The Lessons of Kiryas Joel

MAY 2011 VOL. 83 | NO. 4 JournalNEW YORK STATE BAR ASSOCIATION

Also in this Issue The Lessons Commercial Contracts – A Guide Insurance Law Update of Kiryas Joel Consumer Class Actions by Lou Grumet and Justin JaMail NEW YORK STATE BAR ASSOCIATION

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THE LESSONS OF KIRYAS JOEL

BY LOU GRUMET AND JUSTIN JAMAIL 10

DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 22 A Guide to Due Diligence of 18 Burden of Proof Commercial Contracts BY DAVID PAUL HOROWITZ 21 In Memoriam: S. Hazard Gillespie BY STEVEN J. HOLLANDER 43 Tax Alert 28 2010 Review of Uninsured, BY ROBERT W. WOOD Underinsured, and Supplementary 45 E-Discovery Uninsured Motorist Insurance Law BY STEVEN C. BENNETT 47 New Members Welcomed BY JONATHAN A. DACHS 60 Classified Notices 38 New York State Consumer Protection 60 Index to Advertisers Law and Class Actions in 2010 61 Language Tips BY THOMAS A. DICKERSON, JOHN M. LEVENTHAL BY GERTRUDE BLOCK AND CHERYL E. CHAMBERS 63 2010–2011 Officers 64 The Legal Writer BY GERALD LEBOVITS

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LPL : Medical : Life & Disability : Personal & Financial : Other Liability PRESIDENT’S MESSAGE STEPHEN P. YOUNGER

Back to the Future

t has always been human nature to Set out below is an overview of the try to predict what the future will important work we have done through Ihold. For example, consider TV the contributions of numerous dedi- shows like the Jetsons and classic films cated volunteers. like 2001: A Space Odyssey, which cap- tured our imaginations and compelled Future of the Profession us to think ahead. Last June, we began exploring the At the beginning of my term, I chal- future of the practice of law by bring- lenged all lawyers to help move our ing together some of the foremost Training New Lawyers: Increas- profession forward by going back to thought leaders in our profession to ingly, clients do not want to pay for the future. In this, my final President’s form a Task Force on the Future of the the work of new lawyers, many of Message, let me renew that challenge. Profession. The Task Force included whom have never interviewed a cli- In the wake of the Great Recession, managing partners, law school pro- ent or drafted a contract. To meet the which so deeply affected our profes- fessors and deans, general counsel, demands of the modern client and law sion, we have entered what appears technology experts and work-life bal- firm, new lawyers need more skills- to be a period of recovery. During this ance consultants. Under the dedicated based learning. time, it remains imperative to focus leadership of Linda Addison and T. Work-Life Balance: To help lawyers on how we can shape the future of Andrew Brown, the Task Force focused integrate their work lives and personal our profession in a way that protects on (1) training new lawyers; (2) work- lives and to find balance in the virtual us from future economic threats. As I life balance; (3) law firm structure, par- 24/7 workplace, employers should con- have often said over the past year, we ticularly alternative billing methods; sider policies that encourage flexible are called to be stewards of our profes- and (4) technology. work arrangements and other initiatives sion. It is our duty to play an important The Task Force held forums both that promote a healthy workplace. role in the evolution of our profession. upstate and downstate to gather the Law Firm Structure: To stay com- This is an obligation that my mentors, views of managing partners of firms petitive, law firms should engage in including Judge Hugh R. Jones and of all sizes, general counsel, law school long-term examination of their struc- Judge Richard J. Bartlett, considered deans, and bar leaders. In addition, I tures and expand their use of alterna- to be paramount in their own profes- emailed all State Bar members seeking tive fee arrangements. sional lives. their input on these important issues, Technology: Emerging technolo- Over the past year, we have endeav- which affect the practice of law for all gies are perhaps the glue that holds ored to shape the future in many areas. lawyers in our state. together all the issues covered in this And we have accomplished much. The result of this intense study is study of the profession. The Task Force Space does not permit me to thank a comprehensive report, which the recommended that law firms employ every person who made these successes House of Delegates accepted on April systems-based analyses when consid- possible. However, I would be remiss 2. In the coming weeks, the report will ering the use of new technologies and not to mention the tremendously tal- be referred internally to State Bar sec- that they invest in increased technolo- ented officer team who supported our tions and committees for development gy training for lawyers. While technol- efforts this year: President-elect Vince of proposals they deem appropriate ogy can be an impediment to work-life Doyle; Treasurer and President-elect to implement the recommendations. balance, it also can provide the means Designee Seymour James; Secretary The report will also be shared with to achieve appropriate balance. David Miranda; as well as our phe- bar associations, law schools and other nomenal Executive Director, Patricia entities for their consideration. The STEPHEN P. Y OUNGER can be reached at Bucklin. Task Force’s key observations include: [email protected].

NYSBA Journal | May 2011 | 5 PRESIDENT’S MESSAGE

I encourage you to read the report at comprehensive municipal ethics code. ages in medical malpractice cases. We www.nysba.org/futurereport. The Task Force’s full report can be are pleased that the proposed caps viewed at www.nysba.org/tfgefinal were not included in the Governor’s Government Ethics Reform report. budget agreement with the legislative In the wake of recent political corrup- Since the approval of this report, leaders. These changes would go to tion scandals that have dominated the I have communicated the State Bar’s one of our association’s core values – headlines in New York State, public recommendations to the Governor and promoting access to justice – and we confidence in our government is at an our legislative leaders who are cur- spoke out vigorously against them. As all-time low in our state. Serious con- rently working on a comprehensive noted above, we are involved in the cerns have been expressed about the state ethics bill. Bar associations can ongoing debate on government ethics strength of New York’s ethics codes for and should play an important role in reform. We also succeeded in defeating government officials, and the call for shaping the debate over government an effort to abolish the spousal refusal reform has been raised in many quar- ethics and helping to restore the public doctrine for Medicaid eligibility. ters. While thousands of public ser- trust. The State Bar has a responsibility On the federal level, we are fighting vants – many of them lawyers – make to preserve the pillars of our democ- against the proposed 18% cuts to fund- positive contributions on a daily basis racy, including government ethics, and ing for the Legal Services Corporation, through their government service, the I am grateful for the work of our mem- which in 2010 provided more than $28 unethical actions of a relative few tar- ber volunteers who ensured that we million for legal services programs in nish the hard work of those who are were prepared to enter this debate in a New York. Our efforts to overturn the dedicated to serving the public good. timely and thorough way. red flags rule won the State Bar the As a result, we formed a Task Force ABA’s Grassroots Advocacy Award. on Government Ethics to conduct a Legislative Successes And, we were instrumental in the systematic review of public sector eth- This past year, we were fortunate to effort to secure a lawyer’s exemption ics issues that impact the legal pro- experience some significant legisla- in the Dodd-Frank Act. fession. Led by Professor Patricia E. tive successes, which led Crain’s Insider Our legislative successes are attrib- Salkin and Hon. Michael J. Garcia, to dub 2010 a “Banner Year” for the utable to the vast expertise and tre- the Task Force focused on four key Bar. Some of our legislative victo- mendous dedication of our members, areas: (1) financial disclosure by pub- ries included the passage of no-fault sections and State Bar staff. We can lic officials; (2) honest services crime; divorce, the creation of the Office of all take pride in these accomplish- (3) enforcement and due process issues; Indigent Legal Services to improve the ments, and I am very grateful for the and (4) municipal ethics. criminal defense system for the poor, work of those who contributed to our At its January 28, 2011, meeting, the approval of the Judiciary’s $15 mil- success. the House of Delegates unanimous- lion IOLA budget allocation to fund ly approved the Task Force’s report civil legal services for the poor, and Youth Courts and recommendations. Key recom- the establishment of a commission to Another way our profession can affect mendations of the Task Force include: recommend long-overdue pay raises the future is to provide opportunities (1) requiring disclosure of indirect for our judges. for young people to become active sources of income above a $10,000 As the legislative session continues, participants in our society. The more threshold with the exception that attor- we remain committed to advocacy on than 100 Youth Courts operating in neys would not be required to disclose behalf of our profession and the public. New York use positive peer pres- clients where such disclosure would We urge the Legislature to renew its sure as an early intervention tool to harm the client or be detrimental to support for the Judiciary’s $15 million help teens who have committed low- representation; (2) creating a single allocation to help offset declining IOLA level offenses. Moreover, they educate ethics commission to oversee both the revenue, as well as the Judiciary’s young people about and instill respect executive and legislative branches of request for additional funding for civil for the rule of law. Teens who par- government; (3) imposing additional legal services. We were disappointed at ticipate are trained to serve as jurors, penalties for public officials found to the level of budget cuts imposed on the judges and attorneys. They hear real- have violated ethics laws, including Judiciary but are hopeful that the cuts life cases of their peers involving suspension and expulsion from office; will not deprive New Yorkers of access minor offenses. Sanctions typically (4) subjecting public officials who vio- to our justice system. In addition, we include community service, letters of late confidentiality of ethics investiga- have supported the Governor’s pro- apology and counseling. tions to new penalties; (5) enacting posed funding for the new Office of To help strengthen Youth Courts in tougher laws to give state and local Indigent Legal Services. our state, our Special Committee on prosecutors more tools to fight “hon- We helped lead the successful effort Youth Courts, which is led by Chief est services fraud”; and (6) adopting a to oppose caps on non-economic dam- Judge Emeritus Judith S. Kaye and

6 | May 2011 | NYSBA Journal Patricia L. R. Rodriguez, has been ership of Judge Rita Connerton and Our Task Force on New York Law extremely active on several fronts. Susan Lindenauer, and with guidance in International Matters, led by Joseph Last fall, the Special Committee held from experts on the front lines of our T. McLaughlin and James B. Hurlock, a forum in Albany to encourage local Family Courts, our Task Force on the is developing comprehensive recom- agencies to establish a Youth Court. Family Courts is tackling the prob- mendations to promote New York as As a result, the committee forged rela- lems faced in operating this important an attractive environment for invest- tionships with the Albany City School branch of our court system. The topics ment and as a preferred site for busi- District, which is establishing a school- that the Task Force is exploring include: ness endeavors. The Task Force is also based Youth Court. This summer, they (1) What additional resources the Family examining the important role that New will begin training student members to Courts need, in what functional areas? York courts and arbitration forums hear school-related cases; the student (2) What improvements are required play in resolving international busi- members will begin hearing cases in in case management and utilization of ness disputes. The Task Force’s report September 2011. Family Court staff? (3) What new tech- will be available later this year. It is In addition, the Special Committee nologies can judges and attorneys use my expectation that the Task Force’s sponsored a demonstration by the to improve efficiency? And (4) what efforts in these areas will help re-estab- Greenpoint Youth Court held during operational improvements are needed lish New York law as a key standard in the January 2011 House of Delegates to better serve our state’s families? private international law and a force meeting, as well as a special issue of In addition to focusing on these throughout the world. the Journal, which is now in its second important topics, members of the Task * * * printing. The committee also drafted Force on Family Courts are meeting proposed legislation regarding Youth with court officials from neighboring We have endeavored this year to Courts and their role in juvenile jus- states to learn about the best practices address the many concerns that face tice in New York. Finally, the Special that these states are using to ensure our profession. By fulfilling our role Committee is also working with the efficient operation of Family Courts in as stewards of the profession, we help Association of New York State Youth their jurisdictions. To date, Task Force achieve our ultimate goal of transform- Courts to develop a data collection members have met with judicial offi- ing the practice of law into a profes- program that will serve the needs of cers in New Jersey and Connecticut. sion that is satisfying not only to the individual Youth Courts and be acces- Given the influence Family Courts lawyers of today, but one that will be sible to others seeking information and exert on the lives of our citizens, we rewarding and fulfilling for genera- statistics on Youth Courts. must do all we can to ensure that mem- tions to come. The State Bar is proud to support bers of the public have equal access to As you can see, we have made great Youth Courts and their mission of our justice system. The Task Force’s strides toward these goals. But there providing a juvenile justice alterna- work is ongoing and will continue into is still more to do, and we need the tive that is operated for and by young the upcoming Bar year. I look forward help of every member. Get involved people. There are numerous ways that to what is sure to be a comprehensive in a section or committee. Volunteer our members can help Youth Courts. In and innovative report. to do pro bono. Become a mentor to a addition to volunteering at your local law student or new attorney. I firmly Youth Court, you can contribute to New York Law in believe that it is our ongoing responsi- The Bar Foundation’s special fund for International Matters bility not only to shape our profession Youth Courts, which is named in honor New York domestic law plays a critical but also to nurture new lawyers and of former Chief Judge Kaye. You can role in governing a large number of to serve as the mentors that we once contribute online at www.tnybf.org. cross-border business and internation- benefited from. If I leave you with one al commercial transactions. However, thing, let it be a calling to continually Family Courts the economic challenges that have con- seek to better our profession and to Family Courts support the most vul- fronted the legal profession and our extend a helping hand to our new law- nerable segment of society – our chil- global economy, coupled with strong yers, who represent our future. dren – at the most vulnerable points competition from emerging financial I am grateful for the opportunity to in their lives. From foster care to child centers abroad, have made it necessary serve as your President, and for those abuse and neglect, Family Courts make to re-examine the role of New York law who supported my journey, including key decisions every day that can have as an international standard. Indeed, first and foremost my wife and life’s lasting effects on children and their shaping the future of our profession partner, Prue; my family; all those parents. in New York must involve efforts to who served on our task forces and However, our Family Courts face preserve the position of New York law committees this year; and my partners overcrowded dockets, too few judges, as an international legal standard of at Patterson Belknap. It has been an and protracted delays. Under the lead- choice for commercial transactions. honor and privilege. ■

NYSBA Journal | May 2011 | 7 NYSBACLE Tentative Schedule of Spring Programs (Subject to Change)

The New York State Bar Association 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.

Wikileaks & Wikiwars – Ethics & Professionalism Litigation Responses & Beyond (9:00 am – 1:00 pm) (6:00 pm – 7:00 pm) May 12 Syracuse May 2 New York City May 19 New York City June 2 Long Island Practical Skills: Basic Elder Law June 7 Rochester May 3 Albany; Long Island; Rochester June 10 Buffalo May 4 Buffalo; New York City June 13 Westchester May 5 Syracuse; Westchester June 16 Albany June 20 Ithaca Dealing with Residential Foreclosures May 5 Syracuse Matrimonial & Family Law: What the Lawyer May 9 Long Island Needs to Know About Disclosure & Trial May 11 Westchester Preparation May 13 Buffalo (9:00 am – 1:00 pm) May 17 Albany May 13 Westchester May 20 Rochester May 20 Long Island June 10 Albany Commercial Litigation Academy June 17 New York City (two-day program) May 5–6 New York City 12th Annual Institute on Public Utility Law May 17 Albany DWI on Trial – The Big Apple XI (May 5, 9:00 am – 5:00 pm; Estate Litigation May 6, 9:00 am – 12:00 pm) May 17 Long Island May 5–6 New York City May 19 Syracuse May 24 Rochester Real Problems, Real Answers June 1 Buffalo (video replay) June 2 Albany (9:00 a.m. – 12:35 p.m.) June 3 Westchester May 6 Canton June 9 New York City Healthcare Decision Making: Implementation Employment Law for the General of the Family Health Care Decisions Act, Recent Practitioner & Corporate Counselor Developments & Ethical Considerations May 18 Buffalo May 6 Albany June 3 Albany May 13 New York City June 14 New York City May 20 Buffalo Starting Your Own Practice Insurance Coverage May 20 New York City (live session) May 6 Buffalo Albany (video conference from NYC) May 13 Long Island; Syracuse May 20 Albany; New York City Practical Skills: How to Commence a Civil Lawsuit May 23 Buffalo; Syracuse; Westchester Green Construction May 24 Albany; Long Island (9:00 am – 1:00 pm) May 25 New York City May 10 New York City May 18 Rochester Women on the Move June 1 New York City Handling a No-Fault Case May 11 New York City Practical Skills: Basics of Bankruptcy Practice June 3 Buffalo June 14 Albany; Long Island June 15 New York City; Syracuse

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NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM The Lessons of Kiryas Joel

By Lou Grumet and Justin JaMail LOU GRUMET ([email protected]) was the plaintiff in the case discussed in this article. He was the then-executive director of the New York State School Boards Association. Mr. Grumet is a former Assistant Commissioner of the State Education Department for the Education of Handicapped Children, a current member of the Grace Advisory Board, and a past executive director of the New York State CPA Society. He holds a J.D. from New York University School of Law, an M.P.A. from the University of Pittsburgh, and a B.A. from George Washington University.

JUSTIN JAMAIL is an associate with Morrison and Forester in Tokyo. He earned his J.D. from Fordham University School of Law and his B.A. from Columbia University.

s the executive director of the New York State remains operational and has, in many ways, distin- School Boards Association, I fought a nearly guished itself as an outstanding institution of its kind. Adecade-long series of suits to stop New York Twelve years after the last court decision, I have been State from establishing a school district coterminous with revisiting these cases and reflecting on the motive, pur- the borders of the village of Kiryas Joel, a community poses, costs and rewards of litigation under the American comprised entirely of Satmar Hasidim, a sect of Hasidic system. Judaism. My colleagues and I considered this attempt to put a private religious organization in charge of a unit of The Issue government to be a flagrant violation of the New York The issue involved a rapidly growing village in Orange State Constitution as well as the First and Fourteenth County known as the Village of Kiryas Joel. In 1989, the Amendments of the federal Constitution. village requested the state to establish a school district From 1990 until 1998, with the incredible legal ser- within the village, which would serve only the Hasidic vices of Jay Worona, the Counsel of the New York State community that resided there. When the legislation School Boards Association, I won victory after victory on was signed by Governor Cuomo, it was the first time in this point, including three successful trips to the Court American history that a governmental unit was estab- of Appeals and one to the Supreme Court of the United lished for only a single religious group. States. Many law schools use this case in Constitutional The legislation was overwhelmingly passed by both Law classes to emphasize that there are clear limitations houses of the Legislature, with the Senate passing it dur- to what government can do to help a religious commu- ing the middle of the night on the last day of the session nity. Yet, the school district never shut down. The school as part of a package of bills. Although the Assembly

NYSBA Journal | May 2011 | 11 Speaker was strongly opposed to the bill, it passed the wanted women bus drivers driving the girls and men bus Assembly 150-1, with only the local assemblywoman vot- drivers driving the boys, based on religious principles. ing against it. Both sides felt very strongly and litigation ensued, ending in a decision which supported the district. History The district had provided services such as bilingual The dispute which brought about the desire for a new education and remedial services to the students in sites school district was based on an intriguing fact pattern. adjacent to the yeshivas. Following the United States The Satmar Hasidim is one of the largest Hasidic groups Supreme Court decision in Aguilar v. Felton, the district in the world. It had its roots in Satu Mare, Romania, in believed it could no longer do that and offered the servic- what was then a part of Hungary. Members of the group es only within district buildings. Again, litigation ensued. followed a charismatic leader, Rebbe Joel Teitelbaum, to This time, it ended with the New York Court of Appeals, the United States in the aftermath of the Holocaust. The in a 1988 decision by Chief Judge Judith Kaye,1 ordering the children to be served in a way consistent with the Supreme Court ruling. It should be noted that the Monroe-Woodbury District A school district is a key unit of local also showed some insensitivity in serving the disabled government in New York State. students. A field trip to a Mc Donald’s was quite upset- ting to the parents of the strictly orthodox students, who ate only kosher food. Casting a developmentally disabled Rebbe and his followers settled in the Williamsburg sec- Satmar child as Rudolph the Red-Nosed Reindeer in a tion of Brooklyn. Their numbers grew rapidly and they Christmas pageant created a major crisis. became one of the most powerful voting blocs in New Justice Souter described the situation in his 1994 York City. Since Brooklyn is the largest Democratic coun- Supreme Court opinion: ty in the state, this made them one of the most powerful The residents of Kiryas Joel are vigorously religious blocs in the state as well. people who make few concessions to the modern In the 1970s, a large group of the Satmar, like many world and go to great lengths to avoid assimilation other city dwellers, chose to leave the city and establish a into it. They interpret the Torah strictly; segregate the community in exurban Orange County. They bought land sexes outside the home; speak Yiddish as their primary in the Town of Monroe, near Stewart Airport, and settled language; eschew television, radio, and English lan- in. As they began building on the rural land they had pur- guage publications; and dress in distinctive ways that chased, they became involved in a series of conflicts with include head coverings and special garments for boys their neighbors concerning the style and density of the and modest dresses for girls. Children are educated in private religious schools, most boys at the United buildings. The ensuing zoning battle caused the Satmar Talmudic Academy, where they receive a thorough to constitute their community into a new village. Under grounding in the Torah and limited exposure to secu- the New York State Village Law, a village can be created lar subjects, and most girls at Bais Rochel, an affiliated by 600 petitioners with contiguous properties. No other school with a curriculum designed to prepare girls for legislative approval is necessary. their roles as wives and mothers. The residents built a very restrictive community These schools do not, however, offer any distinctive structure which was in many ways theocratic. The chil- services to handicapped children, who are entitled dren were educated in yeshivas and many of the civil under state and federal law to special education ser- actions were settled by Jewish law. The village residents vices even when enrolled in private schools. Starting married among themselves and had very large families. in 1984 the Monroe-Woodbury Central School District Unfortunately, the small, closely related population pro- provided such services for the children of Kiryas Joel duced a large number of disabled children who needed at an annex to Bais Rochel, but a year later ended that services. The community was unable to provide these arrangement in response to our decisions in Aguilar services without government assistance, and decided, v. Felton, 473 U.S. 402 (1985), and School Dist. of Grand after much anguish, to send the disabled children to the Rapids v. Ball, 473 U.S. 373 (1985). Children from Kiryas Monroe-Woodbury School District, which served the Joel who needed special education (including the deaf, the mentally retarded, and others suffering from geographic area. Monroe-Woodbury is a large suburban/ a range of physical, mental, or emotional disorders) rural school district with a long-term reputation for good were then forced to attend public schools outside the educational services. village, which their families found highly unsatisfac- An ever-increasing number of disputes followed. One tory. Parents of most of these children withdrew them involved the busing of the students to school. Monroe- from the Monroe-Woodbury secular schools, citing Woodbury scheduled the bus routes of its drivers by “the panic, fear and trauma [the children] suffered in seniority, as provided in the union contract. The Satmar leaving their own community and being with people

12 | May 2011 | NYSBA Journal whose ways were so different,” and some sought wouldn’t pass the Senate, (2) Governor Cuomo would administrative review of the public school place- veto it, or (3) the courts would certainly overturn it. ments. Most observers assumed the proposed legislation Monroe-Woodbury, for its part, sought a declaratory would not go anywhere, and the large education lobby- judgment in state court that New York law barred the ing groups did not lobby one way or the other. The night district from providing special education services out- it passed came as a rude awakening, causing me and side the district’s regular public schools. The New York the President of the Teachers Union to have discussions Court of Appeals disagreed [in an opinion authored by Chief Judge Kaye], holding that state law left Monroe- concerning the threat that a new district carved out for a Woodbury free to establish a separate school in the religious group might represent to our constituencies. We village because it gives educational authorities broad agreed that it was clearly unconstitutional, and we also discretion in fashioning an appropriate program.2 worried that once such a district was approved, there would likely be many more special population districts. The Solution It was decided that I would speak with my former boss, The village was unsatisfied – both with the decision of the Governor Cuomo, and ask him to veto the legislation. Court of Appeals3 and the implementation by Monroe- I met with the Governor several days later, after a Woodbury – and turned to the political process for New York Times story raised the constitutional issues in an help. At a meeting that included the village leadership, article. At the meeting, the Governor indicated awareness the Town Supervisor of Monroe, Assemblyman George of the legislation and made it clear that he was support- Pataki and Congressman Ben Gilman, Assemblyman ive. He indicated that the children in the district were all Pataki proposed creating a new school district cotermi- special education children who were not being served nous with the Village of Kiryas Joel that would be under properly. The non-special education students would con- the control of the Satmar. A goal seems to have been to tinue to be served in the private schools. I had previously use the short-term crisis of the handicapped children to run the state’s special education program and said the solve several other problems for the village. 13 kids involved at that time could be easily served in A school district is a key unit of local government other ways under constitutional provisions. The Monroe- in New York State, with the power to tax, hire and fire Woodbury School District had the responsibility to do so, teachers, open and close schools, finance the construction and the State Education Department had an obligation to and operation of schools, prescribe textbooks, establish see that it was done. I noted that the legislation did not disciplinary rules, receive and distribute state and fed- limit the services to the disabled. eral assistance, etc. Most particularly, this would give the Cuomo said that the Satmar didn’t ask for much leg- Satmar control of their own publicly subsidized school islatively, and he thought they were entitled to this law. bus network (from the beginning of the Kiryas Joel School He also asked who might challenge it in court; I said that District, money for busing was the tail that wagged the I would. special education “dog,” according to the first and longtime superintendent of the district). The school buses Court would serve all the students, disabled as well as non- I challenged the law on its face, not on its application, disabled, wherever they attended school. and indeed, the village argued that the case was prema- At the time, Pataki was a minority member without ture. My rationale was that the statute, by establishing a much power in the Assembly, so he went to Assemblyman governmental unit for a religious group, was unconstitu- Joe Lentol, a Democrat who represented the Satmar tional no matter how the village applied it. My challenge enclave in Williamsburg, and asked him to sponsor a bill was also driven by my lack of resources for discovery. creating the new school district. He also asked the pow- In Albany Supreme Court, Judge Lawrence Kahn erful Brooklyn Assemblyman Anthony Genovese to help (now of the Northern District) agreed that the legislation convince Speaker Mel Miller to allow the legislation to was unconstitutional. He stated that the law violated all pass. Then, as now, legislation has no chance of making it to a vote in either the Assembly or the Senate without the support of the majority leadership. Miller, a lawyer from Brooklyn, rejected the idea immediately as unconstitutional. After his initial rejection however, Miller was persuaded by Genovese to allow the bill to go forward to solidify the support of the Williamsburg Satmar in certain city-wide elections. In a recent interview, Speaker Miller indicated that he was not concerned by the bill because he assumed that (1) it

NYSBA Journal | May 2011 | 13 three prongs of the “Lemon Test”: It had a sectarian, not a Once the Supreme Court granted certiorari, the secular purpose; it was designed to advance the religious national news media gave great coverage, with segments beliefs of the village inhabitants; and it would entangle on 60 Minutes, Larry King Live, The Today Show, C-SPAN, the state with the residents’ religious beliefs. My associa- Time Magazine and National Public Radio, along with tion was ruled to not have standing; but my standing, as editorials in all the major dailies. I still believe that the a citizen taxpayer, was upheld. heavy media coverage, which was almost unanimous in The Satmar appealed, and the decision was affirmed its support of my position, played an important role in by the Appellate Division, although with a strong dis- all of the trials, including at the Supreme Court. Linda senting opinion. It was then appealed to the state Court Greenhouse, the longtime Supreme Court reporter for of Appeals. This prestigious court was widely thought the New York Times, said the case had “the makings of a to be the best in the nation. Interestingly, every member potentially great Supreme Court case precisely because had been appointed by Governor Cuomo, who strongly the issue it raises cuts across all the established categories supported the law that was being challenged. (He was and goes to the heart of the matter – to what extent may also the first governor in history to appoint every mem- the secular state accommodate the needs of a religious ber of the Court.) The Court had to deal with the issue of population?” She noted that as more and more services not having any evidence on the statute’s application and get funding, a conflict between the Establishment Clause also whether the rationale for the law was religious or and the Free Exercise Clause was inevitable. secular. In other words, were the children being discrimi- The arguments at the Supreme Court were quite dra- nated against based on their culture, or was it an issue matic. My lawyer was Jay Worona, the young counsel of of religious beliefs? One of the amicus briefs strongly the School Boards group. Jay was volunteering his time argued the Blaine Amendment should be considered on evenings and weekends; he had never been to the as a basis for decision making, which the lower courts Supreme Court, except as an observer once or twice. The had not done. The brief also argued that the law was a Satmar were represented by Nat Lewin, the veteran high direct affront to the constitutional provisions concerning court litigator who had argued over two dozen cases. It establishment, over and beyond the issues underlying had all the elements of David versus Goliath. the prongs of the Lemon Test, and called for application The justices immediately started asking about wheth- of a strict scrutiny test. The Satmar argued that they were er the benefits for the Satmar under the legislation were not establishing a religious entity, but were removing available to other religious groups, or indeed to the an obstacle to students receiving necessary services, an non-religious as well. Lewin said that the case was about obstacle due to their religion. children being denied services because of their religious The Court affirmed the decisions of the lower courts beliefs. He argued that the village establishment had not in an opinion by Judge George Bundy Smith,4 which been challenged, and the school district could follow vil- focused on the second prong of the Lemon Test. A fasci- lage lines, even though New York law made it clear that nating concurring decision was written by Chief Judge only state legislation could create a school district, which Kaye, which did not go to the Lemon Test or the Blaine was not an approved village service. Amendment. Instead, she went to the strict scrutiny test, Justice Kennedy questioned where the district had which she thought was the appropriate test for a law that been gerrymandered along religious lines. Justice Scalia put a government entity under the de facto control of a hammered his points about the village residents being religious organization. Judge Kaye argued that establish- discriminated against because of expression of reli- ing a fully empowered school district went well beyond gious principles. The State Attorney argued the distinc- the need to provide services to a handful of children. tion between advancing religion and accommodating Stressing her sense that the law was wildly out of propor- it. Justice O’Connor kept returning to the issue of neu- tion to the problem, Judge Kaye’s opinion was a thinly trality among religions. Justice Souter asked about the veiled rebuke of the Legislature. strict scrutiny criteria that Judge Kaye raised at the state Interestingly, the Court of Appeals, despite its gen- Court of Appeals. Justice Rehnquist questioned whether eral preference for resolving cases under New York state the segregation within the district was really religious law wherever possible, did not make any ruling under or whether it was linguistic and cultural. The justices the New York Constitution, thus clearing the way for a seemed to be debating each other more than questioning Supreme Court hearing, which was soon granted (by the attorneys presenting their cases. Justice Clarence Thomas). It is somewhat noteworthy Due to Justice Blackmun’s donating his conference that many church/state issues which could be decided notes to the Library of Congress, we know what hap- on state constitutional provisions are ultimately decided pened during the Court’s deliberations. A couple of days by the Supreme Court. Indeed, the establishment clause after the hearing, the justices met in conference to consider is often considered a special province of the federal the case. Contrary to the belief on both sides that the result courts. was uncertain, the conference ended with a 6-3 major-

