range

of litigation experience. Mr. Stanton

joined the firm in 2014, and handles all

aspects of litigation in federal and

state courts. His practice involves

commercial litigation, municipal law,

and the representation of design pro-

fessionals. He can be reached at,

mstanton@skmlaw.net.

Supreme Court, Nassau County Index No.:

12199/2013

No Liability to Architect for Failing to Explain Restrictive Covenant

_________________________

By Annalee J. Cataldo-Barile

In a decision rendered more than

two decades ago by the Court of

Appeals of the District of Columbia,

the court observed that “[e]xcept in the

middle of a battlefield, nowhere must

men coordinate the movement of other

men and all materials in the midst of

such chaos and with such limited cer-

tainty of present facts and future occur-

rences as a huge construction project.”

In considering issues related to con-

struction litigation, the court was

merely recognizing the inherent prob-

lems associated with construction, and

the likelihood that such projects will

invariably lead parties to the steps of

the courthouse.

Given the inherent con-

flicts associated with con-

struction, it must be under-

stood that architects, engi-

neers and land surveyors

face risks every time they undertake to

perform professional services.

Unfortunately for design professionals,

unlike other professionals in New York

State, their exposure never ceases.

Although, New York State has a

Statute of Limitations of three years

for claims of negligence by an owner

against a design professional, design

professionals are never truly relieved

of responsibility for project services

performed at any point in their careers.

Specifically, New York law allows

third parties who have suf-

fered injuries as the result of

improper professional servic-

es to institute a lawsuit

against architects, engineers

or land surveyors subject to

limited exceptions, within

three years of the date of per-

sonal injury, wrongful death

or property damage. In

effect, design professionals

who provide services in New York

State may remain exposed to claims by

parties other than the party who hired

them indefinitely. For example, the

architect of the Empire State Building

can be sued for personal injury that

occurs today and which arises from the

original design services.

In neighboring states,

including Connecticut and

New Jersey, legislatures

have enacted laws creating

definitive time limitations

for pursuing claims against design pro-

fessionals. No other New York State

professionals face the same continuous

exposure, which effectively serves to

haunt architects, engineers and land

surveyors well into their retirement

years.

In an effort to minimize the expo-

sure of design professionals, NewYork

State promulgated Section 214-d of the

Civil Practice Law and Rules known as

the Statute of Repose. By virtue of this

statute, a third-party pursuing claims

against an architect, engineer

or land surveyor, who last

provided services more than

10 years ago, must establish

by substantial evidence the

existence of a valid claim in

order to pursue an action

against the architect, engi-

neer or land surveyor.

Although this statute is help-

ful, it can be easily overcome,

thus creating a continuous exposure for

the design professional. Conversely,

New Jersey has adopted a Statute of

Repose, which provides that no claim

can be pursued against a design profes-

sional that last provided services more

than 10 years ago. While, Connecticut

has a similar Statute of Repose pre-

cluding claims against design profes-

sionals for services provided more than

eight years ago. The clear language of

the legislation adopted in New Jersey

and Connecticut ultimately serves to

free the design professional from the

never ending exposure currently facing

design professionals in NewYork.

Absent a meaningful modification

to the current state of the law in New

York, the design professional will

never be relieved from potential expo-

sure for any project. It is for this rea-

son that architects, engineers or land

surveyors would be well advised to

press the Legislature to address this

apparent inequity.

Note: Annalee J. Cataldo-Barile has

over 25 years’experience as a litigator

and is a partner with the law firm of

Sinnreich Kosakoff & Messina LLP.

She is the General Counsel to the New

York Society of Architects. Ms.

Cataldo-Barile is also an affiliate

member of The American Council of

Engineering Companies (“ACEC”) of

New York - Long Island Chapter and

focuses her practice on representing

architects, engineers and land survey-

ors in litigation and by providing con-

tract reviews throughout the New York

Metropolitan area and Long Island.

She may be reached at (631) 650-1200

or abarile@skmlaw.net.

The Never Ending Exposure of Design Professionals

Michael Stanton

Annalee J.

Cataldo-Barile

FOCUS ON

PROFESSIONAL

LIABILITY

DEFENSE

SPECIAL EDITION

FOCUS ON

PROFESSIONAL

LIABILITY

DEFENSE

SPECIAL EDITION

Be prepared at Academy programs

Materials for all Academy programs are provided online in digital format,

available for download in PDF format. Printed materials are available for

an additional charge.

THE SUFFOLK LAWYER – NOVEMBER 2015 9

____________

By Lisa Perillo

New York City Administrative Code

(“Code”), Title 28, Chapter 7, §§

3309.4, 3309.4.1 and 3309.1 require

certain protections for adjoining prop-

erties or structures during excavation

work. If buildings are “adjoining,”

Code Section 3309.4 provides that:

Whenever soil or foundation work

occurs, regardless of depth of such, the

person who causes such to be made

shall, at all times during the course of

the work and at his or her own expense,

preserve and protect from damage any

adjoining structures, including but not

limited to footings and foundations,

provided such person is

afforded a license in accor-

dance with the require-

ments of Section 3309.2 to

enter and inspect the

adjoining buildings and property, and to

perform such work thereon as may be

necessary for such purpose. If the per-

son who causes the soil or foundation

work is not afforded a license, such duty

to preserve and protect the adjacent

property shall devolve to the owner of

such adjoining property, who shall be

afforded a similar license with respect

to the property where the soil tor foun-

dation work is to be made.

The predecessor of this

code provision was interpret-

ed as imposing strict liability

on the “person who causes”

the excavation – usually the

building owner and the gen-

eral contractor. There is some

legal precedent interpreting

this revised section as simi-

larly imposing strict liability.

As such the “persons” to whom this

Section applies may be liable regard-

less of the care exercised.

If so,

whether or not adequate precautions

were taken to protect against damage

may simply be immaterial to liability.

It appears that the question is yet

unsettled as to whether a

design professional involved

in an excavation project can

be strictly liable as a “person

who caused” the excavation

in question. There is legal precedent for

finding a design professional, like an

architect or an engineer, can be subject

to strict liability.

However, there is also

contrary authority focusing on the prop-

erty owner and the contractor perform-

ing the work.

At the very least this issue

presents a question of fact affecting the

likelihood of success of a motion for

summary dismissal and careful review

of the scope of the design professional’s

involvement in the planning of

the excavation work should be

analyzed and considered.

NOTE: Lisa Perillo is an

associate at Sinnreich Kosakoff

& Messina, LLP. She joined

the firm in 2011 and concen-

trates her practice in commer-

cial and real property/land-use

litigation, as well as municipal and con-

struction law, and the representation of

design professionals. Ms. Perillo is

admitted to the New York Bar as well as

theSouthernandEasternDistrictofNew

York; and is a member of the New York

State andSuffolk CountyBarAssociations.

See Yemen Corp. v. 281 Broadway Holdings,

18 N.Y.3d 481 (2012); and Am. Security v.

Church of God of St. Albans et al., 230 Misc. 3d

274, 956 N.Y.S.2d 799 (Sup. Ct. Queens 2012).

Am Security, 230 Misc. 3d, at 280 (finding the

architect who prepared the excavation plan was

a “person who causes an excavation to be

made” and liability would also attach); and Am.

Sec. Ins. Co. v. Church of God of St. Albans, 42

Misc. 3d 1218(A), 984 N.Y.S.2d 630 (Sup. Ct.

2014) (same).

See, 87 Chambers, LLC v. 77 Reade, LLC, 122

A.D.3d 540, 541, 998 N.Y.S.2d 15, 17 (1

Dep’t 2014) (finding that the design profession-

al at issue (there an architect): “was not ‘the

person who caused an excavation or fill to be

made’ within the meaning of that provision [§

3309.4]’. Indeed, BKSK was neither the owner

of the 77 Reade Street property nor the contrac-

tor who performed the excavation.”).

Be Aware of the Potential for Strict Liability in Actions Relating to Excavation

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10 THE SUFFOLK LAWYER – NOVEMBER 2015

______________________

By Ilene Sherwyn Cooper

Appellate Division-Second

Department

Attorneys censured

David Grossman: By affirmation

on notice to the respondent, the

Grievance Committee advised the court

that the respondent entered a plea of

guilty in the District Court, Suffolk

County, to driving while impaired by

drugs, an unclassified misdemeanor.

By decision and order, the court, on its

own motion, authorized the Grievance

Committee to institute a disciplinary

proceeding against the respondent and

the matter was referred to a Special

Referee. The referee sustained one of

the two charges against the respondent.

The Grievance Committee and the

respondent moved, and cross-moved,

respectively, to affirm, in part,

and disaffirm, in part, the ref-

eree’s report. The court sus-

tained the referee’s report as

to the charge that was sus-

tained, and found that he

improperly declined to sustain

the second charge against the

respondent. In his plea, the

respondent admitted that he

operated a motor vehicle after ingesting

cocaine, for which he was sentenced to

three years probation, fined and sur-

charged, and had his license revoked

for a period of six months.

In determining the appropriate

measure of discipline to impose, the

court considered the isolated nature of

respondent’s conduct, his voluntary

efforts at rehabilitation, the testimony

of character witnesses, and his

unblemished disciplinary record.

Accordingly, under the total-

ity of circumstances, the

respondent was publicly cen-

sured for his professional

misconduct.

Attorneys disbarred

DavidWarren Denenberg:

On January 21, 2015, upon a

plea of guilty in the United

States District Court for the Eastern

District of New York, the respondent

was convicted of eight counts of mail

fraud. Conviction of a felony under fed-

eral lawis essentially similar to the New

York felony of grand larceny in the sec-

ond degree. Accordingly, by virtue of

his conviction of a felony, the respon-

dent ceased to be an attorney and was

automatically disbarred from the prac-

tice of law in the State of New York.

Raymond G. Lavallee: On February

27, 2015, the respondent pled guilty in

the Supreme Court, New York, to con-

spiracy in the fourth degree, a class E

felony. As a result, the Grievance

Committee moved to strike the respon-

dent’s name from the roll of attorneys.

The respondent neither opposed the

motion nor submitted any papers in

response. Accordingly, by virtue of his

conviction of a felony, the respondent

ceased to be an attorney and was auto-

matically disbarred from the practice of

law in the State of New York.

Note: Ilene S. Cooper is a partner

with the law firm of Farrell Fritz, P.C.

where she concentrates in the field of

trusts and estates. In addition, she is

past President of the Suffolk County Bar

Association and past Chair of the New

York State Bar Association Trusts and

Estates Law Section.

COURT NOTES

__________________

By Jarrett M. Behar

In 1996, the New York State

Legislature amended the New York

State Civil Practice Law and Rules to

apply a three year limitations period to

all non-medical malpractice actions,

regardless of whether they were based

on breach of contract or tort. Thus,

except for the unusual circumstance

where an architect specifically agrees

in his or her contract to produce a spe-

cific result, i.e. some sort of govern-

ment approval, LEED certification,

etc., a claim will be untimely if it is

brought by the client more

than three years after the

relationship with the archi-

tect ended.

Note that this does not

mean three years from the end of con-

struction if the architect’s relationship

with the client ends sooner. For exam-

ple, the architect’s contract may only

extend to the design phase of the con-

tract, or the relationship may

be terminated prior to the

contemplated end of services

due to a dispute. In any

event, it is always advisable

to issue some sort of written

communication specifically

acknowledging the date on

which the architect’s engage-

ment is complete. Sometimes

a matter of one day can be the differ-

ence between being exposed in a law-

suit and being able to have a potential

matter dismissed, or not even com-

menced, as time barred.

The caveat to that is what

is known as the “continu-

ous treatment doctrine.”

Even though an architect

has completed his or her

services for a client, the three year

statute of limitations can be extended

(or “tolled” in legal terminology).

This can occur if the architect contin-

ues to consult with the client or pro-

vide services on the project

and has the potential to

extend the statute of limita-

tions through the end of that

consultation.

The most common area

where this comes up is when

a potential issue arises with a

project after the architect has

completed his or her work,

and the architect returns to the project

to consult on potential corrective

action. Even if the consultation or

potential corrective action does not

relate directly to the architect’s original

services, the door can be opened to the

argument that the three-year statute of

limitations has been extended and did

not start to run until the end of that

consultation.

As a result, once an architect’s serv-

ices are complete, the architect should

think twice about returning to the

project, especially when returning

involves some sort of problem that has

arisen. This is especially true where

the time to initiated claim has nearly

run out and going back would revive a

claim that would have otherwise been

untimely. It is advisable that an archi-

tect that is contemplating consulting

on a previously completed project

consult with his or her attorney before

returning to the site, performing any

services, or issuing a preliminary

opinion or advice.

Note: Jarrett M. Behar is a member

of the law firm Sinnreich Kosakoff &

Messina LLP. He practices in the areas

of commercial litigation, construction

law and professional liability defense,

and has represented architects in the

filing of mechanic’s liens and prosecu-

tion of lien foreclosure and related

contractual claims. For additional

information concerning this article or

other issues of significance to archi-

tects, please feel free to contact Jarrett

M. Behar at jbehar@skmlaw.net.

Make Sure You Let the Clock Run Out on Potential Malpractice Claims

FOCUS ON

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DEFENSE

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Jarrett Behar

Ilene S. Cooper

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THE SUFFOLK LAWYER – NOVEMBER 2015 11

__________________

By Hillary Frommer

This summer, the Court of Appeals

determined whether a trial court abused

its discretion by permitting an expert

witness to testify beyond the scope of

his qualifications.

In People v Inoa,

the defendant was

indicted and tried for the murder of two

individuals. The People’s theory was

that the defendant and the victims were

rivals in the drug business, and that the

defendant sought to reclaim his drug

territory from the victims. As part of

their case in chief, the prosecution pre-

sented the testimony of several wit-

nesses, including a police detective

(Detective Rivera) who had been

involved in the overall investigation

and ultimate “take down” of the drug

gang with which the defendant was

allegedly affiliated. Detective Rivera

testified about his familiarity with

many of the gang members, including

the lingo they used and their speaking

voices. The prosecution also had the

court qualify Detective Rivera as an

expert in decoding telephone conversa-

tions. In that context, Detective Rivera

testified about the meaning of certain

code words, which the jury

heard from wiretaps. In his

expert capacity, Detective

Rivera also interpreted cer-

tain conversations that were

not encoded.

The defendant was ulti-

mately convicted of murder

and he appealed. On appeal,

the defendant argued that the

detective’s expert testimony

as to non-encoded conversations was

beyond the scope of permissible expert

testimony because he was “essentially

a summation witness, put on the stand

to tie together all the strands of the

prosecution’s case for the jury much as

a prosecutor would in summing up.”

The appellate division disagreed, find-

ing that the trial court properly

received the detective’s expert testimo-

ny, but stated that even if parts of the

testimony was erroneously admitted,

the error was harmless.

Although the decision to admit

expert testimony is discretionary, and

reviewable by the state’s highest court

“only where discretion has not been

exercised or has been abused,” the court

granted leave to appeal to the Court of

Appeals finding in cases, like

this one, “in which an expert

so palpably overtakes the

jury’s function to decide mat-

ters within its unaided com-

petence, that abuse may be

found.”

That being said, the

court affirmed the Appellate

Division’s decision.

The court first noted that

there is nothing categorically

improper about introducing a police

offer as an expert witness in a criminal

trial, but it did note a gross difference

between cases where the expert police

witness was actually involved in the

criminal investigation and those where

the expert policed officer was wholly

uninvolved. The court further noted that

if Detective Rivera had been qualified

only to testify as to encoded messages,

there would be no issue with his testi-

mony, as such testimony is the proper

subject for an expert. However, the

detective’s testimony presented as

problematic because he was qualified

to testify as to conversations generally,

which enabled him, as an expert, to

explain “the meaning of virtually

everything that was said” on the record-

ed conversations, regardless of whether

they were encoded.

In beginning its

analysis, the court then considered two

cases decided by the Second Circuit,

which a police officer involved in the

criminal investigation also testified as

an expert witness, and gave testimony

beyond the scope of his expertise. The

court noted two problems with the

expert testimony in those cases: the

experts premised their testimonies on

inadmissible hearsay, which violated

the defendant’s constitutional right to

confront the witnesses against him; and

the police experts essentially instructed

the jury on how to resolve the factual

issues presented. The Court of Appeals

discussed whether those two factors

were present in the case before it.

It first found that the defendant in

Inoa did not have a constitutional

“confrontation” problem because the

principal out-of-court statements that

Detective Rivera relied on in his testi-

mony came from witnesses who also

testified at trial and were subject to

cross-examination. As to the second

consideration, the court noted that

Detective Rivera testified about very

WHO’S YOUR EXPERT

(Continued on page 22)

Court of Appeals Affirms Abuse in Admitting Expert Testimony

Refuses to Vacate Criminal Conviction

Hillary A. Frommer

12 THE SUFFOLK LAWYER – NOVEMBER 2015

_______________

By Peter H. Mayer

Commencing in 2013, the Supreme

Court part over which the undersigned

presides was designated as an Office of

Court Administration (OCA) early set-

tlement conference part for all medical

malpractice cases where Physicians

Reciprocal Insurers (PRI) was the

responsible carrier. Typically, these

would include all institutional defen-

dants included within the North Shore-

Long Island Jewish system as well as all

attending physicians covered by PRI.

The genesis of the program came

about as a result of a meeting between

Chief Administrative Judge C. Randall

Hinrichs, myself, and representatives

of the plaintiff’s bar, as well as a sepa-

rate meeting with representatives of

Physicians Reciprocal Insurance and

the North Shore LIJ system. The proto-

cols of the program were designed

after careful consideration of the input

provided by these stakeholders.

There is no requirement that the case

be either pre note or post note as any

case, regardless of status, may be

placed on the calendar. Moreover, par-

ticipation in the program is entirely

voluntary. The Court conducts these

conferences every six to eight weeks

on Thursday afternoons, with

the calendar consisting of no

more than five or six cases.

