Law Day Celebration in Onondaga County – Bringing the Community Together to Commemorate the Signing of the Magna Carta

ONONDAGA COUNTY BAR ASSOCIATION

VOLUME 60 NUMBER 4 | APRIL 2015

CNY Philanthropy Center | 431 East Fayette St. | Syracuse, NY 13202 | Phone: 315-471-2667 Law Day Celebration in Onondaga County – Bringing the Community Together To Commemorate the Signing of the Magna Carta

Hundreds of OCBA members, members of the local bells in recognition of the Magna Carta, OCBA President Judiciary, high school students and special guests joined in Jean Marie Westlake presented the celebration of the 2015 Law Day in Onondaga County the Liberty Bell Award to East on Friday, May 1st. Law Day is a local program put on by Syracuse-Minoa Social Studies the Onondaga County Bar Foundation. teacher Joseph Musolino, for his efforts to promote justice and The theme for this year’s national recognition of Law Day advance appreciation for the law in was the 800th Anniversary of the signing and sealing of the our community. Magna Carta. For the first time ever, the formal morning ceremony was held outside, on the steps of the Onondaga Nearly 150 high school students were County Court House during a beautiful spring morning. then treated to tours and programs at Before that ceremony, local attorneys and the Judiciary the Onondaga County Court House, assembled on the steps for a group portrait, taken by both the Criminal Courts Building and the Federal Court House. a photographer on foot and an aerial drone photographer. Organizing those tours were: the Hon. Michael Hanuszczak; Appellate Division Justice Edward Carni presided over the Sandy Holihan, Law Clerk to the Hon. Anthony Paris; morning ceremony (see his keynote address, page 3). After Assistant District Attorney Romana Lavalas; retired Judge welcoming the guests, many of whom were high school Langston McKinney; the Hon. Brenda Sannes, and Gioia students, Judge Carni introduced County Executive Joanie Gensini. Mahoney who offered her congratulations and delivered a Then, more than 300 convened at the new Sky Armory venue proclamation naming May 1st, 2015 as Law Day in Onondaga downtown for the traditional Law Day Luncheon. Retired County. Syracuse City Court Judge Langston McKinney delivered a Following Judge Carni’s address and a ceremonial bell- passionate introduction, encouraging those in attendance ringing of the Cathedral of the Immaculate Conception’s (and especially the youth) to protect and promote the Continued on page 5

Inside: Reflections on the Magna Carta – Justice Edward D. Carni MISSION : To maintain the honor and dignity of UPCOMING 2015 EVENTS: the profession of law, to cultivate social discourse among its members, Elder Law Fair Thursday | May 28 and to increase its significance in CPLR Update 2015 Friday | June 5 promoting the due administration of Justice. From the President:

Dear Friends, After many months of planning and organizing, our annual Law Day celebration was held on Friday, May 1, 2015. It was a wonderful event attended by many people from our community as well as our members. Law Day is a huge undertaking of meetings, planning, scheduling, and organizing. The day would not be possible without the tremendous generosity of our volunteers. This year, the Law Day committee was chaired by Joseph J. Bufano, Esq. and Donald E. Budmen, Esq. from the law firm of Ferrera, Fiorenza, Larrison, Barrett & Reitz, P.C.. This was their first year as co-chairs. They were assisted by the following dedicated Law Day committee members:

Kathy Birmingham Anne Burak Dotzler Gioia Gensini Hon. Deborah Karalunas Romana Lavalas Michelle Mack Hon. Langston McKinney Lanessa Owens Anastasia Semel Heather Saroney Joe Vargo

Together, they did an outstanding job and made the day very special! It is volunteers such as Joe, Don and the committee members that we are so thankful for, as it is their hard work that allows the Bar Association to host events for our members and community. OCBA has many more events planned throughout the year. If you would like to get involved and volunteer, please contact Jeff Unaitis, Executive Director at (315) 471-2667. Regards, Jean Marie Jean Marie Westlake | OCBA President [email protected] Telephone: (315) 479-9000

2015 OCBA BOARD OF DIRECTORS

President Immediate Past President Romana A. Lavalas Jean Marie Westlake Nicholas J. DeMartino Scott A. Lickstein Hon. James P. Murphy President-Elect Executive Director Frank B. Pelosi Anne Burak Dotzler Jeffrey A. Unaitis Wendy S. Reese Aaron J. Ryder Vice President Directors James M. Williams Blaine T. Bettinger David M. Snyder Kimberly M. Zimmer Treasurer Bruce R. Bryan John T. McCann Joseph J. Bufano Ex Officio Sam Elbadawi Dean Hannah R. Arterian Secretary Paula Mallory Engel Mark W. Wasmund Deborah Sundquist O’Malley Danielle M. Fogel Stuart J. LaRose

2 REFLECTIONS ON THE MAGNA CARTA Justice Edward D. Carni, Appellate Division 4th Dept. When I was asked to preside over today’s particular experience or prior in-depth study of the “Great Charter Law Day ceremony, I quickly agreed. of Liberty” beyond the ordinary encounters one experiences in I was then asked to give a speech on high school, college and then briefly in law school. today’s theme - “the Magna Carta.” My The Magna Carta is often spoken of in those settings as the greatest first question was how long should it be? constitutional document of all time and the foundation of freedom Joe Bufano, one of today’s organizers against the arbitrary authority of the despot. As I prepared my responded - “about 20 minutes.” As Joe remarks for today, I learned many new and interesting things sat in my chambers, I looked over at the about the Magna Carta - not only with respect to the historical stacks of briefs and records and thought circumstances in which it arose, but perhaps more importantly of a lesson for the young lawyers, perhaps about its modern-day significance. The value of the 800 year-old even for the more experienced lawyers Magna Carta as a historical relic was demonstrated by the fact too. Less is more. Quite frequently I pick up a 40 page brief and that during WWII, in 1939, one of Great Britain’s copies of the think to myself - “that could have been done in 20 pages.” So today, document [there are only 4 copies remaining from the year 1215] I followed that formula and decided to reduce my comments to 10 was removed from Great Britain to the Library of Congress in minutes. Being in the Appellate Division, I of course put it up for a Washington, D.C. for safekeeping. When the United States entered vote and Justice Centra and Justice DeJoseph concurred. the war, the British copies of It is my great pleasure to have the opportunity to share this Law the Magna Carta were moved Day with all of you as we recognize and celebrate the 800 year to a secure hideaway at Fort anniversary of the Magna Carta. I would note that today is also Knox, Kentucky along with $21 the 57th anniversary of Law Day - a celebration and recognition billion in gold bars - and not of the rule of law first proposed by the American Bar Association returned until the surrender in 1957 and proclaimed by President Eisenhower in 1958. It is no of Germany. Notably, Great coincidence that Law Day is observed on the 1st day of May. In Britain’s priceless treasures the 1950’s, the traditional spring holiday of “May Day” on the 1st made their return to the of May was identified by Socialist and Communist organizations, United States in 2009 and with great support by the Soviet Union, as a day to celebrate were displayed at the Ronald and support Communist ideas and values. In response, in 1955 Reagan Presidential Library in President Eisenhower and Congress enacted “Loyalty Day” - a day California and at the Library of for Americans to reaffirm their loyalty to the United States and to Congress as recently as January recognize our great heritage of American freedom. 19, 2015. Loyalty Day remains codified at 36 USC § 115. “Law day” was Documents recently unveiled enacted by Congress in 1958 as a further extension of Loyalty Day by the British government demonstrate that in 1939, Winston and is codified in 36 USC § 113. Law Day continues to be celebrated Churchill, Prime Minister at that time, proposed the idea across this country with great success and positive impact as shown of making a gift to the United States of one of Great by this gathering here today. Britain’s four copies of the Magna Carta as a way to solidify Turning to the topic of the day, I must confess that when invited to the Anglo- American relationship and “butter-up” America offer some remarks for today’s Law Day theme on the significance of to induce her to join in the war against Germany. Internal the Magna Carta, an 800-year old document written in 3600 Latin memos from the British Foreign Affairs Department words on a single-page of parchment made of sheepskin, I had no Continued on page 11