14 | May 2011 | NYSBA Journal ity affirming the New York courts. According to Justice During the time the case was being considered, Blackmun’s notes, that majority never wavered. The case Governor Cuomo faced a re-election campaign against was first assigned to Blackmun, but then it was reassigned State Senator George Pataki, creator of the original leg- to Souter to write the majority opinion. The decision was islation. While campaigning in the Village of Kiryas Joel, announced on the last day of the 1994 session. Governor Cuomo promised to enact new legislation to solve the problem if the second law was declared uncon- Back to the Legislature stitutional. The speech was filmed by a crew who gave it That might have resolved the dispute, but it did not. Four to 60 Minutes. When I heard of the promise, I compared days later, Governor Cuomo submitted a new legislative it in the media to southern governors’ reaction to Brown proposal. Once again, it was put in front of the Legislature v. the Board of Education in the 1950s. 60 Minutes ran a seg-

The statute, by establishing a governmental unit for a religious group, was unconstitutional no matter how the village applied it. on the final day of its session. Once again, it was voted on ment on the issue the Sunday night before the election, in the middle of the night. While the first legislation did which Pataki won. not receive any attention until it passed, the new legisla- After the second case was decided by the Court of tion was opposed editorially by almost every newspaper Appeals, Speaker Silver’s staff, the Satmar, the State in the state. The pressure of appearing to override the Education Department and I attempted to find a way U.S. Supreme Court four days after it rendered a decision to serve the children within the boundaries of the did not seem to affect the legislators. This time a handful Constitution. Several times we reached tentative agree- of legislators opposed the legislation, but still it was an ments on an approach, only to have someone oppose the overwhelming vote in favor. Also, Speaker Miller, who proposed agreement after discussing it with colleagues didn’t like the proposal, had been succeeded as speaker who were not in the room. The Hasids were concerned by Sheldon Silver, who was an extremely strong support- about religious principles. The state was concerned about er. Speaker Silver had a second home in Orange County, precedent setting. and he knew the area well. He is also very sympathetic to After Governor Pataki took office, he proceeded to religious accommodation issues. introduce a third piece of legislation to solve the issue. His The key difference between the two pieces of legisla- office claimed that more than 60 possible districts would tion was that the original named the Kiryas Joel district meet the revised criteria. I sued again and deconstructed specifically; the second set forth supposedly neutral cri- the criteria to show that only two possible districts could teria, for the creation of new school districts (an attempt fit them – Kiryas Joel and Stony Point, a nearby Rockland to deal with Justice O’Connor’s issue of neutrality). The County district which had a major problem brewing only problem was that the only district which could have between its Latino community and the surrounding been created under the stated criteria was Kiryas Joel. district. This time all three levels of courts in New York The transparent attempt to circumvent the courts infuri- invalidated the law. The Court of Appeals chastised the ated the media, and I immediately filed new litigation. In Legislature for repeatedly attempting end-runs of court a press conference, I referred to the second legislation as decisions, while the dissenting opinion suggested that the “Son of Sham.” trying to fix a problem was appropriate. Indeed, it sug- What followed was a series of somewhat bizarre gested that the case no longer be looked upon as one of events. In deciding a simple procedure motion, Judge David versus Goliath. Harris wrote an extremely lengthy opinion responding Finally, the Satmar hired former Speaker Miller as a to the Supreme Court rationale in the first case. The case consultant to draft a fourth legislative proposal which then moved to Judge Kahn, who had decided the first was broad enough to possibly pass constitutional mus- case in the Albany Supreme Court. Kahn surprised most ter. I had left the School Boards Association by that time observers by deciding that the second legislation was and it appeared to lose interest in pursuing the matter. constitutional, basically because it might apply to some Dissidents in the village who thought the law violated other district at some time. Therefore it was neutral. I Talmudic principles filed litigation, but it didn’t go any- appealed, of course, and the Appellate Division and the where. I believe that had the courts considered the law Court of Appeals swiftly overruled Kahn’s decision. The fully, it would have been struck down once again. It fas- Court of Appeals was unanimous, and there was no cinates me that no other district has been created under appeal to the Supreme Court. the provisions of the fourth statute.

NYSBA Journal | May 2011 | 15 Lessons levels, the legislation and the ensuing litigation would The Kiryas Joel School District remains open, and it serves have been unnecessary. Indeed, a troubling issue is that several hundred disabled Hasidic children from the sur- the government – at all levels – realized it had no need rounding region. The courts eliminated the most obvi- to act responsibly and follow its duties because those ously unconstitutional provisions of state law. The cases who were in government knew that the courts would are widely read in law school, as delineating the limits of act in its stead, a point that Speaker Miller admits how far is too far in establishment law cases. Indeed, Pat freely. Robertson’s counsel refers to the Supreme Court case as a Did litigation solve the problem? In some ways, yes. bookend case. Interestingly there have been no more seri- After 10 years of trials, thousands of hours of work, and ous attempts to overturn the Lemon Test, which the Court an important precedent, it is clear that a governmental uses to decide establishment provision cases. entity cannot be formed for one religious group. Yet, So, one could argue that the case was successful in set- the school district still exists, pretty much as intended. tling a highly controversial area of constitutional law. That Somehow, I’m not troubled by the continuation of the is an oversimplification, however. The case did make it school district. Kids’ needs are being met, and the provi- clear that a state cannot establish a governmental unit to sions of the Constitution were upheld. serve only one group of religious individuals. It also took There are many purposes served and needs met by James Madison’s view that neutrality among religious our system of litigation, but it’s rare that any one case viewpoints is a primary consideration for determining serves all of these purposes and meets all of these needs. what is constitutional and what is not. It did not consider In my case, I did not achieve my immediate purpose of the stricter separation views of Thomas Jefferson, which shutting down the Kiryas Joel School District and pur- entail a complete separation of church and state. This is suing an integrationist approach, which seemed to be a critical distinction as governmental spending for faith- required of the Monroe-Woodbury community. On the based organizations becomes more amenable to both other hand, I did get confirmation from the courts that liberals and conservatives. the Constitution is alive and well – and I believe this more But the real lesson is that the legislation should never than anything else satisfied the plaintiff in me. Whatever have happened. It represented a total failure of the edu- happened afterwards, whatever end-runs the Legislature cation system to live up to its responsibilities. The par- and Governor later devised, the courts forced them to ents insisted on publicly funded isolation from society. keep trying till they fixed the constitutional problem. It was not a religious choice in its purist form; it was a Nothing brings home the checks and balances in our sys- demand for funding their way of life. The school district, tem of government like taking the government to court which had a legal responsibility to serve the disabled and forcing it to obey the Constitution. children in question, acted in almost total disregard of Yes, I still think it’s a problem that the students and the law and with total disrespect for tolerating different teachers of the Monroe-Woodbury School District were lifestyles. deprived of an opportunity to learn tolerance and the Most significant, the State Education Department, value of diversity. But they weren’t deprived by the which has the statutory duty to enforce the provision Satmar’s request; they were deprived by their govern- of services to disabled youngsters, failed to intervene ment’s response to the request – and lawsuits brought by and ensure such services. It did not intervene with the me or anyone else are never going to solve that problem district or the parents. It did not help the Legislature find permanently. The problem can only be solved when an acceptable solution. The department kept such clean the voters of New York remember that self-government hands that everyone else got dirty ones. The Legislature requires cultivation and attention. It requires using the acted as if this were a local issue and not a constitutional courts when the government goes astray. one. The legislators responded to political pressure rather Litigation can, and did, accomplish all that could than to their responsibilities to uphold the Constitution. be expected of a system of dispute resolution – my The same can be said for two governors. complaint was heard and, armed with a few lines Interestingly, those who wanted to use public fund- from the Constitution and a small book of procedural ing to support faith-based schools found another route rules, I was able to force compliance on people and – charter schools. While they existed in some scattered institutions immeasurably more wealthy and power- areas, they took off after the door to new school districts ful than I was. ■ was closed by the Supreme Court. Faith-based organizations found support from governmental entities that was 1. Bd. of Educ. v. Weider, 72 N.Y.2d 174 (1988). neutral and followed the Supreme Court parameters. Not 2. Bd. of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 691–92 (1994). one charter school has yet failed the test. 3. Weider, 72 N.Y.2d 174. So an old lesson is in front of us: If the government 4. Grumet v. Bd. of Educ., 81 N.Y.2d 518 (1993). had acted as it should have at all levels, or even at some

16 | May 2011 | NYSBA Journal

BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury lawyer in New York and is the author of New York Civil Disclosure (LexisNexis), the 2008 Supplement to Fisch on New York Evidence (Lond Publications), and the Syracuse Law Review annual surveys on Disclosure and Evidence. Mr. Horowitz teaches New York Practice, Evidence, and Electronic Evidence & Discovery at Brooklyn, New York and St. John’s law schools. A member of the Office of Court Administration’s CPLR Advisory Committee, he is a frequent lecturer and writer on these subjects.

Average Just Isn’t Good Enough (Anymore): Part 2

Introduction dent could have been avoided was The one undisputed fact is that The previous issue’s column began a based on nothing more than a series [the plaintiff] was found with his review of Dibble v. New York City Transit of estimated stopping distances that severed foot beside him 40 feet Authority.1 Since the first column went incorporated purported average reac- into the station, that is, 40 feet from to press, the Court of Appeals has tion time.”6 Agreeing with the defen- the location, the beginning of the granted leave.2 This issue’s column dant’s argument that the plaintiff’s station, where [the train operator] completes our discussion of the First case was based entirely on impermis- testified he first saw the debris. Department’s analysis of the law (sub- sible speculation, the First Department There was no evidence presented to ject to an update if the Court of Appeals held that the jury verdict was based indicate that the plaintiff was struck ends up deciding the case), as applied on insufficient evidence, as a matter at the beginning of the station and to the evidence at trial concerning the of law: then dragged for 40 feet. Indeed that scenario was roundly rejected. plaintiff’s expert’s use of an average [N]one of the variables utilized by There was no blood evidence except reaction time in calculating the train the plaintiff’s expert to calculate in the location where [the plaintiff] operator’s ability to bring the train to a possible stopping distances were was found, and he had no injuries stop without striking the plaintiff. established conclusively at trial. consistent with being dragged or The previous column concluded All were estimates or approxima- pushed by the train from the begin- with the critical question of fact identi- tions. It was [the train operator] ning of the station. This strongly fied by the First Department – whether at his deposition who estimated suggests that the debris that [the the train operator “could have avoided his speed to be between 20 and 24 3 train operator] first saw was not, in hitting the plaintiff.” miles per hour as he approached fact, the plaintiff whom he struck 40 the station. His conductor stated The Issue feet further along.7 that the train might have been trav- The First Department in Dibble eling at 25 miles per hour. Further, How the First Department acknowledged that the “Court of it was solely [his] estimate that he Reached Its Decision Appeals has held that ‘a train operator was about three car lengths away may be found negligent if he or she when he first saw debris to the After reviewing the plaintiff’s engi- sees a person on the tracks from such a left, almost under the platform at neering expert’s scenarios and result- distance and under such other circum- the beginning of the station. [He] ing calculations, all of which indicated stances as to permit him [or her], in further stated that the cars were the operator would have been able to the exercise of reasonable care, to stop 75 feet in length; in fact, as [the stop the train without hitting the plain- 4 before striking the person,’” and “[i]f plaintiff’s expert engineer] subse- tiff, the First Department proceeded to there is a question of fact and ‘it would quently acknowledged, the cars on analyze scenarios the expert was not not be utterly irrational for a jury to the subject train were just 60 feet asked to apply at trial, and upon which reach the result it has determined upon long. [The train operator] was the he was not, according to the decision, . . . the court may not conclude that the sole witness as to what exactly was cross-examined by the defendant: verdict is as a matter of law not sup- visible as the train approached the [Plaintiff’s engineering expert], 5 ported by the evidence.’” station; he was also the sole wit- however, was not asked to apply, ness as to how far away he was and did not apply, a four second The Decision when he saw what he described as reaction time to his original scenar- The First Department concluded that the debris moving. io where the train was traveling at “the jury’s determination that the acci-

18 | May 2011 | NYSBA Journal 24 miles per hour. In such scenario, time (4 x 29.3). On the other hand, any train operator with a longer [the train operator] would have with 220 feet available, [he] opined than average reaction time. traveled approximately 141 feet that [the train operator] could have More egregiously, the record does (4 x 35.2) before he applied the taken two seconds in reaction time not reflect that the plaintiff’s expert brake, and a further 167 feet brak- and still stopped before striking 9 provided any foundation or evi- ing distance for a total stopping the plaintiff. dentiary support for his observa- distance of approximately 308 The decision does not explain tion that the average reaction time feet, whereupon he would have whether this testimony was elicited of a train operator is one second. unavoidably hit the plaintiff. by counsel for one of the parties or Much less was it established as Such a scenario, of course, makes volunteered by the expert. However, the average reaction time for non- perfectly clear that [the train opera- it was the testimony that provided the negligent train operators. tor’s] failure to exercise reasonable foundation for the First Department’s [Plaintiff’s engineering expert] care could be established only by conclusion that an alternate scenario, acknowledged that, in this case arbitrarily imposing upon [him] never elicited during trial, existed as in the cases of hundreds of the purported average reaction which would have resulted in the other plaintiffs for whom he has time of one second. In other words, plaintiff being struck by the train testified, he uses one second for a in determining that the defendant’s without proof of the train operator’s train operator’s reaction time even train operator failed to exercise negligence: though he has never seen or con- reasonable care because he could In our view, the court simply did ducted a study of reaction times have stopped, the jury improperly not go far enough. As the defen- of train operators. Indeed, when equated negligence with posses- dants in this case assert, the use asked on direct how he arrived at sion of a motor skill that is essen- of an average reaction time of one the one second reaction time, [he] tially a reflex action. Moreover, in second implicitly renders negligent replied: this case, the motor skill that deter- mines the reaction time in any individual, and which is measured in seconds and fractions of a second, was assumed to be the purported In Search Of A Better Way To Find Missing Heirs? average of just one second with no variability for identification, analysis and decision.8

You might be wondering where a four-second reaction time came from, since the plaintiff’s engineering expert’s calculations and testimony was based upon a one-second reaction time. In fact, the four-second reaction time came from the plaintiff’s expert: [Plaintiff’s engineering expert] then applied the formula to a speed of 20 miles per hour and found that one second of reaction time would add 29.3 feet to the braking distance of 121 feet for a total stopping distance of 150.3 feet. Hence, [the plaintiff’s engineering expert] testified, with 265 feet available, [the train operator] would have stopped with 112 (sic) feet to spare. Moreover, [the plaintiff’s engineering expert] opined that at this speed, the train 1-800-663-2255 operator could have stopped before www.heirsearch.com/quote hitting the plaintiff even if he had R We Find Missing Heirs A Better Way needed four seconds of reaction [email protected]

NYSBA Journal | May 2011 | 19 “Well, there are many, many, many ported average. On the contrary, Based upon its analysis of the plain- studies for automobile drivers. I it is self-evident that if the average tiff’s engineering expert’s testimony, myself have never seen a reaction reaction time is deemed to be one the First Department also failed to time study for a train operator, second for train operators, then a credit the train operator’s testimony I know of none. . . . [But reac- number of all train operators will that he had sufficient time to stop the tion times for automobile drivers] have a reaction time of less than train from the time he first saw an [t]hey’ve pretty much all come to one second, and correspondingly object on the tracks: the conclusion it’s about a second a number of all train operators a For the foregoing reasons, we also for an auto driver under normal reaction time of more than one sec- reject the plaintiff’s contention circumstances.” ond. Moreover, as [the defendant’s that [the plaintiff’s engineering engineer] testified, those in the 85th The paucity of research on train expert’s] merely provided scientific percentile will have a reaction time operator reaction times notwith- corroboration for [the train opera- of two and a quarter seconds. standing, on cross-examination, tor’s] concession that he could have [plaintiff’s engineering expert] Nothing in the record indicates stopped the train before hitting the testified to choosing one second where [the train operator] might plaintiff had he put the train into because “that’s a reasonable aver- be found along that spectrum. But emergency when he first saw the age reaction time” of train opera- if, for example, [he] had been in debris. [The train operator’s] own tors. He defended the choice by the 85th percentile, two and a quar- speculation, in any event, was not stating that this was not a “com- ter seconds of reaction time and an acknowledgment of negligence plex situation,” that there was car lengths of 60 feet would have since it was made in the context only one reaction required, that is resulted in the plaintiff being struck of testimony as to [his] belief that throwing the brake, and that “there even if [he] had put the train into what he first saw was debris and [was] no reason to think that [the emergency when he first saw the not a person.12 train operator] had a reaction time debris. Further, as [the defendant’s slower than average.”10 engineering expert] testified, and Thus, the First Department dismiss- [the plaintiff’s engineering expert] es the train operator’s admission that Where was the testimony in the conceded, reaction time also may be he could have brought his train safely record establishing that a four-second affected on any particular occasion to a stop if he had placed the train into reaction time could be considered “the by factors such as age and vision emergency when he first spotted the exercise of reasonable care”? There was and other variables such as lighting debris. none. One can infer that the plaintiff’s or weather or time of day. expert, after giving his expert opin- The World After Dibble It is troubling that, aside from one ion utilizing the one-second reaction After Dibble, in order to pass muster suggestion made by [the defen- time, attempted to convey the magni- with the First Department, the plain- dant’s engineering expert] that tude of the train operator’s negligence tiffs in a case involving a train opera- the plaintiff’s dark clothing could by explaining that with a four-second tor’s ability to stop a train would have hampered [the train opera- reaction time the train could have been appear to have to proffer evidence of, tor’s] analysis of the situation and safely brought to a stop without strik- inter alia: thus increased his reaction time, no ing the plaintiff. If this is what hap- 1. results of studies of average reac- other attempt was made to apply pened, and with the benefit of twenty- tion times specifically for train any of the above mentioned fac- twenty hindsight a poor strategy, but it operators; tors or ranges to the train opera- was not a concession that a four-second 2. reaction time studies utilized and tor in this case. Had the effort reaction time was reasonable. relied upon by the entity in select- been made, it would have become The First Department then turned ing operators to operate its trains; apparent to the jury that there was to the issue of the train operator’s indi- 3. hiring and retention criteria for insufficient evidence to determine vidual reaction time: train operators utilized by the whether [the train operator] could entity operating the train (includ- Even were we to accept arguendo have stopped without striking the ing reaction time evaluations); and that an average reaction time for plaintiff.11 a train operator is indeed one sec- 4. hiring and retention testing and ond, the necessary corollary to [the None of this analysis was part of the evaluation of the train operator plaintiff’s engineering expert’s] record at trial, because defense counsel involved in the accident. speculation is that there is no rea- did not inquire, and there is nothing in Since a major criticism of the plain- son to assume that [the train opera- the decision that the defendant consid- tiff’s proof was the failure to establish tor’s] reaction time was the pur- ered an operator in the 85th percentile that the operator in question had an to be qualified to operate a train. average reaction time, and since the

20 | May 2011 | NYSBA Journal court would presumably find the oper- that your train operator, bus driver, 5. Id. at 276 (citation omitted). ator’s own testimony about his reac- or airplane pilot, like all of the chil- 6. Id. at 277. tion time speculative, just as it did the dren in Lake Wobegone, is “above 7. Id. at 277–78. 8. Id. at 279. operator’s testimony that he could have average.” ■ 9. Id. at 278–79. brought the train safely to a stop, disclo- 10. Id. at 279–80. sure may be required of, inter alia: 1. 76 A.D.3d 272 (1st Dep’t 2010). 11. Id. at 280–81. 1. initial and subsequent medical 2. 2011 N.Y. LEXIS 428, 2011 N.Y. Slip Op. 67676 (N.Y. Mar. 24, 2011). 12. Id. at 281. evaluations of the train operator 3. Dibble, 76 A.D.3d at 277. 13. Id. at 277. by the employer; and 4. Id. at 277 (citation omitted). 14. Id. 2. medical records of the train operator. Imagine the reaction to these disclosure requests! Furthermore, it may be In Memoriam: S. Hazard Gillespie necessary to add claims for negligent hiring and/or retention in order to obtain S. Hazard Gillespie, 61st President some of these records, as well as the of the New York State Bar Association, benchmarks against which the individu- died at the age of 100 on March 7, 2011. al operator’s reaction time is measured. Current NYSBA President Stephen At deposition, questions regarding peri- Younger offers this tribute: odic re-testing and/or re-qualifying, and “With great sadness, the New regarding what independent testing, or York State Bar Association mourns the industry standards, the employer relied passing of Past President S. Hazard upon, may need to be asked. Gillespie of New York (Davis Polk & What type of proof will suffice, going Wardwell LLP). Gillespie served as forward, concerning speed? The train President of the State Bar Association operator’s own estimate of his speed from 1958 to 1959. He received the “A graduate of Yale University and was critiqued by the First Department as Bar’s highest honor, the Gold Medal, Yale Law School, Gillespie was senior being one of the “estimates or approxi- in January 2010. counsel to Davis Polk & Wardwell. mations,”13 none of which “were estab- “Hazard was a monumental leader, More than 75 years after he served as lished conclusively at trial.”14 What a multi-talented individual and a true the firm’s summer clerk, Gillespie still better proof could there be of the train’s legend of the legal profession. He was came to work every day at the firm’s speed? How do you establish speed an outstanding role model for genera- New York office, devoting his time to “conclusively” at trial? tions of attorneys, teaching us all what pro bono services. Gillespie served as Of course, the rejection by the First it means to be a leader and a mentor. U.S. Attorney for the Southern District Department of an average reaction time It was an extraordinary privilege and of New York from 1959 to 1961. for the operator of a train and the cri- great pleasure to know him and call “Known for his devotion to com- tique of the adequacy of the proof of him my friend. munity service, Gillespie served as certain variables at trial has application “As president of the State Bar, president of the Tappan Zee Bridge in many other types of cases where aver- Gillespie was one of the first presi- Preservation Coalition. He is a past age reaction times are commonly used. dents to travel across the state in order chairman of the American Skin Asso- It would, by parity of reasoning, extend to foster relationships with local bar ciation, where he remained a board to a case involving an automobile strik- associations while building the State member. He previously was vice presi- ing a pedestrian in a crosswalk. Bar’s membership. Other highlights dent of the Yale Law School Associa- Finally, the type of foundation that include successfully advocating for the tion of New York and a director of the the First Department suggests is need- New York State Legislature to pass leg- Legal Aid Society, the Union Settle- ed for an expert to testify concerning a islation that streamlined state income ment Association and the Hospital for person’s average reaction time has ele- tax paperwork and personally endors- Special Surgery.” ments of the type required by Daubert, ing 347 young lawyers to be admitted A memorial service was held on rather than the generally more lenient to practice before the U.S. Supreme March 30 at St. Bartholomew’s Church requirement set forth in Frye. Court. Prior to his presidency, Gillespie in New York City. chaired the Membership Committee He is survived by his wife, Adelma Conclusion during a period when State Bar mem- Park, two children, two stepchildren, Should you find yourself one day bership dramatically grew from 11,000 two brothers, seven grandchildren and traveling to Lake Wobegone, wheth- to 15,000. eight great-grandchildren. er on a train, bus, or plane, let’s hope

NYSBA Journal | May 2011 | 21 STEVEN J. HOLLANDER (shollander@ wfw.com) practices in the corporate group of Watson, Farley & Williams LLP, an international law firm. He concentrates in mergers, acquisi- tions, public and private securities issuances including securities reg- istrations and filings, private equity and general corporate governance.