The program began with its

first conference on May 30,

2013 and has continued

through the time of this writ-

ing. Present at these confer-

ences are the lawyers repre-

senting the parties and the

claims representative for PRI

as well as, from time to time, risk man-

agement representatives from an insti-

tutional party.

Certain prerequisites must be met

before any case can be calendared. As

most practitioners know, most all med-

ical malpractice policies covering indi-

vidual physicians are “consent” poli-

cies, meaning that the carrier represen-

tative and/or his or her counsel are pre-

cluded from entering any settlement

conversations unless the insured physi-

cian consents in writing to such discus-

sions and the potential settlement of

the claim. Obviously the court cannot

and will not calendar any such case

unless the carrier or defense counsel

has first obtained such consent.

Secondly, the defendant or defen-

dants’ carriers and their lawyers have

to have at least reached the conclusion

that the case has some degree

of monetary value that they

are willing to pay to settle the

case. There is no minimum

dollar amount required, but

rather, a determination before

seeking the court’s assistance

that there is money in the file.

Finally, in multi defendant

cases, the individual and/or

institutional defendants must

have determined their percentage of

the global responsibility before coming

to court. This court has had a number

of experiences where a settlement has

been reached globally, only to then

have the co defendants fighting over

what percentage of the total they are

willing to absorb. Very often these

squabbles are based on jealousies

between the parties or carriers and

have nothing to do with the evidence in

the case. Therefore, the court insists

that this be determined before calen-

daring the matter and rendering assis-

tance.

All attorneys appearing on behalf of

a party must have full, complete, and

absolute authority to settle the claim on

the day of the conference. The parties

are not allowed to adjourn the case in

order to take the offer home in order to

discuss or reflect upon it. Although the

parties are encouraged to be in court,I

don’t insist upon it, but in lieu thereof,

lawyers must have immediate access to

the client in order to obtain their con-

sent. It is always a better practice, how-

ever, to have the number for settlement

in mind before arriving in court with

the client’s unqualified consent to set-

tle for that particular number. If the

number is lower than that for which

consent has been obtained, immediate

access is a necessity.

Having the party present facilitates

solutions to other problems that can

occur. Counsel, for example, may agree

that the number proposed is appropriate

for the case, but he or she is having

trouble convincing the client as the

client has an unreasonable belief as to

the value of the case. In these situa-

tions, the court is more than happy to

talk to the client with counsel in order

to bring him or her to a realistic under-

standing of the potential risks of going

to trial, the court’s assessment of the

value of the case, and evidentiary issues

that may bear upon these questions.

This part scheduled five cases on its

first set of conferences May 30, 2013

and held subsequent settlement confer-

MEDICAL MALPRACTICE

(Continued on page 22)

The Medical Malpractice Conference Part of Suffolk County

______________

By Louis Vlahos

We frequently hear about the many

wealthy foreigners who acquire invest-

ment interests in New York real prop-

erty and the complex tax considera-

tions relating to such investments. Yet,

we sometimes forget that there are

many US persons outside of N.Y. who

are drawn to an investment in N.Y. real

property for the very same reasons.

Every now and then, however, New

York’s Department of Taxation (the

“Tax Department”) reminds us that the

tax rules applicable to such an invest-

ment by a US person who is not a N.Y.

resident can be just as daunting.

A recent advisory opinion (TSB-A-

15(5)I) illustrated the application of

these tax rules. Taxpayer owned stock

in an S corporation operating in N.Y.

The S corporation owned N.Y. real

estate, and derived 69 percent of its

income from an active parking opera-

tion and 31 percent from real estate

rentals. The company had been in busi-

ness for over 20 years and had no plans

to liquidate. In 2012, the taxpayer, who

had been a resident of another state and

had never been active in the business,

sold her entire 33 percent interest in

the S corporation back to the

corporation pursuant to a

stock redemption plan and

received an interest-bearing

installment note from the cor-

poration as part of the pur-

chase price for the stock sale.

The taxpayer asked the Tax

Department whether the gain

from the stock redemption

and the interest income on the

installment note payments were sub-

ject to N.Y. personal income tax.

Disposing of intangible property:

an interest in N.Y. real property

In general, a non-N.Y. resident is

subject to N.Y. personal income tax on

his or her N.Y. source income that

enters into his or her federal adjusted

gross income. Tax Law § 631(a).

N.Y. source income is defined as the

sum of income, gain, loss, and deduc-

tion derived from or connected with

N.Y. sources. Tax Law § 631(b)(1). For

example, where a non-N.Y. resident

sells real property or tangible personal

property located in N.Y., the gain from

the sale is taxable in N.Y.

Under N.Y. tax law (the “Tax Law”)

(Sec. 631(b)(2)), income derived from

intangible personal property,

including interest and gains

from the disposition of such

property, constitute income

derived from N.Y. sources

only to the extent that the

property is employed in a

business, trade, profession, or

occupation carried on in N.Y.

20 NYCRR Sec. 132.5(b).

From 1992 until 2009, this

analysis also applied to the gain from

the disposition of interests in entities

that owned N.Y. real. TSB-M-92-(2)I.

However, in 2009, the Taw Law

(Sec. 631(b)(1)(A)(1)) was amended to

provide that items of gain derived from

or connected with N.Y. sources include

items attributable to the ownership of a

N.Y. interest in N.Y. real property.

For purposes of this rule, the term

“real property located in” N.Y. was

defined to include an interest in a part-

nership, LLC, S corporation, or non-

publicly traded C corporation with 100

or fewer shareholders that owns real

property located in N.Y. and has a fair

market value (“FMV”) that equals or

exceeds 50 percent of all the assets of

the entity on the date of the sale of the

taxpayer’s interest in the entity.

Only those assets that the entity

owned for at least two years before the

date of the sale of the taxpayer’s inter-

est in the entity are used in determining

the FMV of all the assets of the entity

on the sale date.

The gain or loss derived from N.Y.

sources from a nonresident’s sale of an

interest in an entity that is subject to

this rule is the total gain or loss for fed-

eral income tax purposes from that sale

multiplied by a fraction, the numerator

of which is the fair market value of the

real property located in N.Y. on the

date of the sale and the denominator of

which is the FMV of all the assets of

the entity on such date.

For most non-N.Y. residents, the rule

before the 2009 amendment would

have yielded the preferred tax result.

Nonresidents who owned interests in

partnerships, for example, and that had

gains on the sale thereof could, in many

cases, sell their partnership interests

without triggering N.Y. income tax.

The department’s opinion

The Tax Department determined that,

ifthe valuation conditions inthe Tax Law

were satisfied (Sec. 631(b)(1)(A)(1)), a

TAX

(Continued on page 22)

Investing in N.Y. Real Estate – It’s Not Just for Foreigners

Peter H. Mayer

Louis Vlahos

THE SUFFOLK LAWYER – NOVEMBER 2015 13

____________________

By Michael Pernesiglio

Fantasy sports is a multi-billion dol-

lar industry whereby individuals draft a

fantasy team and compete with others

for monetary awards. A fantasy team’s

performance is based on its player’s

real statistics, via point accumulation,

relative to the player’s real-life statis-

tics. There are many different ways a

fantasy league can be structured, how-

ever, a common practice is to have

weekly matchups against other league

members. The winner of the fantasy

league owns the best record over the

course of the regular season.

Some draw a strong comparison

between fantasy sports and online

sports gambling or online poker. In

2006, the Unlawful Internet Gambling

Enforcement Act was enacted

(“UIGEA”), which outlawed financial

companies from transferring money to

online gambling sites; however, so-

called “games of skill” were exempt-

ed.

It is under this exemption, which

launched two of the world leaders in

daily fantasy sports betting: Draft

Kings, Inc. and Fan Duel Inc. (collec-

tively referred as “Daily Fantasy Sports

Leagues”).

Before the creation of the

Daily Fantasy Sports Leagues

(“DFSL”), individuals owned

fantasyteams foran entiresea-

son. However, and based on

the exemption found in the

UIGEA, the DFSL innovated

fantasy sports by allowing

individuals to draft daily fanta-

sy teams. Now each day indi-

viduals can draft a fantasy

team forthat particularday and accumu-

late points based on their players’ per-

formances for that one day. Each team’s

potential earning capacity increases

with the more points a team scores.

For the first time ever, individuals

had the ability to earn a handsome liv-

ing by accurately predicting which

players would perform well for just

one day, as opposed to betting on the

outcome of games.As the popularity of

the DFSL’s grew, they began receiving

financial support and interest from pro-

fessional sports leagues such as Major

League Baseball

and owners of other

professional sports franchises such as

Robert Kraft of the New England

Patriots and Jerry Jones of the Dallas

Cowboys.

As such, the DFSL has

become a multi-billion dollar industry,

which is not subjected to any

outside regulation or govern-

mental control. However, as

the DFSL’s popularity

increases, there is a strong

need for government regula-

tion as there is simply too

much money exchanging via

the DFSL. For example, each

Sunday during National

Football League season, an

individual can enter a $20 league on

Draft Kings, Inc. and potentially win

$1.2 million.

Recently, the DFSL came “under

scrutiny when it was widely learned that

Draft Kings, Inc. employee, Ethan

Haskell, published data revealing what

players were included on most rosters.

The next day, September 28, 2015,

Haskell finished second in a million-dol-

lar fantasy contest on competing daily

fantasy site FanDuel and won

$350,000.”

Clearly this instance raised serious

issues as to the legitimacy and credibil-

ity of the DFSL. For starters, how did

this employee gain access to such valu-

able information and further, why are

employees of the DFSL even permitted

to participate in these fantasy contests

to begin with? Since the incident, Draft

Kings, Inc. conducted an “internal

investigation.” On October 9, 2015,

they announced that “While our inves-

tigation reflected absolutely no wrong

doing on our part, [the incident] has

still pushed us to reevaluate our

process.” As such, Draft Kings, Inc.

now prohibits employees from partici-

pating in any fantasy league on any

DFSL site, among other changes.

Regardless, what transpired is tanta-

mount to insider trading in that Haskell

obtained highly sensitive information,

which was not made readily available

to the public. With this information,

Haskell determined which players

were rarely selected by other compet-

ing entries and then tailored his team

around a group of rarely selected play-

ers, thus giving him an unfair competi-

tive advantage. Although Haskell’s

players still had to perform at a high

level to win, Haskell was basing his

selections on information that only he

had, and that only he obtained through

his employment at Draft Kings, Inc.

Further, the consequences of

Haskell’s illegitimate team extend far

beyond the issue of the improper disclo-

ENTERTAINMENT

(Continued on page 27)

The Need to Regulate Fantasy Sports

Michael Pernesiglio

Eric Naiburg is pleased to announce

the opening of offices for

the practice of Criminal Law at

185 Fair Street, Kingston, NY 12401

845-331-3334.

e-mail: [email protected]

Available for referrals in

Ulster, Greene, Delaware, Orange,

and Dutchess Counties.

14 THE SUFFOLK LAWYER – NOVEMBER 2015

______________

By Ellen Krakow

The Suffolk Pro Bono Project (the

Project) is very pleased to honor

Karen G. Silverman as its Pro Bono

Attorney of the Month for her contin-

uing commitment to pro bono on

behalf of our matrimonial and family

law clients.

Ms. Silverman has a solo practice in

Commack, New York, where she

exclusively represents clients in

divorce and family court matters. Her

law career, however, began in New

York City in 1987 as a commercial lit-

igation associate at Kronish Lieb

Weiner and Hellman (now Cooley

LLP). She worked at Kronish Lieb for

three years, before moving to Long

Island in 1990, where she started prac-

ticing matrimonial law at Labert Lang

& Willen. It was eight years later that

Ms. Silverman decided to go out on

her own, establishing the Law Offices

of Karen G. Silverman.

Originally from Pittsford, New

York, Ms. Silverman obtained a B.A.

from SUNY Albany in 1984 and a

J.D. from SUNY Buffalo in 1987.

Like many young attorneys who start

their careers in NewYork City, she left

Kronish Lieb and the city soon after

becoming a parent. Ms. Silverman is

grateful for the experience she had as

a junior litigation associate with a

large firm. “Kronish Leib taught me

how to write, and they trained me to

be meticulous and careful in my

work,” she explained. “It was a great

learning opportunity for a new

lawyer.”

Ms. Silverman has done over 180

hours of pro bono work for the

Project since taking her first case in

2003. She has also done a consider-

able amount of other pro bono work

outside of the Project over the years.

Asked why she devotes so much of

her practice to pro bono clients, she

replied, “It’s very important that we

help those less fortunate. The Project

allows me the chance to use the skills

I have to do that.”

Ms. Silverman finds the pro bono

work very rewarding, and in fact still

hears from time to time from one of

her past clients. This client was 18

had been forced out of her home by

her unstable mother when Ms.

Silverman took her case. She helped

the client obtain child support and

tuition assistance. The client went on

to graduate from the University of

North Carolina, Chapel Hill and now

works in New York City. Noted Ms.

Silverman, “That one was a real suc-

cess story!”

Ms. Silverman has had many suc-

cesses with her pro bono cases and is

a loyal contributor to the Project.

Maria Dosso, Director of

Communications and Volunteer

Services at Law Services, comment-

ed, “Karen never seems to hesitate to

take a case and jumps right in. We’re

very fortunate to have an attorney of

her caliber as an active participant in

the program with a strong desire to

give back.”

In addition to assisting the Project,

Ms. Silverman is involved with the

Mariposa Foundation DR. This organ-

ization promotes the education of girls

in the Dominican Republic. She has

traveled to the Dominican Republic

several times to see, firsthand, the

work being done there.

It is perhaps the fact that Ms.

Silverman is the mother of three

daughters that drew her to the

Mariposa Foundation. Her oldest

daughter, Samantha, who is 26,

earned her Bachelor’s degree from

SUNY Buffalo and plans to return to

nursing school and specialize in geri-

atric care. Her middle daughter,

Allison, 23, is a second year law stu-

dent, attending Fordham Law School

on scholarship. Allison interned last

summer for a federal judge and will

work as a summer associate at

Chadbourne & Parke in the upcom-

ing year. Her youngest daughter,

Rachel, is 21 and a senior at SUNY

Buffalo, with plans of attending den-

tal school after graduating.

Ms. Silverman lives in Huntington,

New York and is a member of the

Huntington Lawyers Club and the

Suffolk County Bar Association. She

is also a member, past president and

former director of the Matrimonial

Bar Association.

The Pro Bono Project greatly appre-

ciates all that Karen Silverman has

done on behalf of its clients over the

past two years and looks forward to

working together with her in the

future. It is with great pleasure that we

honor her as Pro Bono Attorney of the

Month.

The Suffolk Pro Bono Project is a

joint effort of Nassau Suffolk Law

Services, the Suffolk County Bar

Association and the Suffolk County

Pro Bono Foundation, who, for many

years, have joined resources toward

the goal of providing free legal assis-

tance to Suffolk County residents who

are dealing with economic hardship.

Nassau Suffolk Law Services is a non-

profit civil legal services agency, pro-

viding free legal assistance to Long

Islanders, primarily in the areas of

benefits advocacy, homelessness pre-

vention (foreclosure and eviction

defense), access to health care, and

services to special populations such

as domestic violence victims, dis-

abled, and adult home resident. The

provision of free services is prioritized

based on financial need and funding is

often inadequate in these areas.

Furthermore, there is no funding for

the general provision of matrimonial

or bankruptcy representation, there-

fore the demand for pro bono assis-

tance is the greatest in these areas. If

you would like to volunteer, please

contact Ellen Krakow, Esq. 631 232-

2400 x 3323.

Note: Ellen Krakow Suffolk Pro

Bono Project Coordinator Nassau

Suffolk Law Services.

PRO BONO

Pro Bono Attorney of the Month – Karen G. Silverman

___________________

By David A. Mansfield

The three-year anniversary of the

Department of Motor Vehicles perma-

nent revocation regulations is an appro-

priate time for a review of 15 NYCRR

Part §136.5 or the “three strikes” rule

for alcohol or drug related driving con-

victions or incidents which results in a

permanent revocation or denial of a

driver license/privilege application.

The regulations went into effect on

September 25, 2012. The “three strikes

rule” is applied to those individuals

with three or four alcohol/drug driving

related convictions or incidents within

25 years from the date of the most

recent revocable offense or the date

from the time when their license was

revoked but not restored.

15 NYCRR Part§136.5 provides a

25 year look back period for those

individuals applying for reinstatement

of their driver’s license after an alcohol

or drug driving related

license or privilege revoca-

tion. Administrative findings

of refusals to submit to a

chemical test not arising out

of a conviction on the under-

lying criminal charge have

the full force and effect of a

conviction as an alcohol or

drug related driving offense

within the meaning of the

regulations.

The 25-year look back period will

determine whether the revocation is

truly permanent.

The driving record must contain no

more than one or more serious driving

offenses, which is defined under Part

§136.5(a)(2) as either a fatal accident

or more than one five point or higher

violation, or the accumulation of 20 or

more points 15 NYCRR Part §131

within the look back period. Should

your client have three or four DWI

convictions or incidents and

not more than one serious

driving offense or a fatal

accident, the period of revo-

cation would be an additional

five years after the revocation

for the most recent convic-

tion or incident. Your client

would then be eligible to be

approved with a problem

driver restriction for five

years with a restricted-use license

under Vehicle and Traffic Law §530

and Part §135 and operation of a motor

vehicle with an ignition interlock

device §1198.

An individual with five or more alco-

hol/drug driving related incidents is

subject to lifetime driving record

review. Their license/privilege applica-

tion can only be approved if the

Department of Motor Vehicles finds

unusual, extenuating and compelling

circumstances.

The denial letters can be appealed

to the Driver Improvement Unit within

30 days of the date of the denial based

upon unusual, extenuating and com-

pelling circumstances. But experience

has shown that it is unlikely the

Department of MotorVehicles will grant

that application.