3 OCBA’S Committee on Diversity and Inclusion’s Lawyer Chat Initiative Receives Spark Award

Angela C. Winfield, Esq. | Hiscock Barclay, PLLC at Law) met with students during this inaugural half-day event. A new initiative of the Onondaga County “Lawyer Chat” was a tremendous success and well-received by all Bar Association’s Committee on Diversity involved. The nearly 75 students reached were genuinely eager and Inclusion called “Lawyer Chat” has to speak with lawyers about opportunities in the law and the been selected to receive the Manufacturers participating attorneys enjoyed engaging with youth and getting a Association of Central New York (“MACNY”) better understanding of students’ concerns about the law and legal Partners for Education and Business (“PEB”)’s profession. PEB looks forward to bringing “Lawyer Chat” to other Financial and Professional Services Sector Syracuse City schools in the future. The Committee on Diversity Spark Award, which will be presented at PEB’s annual awards and Inclusion also plans to expand “Lawyer Chat” to reach more celebration on June 10, 2015. students and youth programs that serve groups traditionally underrepresented in the legal profession -- part of its initiative to Spearheaded by Renato Smith, an attorney in Hiscock & Barclay’s cultivate a bar that not only reflects, but embraces and is enhanced Intellectual Property practice group, “Lawyer Chat” is a program by the diversity in the greater Onondaga County community. in which attorneys from diverse backgrounds meet 1-on-1 with high school students to talk about careers in the legal profession A special thanks to the OCBA staff, the Committee on Diversity and answer questions about the practice of law. The initiative and Inclusion and everyone involved. Congratulations for a job debuted at this year’s Law Day Career Fair at Fowler High School well done! and reached approximately 75 students. Smith took the lead - For details on the serving as the program contact person, designing the program PEB awards ceremony materials, coordinating the participating attorneys, and other visit the events page program details. Additionally, Smith along with Annie Dotzler at www.macny.org. If (Employment attorney at Hiscock & Barclay and OCBA President- you are interested in Elect), Eric Galvez (Intellectual Property attorney at Hiscock & getting involved with Barclay), Angela Winfield (Commercial Litigation HBLaw), the OCBA’s Committee Lanessa Owens (Regional Counsel to the NYS Assembly and on Diversity and Executive Director of the William H. Johnson Bar Association), Inclusion, please Sally Curran (Executive Director of The Volunteer Lawyers contact Jeff Unaitis at Project of Onondaga County, Inc.), and Jemeli Tanui (Attorney 471-2667 or [email protected].

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4 Law Day in Onondaga County – from page 1

liberties which flow from the 800-year-old Magna Carta. P. Murphy, N.Y.S. Supreme Court Justice; and Hon. Michele Onondaga County Bar Foundation President Stuart LaRose Pirro Bailey, Onondaga County Family Court Judge. presented Christian Brothers Academy, winners of the 2015 Law Day, its student programs and subsidized student County Mock Trial Competition, with their plaques and lunches would not have been possible without the support awards. of the following sponsors and the Law Day Committee: Law Day Co-Chairs this year were Joseph Bufano and Presenting Sponsor: Onondaga County Bar Foundation Don Budmen, of Ferrara, Fiorenza, Larrison, Barrett & Platinum Sponsors: Reitz, P.C. Mr. Bufano presented other student awards at the luncheon including those to the middle school and Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C. high school creative and essay contest winners; and to the Hiscock & Barclay, LLP, and Legal-Med Syracuse University College of Law Clinic Award winner, Event sponsors: Joseph Sulpizio, for his efforts in the Elder Law Clinic. Assemblyman William B. Magnarelli, Counsel Press and Three scholarship recipients were honored by the New The Law Office of Hugh C. Gregg, II Justice Youth Court Program and presented with $500 And our Supporters: scholarships by Executive Director Heather Saroney and The Hon. Deborah H. Karalunas, Ellen S. Weinstein, Esq. Board Member Romana Lavalas: Keri Peyton, Anthony Kesler and Frank Procopio. D&M Litigation Services and Precision Reporting. Dan Cummings, from WSYR NewsChannel9, moderated a student debate with the following question: “Does a juror’s access, prior to a criminal trial, to online social media about a defendant’s alleged participation in a crime, prejudice the defendant’s right to a fair trial?” The student team from Fayetteville-Manlius High School, Richard Wang and Shawn Wu, bested the team from ESM -- Robyn Walters and Meredith Peckham – to win that debate. A distinguished panel of judges made that decision: Hon. Thérèse Wiley Dancks, U.S. Magistrate Judge; Hon. James

5 Court of Appeals & Fourth Department Civil Practice Case Notes Contributors from Hiscock & Barclay, LLP and Northern District of New York