A Guide to Due Diligence of Commercial Contracts

By Steven J. Hollander

aw schools teach students black letter law and legal and the background research performed on a company concepts; however, recent law school graduates are and/or its assets. In the corporate context, typically con- Ltypically not ready for the day-to-day practice of tracts are reviewed when a person or company wants to law at firms because knowledge of the law does not nec- acquire another company or its assets or wants to forge essarily equate into effective practice of it. Junior trans- a relationship with another company, such as a joint actional attorneys are many times tasked with document venture relationship. The acquiring party performs due review (similar to reviewing discovery materials in litiga- diligence in order to obtain a better understanding of the tion, as explained below) where the attorneys must review target’s business, legal and financial composition, value thousands of pages of documents, many of which are con- and liabilities. Oftentimes this understanding will affect tracts. A junior attorney may understand contract law, but the agreements relating to the acquisition or joint venture may not know what to search for within the contracts he relationship. or she is tasked to review. After all, a law student may be The most common form of due diligence is “docu- able to explain that a contract is a mutual manifestation of ment review,” which is reviewing documents of and the an intent to be bound, that a contract may be unilateral or contracts and agreements to which the target company is bilateral, or give the definition of the four corners test, but a party. Although due diligence is not required prior to that is not relevant when a more senior attorney appoints a transaction, a prudent attorney may advise his or her a junior associate to review a contract and to inform such client that due diligence is a necessary and/or customary senior attorney of any provisions that may be problematic. prerequisite to a transaction. The purpose of this article is to provide a junior attor- The reason why due diligence is strongly recom- ney with a basic overview of document review of a com- mended prior to consummation of a transaction is shown mercial contract. This article is a basic primer, not a final in the example of a potential purchase of real property. checklist, of issues to note and portions of the commercial The potential property purchaser may research whether contract to which a junior associate should pay special (1) the seller of the land is the owner of record, (2) anyone attention.1 else has any claims relating to the ownership of the land, (3) there are breaks in the chain of title, and (4) any envi- Why Are Contracts Reviewed? ronmental concerns exist for which the purchaser would “Due diligence” is the term used to connote the review be liable. If, after due diligence, the potential purchaser conducted by attorney(s) and other persons of documents learns that the property has significant environmental

22 | May 2011 | NYSBA Journal liabilities attached to it, the potential purchaser may the vast majority of executed contracts are not reviewed determine not to purchase the property, or may decide to or challenged because each party fully performs its reduce the purchase price or negotiate an agreement with responsibilities. The “legal” features are the provisions the current owner to remediate the environmental con- that may be reviewed when there is a reason to review cerns prior to a sale. Similar to the potential real property the contract – commonly because of a potential transac- purchaser, an acquiring company will want to research tion or litigation over the contract. Equally important, a the target company’s contracts before finalizing a trans- “business” issue may in fact become a “legal” one; for action in order to, among other things, understand what example, when one cannot terminate a contract upon it is acquiring, the value of what it is acquiring and the reasonable notice but must wait until the contract expires potential negative implications of the acquisition. If the pursuant to its own (business) terms, intervention of the acquiring company learns of a significant liability or issue courts – and injunctive relief – may be necessary to put an during due diligence, it may alter the acquisition price, end to a harmful situation. cause additional negotiations that focus on such liability Depending on the legal features of the contract, review or issue, or terminate the acquisition. In a commercial by special counsel may be worthwhile (such as an ERISA or corporate transaction, it is common practice to, and specialist to review an employment agreement). actually may very well be malpractice not to, negotiate Each contract’s business and legal features are gen- all representations and warranties relating to the subject erally significant for various reasons, but may not be matter of the transaction based upon information gath- important to a particular client or transaction. By discuss- ered from a review of all related commercial contracts. ing the scope of the review with the client or senior attor- While a potential transaction can be structured as an asset ney, a junior associate may not need to focus on each of acquisition, merger, stock/equity purchase or joint venture, the features discussed below or may need to particularly such potential transaction may be structured in a number of focus on certain features. ways that may affect certain aspects of the review. Business Features Extent of Review The following is a non-exhaustive list of features that When a junior associate is asked to review contracts, the business people typically spend most of their time associate should first ask the scope of the review he or she reviewing and understanding. is required to perform. The client may be reviewing the contracts simultaneously and therefore may require only a One- or Two-Sentence Description of Contract review of the legal issues that may arise with the contract, When reviewing hundreds of documents, it is easy to compared with business features or specific contract terms. forget why a certain contract was executed. It therefore Alternatively, the client may not want to spend the addi- is important to note the basic premise of the contract, in tional funds for the attorneys to more thoroughly review order to understand to the synopsis of the contract. The the contracts (perhaps because the contracts constitute a description may be as simple as “Company A sells banan- trivial value to the overall transaction) and may only desire as to Company B,” but without this short description of to know significant legal problems with the contracts, if purpose there is no context to the contract provisions any. If a client is not reviewing the contracts, the client may to be summarized. Most other contractual provisions want an overview of the business portions of the contract, reviewed will not mention the purpose of the contract, such as term, pricing and services to be rendered. One of which makes it difficult to determine whether a company the best ways to determine the scope of review is to under- wants to assume a contract. stand the commercial basis for the transaction, which will help prioritize which contracts to review carefully and Term/Termination how thoroughly to review them. A significant portion A businessperson frequently wants to know when a of a company’s value may be found in its contracts (for contract can or will expire. An acquirer may not want to example, a manufacturer that produces and sells only the acquire a company when its contracts are expiring, unless quantity of goods required by contract or the company’s all or some of the contracts can be renewed or extended rights to certain third-party intellectual property); thereon the same or similar terms. If a contract can be termi- fore, more careful contract review may be required when a nated by one or both parties at any time, then such provi- company heavily relies on contracts for profits. sion is notable because an acquirer may be fearful that The features to review in typical commercial contracts the contract will be terminated as soon as it is acquired, can be generally divided between the “business” and which may cause a reduction in the value of the transac- “legal” features. “Business” features are the business tion, potentially interrupt business operations or worse. terms of the contract that constitute the substance of the If a party desires to terminate a contract without a contract. What many lawyers forget (especially litiga- default of the other party, the terminating party may be tors), and what may be glossed over in law school, is that required to provide a certain amount of notice or pay a

NYSBA Journal | May 2011 | 23 penalty, or both. A junior associate should note when and A potential acquiring company may want to be aware how each party may terminate a contract. of this minimum commitment because the successor must adhere to it. A minimum commitment may allow Default and Cure a client to predict a minimum amount of profit (or loss) Although most parties typically adhere to their respec- guaranteed by a contract. Typically, contracts containing tive contractual obligations, the instances when a party minimum commitment provisions also provide for the is deemed in “default” of a contract may be important. termination of such contracts if such minimum commit- A junior associate should note the effects that default ments are not satisfied. may have on termination (e.g., whether a party has the ability to terminate the contract when the other party has Related Party Transaction defaulted) and whether there is a notice and cure period.2 A junior associate should note if an agreement is a related- One should also take note of what actions are permitted party transaction (such as an agreement that is executed when both parties are in default (e.g., whether a party between sister or parent companies). Oftentimes, related- can terminate the contract when it is also in default). Not party agreements contain provisions that significantly all contracts will contain explicit default provisions, but favor one party (called “harmful” provisions) that would could have a section that discusses how breaches of the typically be negotiated between the contracting parties contract should be handled. (or conversely not contain such protective provisions for A default of a party’s obligations (or termination of a a party), if the parties were not related.3 The acquirer may contract) may affect other contracts. For example, the cov- want to renegotiate the contract prior to the acquisition or A junior associate should be sensitive to the wording in the contract in order to determine what is permissible, what is prohibited and which consents should be obtained. enants to a loan agreement may provide that a party must may refuse to assume the contract. In any event, an agree- not be in default in certain of its other contracts. By enter- ment between related parties is one that may require ing into default of such other contracts, even if the default additional attention. is cured, there may be a technical violation of the loan agreement. Recently, due to the troubled economy, banks Exclusivity have become more critical of these technical breaches. If a party promises to provide goods or services exclusive- ly, it precludes such party from expanding its business to Payment certain customers or markets. Exclusivity provisions can An obviously important “business” aspect to a contract take various forms and may be in a form or labeled dif- is the payment obligations. A junior associate should ferently than one might expect. In real estate transactions, understand all facets of how the payment mechanics in for example, exclusivity takes the form of radius clauses a commercial contract work, because it is an aspect of (e.g., no other similar type of establishment within a cer- the contract that businesspeople typically will want to tain distance from the property). In another exclusivity understand. A junior associate should be able to respond example, until early 2011 Apple was party to an exclu- to the following questions: Who pays whom how much? sive contract with AT&T, requiring the iPhone (which How is the payment of consideration structured (com- is owned by Apple) to be used only with AT&T service. mission, flat fee, variable, per unit, etc.)? How is the pay- The AT&T exclusivity provision precluded Apple from ment made? When is the payment made (before or after contracting with other cell phone carriers such as Verizon the services or goods are rendered)? These questions are to use the iPhone with their services, which decreased the vital to a business because most parties will adhere to a number of potential iPhone users and therefore reduced contract, and the parties will follow a contract’s binding Apple’s potential profits to be actualized if Apple could provisions. sell iPhones to Verizon and T-Mobile customers. In addition, in this type of situation, a junior lawyer must Minimum Commitment consider related, if not corporate, issues: such type of Certain contracts contain a provision whereby one party exclusivity may contain risks of potential litigation if commits to provide a minimum amount of a good or ser- the contracting party benefiting from the exclusivity vice. For example, a contract may provide that Company has sufficient market power to foreclose markets and/ A will provide bananas for $1.00 per pound to Company or generate anti-competitive behaviors on such markets. B, which will be no less than 1,000 pounds per month. The iPhone example can be translated to many different

24 | May 2011 | NYSBA Journal business situations. If an acquirer is targeting a company Governing Law and plans to profit by expanding the target’s business to As noted in “Change of Control/Transferability” above, additional customers or markets, but is precluded from the governing law of a contract may be significant regard- doing so because of an exclusivity provision, the acquirer ing the specific language prohibiting a change of control should be aware of the provision’s existence. In fact, any or a transfer, as well as other issues that arise as part of limitation on an acquirer’s ability to conduct business is the due diligence process. A junior associate should there- noteworthy. fore note the governing law so that if additional research is required regarding a potential issue, the associate will Legal Features know under which state or foreign law to conduct his or The following is a non-exhaustive list of contract features her research. A typical “trap” should be remembered: if a that attorneys may review, but are usually not the focus of contract between a U.S. party and another non-U.S. party the businesspeople when the contract is initially drafted. from a country that is a signatory to the United Nations Convention on Contracts for the International Sale of Change of Control/Transferability Goods of 1980 does not expressly exclude the provisions An issue that arises frequently in document review is of such Convention in the contract, then such Convention whether contracts contain provisions relating to a change becomes the substantive law between the parties and of control of a party, or the ability for one party to trans- governs the sale(s) under the contract, notwithstanding fer its contractual obligations to another. The parties will an explicit choice-of-state-law provision, which may lead want to know whether a change of control or transfer to terms very different than those of the state law. of obligations (typically by assignment) is allowed, and whether the party undergoing a change of control or Indemnification transfer of its obligations must adhere to any require- An indemnification provision provides that one party ments. will compensate the other party for losses or liabilities Contracts may contain provisions that prohibit a incurred in connection with the underlying contract (or change of control or a transfer without written permis- goods or services provided thereunder) and attributable sion from the other party. It is therefore commonplace for to the payee’s actions. Indemnification provisions are acquisition agreements to contain a condition precedent important because they focus on which conditions and to consummating any transaction that the transferring which parties will be able to seek restitution from the parties or the parties that will undergo a change of con- other party. trol obtain consents from any counterparties to the con- A junior associate should focus on when an indem- tracts to permit a transfer or change of control. nification provision is the exclusive remedy (i.e., the Not all change of control provisions are drafted aggrieved party is not able to seek other damages) and similarly. Certain provisions may prohibit a “change of when such provision is triggered (for example, whether control,” while other contracts may define a prohibited “negligence,” “gross negligence” or some other stan- “transfer,” “assignment” or “acquisition.” It is quite pos- dard triggers the provision). It is important to focus on sible for a transaction to be structured in a manner that whether indemnification provisions provided to each may be technically prohibited by one contract but permis- contractual party are mirror images of each other; if not, sible according to another contract, so a junior associate the junior associate should focus on which indemnifica- should be sensitive to the wording in the contract in order tion obligation is owed to whom. It is also important to to determine what is permissible, what is prohibited and note whether the indemnification provisions will apply to which consents should be obtained. third-party (i.e., a person that is not a party to the agree- Depending upon which party is the surviving entity, a ment) claims or to claims only among the contractual merger may be deemed a “transfer” by law and, therefore, parties. may be prohibited if a contract prohibits “transfer” without additional language (a contract can always explicitly Insurance Obligations define “transfer,” “assignment” or “change of control” to If indemnification is sought by a contractual party based include a merger). The specific words used in a contract on the indemnification provision of the contract (or a (and analysis of applicable state case or statutory law on party makes a claim under any other provision of the con- such language) in similar situations can shed light needed tract), the aggrieved party would want the liable party to determine whether a contract prohibits a merger. The to have the funds available to pay the aggrieved party, same applies in the case of an acquisition of equity of the assuming the claim is valid. Although some companies target company or its parent company; depending upon may have cash reserves sufficient to pay any lawsuits or state case or statutory law and the specific wording con- claims, many companies do not have significant amounts tained in the contract, such acquisition may be deemed an of excess cash and will instead maintain insurance to unauthorized assignment of a contract. cover any potential payments arising from suits or

NYSBA Journal | May 2011 | 25 Any limitation on an acquirer’s ability Third parties may not want to spend time and money to conduct business is noteworthy. negotiating and determining whether to enter into a transaction when it knows another party holds a ROFR and therefore has the contractual right to conclude a claims. A party to a contract therefore may insist that the transaction prior to anyone else. It is important for a contract contain provisions that require the other party junior associate to note any ROFO or ROFR because the to maintain a minimum amount of insurance coverage; existence of such conditions may affect the ability of a many times the contract will require that the other con- potential acquirer to acquire all desired assets in a trans- tractual parties are named as third-party beneficiaries to action (which would affect price, among other things) the insurance policy. When a party maintains insurance or complete an acquisition. If a ROFO or ROFR exists, a coverage, it ensures that a contract’s indemnification potential acquirer may first require each ROFO or ROFR provisions will be effective and one party will be able to holder to waive its rights before continuing to pursue any indemnify the other, if required. potential negotiations or transactions. Insurance policies (which are contracts) may terminate pursuant to provisions that stop them from being appli- Limitation of Liability cable following the consummation of a transaction. On The limitation of liability provisions in an agreement do a side note, a junior associate representing the acquirer exactly what one would expect – they limit the amount of that contract may be required to ensure that proper one party is required to pay the other party, typically in insurance coverage is maintained after a transaction. The cases of breach of contract or if damage is caused from junior associate may need to contact the insurance com- a product or service. It is important to note a limitation pany to obtain confirmation that continuous coverage of liability clause because if the target is acquired or the will be maintained or to obtain new insurance that meets contract is assumed and then breached, the acquiring the minimum requirements set forth in the commercial party may litigate but receive limited damages based on contracts being acquired and which will be effective as of the limitation of liability clause. the consummation of the transaction. Limitation of Warranty Right of First Offer/Right of First Refusal Many companies provide a warranty or guarantee on Typically, a right of first offer (ROFO) is the provision in their products or services. From an acquirer’s perspec- commercial contracts that the party holding the ROFO tive, a warranty or guarantee is important to understand has the opportunity to enter into good faith negotiations regardless of whether it is giving or receiving such war- with the other party before such other party negotiates ranty or guarantee. If the target is acquired or the contract with third parties. A right of first refusal (ROFR) is the is assumed, then the acquiring party must continue to provision in commercial contracts that provides the party provide the same coverage, which may cost money. For holding the ROFR with the option to enter into a business example, if a company that is acquired provides a war- transaction on the same terms and conditions as the other ranty for defective products, then the acquiring company party to the contract has negotiated with third parties. must continue to provide the same warranty and pay for A ROFR is more onerous than a ROFO because a ROFO any damages caused by the defective product (subject obligates a party to negotiate in good faith before nego- to a limitation of liability clause in the contract between tiating with third parties while a ROFR requires a party the damaged party and the acquired company). A client to give the ROFR holder an opportunity to enter into a will therefore want to understand all the warranties and transaction on the same terms and conditions after the guarantees it may be acquiring, so it can determine the parties have negotiated them. The distinctions between approximate cost when entering into an acquisition and a ROFO and ROFR are understood with a simple illus- negotiating price. If an acquirer is on the receiving end of tration: Party A contracted that if he ever desired to sell a warranty or guarantee, then it will want to understand his car, he would provide a ROFO to Party B. If Party A the scope of the contractual provision, so it can determine decides to sell his car, he must first negotiate with Party if the warranty or guarantee is sufficient for its needs. B; if the parties cannot reach an agreement, Party A may Finally, generally in commercial contracts with a party sell his car to anyone he pleases with no restrictions on located in the United States, there is a clause limiting the terms or conditions. If Party A contracted that if he ever purchaser’s rights to the warranty of merchantability and desired to sell his car, he would provide a ROFR to Party warranty of fitness for a particular purpose, as provided B, then Party A may negotiate a sale with any third party, statutorily under the Uniform Commercial Code (UCC) but must give Party B the opportunity to purchase the car adopted by U.S. states. Absent such limitation (or exclu- on the same terms and conditions that is negotiated with sion) of warranty, the (protective) statutory provisions of other parties. the UCC apply for commercial contracts.

26 | May 2011 | NYSBA Journal Non-Competition the manner in which a junior associate will determine the A covenant not to compete or a non-competition clause is scope of information to be reviewed in contracts, prior to a restriction under which one party agrees not to compete commencing the due diligence exercise, a junior associate against another party in a similar business or profes- should discuss the extent of the written product with his sion. Although most commonly found in the employer/ or her supervisors. At certain times a senior attorney may employee context (where an employee is prohibited from want a full description of each contract (that summarizes competing against the employer for a specified time all of the above features in 1-2 pages) to include as an period after the employment relationship terminates), it appendix to the memorandum to the client. Other times, to can also be found in the business context. A junior associ- save on legal fees, the attorneys in charge may only require ate should indicate all forms of non-competition because the associate to take notes on the minimal information the it is possible that the restrictions will impede on a client’s client desires. Either way, the most common method of business objectives. For example, if a client intends to taking notes on each contract is by creating, prior to the acquire a business in order to expand into a certain region review, a standard template that includes a heading for but there is a commercial restriction from doing so, then each aspect of the contract that must be recorded. the client should be made aware of the restriction so that Not all issues found during document review will be it can determine its next steps. Finally, non-competition listed on the template because one cannot predict every clauses may contain risks of potential antitrust litigation. issue that may arise (and any template that attempts such comprehensiveness will be long and unwieldy). Moreover, Confidentiality/Non-Disclosure the issues for which a junior associate is searching may be The existence of confidentiality or non-disclosure provi- found anywhere in the document. Ideally, a junior associ- sions in a contract may be important to note because a ate should review each contract in its entirety even if the potential acquirer will not be entitled to inform others of client desires the attorneys to focus their review only on the contractual provisions or the existence of a contrac- certain information. The junior associate may also wish tual relationship. The acquirer should be able to ascertain to note by section reference or page number where the from the contract or from the target that is a party to the applicable provisions are found. commercial agreement whether the acquirer is permitted to review the agreement. A potential acquirer may also Conclusion want to use names of parties or contractual provisions Although document review is considered by many junior for various purposes (in marketing materials, to use as associates to be an arduous task, it is much more than a leverage in negotiating against another customer, etc.), rite of passage. Performing contract review may be time so it is important to know what information, if any, must consuming, but junior associates can take away a lot of remain private. knowledge from their experience if they pay attention. By reviewing hundreds of contracts, associates begin to learn Intellectual Property Rights the structure of contracts, how the provisions interrelate It is important to note any intellectual property rights and what are considered standard and non-standard pro- because such rights may impede on a potential acquirer’s visions. Junior associates will also learn to recognize good ownership of other assets. If an acquirer intends to utilize (and poor) drafting by reading numerous agreements. an asset in a certain manner and the intellectual property The knowledge and experience from document review rights contained in a contract hinder such use, the potential can be used as the cornerstone of an associate’s develop- acquirer may rethink the acquisition, reduce the purchase ment into a skilled draftsperson, although it is certainly price or discuss a mutually acceptable alternative with the not the only method to become one. Junior associates seller, which can be done only if the acquirer has knowl- should therefore regard document review as an opportu- edge of the intellectual property rights. Although intellec- nity to further their skill set as attorneys, while providing tual property rights may take many forms, the rights most a necessary service to their clients. ■ commonly appear in commercial contracts as licenses. 1. Due diligence review for a transaction will encompass more than commercial contract review. Depending on the transaction and the structure, there Document Review Report are numerous additional documents to review, searches to complete, studies to Most clients will want a due diligence memorandum that perform and additional actions to take. compiles all the results from the due diligence and pro- 2. A notice and cure period requires the non-defaulting party to provide vides a legal analysis of the issues that arose during the notice of the default to the other party and allow the defaulting party a specified period of time to fix such default. contract review. Depending on what information should 3. Not all contracts executed between related parties contain provisions that be included in such memorandum (which will typically are extremely beneficial for one party. However, when one party is able to con- correspond to the information desired by the client, as trol the other party, or a third person can control both parties, there is a much described in “Extent of Review,” above), junior associates greater chance that the provisions will not be negotiated in the same manner as a contract between unrelated parties. should take notes on each reviewed contract. Similar to

NYSBA Journal | May 2011 | 27 JONATHAN A. DACHS is a member of the firm of Shayne, Dachs, Corker, Sauer & Dachs, LLP, in Mineola, New York. Mr. Dachs is a graduate of Columbia College of Columbia University, and received his law degree from New York University School of Law. He is the author of “Uninsured and Underinsured Motorist Protection,” 2 New Appleman New York Insurance Law, Chapter 28 (LexisNexis), and of a chapter on UM/UIM and SUM (Pre- and Post-Regulation 35-D) in Weitz on Automobile Litigation: The No-Fault Handbook (New York State Trial Lawyers Institute). This article marks the 18th consecutive year that Mr. Dachs has presented his annual survey of UM/UIM/SUM Law in the Journal.

2010 Review of Uninsured, Underinsured, and Supplementary Uninsured Motorist Insurance Law By Jonathan A. Dachs

onsistent with recent history, 2010 was another accident, was not a “named insured” under the fire com- busy and important year in this ever-changing pany’s policy because the “named insured” was the fire Cand highly complex area of uninsured motorist company and, thus, the term “you” as used in the defini- (UM), underinsured motorist (UIM), and supplementary tion of an “insured” referred only to the fire company, uninsured motorist (SUM) law. and did not refer to an employee of the fire company.

GENERAL ISSUES Residents Insured Persons In Konstantinou v. Phoenix Ins. Co.,2 the court noted that The definition of an “insured” under the SUM endorse- “[a] person is a resident of a household for insurance pur- ment (and many liability policies) includes a relative poses if he or she ‘lives in the household with a certain of the named insured and, while residents of the same degree of permanency and intention to remain.’” Here, household, the spouse and relatives of either the named the court held that an individual who lived at college at insured or spouse. the time of the accident was a resident of her mother’s household, where she lived with her mother during sum- “Named Insured” mers, received mail, stayed every other weekend, and In Gallaher v. Republic Franklin Ins. Co.,1 the court held listed the household as her address on her car’s title and that the plaintiff, a volunteer fireman who was injured insurance. after exiting a fire company truck while in the process of In State Farm Mutual Automobile Ins. Co. v. Bonifacio,3 directing traffic away from the scene of a motor vehicle the respondent testified that she lived most of her life

28 | May 2011 | NYSBA Journal at her parents’ residence in Yorktown Heights until she into the bay to rearrange the empty cases of beer, when he graduated from college in 2005. Shortly thereafter, she was struck by the box truck. He testified that 10 minutes rented an apartment in Manhattan with two other people. had passed from the time he exited the truck. As a result Two months later, she began employment in Manhattan of the impact with the box truck, he was pushed 10 to where she worked five days a week for 11 to 12 hours 12 feet and pinned between the truck and the box truck. per day. The court held that the respondent had failed to On these facts, the court found “[i]n accordance with establish that she was residing at her parents’ residence the liberal interpretation afforded the term ‘occupying’ at the time of the accident, despite the following evi- [citation omitted],” that “the injured plaintiff was ‘in’ or dence: her testimony that she visited her parents’ home ‘upon’ the delivery truck at the time of the accident such at least once a month; her parents maintained a room for that he was ‘occupying’ the delivery of the truck within her where she left some of her personal belongings; her the meaning of the SUM endorsement.” On the other driver’s license still listed her parents’ address as her hand, in Gallaher,6 the court held that a volunteer fireman, home address; she still possessed a key to that residence; who had exited the fire truck and was directing traffic she had voted in Yorktown Heights (after the accident); away from the scene of a motor vehicle accident, was not and she had opened a bank account there. The court spe- “occupying” the truck within the meaning of that term cifically noted that the respondent was emancipated from in the policy, i.e., “in, upon, entering into, or exiting from her parents, paid rent at the Manhattan residence, filed a motor vehicle,” because his conduct in directing traffic her own tax return, and was no longer listed as a depen- was “unrelated to the [truck]” and was “not incidental to dent on her parents’ tax returns. Insofar as the respondent his exiting it.” was not a “covered person” under her parents’ policy, the In Commerce & Industry Ins. v. Reiss,7 the court held parents’ insurer’s petition to permanently stay arbitration that the claimant was not an “occupant” of the vehicle was granted. at the time of the accident when she exited the vehicle in In Allstate Ins. Co. v. Ban,4 the court held that the which she had been traveling, crossed the street, entered claimants were residents of the household of someone a restaurant, ate a bowl of soup, used the restroom, and insured by Allstate. The fact that prior to the accident was then walking back across the street toward the car the claimants had purchased a separate home, to which when she was struck by a hit-and-run vehicle. they intended to move after extensive renovations were completed, did not require a different conclusion. The Owned Vehicles Exclusion claimants’ undisputed testimony, confirmed by docu- The SUM endorsement contains an exclusion for “bodily ments including driver’s licenses and financial account injury to an insured incurred while occupying a motor statements, demonstrated that while they had sometimes vehicle owned by that insured, if such motor vehicle is reported their address as that of their new home in order not insured for SUM coverage by the policy under which to avoid confusion of claimant Jozsef Ban’s mail with that a claim is made.” of his father, of the same name, they had been living in the In New York Central Mutual Fire Ins. Co. v. Polyakov,8 the house owned by the named insured (Jozsef Ban’s mother) court applied that exclusion to deny the SUM claim of an for at least seven years prior to the accident, and had not insured injured while riding a motorcycle he owned. The yet moved to their new home. Thus, on the date of the court observed that this exclusion was not ambiguous accident, they “actually resided in the [named insured’s] and that the “petitioner was entitled to have the provi- household with some degree of permanence and with the sions it relied on to disclaim coverage enforced.” intention to remain for an indefinite period.” Insured Events Occupants The UM/SUM endorsements provide for benefits to Also included within the category of “insureds” are indi- “insured persons” who sustain injury caused by “acci- viduals “occupying” the insured vehicle, or any other dents” “arising out of the ownership, maintenance or vehicle being operated by the named insured or spouse. use” of an uninsured or underinsured motor vehicle. In Rosado v. Hartford Fire Ins. Co.,5 the plaintiff was injured when he was struck by a box truck while standing “Use or Operation” outside a truck he utilized for his job making beer deliver- In Liberty Mutual Fire Ins. Co. v. Malatino,9 the court held ies. After making a delivery to a bar, he wheeled his hand that the claimant’s injury, sustained when she was return- truck back to the driver’s side of the delivery truck and ing to work after taking a break in her employer’s parking opened a locked bay on the truck so that he could place lot, as a result of her walking into a piece of sheet metal empty cases of beer into it. At the time of the accident, he extending approximately five feet beyond the tailgate of had not yet placed any of the empty cases into the truck. a co-worker’s parked pickup truck, arose out of the “use” He was standing with his feet on the pavement, looking of the truck, thereby entitling her to make an SUM claim. into a side bay of the truck and his hands were reaching As noted by the majority of the court, “‘[u]se’ of a vehicle

NYSBA Journal | May 2011 | 29 encompasses more than just driving, and extends to other Claimant/Insured’s Duty to Provide incidental activities.” Although the truck was not being Timely Notice of Claim operated at the time of the accident, it was being used by The UM, UIM and SUM endorsements require the claim- the co-worker to transport the sheet metal to the junkyard ant, as a condition precedent to the right to apply for ben- after work. The court further stated, “Construing the lan- efits, to give timely notice to the insurer of an intention to guage of the supplemental underinsured motorists policy make a claim. Although the mandatory UM endorsement liberally ‘in favor of the insured and strictly against the requires such notice to be given “within ninety days or insurer,’ [citation omitted], and given the causal con- as soon as practicable,” Regulation 35-D’s SUM endorse- nection between the use of the pickup truck to transport ment requires simply that notice be given “as soon as the sheet metal and respondent’s injuries, we find that practicable.” A failure to satisfy the notice requirement respondent’s request for arbitration falls within the scope vitiates the policy.16 The issue of late notice of claim may of the parties’ agreement.”10 also be relevant to the determination of whether the

“Where an insurance policy requires that notice of an occurrence be given ‘as soon as practicable,’ notice must be ‘given within a reasonable [period of] time under all the circumstances.’”