The appeal is sent in letterform to the

Department of Motor Vehicles Driver

Improvement Bureau outlining the

unusual, extenuating and compelling

circumstances that the application

should be granted. The better practice

is to send the correspondence by certi-

fied mail with a return receipt request-

ed. Only the Driver Improvement

Bureau can consider the unusual,

extenuating and compelling circum-

stances, which may apply in your

client’s case, to preserve the issues for

appeal and judicial review. A denial by

the Driver Improvement Bureau is

VEHICLE AND TRAFFIC

(Continued on page 26)

Review of the DMV Permanent License Revocation Regulations

David Mansfield

THE SUFFOLK LAWYER – NOVEMBER 2015 15

________________

By George Pammer

People do not normally ask them-

selves that question. Most students

that enroll in law school exhibit type A

personalities. We would add stress to

our lives as undergrads, waiting until

the final hour before starting a paper,

going to the best parties and sporting

events, all while managing to earn

strong grades. Stress was something

that everyone else had. You got this!

Then you began law school and the

world changed. Right now, most 1L’s are

preparing their Memorandum of Law

and the late hours are just beginning.All

of the research for the memo, along with

all the reading in your other classes, is

starting to take its toll. These are not the

only stresses that law students face.

Many students have responsibilities out-

side of paying a huge sticker price for

school, including other financial obliga-

tions, family issues and for some, even

childrenof their own. Students, especial-

ly those in evening programs, have other

stresses including a 40 hour workweek

on top of everything else. At times, the

weight of all this can feel like it is too

much to bear for one individual.

Some students will turn to drugs

and/or alcohol to try to relieve the

stress. “It is just a little something to

get over the hump,” they say, or “as

soon as the semester is over I will

stop.” Then they find themselves

using even more than when

they were in school.

Sometimes just asking for

help seems to be a huge

task in itself; it is as if they

almost have to admit they

cannot do it alone.

Newsflash; you can’t do

this alone!

Law school is a program

of “we.” It is here we join

study groups, we make new friends,

we discuss cases, we discuss research,

we sit in class, and we attend confer-

ences and school events. Honestly, in

law school, there is not much other

than final exams that you need to do

alone. Coping with stress is another

“we” activity.

The American Bar Association has

established “The Commission on

Lawyers Assistance Programs in an

effort to provide information on stress,

depression, alcoholism, drug addiction

and suicide. The ABA has developed a

“Substance Abuse and Mental Health

Toolkit for Law Students and Those

Who Care About Them.”

The com-

mission is a collaborative effort of the

ABA Law Student Division, the ABA

Commission on Lawyer Assistance

Programs (CoLAP) and the Dave Nee

Foundation. Some of the statistics that

the commission sites from a 2014 sur-

vey that they conducted are:

• 89.6 percent of respondents have

had a drink of alcohol in the

last 30 days.

• 21.6 percent reported binge

drinking at least twice in the

past two weeks.

• 20.4 percent have thought

seriously about suicide some-

time in their life.

• 6.3 percent have thought seri-

ously about suicide in the last

12 months.

• 17.4 percent of respondents screened

positive for depression with 20 per-

cent indicating that they has been

diagnosed with depression at some

time in their life.

• Roughly, one-sixth of those with a

depression diagnosis had received the

diagnosis since starting law school.

The New York State Bar Association

started the Lawyers Assistance

Program (LAP)

addressing issues such

as problem drinking, substance abuse,

depression, anxiety and stress. They

can be reached at 1.800.255.0569 or

email nysbalap@hushmail.com. These

resources are all confidential and are

there to help students and attorneys

cope with issues that can not only derail

your career, but may just save your life.

The NYSBA LAP reports warning

signs include, but are not limited to,

absenteeism, confusion and difficulty

concentrating, lowered efficiency, poor

relationships with colleagues, issues

with personal conduct, and issues with

family relations. Knowing the signs and

asking for help is not a sign of weak-

ness, but to the contrary, a sign of

strength. For those that may be suffer-

ing or have family members that are

suffering, it does not need to end badly.

There have been far too many instances

where these concerns end in suicide. A

permanent solution to a temporary

problem is never the answer. If you or

someone you know may be contemplat-

ing suicide, utilize the National Suicide

Prevention Lifeline, 1-800-273-TALK

(8255). This is available 24 hours a day,

7 days a week.

“None of us got where we are solely

by pulling ourselves up by our boot-

straps. We got here because somebody

bent down and helped us pick up our

boots.” Thurgood Marshall.

Note: George Pammer is a third year

law student at Touro Law School.

George is a part-time evening student

and the president of the Student Bar

Association. He has also held the posi-

tion of vice-president in the SBA as well

as in the Suffolk County BarAssociation

– Student Committee, where he was one

of the founding members.

“Substance Abuse and Mental Health Toolkit

for Law Students and Those Who Care About

Them.” It can be accessed at http://www.ameri-

canbar.org/content/dam/aba/administrative/lawy

er_assistance/ls_colap_mental_health_toolkit_n

ew.authcheckdam.pdf

http://www.nylap.org/

FUTURE LAWYERS FORUM

Can you Cope with Law School?

______________________

By Ilene Sherwyn Cooper

Summary Judgment in

Accounting Proceeding

In In re Lowe, the court was con-

fronted with an accounting by JP

Morgan Chase Bank as executor and

trustee of the trusts created under the

decedent’s will. Although objections to

the account were initially filed by the

decedent’s spouse, his daughter, and

his two grandchildren, after many

years of litigation all the objectants, but

for the decedent’s daughter, settled

with the fiduciary.

The decedent died on February 23,

1986, and his will was admitted to pro-

bate on April 4, 1986. Ancillary pro-

bate was granted in California on the

same date the will was admitted to pro-

bate in New York, and ancillary letters

testamentary issued to the corporate

fiduciary on June 6, 1986. The assets

of the decedent’s estate included a

valuable parcel of real property located

in California that was the subject of a

long-term lease agreement, which

expired on July 23, 2014. Pursuant to

the pertinent provisions of his will, the

decedent created several trusts for the

benefit of his wife, daughter and grand-

children. Significantly, the trust created

for the benefit of the decedent’s daugh-

ter provided for principal dis-

tributions to her in five equal

installments at stated ages,

commencing on December

27, 1989, and concluding on

December 27, 2009.

The thrust of the objec-

tions asserted by the daughter

were addressed to the fidu-

ciary’s failure to sell the real

property located in

California, which constituted

a portion of the principal of the testa-

mentary trust created for her benefit, as

well as legal fees and commissions.

More particularly, the objectant

claimed that the fiduciary’s retention of

the realty constituted a breach of fidu-

ciary duty, the payments to the fiducia-

ry’s counsel were unreasonable, and

that commissions or payments to the

fiduciary relating to the rents or man-

agement of the subject property were

excessive.

The fiduciary moved for summary

judgment dismissing the objections,

and any related claims for damages or

surcharges, and the objectant opposed

and cross-moved for summary relief in

her favor.

With regard to the principal issue

involving the California realty, the

record revealed that offers had been

made by a corporate purchas-

er to purchase the property as

early as 2005, for a gross sell-

ing price of $41,330,000.00.

Additional offers by the same

purchaser were thereafter

made, with the highest offer

being $43,750,000.00. After

the national decrease in value

in the real estate market, a

final offer by the purchaser, in

January 2009, was to pur-

chase the property for $34,000,000. 00.

Despite the foregoing, none of the fore-

going offers resulted in a sale of the

property. Indeed, the court noted that

although the fiduciary recommended to

the beneficiaries that the property be

sold, and although the decedent’s

spouse agreed to the sale, the dece-

dent’s daughter vigorously opposed

any sale, and even threatened to bring a

suit to enjoin any effort to bring a sale

to fruition. The daughter’s deposition

testimony confirmed that she objected

to any sale of the property and wanted

to keep it in the family in order to pre-

serve her father’s legacy. The court

found that since the daughter’s individ-

ual interest in the property vested upon

her attaining each of the ages set forth

in the testamentary trust for a distribu-

tion of principal, she had the power, as

a co-owner, to prevent its sale, and the

fiduciary, under California law, lacked

the authority to bind any of its co-ten-

ants to a contract of sale.

Accordingly, based upon the forego-

ing, the court held, as a matter of equi-

ty, that the decedent’s daughter could

not hold the fiduciary responsible for

its inability to sell the California prop-

erty, when it was her obstructionist

behavior that precluded its sale. The

court therefore held she was estopped

from contending that the property

should have been sold and granted the

fiduciary summary judgment dismiss-

ing the objections by the decedent’s

daughter on this issue.

On the other hand, the court denied

the fiduciary’s request for summary

relief on the issue of legal fees, finding

that the record was insufficient to

determine their reasonableness.

Finally, the court granted summary

judgment on the issue of commissions,

concluding that the objectant had failed

to demonstrate any basis for denying

commissions in their entirety, or for not

awarding same in the amount sought.

In re Lowe, NYLJ, June 16, 2015,

at p. 27 (Sur. Ct. Suffolk County).

Continued SCPA 1404 Examinations

TRUSTS AND ESTATES UPDATE

(Continued on page 26)

George Pammer

Ilene S. Cooper

16 THE SUFFOLK LAWYER – NOVEMBER 2015

____________________

By Lisa Renee Pomerantz

The Federal Arbitration Act, 9

U.S.C. §§1-16 established a national

policy favoring arbitration, and limited

the scope of judicial review of arbitral

decisions to determining whether basic

due process protections were afforded.

The only grounds for judicial vacating

of an award are:

• Where the award was procured by

corruption, fraud, or undue means;

• Where there was evident partiality

or corruption in the arbitrators, or

either of them;

• Where the arbitrators were guilty

of misconduct in refusing to post-

pone the hearing upon sufficient

cause shown, or in refusing to hear

evidence pertinent and material to

the controversy; or of any other

misbehavior by which the rights of

any party have been prejudiced; or

• Where the arbitrators exceeded

their powers, or so imperfectly exe-

cuted them that a mutual, final, and

definite award upon the subject

matter submitted was not

made.”

AAA rules and training

emphasize the importance of

maintaining arbitrator neu-

trality, providing a fair and

adequate process for the par-

ties to make their cases and

adhering to contractual limi-

tations on arbitral powers.

These fundamental principles were

ignored by Commissioner Roger

Goodell acting as the arbitral authority

in hearing New England Patriots quar-

terback Tom Brady’s appeal of his four

game suspension for his role in the

deflation of game balls in a playoff

game. As a result, Judge Richard

Berman granted the motion of the

National Football League Players

Association to vacate the award.

The NFL Collective Bargaining

Agreement governed the arbitration. It

permitted the commissioner to hear

disciplinary appeals, although in other

significant cases, such as the Ray Rice

domestic violence case, an

independent arbitrator was

appointed. Of note, prior to

the hearing, Goodell pro-

fessed confidence in the

results of the NFL’s investi-

gation that was the basis for

ruling on appeal. Although

the court did not explicitly

find that that Goodell was

“partial,” it did find that the

arbitral process prejudiced Brady and

that the arbitral decision exceeded the

scope of the parties’ agreement.

Specifically, Brady was denied

access to investigative files, including

witness notes, and also was denied the

opportunity to call as a witness one of

the lead investigators, the NFL’s

General Counsel. The NFL on the other

hand, had access to this information.

The court also found that the

Collective Bargaining Agreement did

not authorize the four game suspen-

sion. The only policy regarding equip-

ment tampering distributed to the play-

ers authorized fines and not suspen-

sions as punishment. Moreover, there

was no evidence that any player had

ever been punished for merely being

“generally aware” of the wrongful con-

duct of others, which was the factual

basis for the imposition of the penalty

in this case. The fact that the domestic

violence policy, which did not cover

this kind of infraction, specifically

authorized suspensions did not support

the conclusion that a suspension was

authorized in this case.

The court also found that Brady’s

action in disposing of his cell phone

and thereby obstructing the investiga-

tion did not warrant a suspension.

There was no written policy obligating

cooperation, and the arbitrator had

vacated the only prior decision impos-

ing a suspension for such obstruction.

Note: Lisa Renee Pomerantz is an

attorney in Suffolk County. She is a

mediator and arbitrator on the AAA

Commercial Panel and serves on the

Board of Directors of the Association

for Conflict Resolution.

ADR

Learning From National Football League Management Council v. National Football League Players Association

_____________

By Lilia Factor

New York’s Brownfield Cleanup

Program (“BCP”), whose goal is to

encourage private sector cleanups of

contaminated properties, has seen many

changes over the years. The latest

amendments took effect on July 1, 2015

and include changes to eligibility crite-

ria, tax credits and a new streamlined

program for lightly contaminated sites.

The old definition of a “brownfield

site” was “real property, the redevelop-

ment of which is being complicated by

the presence or suspected presence of a

contaminant.” As of July 2015, a

“brownfield” means “any real property

where a contaminant is present at lev-

els exceeding the soil cleanup objec-

tives or other health-based or environ-

mental standards, criteria or guidance

adopted by DEC that are applicable

based on the reasonably anticipated

use of the property, in accordance with

applicable regulations.” While the new

standard eliminates some of the discre-

tionary vagueness of the prior defini-

tion, it also means that applicants will

likely be required to do more environ-

mental testing, such as a Phase II

investigation, to show the levels of

contaminants on site. The costs of such

pre-application investigations are not

eligible for tax credits under the BCP.

The 2015 amendments create the

BCP-EZ program for lightly contami-

nated sites. This is intended to be a

streamlined program whose goal is to

give parties that only want a

liability release, and not the

tax credits, to conduct a

cleanup under Department of

Environmental Conservation

(“DEC”) oversight. This

option has not existed for

many years, ever since the

Voluntary Cleanup Program

had been phased out. The

DEC is currently drafting

regulations to be added to 6 NYCRR

Part 375 and estimates that the BCP-

EZ track will be available by the sum-

mer of 2016. It remains to be seen

whether some of the public notice and

review requirements, which character-

ize the regular BCP process, will be

revamped and consolidated to make

this option attractive for applicants.

The good news for current volun-

teers in the BCP is that they will no

longer be charged for state oversight

costs incurred as of July 1, 2015. These

costs add a heavy financial burden on

the party conducting the cleanup and,

unlike actual remediation costs, are not

subject to that party’s control. The

DEC’s bills, when they do come, are

poorly itemized and nearly impossible

to challenge.

The other critical component of the

BCP is the tax credits. A participating

site becomes eligible for tax credits

upon completing the cleanup and earn-

ing a Certificate of Completion (COC).

The 2015 amendments extend the dead-

line to earn a COC until December

2017 for sites accepted into

the program prior to June 23,

2008, and until December

2019 for sites accepted after

that date and before July 1,

2015. All of these sites can

apply for tax credits under the

old regime. On the other hand,

sites accepted into the BCP

from July 1, 2015 and before

2023 must obtain a COC by

March 31, 2026, and will be subject to

the new tax credit provisions.

The new rules include a restriction

on tax credits for sites located in New

York City. Specifically, in cities with

populations larger than 1,000,000, the

tangible property credit component

(TPCC) will only be available for sites

that meet one or more of three eligibil-

ity criteria: 50 percent or more of the

site is in an Environmental Zone, which

is a defined area with high poverty

and/or unemployment levels; the site is

financially “upside down” or is “under-

utilized;” or the site will be used for an

affordable housing project. In this con-

text, “upside down” means that the

cleanup costs are more than 75 percent

of the property’s appraised value as if

uncontaminated. “Underutilized” is

defined in proposed DEC regulations to

be finalized by July 2016.

The avail-

ability of tangible property tax credits

for properties outside of NewYork City

is not affected. However, there is now a

greater tax incentive to clean up sites in

designated Brownfield Opportunity

Areas, sites that are used for manufac-

turing, and sites that are being remedi-

ated to the highest — “unrestricted”

soil and groundwater cleanup stan-

dards, known as Track 1.

Another change involves the Site

Preparation Credit. Under the old rules,

this credit was available for certain con-

struction costs, such as the installation

of a foundation. Now, the only costs

allowed would be those directly associ-

ated with investigation, remediation or

qualification for a COC. This is still a

broad category that includes excava-

tion, demolition, PCB, lead and

asbestos removal, soil vapor mitigation,

dewatering and other costs. Sites

accepted into the BCP after July 1,

2015 will not be allowed to claim real

property tax and environmental remedi-

ation insurance credits, which were

rarely used.Also, payments of develop-

er fees can now only be claimed when

they are actually paid, not in advance.

The following sites are not eligible

for entry into the BCP: sites listed as

Class 1 or 2 in the Registry of Inactive

Hazardous Waste Disposal Sites where

a viable responsible party has been

identified; sites on the USEPA

National Priorities List (NPL); haz-

ardous waste treatment, storage, or dis-

posal facilities permitted under the

Resource Conservation and Recovery

Act that are owned by a viable respon-

sible party; sites subject to a cleanup

order under Article 12 of the

ENVIRONMENTAL

(Continued on page 20)

2015 Brownfield Cleanup Program Reform

Lilia Factor

Lisa Pomerantz

THE SUFFOLK LAWYER – NOVEMBER 2015 17

______________________

By Sarah J. Adams-Schoen

Local governments are often

referred to as “on the front line” of cli-

mate change adaptation. This charac-

terization makes sense given that

“[l]and use patterns are determined,

infrastructure is designed and provid-

ed, and many other development issues

are decided at the local level, where

natural hazards are experienced and

losses are suffered most directly.”

Furthermore, local governments have

an array of tools in their toolbox that

can help adapt their communities to

climate change-related conditions

including building codes; land use,

zoning, and subdivision regulations;

comprehensive, capital improvement,

transportation, floodplain manage-

ment, storm-water management, and

open space plans; facilities needs stud-

ies; population growth and future

development studies; and economic

development plans. Municipal regula-

tion of the form and placement of

building stock in particular offers an

opportunity to create more resilient

infrastructure and patterns of develop-

ment. But, failure to proactively plan

for rising seas, higher storm surges and

more frequent and intense storms will

result in further investment in infra-

structure and patterns of

development that, at best, fail

to adapt to hazards, and, at

worst, exacerbate hazards.