COMMERCIAL LITIGATION State Human Rights Law against a municipality. The court reasoned that Jason C. Halpin, Esq. human rights law claims were not tort actions under General Municipal Oral Modification Law §50-e and were not personal injury, wrongful death or damage to personal property claims under General Municipal Law §50-i. The Court Irakoze v. Sambuco, 2015 N.Y. Slip. Op. 02256 (4th further modified the order of the Appellate Division denying the plaintiffs’ Dep’t Mar. 20, 2015). motion for summary judgment. Relying on the rule set forth by the United Court of Appeals & Civil Practice Case Notes Plaintiff and defendant entered into an agreement States Supreme Court in Ricci v. DeStefano, 557 U.S. 557, 585 (2009) -- whereby plaintiff was to purchase property from that “before an employer can engage in intentional discrimination for the defendant in “as is” condition for $35,000. Plaintiff asserted purpose of avoiding or remedying an unintentional disparate paid defendant and took possession, although title had not yet been impact, the employer must have a strong basis in evidence to believe it will transferred. Defendant subsequently advised plaintiff that adjustments be subject to disparate-impact liability if it fails to take the race-conscious, would be made at closing for, inter alia, renovations and improvements discriminatory action” -- the Court of Appeals held that whether the City made to the property at plaintiff’s request. Plaintiff commenced an had “a strong basis in evidence to believe it [would] be subject to disparate- action for breach of contract seeking, inter alia, specific performance. impact liability” at the time that it terminated the promotion eligibility The trial court granted plaintiff’s motion for summary judgment on lists raised issues of fact that could not be determined on a motion for her cause of action for specific performance, but the Appellate Division summary judgment. Accordingly, the Court held that the order of the reversed, concluding that defendant raised an issue of fact on whether Appellate Division should be modified by remitting to the trial court for the renovations and improvements are “unequivocally referable to [a] further proceedings modification” of the agreement based in part on the language of the Wage and Hour Law receipt for $35,000, which both parties signed. Doolittle v. Nixon Peabody, LLP, 126 A.D.3d 1519, 2015 NY Slip Op Deeming Facts Admitted Under Rule 19-a 02630 (4th Dep’t Mar. 27, 2015). Matter of Crouse Health Sys., Inc. v. City of Syracuse, N2015 N.Y. Slip. Plaintiff, a former associate attorney employed by Defendant, commenced Op. 02258 (4th Dep’t Mar. 20, 2015) an action under the New York Labor Law, among other common laws, Petitioner filed a motion for summary judgment. In support of its seeking to recover a collections bonus that he allegedly earned during his motion, petitioner submitted a Statement of Undisputed Material Facts employment with Defendant. Plaintiff alleged that, during his employment, pursuant to Rule 19-a of the Rules of the Commercial Division of the various partners advised him and other associates that defendant would Supreme Court. The 19-a Statement was an almost verbatim repetition pay a bonus consisting of 5% of its annual fee collections in excess of of an affidavit submitted by one of petitioner’s employees in support of $100,000 from any client generated by the associate. In 2005, plaintiff the motion. The trial court deemed the facts in the Rule 19-a Statement generated a new client for defendant and in 2008, an award was issued admitted because respondent did not submit a paragraph-by-paragraph in favor of the client in the amount of $19 million. In September 2008, response to petitioner’s statement. The Appellate Division concluded plaintiff left defendant firm for a new job. In November 2008, defendant that the trial court abused its discretion in doing so because respondent collected a contingency fee of $5 million from the client, however, did not “clearly disputed the content of the information in [the employee pay plaintiff the 5% collections bonus in connection with the fee. The affidavit],” petitioner “failed to submit sufficient evidence in admissible trial court granted defendant’s motion for summary judgment dismissing form in support of the 19-a Statement,” and “[t]he evidence submitted in the complaint, concluding that collections bonuses were discretionary in support of petitioner’s motion failed to eliminate all ‘triable issues of fact.’” nature. LABOR AND EMPLOYMENT On appeal, the Appellate Division held that the trial court erred in Anne Burak Dotzler, Esq. granting defendant summary judgment and dismissing the plaintiff’s causes of action under the Labor Law, breach of contract, promissory Human Rights Law - Notice of Claim estoppel, and quantum meruit. Pointing to New York’s “long-standing and Disparate Impact policy against forfeiture of earned wages,” the court reasoned that, because Margerum v. City of Buffalo,24 N.Y.3d 721, 5 it was unclear whether the defendant clearly indicated to plaintiff during N.Y.S.3d 336 (Feb. 17, 2015). his employment that bonuses were “purely discretionary,” and therefore, 12 white firefighter plaintiffs employed by the a question of fact existed as to whether unpaid incentive compensation Buffalo Fire Department commenced the action under the defendant’s bonus plan constituted a discretionary bonus or alleging that the City of Buffalo engaged in reverse, earned wages not subject to forfeiture. disparate treatment racial discrimination by permitting the Buffalo Fire Department’s promotion eligibility lists to expire before their maximum MUNICIPAL LAW/REAL PROPERTY TAX legal duration, thereby violating the Human Rights Law, the Civil Service Thomas A. Carnrike, Esq. Law, and the New York State Constitution. Plaintiffs alleged that had Law Clerk to Hon. Andrew T. Baxter, USMJ the lists been extended to their maximum duration of four years, in accordance with historical practice, they would have received promotions. Municipal Law - Unconstitutional Fines/Due Prior to answering, the City moved to dismiss the complaint pursuant to Process CPLR 3211, arguing, among other grounds, that the plaintiffs’ undisputed D’Alessandro v. Kirkmire, 125 A.D.3d 1309, 3 failure to file a General Municipal Law §50-i notice of claim was grounds N.Y.S.3d 216 (4th Dep’t Feb. 6, 2015). for dismissal. Plaintiffs moved for summary judgment on liability. The In an attempt to remedy a backlog of outstanding and trial court denied the City’s motion to dismiss and granted summary uncorrected code violations, the City of Rochester judgment in favor of plaintiffs. The Appellate Division affirmed the denial amended its Municipal Code in 2009 to permit the City to college a “case of the City’s motion to dismiss and concluded that the plaintiffs were management fee” of $100 in any case in which a property owner failed, not entitled to summary judgment because they failed to establish as a for over one year, to comply with a notice of violation and order related matter of law that the City’s actions were not narrowly tailored to meet a to code violations. The stated intent of the legislation was “to obtain some compelling interest. reimbursement for the cost of [property] inspections and to reduce the number of [notice and order] cases. The City Director of Inspection and On appeal, the Court of Appeals upheld the lower courts’ decisions denying Compliance Services was responsible for imposing the CMF on delays the City’s motion to dismiss, holding that service of a notice of claim is not a condition precedent to commencing an action based on the New York Continued on page 9 6 HELP US FIND THE 2015 DISTINGUISHED LAWYER!

Accepting Nominations For Distinguished Lawyer 4. Must possess ethics beyond reproach. And Ruger Awards The Distinguished Lawyer Committee is also accepting nominations We are also seeking more members for the for the William C. Ruger Centennial Award, created during the OCBA selection committee. Centennial in 1975. The Ruger Award was named after the first president The Onondaga County Bar Association is of the OCBA, who later served as Chief Judge of the New York State Court seeking nominations for the 2015 Distinguished of Appeals. This award is given to a judicial officer and is “reserved for Lawyer. We have been honoring a local attorney recognition of singularly outstanding achievement in devotion to the for distinguished service to the profession since principles of our system of justice.” Since the creation of this award, only 1968. The Distinguished Lawyer Committee six jurists have been its recipients. reviews written nominations and recommends a candidate to the Board of The awards are presented at OCBA’s Annual Dinner in October. The Directors for its approval. committee would like to have the nominations by May 31, 2015. In order to qualify for nomination, the lawyer Nominations may be submitted to the OCBA office, in care of, Gioia A. 1. Must have devoted a full-time professional career to the law; Gensini, Chair of the Committee. The committee is also seeking new 2. Must possess exceptional lawyering skills; members to help us make our selections. 3. Must display a devotion or dedication to the profession as Please join us. Any OCBA member interested in more information about evidenced by involvement or participation in projects or activities, the nomination process or about joining the committee may contact: reflecting an unselfish donation of time to the betterment of the OCBA at 471-2667 or Gioia Gensini at 234-8604. profession; Seeking More Members For The Selection Committee

ELDER LAW FAIR 13th 13th Annual Annual Planning for Life after 50

Thursday, May 28th FREE & OPEN TO ALL 8:00am-1:00pm Educational Sessions Onondaga Community College On Legal Issues Of Interest Academic Building #2 To Older Adults & Their Families 4585 W Seneca Tpk TOPICS INCLUDE: FREE SHUTTLE • Protecting Your Home • Wills and Planning PARKING ONSITE • Paying for Long Term Care • Senior Exploitation & Abuse and • Aging Safely at Home • Powers of Attorney FREE CONTINENTAL • Grandparents’ Rights • Estate Administration BREAKFAST • Under 65 Health Care with or without a Will • Medicare Options • Women’s Retirement • End of Life Care Realities and more.... Register by phone: (877) 926-8300 or Online aarp.cvent.com/ElderLaw2015 This year’s Elder Law Fair is brought to you by: Estate Planning Council of CNY, Inc. | Onondaga County Office for Aging | AARP & AARP-Onondaga Chapter Volunteer Lawyers Project of Onondaga County, Inc | Legal Services of CNY, Inc. | Hiscock Legal Aid Society Legal Aid Society of Mid-New York | Onondaga County Department of Social Services Onondaga County Bar Foundation | Syracuse City School District Parent University | M&T Bank | Prudential Volunteers Needed in One hour blocks from10:00 am - 1:00 pm Interested? email: [email protected]