In Progressive Halcyon Ins. Co. v. Giacometti,11 the major- alleged offending vehicle is “uninsured” in cases where ity held that the claimant, a passenger, who, after the vehi- there has been a disclaimer or denial of coverage based cle’s owner/operator had steered to the left, grabbed the on such late notice (see discussion below). steering wheel and pulled the vehicle to the right, causing In McGovern-Barbash Assoc., LLC v. Everest National Ins. the vehicle to go off the road, become airborne and crash Co.,17 the court noted that “[w]here an insurance policy into trees, did not have the express or implied permission requires that notice of an occurrence be given ‘as soon of the owner/operator to use the vehicle. He did not have as practicable,’ notice must be ‘given within a reason- express permission to take control of the steering wheel, able [period of] time under all the circumstances.’ An and the owner/operator did not impliedly consent to the insured’s failure to satisfy the notice requirement con- claimant’s use of the vehicle in that matter.12 stitutes ‘a failure to comply with a condition precedent In Kohl v. American Transit Ins. Co.,13 the plaintiff was which, as a matter of law, vitiates the contract’” (citations a passenger in a taxicab who injured a bicyclist when he omitted). opened the door into the bicyclist. The Court of Appeals In Prince Seating Corp. v. QBE Ins. Co.,18 the court held that the plaintiff was not insured under the taxi noted that “absent some evidence of an agency relation- owner’s business automobile liability policy, which pro- ship, even timely notice of an accident by an insured to vided that it “shall inure to the benefit of any person a broker is not effective and does not constitute notice to legally operating” the insured vehicle in the business of the insurance company, as a broker is considered to be the insured. In the view of the Court, “[t]he word ‘operat- an agent only of the insured” (citations omitted). In this ing’ cannot be stretched to include passengers riding in case, although there was no evidence that a principal- the car or opening the door.”14 agent relationship between the broker and the insurer existed, the court held that summary judgment could “Accidents” not be granted to the insurer based on its late notice In Travelers Indemnity Co. v. Richards-Campbell,15 where the defense where the plaintiff gave timely notice to the claimants were intentionally struck by an individual who broker because “the terminology of the policy, including pleaded guilty to three counts of assault in the second the notice provision in which the words ‘we,’ ‘us,’ and degree, admitting that she intentionally struck them, the ‘our,’ referring to ‘the company providing this insurance,’ court held that the tortfeasor’s insurer was not obligated were used to describe who should be notified, is ambigu- to provide coverage under the automobile insurance ous.”19 liability policy because the injuries were not the result In determining whether notice was timely, factors of an accident, but, rather, an intentional criminal act. to consider include, inter alia, whether the claimant has Moreover, the court held that the claimants’ SUM carrier offered a reasonable excuse for any delay, such as latency properly disclaimed UM benefits because the claimants’ of his or her injuries, and evidence of the claimant’s due injuries were caused by intentional criminal acts and not diligence in attempting to establish the insurance status by accidents. of the other vehicles involved in the accident.20 The inter-

30 | May 2011 | NYSBA Journal pretation of the phrase “as soon as practicable” continues, disclosure to aid in arbitration pursuant to CPLR 3102(c) as always, to be a hot topic. if ‘extraordinary circumstances’ exist.” Moreover, “[t]he In Tri-State Ins. Co. v. Furboter,21 the court held that the test for ordering disclosure in aid of arbitration is ‘neces- respondent’s delay of 16 months in notifying the petition- sity,’ as opposed to ‘convenience.’ Thus, court-ordered er of his claim for underinsurance benefits was “attribut- disclosure to aid in arbitration is justified only where that able to the belief of his various treating physicians that relief is ‘absolutely necessary for the protection of the his injuries were relatively minor and would resolve rights of a party’ to the arbitration” (citations omitted). with treatment.” Thus, where the respondent gave notice In State Farm Mutual Automobile Ins. Co. v. Urban,25 the promptly after he was made aware of the worsening and court held that it was error to direct discovery in the event permanent nature of his injuries, such notice was deemed the matter proceeded to arbitration since the petitioner’s timely under the circumstances. failure to move to stay arbitration within the applicable In American Transit Ins. Co. v. Brown,22 the Court of 20-day period to do so “is a bar to judicial intrusion into Appeals held, “Defendant Brown failed to provide a the arbitration proceedings.” Moreover, by repudiating valid excuse for his failure to use reasonable diligence in liability for the claim in an earlier disclaimer/denial let- providing plaintiff insurer with notice of the underlying ter, the insurer could not thereafter insist upon adherence personal injury action,” where the notice was sent to an to the terms of its policy, including those pertaining to old and incorrect address of the insurer because he was pre-arbitration discovery. never advised of the insurer’s change of address. In so It should be remembered that pursuant to 2008 N.Y. holding, the Court adopted the view of the dissenting Laws chapter 388, effective January 17, 2009, a new justices at the Appellate Division, that there is no obliga- Insurance Law § 3420(d)(1) was created, which provides, tion on the part of a liability insurer to advise of a change with respect to liability policies that afford coverage for of address, especially when the insurer’s address easily bodily injury or wrongful death claims where the policy could have been ascertained via the Internet. is a personal lines policy other than an excess or umbrella It should be remembered that for coverage claims policy, that within 60 days of receipt of a written request under New York liability policies issued on or after by an injured party or other claimant who has filed a January 17, 2009, insurers will be required to demon- claim, an insurer must confirm in writing whether the strate prejudice from the late notice, unless the notice insured had a liability insurance policy in effect with was delayed by more than two years. Still undecided, and that insurer on the date of the occurrence, and specify to be litigated, is the question of whether that two-year the limits of coverage provided under that policy. If the period, which shifts the burden of proving or disprov- injured person or other claimant fails to provide sufficient ing prejudice, must be measured separately for each of identifying information to allow the insurer, in the exer- the policy provisions pertaining to notice – i.e., notice of cise of reasonable diligence, to identify a liability policy accident or claim, and notice of lawsuit. that may be relevant to the claim, the insurer has 45 days from the initial request to ask for more information, and Discovery then another 45 days after such information is provided The UM and SUM endorsements contain provisions to furnish the requested insurance information. Pursuant requiring, upon request, a statement under oath, exami- to an amendment to Ins. Law § 2601(a) (“Unfair Claim nation under oath, physical examinations, authorizations, Settlement Practices”), the failure to comply with these and medical reports and records. The provision of each disclosure requirements may result in departmental sanc- type of discovery, if requested, is a condition precedent tions, including financial penalties. to recovery. In GEICO v. Mendoza,23 the court held that where the Petitions to Stay Arbitration insurer presents a justifiable excuse for its failure to seek Filing and Service discovery, “a temporary stay of arbitration will be grant- CPLR 7503(c) provides, in pertinent part, that “[a]n ed in order to allow the insurer to obtain the information application to stay arbitration must be made by the party sought.” Here, a justifiable excuse was shown to exist, served within twenty days after service upon him of the i.e., “the parties were involved in good faith communica- notice [of intention to arbitrate] or demand [for arbitra- tions regarding liability for the accident, and the insurer tion], or he shall be so precluded.” The 20-day time limit reasonably relied on the assurances by the respondent’s is jurisdictional, and, absent special circumstances, courts attorney that a different insurance carrier was accepting have no jurisdiction to consider an untimely application. liability for the losses suffered in the accident, and that In State Farm Mutual Automobile Ins. Co. v. Urban, he was not planning on making an uninsured motorist discussed above, the claimant sent a letter to his insurer, claim.” by certified mail, return receipt requested, informing it In Travelers Indemnity Co. v. United Diagnostic Imaging, that he intended to arbitrate a claim for SUM benefits, P.C.,24 the court stated that “[a] court should only order since the accident in which he was injured involved a

NYSBA Journal | May 2011 | 31 motorist who left the scene of the accident. That letter Preferred Ins. Co. v. Williams,30 the court held that the contained information concerning the policy number, “petitioner’s own submissions showed that the policy claimant’s name and address, and a warning that unless previously issued to the driver of the offending vehicle within 20 days of receipt thereof the insurer applied to had been terminated before the accident” via a notice stay arbitration, it would “be precluded from objecting of cancellation that contained the required statement that a valid agreement was not made or complied with regarding proof of financial security, as mandated by and from asserting in court the bar of a limitation of Vehicle & Traffic Law § 313(1)(a). Thus, the court denied time.” Notwithstanding that the letter was received on the Petition to Stay Arbitration of an uninsured motorist December 26, 2008, it was not until April 8, 2009, that claim without a hearing. the insurer denied the SUM claim. Thereafter, on June In Integon National Ins. Co. v. Montagna,31 after the 10, 2009, the claimant sent the insurer a “Request for petitioner established, prima facie, that the respondent Arbitration” with the American Arbitration Association. carrier insured the offending vehicle, the burden shifted The insurer moved to stay arbitration within 10 days after to that carrier to establish a lack of coverage on a timely receipt of that “request.” and valid disclaimer of coverage. Although that carrier In finding the insurer’s Petition to Stay Arbitration came forward with rebuttal proof showing that its policy untimely, the court observed that the letter received by did not cover the vehicle, the petitioner presented addi- the insurer on December 26, 2008, was a proper notice of tional proof of insurance, which overcame the rebuttal intention to arbitrate, to which the 20-day period to seek proof. Accordingly, the petition to permanently stay arbi- a stay applied. The subsequent service of the Request for tration was granted. Arbitration filed with the AAA did not reset the 20-day In GEICO v. O’Neil,32 the court held that the petitioner period. Thus, the petition was time-barred, thereby pre- met its prima facie burden of showing that the offend- venting the insurer from raising any issues regarding ing vehicle was insured on the date of the accident by insurance coverage for the offending vehicle or physical submitting a New Jersey DMV record indicating cover- contact with the alleged hit-and-run vehicle.26 age. The burden then shifted to the purported insurer for In United Services Automobile Association v. Kungel,27 the offending vehicle to prove that it never insured the the court held that although the petitioner erroneously vehicle or that its coverage was terminated prior to the served the petition and notice of petition one day prior accident. The affidavit of the purported insurer’s junior to purchasing an index number and filing process with underwriter did not rebut the DMV record, failing as it the court, did to provide any grounds upon which to find that the the recent amendment to CPLR 2001 was enacted information set forth therein was erroneous. Accordingly, expressly “to fully foreclose dismissal of actions for the court granted the Petition to Stay Arbitration and technical . . . non-prejudicial defects” in commence- directed the purported insurer to provide coverage for ment . . . regardless of whether the defendant objected the subject loss. in a timely and proper manner, so long as “the mistake, In Mid City Construction Co., Inc. v. Sirius American Ins. omission, defect or irregularity, including the failure to Co.,33 the insurer offered no evidence as to standard office purchase or acquire an index number or other mistake in the filing process” does not prejudice a substantial practices for mailing disclaimer letters, and the court held right of a party (citations omitted). that the affidavit of the claims representative was insufficient to raise a triable issue of fact since he did not have Burden of Proof personal knowledge of the mailing of the disclaimer let- In American International Ins. Co. v. Giovanielli,28 the court ter. The court further noted that a certified mail receipt, stated that “[i]n a proceeding to stay arbitration of a standing alone, was insufficient to raise a triable issue as claim for uninsured motorist benefits, the claimants’ to actual mailing. insurer has the initial burden of proving that the offend- In GEICO v. Brunner,34 an underwriter who testified ing vehicle was insured at the time of the accident, and at the framed issue hearing failed to offer “evidence of thereafter the burden is on the party opposing the stay an office [procedure] geared to insure the likelihood that to rebut that prima facie showing” (citations omitted). In [endorsements reducing the coverage limits] are always this case, the petitioner made a prima facie showing that properly addressed and mailed.” the alleged offending vehicle was insured by Lloyd’s at In AutoOne Ins. Co. v. Umanzor,35 the Petition to Stay the time of the accident by submitting the police accident Arbitration was unverified, and the petitioner offered no report containing the vehicle’s policy number, as well as evidentiary proof that the claimant was not a “resident correspondence from the insurer’s representative identi- relative” of the insured, entitled to coverage as an insured fying Lloyd’s as the insurer of the vehicle.29 In opposition, under its policy. Thus, the court held that the petitioner Lloyd’s failed to establish a lack of coverage or a timely failed to sustain its initial burden of demonstrating that and valid disclaimer of coverage. Thus, the Petition to a factual issue existed as to the resident relative status of Stay Arbitration was properly granted. In Progressive the claimant.

32 | May 2011 | NYSBA Journal Arbitration Awards employer, a self-insured company, and was in the regular Scope of Review course of his employment, the exclusivity provisions of In Falzone v. New York Central Mutual Fire Ins. Co.,36 the the Workers’ Compensation Law precluded the claim- court noted, “Arbitrators are not required to provide ant from arbitrating a claim against his employer. The reasons for their decisions.” The Court of Appeals, in court noted that “although petitioner is self-insured, it is its decision, also observed that “a court may vacate an required to provide uninsured motorist benefits pursu- arbitration award only if it violates a strong public policy, ant to Insurance Law § 3420(f)(1).” Thus, the court held, is irrational, or clearly exceeds specifically enumerated “Given the public policy of this State requiring insurance limitations on the arbitrator’s power. Even when an against injury caused by an uninsured motorist [citation

A vehicle is considered “uninsured” where it was, in fact, covered by an insurance policy at the time of the accident, but the insurer subsequently disclaimed or denied coverage. arbitrator has made an error of law or fact, courts gener- omitted], we find that a self-insured employer is required ally may not disturb the arbitrator’s decision” (citations to provide mandatory uninsured motorist benefits to omitted). employees and that the Worker’s Compensation Law In Progressive Northeastern Ins. Co. v. Turek,37 the court does not preclude the employee from filing such a claim held that “the arbitrator neither committed misconduct against the employer.” (see CPLR 7511(b)(1)(i)) nor exceeded his authority (see CPLR 7511(b)(1)(iii)) when he considered the issue of Insurer’s Duty to Provide Prompt Written Notice of liability in determining whether the [claimant was] Denial or Disclaimer (Ins. Law § 3420(d)) entitled to [uninsured] motorist benefits under [the SUM A vehicle is considered “uninsured” where it was, in fact, endorsement].” Moreover, the arbitrator did not err in covered by an insurance policy at the time of the accident, considering the testimony of a non-party witness on the but the insurer subsequently disclaimed or denied cover- issue of whether “the claimant’s negligence was the sole age.40 proximate cause of the accident.” In Hunter Roberts Construction Group, LLC v. Arch Ins. In MVAIC v. NYC East-West Acupuncture, P.C.,38 the Co.,41 the court stated, court observed, The insurer bears the burden to explain the reason- It is well settled that “[a]djournments generally fall ableness of any delay in disclaiming coverage. The within the sound exercise of an arbitrator’s discretion reasonableness of any delay is computed from the pursuant to CPLR 7506(b), the exercise of which will time that the insurer becomes sufficiently aware of only be disturbed when abused.” The burden falls to the facts which would support a disclaimer. Although “the party seeking to avoid an arbitration award to the timeliness of such a disclaimer generally presents demonstrate by clear and convincing proof that the a question of fact, where the basis for the disclaimer arbitrator has abused his discretion in such a manner was, or should have been readily apparent before the so as to constitute misconduct sufficient to vacate or onset of the delay, any explanation by the insurer for modify an arbitration award.” Arbitral misconduct its delay will be insufficient as a matter of law. Where is established not by the refusal of an adjournment, the basis was not readily apparent, an unsatisfac- but where the refusal forecloses “the presentation of tory explanation will render the delay unreasonable material and pertinent evidence to the [movant’s] as a matter of law. If the delay allegedly results from a prejudice” [citations omitted]. need to investigate the facts underlying the proposed disclaimer, the insurer must demonstrate the necessity Here, the court held that the arbitrator’s decision not to of conducting a thorough and diligent investigation grant a postponement in order to allow MVAIC to inves- [citations omitted]. tigate an adversary’s contention was within his sound discretion and powers. In Magistro v. Buttered Bagel, Inc.,42 where the insurer did not have a readily apparent basis for a denial or UNINSURED MOTORIST ISSUES disclaimer until it conducted an investigation into the Self-Insurance underlying incident and its insured’s awareness of the In Elrac, Inc. v. Exum,39 the court rejected the contention circumstances surrounding it, the court held that the of the UM carrier that since the accident occurred while denial only three weeks after receiving the investigator’s the claimant was operating a motor vehicle owned by his report and becoming aware that the insured had known

NYSBA Journal | May 2011 | 33 about the incident, during which time the insurer con- coverage portion. Under those circumstances, the insur- sulted with counsel, was timely as a matter of law. In New ance policy does not contemplate coverage in the first York Central Mutual Fire Ins. Co. v. Ramirez,43 on the other instance, and requiring payment of a claim upon failure hand, the court held that the insurer did not establish that to timely disclaim would create coverage where it never its delay in disclaiming on the ground of late notice was existed” (citations omitted).52 justified by a necessary or diligently conducted investiga- In York Restoration Corp. v. Solty’s Construction, Inc.,53 tion into the possible grounds for the disclaimer. the court held that the insurer was not required to pro- In Blue Ridge Ins. Co. v. Empire Contracting and Sales, vide prompt notice of disclaimer where the claimant was Inc.,44 the court held that an insurer’s commencement of not an insured under the policy on the date of the acci- a declaratory judgment action can constitute a notice of dent, since no coverage existed. disclaimer pursuant to Ins. Law § 3420(d). In Henner v. Everdry Marketing and Management, Inc.,45 the court reit- erated that “a reservation of rights does not qualify as a timely disclaimer.” An insurer “will be estopped The Henner court also explained that an insurer “will from later raising a defense be estopped from later raising a defense that it did not mention in the notice of disclaimer.”46 Accordingly, the that it did not mention in the court held that where the insurer disclaimed on the ground that its insured did not provide timely notice of notice of disclaimer.” the accident and also raised certain policy exclusions, but did not disclaim on the ground that the plaintiffs failed to provide it with timely notice of the accident, the insurer Non-Cooperation was precluded from relying upon that defense. It is well established that “[a]n insurance carrier that seeks In Mid-City Construction Co., Inc. v. Sirius America Ins. to disclaim coverage on the ground of lack of cooperation Co.,47 the court held that a 54-day delay in providing writ- must demonstrate that it acted diligently in seeking to ten notice of disclaimer precluded effective disclaimer, bring about the insured’s cooperation; that the efforts even though the insured’s own notice of the incident was employed by the insurer were reasonably calculated to untimely. obtain the insured’s cooperation; and that the attitude In Hunter Roberts Construction Group, LLC v. Arch Ins. of the insured, after his [or her] cooperation was sought, Co.,48 the court held that a four-month delay in disclaim- was one of ‘willful and avowed obstruction.’”54 ing was not justified by alleged difficulties in the insur- In AutoOne Ins. Co. v. Hutchinson,55 the court observed er’s investigation of the claim because the insurer failed that “since a disclaimer based upon lack of cooperation to explain “why anything beyond a cursory investigation penalizes the injured party for the actions of the insured was necessary” to determine whether the insured gave and ‘frustrates the policy of this State that innocent vic- timely notice of the claim. tims of motor vehicle accidents be recompensed for the In Progressive Northeastern Ins. Co. v. Lamba,49 the injuries inflicted upon them,’ an insurer seeking to dis- court held that a disclaimer sent 71 days after the insurer claim for noncooperation has a heavy burden of proof” was placed on notice of the claim, and 55 days after the (citing Thrasher, 19 N.Y.2d 159). insurer obtained all of the information upon which the In that case, the insurer’s letters demanding that its disclaimer was based by way of a recorded interview insured appear at an examination under oath made ref- with the insured, was untimely as a matter of law. The erence to his purported status as a claimant for no-fault court rejected the insurer’s contention that the delay benefits and warned him that the failure to appear could was actually only 35 days because it had to wait for the result in the denial of such benefits, despite the fact that insured to return the executed interview transcript before there is no indication that the insured was injured in disclaiming based thereon. the accident and sought no-fault benefits. Under these In Travelers Indemnity Co. v. Orange & Rockland Utilities, circumstances, the court held that the trial court should Inc.,50 the court noted that Ins. Law § 3420(d), by its terms, not have determined that the insurer validly disclaimed is limited to disclaimers “for death” or “bodily injury” coverage without conducting a hearing. Accordingly, the and is, therefore, inapplicable in an action pertaining to court remitted the case to the supreme court for an evi- a breach of contract and breach of warranty pertaining dentiary hearing to determine the issue of whether the to the construction of a home, and/or a claim involving insurer validly disclaimed coverage. pollution insurance. In Hunter Roberts Construction Group, LLC v. Arch Ins. In Konstantinou v. Phoenix Ins. Co.,51 the court noted Co.,56 the court held that the heavy burden of establish- that “disclaimer pursuant to [Ins. Law] §3420(d) is unnec- ing noncooperation was not met, where the evidence essary when a claim falls outside the scope of the policy’s established that the investigator called the insured’s main

34 | May 2011 | NYSBA Journal business number three times and was told that he would cle was insured on the date of the accident. Its insurer did have to supply the name of the individual with whom he not file a notice of termination with the Commissioner of wished to speak. There was no indication that the inves- the Department of Motor Vehicles because “[a]ccording tigator ever went to the office personally or ever made to the version of Vehicle and Traffic Law § 313(2) which a specific demand to produce an appropriate person for was in effect on the date of the accident and at the time of interview, and there was no indication that further efforts the termination of the policy, an insurer was not required would have been futile. to file a notice of termination with the Commissioner due to a nonrenewal of a policy of liability insurance (see VTL Cancellation of Coverage former § 312[2]).” The court added that “[t]o the extent One category of an “uninsured” motor vehicle is where that regulation contained in 15 NYCRR 34.3(4) provides the policy of insurance for the vehicle had been canceled to the contrary, it is inconsistent with the legislative intent prior to the accident. Generally speaking, in order to of the version of Vehicle and Traffic Law § 313(2) appli- effectively cancel an owner’s policy of liability insur- cable to this case” (citations omitted). ance, an insurer must strictly comply with the detailed and complex statutes, rules, and regulations governing Stolen Vehicle notices of cancellation and termination of insurance, Automobile liability policies generally exclude coverage which differ depending upon whether, for example, the for damage caused by drivers of stolen vehicles, drivers vehicle at issue is a livery or private passenger vehicle, operating without the permission or consent of the owner, whether the policy was written under the Assigned Risk or drivers operating a vehicle outside the scope of the Plan, and/or whether it was paid for under premium permission given. In such situations, the vehicles at issue financing contract. are considered “uninsured” and the injured claimant will In Tobias v. Liberty Mutual Fire Ins. Co.,57 the court be entitled to present an uninsured motorist claim. observed that “[t]he insurer has the burden of proving the In State Farm Fire & Casualty Co. v. Hayes,63 the court validity of its timely cancellation of an insurance policy.” observed that “[t]he strong presumption of permissive Once that initial burden is met, the burden shifts to the party disputing coverage to establish noncompliance with statutory cancellation requirements as to form and procedure.58 In Progressive Northeastern Ins. Co. v. Akinyooye,59 the court held that the respondent insurer demonstrated that its insured was provided with a notice of intent to cancel and a cancellation notice fully compliant with N.Y. Banking Law § 576 more than one year prior to the subject accident. Thus, the Petition to Stay Arbitration of a UM claim was denied. In Lincoln General Ins. Co. v. Williams,60 the court observed that “[w]here an insured initiates a policy cancellation, the insurer is not required to send to the insured any notice of termination described in Vehicle & Traffic Law § 313.” However, the insurer is still required to file a notice of termination with the Commissioner of Motor Vehicles within 30 days after GEORGE F. JACKSON, PhD the effective date of the cancellation for Forensic Toxicologist that cancellation to be effective against third parties.61 In Eveready Ins. Co. v. Smith,62 the court rejected the SUM insurer’s con- available tention that the alleged offending vehi-

NYSBA Journal | May 2011 | 35 use afforded by Vehicle & Traffic Law § 388, can only be come into play.”68 This case is expected to be heard and rebutted by substantial evidence sufficient to show that decided by the Court of Appeals in the coming year. the driver of the vehicle was not operating the vehicle with the owner’s consent” (citations omitted). The court Settlement Without Consent further noted that “[t]he determination of the fact-finding In Eveready Ins. Co. v. Vilmond,69 although the claimant court should not be disturbed on appeal unless its conclu- reached an agreement to settle with the tortfeasor for a sions could not be reached on any fair investigation of the specific amount, and accepted and negotiated a settle- evidence, especially where, as here, the determination ment check for that amount before obtaining the SUM turns largely upon the credibility of witnesses” (citations insurer’s consent to settle, there was no proof that she omitted). ever executed a release. Thus, the court held that she did In Progressive Halcyon Ins. Co. v. Giacometti,64 the court not violate the terms of her policy or prejudice the SUM held that the claimant, who, after the vehicle’s owner/ insurer’s subrogation rights and, therefore, denied the operator steered the vehicle to the left, grabbed the steer- insurer’s Petition to Stay Arbitration. ing wheel and pulled the vehicle to the right, causing the vehicle to go off the road to the right, become airborne Priority of Coverage and crash into trees, did not have the express or implied In State Farm Mutual Auto. Ins. Co. v. Thomas,70 the court permission of the owner/operator to use the vehicle. noted that both New York and New Jersey SUM policies He did not have express permission to take control of contain a “priority of coverage” provision, pursuant to the steering wheel, and the owner/operator did not which where an insured is entitled to SUM coverage impliedly consent to the claimant’s use of the vehicle in under more than one policy, the order of priority is: that manner. (a) A policy covering a motor vehicle occupied by the 65 In State Farm Mutual Automobile Ins. Co. v. Taveras, the injured person at the time of the accident; court upheld the trial court’s finding, after a framed issue (b) A policy covering a motor vehicle not involved hearing, that the evidence of theft and non-permissive in the accident under which the injured person is a use was insufficient to overcome the presumption of named insured; and permissive use. In so concluding, the hearing court prop- (c) A policy covering a motor vehicle not involved erly took into account the owner’s failure to adequately in the accident under which the injured person is an explain his substantial delay in calling the police to report insured other than a named insured. the alleged theft, which call immediately followed an alleged assault on the owner and his friends by a mob of Furthermore, coverage under a lower priority policy angry people. applies “only to the extent that it exceeds the coverage of a higher priority policy.” ■ UNDERINSURED MOTORIST ISSUES Trigger of Coverage 1. 70 A.D.3d 1359 (4th Dep’t), lv. to appeal denied, 14 N.Y.3d 711 (2010). In New Hampshire Ins. Co. v. Bobak,66 the court observed 2. 74 A.D.3d 1850, 1851 (4th Dep’t), lv. to appeal denied, 15 N.Y.3d 712 (2010). that “[SUM] coverage will be available [only] where the 3. 69 A.D.3d 864, 865 (2d Dep’t 2010). limits of liability of the motor vehicle liable for the dam- 4. 77 A.D.3d 653, 654 (2d Dep’t 2010). ages are in a lesser amount than the bodily injury liability 5. 71 A.D.3d 860, 861 (2d Dep’t 2010). insurance limits of coverage provided by the insured’s 6. 70 A.D.3d at 1360. polic[ies].” 7. 28 Misc. 3d 1208(A) (Sup. Ct., N.Y. Co. 2010). 8. 74 A.D.3d 820, 822 (2d Dep’t 2010). Exhaustion of Underlying Limits 9. 75 A.D.3d 967, 968–69 (3d Dep’t 2010). In Kemper Ins. Co. v. Russell,67 the tortfeasor had $50,000 10. The dissenting opinion observed that “[i]f respondent had walked into the parked truck itself, her injuries would not have arisen out of the use of in liability coverage, but the plaintiff’s counsel failed the vehicle [citing Wooster v. Soriano, 167 A.D.2d 233 (1990), and McConnell to timely commence an action against the tortfeasor. v. Fireman’s Fund Am. Ins. Co., 49 A.D.2d 676 (1975)]. The same result should follow when she walked into materials protruding from the bed of the truck.” Accordingly, counsel settled the legal malpractice action The dissenter added, “Rather than expanding the application of the statute brought against him by the claimant with a payment of and regulation requiring coverage for injuries arising out of a ‘motor vehicle’s ownership, maintenance or use,’ we should adhere to the current rule that $50,000. In a proceeding by the claimant’s SUM carrier looks to whether the ‘circumstances constituted an “ongoing activity relating to to stay arbitration of his SUM claim, the majority of the the vehicle” which would necessitate a conclusion that the vehicle was in use’” court, as a matter of first impression, granted the insurer’s (citations omitted). Petition to Stay Arbitration on the ground that the primary 11. 72 A.D.3d 1503, 1504, 1509 (4th Dep’t 2010). insurer paid nothing insofar as the claimant was forced to 12. Id. at 1510–11. The dissenting opinion focused on the “use” of the vehicle, rather than its “operation.” As stated by the dissenter, “‘[u]se’ and ‘operation’ recover damages in a separate legal malpractice action. of a motor vehicle are, of course, not interchangeable, inasmuch as ‘one who “As the other driver’s policy limit was not exhausted uses a vehicle does not necessarily have to be operating it [citation omitted].’ The ‘use’ of a vehicle ‘includes more than driving or riding in an automobile; by payment, respondent’s own SUM coverage does not it extends to utilizing the vehicle as an instrumental means to an end in any