The current state of the

law, however, creates uncer-

tainty about whether munici-

palities have a duty to miti-

gate foreseeable climate

related hazards. The

International Panel on

Climate Change’s most recent projec-

tions suggest that failure to promptly

and aggressively mitigate and adapt to

climate change will significantly

diminish the ability of coastal commu-

nities to moderate harms like flooding

and foreclose some opportunities to do

so in the future. Given the clear role for

local governments in adaptation plan-

ning and implementation, some ques-

tion whether local governments will

soon face liability for failure to plan for

and implement hazard mitigation

measures.

Because the consequences

of destructive storms are foreseeable

and at least in part attributable to fail-

ures in the legal system, Professor

Maxine Burkett argues that local gov-

ernments could face tort liability for

failure to adapt to climate change.

So far, in the United States, plain-

tiffs’ claims against local governments

have not extended to negli-

gent failure to adapt to cli-

mate change. Rather, typical

claims have involved plain-

tiffs injured by flooding

alleging that the municipali-

ties’ negligent design, con-

struction, or operation of

flood control structures

caused the plaintiffs’

injuries.

Liability in these

cases has tended to hinge on whether

the municipality’s conduct was statuto-

rily immune, and, if it was not, whether

the plaintiffs proffered sufficient proof

of negligence and causation. In at least

one instance, plaintiffs injured by

flooding brought an action against a

county government claiming that the

county’s negligent regulation of devel-

opment on an adjacent property

caused plaintiffs’ damages.

The court

held that the county owed no duty to

homeowners to ensure that develop-

ment of an adjoining subdivision

would not create a risk of flooding the

homeowners’ property.

The Fifth Circuit ultimately rejected

tort theories of liability in the Katrina

litigation as violative of governmental

immunity under the Flood Control Act

and discretionary-function exception to

the Federal Tort Claims Act. But, in the

U.S. Court of Federal Claims case St.

Bernard Parish Government v. United

States, the court essentially expanded

Takings Clause liability to encompass

governmental negligence that exacer-

bates weather-related damage to proper-

ty.

Relying in large part on the U.S.

Supreme Court’s 2012 decision in

Arkansas Game & Fish Commission,

the court ruled in St. Bernard Parish

that the U.S. Army Corps of Engineers’

failure to properly maintain the

Mississippi River–Gulf Outlet (“MR-

GO”), a 76 mile long navigational chan-

nel constructed, expanded and operated

by the Corps, resulted in a taking of pri-

vate property without just compensation

in violation of the Takings Clause

because it exacerbated flood damage

from Hurricane Katrina and several sub-

sequent storms, and, although only tem-

porarily, wrongfully deprived landown-

ers of the use of their property. Because

St. Bernard Parish involved affirmative

governmental actions (i.e., negligent

expansion and maintenance of the navi-

gational channel), the case leaves open

the question of whether a government

entity could be liable for failing to pre-

pare for sea level rise, storm surges and

other climate-related risks.

Notwithstanding the lack of clarity in

TOURO

(Continued on page 31)

Municipal Liability for Failure to Adapt to Climate Change? Not Yet.

Sarah Adams-Schoen

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18 THE SUFFOLK LAWYER – NOVEMBER 2015

_____________________

By Lance R. Pomerantz

Proof of damages in diminished

value cases is typically as dry as a good

martini. Disputes usually center on cap-

italization rates, highest and best use, or

suitable comparators. In a recent

Connecticut case, however, the amount

of damages was affected by a dose of

Hollywood “Wow Factor.” First

American Title Insurance Company v.

273 Water Street LLC, Docket No.

35882 (Appellate Court, May 5, 2015).

The facts

In 2004, 273 Water Street, LLC

(“Water Street”) paid $6,000,000 for

3.5 acres of waterfront land in the

Town of Old Saybrook, Borough of

Fenwick (“the Borough”). The proper-

ty had formally been the summer home

of actress Katharine Hepburn. Water

Street also purchased title insurance.

Water Street was informed that the

Borough claimed title to a 30 foot wide

discontinued road that ran through the

property in February 2005. The title

insurer (“First American”) approved

the claim and promptly tendered a

check in the amount of $14,000 to

cover the diminution of value occa-

sioned by the defect. Water Street

refused the check, claiming damages of

approximately $5,000,000. First

American brought a declaratory judg-

ment action to determine the extent of its

obligations under the policy.

During the pendency of the

litigation, the parties negotiat-

ed with the Borough and

reached an accommodation

regarding the road. The

Borough agreed to convey fee

title to the 30 foot discontin-

ued road to Water Street,

which in turn conveyed to the

Borough a six-foot-wide lim-

ited-use easement in the same area.

Presumably, this arrangement reduced

the loss payable under the policy. The

jury nevertheless awarded $2.2 million

to Water Street.

The Glam Factor

On appeal, First American claimed

the trial court erred in admitting into

evidence opinion testimony of Frank

Farricker. Farricker, a real estate bro-

ker, was an “expert witness” for Water

Street, who advanced his theory of

‘‘celebrity enhancement’’ to the prop-

erty’s original value.

First American had argued that

Farricker’s testimony was based on

“junk science” and should have been

excluded based on State v. Porter, a

1997 case in which the Connecticut

Supreme Court explicitly adopted the

Daubert test to determine the admissi-

bility of scientific evidence.

The trial court had found Farricker

qualified as an expert witness on the sub-

ject of real estate values, and

he testified that celebrity sta-

tus of a property ‘‘can greatly

affect its value.’’ Although not

an appraiser, he testified that

the “celebrity status of the

Hepburn home” enhanced the

property’s value, so that its

market value was greater than

its value as determined by

standard methods of appraisal.

Rather than characterizing “celebrity

enhancement” as an innovative scien-

tific technique subject to Porter scruti-

ny, the Appellate Court determined that

“Farricker’s proposed testimony con-

cerned a real estate appraisal. ‘[A] real

estate appraisal is not scientific evi-

dence... ’ His testimony was premised

on a human factor that was readily

observable and understandable.”

In addition to the Porter challenge,

First American argued that the celebrity

enhancement testimony aroused the

emotions of the jury and left the jury

with the impression that the value of the

property was enhanced by ‘‘some

amorphous amount.’’ The court sum-

marily disposed of that contention, stat-

ing that a real estate appraisal based in

part on a celebrity enhancement theory

was not likely to arouse in the jury feel-

ings of hostility or sympathy, nor did it

reflect unfavorably on First American.

What’s the big deal?

Traditional appraisal methodology

is implicitly undermined by the ratio-

nales enunciated in this decision. The

Court acknowledges that Farricker

lacks the training, experience and cre-

dentials of a real estate appraiser, yet

allows him to opine on the fact that

celebrity ownership can have a mate-

rial effect on a property’s value. At

best, it would seem Farricker is quali-

fied as an expert to speak to the

“celebrity enhancement” to asking

price or marketing methods, rather

than fair market value.

Giving per se significance to the

mere incidence of prior ownership by a

celebrity or other notable on a property

value can have far-reaching conse-

quences in other contexts, such as con-

demnation or tax certiorari. Given the

outsize influence of “celebrity” in our

larger society, care should be taken in

jury selection, cross examination of

“celebrity enhancement experts,” and

effective use of rebuttal experts when

these situations arise.

Note: Lance R. Pomerantz is a sole

practitioner who provides expert testi-

mony, consultation and research in

land title disputes. He is also the pub-

lisher of the widely read land title law

newsletter “Constructive Notice.” For

more information, please visit

www.LandTitleLaw.com.

LAND TITLE LAW

Boob Job: Dubious Evidence of ‘Celebrity Enhancement’

_____________

By Cory Morris

Pretrial detention is not a problem

for defendants, so long as they have

money. Innocent until proven guilty,

Kalief Browder did not have the $3,000

to make bail so he had to go to jail.

“In 2010, at the age of 16, he was

arrested after being accused of stealing

a backpack. He would spend three

years in New York City’s Rikers Island

(“Rikers”) prison, more than two of

those years in solitary confinement.”

Charged with robbery, grand larceny

and assault, “because Browder was

still on probation, the judge ordered

him to be held and set bail.” The only

plausible reason to set bail was to

ensure Browder’s return to court

and/or to prevent a future crime by

Browder. Eventually, released without

a trial over 1,000 days later, the expo-

sure to Rikers coupled with the theft of

the last of his teenage years caused this

young man to take his own life.

Rikers made Browder suicidal.

Before Rikers, Browder main-

tained a 3.5 grade point aver-

age as a high school sopho-

more. Once introduced to

Rikers, he was greeted by

gang members, beatings by

guards, and placed in solitary

confinement. During and after

Rikers, Browder attempted

suicide on multiple occasions.

Not only did the criminal jus-

tice system fail him, it made him sick.

Before Browder died, his lawyer,

Paul V. Prestia, stated that “[Browder]

didn’t get tortured in some prison camp

in another country. It was right here.”

If stories like this make Chief Judge

Lippman call for Bail Reform, what

does it then say about our treatment of

defendants’ constitutional rights, the

courts that oversaw his prosecution

and the prison system of which he was

subjected?

The reality is that freedom isn’t free;

preventative detention occurs with

very little information beforehand and

without any finding of guilt.

We call it bail and bail costs

money. How can we continue

to tolerate a justice system

based on the monetary worth

of a defendant rather than

true guilt or innocence?

Should it not be that 10

guilty men go free before one

innocent be jailed?

“Judge Lippman said the

judiciary could no longer wait for law-

makers to act to address a system he

said punishes people for being poor.”

Indeed, the same New York Times arti-

cle reported, “[f]our out of 10 people

on Rikers Island are there because they

cannot afford bail.” We should take

instruction from Judge Lippman as

well as react to stories like Kalief

Browder’s. Judge Lippman said, he

would set up an automatic review of all

bail determinations made at arraign-

ment in criminal court, appointing a

judge in each borough to take a second

look at those decisions within 10 days

to see if bail should be reduced. We too

should join in this review, perhaps

prompted by criminal defense attor-

neys, probation officers and others

who had an opportunity to speak with

the defendant after the brief process,

which occurs before and at arraign-

ment.

Removing “dangerous” youth from

society should not be a reason to incar-

cerate. Over 30 years ago, Schall v.

Martin, 467 U.S. 253 (1984) was

decided, overruling the Second Circuit

opinion that New York’s Family Court

Act provision allowing pretrial deten-

tion of youth was unconstitutional. The

New York statute (N.Y. Fam. Ct. Act §

320.5(3)(b)) allowed for the detention

of juveniles if there was a likelihood

that the youth would reoffend in the

interim or to ensure their return to

court. Schall evoked a dissenting opin-

ion authored by Justice Marshall that

highlighted the problems with both the

failure of the justice system to examine

OPINION

POLICY/CONSTITUTIONAL

(Continued on page 21)

Rethinking Pretrial Detention and Speedy Trial

Judge Lippman’s call for reforms after Kalief Browder

Lance R. Pomerantz

Cory Morris

THE SUFFOLK LAWYER – NOVEMBER 2015 19

Judiciary Night Memorable for All

Photos by Barry Smolowitz

20 THE SUFFOLK LAWYER – NOVEMBER 2015

_________________

By Craig D. Robins

Before Congress drastically modi-

fied the Bankruptcy Code in 2005, a

number of debtors abused the bank-

ruptcy system by filing serial Chapter

13 cases, always on the eve of foreclo-

sure, to stay the foreclosure sale.

This placed the burden on the lender

to bring a motion for relief from the

stay. However, some debtors learned

that they could game the system by fil-

ing again and again, causing great

anguish to the lenders, some of whom

had to wait years to get relief.

The Bankruptcy Abuse Prevention

and Consumer Protection Act of 2005

(BAPCPA) addressed this problem by

shifting the burden to the debtor when

there are repeat filings. Now, pursuant

to section 362(c)(3), if a debtor files a

second Chapter 13 petition within a

year, the automatic stay only lasts for

30 days. The debtor then has the bur-

den of bringing a motion to extend the

automatic stay and must demonstrate

to the court that he or she is entitled to

have the stay continued.

However, the requirements for suc-

cessfully bringing this motion can be

quite tricky, and many a practitioner has

learned this the hard way. If counsel

does not bring the application correctly,

then the stay will not be extended.

In order to extend the 30-day stay,

section 362(c)(3)(B) requires the

debtor to bring a motion, which is

heard and granted before the expiration

of the 30-day period. If the Debtor neg-

lects to do so, then according to the

statute, the stay automatically termi-

nates with respect to the debtor on the

30th day after filing. As will be seen,

these highlighted words have great sig-

nificance.

This statute creates tremendous

pressure on debtor’s counsel, who

must essentially file such a motion

within days of filing the petition. In

addition, counsel must obtain

a hearing date that is within

the 30-day period, and cannot

adjourn the hearing date

unless the new date is also

within that 30-day period.

At the hearing, counsel

must demonstrate that the

debtor filed the current bank-

ruptcy in good faith. This usu-

ally involves showing that

there has been a change in circum-

stances such that the debtor has over-

come whatever problems that caused

the prior case to be dismissed.

If the debtor does not bring the 30-

day motion in a timely manner, even if

it is unopposed, the court will not grant

the requested relief. That was the les-

son that counsel recently learned in a

pending Central Islip Bankruptcy

Court case. Counsel must have been

most upset because if there is no stay,

then a foreclosing mortgagee can con-

tinue a foreclosure proceeding and the

bankruptcy becomes for naught.

However, it was not the end of the

world, as counsel saw in the written

decision from Judge Louis A. Scarcella,

who decided that motion sitting in the

Central Islip Bankruptcy Court. In re

Hale, (U.S.B.C. E.D.N.Y., Case No. 15-

71021-las, August 3, 2015).

In the Hale case, the debtor had a pre-

vious Chapter 13 petition dismissed in the

one-year period prior to filing. Debtor’s

counsel filed his motion to extend the stay

about six weeks after filing. This was

clearly two weeks too late. Thus, the

automatic stay had already expired on the

30th day after the petition was filed.

Accordingly, Judge Scarcella denied the

motion because it was not filed nor heard

within the 30-day period.

Yet, all was not lost. Judge Scarcella

pointed out that there is controversy,

based on the wording of section

362(c)(3)(A), whether termination of

the stay applies to property of the estate

as well as to the debtor. He

found that the automatic stay

only terminates with respect

to the debtor and his proper-

ty, but not property of the

estate. Consequently, a mort-

gagee would still be required

to bring a motion for relief

from the stay, as a debtor’s

home is property of the

estate.

In reaching this holding, Judge

Scarcella noted that even though the

Second Circuit has not yet addressed

this issue, there is an emerging majori-

ty view that termination of the auto-

matic stay under section 362(c)(3)

does not extend to actions against the

property of the estate, which, as a prac-

tical matter, encompasses the lion’s

share of assets in play. This is all due to

the wording of the statute, which

states, “the stay automatically termi-

nates with respect to the debtor on the

30th day after filing.

Judge Scarcella and other judges

analyzing this statutory language find

this wording clear, plain and unam-

biguous. “We have stated time and

again that courts must presume that a

legislature says in a statute what it

means and means in a statute what it

says there...”

This flies in the face of the minority

view, which seeks to preserve the con-

gressional intent behind the statute of

deterring and preventing abusive serial

filings.

However, Judge Scarcella comment-

ed that at first blush, the minority view

has some appeal, given the objectives

of the 2005 amendments to abusive

serial filings. However, he observes that

BAPCPA’s drafting was inartful and the

framework labyrinthine. Accordingly,

he went with the view that places

greater importance upon the plain

meaning of the statutory language.

The decision is clearly a win for

debtors as it essentially preserves the

stay regardless of whether counsel

brings the 30-day motion properly and

perhaps acts as an indictment of the

poorly worded BAPCPA statute.

Thus, in Hale, even though counsel

failed to bring the 30-day motion in a

timely manner, there is still a stay

against property of the estate, which

effectively prevents a mortgagee from

continuing a foreclosure proceeding

without first bringing a motion for relief.

Note: Craig D. Robins, a regular

columnist, is a Long Island bankruptcy

lawyer who has represented thousands of

consumer and business clients during the

past twenty-nine years. He has offices in

Melville, Coram, and Valley Stream.

(516) 496-0800. He can be reached at

CraigR@CraigRobinsLaw.com. Please

visit his Bankruptcy Website:

www.BankruptcyCanHelp.com and his

Bankruptcy Blog: www.LongIsland-

BankruptcyBlog.com.

CONSUMER BANKRUPTCY

Bankruptcy Stays and the Chap 13 Repeat Filer

Recent decision helps debtors who neglect to reinstate stay

Craig D. Robins

Navigation Law or under Title 10 of

ECL Article 17 (petroleum contamina-

tion and bulk storage); and sites subject

to any on-going state or federal

enforcement actions regarding

solid/hazardous waste or petroleum.

Thus, a property owner or buyer who is

considering conducting a cleanup

would have to apply for the BCP

before violations and other government

enforcement actions preclude this

option. The advantages of the volun-

tary cleanup are not only the tax cred-

its, albeit reduced by the recent amend-

ments, but also the eventual liability

release and the cooperative, rather than

punitive framework, for the remedia-

tion process.

According to the DEC, more than

190 contaminated sites have been

remediated in the past 10 years through

the BCP. Whether or not the amended

law achieves a faster pace of remedia-

tion, as is hoped, will depend on how

much economic sense and legal cer-

tainty it can provide to would-be devel-

opers and owners of New York’s many

brownfields.

Note: Lilia Factor is Counsel to

Campolo, Middleton & McCormick.

She is a member of the environmental

practice group, concentrating her prac-

tice on environmental compliance, civil

litigation, and appellate work.

Currently, Lilia serves as co-chair of the

Environmental and Green Industries

Committee of the Hauppauge Industrial

Association and Chair of the

Environmental Committees of the

Suffolk County Bar Association and the

Suffolk County Women’s Bar

Association.