7 Living History | Honor Flight Syracuse Reprinted with permission from OCC Continuum Donald Mawhinney Jr. is a member of our greatest generation. He was born in 1926 and served his country as a member of the United States Army during World War II having enlisted at age 17. In the 1940s he served in the Infantry, Army Air Corps as a Nose Gunner, on a B-24 Bomber, as Second Lieutenant Cavalry, First Lieutenant Armored Tank Platoon Commander. On April 25, 2015 Mawhinney and approximately 80 other veterans were flown to Washington, D.C. as part of Honor Flight Syracuse, a not-for- home ceremony. “It was such an emotional feeling to come into that profit organization which provides veterans the opportunity to visit the airport and see so many people. I will never forget that feeling.” national memorials dedicated to their service and sacrifice. The journey is a gift to the veterans at no cost to them. “It was such an uplifting day. The entire day was one more memorable chapter in Mawhinney’s life So many people were involved and went out of their way to plan and story. He grew up in Syracuse, graduated from Nottingham High School, execute this event. It was an honor to be included,” said Mawhinney. enlisted in the U.S. Army and went to Hamilton College at the Army’s expense. “D-Day hit and everything changed. I was allowed to finish The day started early with a 7 a.m. flight out of Syracuse. Each veteran the semester, then got sent to Fort Dix (New Jersey).” During World was paired up with a guide who would help them navigate through their War II Mawhinney would also serve at military bases in Texas, Colorado, various stops in the capital region. Mawhinney’s guide was one of his Florida, Alabama, California and Kentucky. He dreamed of a position in four children, daughter Joyce MacKnight. She helped her father through counter intelligence and as the war was ending he was offered one in visits to the World War II, Vietnam and Korean War Memorials. They also Japan. “I knew I had seven years of college ahead of me and decided saw the Arlington National Cemetery, the Tomb of the Unknown Soldier to return home.” Mawhinney earned his bachelor’s degree at Hamilton and the Iwo Jima Monument. During their tour College and his law degree at Cornell. they were treated to an unannounced visit from Mawhinney began practicing law in New York Martin E. “Marty” Dempsey, a United States State in 1952 as a member of the Wall Street Army General and current Chairman of the Joint law firm of Beekman & Bogue. In 1954 he joined Chiefs of Staff. “He came on his own, introduced the Syracuse law firm now known as Hiscock & himself to each of us and shook each our hands. Barclay, LLP where he still has an office. It has He was so gracious. It was very impressive and been and continues to be a wonderful life for meant a lot to all of us.” the 88-year-old Mawhinney and he’s treasured Nearly 12 hours after Honor Flight took off from it each step of the way. “I feel very fortunate Syracuse the U.S. Airways jet carrying them for everything I’ve done and everything I’ve returned to Hancock International Airport. As been allowed to do. I’ve made and worked with the veterans and their guides made their way so many great friends along the way. It’s been into the terminal they saw hundreds of family great.” and friends who had assembled for a welcome

The Honorable Norman Mordue, U.S. District Judge for the Northern District of New York and most distinguished Vietnam Veteran – worked as a guide to help make this a truly memorable day.