36 | May 2011 | NYSBA Journal manner intended or contemplated by the insured. ‘Operation’ is interpreted 42. 79 A.D.3d 822 (2d Dep’t 2010). more narrowly than ‘use’ and is defined as the exercise of direction and control 43. 76 A.D.3d 1078, 1079 (2d Dep’t 2010). over the vehicle necessary to move the vehicle from one point to another (i.e., driving the vehicle).” In the view of the dissent, “The meaning of the term ‘use’ 44. 73 A.D.3d 959 (2d Dep’t 2010). is the pivotal issue in this case. The noun ‘use’ has been defined as, inter alia, ‘the fact or state of being used,’ and the verb ‘use’ has been defined as, inter 45. 74 A.D.3d 1776, 1778 (4th Dep’t 2010). alia, ‘to carry out a purpose or action by means of’ [citation omitted]. In other 46. Id. at 1777. words, ‘utilize’ is a synonym of ‘use.’” Accordingly, the dissent concluded that the claimant “‘used’ the vehicle at the time of the accident in the sense that the 47. 70 A.D.3d 789 (2d Dep’t 2010). vehicle facilitated the travel giving rise to the accident.” He also concluded 48. 75 A.D.3d 404, 409 (1st Dep’t 2010). that the claimant’s use of the vehicle was permissive “at least to the extent that [he] traveled in the vehicle,” especially where there was no evidence that the 49. 79 A.D.3d 719 (2d Dep’t 2010). owner/operator resisted the efforts of the claimant to assume control of the 50. 73 A.D.3d 576, 577 (1st Dep’t), lv. to appeal dismissed, 15 N.Y.3d 834 (2010). vehicle. 51. 74 A.D.3d 1850, 1852 (4th Dep’t), lv. to appeal denied, 15 N.Y.3d 712 (2010). 13. 59 A.D.3d 681 (2d Dep’t 2009), aff’d, 15 N.Y.3d 763 (2010). 52. See also Herdendorf v. GEICO Ins. Co., 77 A.D.3d 1461 (4th Dep’t 2010). 14. See also Norman H. Dachs & Jonathan A. Dachs, Coverage in Context: Defining “Use” of a Motor Vehicle, N.Y.L.J., Sept. 14, 2010, p. 3, col. 1. 53. 79 A.D.3d 861 (2d Dep’t 2010). 15. 73 A.D.3d 1076 (2d Dep’t 2010). 54. Thrasher v. U.S. Liab. Ins. Co., 19 N.Y.2d 159 (1967). See Johnson v. GEICO, 72 A.D.3d 900 (2d Dep’t 2010). 16. See Tower Ins. Co. of N.Y. v. Miles, 74 A.D.3d 410 (1st Dep’t 2010); Bigman Brothers, Inc. v. QBE Ins. Corp., 73 A.D.3d 1110 (2d Dep’t 2010). 55. 71 A.D.3d 1011, 1013 (2d Dep’t 2010). 17. 79 A.D.3d 981 (2d Dep’t 2010). 56. 75 A.D.3d 404 (1st Dep’t 2010). 18. 73 A.D.3d 884 (2d Dep’t 2010). 57. 78 A.D.3d 928 (2d Dep’t 2010). 19. See Jeffrey v. Allcity Ins. Co., 26 A.D.3d 355 (2d Dep’t 2006). 58. See also Auto One Ins. Co. v. Forrester, 78 A.D.3d 1174 (2d Dep’t 2010). 20. See Tri-State Ins. Co. v. Furboter, 71 A.D.3d 682 (2d Dep’t 2010); Ponok 59. 70 A.D.3d 956 (2d Dep’t 2010). Realty Corp. v. United Nat’l Specialty Ins. Co., 69 A.D.3d 596 (2d Dep’t 2010); 60. 73 A.D.3d 778 (2d Dep’t 2010). Bauerschmidt & Sons, Inc. v. Nova Cas. Co., 69 A.D.3d 668 (2d Dep’t 2010). 61. Vehicle & Traffic Law § 313(2). 21. 71 A.D.3d 682 (2d Dep’t 2010). 62. 79 A.D.3d 1040 (2d Dep’t 2010). 22. 66 A.D.3d 447 (1st Dep’t 2009), rev’d, 14 N.Y.3d 809 (2010). 63. 78 A.D.3d 1063 (2d Dep’t 2010). 23. 69 A.D.3d 623 (2d Dep’t 2010). 64. 72 A.D.3d 1503, 1504 (4th Dep’t 2010). 24. 73 A.D.3d 791 (2d Dep’t 2010). 65. 71 A.D.3d 606 (1st Dep’t 2010). 25. 78 A.D.3d 1064, 1066 (2d Dep’t 2010). 66. 72 A.D.3d 1647, 1649 (4th Dep’t 2010). 26. See also Allstate Ins. Co. v. Raynor, 78 A.D.3d 1173, 1174 (2d Dep’t 2010) (insurer required to move to stay arbitration within 20 days after receipt of a 67. 75 A.D.3d 724 (3d Dep’t), lv. to appeal granted, 15 N.Y.3d 711 (2010). letter from claimant’s counsel claiming, inter alia, SUM benefits and containing 68. The dissenting opinion focused on the fact that the claimant did obtain a notice of intention to arbitrate and stating that unless the insurer applied to the full amount of the “limits of liability” of the tortfeasor’s policy, albeit from stay arbitration within 20 days after receipt of the notice, it would thereafter be another carrier, thus fulfilling the purpose of the SUM statute and scheme. precluded from objecting, inter alia, that a valid agreement to arbitrate was not 69. 75 A.D.3d 640, 641 (2d Dep’t 2010). made or complied with, and not to wait until after the claimant subsequently served a Request for Arbitration upon it). 70. 75 A.D.3d 644, 647 (2d Dep’t 2010). 27. 72 A.D.3d 517 (1st Dep’t 2010). 28. 72 A.D.3d 948, 949 (2d Dep’t 2010). 29. See also AutoOne Ins. Co. Hutchinson, 71 A.D.3d 1011, 1012 (2d Dep’t 2010) (petitioner made a prima facie showing that the offending vehicle was insured by Nationwide through the submission of a police accident report containing the vehicle’s insurance code); GEICO v. O’Neil, 74 A.D.3d 1068 (2d Dep’t 2010). 30. 78 A.D.3d 578 (1st Dep’t 2010). 31. 69 A.D.3d 626 (2d Dep’t 2010). 32. 74 A.D.3d 1068, 1069 (2d Dep’t 2010). 33. 70 A.D.3d 789, 790 (2d Dep’t 2010). 34. 69 A.D.3d 853, 854 (2d Dep’t 2010). 35. 74 A.D.3d 1335, 1336 (2d Dep’t 2010). 36. 64 A.D.3d 1149, 1150 (4th Dep’t 2009), aff’d, 15 N.Y.3d 530 (2010). 37. 71 A.D.3d 899, 900 (2d Dep’t 2010). 38. 77 A.D.3d 412, 415–16 (1st Dep’t 2010). 39. 73 A.D.3d 431, 432 (1st Dep’t 2010). 40. See Progressive Preferred Ins. Co. v. Townsend, 79 A.D.3d 893 (2d Dep’t 2010) (“Once the petitioner disclaimed liability coverage of the subject vehicle under the livery use exclusion provision of the subject policy, the vehicle was rendered an uninsured motor vehicle under the policy, as required by Insurance Law §3420(f)(1).”). 41. 75 A.D.3d 404, 409 (1st Dep’t 2010).

NYSBA Journal | May 2011 | 37 THOMAS A. DICKERSON, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS are Associate Justices of the Appellate Division, Second Department. JUSTICE DICKERSON is the author of Class Actions: The Law of 50 States, Law Journal Press, 2011; “Consumer Protection,” chapter 98 of Commercial Litigation in New York State Courts, 3d Edition, R. Haig, Ed., Thomson Reuters 2010; Article 9 (New York State Class Actions), Weinstein Korn & Miller, New York Civil Practice CPLR, Lexis-Nexis (MB) 2011, and “Consumer Law 2010: The Judge’s Guide to Federal and New York State Consumer Protection Statutes,” available at www.nycourts.gov. JUSTICE LEVENTHAL presided over the nation’s first dedicated felony Domestic Violence Court, from June 1996 to January 2008. He is a frequent lecturer on evidence, elder abuse, guardianship, domestic violence and other criminal law issues before bar associations, law schools, civic groups, court administrators and governmental agencies and has written exten- sively on these topics. JUSTICE CHAMBERS was appointed to the Appellate Division in February of 2008. She worked in the Kings County District Attorney’s Office from 1985 to 1994. In 1995, she was elected to the New York City Civil Court, where she served through 1998. She was then elected to the New York State Supreme Court (2nd Judicial District, Kings County) in 1999.

New York State Consumer Protection Law and Class Actions in 2010 By Thomas A. Dickerson, John M. Leventhal and Cheryl E. Chambers

n 2010, consumer protection law underwent a number Citicorp Insurance Services, Inc.,4 a class action challeng- of developments, including changes in the area of ing the repeated and erroneous imposition of $13 pay- Iconsumer class actions. In addition, the Dodd-Frank ments for the defendant’s “Voluntary Flight Insurance Wall Street Reform and Consumer Protection Act, “the Program,” the defendant sought to compel arbitration most important change in consumer protection law since and stay the class action relying upon a unilateral change the late 1960s,”1 was signed into law on July 21, 2010. of terms notice imposing a class-action waiver set forth This article reviews recent consumer protection law cases in a mailed notice sent to the plaintiff. In remitting, the as well as several consumer class-action cases reported Appellate Division, Second Department, noted that, during 2010. “[s]ince there is a substantial question as to whether the arbitration agreement is enforceable under South PART I Dakota law,” the trial court should have “temporarily stay[ed] arbitration pending a framed-issue hearing.” At Mandatory Arbitration such a hearing the trial court should consider, inter alia, Until recently, New York courts have, generally, enforced the issues of unconscionability, adequate notice of the mandatory arbitration clauses in consumer contracts change in terms, viability of class action waivers and the including class-action waivers, notwithstanding prohibi- “costs of prosecuting the claim on an individual basis, tive costs.2 However, recent cases suggest that courts are including anticipated fees for experts and attorneys, the subjecting such clauses to greater scrutiny.3 In Frankel v. availability of attorneys willing to undertake such a claim

38 | May 2011 | NYSBA Journal and the corresponding costs likely incurred if the matter Slack Fill proceeded on a class-wide basis.”5 In Waldman v. New Chapter, Inc.,14 the court found that the packaging of a retail product violated GBL § 349. Paying Arbitration Costs In 2009, Plaintiff purchased a box of Berry Green, a 6 In Brady v. Williams Capital Group, LP, a case involving “Spoonable Whole-Food.” . . . Berry Green comes in an employee/employer dispute over the enforceability a box that is 6 5/8 inches tall. . . . The box contains of an “equal share” provision regarding the payment of a jar that is 5 5/8 inches tall. . . . And the jar itself is arbitration costs, the Court of Appeals held that a “liti- only half-filled with the product. . . . [GBL § 349 claim gant’s financial ability is to be resolved on a case-by-case stated in that] defendant’s packaging is “misleading” basis and the inquiry should at a minimum consider the for purposes of this motion . . . Plaintiff alleges that litigant’s ability to pay fees and costs, the expected dif- that packaging “gives the false impression that the ferential between the costs of arbitration and litigating consumer is buying more than they are actually receiving” and thus sufficiently pleads that the packaging in court and whether the cost differential deters bringing was “misleading in a material way” [under a slack fill claims in the arbitral forum.” theory].

Gift Cards Again The court also found for the plaintiffs in their claim The struggle between gift card issuers (a multibillon for violation of GBL § 350. Quoting Mennen Co. v. Gillette dollar business) and cooperating banks and consumers Co., the court said that “[a]s an initial matter [GBL § 350-a] over the legality of excessive fees, including expiration expressly defines ‘advertisement’ to include ‘labeling.’ or dormancy fees, goes on with gift card issuers trying Thus the statute includes claims made on a product’s to morph themselves into entities protected from state package. In addition . . . excessive slack fill states a claim consumer protection statutes by federal preemption. In for false advertising under § 350.”15 three New York State class actions, purchasers of gift cards challenged, inter alia, the imposition of dormancy Insurance Claims fees by gift card issuers.7 The most recent battle is over In Wilner v. Allstate Insurance Co.,16 insured homeown- whether or not actions that rely upon the common law ers suffered property damage as a result of a storm that and violations of salutary consumer protection statutes, caused a hillside to collapse. The court sustained the such as N.Y. General Business Law §§ 349, 396-I (GBL) plaintiffs’ GBL § 349 claim including a request for puni- and CPLR 4544, brought by New York residents against tive damages and attorney fees. The plaintiffs alleged gift card issuers and cooperating banks are preempted that the 8 by federal law. Although this issue seemingly was defendant purposely failed to reach a decision on 9 resolved earlier in Goldman, in 2010 the court in L.S. the merits of their insurance claim in order to force v. Simon Property Group, Inc.10 (a consumer class action the plaintiffs to bring suit against the Village before challenging, inter alia, a renewal fee of $15 imposed after the statute of limitations expired because if they did a six-month expiration period) raised the issue anew by not do so, the defendant could refuse reimbursement holding that the claims stated therein were preempted of the claim on the ground that the plaintiffs had by federal law. This may not bode well for gift card failed to protect the defendant’s subrogation rights. purchasers in New York State. In addition, this may be . . . Presumably, the purpose of this alleged conduct an area for legislative efforts to limit, if not otherwise would be to save the defendant money, if the plaintiffs initiate the suit, the plaintiffs have to pay for it, prohibit, expiration dates and service fees of any kind whereas if the defendant initiates its own suit, the cost 11 as enacted by other states. will fall upon the defendant.

Backdating The court found that “the plaintiffs successfully plead- It is disappointing, indeed, to discover that some “con- ed conduct on the part of the defendant which was mis- sumer oriented” big-box retailers may be taking advan- leading in a material way” and “the plaintiffs’ belief as to tage of their customers. In Argento v. Wal-Mart Stores, their responsibilities under the contract of insurance is a Inc.,12 the court granted certification to a class of custom- question of fact.” ers who alleged that the defendant violated GBL § 349 by routinely backdating renewal memberships at Sam’s Excessive Mortgage Fees Club stores. “[A]s a result of the backdating policy, mem- In Cohen v. J.P. Morgan Chase & Co.,17 the court held bers who renew after the date upon which their one-year that the collection of allegedly illegal post-closing fees membership terms expire are nevertheless required to in violation of the Real Estate Settlement Procedures pay the full annual fee for less than a full year of mem- Act (RESPA) would be misleading under GBL § 349. bership.” The defendant admitted that Sam’s Club had “There is authority under New York law for finding that received $940 million in membership fees in 2006.13 collecting an illegal fee constitutes a deceptive business

NYSBA Journal | May 2011 | 39 conduct. . . . If it is found that collection of the post-closing and inconspicuous location of the spending limit fee fee was in fact illegal under RESPA, then [the] first element increase disclosures were deceptive and misleading in a of § 349 is established.” material way,” citing two gift card cases22 and one credit card case23 involving inadequate disclosures. Dating Services In Robinson v. Together Member Service,18 the court award- Fees in Absence of Common Fund ed the consumer the entire $2,000 contract price paid to a In another interesting fee case, Louisiana Municipal dating service. Employees’ Retirement System v. Cablevision Systems Corp.,24 The agreement entered into between the parties does the defendants agreed to pay counsel’s attorney fees as not comply [with GBL § 394-c]. Specifically . . . plain- part of a proposed settlement “which became void upon tiff paid a membership fee in excess of the allowable the nonconsummation of a transaction contemplated amount . . . the services to be provided to her were in the settlement agreement.” The plaintiffs, however, open-ended as opposed to having a two-year period. asserted that they obtained a benefit for the class (share While plaintiff was told she would get five referrals, price increased), were entitled to an award of attorney the number of referrals was not to be provided to her fees pursuant to CPLR 909 and because no common fund on a monthly basis, as required . . . since [defendant] had been created to fund such an award, the plaintiffs did not provide a specified number of referrals month- sought to have defendants pay. In limiting the scope of ly, the maximum allowable charge was $25. Clearly, CPLR 909, the Appellate Division, Second Department, plaintiff was grossly overcharged. held that “[a]lthough CPLR 909 also provides that ‘if justice requires, [the court in its discretion may] allow recovery of the amount awarded from the opponent of the PART II class,’ cases25 interpreting this statutory provision uni- formly require a showing of bad faith or other improper Objector’s Attorney Fees conduct on the part of a defendant before approving an In Flemming v. Barnwell Nursing Home and Health Facilities, award of fees directly against it.” Finding no bad faith, Inc.,19 a majority of the Court of Appeals declined to the court reversed the trial court’s award of $2.1 million award an objector her counsel fees, noting that “the lan- in attorney fees.26 guage of CPLR 909 permits attorney fee awards only to ‘the representatives of the class,’ and does not authorize an award of counsel fees to any party, individual or coun- Clearly, there will be an increase sel, other than class counsel. Had the Legislature intended any party to recover attorney fees it could have expressly in federal class actions. said so.” The dissent, however, noted that “[w]hatever the faults and virtues of the class action device, no one disputes the need to control class counsel’s fees – and No Penalty Class Actions nothing furnishes so effective a check on those fees as an CPLR 901(b)’s prohibition of class actions seeking a penal- objecting lawyer.” Hopefully, the majority’s holding will ty or a minimum recovery has been applied by New York be ameliorated in future cases where the objector’s input courts in antitrust actions under GBL § 340 (Donnelly is found to be helpful,20 unlike in this case where the trial Act; Sperry v. Crompton Corp.27) and to claims brought court found that “her objections had neither assisted the under the federal Telephone Consumer Protection Act court nor benefitted the class.” (Giovanniello v. Carolina Wholesale Office Machine Co., Inc.28). However, CPLR 901(b) has not been applied in Bonus Minutes class actions alleging a violation of GBL §§ 349, 350 (Cox v. In Morrissey v. Nextel Partners, Inc.,21 consumers entered Microsoft Corp.;29 Ridge Meadows Homeowners’ Association, into contracts with the defendant “for the purchase of a Inc. v. Tara Development Co., Inc.30), Labor Law § 220 ‘bonus minutes’ promotional rate plan. . . . Plaintiffs were (Pasantez v. Boyle Envrionmental Services, Inc.;31 Galdamez v. also required to enroll in defendant’s ‘Spending Limit Biordi Construction Corp.32) and Labor Law § 196-d (Krebs Program,’ which imposed a monthly fee for each phone v. The Canyon Club33) as long as the penalty damages are based on their credit rating. . . . Plaintiffs . . . alleged that waived and class members are given the opportunity to defendant’s notification of the increased Spending Limit opt out. Program maintenance fee, which was ‘burie[d]’ within a section of the customer billing statement . . . constitutes a Make a Federal Case Out of It deceptive practice.” In granting certification to the spend- Perhaps, on the basis of comity and to discourage forum ing limit sub-class on the GBL § 349 claim only, the court shopping, the federal courts in the Second Circuit have noted, “Plaintiffs allege, however, that the small typeface routinely referred to CPLR 901(b) in class actions brought

40 | May 2011 | NYSBA Journal by New York residents (Leider v. Ralfe34 (“NY C.P.L.R. § $50 million to resolve both federal and state cases. Of 901(b) must apply in a federal forum because it would particular interest was $2.5 million allocated for cy pres contravene both of these mandates to allow plaintiffs to distribution to The Foundation for the National Institutes recover on a class-wide basis in federal court when they of Health, which “will allocate the funds to national, are unable to do the same in state court”)). However, health-related research projects.” The court noted, a plurality of the U.S. Supreme Court in Shady Grove There is little New York law44 applying the cy pres rule 35 Orthopedic Assocs., P.A. v. Allstate Insurance Co. rejected to class action settlements . . . there is no prohibition this concept: against employing this well-recognized doctrine, oft The question in dispute is whether Shady Grove’s suit applied by the federal courts. . . . Many of the non- may proceed as a class action. Rule 23 . . . creates a cat- closed-block class members would have to be located egorical rule entitling a plaintiff whose suit meets the at great expense [which] would have greatly depleted specified criteria to pursue his class as a class action. the $2.5 million and left these class members with little . . . Thus, Rule 23 provides a one-size-fits-all formula benefit. for deciding the class-action question. Because § 901(b) attempts to answer the same question – i.e., it states In addition, the court approved of the payment of that Shady Grove’s suit “may not be maintained as a $25,000 for objector’s counsel fees and incentive awards class action” (emphasis added) because of the relief it “ranging from $1,000 to $1,500” to class representatives. seeks [it] cannot apply in diversity suits unless Rule “This award, the court believes, will encourage class rep- 23 is ultra-vires. . . . Rule 23 automatically applies “in all civil actions and proceedings in the United States resentatives to bring needed class actions without worry district courts.” that their expenses will not be covered.”

Recent federal court decisions have addressed the Community Telephone Poles ramifications of Shady Grove.36 Clearly, there will be an Not since the 1980s case of Loretto v. Teleprompter Manhattan increase in federal class actions and defendants may be CATV Corp.45 have the courts been called upon to address less anxious to remove such cases to federal court under the equities of the use of private property in New York the Class Action Fairness Act.37 Lastly, the Legislature City by telecommunication companies for the alleg- may wish to revisit CPLR 901(b).38 edly uncompensated placement of terminal boxes, cables and other hardware. In Corsello v. Verizon New York, More Tiny Print Inc.,46 property owners challenged the defendant’s use of In Pludeman v. Northern Leasing Systems, Inc.,39 a class of “inside-block cable architecture” instead of “pole-mount- small business owners who had entered into lease agree- ed aerial terminal architecture,” often turning privately ments for POS terminals asserted that the defendant owned buildings into “community telephone pole(s).” used “deceptive practices, hid material and onerous On a motion to dismiss, the Appellate Division, Second lease terms. According to plaintiffs, defendants’ sales Department held that an inverse condemnation claim representatives presented them with what appeared to was stated, noting that the allegations “are sufficient to be a one-page contract on a clip board, thereby conceal- describe a permanent physical occupation of the plaintiffs’ ing three other pages below . . . among such concealed property.” The court also found that a GBL § 349 claim was items . . . [were a] no-cancellation clause and no warran- stated for ties clause, absolute liability for insurance obligations, [t]he alleged deceptive practices committed by Verizon a late charge clause, and provisions for attorneys’ fees . . . of an omission and a misrepresentation; the former and New York as the chosen forum,” all of which were is based on Verizon’s purported failure to inform the in “small print” or “microprint.” The Appellate Division, plaintiffs that they were entitled to compensation for First Department certified the class40 noting that “liabil- the taking of a portion of their property, while the lat- ity could turn on a single issue. Central to the breach of ter is based on Verizon’s purported misrepresentation contract claim is whether it is possible to construe the first to the plaintiffs that they were obligated to accede to page of the lease as a complete contract. . . . Resolution its request to attach its equipment to their building, of this issue does not require individualized proof.” without any compensation, as a condition to the provision of service. Subsequently, the trial court awarded the plaintiff class partial summary judgment on liability on the breach of The court also found that although the inverse con- contract/overcharge claims.41 demnation claim was time barred, the GBL § 349 claim was not. “A ‘defendant may be estopped to plead the Cy Pres Settlement Statute of Limitations where plaintiff was induced by In Fiala v. Metropolitan Life Insurance Co., Inc.,42 and a fraud, misrepresentations or deception to refrain from related federal class action,43 the trial court approved a filing a timely action.’” The court also denied class certifi- proposed settlement providing for a total payment of cation,47 finding the proposed class definition overbroad,

NYSBA Journal | May 2011 | 41 an absence of predominating questions of law or fact and 16. 71 A.D.3d 155, 165–66 (2d Dep’t 2010). atypicality. 17. 608 F. Supp. 2d 330, 350 (E.D.N.Y. 2009). 18. 25 Misc. 3d 230 (Civ. Ct., Richmond Co. 2009). Mortgages 19. 15 N.Y.3d 375 (2010). 48 In Dowd v. Alliance Mortgage Co., a class of mortagees 20. See, e.g., Klein v. Robert’s Am. Gourmet Food, Inc., 28 A.D.3d 63 (2d Dep’t alleged that the defendant violated Real Property Law 2006) (proposed settlement and certification of settlement class remanded; § 274-a (RPL) and GBL § 349 by charging a “‘priority han- objector successfully challenged proposed settlement as it “provided insufficient value to class members, that it contained no injunction against, or admis- dling fee’ in the sum of $20, along with unspecified ‘addi- sion of liability by, the defendants”); see WKM at 908.14[4]. tional fees’ for providing her with a mortgage note payoff 21. 72 A.D.3d 209 (3d Dep’t 2010). statement.” The Appellate Division, Second Department 22. Goldman v. Simon Props. Grp., Inc., 58 A.D.3d 208 (2d Dep’t 2008); Lonner v. granted class certification to the RPL § 274-a and GBL Simon Props. Grp., Inc., 57 A.D.3d 100 (2d Dep’t 2008). § 349 claims but denied certification as to the money had 23. Sims v. First Consumers Nat’l Bank, 303 A.D.2d 288 (1st Dep’t 2003). and received causes of action “since an affirmative defense 24. 74 A.D.3d 1291 (2d Dep’t 2010). based on the voluntary payment doctrine . . . necessitates 25. See Huff v. C.K. Sanitary Sys., Inc., 260 A.D.2d 892 (3d Dep’t 1999); Loretto v. individual inquiries of class members.” ■ Grp. W Cable, 135 A.D.2d 444 (1st Dep’t 1987); WKM at 909.03. 26. In re Cablevision Sys. Corp. Shareholders Litig., 21 Misc. 3d 419 (Sup. Ct., 1. NCLC Reports, Consumer Credit and Usury/Deceptive Practices and Warranties Nassau Co. 2008). Editions, Vol. 29, July/Aug. 2010. See also Gretchen Morgenson, It’s Not Over 27. 8 N.Y.3d 204 (2007). Until It’s in the Rules, http:/www.nytimes.com/2010/08/29/business/29gret. html. 28. 29 A.D.2d 737 (2d Dep’t 2006). 2. See State v. Philip Morris Inc., 30 A.D.3d 26 (1st Dep’t 2006), aff’d, 8 N.Y.3d 29. 8 A.D.3d 39 (1st Dep’t 2004). 574 (2007); Tsadilas v. Providian Nat’l Bank, 13 A.D.3d 190 (1st Dep’t 2004); 30. 242 A.D.2d 947 (4th Dep’t 1997). Weinstein Korn & Miller at 901.06[4] (WKM). 31. 251 A.D.2d 11 (1st Dep’t 1998). 3. Another shift in enforcement may be reflected in the First Department’s recent decision in Nachmani v. By Design, LLC, 74 A.D.3d 478 (1st Dep’t 2010) 32. 13 Misc. 3d 1224(A) (2006) (Sup. Ct., N.Y. Co. 2006), aff’d, 50 A.D.3d 357 (1st finding that the language “in accordance with the AAA Commercial Rules“ Dep’t 2008). appearing in a mandatory arbitration clause is a choice of law provision and 33. 22 Misc. 3d 1125(A) (Sup. Ct., Westchester Co. 2009). not a forum selection provision. See Steven H. Reisberg & Kristen M. Pauley, 34. 387 F. Supp. 2d 283 (S.D.N.Y. 2005). First Department Decision Raises Drafting Issue for Arbitration Clauses, N.Y.L.J., Aug. 24, 2010, p. 4, col. 1. 35. 130 S. Ct. 1431 (2010). 4. 80 A.D.3d 280 (2d Dep’t 2010). 36. See Holster v. Gatco, Inc., 618 F.3d 214 (2d Cir. 2010) (Telephone Consumer Protection Act (TCPA) class action; CPLR 901(b) precludes federal courts in 5. See generally Scott v. Cingular Wireless, 160 Wash. 2d 843 (Wash. Sup. En New York from exercising jurisdiction); Pefanis v. Westway Diner, Inc., 2010 Banc 2007). WL 3564426 (S.D.N.Y. 2010) (plaintiffs may “now seek liquidated damages 6. 14 N.Y.3d 459 (2010). authorized by [New York Labor Law] as part of a Rule 23 class action in federal 7. See Lonner v. Simon Prop. Grp., Inc., 57 A.D.3d 100 (2d Dep’t 2008) (“Virtually court”); McBeth v. Gabrielli Truck Sales, LTD, 2010 WL 3081534 (E.D.N.Y. 2010) all gift cards have expiration dates and are subject to a variety of fees, includ- (claim under Labor Law § 663(1) allowed under FRCP 23 pursuant to Shady ing maintenance fees or dormancy fees.”) See Gift Cards 2007: Best and Worst Grove). Retail Cards: A Deeper View of Bank Cards Doesn’t Improve Their Look, Office 37. See WKM at 901.10[3]]. See also Sorrentino v. ASN Roosevelt Ctr., LLC, 731 of Consumer Protection, Montgomery County, Md. at www.montgomery F. Supp. 2d 316 (E.D.N.Y. 2008); Ventimiglia v. Tishman Speyer Archstone-Smith countymd.gov. See also Llanos v. Shell Oil Co., 55 A.D.3d 796 (2d Dep’t 2008); Westbury, L.P., 588 F. Supp. 2d 329 (E.D.N.Y. 2008). Goldman v. Simon Prop. Grp., Inc., 58 A.D.3d 208 (2d Dep’t 2008). 38. See Thomas A. Dickerson, State Class Actions: Game Changer, N.Y.L.J., Apr. 8. See, e.g., SPGGC, LLC v. Ayotte, 488 F.3d 525 (1st Cir. 2007); McAnaney v. 6, 2010, p. 6, col. 4; WKM at 901.28. Astoria Fin. Corp., 665 F. Supp. 2d 132 (E.D.N.Y. 2009). 39. 10 N.Y.3d 486 (2008) (In sustaining the fraud cause of action against the 9. Goldman v. Simon Prop. Grp., Inc., 31 A.D.3d 382, 383 (2d Dep’t 2006). individually named corporate defendants, the Court of Appeals noted that 10. N.Y.L.J., July 21, 2010, p. 26, col. 5 (Sup. Ct., Nassau Co.). “it is the language, structure and format of the deceptive Lease Form and the systematic failure by the sales people to provide each lessee a copy of the lease 11. See Conn. Gen. Stat, 42-460 (prohibits expiration dates), Conn. Gen. Stat. at the time of its execution that permits, at this early stage, an inference of fraud 3-65c (prohibits service fees); Ill. Rev. Stat. Ch. 815, 505/2SS(b) (minimum expi- against the corporate officers in their individual capacities and not the sales ration period 5 years, all post-purchase fees prohibited, face value of gift card agents.”). may not be reduced in value and the holder may not be penalized in any way for non-use or untimely redemption); Mont. Code Ann. 30-14-108(1) (expira- 40. Pludeman v. N. Leasing Sys., Inc., 74 A.D.3d 420 (1st Dep’t 2010). tion date prohibited; all service fees including dormancy fees prohibited). 41. Pludeman v. N. Leasing Sys., Inc., 27 Misc. 3d 1203(A) (Sup. Ct., N.Y. Co.), 12. 66 A.D.3d 930, 932 (2d Dep’t 2009). reargument denied, 2010 WL 3462147 (Sup. Ct., N.Y. Co. 2010). 13. See also Dupler v. Costco Wholesale Corp., 249 F.R.D. 29 (E.D.N.Y. 2008). In 42. 27 Misc. 3d 599 (Sup. Ct., N.Y. Co. 2010). Dupler, the court granted certification to a class of customers that alleged that 43. In re MetLife Demutualization Litig., E.D.N.Y., 00 CV 2258 (Weinstein, J.). the defendant failed to properly disclose its backdating policy, wherein “cer- 44. See supra note 2; WKM at 908.07. tain customers who decide to purchase a new annual membership after expiration of the old membership are provided with a term of membership less than 45. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), rev’g 53 12 months.” The court held that GBL § 349 covers claims based on omissions N.Y. 2d 124 (1981), aff’g 73 A.D.2d 849 (1st Dep’t 1979). as well as actual misrepresentations. 46. 77 A.D.3d 344 (2d Dep’t 2010). 14. 714 F. Supp. 2d 398 (E.D.N.Y. 2010). 47. Corsello v. Verizon N.Y., Inc., 76 A.D.3d 941 (2d Dep’t 2010). 15. 565 F. Supp. 648, 655 (S.D.N.Y. 1983), aff’d, 742 F.2d 1437 (2d Cir. 1984). 48. 74 A.D. 3d 867 (2d Dep’t 2010).