Part BB of Chapter 56 of the Laws of 2015,

amended and added new language to

Environmental Conservation Law Article 27,

Title 14 (Brownfield Cleanup Program) and

certain other laws.

http://www.dec.ny.gov/regulations/101915.html.

Additional funds are available for municipally

owned contaminated sites through the

Environmental Restoration Program, which is

outside the scope of this article.

Brownfield Cleanup Program (Continued from page 16)

SECURITIES LAW

JOHN E. LAWLOR, ESQ.

• Securities • Arbitration / Litigation

• FINRA Arbitrations

• Federal and State Securities Matters

(516) 248-7700

129 Third Street • Mineola, NY 11501

johnelawlor.com

THE SUFFOLK LAWYER – NOVEMBER 2015 21

_________________

By Allison C. Shields

Aside from the ethical rules, the sin-

gle most important document that

defines the attorney-client relationship

is the retainer agreement or engage-

ment letter.

New York does not require attorneys

to provide an engagement agreement

for all matters, such as those where the

fee is expected to be less than $3000, or

where the attorney will be rendering

services that are the same as services

previously provided to and paid for by

the client. But regardless of the type of

matter, the value of the deal or antici-

pated award, a written engagement

agreement or retainer letter is a smart

move in all matters. It can protect both

lawyer and client. It makes the relation-

ship clear to the client, helps the client

to value the lawyer’s work, and memo-

rializes the agreement and the scope of

work to be performed in the event that

any dispute should arise later.

Each jurisdiction may have its own

rules about what must be included in

an engagement agreement, but in addi-

tion to what is mandated, there are

additional subjects that may be prudent

for lawyers to include. Topics to be

covered in the engagement agreement

include the following:

Who is the client?

The engagement letter

should clearly state who is

being represented pursuant to

the agreement, and in some

cases, should also indicate

who is not being represented.

In instances where the attor-

ney represents a particular

employee but not the business

(and vice versa), or where the

attorney represents one mem-

ber of a family but not others, it may be

best to specifically state who the attor-

ney does not represent, to note that

those people’s interests may not be

aligned with the client’s interests and to

indicate how conflicts will be handled.

In some cases, the client is not the

one footing the bill for the representa-

tion. The engagement agreement

should set forth the rules of confiden-

tiality, and to whom the duty of confi-

dentiality is owed and explain attor-

ney-client privilege.

Scope of work

The retainer agreement should accu-

rately and specifically reflect the work

that will be performed for the client.

Even a retainer agreement for a ‘sim-

ple’ real estate matter may not be that

simple. For example, what happens if

the first deal falls through? How many

contracts is the lawyer will-

ing to review (or prepare) for

the quoted fee? If the client

does request additional serv-

ices not covered under the

original engagement agree-

ment’s scope of work, be sure

to document both the addi-

tional services and the fee

and obtain the client’s con-

sent. Be aware that many

jurisdictions will apply

greater scrutiny to revised or amended

agreements once the confidential rela-

tionship has been established.

Exclusions

In addition to covering work that is

included in the representation, the agree-

ment should also advise the client what

is not included in the representation. For

example, if the agreement covers a liti-

gation matter, does it include working

on an appeal, or is that excluded?

Fees and costs

The agreement should memorialize

the method that will be used to calcu-

late the attorney’s fee, who will be

responsible for expenses, how fre-

quently bills will be sent, and the tim-

ing and method of payment. The client

should be advised when they should

expect to receive the bill and also when

they are expected to make a payment.

When billing by the hour or under any

method by which the fee will not be

known until the work is completed, the

client should be provided with an esti-

mate or budget.

When are the lawyer’s fees consid-

ered earned if an up-front retainer is

paid? Are any fees nonrefundable?

Will the client be billed in stages? Will

the retainer be a “replenishing” or

“evergreen” retainer? What is the fee

structure? Will payments be required

in advance (i.e. 30 days before trial,

etc.)? All of these questions should be

answered in the retainer agreement or

engagement letter.

Another issue to consider is whether

the fee quoted will apply to the entire

engagement or is subject to change,

and if so, under what circumstances? If

a modification becomes necessary, the

lawyer may be required to show that

any modification of an existing fee

agreement, especially a modification

sought by the lawyer, was reasonable

under the circumstances at the time of

the modification and that it was

explained to and accepted by the client.

The agreement should detail the

ways in which the firm accepts pay-

ments (i.e. credit cards, check only,

electronic payments, etc.), as well as

PRACTICE MANAGEMENT

(Continued on page 31)

Engagement Agreements 101

Allison M. Shields

these offenders in detail before issuing

detention and the failure of the system

to convict a youth after he or she

served that term of pretrial detention—

just like Browder. In New York, this is

coupled with the unsightly problem

that “only New York and North

Carolina automatically treat 16 and 17-

year-old offenders as adults in the

criminal justice system.”

Indeed, as

the Amicus Brief of the American

Psychological Association stated in

Schall, the finding is overwhelming

that no diagnostic tools accurately pre-

dict dangerousness to any reasonable

degree, nevertheless beyond a reason-

able doubt.

The Constitutional Right to a Speedy

Trial is now a legal fallacy. One of over

5,000 cases, Browder languished as the

People continued to answer ready for

trial. “The problem is compounded by

defense attorneys who drag out cases to

improve their odds of winning, judges

who permit endless adjournments, prose-

cutors who are perpetually unprepared.”

In response, “Judge Lippman said he

would order judges to periodically review

the strength of the prosecution’s case and

the people’s readiness to go to trial with

the idea that the judge would then con-

sider lowering or eliminating bail if the

prosecution‘s case has weakened.” These

reviews might avert another tragedy like

the death of Mr. Browder. Judge

Lippman also said, “[a]ttorneys should

work with the judiciary to ensure that the

defendants’ constitutional rights are pro-

tected irrespective of clogged calendars,

court delays and illusory answers of

readiness.”

The prosecution in

Browder’s case lost their key witness.

Over 1,000 days elapsed and yet the

People continued to push a case in which

they were obviously not ready for trial.

This is not a unique problem. Indeed, the

Court of Appeals addressed this, again, in

2014, holding that the People’s illusory

response of readiness should be time

counted against them for the purposes of

calculating speedy trial time and, ulti-

mately, dismissal.

Reforms need to come from legisla-

tion. Nicholas Turner, the president of

the Vera Institute of Justice, said the

state was still relying on cash bail to

ensure defendants do not skip town,

rather than modern risk-assessment sur-

veys and other tools for determining

who is likely to return to court. Turner

thinks that changing the underlying sys-

tem would require legislation. In addi-

tion, judges need to protect the constitu-

tional rights of defendants, like

Browder, whose cases languish for years

without prosecution. Both prosecutors

and defense attorneys need to be mind-

ful of their ethical duties to their clients

and, above all, their role as officers of

the court. It is likely the legislation will

need to address these issues. Lastly,

aside from the fact that Kalief Browder

should never have suffered pretrial

detention, he should have received med-

ical treatment for his suicide attempts.

The Constitutional safeguards

designed to protect Browder failed. He

lost his liberty, his sanity and ultimate-

ly his life. It failed him as it continues

to fail others. Browder was not inno-

cent until proven guilty but punished

summarily. He had no right to any trial

and no right to bodily integrity as he

suffered solitary confinement and

physical abuse. You can hear it in the

young man’s voice in a video interview

before took his own life: “No apology,

no nothing, they just said ‘Oh, case

dismissed’, don’t worry about nothing

like ... what do you mean don’t worry

about nothing, you just took over three

years of my life.”

While this coverage

may be unique, his story is not.

Note: Cory Morris is a civil rights

attorney, holding a Masters Degree in

General Psychology and currently the

Principal Attorney at the Law Offices

of Cory H. Morris. He can be reached

at http://www.coryhmorris.com.

Amy Goodman and Denis Moynihan, Kalief

Browder, Albert Woodfox and the Torture of

Solitary Confinement, DemocracyNow (June 11,

2015), http://www.democracynow.org/blog/2015/

6/11/kalief_browder_albert_woodfox_and_the.

Democracy Now, Traumatized by 3 Years at

Rikers Prison Without Charge as a Teen, Kalief

Browder Commits Suicide, Youtube (Jun. 8,

2015), https://www.youtube.com/watch?v=Zd6h

Cmgmj44

James C. McKinley, Jr., State’s Chief Judge,

Citing ‘Injustice,’ Lays Out Plans to Alter Bail

System, New York Times (Oct. 1, 2015),

http://www.nytimes.com/2015/10/02/nyre-

gion/jonathan-lippman-bail-incarceration-new-

york-state-chief-judge.html?_r=1.

Katrina vanden Heuvel, Adolescents Do Not

Belong in the Adult Legal System, The Nation

(Mar. 23, 2015), http://www.thenation.com/arti-

cle/opportunity-has-come-keep-adolescents-

out-adult-legal-system/.

Jennifer Gonnerman, Before the Law, The New

Yorker (Oct. 6, 2015), http://www.newyork-

er.com/magazine/2014/10/06/before-the-law.

See People v. Sibblies, 22 N.Y.3d 1174, 1177,

985 N.Y.S.2d 474 (2014).

See Thomas M. Obrien, The Undoing of

Speedy Trial in New York: the ‘Ready Rule’,

(N.Y.L.J. January 14, 2014).

Ch. 7 News, Teen Thrown In Violent New York

Prison For Years Without Ever Having Been

Convicted, Youtube, https://www.youtube.com/

watch?v=sGjHm92CqRE

Rethinking Pretrial Detention and Speedy Trial (Continued from page 18)

ences on July 22, September 19, and

December 5 of 2013. A total of 21 cases

were settled out of the 22 scheduled

yielding a success rate of 95 percent.

The Court held settlement confer-

ences on 24 cases on five separate dates

in 2014 and successfully disposed of 19

for a success rate of 75 percent.

The court has held four conferences

to date and settled 13 out of 17 sched-

uled cases for a success rate of 76 per-

cent in 2015.

Therefore, since the program com-

menced, this part has settled 53 out of

63 cases for a success rate of 84 percent.

The court is very proud of these

results, as they were higher than expect-

ed. This degree of success would not be

possible without the input and hard

work of many people including Larry

Voightsberger, Chief Clerk of the

Calendar Control Part, my secretary, Jill

Meise, my law secretary, Ray Voorhees

and my courtroom staff clerk Deana

Borger and Senior Court Officer Connie

Raber. I must also take a moment to

thank the plaintiff’s and defendant’s bar,

as well as the claims adjusters, particu-

larly Ms. Cindy Vigilanti of PRI, who

have participated in these sometimes

difficult settlement discussions in good

faith with a sincere desire to reach a res-

olution that serves the interest of justice

for both the plaintiff and defendant.

Experience dictates that in the final

analysis, it is the realistic understanding

of what the true value of the case is, as

well as a good faith desire to resolve the

dispute by the lawyers and the clients

that leads to a successful settlement of

the dispute between the parties.

I would invite counsel representing

plaintiffs against a defendant physician

whose coverage is provided by PRI or

who is an institution within the North

Shore LIJ system to confer with the

claims adjuster, risk manager and/or

defense lawyer to determine if there is a

reasonable belief that court assistance

has a probability of success. It would

seem that having such a conference

would be extremely prudent consider-

ing that 87 percent of all medical mal-

practice cases tried in 2014 resulted in

defendant’s verdicts.

Finally, nothing encompasses the

proper state of mind in which counsel

should enter these conferences than a

statement from one of my favorite 20th

century philosophers, Mick Jagger,

who said, “ You can’t always get what

you want, but if you try, you just might

get — what you need.”’

NOTE: The Hon. Peter H. Mayer

worked as an Assistant District Attorney

in Suffolk County from 1973 to 1981,

serving under District Attorneys George

Aspland, Henry Wenzel, Henry O’Brien

and Patrick Henry. Justice Mayer

entered private practice in 1981 under

the firm name of Clayton & Mayer in

Suffolk County, focusing in the area of

federal and state criminal defense. In

1994, Justice Mayer relocated to

Glenwood Springs, Colorado, where he

continued to maintain his private prac-

tice in federal and state criminal

defense. He returned to Suffolk County in

1997 and accepted a position as

Assistant County Attorney. Thereafter, he

returned to Suffolk County private prac-

tice, concentrating in federal and state

criminal and civil matters. In January

2006, Justice Mayer took the bench as a

New York State Supreme Court Justice

for the Tenth Judicial District,

Riverhead, New York, where he presides

over civil matters. In addition to his posi-

tion as director of the Suffolk County Bar

Association, Justice Mayer is co-chair of

SCBA’s Veterans Committee.

Medical Malpractice Conference for Suffolk County (Continued from page 12)

portion of the gain on the redemption of

the taxpayer’s stock in the S corporation,

reflected in the principal payments on

the installment note, would be N.Y.

source income subject to N.Y. personal

income tax. The portion of the gain that

constituted N.Y. source income would

be determined by multiplying the

amount of the gain by a fraction, the

numerator of which was the FMV of the

N.Y. real property on the date of the

redemption sale and the denominator of

which was the FMV of all of the corpo-

ration’s assets (owned for at least two

years) on the date of the redemption

sale. To the extent that this gain was

payable to the taxpayer under an install-

ment payment agreement (the note), a

portion of each installment payment

would be taxed as N.Y. source income

when it was received (thereby deferring

the tax liability). As to the interest paid

on the note, the Tax Department con-

cluded that the note, and not the corpo-

ration’s real property, was the income-

producing property. Because the note

was intangible personal property, and

the interest received by Taxpayer was

not income attributable to property

employed in a business or trade carried

on in N.Y., the interest was not subject to

N.Y. personal income tax.

What’s a nonresident seller to do?

As in any sale transaction, a price

must be established for a taxpayer’s

interest in an entity. This may entail

negotiations between the buyer and

seller. In each case, it will behoove the

seller to understand and to try to quan-

tify the costs (including taxes) of the

sale in advance of any discussions.

This will enable the seller to settle on

the appropriate sales price: one that

will yield the desired after-tax eco-

nomic result.

In the case of a non-N.Y. resident

with an interest in an entity that owns

at least some N.Y. real property, the

taxpayer will need to determine

whether the entity meets the 50 percent

threshold described above. In some

cases, depending upon the entity’s

business or investment purpose, not to

mention the level of authority pos-

sessed by the non-N.Y. resident, it may

be possible to periodically adjust the

entity’s investment holdings – being

mindful of the two-year “anti-stuffing

rule” – so as to fall short of the thresh-

old. Of course, any such adjustments

must make sense from a business or

investment perspective.

Where the nonresident has little con-

trol over the entity, it may be possible

to “time” the sale of his or her interest,

taking advantage of a drop in real

estate values or of an increase in the

value of other assets held by the entity

(for example, securities). However, this

option may be impractical in cases

where, for example, a shareholders or

operating agreement restricts the sale

of interests in the entity.

The important point is to recognize

at the inception of one’s investment in

an entity that there may be an issue on

a subsequent disposition of the invest-

ment, to try to account for the ultimate

tax cost when pricing the acquisition of

the investment and/or its later sale, and

to try to secure the periodic valuation

of the entity’s underlying assets so as

to facilitate any decision as to a dispo-

sition and to support one’s reporting

position in the event of a sale.

Note: Lou Vlahos, a partner at

Farrell Fritz, heads the law firm’s Tax

Practice Group. Lou can be reached at

(516) 227- 0639 or at lvlahos@farrell-

fritzcom.

Investing in New York Real Estate (Continued from page 12)

few “code words.” Rather, his testimo-

ny was, “in large part,” an explanation

of “what the conversations referred to

based upon the investigative re con-

struction in which he had taken part.”

The problem, the court found, was that

it is for a jury to interpret the evidence,

not an expert. It stated, “[t]rials, by

design, are not decided by those pre-

schooled in the matter litigated, howev-

er thorough their extra-judicial educa-

tion may have been; they are, to the

contrary, decided independent of case-

specific preconception on the basis of

the evidence introduced during the pro-

ceeding itself in accordance with the

rules of admissibility.”

If a police offi-

cer presents his factual knowledge to

the jury, he, as an expert, does not aid

the jury in its fact finding, but instead,

tells the jury what facts are needed to

support the criminal charges.

Upon considering all of the evidence

presented at trial, the court found that all

of the testimony of the eyewitnesses was

“utterly compelling,” and indeed what

“anchored” the prosecution’s case. That

testimony, the court specifically noted,

included one witness’s extensive expla-

nation of the taped conversations. Thus,

the court concluded that given all of that

evidence, “the general import of what

was being discussed on the prison

tapes” would have been self-evident …

and not in need of express, much less

expert clarification.”

The court determined that Detective

Rivera’s “summation testimony” was

harmless, and affirmed the Appellate

Division.Although dicta, the court stat-

ed that had the evidence presented at

trial been different, or had there been a

constitutional confrontation issue,

there could have been a reversal, and

advised the trial courts to “be vigilant

against the serious risks that” using

government agents as expert summa-

tion witnesses raise.

Note: Hillary A. Frommer is counsel

in Farrell Fritz’s Estate Litigation

Department. She focuses her practice in

litigation, primarily estate matters

including contested probate proceed-

ings and contested accounting proceed-

ings. She has extensive trial and appel-

late experience in both federal and state

courts. Ms. Frommer also represents

large and small businesses, financial

institutions and individuals in complex

business disputes, including sharehold-

er and partnership disputes, employ-

ment disputes and other commercial

matters.

25 NY3d 467 [2015].

Id. at 471.

108 AD3d 765 [1

Dept 2013].

25 NY3d at 471.

Id. at 472.

United States v Mejia, 545 F3d 179 [2d Cir

2008] and United States v Dukagjini, 326 F3f

45 [2d Cir 2002].

25 NY3d at 475.

Id. at 476.

Abuse in Admitting Testimony (Continued from page 11)

22 THE SUFFOLK LAWYER – NOVEMBER 2015

THE SUFFOLK LAWYER – NOVEMBER 2015 23

Successful Law Student BBQ at the SCBA

Several law school students enjoyed an opportunity

to meet judges and attorneys at the Suffolk County

Bar Association when they attended the Law

Student BBQ. President Donna England spoke to

the students thanking them for coming, adding,

“These young people are our future, and I told

them that the people they were meeting that night

might be part of their legal career for many years

to come.”