Throughout his career Mawhinney has served the Central New York Trustees Association Foundation. community admirably. • Mawhinney was a member of the New York Seniors Golf Association, • He was a member of the Onondaga County Board of Supervisors (now Century Club, Onondaga Golf & Country Club, Gyro Club, Sons of the known as the Onondaga County Legislature) from 1958 to 1965. American Revolution, American Legion, St. Andrew’s Society, Eastside Racquet Club, Sedgwick Farms Tennis Club, University Club and the • Mawhinney was a founding Trustee of Onondaga Community College Liederkranz Club. which opened its doors to students in 1961. • He was a New York State Delegate to the 1988 Far East Conference • Belonged to the Onondaga County District Attorney’s Advisory Council, ACTEC, ABA, NYSBA, OCBA, American Bar Foundation, NYS Bar Mawhinney’s lengthy list of honors and recognition is equally impressive. Foundation, NYSBA International Law Section and House of Delegates. • Junior Chamber of Commerce “1962 Man of the Year.” • Mawhinney was a delegate to the Fifth Judicial District Convention of • Earned “Distinguished Service in Trusteeship” from the National the selection of candidates to the New York Supreme Court judgeships. Association of Governing Boards of Universities and Colleges. • He was a founding Trustee of the Erie Canal Museum and served as • Received the “Association Distinguished Service Award” for 30 years Chairman and Trustee for 48 years. of participation in New York Association of Community College Trustees; • Governor Nelson Rockefeller appointed Mawhinney Chairman of the Recognized for service as its President; Honored with a life membership; New York State Erie Canal Park Planning Committee. Received the “United States Northeast Region Trustee Leadership Award”; Given the “Anne M. Bushnell Award for Extraordinary Leadership • Served on the boards of Hope for Bereaved, YWCA, Junior League and Special Achievement” of Syracuse, Junior Chamber of Commerce, Americanization League, Greater Syracuse Chamber of Commerce, Citizens Foundation, Syracuse • In 2006 a building on the OCC campus known as Academic One was Governmental Research Bureau, Better Business Bureau of Greater renamed Mawhinney Hall. Syracuse, Syracuse Symphony, Board of Trustees of the Association of • In 2010 he was placed on Nottingham High School’s Wall of Fame Community Colleges in SUNY and the New York Community College 8 PERSONAL INJURY/TORTS Civil Practice Case Notes Alan R. Peterman, Esq. from page 6 Court of Appeals Holds That Slipping On Ice cases and in evaluating any administrative challenge to the fee. While On Stilts Is Not Covered by Labor Law On appeal, the Appellate Division, Fourth Department declared the CMF Section 240(1). unconstitutional as a fee imposed without due process. Rejecting the Nicometi v. Vineyards of Fredonia, LLC, No. 31, City’s argument that the CMF was a generally applicable fee to which due 2015 N.Y. Slip. Op. 02801 (Apr. 2, 2015). process rights did not attach, the Fourth Department found that the CMF was a fine since it was only imposed when a property owner had been The issue in Nicometi was whether Section 240(1) found to violate the City Code and failed to abate the violation within of the New York Labor Law applied to the Plaintiff’s personal injury claim one year. The Court found that before it could impose such a fine, the simply because he was using stilts when he slipped and fell. Plaintiff was City was required to establish some type of hearing to determine whether using stilts to install insulation in the ceiling of an apartment complex the code violations remained unabated at a property. Under the current owned by Defendant when the stilt landed on some ice that was on the system, such administrative review was meaningless since the same city floor causing the Plaintiff to fall. Plaintiff brought an action alleging claims official who issued the CMF was the one to review its validity. In requiring under common law negligence and Sections 200, 240(1) and 241(6) of the such procedural safeguards, the Court rejected the City’s argument that a Labor Law. Plaintiff testified that he had told his supervisor about the ice hearing would be too costly or burdensome to review a $100 fine, since but his supervisor told him to go ahead. The Supervisor testified that it similar hearings were provided in red light traffic cases where the penalty was he that had noticed the ice and had told the Plaintiff not to work in the at issue was only $50. area of the ice. The Supreme Court granted Plaintiff’s motion for summary judgment on the Section 240(1) claim finding that Plaintiff’s injuries had Appraisal and Valuation of Real Property resulted from the elevated-related risk as contemplated by the statute. Aylward v. Assessor of the City of Buffalo, et al, 125 A.D.3d 1344, 3 N.Y.S.3d 818 (4th Dep’t Feb. 6, 2015). The Appellate Division, although agreeing with the court below that Section 240(1) applied to Plaintiff’s claim, reversed the granting of The City of Buffalo was granted discovery in a series of related real property summary judgment holding that there was a question of fact with respect tax proceedings pursuant to RPTL Article 7 which allowed interior whether Plaintiff’s actions were the sole proximate cause of the accident. inspections of the twelve residential properties at issue in connection with the preparation of appraisals. On appeal, the Appellate Division, Fourth The Court of Appeals went one step further. The Court acknowledged Department sided with the residential property owners, finding that the that the purpose of Section 240(1) was to “protect workers and to City and its appraiser failed to meet their burden of showing that each impose responsibility for safety practices on those best suited to bear particular inspection was reasonable and necessary in order to prepare a that responsibility,” citing Ross v. Curtis-Palmer Hydro-Electric, Co., 81 defense and come to an accurate conclusion of fair market value. Noting NY2d 494,500, 601 N.Y.S.2d 49. The Court went on to hold that “the that interior inspections were not required by statute, court rule or by the extraordinary protections of the statute in the first instance apply only to Uniform Standards of Professional Appraisal Practice, the appellate court a narrow class of dangers,” Melber v. 6333 Main St., 91 N.y.2d 759, 676 concluded that the City had failed to show that its interest in inspecting N.Y.S.2d 104, and that liability may only be imposed where “plaintiff’s the interior of a property outweighed petitioners’ privacy rights under the injuries were the direct consequence of a failure to provide adequate Fourth Amendment. protection against a risk arising from a physically significant elevation differential.”. The Court went on to hold that the protections of Labor In doing so, the Fourth Department relied upon a recent decision out of the Law 240(1) did not encompass any and all perils that may be connected in Appellate Division, Second Department, Jacobowitz v. Bd. Of Assessors some tangential way with the effects of gravity” and that Section 240(1) did for Town of Cornwall, 121 A.D.3d 294, 301 (2014), which found that a not apply unless the plaintiff’s injuries result from the elevation – related tax jurisdiction bore the burden of justifying the “significant intrusion” of risk and the inadequacy of the safety device. an interior inspection, and that a property owner did not waive any of its constitutional rights merely by filing a tax certoriari action. The Court compared the case before it to Melber, supra¸ where the plaintiff had tripped over a conduit sticking out of a floor while using stilts to install RPTL 727 and Refunds metal studs. In that case, the Court of Appeals held that Section 240(1) did In re Torok Trust v. Town Bd. of Town of Alexandria, et al, No. CA-14- not apply because the hazard that had caused the plaintiff’s injuries was not 01460, 2015 N.Y. Slip. Op. 02632 (Mar. 27, 2015). the type contemplated by Section 240(1) and the device provided to allow RPTL Section 727 provides for a three year “freeze” period after a property’s the worker to work at the elevated height, the stilts, had not failed. The assessment in a particular tax year is reduced by court order or settled by Court, in Nicometi, held that the relevant inquiry to determine whether the parties. This freeze prohibits a change in the property assessment for Section 240(1) applied was whether “the hazard plaintiff encountered the next three succeeding assessment rolls, with certain exceptions such as on the stilts was a separate hazard ‘wholly unrelated to the hazard which a municipal-wide revaluation. In this case, petitioner commenced a tax brought about the need for the safety device in the first place.’” Because the certiorari proceeding for the 2007 tax year. The local school district was plaintiff’s injury was caused by the ice, a hazard unrelated to any elevation served but did not intervene in the proceeding, which eventually settled in risk, Section 240(1) did not apply. 2009. As part of the settlement, the parties agreed that RPTL 727 would Limitation on Assumption of the Risk apply. Since petitioner had already paid the taxes for both 2007 and 2008 Redmond v. Redmond, No. 263 CA 14-01423, 2015 N.Y. Slip. Op. 02598 while the litigation was ongoing, it submitted a request for refunds of the (4th Dep’t Mar. 27, 2015). overpaid taxes for both years. The Fourth Department, in Redmond, following recent Court of Appeals The school district issued a refund for the 2007 school tax year, but refused precedence, significantly limited the situations in which assumption of to do so for 2008. The school district argued that the petitioner was not the risk would be defense to a plaintiff’s personal injury claim. The issue entitled to a 2008 refund, since the petitioner had not filed a tax certiorari in Redmond was whether the doctrine of assumption of the risk barred action in 2008. Petitioner moved to compel the school district to issue Plaintiff’s action arising out of a swimming pool accident. Plaintiff was the refund, which was granted by the Supreme Court. The Appellate injured when she struck her head on the bottom of an above-ground Division, Fourth Department affirmed, finding that the legislative intent swimming pool during a party being hosted at Defendants’ home. of RPTL 727 “was to reduce the need for repeated litigation in challenging Defendants moved for summary judgment dismissing the complaint tax assessments.” Requiring a taxpayer to commence a proceeding for the arguing that the Plaintiff had assumed the risk in sliding head first down 2008 tax year would be contrary to that purpose. In reaching its decision, the slide. The Supreme Court denied the motion. the Fourth Department expressly declined to follow Scellen v. Assessor for the City of Glens Falls, 300 A.D.2d 979 (3d Dep’t 2002), which denied The Fourth Department affirmed the trial court’s decision citing a recent refunds for subsequent years in a similar situation. Court of Appeals decision that “restricted the concept of assumption of Continued on page 10 9 Civil Practice Case Notes from page 9 the risk to particular athletic and recreative activities in recognition that such pursuits have enormous social value even while they may involve Mackay, Caswell & Callahan, P.C. significantly heightened risks” citing Custodi v. Town of Amherst, 20 N.Y.3d 83, 957 N.Y.S.2d 268. The Fourth Department then noted that the Civil & Criminal Tax Referral Welcome Court of Appeals had held that “as a general rule, application of assumption > > of the risk should be limited to cases appropriate for absolution of duty, Since 1961, Mackay, Caswell & Callahan has such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic of recreational pursuit that focused on tax and business law in Central take place at designated venues”. New York. Applying the Court of Appeals holdings to the facts before it, the Fourth Straight Talk ~ Department held that the Defendants had failed to carry their burden Mackay, Caswell & Callahan, P. C. of demonstrating that the injury had arisen out of a sporting event, an Effective Solutions© Straight Talk ~ athletic or recreative activity sponsored by Defendants or an athletic or Effective Solutions© recreational pursuit that took place at a designated venue. In fact, the Suite 203Civil & Criminal Tax Referrals Welcome facts showed that the plaintiff was injured in early morning hours while 103 East Water Street engaged in horseplay during a party. Assumption of the risk was not Syracuse, NY 13202 applicable to that situation Since 1961, Mackay, Caswell & Callahan has 103 East Water Street Suite 203 Claim Dismissed Where Landlord Demonstrated That Lead Paint focusedPhone: on tax844-MCC-4Tax and business law in Central Syracuse, NY 13202 Hazard Was Abated In A Reasonable Manner Email: [email protected] Moye v. Giambra, No. 1363 CA 14-00842, 2015 N.Y. Slip. Op. 01100 (4th New York. Phone: 844-MCC-4Tax Attorney Advertising Email: [email protected] Dep’t Feb. 6, 2015). Attorney Advertising The Plaintiff in Moye brought a personal injury action alleging that she had suffered injuries due to exposure to lead paint as a child in a apartment owned by Defendants. Plaintiff moved for summary judgment and Defendants cross-moved for summary judgment. The Supreme Court granted Defendants’ motion and dismissed the complaint. Plaintiff appealed. On appeal, the Fourth Department held that a landlord could be found liable for a lead paint condition if it was established that the landlord had actual or constructive knowledge of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so. The Fourth Department found that the Defendants had carried their burden of demonstrating that they did not have actual or constructive notice of the lead paint hazard. The court also found that the Defendants had established that they had abated the lead paint hazard in a reasonable manner and that plaintiff had failed to raise a triable issue of fact. The Fourth Department affirmed dismissal of Plaintiff’s complaint. Mackay, Caswell & Callahan, P. C. Voluntary Decision to Straddle Window Sill Precludes Recovery Straight Talk ~ Under Section 240(1) Civil & Criminal Tax Referrals Welcome Effective Solutions© Miller v. Webb of Buffalo, Inc., 126 A.D.3d 1477, 2015 N.Y. Slip. Op. 02599 (4th Dep’t Mar. 27, 2015). The issue in Miller was whether a worker who decided to straddle a Since 1961, Mackay, Caswell & Callahan has 103 East Water Street window sill while waiting for a ladder could recover for his injuries under Suite 203 Section 240(1) of the Labor Law when he fell out of the window. The focused on tax and business law in Central Syracuse, NY 13202 Plaintiff had been instructed to install television cable in the first floor room of a building undergoing renovation. When he could not locate New York. Phone: 844-MCC-4Tax Email: [email protected] anybody with a key to the building, he used a ladder to enter the room Attorney Advertising through a window. While he was doing his work, some co-workers removed the ladder but informed the plaintiff that they would return it shortly. When the Plaintiff completed his work he went to the window and decided to straddle the window sill while waiting for the ladder. As he sat on the window sill, Plaintiff leaned out to say something to his co- workers, lost his balance and fell. Plaintiff brought an action against the general contractor and owner of the building under Section 240(1) of the Labor Law. Defendants moved Fallon, Fallon & Bigsby for summary judgment dismissing the complaint but the Supreme Court denied the motion. The Fourth Department reversed, finding that the Plaintiff’s conduct was the sole cause of the accident. The Defendants established that there was no casual relationship between any duties owed Workers Compensation and Social Security by them to plaintiff under the Labor Law or the common law and the Law Offices Plaintiff’s injuries were due solely to the Plaintiff’s actions. In addition, plaintiff was not in a position of peril at the time he decided to straddle the window sill and decided to put his own safety at risk. Plaintiff’s (315) 475-4410 unforeseeable conduct superseded any alleged breach of any duty owed to the plaintiff by the defendants and precluded any liability in the 501 East Washington Street, Syracuse, New York 13202 defendants.