42 | May 2011 | NYSBA Journal TAX ALERT BY ROBERT W. WOOD

ROBERT W. WOOD ([email protected]) is a tax lawyer with Wood & Porter and is the author of more than 30 books including Taxation of Damage Awards & Settlement Payments (4th Ed. 2009 www.taxinstitute.com). He can be reached at [email protected]. This discussion is not intended as legal advice and cannot be relied upon for any purpose without the services of a qualified professional.

Big Tax Perk for Working Overseas

resident of a foreign country for the the exclusion. The rest of your pay entire year, a U.S. resident alien who is does. a citizen or national of a country with If you claim the foreign earned which the United States has an income income exclusion, you can’t claim a tax treaty and who is a bona fide resi- foreign tax credit or deduction on the dent of a foreign country for the entire same income, even though you may year, or a U.S. citizen or a U.S. resident be paying foreign taxes on it. In fact, s a U.S. citizen or permanent alien who is physically present in a for- if you claim a foreign tax credit or resident, you pay federal eign country for at least 330 full days deduction for foreign taxes on the Aincome tax on your world- during any 12 consecutive months. excluded income, the foreign earned wide income. However, if you are Each of these hurdles has traps. income exclusion may be considered paying taxes in multiple countries, Only earned income qualifies, meaning revoked. How do you decide whether you may be entitled to a foreign tax salary, wages, commissions, bonuses, you get a larger tax benefit out of the credit against your U.S. income tax. professional fees and tips. Plus, the exclusion or credit? You should crunch You may even qualify for benefits pay must be for your foreign work only, the numbers both ways. But here’s a under tax treaties. But can you ever not pay you receive for services in the guide: if you pay no foreign tax, claim exclude some of your income earned United States. the foreign earned income exclusion; if overseas from your U.S. taxes? Yes, your foreign tax rate is lower than your sometimes you can. A U.S. citizen or Example U.S. rate, you should usually claim resident alien – the latter means you You are a U.S. citizen and bona fide the exclusion; and if your foreign tax hold a green card – living and work- resident of Kazakhstan, working there rate is higher than your U.S. rate, you ing abroad may be entitled to a foreign all year. Your salary is $76,800 a year, should probably claim the foreign tax earned income exclusion, and housing plus a $6,000 cost-of-living allowance credit instead. benefits as well. The maximum exclu- and a $6,000 education allowance. Your sion is adjusted annually for inflation. employment contract does not state Home vs. Abode For 2011, you can exclude up to $92,900 that you are entitled to these allow- You must meet either a bona fide resi- from your U.S. income, constituting a ances only while outside the United dence or a physical presence test. You nice benefit of working overseas. For States. You work a five-day week, and can only claim you’re a bona fide 2010, it was $91,500. after subtracting vacation, work a total resident in your “tax home.” Your tax To claim the foreign earned income of 240 days a year. You worked in the home is your main place of business, exclusion, you must use IRS Form United States for six weeks (30 work- employment or post of duty, regard- 2555 and attach it to your Form 1040. days). To figure your pay for work less of where you maintain your family Some taxpayers can use a shorter Form done in the United States, take the home. If you don’t have a main place 2555-EZ. number of days worked in the United of business (maybe you’re on the road To be entitled to this tax benefit: States (30) divided by the number of most of the time or work out of your (1) your “tax home” must be in a foreign days paid (240) and multiplied by the apartment), your tax home may be the country; (2) you must have “foreign total income ($88,800) = $11,100. Your place you regularly live. earned income”; and (3) you must be U.S. source earned income is $11,100, If your “abode” is in the United either a U.S. citizen who is a bona fide and that amount does not qualify for States, you can’t have a tax home in a

NYSBA Journal | May 2011 | 43 foreign country. Your “abode” is your If you expect your employment Sixteen percent of $91,500 is $14,640, home, residence, domicile, or place abroad to last one year or less (and it or $40.11 per day. Multiply $40.11 by of dwelling. “Abode” has a domes- does) it is likely “temporary.” If you the number of days and subtract it tic meaning, unlike your “tax home” expect it to last more than a year, it from your total housing expenses to where you do business. Your abode is “indefinite.” If you expect it to last find your housing amount. However, depends on where you maintain eco- for a year or less, but later revise your you must reduce your housing amount nomic, family, and personal ties. expectations to more than a year, it by any U.S. government (or similar becomes indefinite. nontaxable) allowance you receive to compensate you for housing expenses. Physical Presence Housing expenses include reason- If you have fewer Even if you aren’t a bona fide resi- able expenses for housing in a for- dent of a foreign country, you can still eign country for you, your spouse and than 330 days qualify for the exclusion if you meet dependents that live with you. You abroad even for the physical presence test. You must be can count housing expenses only for physically present in a foreign country the part of the year you qualify for the good reasons – for 330 full days during 12 consecutive foreign earned income exclusion, and months. A full day is 24 consecutive only up to a limit generally equal to that’s tough. hours beginning at midnight. You can 30% of the maximum foreign earned count days you spent abroad for any income exclusion. For 2010, this means reason, even days on vacation! an annual limit of $27,450, or about Example 1 Notably, the 330 days need not be $75.21 per day. However, the actual You work on an offshore oil rig in the consecutive. They are based purely limit may be higher depending on territorial waters of Nigeria and work on length of stay, not what kind of the location of your foreign tax home. 28 days on, 28 days off. You return to residence you establish, your inten- Housing expenses include: rent; the your family residence in the United tions about returning, or the nature fair rental value of housing provided States during your off periods. Your or purpose of your stay abroad. But if in kind by your employer; repairs; abode is in the United States; therefore, you have fewer than 330 days abroad utilities (but not telephone charges); you cannot claim the foreign earned even for good reasons – illness, family insurance; nondeductible occupancy income exclusion. problems, vacation back in the United taxes; nonrefundable fees to secure a States, or your employer’s orders – leasehold; furniture rental; and res- Example 2 that’s tough. The only exception is if idential parking. Housing expenses You work for a manufacturer in Ohio. you fall below the 330 days because do not include: lavish or extravagant Your employer transfers you to London war or civil unrest requires you to expenses; deductible interest and for at least 18 months. You distribute leave the country. taxes; costs of buying property, includ- business cards showing your business When you leave the United States to ing principal payments on a mortgage; and home address in London, and you go directly to a foreign country or when costs of maids, nannies, gardeners, etc.; rent your Ohio home and put your car you return directly to the United States pay television subscriptions; improve- in storage. You move your family, furni- from a foreign country, the time you ments that increase the value or pro- ture, and pets to a home your employer spend over international waters doesn’t long the life of property; purchased rents for you in London. You lease a car count toward your 330-day total. furniture; or depreciation or amortiza- and get a British driving license, open tion of property or improvements. London bank accounts, join a local Housing Costs business league, etc. Your abode and In addition to the foreign earned Conclusion tax home are both in London. income exclusion, you can claim an If you work abroad, you probably have The location of your tax home exclusion or deduction for housing. The a tax adviser who keeps these rules depends on whether your assignment housing exclusion applies to amounts straight. Companies sending work- is temporary or indefinite. If you are you receive from your employer, while ers overseas usually have an account- temporarily absent from your tax home the deduction applies to amounts you ing firm handle U.S. and foreign tax in the United States, you don’t qualify pay with self-employment earnings. return filings for employees, and may for the foreign earned income exclu- Your housing exclusion/deduction is have a tax equalization program to sion. If your work assignment abroad your total housing expenses minus a ensure that employees taking foreign is “indefinite,” your new place of base housing amount. assignments don’t end up worse off. employment becomes your tax home, The base housing amount is 16% Nevertheless, you should understand allowing a foreign earned income of the $91,500 exclusion, multiplied the basics because you can influence exclusion. But expectations change. by the number of days you qualify. some of these rules. ■

44 | May 2011 | NYSBA Journal E-DISCOVERY BY STEVEN C. BENNETT

STEVEN C. BENNETT ([email protected]) is a partner in the New York City offices of Jones Day, and Chair of the firm’s E-Discovery Committee. He teaches a course on electronic discovery at New York Law School. The views expressed are solely those of the author, and should not be attributed to the author’s firm or its clients.

E-Discovery Meets the Cloud

loud computing is the “buzz- retrieval of information from the cloud now-famous Zubulake series of opin- word du jour” in the computer provider, in the event of a discovery ions make clear, counsel must become Cindustry.1 Use of this form of request.7 Even where parties lack suf- familiar with their clients’ informa- computing service (in its many per- ficient control over evidence, some tion systems and must be prepared to mutations) has grown dramatically courts have imposed an obligation to explain the need for retention of infor- in recent years and shows little sign give opposing parties notice of the mation to all “key players” involved in of abating.2 For lawyers involved in existence of information in the hands operating those systems.14 ediscovery, however, cloud computing of third parties, so that a subpoena (if Under Rule 26(f), moreover, parties represents a new, and significant, chal- necessary) may be obtained.8 And a (typically through their counsel) are lenge. This article summarizes some of party might even have an obligation required to meet to discuss “issues those challenges and suggests some of to notify third parties of the existence related to disclosure” of documents the key steps required to manage the of litigation, to avoid the risk of spolia- and electronically stored informa- litigation risks of cloud computing. tion.9 tion. Courts, sometimes citing the The Federal Rules of Civil Procedure, The Rules generally provide a “safe “Sedona Conference Cooperation and most equivalent state rules, harbor” to prevent sanctions for “rou- Proclamation,” have emphasized that require parties in litigation to produce tine, good-faith operation” of an elec- lawyers must conduct discovery in a not just documents (or electronically tronic information system.10 Again, “diligent and candid manner,”15 and stored information) in their physical there are no cases interpreting this must not “unilaterally assume a nar- possession, but also materials in their provision in the context of cloud com- row interpretation” of discovery obli- “control.”3 But what does “control” puting. But some courts have imposed gations, without consulting the adver- mean? Some courts suggest that con- spoliation sanctions in circumstanc- sary.16 trol means the legal or practical ability es where a third party (or company There may be circumstances where to obtain materials, even if a party does employee), arguably within the pro- a party’s relationship with a cloud not possess them.4 Others suggest that ducing party’s control, failed to main- computing vendor is so attenuated that the “practical ability” standard is too tain essential information.11 control is entirely lacking.17 Arguments loose.5 Given this lack of certainty in the may also arise that some cloud-stored To date, no court has definitively case law, what should a lawyer do? information is “not reasonably accessi- ruled that placement of documents or As in all matters related to litigation, ble” within the meaning of the Rules.18 other information on a cloud server attorneys must acknowledge that they Similar arguments have been made in does (or does not) wrest control from bear responsibility (if not ultimate the context of back-up tapes, especially the user (within the meaning of the responsibility) for the conduct of dis- when stored off-site for disaster recov- Rules). The answer may depend on covery.12 As one court reminded the ery purposes.19 But a lawyer must be whether the user has a legal obligation bar, Rule 26 requires that a lawyer sign prepared to discuss those circumstanc- to maintain records (whether stored every discovery request and response. es with opposing counsel, and may in the cloud or on the user’s own Such a signature constitutes a certifi- not simply permit events to unfold in computers),6 and whether the terms of cation, after reasonable inquiry, that ways that could ultimately preclude service between the user and the cloud the response (or request) is complete, recovery of needed information, if so provider contemplate preservation and accurate and proper.13 Further, as the agreed, or so ordered by the court.20

NYSBA Journal | May 2011 | 45 As this new method for computing 4. See, e.g., In re NTL Sec. Litig., 2007 WL 241344 12. See In re Sept. 11th Liab. Ins. Coverage Cases, 243 (S.D.N.Y. Jan. 30, 2007) (test for control construed F.R.D. 114, 125 (S.D.N.Y. 2007) (“Discovery is run service develops, lawyers must educate “broadly”); ICE Corp. v. Hamilton Sundstrand Corp., largely by attorneys, and the court and the judicial themselves about the technology. ABA 2007 WL 4239453 (D. Kan. Nov. 30, 2007) (control process depend upon honesty and fair dealing Model Rule 1.1 requires that lawyers includes “any right or ability to influence the person among attorneys.”). in whose possession the documents lie,” such that 13. See Mancia v. Mayflower Textile Servs. Co., 1253 provide “competent representation to “records can be obtained easily” from third party F.R.D. 354 (D. Md. Oct. 15, 2008). a client.” Competent representation source). 14. See Zubulake v. UBS Warburg, LLC, 229 F.R.D. 5. See Goodman v. Praxair Servs., Inc., 632 F. Supp. requires the “legal knowledge, skill, 422, 432 (S.D.N.Y. 2004). 2d 494, 532 (D. Md. 2009) (“fact that a party could thoroughness and preparation reason- obtain a document if it tried hard enough” does not 15. See Home Design Servs., Inc. v. Trumble, 2010 ably necessary for the representation.” give “control”) (citing Chaveriat v. Williams Pipe Line WL 1435382 (D. Colo. Apr. 9, 2010) (citing Sedona The more “technical or complex” the Co., 11 F.3d 1420, 1426 (7th Cir. 1993)). Conference Cooperation Proclamation, available at requirements of a matter, “the more 6. See Tomlinson v. El Paso Corp., 2007 WL 2521806 www.thesedonaconference.org). (D. Colo. Aug. 31, 2007) (because ERISA did not difficult it may be for the lawyer to 16. See JSR Micro, Inc. v. QBE Ins. Corp., 2010 WL permit company to delegate its record-keeping obli- 1338152 (N.D. Cal. Apr. 5, 2010) (citing Sedona meet the ‘competency’ standard in pro- gations to a third party, company deemed in control proclamation). viding such services.” In accordance of records, despite their deposit with a service provider). 17. See David Chou, Understanding Cloud Computing with these basic principles, lawyers and Cloud-Based Security, Mar. 9, 2010, www.soamag. 7. See Babaev v. Grossman, 2008 WL 4185703 must at least have a working under- com (for some applications, cloud computing is like (E.D.N.Y. Sept. 8, 2008) (pursuant to depositor public transportation: “It is easier to use as you 21 standing of the technology. As the arrangements, defendants had sufficient control don’t need to know how to operate it and it costs technology is new, and with ethics over their bank records to retrieve them); Tetra less. However, you don’t have control over its Technologies v. Hamilton, 2008 WL 3307150 (W.D. operation, schedule, or routes.”). rules and opinions still developing, Okla. Aug. 7, 2008) (cellphone service subscriber lawyers must also keep track of new had legal right to obtain telephone records); Flagg v. 18. See Fed. R. Civ. P. 26(b)(2)(B); see also Barrera v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008) (city Boughton, 2010 WL 3926070 (D. Conn. Sept. 30, 2010) professional responsibility pronounce- had control over text messages held by third-party (holding data “not reasonably accessible”). 22 ments in the area. service, and could be required to give consent to 19. See Calixto v. Watson Bowman Acme Corp., 2009 Lawyers cannot “pass the buck” release of data by service). WL 3823390 (S.D. Fla. Nov. 16, 2009). regarding management of cloud-based 8. See Silvestri v. GM Corp., 271 F.3d 583, 591 (4th 20. See Cache La Poudre Foods, LLC v. Land O’Lakes, Cir. 2001). ediscovery. Model Rule 1.3 requires Inc., 2007 WL 2521116 (D. Colo. Aug. 31, 2007) (once 9. See Sanchez v. Stanley-Bostitch, Inc., 1999 WL litigation hold is in effect, “a party cannot continue that lawyers “act with reasonable dili- 639703 (S.D.N.Y. Aug. 23, 1999); Clark Constr. Grp. a routine procedure that effectively ensures that gence and promptness in represent- v. City of Memphis, 229 F.R.D. 131 (W.D. Tenn. 2005) potentially relevant and readily available informa- ing a client.” Further, Model Rules (city held accountable for acts of third-party con- tion is no longer ‘reasonably accessible’”). struction manager who shredded evidence after city 21. See generally Steven C. Bennett, Has Information 5.1–5.3 make clear that lawyers must knew of litigation). supervise the paraprofessionals and Technology Raised the Level of Professional Competency?, 10. See Fed. R. Civ. P. 37(e). Significantly, the Rule E-Discovery Standard (2006), available at www.lexis- administrative staff who work at their 37 “safe harbor” does not prevent sanctions under nexis.com/litigation-news. direction.23 In short, lawyers must face sources other than the Rules themselves. See Nucor Corp. v. Bell, 251 F.R.D. 191, 196 n.3 (D.S.C. 2008). 22. One excellent source of information on new up to the realities of the new cloud technologies is the ABA Legal Technology Resource ■ 11. See, e.g., World Courier v. Barone, 2007 WL Center. See www.abanet.org/tech/ltrc. computing world. 1119196 (N.D. Cal. Apr. 16, 2007) (adverse inference for destruction of hard drive by defendant’s 23. This issue has arisen in the context of “out- 1. Cloud services essentially constitute a form husband); In re WRT Energy Sec. Litig., 246 F.R.D. sourcing” of legal services to vendors and part-time of outsourcing, where a user can obtain data stor- 185 (S.D.N.Y. 2007) (sanctions against plaintiff who professionals. In that context, recent ethics opinions age, software, infrastructure, development tools allowed third party to destroy relevant evidence); stress that the principal counsel involved in a mat- and other services from a provider outside the but see Ecor Solutions, Inc. v. State, 2007 N.Y. Misc. ter retains ultimate responsibility for supervision of user’s own computer environment. A cloud may be LEXIS 7840 (N.Y. Ct. Claims Oct. 31, 2007) (no spo- all work. See Steven C. Bennett, The Ethics of Legal “public,” with the provider offering services to, and liation sanction, despite “massive deletion” of data Outsourcing, 36 N. Ky. L. Rev. 479 (2009). hosting data from, a number of users, or “private,” by state’s consulting engineer). dedicated to a limited set of users (or some hybrid of the two). See Eric Knorr, What You Need to Know About the Year of the Cloud, Dec. 30, 2010, www.com- puterworld.com. 2. See generally Judith Lamont, Cloud Computing: It Can Work for You, Jan. 2011, www.kmworld.com (“Few technology areas are showing the kind of dynamic growth evident in cloud computing. . . . With its potential for cost savings, greater flexibility and a reduced burden to in-house IT departments, cloud computing is attractive to both large enter- prises and small to medium-sized businesses[.]”); Mike Healey, State of Cloud 2011: Time For Process Maturation, Jan. 2011, www.analytics.information- week.com (noting dramatic rise in use of cloud computing, due principally to cost savings and flexibility of operation). 3. See Fed. R. Civ. P. 34(a) (party must produce www.facebook.com/nysba documents in its “possession, custody or control”).

46 | May 2011 | NYSBA Journal NEW MEMBERS WELCOMED

FIRST DISTRICT Jenna Barton Bernstein Paul Carbonelli Mei Kai Dan Daniel Todd Ferguson Lauren Ilyse Aach Matthew Carl Berntsen Maria Antoinette Carey Kyle Alley Dandelet Robert Brent Ferguson Brett Justin Abramson Michele Marie Betti Yasmin Paula Panganiban Lauren Alison Daniel Seth Andrew Fersko Kelechi Innocentia Anisha Bhasin Carlos Victoria Regina Danta Heather Leslie Filemyr Acholonu Avni Bhatia Joshua Richard Carrafa Andrew Michael Darcy Amanda Jill Finkelstein Laura Acker Sulman A. Bhatti Elissa Leah Carrick Brian William Darsow Alyse Patricia Fiori Satoshi Adachi Vincent Joseph Bianco Ann Marie Caruso Natasha Chitra Dasani Solmaz Fatemeh Firoz Kevin Lamarr Adams Abby Judith Biberman Benjamin Glickman Carver Kristina Marie Davey David Stewart Fisher Sergei Aden Benjamin Jason Bibler Christopher Cody Cass Meghan Beth Dawkins Kelly Danielle Fisher Ranee Adipat Evan Todd Bieber Ryan Joshua Casson Vanessa Laudith De La Stephen Mark Fisher Mary Patricia Adkins Reed Charles Bienvenu Jorge Martin Castillo Cruz Jonathan D. Fishner Jonathan Affleck Raymond Bilderbeck Ron Paul Cerreta Michael Jose De Matos Delvida Flaherty Naomi Melissa Ages Eugenia Birman Jiyoung Cha Michael Joseph Decker Kiersten Ann Fletcher Joshua Mark Agins Alexander Johannes Bittner- Won Byung Chai Evan Dolan Decresce Christopher Aaron Flood Stephen M. Ahron Rossmiller Emily Beth Chaloner Adam William Deitch Eric C. Flores Benjamin Stewart Akley Michael Blasie Tori T. Chami Leah Therese Del Percio Cassandra Maria Sonia Blair Ruth Albom Amanda Bloch Celine J. Chan Dana Marie Delger Florio Benjamin Todd Alden Meredith Marie Bloch Samuel Hoyt Charlton Katherine Diane Demamiel Megan K. Fluckiger Brad C. Allen Erin Christina Blondel Charlene Chen Jonathan Eric Dembling Joseph Colin Foley Allison Crystal Altmann Rebecca Charlotte Bloom Harmony Chen Evan Jay Denerstein Carl Forbes Jessica Alvarez Zahava Jessica Blumenthal Kristin K. Cheney Yunwei Deng Christopher Thomas Carolina Alvino Milad Boddoohi Athena Ngai Wan Cheng Mariya Deryugina Fortner Bruno Enrico Dalarossa Frederick Bodner Caroline H. Cheng Randy James Desmyter James Glynn Foster Amatuzzi Corrine Abraham Bolisay David Robert Cheverie Erika A. Detjen Stephen Christopher Fowler Amanda Kathleen Ambrose Michael Bond Jennifer Taylor Childs Paul Cornelius Devendorf Evan Joshua Fox Fariah Amin Brian Alan Bonser Abraham S. Cho Elizabeth Kathryn Devine Joshua S. Fox Ryan Bryne Anderson Scott Alexander Booth Janice J. Chung Eric Milton Diamond Kendall Yvonne Fox Charles Andrewscavage Willard Boothby Jeannie J. Chung Alexander Stewart Dickin Meghan Elizabeth Fox Joseph Antignani Joshua Philip Borden Peter Frederick Cifichiello Vivian Thuy Dinh Mindy Pamela Fox Gayle Joanna Argon Steven Joel Borenstein Linnea Patt Cipriano Minh-van Thi Do Alexandra Chloe Franco Ronit Arie William Bossin Stephanie Cirkovich Seth Logan Dobbs Jason Mac Neill Frank Chantelle Latoya Aris Isaac Botier Kelli Lee Clancy Thomas James Dobleman Sean Scott Frank Melissa J. 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Browne Christopher Michael Sara Elena Echenique Miriam Gedwiser Siobhan Elizabeth Beasley Alla Brukman Comiskey Joseph Carmine Edmonds Sofie Maria Frans Geeroms Sarah Jane Beckerman Ilya Alexander Bubel Nicole Renee Conner Daniel George Egers Suzanne Lynn Geller Kenneth Charles Beehler Brandon Kyal Buchanan Philip Andrew Cooke James Andrew Egerton- Lauren Britz Gerber Edith Beerdsen Jennifer Rachel Budoff Andrew Gridley Coombs vernon David Mendal Gest Neil Sheehan Begley Oded Burger James Maxwell Cooper Matthew Earl Eiben Cyrus Ali Ghavi Ashley Elizabeth Behan Susan Elizabeth Burkhardt Gina Marie Cora Marissa Kate Eisenberg Shauna Blaine Gibbons Henry Behnen Denise Jean Burnell Victoria Vance Corder Danielle Taryn Elias Kerry Ann Gillich Victoria Sophia Belyavsky Amanda Lynn Burns Joseph Christopher Costello Ashley Jolene Emerson Michele Lynn Gipp Sarah Victoria Bender Kevin Robert Burris Elena Coyle Jessica Marie Erickson Laura Alise Giuffrida Colin Matthew Bennett Mark Anthony Butler Jacob Michael Croke Jessica Margaret Evans Andrew R. 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NYSBA Journal | May 2011 | 47 Jeremy Kasile Goldberg Heather Weiner Hart Christopher Sean Kelly Alexander Julian Kotz Danielle Marie Leon Kim Bendersky Goldberg Thaddeus P. Hartmann Elizabeth Kelly Stephen Sacha Krasman Zachary Neal Lerner Matthew Lawrence Jordan D. Hecht Neil Peter Kelly Jared David Krick Noah Elijah Levenson Goldberg Jamie Michael Helf Alicia Kelman Katherine Leviton Anne Melanie Levin Blake G. Goldfarb Robert William Hellner Morgan Rucker Kennedy Kriegman Ilana Sarah Levin Jeffrey Goldfarb Alex Rein Henriques Thomas Conners Kessler Hsien Chih Kung Danielle Judith Levine Alice Rebecca Goldman Christopher Jude Henwood Bee-seon Keum Thomas Philip Kurland David Aron Levine Darren Mitchell Goldman Michael Randall Hickson Armen Khajetoorian Yan Kuznetsov Jared Alexander Levine Haley Blaire Goldman Jennifer Elizabeth Hill Donya Sarah Khalili Clair Bo Jung Kwon Aaron Jacob Levy Jennifer Alyse Goldman Kathryn Jordan Hines Sarah Khan Jeffrey Alan LaClair Megan Young Lew Joshua Seth Goldman Benjamin Krueger Hittman Elina Khasina Katharine Marie Ladd Frances Sarah Lewis Mark S. Goldstein Johnson Ho Lawrence Kho Amanda Elizabeth Laird Sara Jane Lewis Tina Marie Gonzalez Kathleen Chin-ing Ho Thomas Nill Kidera Jonathan Daniel Lamberti Gene Leyn Erin Schlaff Goodman Brittany Krystle Hoffman Marc Kieselstein Beth Alexandra Landes Jenny Shin-der Liang Rachel Elizabeth Goodman Linda Nicole Hoffman Courtney Jeanne Killelea Ashley Nicole Lane Michael Joseph Licare Sara Pousada Goodman Meredith Holt Adrian Hoon Kim Leslie Lang Andrew Browning Matthew Michael Gorden Samantha Hong Hye Sung Kim Maria Elena Lapetina Lichtenberg Arielle S. Gordon So Jeong Hong Jane Ji-yun Kim Songe Miles Laron Ariel Shaun Lichterman Matthew D. Gorman James Weston Hornbeck Julie Jamyung Kim Nicholas Jason Larson Benjamin Aaron Lilien Gregory Rasamny Gorra I-heng Hsu Justin I. Kim Philbert Anson Lau Shin Kwon Lim Adia Malik Linton Goss Mei Mei Hu Lisa H. Kim Veronica Faye Lau Jocelyn Lin Amy Elizabeth Gough Edward Weije Huang John Graham Kimble Jeanne Novelus Laurenceau Lawrence Lin Bianca Eva Gracanin Zhou Huang Erin C. Kinney Daniel Spivak Lavotshkin Abigail Helene Lipman Tiffany Dolores Graddick Zhuo Huang Adam Brandon Kinon Kevin M. Lawi Robert Graham Little Riley James Bennett William Zachary Hughes Scott Robert Kipnis Alexander Edward Agatha H. Liu Graebner Michael Ook Huh Katerina Kireyeva Lawrence Wei Liu Emily A. Graefe Christopher John Hunker Andrew David Klaber Robert Lazo Jennifer Elizabeth Long Ashley B. Graham Jean Youngna Hur Jamie Lynn Kleidman Jasmine Kamala Le Veaux Serena Mabel Longley Marcie Nicole Graham Jeffrey Stephen Hurd Eve Reingold Kleinerman Rebecca Ann Leaf Lisa Lynn Lopshire Natalie Lauren Grano Jill S. Hurley Andrew Steven Kleinfeld Ayelet Sara Lebovicz Marina Loshak Mayer Benjamin Grashin Cathy Hwang Stephanie Rachel Kline David Juneho Lee Darren Richard Luft Andrew Green Matthew Scott Hyner Jacob A. Kling Frederick Jay-min Lee Tracy Anne Lundquist David Gus Gribben Larae Nicole Idleman Elisia Klinka Jean Young Lee Daphne Weld Lyman Kevin Thomas Griffiths Yoshinari Ikiri Agatha Kluk Jeffrey Kwong Lee Garrett Eric Lynam Regina Christine Gromen Jason Scott Ingerman Scott Edward Koerner Karen S. Lee Allison Honorah Adam Simeon Gross Robert Harris Ingwer Brian G. Koffler Olivia Sul Ki Lee MacDonald Daniel Aaron Grossman Veronica Wai Yin Ip Raghav Kohli Sung Jin Lee Matthew James Macdonald Daniel Alan Grossman James Eric Ivester David Francis Kokell Yuri Lee Aaron Andrew Mace Steven Max Grossman Apprameya Iyengar Preethy Suresh Kolachalam Michael Timothy Leigh Melanie Anne Maclean Molly Kelly Grovak Marissa Annette Lydia Peter S. Kolevzon Katia Jamaica Leiselsen Nehal Madhani Jessica Lynn Guard Jackson Dawn Francine Konigsberg Naiara Regina Leite Da Kristen Meredith Madison Raimundo Javier Guerra Jared Robert Jamesson John E. Kosa Silva Daniel Scott Maland Neetin Gulati Jessica Ann Jansyn Devin Ajay Kothari Brandon Scott Leon Michael Mandelstam Erol Nazim Gulay Adam John Jantzi Andrea Gunadi Aakash Bharatkumar Seema Gupta Jariwala Arpita P. Gupte Monika Anna Jedrzejowska In Memoriam Rebecca Leah Guttman Slaven Jesic Thomas J. Byrne Stanley Schlesinger Dustin Francis Guzior Jie Jiang Yonkers, NY New York, NY Justin Harris Haan Emily Dawn Johnson Daniel Jake Haier Nicole Lynn Johnson Abraham C. Frydman Alan R. Schwartz Thomas Haley Daniel Sylvester Jones Scarsdale, NY New York, NY Brittlynn Margaret Hall Jeffrey Tate Jones Jo Ann Haller Jinyoung Joo S. Hazard Gillespie James W. Shea Dong Sung Ham Sarah Elizabeth Kaehler New York, NY Staten Island, NY Michael Coleman Hamilton Aruto Kagami Joseph K. Gormley David Sinclair Stoner Katherine Mary Hance Jared Ian Kagan New York, NY East Stroudsburg, PA Tanya Marie Hanna Chimnomnso Nkachu Kalu Bradley Hansen Ryan Patrick Kane Richard C. Marcus Carol Eve Weir Elias Leonid Hantula Jong H. Kang Buffalo, NY Chatham, NY Jeffrey Craig Kanof Jeffrey David Hardy Howard G. Meyers Russell Zuckerman Allison Lyn Harms Akash Mahesh Kanojia New York, NY Fort Myers, FL Jacqueline Dorothy Corey Daniel Kaplan Harrington Jessica Kasman Thomas M. Mueller Victor Zuckerman Peter J. Harrington Erin Julia Katzen New York, NY Albany, NY Daniel Peter Assumpcao Arielle Lynn Katzman Amado Arnaldo Pereira-Santiago Harris Jennifer Beth Kay Jonathan Fox Harris Ian C. Keefe Ponce, Puerto Rico