Photos by Barry Smolowitz

FREEZE FRAME

Couldn’t Be

Prouder

SCBA member Diane McClernon

and husband Bob celebrated the

graduation of their son Steven, who

graduated Summa Cum Laude from

St. Joseph’s College with a BA in

Child Study last May.

What is Freeze Frame and how

can SCBA members be included

They say a good picture tells a story. Why

not share your good news with your colleagues

at the Suffolk County Bar Association. Send

photos of the important events or people in

your lives to The Suffolk Lawyer. Did you have

a baby? Are you a new grandparent? Did your

child graduate? Was there a marriage celebra-

tion in your family? These are but a few exam-

ples of the types of photos that can be included

in Freeze Frame. Get the word out by sending

photos and captions to Editor-in-Chief Laura

Lane at scbanews@optonline.net.

In Joanne Budah v. Philip Rosa and

Michele Posa, Index No.: 22935/2012,

decided on December 5, 2014, the court

granted the defendants’ motion to compel

the plaintiff to provide authorizations

relating to her prior medical conditions

and treatment.

In rendering its decision, the court noted

that under the liberal discovery provisions

of the CPLR, a party who affirmatively

placed his or her physical or mental condi-

tion in issue has effectively waived the

physician-patient privilege and mist, there-

fore, provide duly executed and acknowl-

edged written authorizations for the

release of pertinent medical records. Here,

the court stated that despite plaintiff’s

claim that the alleged injury was limited to

her right knee, her pleadings made broad

allegations of physical and mental injuries.

Based upon the broad allegations of phys-

ical and mental injuries, the plaintiff had

affirmatively placed her physical and men-

tal condition in issue. Consequently, the

documents sought by the defendants were

material and necessary to the defense of

plaintiff’s claims.

Motion to preclude denied; motion for

protective order granted; although the

failure of a party to challenge a notice for

discovery and inspection within the time

specified by CPLR §3122 foreclosed

inquiry into the proprietary of the infor-

mation sought, an exception existed as to

demands, which were palpably improper.

In Leon J. Hochheider and Leon J.

Hochheider, Co., Inc. v. Steven Alin and

Pension Design Services, Inc., Index No.:

28100/2013, decided on July 8, 2015, the

court denied plaintiffs’ motion for preclu-

sion and granted the defendants’ motion for

a protective order.

In deciding the motions, the court

rejected plaintiffs’ arguments that the

defendants waived their right to challenge

the demands for disclosure made in the

notice of discovery and inspection. The

court pointed out that although the failure

of a party to challenge a notice for dis-

covery and inspection within the tine

specified by CPLR §3122 foreclosed

inquiry into the proprietary of the infor-

mation sought, an exception existed as to

demands, which were palpably improper.

The court further stated that a disclosure

request will be considered palpably

improper if it was vague or was overly

broad and burdensome. Notices for dis-

covery and inspection are overly broad

where they fail to specify the documents

sought with “reasonable particularity.”

Courts have held that the use of descrip-

tions “any,” “all,” or “any and all” renders

the notice for discovery and inspection

palpably improper. Where a discovery

demand is overly broad, pruning of the

demand by the court will be inadequate to

correct the demand’s deficiencies.

Accordingly, the motion for preclusion

was denied and the motion for a protec-

tive order was granted.

School District to promptly submit to

Chambers a copy of all of defendant’s edu-

cational records to be reviewed by the

court in camera for determination as to

what, if any, records should be disclosed as

evidence material and necessary in the

prosecution or defense of this action in

accordance with CPLR §3101(a); the

Buckley Amendment was intended to pro-

tect records relating to an individual stu-

dent’s performance without a demonstrat-

ed need for disclosure.

In Michael Maloney v. Longwood

Central School District and Michael

Combs, Index No.: 9993/2013, decided

on May 12, 2015, the court granted the

motion to compel to the following extent:

the defendant, School District was to

promptly submit to Chambers a copy of

all of defendant Combs’ educational

records demanded, to be reviewed by the

court in camera for determination as to

what, if any, records should be disclosed

as evidence material and necessary in the

prosecution or defense of this action in

accordance with CPLR §3101(a).

The issue in this matter was whether

certain student education records must be

disclosed, or whether such records were

barred from disclosure by 20 USC

§1232g, commonly known as the

“Buckley Amendment.” In deciding the

application, the court noted that the

Buckley Amendment was intended to

protect records relating to an individual

student’s performance without a demon-

strated need for disclosure. The court fur-

ther stated that reports of prior incidents

involving violent behavior, however, may

be material and necessary to determine

whether school officials had actual or

constructive notice of similar conduct,

which could constitute a basis for impos-

ing liability. However, the court pointed

out that since reports of prior violent inci-

dents may include information which was

deemed confidential pursuant to provi-

sions other than the Buckley Amendment,

the court may examine those reports in

camera and redact the confidential matter

prior to disclosure.

Honorable William B. Rebolini

Motion to amend the caption to add

additional defendant granted; allegations

of negligence proposed to be asserted

against additional defendant arose out of

the care and treatment provided to the

plaintiff in pertinent part, during the

same time period and at the same medical

facility as the claims that are set forth

against the remaining defendant.

In Bibiana Reilly and Brendan Reilly v.

Jean-Marie Bosch, R.N., Theodore L.

Goldman, M.D., T.L. Goldman, M.D.,

PLLC, Felicia T. Callan, M.D., John R.

Wagner, M.D., John Wagner, P.C., Mitchell

Kramer, M.D., Suffolk OB/GYN Group,

P.C., Huntington Medical Group, P.C.,

Mary Jean Collarini, R.N. and Huntington

Hospital, Index No.: 9272/2011, decided on

September 18, 2014, the court granted plain-

tiffs’ motion to amend the summons and

complaint to add an additional defendant.

The court pointed out that the plaintiff

moved for leave to file and serve an amend-

ed summons and complaint naming Elisa

C. Felsen-Singer, D.O. as a party defendant

and since the statute of limitations had

expired, deeming that the relation-back

doctrine applied to the claims against Dr.

Felsen-Singer. In granting the application,

the court noted that the allegations of neg-

ligence proposed to be asserted against Dr.

Felsen-Singer arose out of the care and

treatment provided to the plaintiff in perti-

nent part, during the same time period and

at the same medical facility as the claims

that are set forth against the remaining

defendants. In addition, the court stated

that Dr. Felsen-Singer was an employee or

member of the Huntington Medical Group,

P.C., who participated in a collaborative

work arrangement to provide care and

treatment to patients of other medical

groups, including patients of WGM

Obstetrics and Gynecology, P.C. Moreover,

the court concluded that as the physician

who cared for the plaintiff at the hospital

from the time of her admission until orders

were given for a caesarean section, and the

physician with whom Dr. Goldman dis-

cussed the care of the plaintiff, it could rea-

sonably have been concluded by Dr.

Felsen-Singer that she would have been

named as a defendant, had her involvement

in the plaintiff’s care been more clearly set

forth in the hospital records.

Motion to compel disclosure denied;

impossible for the court to determine

whether the records were subject to dis-

closure as no effort had been made to link

plaintiff’s alleged drug use to either the

cause of the underlying accident or to

plaintiff’s ability to recover from the

injuries sustained as a result of the acci-

dent.

In Victor Sabatino v. Simon Property

Group, Inc., and Mall at Smith Haven,

LLC, Index No.: 32092/2012, decided on

April 20, 2015, the court denied plaintiff’s

motion for disclosure of certain medical

records, without prejudice.

In rendering its decision, the court

noted that the burden of proving that a

party’s mental or physical condition is in

controversy is on the party seeking to

examine hospital records, in this case, no

records and no affirmations had been sub-

mitted. As such, it was impossible for the

court to determine whether the records

were subject to disclosure as no effort had

been made to link plaintiff’s alleged drug

use to either the cause of the underlying

accident or to plaintiff’s ability to recover

from the injuries sustained as a result of

the accident.

Please send future decisions to appear in

“Decisions of Interest” column to Elaine

M. Colavito at elaine_colavito@live.com.

There is no guarantee that decisions

received will be published. Submissions

are limited to decisions from Suffolk

County trial courts. Submissions are

accepted on a continual basis.

Note: Elaine Colavito graduated from

Touro Law Center in 2007 in the top 6%

of her class. She is an associate at Sahn

Ward Coschignano, PLLC in Uniondale.

Ms. Colavito concentrates her practice in

matrimonial and family law, civil litiga-

tion and immigration matters.

Bench Briefs (Continued from page 4)

24 THE SUFFOLK LAWYER – NOVEMBER 2015

Significantly, if the transfer involved a

legitimate sale, then the defendant is per-

mitted to recoup the proceeds.

Alternatively, if the court is not satisfied

that the defendant’s intended recipient

would refrain from relinquishing control

over the weapons, or abide by the court’s

requirements, then the court may trans-

fer the firearms to an independent gun

dealer of its choosing (Id., at *15).

Since the issue of whether the defen-

dant’s intended recipients – his friend or

wife – were likely to give defendant

access or control over the firearms, the

matter was remanded for further pro-

ceedings. The court did not provide any

further guidance or instruction, but it is

evident that the decision is to be made on

a case-by-case basis. Any infractions or

violations of the court’s ruling by the

recipient may result in charges for aid

and abet.

Conclusion

Federal law makes it unlawful for a

defendant convicted of a felony to pos-

sess a firearm and/or ammunition.

Where the trial court is in possession of

the defendant’s firearms, upon convic-

tion, the court may direct the transfer of

the firearms to the person or entity of

defendant’s choosing provided it is satis-

fied the recipient will not permit access

or otherwise allow defendant to exert

influence or control over the firearms.

Defendant may recoup profits from the

sale of his or her weapons.

Note: Stephen L. Ukeiley, formerly a

Suffolk County District Court and Acting

County Court Judge, is the Principal Law

Clerk to the Honorable Richard I. Horowitz,

Court of Claims Judge and Suffolk County

Acting Supreme Court Justice.Mr. Ukeiley is

also an adjunct professor at both the Touro

College Jacob D. Fuchsberg Law Center

and New York Institute of Technology. He is

a frequent lecturer and author of numerous

legal publications, including The Bench

Guide to Landlord & Tenant Disputes in

New York (Second Edition)

* The information contained herein is for

informational and educational purposes only,

and the result of independent research unrelated

to any case or motion, pending or otherwise,

before Judge Horowitz. This column should in no

way be construed as the solicitation or offering of

legal or other professional advice. If you require

legal or other expert advice, you should consult

with an attorney and/or other professional.

Transfer of Firearms (Continued from page 4)

The court would then be required to

determine whether, in its discretion, cir-

cumstances exist that would “see fit” for

it to intervene into the zealously guarded,

Constitutionally protected sphere of dis-

cretion as to how to raise one’s children.

Necessarily that means a hearing on the

issue of standing; and, following such a

hearing, if the court determines that there

are no equitable reasons to allow the peti-

tion, the case must be dismissed.

While the Court of Appeals seem-

ingly dispatched of the technical argu-

ment that ordering grandparent visita-

tion upon an otherwise intact “nuclear”

family is unconstitutional, holding that

DRL 72 applied not to fill “some void

in the nuclear family created by death,

divorce, or similar disability or by for-

feiture resulting from neglect,”

it also

held that the living parent(s)’ objection

would be a heavy factor to consider

before granting standing.

Nor is it sufficient for a bare-bones

petition to simply allege, in talismanic

fashion, that the grandparent(s) love

and care for their grandchildren, as the

Emanuel Court explicitly held:

“It is not sufficient that the grandpar-

ents allege love and affection for their

grandchild. They must establish a suf-

ficient existing relationship with their

grandchild, or in cases where that has

been frustrated by the parents, a suffi-

cient effort to establish one, so that the

court perceives it as one deserving the

court’s intervention. If the grandpar-

ents have done nothing to foster a

relationship or demonstrate their

attachment to the grandchild, despite

opportunities to do so, then they will

be unable to establish that conditions

exist where ‘equity would see fit to

intervene.’ The evidence necessary

will vary in each case but what is

required of grandparents must always

be measured against what they could

reasonably have done under the cir-

cumstances.”

This “could’ve, would’ve,

should’ve” approach is perhaps one of

the few times that a court has so clear-

ly invited a line of speculative ques-

tioning as probative to a matter in dis-

pute, should the issue of standing

require a hearing. A cross-examiner’s

dream, to be sure, since anything goes.

“Q: Now, ma’am, it says here you

love your grandchildren, correct?

A: Of course.

Q: You miss them terribly, true?

A: Yes.

Q: You know their phone numbers,

right?

A: Yes.

Q: And their birthdays, yes?

A: Yes.

Q: Now it says here that you haven’t

spoken to them in over a year, is that

correct?

A: Yes, more than a year.

Q: Now, how many times did you

call each of your two grandchildren

over this past year?

A: Well … I don’t know … on their

birthday, and on Christmas…

Q: So we agree, they have one birth-

day each, right?

A: Yes.

Q: And Christmas comes once a

year, correct?

A: Yes.

Q: And last year had 365 days in it,

am I correct?

A: Yes.

Q: And you missed your grandchil-

dren so terribly that you only called

them twice out of those 365 days; do I

have that right?

A: Yes, but …

Q: And there was nothing stopping

you from dialing the phone on those

other 363 days, am I correct?”

Parenthetically, a conclusory, bare

bones petition that does not demonstrate

a “sufficient existing relationship” or a

“sufficient effort to establish one” should

be dismissed at the outset, rather than be

referred to a hearing; since the petitioner

is bound by their pleading, what is not

alleged in the document should not be

allowed to be proven at trial.

Note: Vesselin Mitev is a partner at

Ray, Mitev & Associates, a New York lit-

igation boutique with offices in

Manhattan and on Long Island. His

practice is 100 percent devoted to litiga-

tion, including trial, of all matters

including criminal, matrimonial/family

law, Article 78 proceedings and appeals.

Matter of Emanuel S. et al, v. Joseph E. et al.,

78 NY2d 178 (1991)

Id.

Grandma’s Boy in New York (Continued from page 3)

outlined above as a computerized equiv-

alent of a will making kit. Will making

kits do not violate New York’s prohibi-

tion against the unauthorized practice of

law so long as the nonlawyer does not

give personalized legal advice

In Janson v. LegalZoom, Inc.

the

court noted “LegalZoom customer

service representatives are repeatedly

informed that giving legal advice to a

customer will result in dismissal, and

that even approaching giving legal

advice to a customer will result in dis-

cipline up to and including dismissal.”

Presumably these strict instructions are

given in an effort to avoid any appear-

ance that LegalZoom is giving person-

alized legal advice.

The Janson case is one of many dis-

putes, which have arisen in different

states with respect to the issue of

whether LegalZoom is engaged in the

unauthorized practice of law. In

Janson, a Missouri case, the court con-

sidered, mainly in dicta, whether

LegalZoom’s conduct constituted the

unauthorized practice of law. The court

opined that LegalZoom’s computer-

ized questionnaire was different than a

fill in the blank will making kit

because with a will making kit the

onus is on the client to read the instruc-

tions and fill in the blanks. The court

noted that “LegalZoom’s internet por-

tal service is based on the opposite

notion: we’ll do it for you.”The court

cited LegalZoom’s advertisements,

which promised, “we’ll prepare your

legal documents”and “‘LegalZoom

takes over’ once customers ‘answer a

few simple online questions.’”

In Janson the court found that

LegalZoom was selling services and not

goods. In contrast, a will making kit

would be considered goods. The court

explained that because LegalZoom’s

services were based on questions asked

by a computer, which had been pro-

gramed by a human, there was “little or

no difference” between the

LegalZoom’s computer program and

what a human attorney would do in

order to create the same document.

Putting a computer between the pro-

grammer and the client did not change

the nature of the services provided.

Although they were discussed at length,

the court did not rule on these issues in

the Janson case. After this decision was

issued the case was settled.

Starting in 2010 LegalZoom began

to offer prepaid legal service plans.

According to LegalZoom: “These

plans provide their members with

access to attorneys licensed in their

states who have contracted with

LegalZoom to provide plan members

certain legal advice and services

defined in the plans.”

A review of the

LegalZoom website shows that three

attorneys in the Legal Plan Attorney

Directory identify themselves as New

York attorneys. Interestingly, while all

three are registered in New York, a

search of the New York State Attorney

Registration Directory shows that all

three live in California.

If you create a will using

LegalZoom’s software you can pay

$69 for the basic will package or you

can pay $79 for the comprehensive

package which includes a 30-day trial

of LegalZoom’s “attorney advice”

product, which allows the client to

“speak with an independent attorney

on an unlimited number of new legal

matters.”

If the client continues the

attorney advice product for $14.99 per

month they are then entitled to an

“Annual legal checkup with an attor-

ney” to “Ensure your estate plan and

other legal documents are up-to-date.”

North Carolina is the current focal

point of LegalZoom litigation. One

function of the North Carolina State

Bar is that it registers prepaid legal

service plans. According to

LegalZoom, the North Carolina State

Bar refused to register LegalZoom’s

prepaid legal service plan and sent

LegalZoom a cease and desist letter

indicating that LegalZoom’s online

document service constituted the unau-

thorized practice of law. LegalZoom

filed a lawsuit against the North

Carolina Bar Association in 2015 seek-

ing $10,500,000 in damages and

injunctive relief based on allegations of

unreasonable restraint of trade and

monopolization.

A review of the dock-

et in that case shows that the North

Carolina State Bar filed a motion to

dismiss on August 20, 2015. The terse

five page motion asserts failure to state

a cause of action, statute of limitations

and that the State Bar has immunity as

an agent of the state.

LegalZoom has not been welcomed in

New York with open arms. Former New

York State Bar Association president

Glen-Lau Kee wrote of LegalZoom’s

success: “We cannot let the market alone

drive and determine the nature of the

legal profession.”