10 Justice Edward D. Carni, Appellate Division 4th Dept. – Reflects on the Magna Carta from page 3 discussing the proposed gift observed that the gift would “stir The Great Charter also reflects the great significance of the American hearts” because Britain would be “saying it with flowers” ownership of land in feudal society. Clause 9 essentially creates and as Churchill said: “After all, we possess four copies.” This idea a priority for the satisfaction of debts by requiring the creditor to was ultimately rejected when Churchill learned that the copy he first look to the “chattels” of the debtor and then to the debtor’s wanted to give away belonged not to the British government - but guarantors before any land or rent therefrom may be seized. to the Church of England. Principles related to the concept I also found it interesting that the of navigable waters that remain Great Charter is actually more valid today are addressed by of a “peace-treaty” than a true Clause 33 which requires “the Constitution. The Magna Carta removal of all dams from rivers was born under circumstances throughout England.” Notably, not unlike those that gave rise the Magna Carta was cited by to our own Constitution and it our Court of Appeals in 1852 is also no mere coincidence that Gould v. Hudson River R.R. Co. the two have much in common. in deciding a dispute involving The mediaeval feudal system, the right of the state to authorize with all of its class distinctions the construction of a railroad and its oppressive economic along the high and low water systems, provided the setting mark of the Hudson River. and the opportunity for the Perhaps the most significant Magna Carta. By the year 1215, and enduring liberty to have its King John (known by most origin in the Magna Carta is the at that time as “Bad King John”) had ruled over England for 15 Writ of Habeas Corpus - which many consider to be the oldest troubled and controlling years. John lived in the shadow of his “human right” in the history of English-speaking civilization. older brother, King Richard the Lionheart, who died in battle in The writ started as a weapon against monarchy that originated in France in 1199. the rights of “nobles” and later extended to the average person. After winning the throne from his surviving brother, King John Apparently, it is quite easy to stay in power when you can put your restarted the war with France. Within five years, the French had enemies and political opponents in jail, throw away the key - and handed England a decisive defeat and not unlike today, undertook there is no judicial recourse. History tells us Joseph Stalin used to raise taxes to pay for the costs of the war effort. Aggrieved by this technique to great effect during his “reign of terror” in Russia these taxes and other oppressions, the powerful nobles rose up in the 1930’s. against King John and compelled him to sign the Magna Carta - In its simplest form, the writ of habeas corpus requires the which allowed him to remain in power. Thus, the Magna Carta government to either charge a person or let him go free. The was actually a form of a “peace treaty” and placed in writing the drafters of the Magna Carta provided for the writ in Clause 39 idea that no one, not even the King, was above the law. As stated which states: by Edward Cooke, the great 17th century legal scholar: “No freeman shall be taken or imprisoned, “Magna Carta is such a fellow that he will or be disseized of his freehold, or liberties, have no sovereign.” or free customs, or be outlawed, or exiled, Perhaps most importantly, it also was the first decree to identify and support the rights of the individual. or any otherwise destroyed; nor will we not Lawyers reviewing the Magna Carta will observe that it contains pass upon him, nor condemn him, but by many terms and principles of law concerning inheritance, intestacy, payment of secured and unsecured debts and other legal concepts lawful judgment of his peers, or by the law familiar to all law school students after the first year of study. Well, of the land.” maybe the second year of study. In 1679, during the reign of King Charles II after the English It was a charter that took on issues great and small. For example, Civil War, the Magna Carta helped to codify the ancient writ of Clause 35 of the charter established a system of uniform weights habeas corpus in England, in an act passed by Parliament in 1679. and measures for wine and ale - a commodity of some apparent When it crossed the Atlantic, the writ, along with other individual significance to the noblemen and the king. Our own Constitution liberties in the Magna Carta, provided a framework for many of followed this lead and empowered Congress to fix the standards of the civil liberties we enjoy today. We know that the founding weights and measures (contained in article 1, section 8, clause 6) - fathers were well-versed and trained in English law and Thomas but without the emphasis on wine and ale. Jefferson quite clearly relied upon breaches of the Magna Carta as However, only certain individuals were embraced by liberties retrospective justification for the American Revolution. Indeed, recognized in the Magna Carta - those being members of the Clause 14 provided for no taxation without the consent of the upper classes and, in particular, men. The liberties granted under “general council of the kingdom” - a clear precursor to the familiar the Magna Carta were only granted to “freemen of our kingdom” slogan from our own American revolution of “no taxation without - a class of men not embraced by the existing feudal system of representation.” servitude. Continued on page 14 11 LEGAL BRIEFS BRIEFS BRIEFS LEGAL

Mark A. Ventrone joins J.P. is a seasoned advisor to Board and executive management Cote & Van Dyke, LLP teams, providing practical risk assessment, as well as transactional Mark A. Ventrone, Esq. is pleased to and regulatory context and opportunities, across a broad spectrum announce that effective May 26, 2015, he of industry sectors. Prior to joining Bousquet Holstein, J.P. served will be joining the law firm of Cote & Van as Director at Cruciform Consulting, LLC, he practiced law at Dyke, LLP, of counsel. The firm address is Bond, Schoeneck & King in Syracuse, as well as Morgan, Lewis & 214 North State Street, Syracuse, New York Bockius in New York City. He has been General Counsel for NBTY, 13203; telephone number (315) 478-3074. Inc. (a large public company in a highly regulated industry) and Defenshield, LLC (a small company in the competitive defense While Mark’s practice will continue to focus contracting sector). on all areas of litigation, including but not limited to personal injury, motor vehicle He is a graduate of The University of Michigan Law School and accidents, labor law, and premise liability, he will also maintain Le Moyne College in Syracuse. J.P. was also a Fulbright Scholar his general practice of law which includes Real Estate, Vehicle and in Economics in Lesotho and South Africa. He has served as an Traffic and Wills and Estates. Adjunct Professor in the MBA Program at Le Moyne College, teaching Business Law and International Business Law. Emilee Lawson Hatch Selected To Receive Pro Bono Service Award Carin A. Taddeo Joins Bousquet Bousquet Holstein PLLC is pleased to Holstein PLLC announce that Emilee Lawson Hatch, Esq. Carin A. Taddeo has joined Bousquet has been selected for the 2015 New York Holstein PLLC as Director of Human State Bar Association President’s Pro Bono Resources. She is responsible for all Service Award for the 5th Judicial District. human resource policy formulation and She was nominated by the Volunteer overall planning, organization, direction Lawyers Project of Onondaga County, Inc. and evaluation of human resources (OnVLP) for the volunteer legal services activities. She guides and manages the she provides in the community and most overall provision of Human Resources recently for work with Upstate University Hospital’s social work services, policies, and programs for the department. She was presented with her award on Tuesday, May firm. 5th at a presentation at the offices of the NYS Bar Association in Albany. Prior to joining Bousquet Holstein, Carin was Vice President Human Resources at WCNY Public Broadcasting, where she was Emilee is a Member of Bousquet Holstein, PLLC where she responsible for driving WCNY’s strategy and objectives, as well concentrates her practice in the areas of estate planning, trust and as leading the implementation of an employee-oriented, high estate administration, and estate and gift taxation. performance culture. She has also served as Director Human Emilee has volunteered with almost every program organized by Resources for Franciscan Management Services, Inc. the Volunteer Lawyers Project, including their Surrogate’s Court Carin is an Executive Member of the Society for Human Resources Clinic, Hospital Clinic, Family Court Clinic and Vera House Management. She is a graduate of Le Moyne College in Syracuse Clinic. She also volunteers with the “Say Yes to Education,” and resides with her family in Liverpool, NY. Clinic, providing free advice to parents and students of Syracuse Cornell Law School Reunion Weekend CLE Program Schools and accepts clients from Hiscock’s Cancer Legal Advocacy “The Cloud, Metadata, and Social Networking: How and Services Project. In the last year, Emilee donated pro bono Technology is Changing the Practice of Law” service to over 40 clients. Emilee has made a particularly profound impact on OnVLP’s Estate Planning Program and Hospital Clinic Friday, June 5, 2015 | 9:00 am - 10:30 am Program. Room 184, Myron Taylor Hall, Cornell Law School The traditional practice of law has been impacted by rapid changes J.P. Paraschos Joins in available technologies. This program will discuss and analyze Bousquet Holstein PLLC how the evolving technology landscape is changing practice and Bousquet Holstein PLLC is pleased to how new technologies can be used in the practice of law. Data announce that J.P. Paraschos has joined security and cloud computing issues will be analyzed. Ethical the firm as Of Counsel in the Business issues will be considered including those relating to proper use Law Practice Area. J.P. has more than 15 of technology and data management. Electronic communications years of experience providing legal services and social networking tools will also be explored. and strategic consulting to public and private companies, including acquisitions, Presented by Dan Blackaby, Technology Services Librarian, Lecturer international transactions, contract in Law; Amy Emerson, Associate Director for Administration negotiation, regulatory filings, securities & Access Services, Lecturer in Law; Mark Williams, Outreach & issuances, public and private, as well as intellectual property Scholarly Services Librarian, Lecturer in Law. licensing. He has provided legal counsel in negotiating acquisitions Attendees will receive 1.0 N.Y CLE credit in the area of Skills and and restructurings, intellectual property licensing, management 0.5 in Ethics and protection, and various contract and regulatory issues. FREE AND OPEN TO AREA ATTORNEYS