48 | May 2011 | NYSBA Journal Kyle Gade Manson Amanda Marie Morgano W. Catesby Perrin Sarah Nan Rosen Joshua Moak Siegel Xueliang Mao Brian Robert Morgenstern Walter Catesby Perrin Beth Fara Rosenberg Adekunbi Ayinke Sijuwade Beth Lisa Margolis Joshua Louis Morgenstern Crystal Gail Persaud Maurice Israel Rosenberg Steven Mark Silverberg Margaret Rose Markman Marc Alfred Morgenthau Damian Lawrence Peterson Michael Rosenblum Joshua L. Simmons Sara Kathleen Marois Susan Elizabeth Moser Danielle Petnilli Michael Jacob Roth Britt Elizabeth Simpson Jack Mackinnon Marsh Lauren Tova Motamedinia Peter Petraro Tamara Ariele Rubb Shira Rachel Siskind Anne Elizabeth Martin John Joseph Mottola Danielle Patricia Petrilli Basha Frost Rubin Christian Egil Sjulsen Christopher Bradley Martin Theodore Alfred Mottola Karla Shaniece Pettaway Jennifer Ashley Rubnitz Steven Thomas Skelley Jeffrey Thomas Martin Victor Costa Moura Anthony Foster Pirraglia Stacey Ruiz Jeffrey Slatus Ivana Martins Ekaterina Mouratova Cristine Ferris Pirro Stacey Patricia Ruiz Elina Slavin Autumn Lynn Marton Michelle Rene Mufich Matthias Maximilian Benjamin Charles Ryberg Elisabeth Collins Smee Vanda Cristina Massa-moniz Jennifer Dollar Murdoch Pitkowitz Pawel T. Sabaj Benjamin Allen Smiley Jason Alexander Massello Jackson Nathaniel Hulme Kenna Piela Plangemann Jonathan M. Sabin Rebecca Flynn Smith Yoshihiko Matake Murley Casey James Plant David Alvarez Sadder Michael Benjamin Kristen Liana Maule Dillon James Anderson Rosanna Sarah Platzer Brent Neil Saldana Snodgrass Andrea Marie Mauro Murphy Alexander Jouke Ploegsma Laura Elizabeth Salvatori Christopher Mark Henry Caroline Maxwell Michael John Esker Nacchio Todd Isaac Pollock Peter Thomas Salzler Snow Rita Kathleen Maxwell Jessica Eve Nachman Lara Elizabeth Pomerantz Suzanne Afaf Sam David Elliot Sobel Jenny Dorothea May Toshiyuki Nakai Michelle Lynn Pomerantz Erin Margaret Satterthwaite Sarine Soghom Amanda Beth Mayer Balaji Lakshmi Narain Nicole Love Popov Oscar Timothy Saunders Brian Raymon Sogol Jerome Philippe Mayer- Lindsay C. Nash Jason Joseph Porta Leah Elizabeth Saxtein Daniel Barry Solomon Cantu Emily Judith Nassberg Christopher Lewis Potter Heather Hadar Sayfan Crossby Andrew Sommers Nicole Maria Mazanitis Leigh Mager Nathanson Vincent Pozzuto Heather Hadar Sayfran Changsheng Song Katrina Elizabeth McCann Scott Neil Naturman Amrita Maria Prabhu Gregory Shepherd Scally Alfred Curtis Soriano Katherine Ann McCord Matus P. Navrat Maya Prakash David Michael Schechter Danielle Ann Spallino Peter Michael McCormack Justin Michael Neidig Michael William Price Cheryl Ann Scher Suzanne Amy Spencer Caitlin McCusker Jeremy Michael Neil Daniel Priest Marc Brett Schlesinger Alana Chantel St. Aude Aubrey Hoover McEachern Daniel Aaron Nemet-nejat Edward Laszlo Prokop Jessica Schneider Shane St. Hill Katherine Ann McGavin Alicia Tess Newman Lesley Robyn Pruzansky Pamela Lauren Schoenberg Noreen M. Stackhouse Elizabeth Ellen McGinn Luna Ngan Alexander Bryd Punger Joshua Richard Schonauer Kate Frank Stamell Sean Logan McGrane Esther Ann Nguonly Dan Qiao Jeremy Adam Schonfeld Sharon Ruth Stanley Donald Mitchell McGraw Kenneth Brian Nicholds Riadh Quadir Zachary Gische Schurkman Lindsay Kathryn Stauss Christopher Cottam Cheryl Beth Nieman Daniel David Queen Brandon Allen Schwartz Andrea Steeves McGuire Takafumi Nihei Emily Perks Quinlan Joseph J. Schwartz David Benjamin Steinbruck John Thomas McKee Catherine Deguerin Norris Rebecca Lynn Rabenstein Dana Rachel Sckolnick Ezra Blaine Sternstein Sarah Robinson McLemore Katerina Mechl Novak Robert Ira Rabinowitz David A. Scott Christiana Elizabeth Fisher Erin Elizabeth McLeod Brendan Daniel O’Brien Agata Krystyna Ratajczyk Ian E. Scott Stevenson Janette A. McMahan Jennifer O’Connor Jennifer Alicia Ratcliff Katherine Penn Scully Joshua Samuel Stillman Daniel Francis McMonagle Emily Elizabeth O’Hern Anar Kamal Rathod Abram Louis Wenger Chase Bachrach Strangio Edward E. McNally Kerry Elizabeth Shizue Joshua David Ratner Seaman Martin Strauch John Vincent McNulty O’Neill Anurima Sonu Ray Danielle Cohen Segal Ariele T. Strauss Timothy Albert McNutt Jeong Mee Oh Alexander Rayskin Jennifer Nicole Self Jonathan Brook Stroble David Han Medlar Jonathan Ohring Dean Razavi Patrick Wayne Selinger George Austin Stroup Amar Atul Mehta Saliha Olgun Dean Nezam Razavi Erika Vanessa Selli Emma Rose Stuhlmann Jingqiu Mei Jeffrey Louis Olshansky Alicia Marie Reed Jessica Caridad Serrano Graham Justin Sugarman Paolo Chagas Meireles John Anthony Oppermann Jaimee Leigh Reid Valerie A. Seve Aaron David Suh Brian Joseph Meli Jaime B. Orloff Joseph Philip Reiss Marshall Paul Shaffer Annica Paula Margareta Aaron Scott Mendelsohn Miles Douglas Orton Laura E. Remick Jeffrey Naren Shah Sunner Maria C. Menghini Benjamin Ross Osborn Ryan Patrick Rentmeester Robin Shah Pamela L. Surak Jonathan Thomas Menitove Corinne Marie Osborn Mary Terrell Reynolds Aileen Shao Peter Joseph Surdel Lauren Michele Merrell Alexander Lee Owen Wook Jin Rha William David Shapiro Ryan Scott Suser Anna Michnik Allison Sara Owen Anita Sue Rho Ali Shariatmadari Preethi Swamy Jeffrey Mikel Jason Lee Paget Elizabeth Anne Rich David P. Sharrow Sumana Swamy Margot Ann Miller Christopher Lee Palladino Nicholas Savva Richard Abraham Wei-shun Shaw Matthew Michael Sweeney Kira Lynn Mineroff Laura Palmer Neal David Richards Kyle Patrick Sheahen Miles Jacob Sweet Carlo Filippo Mirisola Di Richard Kwezen Pan Megan Elizabeth Ridley- Elizabeth Irene Sheetz Afrene Naaz Syed Torresanto Youngwook Park kaye Aaron Phillip Sheklin Emily Erin Sysak Courtney Therese Mitchell Janice Chandrakala Parmar Dianne Soomee Rim Patrick Donohue Sheridan Thomas Szivos Ivan Nikolov Mitev Christine Michelle Parry Rachael Lynn Ringer Jesse Daniel Hannon Alan Joseph Tabak Jason B. Mollick Michael Baker Pass Benjamin M. Riskin Sherrett Michael Talassazan Thomas Monahan Rakhi Indravadan Patel Mark Edward Rizik Hadas Shiachy Sandra Beth Talbott Thomas McKee Monahan Michelle Scholastica Paul Elizabeth L. Roble Serafina Shishkova Joyce Wing Yan Tam Paul James Monsanto Sheena Paul Megan Elizabeth Rockwell Joshua Bernard Shoenfeld Hajime Taniuchi Brittany Jhane Moore Benjamin Keith Peacock Christine Marie Rodriguez Daniel Eric Shulak David Michael Tarnowski Kate Taylor Moore Brandon Michael Peene Jennifer Virginia Rogers Joshua David Sibble Sok Tieng Tea Timothy George Moore Julian B. Perez Jeanne Wilms Roig-irwn Kamal Sidhu Neil Ira Teller Randol Didier Mora Myrna Perez Akiva M. Romanoff Jacklyn Meredith Siegel Stephen Christopher Laura Theresa Moran Rebecca Elizabeth Perkins Bruce James Rose-innes Jared Solomon Siegel Tempesta

NYSBA Journal | May 2011 | 49 Stephanie Ann Teplin Daniel Chu West SECOND DISTRICT Inessa Spevakova Anne Theresa Redcross Ashish Pradip Thaker Jill Sable Wexler Bolanle Akinrimisi Jamie L. Stroud Daniel J. Rosenthal Raghav K. Thapar Stephen David Weyer Elaine Albenda Robert Louis Thony Aaron M. Schue Ronald Lee Thomas Maura Leigh Whelan Lee D. Apotheker Oliver Roderick Tobias Melinda Bea Seiden Emma Erika Tiainen Mia Marie White Maria Aragona Tim Volkheimer Brian B. Selchick Scott James Tiedke Jeanne Price Whitehead Andrew Banks Jody L. Walker Amanda Sherman Jena Leigh Tiernan Kaylin Luccresa Craig Anthony Bresciani Emily Gail Warner Jennie Shufelt Robert Douglas Tilley Whittingham Matthew Lee Brod Yaakov S. Weisner Joseph Slater Octavian Stefan Timaru Noam Wiener Matthew Alexander Brown Laurie Eileen Wheelock Scott Toth Robert Todd John Christopher Wildt Michael Leroy Brown Harris R. Wiener Edward Howard Townsend Colleen Brooks Tompkins Marissa Bernice Wiley Victoria Marie Cantrella Emilie Frances Williams Lauren Kay Van Buren Jessica Amy Tong Todd Scripps Wilkinson Inna Chumikova Mahogany Daafine Dilay Melek Watson David Maurice Tortell Sherry Ashraf William Tabitha June Crosier Williams Robin Lee Wheeler Chantal Corien Tortoroli Jo-na Alexander Williams Philip James Duncan Peter Hirst Wiltenburg Alexander Moore Wilson Megan Patricia Tosner Robert Allen Williams Lauren Beth Edelman Joseph Wohlgemuth Andrew Bridger Wilson Jack Michael Tracy Samantha Williams Jacob C. Elbogen Ezra Elliot Zonana FOUR DISTRICT Amy Elizabeth Tremonti Allison Michele Wilson Erica Whitney THIRD DISTRICT Luke John Babbie Christie Miyoko Trenholme Brieana Michele Winn Fernstermacher Angela Elizabeth Arnold Seamus John Barron Richard Walker Trotter Benjamin Charles Wolf La-toya Krystal Franklyn Marie Aveni Michele Ann Bowen Jonathan Paul Truppman Andrew Chan Wolinsky Ian Keith Friedman Brendan Bannigan Heather Brondi Shingo Tsuchida Caroline Vazquez Wolkoff Martha Upton Fulford Gregory Stewart Berck Christopher Robert Burke Robert Mossman Tucker Andrew Zachary Wolstan Kathleen A. Gallagher Michael P. Bersak Darlene Eng Oliver Paul Tuholske Cameron D. Wood Benjamin G. Goldstein Andrew Larry Beyda Jesse Harper Luke Richardson Tullberg Eric Joseph Wood Leah Goodridge Judith Anne Blackwell Gregory Hoffman James R. Tyminski Sara Margaret Wood Mary J. Goodwin Benjamin Bodner Stephanie Hughes Lisa Marie Dirocco Tyner Megan Maureene Shannon Leigh Heery Michael Manley Bookser Rebecca Kannan Megan Elizabeth Uhle Woodhouse Sonam Henderson Lori Bovee Bryan Liam Kennelly Andrew John Ungberg Kathryn Alice Worthington Kinshasa K. Hillery Jennifer Joy Brimley Renee L. Litz Sonia Uppal Christopher Gerard Philip Richard Hirschfeld Jennifer Marie Champagne Daniel Patrick Maloy Christopher Valis Wosleger John Nathaniel Holt Ali Asghar Chaudhry Anthony Morelli Rodrigo Nicolas Valle Kathleen E. Wright Howah Hung Sara Cirba Melissa Renee Pageau William Christopher Van Alexander Wu Matthew Sean Ingles Mikael Ari Cohn Nikki C. Pappas Esveld Benjamin Wu Katie Nicole Jay Daniel Kleinsmith Meredith Lynn Perry Lorin Romain Gritte Van Jingjin Wu Alison Jenik Delbridge Jennifer Lynn Sacco Nuland Shunit Yaacobi Hari Nathan Kalyan Lauren Deluca William Whelly Katherine Marie Vara Mayumi Yamaguchi Richard Kurdziel Marwa E. Elbially Nathanial Charles White Masato Yamanaka Rachel E. Lappin Eric J. Vardi Jamie Feldman Jason Yampolsky Matthew J. Laroche FIFTH DISTRICT Gary Anthony Varnavides Marisa Franchini Yuni Yan Michael Scott Liben Bryan T. Arnault Paula Nicole Viola Jonathan David Gillerman Heding Yang Michael Lousteau Susan C. Azzarelli Michael Roy Vondriska Daniel J. Gregware Robert Chiu-haw Yang Leah Marie Martin Zack Everett Baisley Scott Charles Wagner Sarah Katherine Hansen Anush Yegyazarian Colin Thomas McLaughlin Justin Frederick Brotherton Kathleen Ann Walker Danielle Eileen Holley Lisa Marie Yemm Matthew George Miller Eva Marie Burger Emily Sara Wall Lauren Anne Holupko Ellen T. Yiadom Sarah Allison Mitchell Mark George Burgreen Jane Yujie Wang Samantha Howell Vassiliki Yiannoulis Rebecca Lynn Molln Christopher C. Canada Richard Lee Wang Jonathan Kerr Xiaoyao Yin Melissa L. Morris Chelsea Lynn Cerio Zheng Wang Andrew Mark King Adam Lowell Yokell Leslie Arin Nadelman Elizabeth Marie Cesari Melissa Mary Wangenheim Amanda Kateri Kuryluk Amanda Koeun Yoon Judah Marley Nathanson Anthony W. Chau Renee Denise Ward Sita Legac Bohee Yoon Adrian G. Neil Daniel Charles Cummings Michael Douglas Warner Kate Teresa Loughney Danica Sophia You Alina Novikova Erica D’orazio Marisa Hayle Warren Maja Lukic Wenting Yu Mathew Orlando Alix Demartino Mark Dennis Wasco Brian Murray Lusignan Qi Yue Jill Pamela Ormandy David R. Duflo Emily Jane Wasserman Gregor N. Macmillan Michael Benjamin Zand Andrew Robert Pfau Brian Mark Dunn Benjamin Charles Wastler Sara Kathryn Mase Mari Katherine Zang Andrey I. Plaksin Lucien Alton Elliott Sarah Matlack Wastler Matthew Douglas Mattice Tatiana Rose Zebrowski Samuel E. Proctor Gregory D. Eriksen Daniel Watkins Ken McCauley Boris Zeldin Leah Rabinowitz Zachary Daniel Forward Daniel Patrick Watkins Brittnay Marie McMahon Diane Moyu Zhang Maria Consuela Regina Michael James Gilbert Marc Weber Stephanie J. Myers Mei Zhang Reiss Kevin Andrew Grossman Marc Michel Weber Leila Naghibi Yiqun Zhang Daniel Roger Roediger Daniel Nathan Guisbond Rebecca Susan Weber Catherine A. Neuhauser Huan Zheng Jennifer A. Sayad Benjamin Nathan Hatfield Sarah Katherine Weber Amy Rose Ottaviano Weiwei Zhu Prabhjot Kaur Sekhon Tyler Thomas Hendry Robert Kern Weinberger Lynne Papazian David Adam Ziegler Rena Angeli Seth Andrew S. Horsfall Alison H. Weinstein Michael Joseph Pape Matthew C. R. Ziegler Inessa Shalevich Brian Thomas Hughes Alisa Ann Wellek Alex Paradiso Ali Grace Zieglowsky Tara Ann Sher Louis Jim Andrew Samuel Wellin Joshua Pennel Jason Alec Zimmerman Lee Redfearn Shubert Jon R. Kammerzelt Adam Mitchell Wells Diego Salim Perez Maragarita Zippin Regina Shulimovich Melissa Anne Krause Kenya Le Vaar Wells Miles Hampson Plant Lauren Brooke Zuffante Zahra Alexis Smith Anne Loretta Lafez Melissa E. Wengroff Michael Prisco David Reuben Zylberberg Tristan Snell Kristin Lagonegro Aaron Benjamin Wernick Sebastian Patrick Przbyla

50 | May 2011 | NYSBA Journal Kristin Marie Lagonegro Amanda Leigh Connors Pasquale Vincent Linda J. Lovell Thomas Joseph Akacki Daniel Paul Laraby Jeremy A. Cooney Bochiechio Catherine Irene Lynch Alana Renee Bartley Nicholas Domnik Mangold Claudia Ann Culbertson Denise Mary Brown Kyle William Mack Gregory Dane Basso Nina T. Marano Bianca Stella D’Angelo Elizabeth Anne Bruce Elise Laura Malinowski Kevin M. Bush Natalie Elizabeth Matychak Brian James Demott Emma Louisa Buckthal Katherine Veith Markel Jose Orlando Castaneda Mary Miner Sanjeev Devabhakthuni Shannon Kimberly Buffum James Marra Zoragina Castillo Nicholas Ryan Moore Carey Elizabeth Dever Brendan Shawn Byrne Rachel Katharine Marrero Michael Vincent Colvin Brett Steven Noonan Sean Christopher Eldridge Joseph Calimeri Mollie Catherine McGorry Jenna M. Comizio Shannon T. O’Connor Jayme Lynn Feldman Tomas James Callocchia Charles Benjamin McLaud Amy M. Coughenour Courtny John Osterling Andrew David Fiske Kevin Daniel Canali Jenelle Faso Messer Ann Donan Davidson Lawson S. Parker Mark Andrew Foti Vera Cedano Gregory Martin Michalek Shayna Bakulesh Desai Nicholas A. Passalacqua Timothy E. Fox Randolph Vincent Clower Sarah N. Miller David L. Dick Thomas John Paul Patrick Michael Gallagher Emily Mae Cobb Kathleen Gard Moriarty Daniella Lichtman Esses Annaleigh E. Porter Paul Gelbard Erin Lynn Cody Richard Scott Mullen William Fowlkes Darius I. Ravangard Taren Greenidge Caitlin Marie Connelly Jessica Nichole Mussell Tiffany E. Gallo Jane Francine Raven Peter J. Gregory Nola R. Cornett John C. Nelson Brenda Danielle Giuliano Elisha Rachel Rudolph Rebecca Ellen Hatch James B. Cousins Eric Richard Netzloff Jonathan Gordon Nicole Alicia Sabasowitz Christopher William Jeffrey Carl Crocker Heather Neu Amanda Bryn Haberman Kurt David Schultz Helming Kathryn Grace D’Angelo Jeffrey B. Novak Caitlin Moran Hayes Chelsea L. Selby Colleen Danielle Holland Daniel D. Day Peter Charles Obersheimer Matthew Charles Heerde Honora Kelly Spillane Alisa Burns Hoy Adam Patrick Deisinger Crystal-lyn Joy Orta Matthew Kidd Christopher M. Stringham Anthony Joseph Iacchetta Joseph Edward Demarco David Richard Panepinto Ryanne Guy Konan Elizabeth Anne Urciuoli John David Kelley Amanda Faith Dermott Ryan Kenneth Parisi Michael Edward Kremen Heather Alene Deforest Adam Ahmad Khalil Kathleen Fitzgerald Dolan Neil Anthony Pawlowski Todd Paul Kulkin Vincent Wende Janine Knapp Trevor Paul Duffy Matthew K. Pelkey Grace Lee Jonathan Nelson Ward Rachel Anne Krone Kelly R. Dunn Jenna Louise Piasecki Todd Evan Lerner Joshua S. Werbeck Stephanie Octavie Thomas Robert Elliot Steven Paul Przybyla Kalin Marie Light Derek Sean Wild Lamarque Kristin Farrell Kevin Michael Quinn Karen Kaplen Lutt Leah Ann Witmer Colleen Terese Loughran John J. Fenz Jason Nicolas Racki Rachael Mac Donald Stephen Ray Yoder Meagan Mahar Jeffrey T. Fiut Joshua Israel Ramos Monroe Y. Mann Jennifer Kathleen Meldrum C. Kenneth Foit Joshua N. Reiner Allison Jill Marden SIXTH DISTRICT Patricia A. Mellon John Robert Ford Jeremy Lynn Richards Sean Kevin Monahan Tarek Abdel-aleem Vincent M. Miranda Stuart Patric Frame Fernando Carlos Rivera- Antonette Marie Naclerio Nathan William George Aaron Isaiah Mullen Jay William Frantz Maissonet Meghan O’Donnell Berti Sarah Newcomb Jaime Nicole Gard Jennifer Lynn Rizzo Audrey Jean Parma Michael R. Capone Sarah Ann Pellerin Keith William Gaylord Anthony Michael Rossi Michael Bernard Pierorazio Delton F. Caraway Megan P. Peter Brendan James Gilbert Nicholas Michael Rossi Dean Anthony Pinto Brandon Robert Cotter Maureen N. Polen Nicole Brianne Godfrey Lissette M. Ruotolo Makenna Erin Porch Shane Eaton Randi Nicole Proukou Robert P. Goodwin Rebecca Elizabeth Sarles Maria Ines Raij Matthew Steven Erie Nicholas John Reeder David Michael Gottfried Ashley Violet Schaub Stephen J. Repsher Sabrina Germain Dominic J. Ricci James Saverio Halt Kristen Leigh Schaub Elimelech Rosenbluh Adam Hatch James Lawrence Riotto Lindsay Virginia Heckler Richard Mark Scherer Jason S. Saad Jared Alexander Johnson Mallorie C. Rulison Joseph Pauly Heins Amanda C. Schieber Melissa A. Scappatura Max Lafer Meghan J. Schubmehl Christopher J. Heller Vanessa C. Schmidt Derek Scott Selby Anne L. Lafex Bernard Francis Sheehan Denise Amanda Herman Daniel J. Schuller Bora Seo Stephanie Marie Milks Josie M. Sheppard Nicholas James Hoffman Tara L. Short Noah Schotten Sexton Bradley John Moses Garen Jessica Sinden Rebecca Cronan Hoffman David James Simoni Michelle Marie Sherger Michael Edward Nyre Andrew Thomas Spong Ryan O’Donnell Holbrook Patrick J. Slagle Jeremy Stern William J. Porta Kara Elizabeth Stoddart Elizabeth A. Holmes Lee M. Sobieski Tiombe Patrina Tallie David Spector Jennifer Mary Thompson Michael Randolph Sheela Srinivasan Elizabeth Anne Tomlin Zachary Thomas Wentworth Sunny I. Tice Hungerford Andrew James Stimson Michelle Lynn Trier SEVENTH DISTRICT Kenneth Tyler Michael James Ingham Yimell Marie Suarez Abreu Nina Mahesh Varindani Jordan C. Alaimo Gregory David Verdibello Ramon Irizarry Lauren Emily Swartz Alejandro Vera Matthew Thomas Austin Connie O. Walker Jonathan Wayne Jacobs Charles Robert Van Ee Megan Cecile Wagner Vineeta Sinha Baronos Jack Wessel Adam Phillip Jason Eric James Vogan Patricia Carol Wik Erika R. Britt David J. Wilks Rachel Elizabeth Jones Jordan L. Walbesser Michael J. Williamson Shane E. Brooks Brenda Michelle Williamson Nathanael C. Kapperman Rebecca J. Wanat Eva Zajkowski Alexander Morris Budd Stacy Mara-beth Katz Cory John Weber Nicole Marie Zippilli EIGHTH DISTRICT John Christopher Busby Seth Alexander Kelley Michael T. Welsh Dina Lynn Allen TENTH DISTRICT Christine Katherine Andrew Joseph Carrie Lee Weremblewski Brian Joseph Alterio Salvatore V. Agosto Callanan Kowalewski Ashley R. Westbrook Heather J. Anderson Elizabeth L. Anderson Amanda J. Carden Daniel Patrick Kukulka Anne Marie Wheeler Richard Ernest Anstey Tzvi Eliezer Ausubel T Barry Carrigan Christopher R. LaFever Michael C. Wild Gevork Arutunian Ian Alexander Axelrod Thomas Barry Carrigan Thomas J. Lang William John Winspear Matthew S. Baczkowski Tiffany Lamona Ballard Patrick Thomas Pamela Sue Lanich Scott D. Woodruff Melanie Jane Beardsley David Alex Bamdad Chamberlain Ashley E. Lewis Andrew William Wright Craig Kiley Beideman Matthew David Barocas Robert William Clark Katherine Liebner Christopher Berardi NINTH DISTRICT Jason Max Barrer Gregory Joseph Colavecchia Daniel Joseph Ligman