Current New York

State Bar Association President David

Miranda was recently quoted as saying

of LegalZoom and other services like it:

“You talk about the law like it’s a busi-

ness ... It’s not. It’s a profession.”

Note: Glenn Warmuth is a partner at

Stim & Warmuth, P.C. where he has

worked for over 25 years. He has served

as a Director of the Suffolk County Bar

Association and as an Officer of the

Suffolk Academy of Law. He teaches a

number of courses at Dowling College

including Entertainment & Media Law.

He can be contacted at gpw@stim-war-

muth.com.

State v Winder, 42 AD2d 1039 (4

Dept. 1973).

Janson v LegalZoom.com, Inc., 802 F. Supp. 2d

1053 (W.D. Mo. 2011).

LegalZoom.com, Inc. v North Carolina State

Bar, MDNC, Case No. 15-cv-439.

http://www.legalzoom.com/legal-wills/wills-

pricing.html

LegalZoom.com, Inc. v North Carolina State

Bar, MDNC, Case No. 15-cv-439.

http://www.nysba.org/workarea/Download-

Asset.aspx?id=55585

http://www.abajournal.com/mobile/article/

disruptive_innovators _try_to_convince_skepti-

cal_attorneys_of_the_need_to_co

LegalZoom (Continued from page 1)

THE SUFFOLK LAWYER – NOVEMBER 2015 25

appealable within 60 days to the

Department of Motor Vehicles Appeals

Board by filing DMV Form AA-33A.

There is an option to go straight to an

administrative appeal to contest the

legality of the regulations as applied to

your client, but the Department of

Motor Vehicles will not consider the

unusual, extenuating and compelling

circumstances, which are important to

your client. A denial of the administra-

tive appeal is subject to judicial review

by a CPLR Article §78 lawsuit in state

Supreme Court filed within four months

of the date of the adverse determination.

Reported cases of CPLR Article §78

challenges to the regulations have not

met with success: Matter of Funes,v.

New York State Department of Motor

Vehicles, 2013 NY Slip Op 31082 (U),

Gaebel v. New York State Department

of Motor Vehicles, 43 Misc 3d 185,

2013 NY Slip OP 234404, Matter of

Brown v. New York State Department of

Motor Vehicles, 44 Misc 3d 182, NY

Slip Op 24082, Matter of Acevedo v.

New York State Department of Motor

Vehicles 2014 NY Slip Op 30422 (U),

Matter of Nicholson v. Appeals Board

of Administrative Adjudication Bureau,

2014 NY Slip Op 31537 (U), Argudo v.

New York State Department of Motor

Vehicles, 2014 NY Slip OP 32357 (u).

In the Matter of the Application of

Araujo v. New York State Department of

Motor Vehicles, 5057/14, NYLJ

1202670156299 at *1 (Sup., NA

Decided September, 9 2014), Matter of

Rothschild v. N.Y. Department of Motor

Vehicles, 2015 NY Slip OP 51351 (U)

000260-2015, NYLJ 1202738316730

at*1(Sup. RO, Decided August 14,

2015).

No evidence was taken at a hearing,

which mandates that Special Term

decide the case without a CPLR

§7804(g) transfer to the Appellate

Division. Yezek v. State Department of

Motor Vehicles Appeals Bd. 62 A.D. 3

107, 879 N.Y.S. 2d 571 (2 Dept 2009).

A summary of the decisions by

Supreme Court, Special Term and the

Appellate Division have relied upon

the long standing principle that a dri-

ver’s license is a privilege and not a

right and as such, the state is entitled to

impose reasonable regulations.

The cases have cited Vehicle and

Traffic Law §510(5) (6) for the propo-

sition that the Commissioner has dis-

cretion to restore a driver license or

privilege. The courts have been reluc-

tant to substitute their judgement for

that of the Department of Motor

Vehicles.

Legal arguments of retroactivity or

that administrative rulemaking in this

area has violated Legislature preroga-

tive has so far failed to persuade

Special Term or the Appellate Division.

Matter of NYC C.L.A.S.H v. New York

State Office of Parks, Recreation and

Historic Preservation 125 A.D.3d 105,

2014 NY Slip Op 09085, the Appellate

Division, Third Department, recently

reversed a successful challenge to reg-

ulations banning outdoor smoking in

state parks and found the actions were

appropriate within the rulemaking

authority. This case is instructive of an

appellate court’s reasoning in balanc-

ing the right to make reasonable regu-

lations against the legislative purview

or prerogative.

The Appellate Division, Fourth

Department, has upheld the permanent

revocation regulations. Matter of

Shearer v. Fiala,124 A.D. 3d 1291,

2015 NY Slip Op 0051.,lv. den., 25

N.Y. 3d 909. The panel rejected argu-

ments that Part §136 was legislative in

nature or in conflict with any look-back

period in the Vehicle and Traffic Law.

The decision found that the 25 year

look back period was correctly applied

in denying the petitioner’s driver license

application. The Court of Appeals

denied a motion for leave to appeal.

The Third Department recently

upheld the regulations turning aside

legal arguments concerning retroactivi-

ty, ex post facto application, legislative

preemption and statutory conflict.

Matter of Acevedo v. New York State

Department of Motor Vehicles,

cite as

Acevedo. DMV, 520060, NYLJ

1202734171346 at 1* (App. Div., 3

Dept Decided August 6, 2015). The

Appellate Division also rejected chal-

lenges in Matter of Dahlgren v. New

York State Department of Motor

Vehicles, 124 A.D. 3d 1400 (App. Div.,

Dept.), Matter of Scism v. Fiala, 122

A.D. 3d 1197, 2014 NY Slip Op 8283

(App. Div 3

Dept).

The Second Department has

weighed in and reversed Special Term

to uphold the determination of the

Department of Motor Vehicles perma-

nent denial of a driver license applica-

tion. Matter of McKevitt v. Fiala,

_A.D.3d _ 2015. The case was remitted

to Supreme Court to determine whether

unusual, extenuating and compelling

circumstances exist to order the

Department of Motor Vehicles to

depart from the general policy of per-

manent denial. Defense counsel may

wish file the appeal within 30 days of

the denial letter under unusual, extenu-

ating compelling circumstances. Your

client may believe that such circum-

stances apply to their case. The courts

have repeatedly upheld the regulation

for “three strikes” rule.

The Department of Motor Vehicles

permanent revocation regulations are

the subject of continuing legal chal-

lenges based upon many legal argu-

ments with the final chapter yet to be

written.

Note: David Mansfield practices in

Islandia and is a frequent contributor

to this publication.

Review of the DMV Permanent License Revocation Regulations (Continued from page 14)

26 THE SUFFOLK LAWYER – NOVEMBER 2015

In In re Pridgen, the court, inter alia,

was confronted with a request by a

potential objectant for the continued

SCPA 1404 examinations of the attor-

ney-draftsman of the propounded

instrument, an attesting witness and the

proponent. It appeared that the propo-

nent and the attorney-draftsman had

been examined, but that the sole sur-

viving attesting witness could not be

located, and thus her examination did

not take place as contemplated with the

draftsman and the proponent. The

movant, thus, maintained that the

examinations were not completed, and

that she was entitled to depose the

attesting witness, whose address the

draftsman had represented she would

provide, but had not to date. Further,

the movant maintained that the drafts-

man failed to bring the decedent’s

entire file to her examination, and rep-

resented that she would do so in the

event her examination was continued.

Additionally, the movant claimed she

was entitled to the continued examina-

tion of the proponent with regard to a

parcel of real property purportedly

belonging to the decedent at death.

The court denied the movant request

for the continued examination of the

proponent, finding that she had

appeared for her examination initially

and brought all demanded documents

in her possession. To the extent that fur-

ther information was sought with

regard to the subject real property, the

court held that the proponent was not

obligated to procure same. On the other

hand, the court noted that the attorney

draftsman had failed to produce all req-

uisite documents prior to her initial

examination, but instead, mailed the

balance of her the decedent’s file to

movant’s counsel after its completion.

Under these circumstances, the court

found that the movant could not be

foreclosed from examining the drafts-

man with respect to the additional doc-

uments produced. Moreover, the court

held that the movant was entitled to the

examination of the only surviving

attesting witness, whom she was

attempting to locate through the aid of

a private investigator.

In re Pridgen, N.Y.L.J., June 12,

2015, at p. 42 (Sur. Ct. Bronx

County).

Note: Ilene Sherwyn Cooper is a

partner with the law firm of Farrell

Fritz, P.C. where she concentrates in

the field of trusts and estates. In addi-

tion, she is past-Chair of the New York

State Bar Association Trusts and

Estates Law Section, and a past-

President of the Suffolk County Bar

Association.

Trusts and Estates Update(Continued from page 15)

plicated area of practice.

Over the past month the Suffolk

County Bar Association has hosted

several events, including the Council

of Committee Chairs, a meeting of

our 45 plus chairs who will plan and

execute the coming year’s programs,

identify the problems in their specif-

ic areas or in court and answer the

needs of their specific committee.

These chairs are our future leaders of

the bar association and the counsel

usually meets twice a year to guide

the chairs with their plans.

Committees are the backbone of our

organization … they function to

gather information, study issues,

reach a consensus, and make recom-

mendations to our Board of

Directors. For long-term effective-

ness, an association must have strong

committees.

We also held our annual Judiciary

Night, a celebration of our judiciary

and a means of strengthening our

relationship as practicing attorneys

with the judiciary. It is a wonderful

opportunity for attorneys to meet

judges in an informal setting free

from the constraints of the courtroom.

This year we were proud to honor

our former Chief Administrative

Judge, the Honorable A. Gail

Prudenti, who has been a faithful

member of our association and an

extraordinary jurist. I would also like

to take this opportunity to thank our

Presiding Justice the Honorable

Randall T. Eng, who has been such a

strong supporter of our association.

We thank him for braving those long

hours on the Long Island Expressway

to attend so many of our events.

I was proud to represent the

Suffolk County Bar Association at

the Bronx County Bar Association’s

annual gala, which was held at the

Villa Del Mar and attended by 600

people. It is so interesting to learn

about our neighboring bar associa-

tions and to collaborate on major

issues affecting all lawyers in the

state. The Presidents of the City Bar

of New York, New York State Trial

Lawyers, Richmond County Bar

Association and the Network of Bar

Leaders in NYC joined me. We were

all introduced to their audience.

Many of the attorneys attending

were personal injury lawyers and

when I told them that I was repre-

senting Suffolk County they said

they loved coming to Riverhead and

find our bench and bar to be very

professional and courteous at all

times.

Our Law Student BBQ was held at

our bar association and open to all

members. The goal was to have an

informal setting for law students to

get to know attorneys and judges in

our association. There was a terrific

turnout from the students as well as

attorneys and judges. These young

people are our future, and I told them

that the people they were meeting

that night might be part of their legal

career for many years to come.

In the weeks to come I will be

attending the House of Delegates

meeting at the New York State Bar

Association in Albany. The House is

the governing body of the State Bar

and the SCBA is granted delegates

based upon the amount of members

we have in the State Bar from

Suffolk County. Presently we have

five delegates. Out of the 62 counties

in the state, some counties have no

representation based upon their size;

Suffolk is one of the larger groups.

The House meets four times a

year and votes upon the positions of

certain specific issues that the State

Bar will take. The State Bar is the

largest bar in the state with 75,000

members. Last year Suffolk County

led the charge to oppose the Chief

Judge’s position to mandatory pro

bono reporting.

Many of the house meetings spark

lively debates. While one might

imagine that the members would be

divided between urban, suburban

and rural lines it has been my expe-

rience that the House is divided

between big firms, smaller firms and

solo practitioners. Suffolk County

gets a large voice at the State Bar

and over the last several years we

have worked diligently to build a

good relationship with the president

and incoming president of the State

Bar. We also have members who

hold prestigious positions in the

State Bar; our past president John

Gross is the Director of the New

York State Bar Foundation; past

president Scott Karson is Vice

President from Tenth Judicial

District and past president A. Craig

Purcell is a member of their

Nominating Committee and is co-

chair of their Committee on the Tort

System. The NYSBA President

comes to a joint Board of Directors

Meeting with Nassau County Bar

Association in the spring. Scott

Karson has been our delegate to the

American Bar Association (ABA)

for many years.

Associate Judge of the Court of

Appeals, the Hon. Jenny Rivera

spent the day with us in Suffolk

County. This was a wonderful

opportunity to personally meet a

judge from the highest court of the

state and to learn the workings of

the Court of Appeals. The dinner

was without charge to make this

program available to all members,

(there was a small charge for option-

al CLE).

Judge Rivera met our judiciary

and members of the board and

Academy officers and other mem-

bers for lunch. Our District

Administrative Judge the Honorable

C. Randall Hinrichs led a tour at the

Cohalan Court Complex in Central

Islip, followed by a meeting with

Dean Salkin, the faculty and stu-

dents of Touro Law and then came

back to the Bar Center for dinner

and the CLE with members of the

Bar.

Lastly, the Board of Director’s

have voted to create a task force

with a specific purpose. Their mis-

sion will be to propose a plan to

obtain funding for a full time 18b

administrator including staff. Our

current administrator, David Besso

has worked tirelessly to maintain

our 18b program. Mr. Besso has

received five grants from indigent

legal services in order to improve

the voucher system, provide CLE

for the members on the list, and pro-

vide first day appearance for D11

and the street arraignment part. The

arraignment and street arraignment

parts created 2,200 more vouchers

per year. Once a full time adminis-

trator is approved we will be seek-

ing and reviewing applicants for that

new position.

Your Board of Directors approved

the creation of a committee to

explore the feasibility of creating a

panel to conduct arbitration and

mediation through the Bar

Association. The board has recon-

structed the Task Force on Judicial

Screening to review the current

bylaws and to review and update the

candidate’s questionnaire.

It is my belief that what we do at

the Suffolk County Bar Association

is very different then what takes

place at the specialty bars. Being a

member of the Suffolk County Bar

Association is being part of your

profession. It not only gives you the

opportunity to continue to learn and

to be with your fellow attorneys, but

also gives you a voice. Membership

provides our members with an

opportunity to address the court and

the Office of Court Administration

with issues we have as members of

the bar, as well as a forum to solve

those issues.

Now that you have all the infor-

mation, it is my hope that you will

spread the news to your fellow col-

leagues and that you will continue to

stay involved, or become even more

involved in the activities of the

Suffolk County Bar Association.

President’s Message (Continued from page 1)

THE SUFFOLK LAWYER – NOVEMBER 2015 27

sure of sensitive information; now indi-

viduals have alleged that the DFSL’s

advertising may be false or misleading.

If an illegitimate team wins money, then

that team aggrieves all legitimate teams

as the illegitimate team’s monetary

award reducing the total amount of

money available for distribution to legit-

imate entries, thus altering the original-

ly advertised amount.

The U.S. Department of Justice and

FBI as of Oct. 15, 2015, are in the pre-

liminary stages of an investigation into

daily fantasy sports operators. The

Justice Department is investigating

into whether daily fantasy games are a

form of gambling that falls outside the

purview of the exemption.

Note: Michael Pernesiglio is a solo

practitioner of a general practice with a

primary focus in foreclosure defense,

criminal law, vehicle and traffic hear-

ings, transactional law, and sports and

entertainment representation. Michael

is an active member of the Suffolk

County Bar Association and is currently

enrolled in the Suffolk County Pro Bono

Foreclosure Settlement Conference Pro-

ject, the Assigned Counsel Defender

Plan of Suffolk County and occasionally

makes pro bono appearances at Nassau

County Supreme Courts and the Nassau

County Bar Association.

http://www.wsj.com/articles/fbi-justice-de-

partment-investigating-daily-fantasy-sports-

business-model-1444865627

http://www.bizjournals.com/newyork/blog/

techflash/2015/04/mlb-becomes-equity-

investor-in-draftkings.html

http://osgsports.sportsblog.com/posts/5028189/

finally—trouble-for-draft-kings-and-fan-duel-

as-employees-cheat—.html

http://espn.go.com/chalk/story/_/id/13825667/new-

york-attorney-general-eric-schneiderman-

launches-inquiry-draftkings-fanduel

Need to Regulate Fantasy Sports (Continued from page 13)

To Advertise in The Suffolk Lawyer

Call

631-427-7000

28 THE SUFFOLK LAWYER – NOVEMBER 2015

SUFFOLK ACADEMY OF LAW

The Suffolk

Academy of Law, the educational arm

of the Suffolk County Bar Association, provides a

comprehensive curriculum of continuing legal edu-

cation courses. Programs listed in this issue are

some of those that will be presented during the fall

of 2015.

(www.s

cba.org)

The

Suffolk

Academy of Law has been certified by the New

York State Continuing Legal Education Board as an

accredited provider of continuing legal education in

the State of New York. Thus, Academy courses are

presumptively approved as meeting the OCA’s

MCLE requirements.

Most, but not all, programs are

held at the SCBA Center; be sure to check listings

for locations and times.

Tuition prices listed in the

registration form are for

You

ay pre-register for classes by returning the regis-

tration coupon with your payment.

Refund requests must be received 48

hours in advance.

Tuition prices are

discounted for SCBA members. If you attend a

course at non-member rates and join the Suffolk

County Bar Association within 30 days, you may

apply the tuition differential you paid to your SCBA

membership dues.

If you plan to

attend a program and need assistance related to a

disability provided for under the ADA, please let us

know.

Speakers and topics are subject to

change without notice. The Suffolk Academy of

Law is not liable for errors or omissions in this pub-

licity information.

Tuition does not

fully support the Academy’s educational program.

As a 501(c)(3) organization, the Academy can

accept your tax deductible donation. Please take a

moment, when registering, to add a contribution to

your tuition payment.

For information on needs-based

scholarships, payment plans, or volunteer service

in lieu of tuition, please call the Academy at 631-

233-5588.

1-234-5588.