12 OCBA CONTINUING LEGAL EDUCATION 431 East Fayette St. | Syracuse, NY | Phone: 315-579-2578 | Fax: 315-471-0705 | [email protected]

Appellate Practice | Western New York: How to Take and Perfect Appeals 1.5 MCLE Skills + 0.5 Ethics This CLE program focuses on practice in New York appellate Tuesday, May 19 courts as well as the United States Court of Appeals for the Second Circuit. Attendees will learn the methods for bringing CNY Philanthropy Center 2nd Floor Ballroom and perfecting appeals in the Appellate Divisions (with the main focus on the Appellate Division, Third Department and 12:00 – 2:00 pm. Appellate Division, Fourth Department); how to manage the limited appeals jurisdiction of the New York Court of Appeals; Member $40 | Paralegal $30 | Lifetime $0 and the many filings that are needed in the Second Circuit. Legal Services Member $0 | Non-Member $60 The program concludes with various ethical considerations facing appellate practitioners and landmines to avoid.

Robert C. Brucato, Esq. Lisa A. O’Hara, J.D. Sr. Appellate Counsel | Counsel Press Appellate Counsel | Counsel Press Rob Brucato opened the Buffalo Office of Counsel Press in 1992 Lisa O’Hara leads Counsel Press’ Syracuse office in offering our clients and has continuously managed it since that time. With 20 years of unmatched expertise with their appellate filings. Ms. O’Hara specializes experience, he has personally been involved with several thousand in assisting Counsel Press clients with matters in the New York State appeals, primarily to the New York Appellate Division Third and Fourth appellate courts and the United States Court of Appeals for the Second Departments and the United States Court of Appeals for the Second Circuit. Circuit.

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13 Justice Edward D. Carni, Appellate Division 4th Dept. – Reflects on the Magna Carta from page 11 first amendment petition clause] traces its origins to Magna Carta, The right to trial by jury is clearly traceable to Clause 39. It is which confirmed the right of barons to petition the king.” noteworthy that in England in 1649, after the victorious Puritan army, led by Oliver Cromwell, prevailed over King Charles I, the It is noteworthy that the Appellate Division, Fourth Department King’s lawyers argued that the Magna Carta was the “law of the has never cited to the Magna Carta. land” and required trial by a jury of one’s peers. According to King Although the Magna Carta had 63 clauses when first granted, only Charles’ lawyers, because a King had no peers, King Charles could three of those clauses remain part of English law. One defends the not be tried. In response, Cromwell quickly summoned a jury of liberties and rights of the English Church, another confirms the 120 of the highest officials he could find - generals, lord mayors, liberties and customs of London and other towns, but perhaps the barons and the like - who quickly convicted Charles of “tyranny” third, Clause 40, is the most famous: because he had governed without regard to the Magna Carta - and “We will sell to no man, we will not deny to any man, either justice sentenced him to death. or right.” If we look at particular clauses and phrases of the Magna Carta, we As many have recognized, this simple phrase is the source of our can readily see the roots of our fundamental liberties. As stated so modern day concepts of due process and as James Madison said well by Supreme Court Justice Harlan in the 1882 case of Hurtado before the House of Representatives in 1789 while advocating for v. People of State of California: the Bill of Rights, which included the Fifth Amendment: “The phrase ‘due process of law’ is not new in the constitutional “We obtain the confidence of our fellow-citizens, in proportion as history of this country or of England. It antedates the establishment we fortify the rights of the people against the encroachments of the of our institutions. Those who had been driven from the mother government.” country by oppression and persecution brought with them, as their inheritance, which no government could rightfully impair or One of the ways the anniversary of the 800 year old Magna destroy, certain guaranties of the rights of life, liberty, and property Carta is being celebrated next month is with a worldwide bell which had long been deemed fundamental in Anglo Saxon ringing ceremony which will take place on June 14th - the actual institutions. In the Congress of the Colonies, held in New York anniversary date. Here in Onondaga County, we thought we’d get in 1765, it was declared that the colonists were entitled to all the a jump on the ceremony and our good friends and neighbors at the essential rights, liberties, privileges, and immunities confirmed by Cathedral have agreed to help us today by the ringing of their bell. Magna Carta to the subjects of Great Britain.” In closing, I would ask you to think about how the Magna Carta Indeed, the Magna Carta was recently cited by the United States and its legacy has helped to “strike a blow for democracy” here and Supreme Court in its 2011 decision of Borough of Duryea, P.A. v. all around the world. Please take time to reflect upon and enjoy Guarnieri for the proposition that: the great freedoms that have emerged from this great document. “The right to petition [the courts for redress of wrongs under the Thank you.

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CPLR Update | 2015 Professor Patrick Connors | Albany Law School MCLE 2.5 Professional Practice + 0.5 Ethics Friday, June 5 CNY Philanthropy Center 2nd Floor Ballroom 9:00 am – Noon | Sign-in 8:30 am

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Topics to be included: Amendments concerning certification of business records by nonparties, affirmations by persons outside the United States | can a court consider affidavits on a CPLR 3211(a)(7) motion to dismiss for failure to state a cause of action? | new rules regarding default judgments in Consumer Credit Transactions | new rule on redaction of confidential personal information | recent Court of Appeals decision addressingamendment of pleading | issues arising with electronic filing and changes in Court Rules | Legislature weighs in on whether a lawyer representing a nonparty at a deposition is a “potted plant” | Court of Appeals weighs in again on protections of “Grave Injury” statute | new rules and monetary thresholds in the Commercial Division | Second Department clarifies law relating to conformity of out-of-state affidavits as required by CPLR 2309(c) | the continuing saga surrounding CPLR 205(a)’s six month extension for actions dismissed for “neglect to prosecute” | use of CPLR 3119, Uniform Interstate Depositions and Discovery Act, to obtain disclosure outside the State | effect of making extensive changes to deposition transcripts | what effect does a client’s failure to pursue an appeal in an underlying action have on his or her ability to maintain a legal malpractice lawsuit? | Court of Appeals addresses “separate entity” rule and whether judgment creditor can order New York garnishee bank to restrain a judgment debtor’s assets held in foreign branches of the bank | issues pertaining to expert disclosure | courts continue to set short time frames for making motions for summary judgment in all sorts of places, and the caselaw resulting from it | Court of Appeals strikes defendants’ answers and imposes default judgment on defendants where clear and convincing evidence demonstrates they committed fraud on court and much more.