AN EVENING WITH COURT

OF APPEALS JUDGE

JENNY RIVERA

Judge Jenny Rivera of the Court of Appeals visits

the Suffolk County Bar. Join us for a reception and

dinner followed by a CLE presentation in which J.

Rivera will discuss the transition from legal advocate

and educator to the bench. The evening is FREE for

SCBA members, however, there is a fee if you wish

to receive CLE credits.

Hon. Jenny Rivera, NYS Court of

Appeals

5:30 p

.m. (reception); 7:15 p.m. CLE

presentation

Suffo

lk County Bar Association, 560

Wheeler Road, Hauppauge, NY

(Pr

ofessional Practice)

[Transitional or Non-Transitional]; $35

HOT BUTTON ISSUES IN

MATRIMONIAL LAW

This full day program will discuss the hottest issues

and newest cases in matrimonial law.

Ellen Bruno, Dr. Robert Goldman,

Professor Lewis Silverman, Lynn

Zimmerman, Esq., Robert Venduro, Esq.

Margaret Shaefler, esq., Dr. William

Kaplan, Robert Cohen, Esq., Daren

McGuire, Esq.

9:00 a

.m. – 4:00 p.m. (Registration from

8:30 a.m.)

Suffo

lk County Bar Association, 560

Wheeler Road, Hauppauge, NY

(5 P

rofessional Practice; 1.5

Skills) [Transitional or Non-Transitional];

$159

CRIMINAL LAW AND

PROCEDURE UPDATE

This is a joint program with the Nassau County Bar

Association. The program will be held in the Central

Jury Room at the Nassau County Supreme Court.

The program will address developments in federal

and state case law and recent statutory changes

Hon. Mark D. Cohen, Court of Claims,

Acting Supreme Court Justice, Suffolk

County; Kent Moston, Esq., Attorney in

Chief, Legal Aid Society of Nassau County

1:00 p.

m. – 4:00 p.m. (Registration from

12:30 p.m.)

ntral Jury Room, Nassau County

Supreme Court, 100 Supreme Court

Drive, Mineola

(2.

5 Professional Practice; .5

Ethics) [Transitional or Non-Transitional];

$115

VTL UPDATE

David Mansfield provides his yearly update on the

Vehicle and Traffic Law.

David Mansfield, Esq.

6:00 p.

m. – 8:30 p.m. (Registration from

5:30 p.m.)

Suff

olk County Bar Association, 560

Wheeler Road, Hauppauge, NY

(Prof

essional Practice)

[Transitional or Non-Transitional]; $75

VTL UPDATE – EAST END

–

David Mansfield provides his yearly update on the

Vehicle and Traffic Law specifically for an East End

audience.

David Mansfield, Esq.

6:00 p

.m. – 8:30 p.m. (Registration from

5:30 p.m.)

Bridgehampton

National Bank,

Community Room, 2200 Montauk Hwy,

Bridgehampton, NY 11932

(Prof

essional Practice)

[Transitional or Non-Transitional]; $75

PATENTS, TRADEMARKS

AND COPYRIGHTS FOR

THE NON-IP LAWYER

This program is for all non-intellectual property

lawyers who might encounter intellectual property

issues in their everyday practice. The program will

cover contractual issues, intellectual property issues

that arise in sale of a business, copyright issues that

arise in non-IP cases, patentability of computer pro-

grams and business methods, as well as trademark

issues.

Frederick J. Dorchak, Esq., John F.

Vodopia, Esq., Robert G. Gingher, Esq.,

William F. Gormley, esq., Irwin S. Izen,

Esq., Martin I. Saperstein, Esq., Thomas

A. O’Rourke, Esq.

6:0

0 p.m. – 9:00 p.m. (Registration from

5:30 p.m.)

ffolk County Bar Association, 560

O F T H E S U F F O L K C O U N T Y B A R A S S O C I A T I O N

N.B. - As per NYS CLE Board regulation, you must attend a

CLE program or a specific section of a longer program in its

entirety

to receive credit.

FALL 2015 CLE

SEMINARS & CONFERENCES

THE SUFFOLK LAWYER – NOVEMBER 2015 29

Wheeler Road, Hauppauge, NY

(3.0 Professional Pra

ctice)

[Transitional or Non-Transitional]; $90

AUTO LIABILITY UPDATE

Our annual Auto Liability Update provides insights

into new cases.

Professor Michael Hutter, Albany Law

School, Jonathan Dachs, Esq.

00 p.m. – 9:00 p.m. (Registration from

5:30 p.m.)

ffolk County Bar Association, 560

Wheeler Road, Hauppauge, NY

(Professional

Practice)

[Transitional or Non-Transitional]; $125

NEW MAINTENANCE

RULES LEGISLATION

Come and learn about the brand new maintenance

rules and legislation and what it means to your

clients.

Hon. Andrew Crecca, Eric Keeper, Esq.,

Elaina Karabatos, Esq.

00 p.m. – 9:00 p.m. (Registration from

5:30 p.m.)

ffolk County Bar Association, 560

Wheeler Road, Hauppauge, NY

(Professional

Practice)

[Transitional or Non-Transitional]; $90

EVALUATING NURSING

HOME NEGLECT CASES

This program explores how to advise clients with

nursing home neglect cases from three perspec-

tives: the plaintiff’s perspective, the defense per-

spective, and the perspective of the expert witness.

David Grossman, Esq., Keith Kaplan,

Esq., Alexander Weingarten, MD

00 p.m. – 9:00 p.m. (Registration from

5:30 p.m.)

ffolk County Bar Association, 560

Wheeler Road, Hauppauge, NY

(2 Professional Practi

ce; 1

Ethics) [Transitional or Non-Transitional];

$90

NEW BANKRUPTCY FORMS

– WHAT YOU NEED TO

KNOW

New Bankruptcy forms go into effect on December 1

– don’t wait to find out what’s included, how to com-

plete them properly and how they’ll affect your clients.

TBD

5:00

p.m. – 7:00 p.m. (Registration from

4:30 p.m.)

Suffolk

County Bar Association, 560

Wheeler Road, Hauppauge, NY

ransitional or Non-

Transitional]; $90

ANNUAL SCHOOL LAW

CONFERENCE

Additional information to follow.

ssau County Bar Association,

and West Streets, Mineola, NY

SUFFOLK ACADEMY OF LAW

O F T H E S U F F O L K C O U N T Y B A R A S S O C I A T I O N

30 THE SUFFOLK LAWYER – NOVEMBER 2015

Realizing you’re a bit short on

CLE credits for your upcoming

biennial registration? Had a con-

flict for a recent Academy program

that prevented you from attending?

Did you know that you could get

CLE credits any time, from any-

where, through the Suffolk

Academy of Law?

In addition to our live CLE pro-

grams, many of which are webcast

live so you can take them while sit-

ting at your desk in your office, at

home on your laptop, or on the go

on your tablet or mobile device, the

Academy offers a full list of

recorded programs that you can

access online through the SCBA

website. Navigate to our online

offerings through the MCLE tab

and go to “Online video replays

and live webcasts,” or go directly

to www.scba.inreachce.com and

simply search for the program or

practice area you want.

If you’re not comfortable with

our online options, the Academy

also offers DVDs or CDs of past

programs. We’re working on our

recorded catalog now - under the

MCLE tab on the SCBA website,

go to “DVDs and Audio CDs of

prior programs” to see our avail-

able offerings, and check back fre-

quently as we add new programs.

Or contact Nicolette at the

Academy who can help you make

selections that make sense for you

and your practice.

The Academy currently has pro-

grams available in over 35 prac-

tice areas from Alternative

Dispute Resolution through

Veterans programs and everything

in between. For example, if you

missed any of these recent pro-

grams, they’re available on

demand, on DVD or CD:

• Residential Real Estate Nuts

and Bolts to Advanced

Practice, Part 1

• CPLR/Civil Practice Update

with Professor Patrick Connors

• Part 36 Receivership Training

and Update

• Law in the Workplace

Conference

• Henry Miller “On Trial” -

Summations

ACADEMY OF LAW NEWS

CADEMY

Calendar

of Meetings & Seminars

Note: Programs, meetings, and events at the Suffolk County Bar Center (560

Wheeler Road, Hauppauge) unless otherwise indicated. Dates, times, and topics

may be changed because of conditions beyond our control CLE programs involve

tuition fees; see the CLE Centerfold for course descriptions and registration

details. For information, call 631-234-5588.

OCTOBER

26 Monday An Evening with Court of Appeals Judge Jenny

Rivera, 5:30 p.m. (reception); 7:15 p.m. (CLE pres-

entation); 1 credit, $35. Evening includes Free wine

reception and seated dinner for SCBA members.

NOVEMBER

6 Friday Hot Button Issues in Matrimonial Law – Full Day

Program, 9:00 a.m.-4:00 p.m., 6 credits, $159.

Continental breakfast and a light lunch will be served

6 Friday Criminal Law and Procedure Update, 1:00-4:00

p.m. **This program will be held in Nassau County in

the Central Jury Room, Nassau Supreme Court. 3

credits $115

12 Thursday VTL Update (Hauppauge), 6:00-8:30 p.m., 2.5

credits, $75. A light supper will be served

17 Tuesday Patents, Trademarks and Copyrights for the Non-

IP Lawyer, 6:00-9:00 p.m., 3 credits, $90. A light

supper will be served

18 Wednesday VTL Update on the East End, 5:30-8:00 p.m., 2.5

credits, $75. A light supper will be served

19 Thursday Auto Liability Update, 6:00-9:00 p.m., 3 credits,

$125. A light supper will be served

DECEMBER

1 Tuesday New Maintenance Rules Legislation, 6:00 p.m.-9:00

p.m., 3 credits, $90. A light supper will be served

2 Wednesday Evaluating Nursing Home Neglect Cases, 6:00

p.m.-9:00 p.m., 3 credits, $90. A light supper will be

served

3 Thursday New Bankruptcy Forms – What You Need to

Know, 5:00-7:00 p.m., 2 credits, $60. A light supper

will be served

14 Monday Annual School Law Conference, 9:00 a.m.-4:00

p.m., This program will be held at the Nassau County

Bar Association. More information to follow.

Please note: Materials for all Academy programs are provided online and

are available for download in PDF format prior to or at the time of the pro-

gram. Printed materials are available for an additional charge.

Get Your CLE Credits Any Time, Anywhere, Through the Academy

The Academy has two important

programs scheduled in early

December on recent major

changes in the law.

First, on December 1, the

Academy will present a three

credit evening program covering

the New Maintenance Rules

Legislation, featuring Hon.

Andrew Crecca, Erick Keeper,

Esq., and Elaina Karabatos, Esq.

These new rules have already gone

into effect and will have a signifi-

cant impact on matrimonial

actions involving maintenance, so

this is a must-attend!

Next, on December 3, we will

present a program on the New

Bankruptcy Forms – this pro-

gram will cover the new forms that

go into effect on December 1.

Don’t wait to find out how these

forms will affect your matter and

how to ensure they are completed

properly.

For more information about our

other upcoming programs,

including November’s VTL

Update and Auto Liability

Update, please see the center

spread in this issue of the Suffolk

Lawyer, or access the flyers for

these programs through the

Academy calendar at scba.org.

Stay Up to Date on the Very

Latest Changes in the Law

CADEMY OF

FFICERS

Officers

Sima Asad Ali

Brette A. Haefeli Associate Dean

Robert M. Harper

Jennifer A. Mendelsohn Treasurer

Marianne S. Rantala

Hon. John J. Leo

Gerard J. McCreight

Peter D. Tamsen

Charles Wallshein

Michael G. Glass

Patrick McCormick Associate Dean

Hon. James F. Quinn

Debra L. Rubin Curriculum Chair

Arthur E. Shulman

Leonard Badia

Vincent Danzi

Paul Devlin

Jeffrey Horn

Cory Morris Secretary

Janna Visconti

DEAN

Harry Tilis

EXECUTIVE DIRECTOR

Allison C. Shields

THE SUFFOLK LAWYER – NOVEMBER 2015THE SUFFOLK LAWYER – NOVEMBER 2015 31

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Real Estate, Zoning and Land Use, and

Business Litigation.

Please call

631-747-7165.

the terms and conditions of using these

payment methods

Other issues to consider include:

What are the consequences for the

client’s late payment or failure to pay?

Will work stop until the account is cur-

rent? Will the client be charged interest?

In addition to the lawyer’s fees, will

there be costs incurred during the

course of the engagement that will be

the client’s responsibility? Will the

client pay those costs up front or will

the law firm pay them and seek reim-

bursement from the client? What kinds

of costs will be incurred (filing fees,

expert witness fees, court reporter’s

bills, etc.) and when will the client be

expected to pay these costs?

The duties and responsibilities of

the parties

The agreement should set forth not

only the lawyer’s obligations to the

client, but also the client’s obligations to

the lawyer: to cooperate with the lawyer,

respond to requests, provide necessary

documents and information in a timely

manner, preserve data, and more.

Some lawyers may wish to include

information about which attorney or

attorneys will be staffing the client’s

matter and/or to reserve the right to

make appropriate changes in staffing the

matter. Good practice dictates that any

such changes be communicated to the

client immediately and that the client

does not incur additional fees as a result

of a staffing change made by the firm.

This may also be the place in the

agreement to discuss the client’s right

to their file and the firm’s file retention

policies and time limitations.

Arbitration and mediation

Lawyers may be required to

include a clause in the engagement

agreement that advises the client of

the right to arbitration or mediation

of fee disputes. Some jurisdictions

even have mandatory arbitration or

mediation of fee disputes, or may

permit a lawyer to mandate through

their engagement agreement that the

client must go through arbitration or

mediation prior to filing a suit over

the legal fee.

Grounds for withdrawal or other

consequences for breach of the

agreement

The agreement should advise the

client of the lawyer’s right to withdraw,

subject to court approval where appli-

cable, as well as the grounds and pro-

cedure for any such withdrawal. The

client should also be advised of their

right to discharge the lawyer and the

method for doing so.

A time limitation/when the

agreement takes effect

When clients fail to return an

engagement agreement, it can lead to

potential problems. The agreement

should state specifically that the provi-

sions contained within it (including the

fee) are only valid if the agreement is

signed within a specific period of time

(i.e. 2 weeks. one month, etc.) It should

be clear that if the agreement (and

retainer fee) is not received within that

period of time, the lawyer is not obli-

gated to represent the client. It may be

prudent to follow up with a non-

engagement letter once the time period

has expired.

No guarantees

Finally, it may be prudent to advise

the client right in the engagement

agreement that the firm cannot guaran-

tee the client any specific outcome to

their matter.

Note: Allison C. Shields, Esq. is

the Executive Director of the Suffolk

Academy of Law and the President of

Legal Ease Consulting, Inc., which

provides productivity, practice man-

agement, marketing, business devel-

opment and social media training,

coaching and consulting services for

lawyers and law firms nationwide. A

version of this article originally

appeared in the Simple Steps col-

umn of Law Practice Magazine.

Engagement Agreements 101(Continued from page 21)

the law, some Long Island municipali-

ties have proactively begun to plan for

and implement hazard mitigation meas-

ures. Steps that coastal municipalities

can and are taking include: reviewing

waterfront development plans and relat-

ed regulations to assess whether devel-

opment and rebuilding is being allowed

or even encouraged in areas that are cur-

rently vulnerable or will become vulner-

able within the lifespan of the develop-

ment, and whether the development is

increasing the vulnerability of adjacent

areas; amending structure elevation

requirements to reduce the vulnerability

of the structure throughout its entire use-

ful life, not just for the next five, ten or

twenty years; assessing zoning and

building codes to determine whether

they impose requirements on the con-

struction of elevated structures that

increase local flood risk by, for example,

increasing impermeable surface areas;

and educating residents on scientific

projections regarding future flood and

other related risks so that they can make

prudent building and buying decisions.

Because we can anticipate the addi-

tion of substantial new building stock

and infrastructure over the next few

decades, local governments that regu-

late the placement and, in some

respects, design aspects of building

stock have an opportunity — if not a

duty — to avoid locking in infrastruc-

ture that increases flood and other

related risks.

To learn more about disaster

resilience and land use, join planners,

municipal board members and staff,

lawyers, law students and others at

Touro Law Center’s October 2015

Bagels with the Boards CLE and

March 2016 Second Annual Long

Island Coastal Resilience Summit. Visit

www.tourolaw.edu/landuseinstitute/ for

more information and to register.

Note: Sarah J. Adams-Schoen is an

Assistant Professor of Law at Touro Law

Center and Director of Touro Law’s

Land Use & Sustainable Development

Law Institute. She is the author of the

blog Touro Law Land Use (http:// touro-

lawlanduse.wordpress.com), which aims

to foster greater understanding of local

land use law, environmental law, and

public policy. At Touro Law Center, she

teaches Property Law, Land Use Law,

Environmental Law and related courses.

Patricia Salkin, Sustainability at the Edge: The

Opportunity and Responsibility of Local

Governments to Most Effectively Plan for

Natural Disaster Mitigation, 38 ENVT’L L.R.

10158, 10159 (2008).

See, e.g., Maxine Burkett, Duty and Breach in

an Era of Uncertainty: Local Government

Liability for Failure to Adapt to Climate Change,

20 GEO. MASON L. REV. 775, 780–81 (2013).

See, e.g., Vermef v. City of Boulder City, 80

P.3d 445, 445 (Nev. 2003), abrogated by ASAP

Storage, Inc. v. City of Sparks, 173 P.3d 734

(Nev. 2007); Walter Legge Co. v. City of

Peekskill, 619 N.Y.S.2d 771, 771–72 (N.Y. App.

Div. 1994).

See Cootey v. Sun Inv., Inc., 718 P.2d 1086,

1088–89 (Haw. 1986).

No. 05-1119L, 2015 WL 2058969 (Fed. Cl.

May 1, 2015).

133 S. Ct. 511, 515 (2012).

Failure to Adapt to Climate Change (Continued from page 17)

32 THE SUFFOLK LAWYER – NOVEMBER 2015