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15 OCBA Paralegals Committee Contributor | Karen Hawkins Investigations Unit will present on Insurance Fraud. Monthly Luncheon Meetings We’ll be taking July and August off, but please join us September 10, During our April 9, 2015 luncheon meeting, 2015. Geoff Bench from Home Point Financial will be guest speaker Faye Williams, Law Assistant for the Appeals and will present on Reverse Mortgages. Program at Frank H. Hiscock Legal Aid Just a reminder that we have returned to Spaghetti Warehouse at 689 North Society, spoke about “A Paralegal’s Role in the Clinton Street for our monthly meetings which begin at noon. Appeal Process: Criminal and Family Court Appeals” as this process applies to indigent Please invite your bosses, legal administrators and co-workers. These people. luncheon meetings are not restricted to just Paralegals Committee members. Faye has been working in the paralegal profession since August of 2001. She began Even if the luncheon topic doesn’t fall in the area of law in which you work, her career in a small law office in Newport come anyway. You never know what you might learn and how it may affect News, Virginia. Faye married and moved to you! And, you will be supporting the OCBA Paralegals Committee. The Syracuse in December of 2001. She was hired cost for lunch is $11 for members and $12 for non-members. Reservation by the Frank H. Hiscock Legal Aid Society on February 25, 2002 as a part deadline is 4:00 pm the day before the luncheon. Please RSVP Jean time program coordinator for the Appeals Unit. In 2003, her position Swanger: [email protected] or 442-0174. E-mails are preferred. with Hiscock became full time. She was promoted to Law Assistant in Stay tuned for further information regarding upcoming luncheons. 2007 upon receiving an Associates Degree in Paralegal Studies at Centura If you have suggestions for guest speakers or presentation topics, College of Virginia Beach, Virginia (formerly Tidewater Technical please do not hesitate to contact any member of the Executive Committee. Institute). Faye Williams and the Appeals Program Coordinator presently We value your input! assist and support in excess of five attorneys in the Hiscock Legal Aid Appeals Program. Faye loves her job and loves to help people that are Kathrine Cook [email protected] desperate for a second chance. She loves to share any knowledge that she Cynthia Wade [email protected] acquires with others if it will help make their life easier in any way. One Ranette Releford [email protected] word to describe Faye would be “helper”. Faye Williams [email protected] Jean Swanger [email protected] During her presentation, Faye advised that guidance for handling criminal Angelique Kraus [email protected] cases can be found in Gould’s NY Criminal Law Handbook. Civil cases Karen Hawkins [email protected] regarding Family Court matters should be guided by the New York Civil Practice Law and Rules (“CPLR”). Looking for Ideas What information would you like to see on the Paralegals Section of the Faye provided insight into her daily routine: OCBA website? Please email Karen Hawkins at [email protected] • Does much of the necessary prep work before handing over the file to with your suggestions. Thanks! the attorney; • Collects all documents and transcripts and places them in standardized The Executive Committee Could Use Your Help order prescribed by the Appellate Division rules of practice; EC meetings begin at noon at Gilberti Stinziano Heintz & Smith, P.C., 555 • Assists attorneys in ways that make their jobs easier and less stressful; East Genesee Street, (parking is available in front of the building on East • Monitors deadlines and court dates and maintains and updates Genesee Street, at the rear of the building at 510 East Fayette Street, and information in clients’ files in Legal Server (client database); the parking lot between the GSHS offices and Hamilton White House). • Files appeals by mail and electronically with the County and Supreme EC Chair Kathrine Cook extends an invitation to paralegals who would Courts, Appellate Division, Fourth Department, and the Court of Appeals. like to find out more about serving on the Executive Committee. (We can change the meeting time, if it would work for more volunteers). If you are She also imparted words of wisdom for making the paralegal’s job easier interested in attending the EC meetings to share your ideas for upcoming and that of the attorneys she/he assists in filing the appeals: programs and ways to better serve the paralegal members, please contact • Be the “hand holder” and the “walker througher”. Provide the client with Kathrine Cook at [email protected] as much information in the beginning to set them at ease regarding the appeal process; Job Bank • Don’t reinvent the wheel – create and use templates of documents and Are you an employer with a job that needs to be filled? Our FREE Listserv form letters used all the time to expedite future filings; create instruction can help! Just email Kathrine Cook with questions or to have your job sheets; provided to OCBA Paralegal members via email. Contact Peggy Walker • Develop an appeals essentials folder complete with form templates, at the OCBA, 315-579-2582, to join or confirm current membership. document templates and letter templates that are used frequently; • Use Microsoft Word’s Autotext feature as much as possible to speed up FROM THE EDITORIAL BOARD routine processes; • Keep a spreadsheet of clients’ most frequently requested information (i.e. address, case #, phone number, deadline date, etc.) for quick access; To advertise in the Bar Reporter, call the Onondaga County • Use Outlook or other calendars’ reminder system to be sure not to miss Bar Association at 315.579.2578. any deadlines (calendar for two weeks prior to allow room to pass on The Editorial Board encourages members to submit articles reminder to attorneys and assure that they have time for any preparations); for publication concerning issues presented in each edition • If at all possible, get to work ahead of everyone else and lay out the plan or other issues related to the legal community. Submissions for your day!!! should be sent to OCBA, Attention Bar Reporter or Many thanks to the Frank H. Hiscock Legal Aid Society for sending Email [email protected]. Editor Emeritus John Cirando Faye to share her expertise with us. Editorial Board Members: May 14 Hon. John J. Brunetti Thomas E. Myers Blaine T. Bettinger, Ph.D., an attorney with Bond Schoeneck & King, will Nicholas J. DeMartino Nancy L. Pontius Chele speak to us regarding Intellectual Property. Anne Burak Dotzler Stirpe Karen M. Hawkins Jeffrey A. Unaitis James June 11 Michael G. Langan M. Williams Sean Ralph from the NYS Department of Financial Services, Criminal

16 DID YOU KNOW … TERENCE A. LANGAN, P.C.

OCBA receives calls every week from clients 33 Years Experience who are trying to locate documents or files Florida and New York Estate Administration once held by their attorneys, after that attorney New York Commercial Real Estate has moved, stopped practicing or passed away. 333 Butternut Drive, Suite 103 If you know where your files will go after you’re DeWitt, New York 13214-1982 gone, Contact Membership Coordinator: (315) 445-9761 [email protected] Peggy Walker at 579-2582 or email [email protected] REFERRALS WELCOME

You are cordially invited to join the members of the Erie, Monroe and Onondaga County Bar Associations and the New York State Academy of Trial Lawyers to welcome and congratulate Hon. Leslie E. Stein & Hon. Eugene M. Fahey on their appointment to the New York State Court of Appeals. We will also be thanking Hon. Jonathan Lippman for his years of service as Chief Judge of the New York State Court of Appeals. Wednesday, May 20, 5:30 p.m. The Woodcliff Hotel & Spa 99 Woodcliff Drive, Fairport NY 14450 North of Eastview Mall | 4 Miles from Thruway Exit 45 $30 per person Reception and hors d’oeuvres included, cash bar available

The Bar Association of Erie County will be accepting registrations for this event. Please follow the link below to register. eriebar.org