NYSBA Journal | May 2011 | 51 Matthew F. Bates Andrea R. Maimone Evan Joshua Gotlob Stephen Michael Knoepfler Christopher E. Angell Nicole Alexandra Behar Sharon Lisa Markowitz Gillian Jaye Halpern Sylvie Jill Levine David G. Angerbauer Roseanne Patricia Beovich Jordan Alexander Meisner Andrew L. Howlett Diana J. Lewis Michael H. Ansell Kellyn Elyse Bergstrand Jonathan C. Messina Steven C. Hsu Masateru Marubashi Michael Aphibal Christopher Adam Bianco Marissa Anne Meyer Edward James Hynes Benjamin Joseph Marzolf Julianne Matis David Bloom Carlos Eduardo Montilla Meng Ji David E. McCune Apostolopoulos Benjamin Robert Blum Brenda Ninoska Morales Jingli Jiang Ana Isabel Munoz Laura Elizabeth Appleby Richard Alden Brodt Jacqueline Marie Muratore Yoorok Jung Katherine Ann Murdock Koji Araki Christopher Patrick Byrnes Graham T. Musynske Melissa Anne Kelly Ronald N. Nfor Laila Arand Vincent Andrew Candurra Adam Keith Pallack Dustin Marc Konigsberg Abigail Onyinyechi Catalina Arango John Peter Cestaro Laura J. Parker David Kuznia Nwaohuocha Rachel Beth Arroyo Jennifer Chandler Anthony D. Pegion Salvatore Leonardo Laurita Michelle Laura Parris Tonbofa Eva Ashimi Joseph M. Charchalis Michael Francis Pellegrini Joseph Lee Avni Praful Patel Albert Constantine Asphall Preet Kaur Chhabra Christopher Persad Qi Luo Elizabeth Ann Reingold Shari Lauren Astalos Joseph Leonard Ciaccio Nadia M. Pervez Wi Luo Carla Ida Rock Jahad Bassam Atieh John T. Conboy Fred B. Peters Peter Sung Ma Ariel Ruth Rothstein Sivan Atiram Cara Patricia Cronin Aneeba Rehman Robert J. Masters Alana Faye Rubenstein Jerald David August Matthew Peter Cueter Benjamin J. Rodkin Simeon Quiogue Mesina Rachel Sanjurjo Daniela Pulcini Aulie Stephanie L. Cunha Matthew Rozea Rene Myatt Elineth Sanz Ryan Patrick Avery Eric Lloyd Dantes Franca Sachs Kawon Oh Taylor J. Shann Vincent M. Avery Michelle Ann Dantuono Timothy William Salter Lin Pang Denise Lauren St. Just Wesley Avery Candice Loren Deaner Jenifer Ann Scarcella Fernando Andres Paredes Markus Sztejnberg Wesly Dunn Avery Bernadette Evangeline Julie Schaul Sarah Esther Park Eric Marc Valentin Seth M. Ayarza Tuthill Dein Todd Adam Schwartz Bradley Arthur Parker Renata Vizental Leila Babaeva Anthea Blaise Dexter- Joseph E. Scolavino Peter Paul Pavlou Naomi Michelle Weinstein Jung Hwan Bae Cooper Mark Terrence Scopinich Seni Popat Tiffany Lynn Wichman Daeyong Baek Jeffrey Ian Scott Alexis Nicol Ruginis Merritt Baer Joseph James Dipalma THIRTEENTH DISTRICT Melanie Shoshana Shurka Daniel Sanchez Merritt Rachel Baer Michelle Lynn Dipuma Borislav Chernyy Sharon Durst Simon Diana Gladys Santos Anya Baez Adam B. Dressler Phillip J. Colasanto Matthew Brian Simonds Joel Schmidt Julian Alexander Baez Alyssa Pamela Dunn Bryan Harris Feldman Steven Frederick Smith Nilay Shah Joon Kee Bahng Asha V. Edwards Yevgeniya Grinberg Tiffany C. Smith Peter Elliot Shapiro Raya Bakalov Maggie P. Emma Mary Ann Harvey Frederick Benjamin Soller Elizabeth Patricia Siegel Ava V. Baker Christina Jean Essopos Yan Katsnelson Leland Scott Solon Yaakov Singer Logan Lawson Baker Michael Farina Mary Alice McLaughlin Joshua Howard Stern Yi Song Nadir Bakhit Steven Charles Farkas Patrick Thomas Nelligan Jenna Mary Frances Suppon Sewnarine Desmond Jenny Paula Balestrini Mitchel Scott Feffer Asad Rizvi Jamie D. G. Svenson Sukhdeo Frank James Balsamello Ronald James Ferraro Oleg Rozdolsky James Tierney Leonid Talisman Rajesh Bandla Bradley Adam Fishman Mary Antoinette Salderelli Michael Arthur Toomey Dayna Tann Jongsik Bang Ashleigh Marie Garvey Alex Tovstolug Dionisios D. Georgatos Richard C. Toscani Ervin Taushani Deepti Bansal Melanie Anna Goldberg Christina Rose Totino Tuneria Racquel Taylor OUT OF STATE Rebecca Jane Barban Melissa Goldberg Margaret Mary Trainor Laura Ann Reges Valden Zeena Adil Abdul-Rahman Brandon Philip Barber Neal S. Greenfield Tuyet-Hanh Victoria Tran Judith L. Vaughan Britta Abeshaus Brendon Barr Kevin Griffiths Bernadette Tuthill Barbara Ann Vazquez Cecile Abramowicz Jonathan Peter Barra Jessica Marie Griswold Alex Umansky Monica Marie Villarreal Joseph Paul Adamczyk Michael Johnston Barry Emina Hadzic Michelle Lynn Walsh Matthew Wallace Joseph Adamson Nazanin Baseri Roy Ahron Hakimian Heather Willis Wine Linda Wang-Lee Michael Paul Addis Mehmet Basoglu Audley Harris Ebone L. Woods Tenzin Wangyal Daniel Hanan Adler Craig Steven Baumgarten Christopher Steven Henn Henry Yi Deborah Ellen Wassel Saadia Ahmad Bhatty Lauren Marie Bayer Matthew James Hereth Nan Zhang Joseph Thomas Welsh Steven Michael Ahrendt Webster Beary Qinyu Xiang Thomas Robert Ajamie Jennifer Ashley Bellikoff Evans Michael Hillen ELEVENTH DISTRICT Cheng Xing Chad Albert Tsipora Bengi David Henry Hoeppner Louis Mario Adimando Heekyong Yoon Hillary Marie Alberts Hans Martin Jorgen Sarah Anne Hogan Giyang An Jacob Albertson Bengtzen Jessica Brynn Hosenbold Alex G. Antzoulatos TWELFTH DISTRICT Nefertiti Johnson Alexander Lucas Bento Casey Richard Huffmire Abigail Hyeon Mee Adebunmi O. Adeseun Alexander George Sam Berger Taylor Denise James Beaudoin Erik James Aho Alexiades Ketevan Betaneli Christina Marie Takemoto Itria C. Benito Eric Patrick Bacaj Zhan Kengazyevich Preethi Bhashyam Kempner Daniel Buchinger Allison Yvette Brockington Alimbayev Jonathan Bialosky Christina Jin Kim Vincent Juan Camacho Catherine Rose Carbonaro Sarah Beth Allemohamad Alessandro Bianchi John R. Klein Ferdusi Chowdhury Matthew Joseph Connahan Kathryn Beth Allibone Sarah Michele Bienkowski Aruthur Thomas Kontaxis Thomas Charles Eck Justin Victor Daly Pierre- Olivier Ally Kelly Biringer Vladlen Kontorov Richard B. Epstein Jacquelyn Alena Dicicco Ainash Tuyakbaevna Stephen John Bishop Martha Lapsatis Cindy Espinosa Kathryn Kitt Dyer Alpeissova Stephen Patrick Blake Peter Alexander Laserna Michael Gerard Forlenza Ruben Dario Fernandez Jason Henry Alperstein Krystyna Marie Blakeslee Justin B. Lieberman Jason Adam Gang Wilton Rene Fernandez Avni Jayprakash Amin Pauline L. Blondet Christopher Michael Lynch Heidi Megan Gootnick Melissa A. Gonzalez Richard Amster Aydin Bonabi Morgan Healy Mackay Avraham Gorin Martha Jane Kashickey Brett Darren Anders Pierre Bonamy Erin Nicole Mackin Shayna Lynne Kessler

52 | May 2011 | NYSBA Journal Willard Sands Boothby Aimee Louise Comrie Izukanne Emeagwali Ross Jared Goldband Daniel Joseph Hickman Charles L. Brackbill Kevin Emmett Connolly Rebecca Lisa Emory Garth D. Goldberg Megan E. Hiorth Mitchell Bragg Albert Cooley Gloria Enge Benjamin Goldman Yasushi Hirai Elicia Estefania Bravo Adam Michael Cooper Margarita A. Essayan Michael Jacob Golub Jessica Leigh Hirsch Garcia Gregory Coordes Sundra Victoria Essien Andrew C. Gomez Jah-juin Ho Ashley E. Brickles Krysta Corinn Copeland Nicholas John Evanovich David Preston Gonzalez Brian Joseph Hoade John Paul Bringewatt Joseph William Cormier Brian James Ewart Joshua Ryan Goodbaum Adam Michael Hochroth Alan Brunker Megan E. Corrado Stephanie Anne Fajuri Katherine Elizabeth Christina Anne Hoefsmit Brian Daniel Buehler Casey Cosentino Tania Christine Faransso Goodman Steven Hoffman Michael A. Buffardi Daniel Grogan Costelloe Farah Christine Vinta Fard Jillian Grace Gordon Eric Hoffstein Meridel Jane Bulle-vu Peter Russell Cotter Olivia Trammell Farmer Yasuki Goto David Hoftiezer Sarah Hunter Burghart Carl Nicholas Cottone Lyndsey Caryn Farncombe Murray Gottheil Maureen P. Hogan Timothy Gerard Burroughs Fiona Elizabeth Cousland John Farrell Amy Gough Valarie Anne Hogan Jessica Denise Burt Denny Cowger Ryan Ward Federer Andrew Graeve Jacob Schall Holberg Michal Bussi Nicholas Craft Abigail Fee Joseph P. Graham Joanna Holguin Jeffrey Scott Cain Andrew Knight Crawford Benjamin Nathan Feit Jason Toby Green Masato Homma Andrea C. Cainafrani Ryan L. Currie Eli Aaron Feldman Robyn Sara Greene Jesse Tyler Horn Daniella Marie Calenzo Casey Alexander Cwynar Katherine Cotter Fennell Ariel Esther Greenstein Armando Ruben Horta Elaine Call Gerolamo Da Passano Lindsey Ferioli Marilu E. Gresens Andrew David Howse Kristine Marie Campanelli Yuki Daijo Ronald Andrew Ferrara Bhupinder Grewal Bryan John Hoynak Kendra Suzanne Canape Alexander Richard Daniels Elizabeth Mary Fialkowski Patrick Griffith Shaolong Huang Jennifer-Ann Cantwell Jon Asher Daniels Anthanette Michelle Fields David Zahler Gringer Hila Sima Huelsen Yang Cao Karl Thomas Dannenbaum Maxwell Morris Fine Scott Gripp Christopher Ray Huffaker Joseph Alan Capo Paul Danzinger Brian Clifton Finucane Florian Grisel Cynthia Mei Hwang Rhina Margarita Cardenal Rahil Darbar Eric Firkel Marybeth Grunstra Gue Chul Hwang Ryan Stephen Carlson Michael Stephen Darby Daniel Seth Fischler April Gu Woo Jin Hwang Danielle Christina Carmona Fulvio Donggaas Dawilan Laura Schlesinger Fisher Milosz Karol Gudzowski Victor Iacob Matthew Clayton Carroll Ayodele Omosefe Dayisi Cristin Gill Fitzgerald David Daoyuan Guo Ikuko Ikeda Brian Carter Steven De Eyre Peter Gerard Flynn Mercedes Altagracia Lindsey Ann Ingraham Michael Henry Casanover Piero De Mattia Peter Jonathan Fontaine Guzman Evelyn Chinedu Inya-agha Ernesto Cerimele Andrew Arthur De Mello Ellen Haberler Fontanella Kathleen M. Haber Mikhail Iokheles Rana Ceylan Diane Marie Degroat Michael D. Ford Haik Hacopian China Irwin Tasaya Chaichumporn Tatyana Delgado Danielle Lauren Fortier Kathryn Haertel Catherine Akiko Itaya Jad Chamseddine Jinting Deng Adrienne Elise Fowler Stephanie Renee Hager Steven T. Jackson Christopher Chang Liyun Deng Peter Daniel Fox Jung Chul Hah Rawdon James Won Kyung Chang Kurt Michael Denk Lisa-Ann Margaret Fraser Cecylia Karolina Hahn Amber Jean Ya-wen A. Chang Amha Habtemariam Derres Mariah Freark Shirin Hakimzadeh Kimberly Jeffers Peter Forster Chapman Virginia Desmoulin Claudia Frutos-Peterson Liana Mari Hall Sachiko Jensen Emily Chayoun Salim Dharssi Go Fujimoto Katherine Scheider Joanna Jeon Natalie M. Chedid Lawrence Edgar Diamond Hironori Fujita Hallahan Hao Jiang Rachel M. Chen Karen Dicke Eriko Fukoe Nancy Elizabeth Halpern Bin-A Jo Sylvia Yun-chu Chen Zachary Alan Dietert Masahide Fukuda Ashley Shea Ham Pong Kala Jodhan Yini Chen Matthew Michael Dimaggio Eric Fung Robert W. Hamburg Kirsten Katherine Johnson Lun Yin Cheng Kristen Nykoel Dinardo Yee Lick Eric Fung Sarah Hameed Meggan Grace Johnson Mark Chereshinsky Joseph Anthony Dipisa Michael Benjamin Fusco Jeffrey T. Hantson Shaina Rhondes Johnson Jia-Haw Justin Cheung Anna DiSalvo Paul George Galindo Brendan Patrick Harney Tyler Johnson Maurice Thomas Chevalier Marjan Foruzani Disler Daniel P. Gallagher Nicholas S. Harper Linda Johnston May K. Chiang Jenny Doege John Andrew Gallagher Mary Leeds Harpster Angela Anita Jones Minseo Choi Leonard Vincent Don Diego Mary Catherine Gamble Elissa Harrison Jessica Lee Jones Alexius Chong Roberta Mourão Donato Bijan Ganji Douglas Gourley Hart Keith Aaron Jones Rishad Ahmed Chowdhury Julie Brooke Dorfman Anya Garcia John Stanley Hart Devyani Kacker Panagiotis Demetrios Benjamin Emmanuel Dors Venkata Lakshmi Garimella Cristina Maria Moraes Aurelie Kahn Christakis Wilnick Dorval Ryan Stephan Gauthier Hartmann Nicholas Edward Kaiser Caitlin Teresa Christie Dennis Doyle Sarah Ann Geers Kathryn June Harvey Chitra Malini Anuradha Chudasama Joshua Druck Daniel Kleven Gelb Chie Hashimoto Kalyanaraman Joseph Michael Cianflone Andrew Dructor Alexandre Jonathan Gelblat Itaru Hatanaka Tomoko Kamikawa Andrea Chiara Cianfrani Philip Duncan Eleonora Gerasimchuk Miles Emerson Hawks John T. Kanazawa Sandra Clapaud James Coleman DuPont Andrea Louise Giannattasio Damion Kamiel Heersink Semi Kandil Kwesi Awenate Cobbina James Thomas Durkin Julius Henry Giarmarco Igor Helman Stephanie Kao Gregory John Cobucci Aisling Marie Dwyer Andres Gil Leo Thomas Hendges Melina Kapeliou Michael A. Coffino Erik J. Dykema Michael James Gilles Zachary E. Herlands Richard Edward Krista Ann Cohane Nikolai N. Dythtchenko Adam Lincoln Gilson Craig Matthew Herman Karczewski Corey M. Cohen Lauro Da Gama E Souza Arthur D. Giraux Christopher Thomas Hayato Katayama Deborah Cohen Jared Eber Andrea Lee Gittleman Hernandez John Katsigeorgis Robert Lee Doughton Colby Jason Matthew Ebert Eric Daniel Giuliano Reyna Paz Hernandez Eric Thomas Kaufmann Sarah Grace Coleman Matthew Edgar Erin Glavich Scott Herzog Gurjot Kaur Adam E. Collyer Hilary Dawn Edwards Adam D. Gold Trisha Hewes Elizabeth Gail Kavitz Aimee Comne Andrew Stuart Ellington David Stanley Gold Erika Penson Heyder Tina Athena Kaye

NYSBA Journal | May 2011 | 53 Lilit Kazangyan Jaehong Lee Jose Ricardo Bastos Martins Dahee Nam Tenica Holiday Peterfreund Yi-chia Ke Jocelyn Wang Lee Aaron Michael Marx Laura Napoli Jaclyn Ann Peterson Elisabeth Anne Keefer Joonil Kim Lee Jose Antonio Masini-Torres Zain Ali Naqvi Daniel John Petkovsek Benjamin Ernest Keep Jun Hee Lee Ben Massarsky Andrew Martin Nason Lanora C. Pettit Ian KeJe Kenneth Lap Ken Lee Michael Kyle Mastman Helen Naves Mildred N. Phillips Mia Leslie Kelley Kongjin Lee Cameron Scott Matheson David Nealy Lauren Burdette Pierson Oshra Kelley Michel Lee Ari Matusiak Seyed Sajjad Nematollahi Harry Joseph Pinto Matthew B. Kellogg Sang Wha Lee Whitney May Theodore Nathan Nemeroff Michael Joseph Piromalli Ashley Elizabeth Kelly SangWha Lee Joshua Phillip Mayer Anastasia Hayley Newell Irene Maria Pla Elizabeth Susan Kelly Victor Lee Daniel Richard McCallum Thy Chanh Nguyen Kerry Christine Planer Jessica Leigh Kennington Wing Sze Lee Caitlyn Walsh McCarthy Nicholas Niles Emily Ann Plocki David Anthony Kenny Yun Lee Kelly Marie McClure Daisuke Niwa Nicholas Poberezhsky Adam Khalil Nicole Marie Legere Mark McCrone Michael Noonan Nicholas Allan Poberezhsky Muhammad Kashif Khan Fabio Leonardi Andrew McCusker Timothy Daniel Norton Shivani Poddar Andrei Kharchanka Iris Leung Sabria Alexandra McElroy Benjamin David Novak Urbashi Poddar Lay Tong Khoo Sze Ning Leung Nicholas Myles McGrath Joseph Nullmeyer Alan Lee Poliner Angela Kim Scott Noah Levine Jeffrey John Mcilmail Rogan Patrick Nunn Friedrich Popp Bonnie Kim Nina Chian-ying Liao Aran Thomas McNerney Roman Nurpeissov Jolee Porter Connie Kim Theresa M. Liedlich Ravi S. Mehta Kelly Ann O’Brein Natalie Rachel Pous Daniel Chihoon Kim Christine G. Lin Michael Melmer Kelly Ann O’Connell Edwin Javier Prado Eugene Kim Chun-chi Lin Nancy Joan Mendoza Javier Philip Patrick O’Leary Nicole C. Prado Ji Young Kim Thomas Rounthwaite Cedrick Juan Francesco Nebojsa Obradovic Girish Kizhakonedath Jisang Kim Lipton Mendoza-Tolentino Sadettin Ocak Prasad Jungeun Jekkie Kim Michael Noah Litrownik Vincent Richard Merola Akiko Ogawa Stephen R. Pratt Moo Eon Kim Mike Litrownik Michell Mersey Aaron Peron Ogletree Jason Lee Pullman Soohye Kim Fang Liu Andrew Meyer Jin Woo Oh Omar Kamal Qudrat Sue Kim Kathleen Jean Liu Jean-Baptiste Meyrier Haruka Okihara Michael Omar Quelal Yunji Kim Xiao Jeff Liu Ameer Ali Mian Bertram Chukwudum Alexandre Philippe Caro Marie Kinsella Yingli Liu Laura Marie Eleanor Okpokwasili Quenouille Martina Kitzmueller Ayanna Yolanda London Michalak Maryanne Oiseomata Sheila Tan Quien Jaim Kivelevitz Ryan John Long Olivia Victoria Michalski Omorebokhae Natasha Rabinovich Ken Kiyota Sarah Catherine Long Andrej Micovic Mahalia Linda Herrera Hinda Rabkin Brian G. Klein Ashley Loveall Laetitia Aida Mikail Operario Jared Ragozine Douglas J. Klein Matthew John Loven Drew Benjamin Miller Emilia Cristina Ordolis Jacqueline Ramirez Jason Robert Klein Lorna Lowe Lisa Helene Miller Jose Luis Ortin Romero Rekha Rangachari Laura Kelly Klein Mengyu Lu Raja Shankar Mishra Magnus Oskarsson Isabelle Roxane Raquin Yevgenia Shtilman Kleiner Sean Christopher Lucas Nathaniel Samir Misri Hiroe Otake Jason Charles Ratigan Michael E. Klenov Lisa Lundsten Takashi Mizushima Chizu Otaki William John Raulerson Alice Pin-lan Ko Zhiqiang Luo Faisal Moghul Gomiluk John Otokwala Sachin R. Raval Theodore Joseph Kobus Jean J. Luyat Scott Moll Valeria G. Ozdinc Thomas George Rayfield Kathryn Kolodziej Lillian Abela Lwamugira Jackson Moller Joseph Pace Katherine Louise Record Matthew Robert Korn Evan Joseph Lyman Mari Calder Montague Palma Jean Paciocco Tatyana Redko Jonathan Krause Amy MacDonagh Raphaelle Elise Monty Sara Julia Packman Nathan Martin Rehn Rebecca Liane Krauss Naoya Maeda Nathaniel J.C. Moore Thais Enid Pagan David L. Reinman Maria Jean Krupicz Joseph Neil Magner Jeremy Ian Moorehouse Jessica L. Palmer Craig Matthew Reiser Andrew Russell Kruppa Kendra Elizabeth Low Ana Morales Ramos Costantino Panayides Eric David Reiser Jan Peter Kubicki-Mensz Magraw Joseph William Morales Aldo Panunzio Antonio Juan Reyes Chien-ting Kuo Rafal Hikmat Mahmood Jenna Amaot Moran Christina Parajon Christopher R. Riano Joi Kush Michael Karl-oscar Clarisse Marie Moreno Daniel Joonwn Park David Abraham Rich Soo-ryun Kwon Mahoney Machelle Laurise Morey Jae-hyun Park Johannes Christoph Richter Nicole Lancia Daniella Main Takako Mori Ji Min Park James Webb Ringo Erin Elizabeth Langley Daniel Michael Majtan Hiroko Morimoto Unjung Park Anne C. Riviere Joseph Emill Lanzot O’Neill Sumona Majumdar Taeko Morita Catharine McIntire Parnell Kristen Elizabeth Robison Kristin Ann Larosa Amanda Tiffany Jeffrey Morlend Jonathan Nicholas Passaro Allison Beth Rogers Lorinda Ivy Naa Akuye Maldonado Yoko Motoyanagi Ankur N. Patel Adam Romig Laryea Michael Malecz Yusuke Motoyanagi Karishma Patel Ella Josepha Rosenberg Laura Brigitte Lasota Rollyn Gueco Malig Jesenka Mrdjenovic Pooja R. Patel David Rosenthal Zachary Sadoff Launer Carl Lawrence Malm Elton Muci Andrew Bruce Patrick David L. Rosenthal William J. Leahy Adele Patricia Maloney Matthew Henry Mueller Whitney Elizabeth Patross Damian M. Rossettie Stephanie Louise Leary Thomas Ryan Jason Murguia Blondet Pauling Dena Michal Roth Danielle Rosalyn Leblang Reiko Manabe Jennifer Marie Murillo Marija Pecar Samantha Rothaus Byunghoon Lee Christopher Thomas Emily F. Murphy Joshua Paul Pellittieri Samantha Gail Rothaus Doo Hee Lee Marando Samuel Ari Mushell William Kenneth Pelosi Alexandre V. Rourk Eun Hye Lee Marne Marotta David Brent Myers Matteo Percontino Svetlana Rovenskaya Heeseung Lee Sean Michael Marotta Sarah Lynn Nadolny Sagrario Margaret Perez Tiffany Rowe Hyun J. Lee Jonathan Marshall Mamiko Nagai Selen S. Perker Elizabeth Rozin Il Ho Lee Jeffrey Martin Yumi Nagayama Jenna Marie Perkins Elizabeth J. Rozin Jae Hun Lee Philippe Martinet Yasmin Naghash Paul I. Perkins Aisling Claire Ruane

54 | May 2011 | NYSBA Journal Julie Bendix Rubenstein Kelly Ann Skopak Andrei Trifonov-Serbinov Rong Yang Laura Zabele Kevin Francis Rudolph Peter Matthew Slocum Andrei Dimitrov Trifonov- Yi Yang Andrew William Zacher Caitlin M. Russo Elon Benjamin Slutsky serbinov Wenting Yao Catherine H. Zack Kayleigh N. Russo Daniel B. Smith Alexander Tsiavos Jih-ching Yeh Latif Zaman Margaret Clare Churchill Bruno Boaventura Soares Bengi Tsipora Kevin Yeh Rima Zaman Ryan Miriam Song Yelena Tsvaygenbaum Rodion Konstantinovich Kelly Ann Zampino Rajeh Adnan Saadeh Wei Song Oliver Tuholske Yemelyanenko Amanda Nicole Zane Bryan Leland Patrick Priya Sood Elizabeth M. Tulis Michelle Elizabeth Yetter Wei Zhang Saalfeld Shalini Soopramanien Lydia Casso Tummel Alison Yewdell Lei Zhou Jennie L. Sacks Lindsay Michelle Sorin Ashley Lauren Turner Ellen Yiadom Xiruo Zhu Arthur Sadiq John Thomas Soron Liana Turrin Daisuke Yokoo Vikki Stacy Ziegler Sophie Beatrice Sahlin Daniel Sosna Jason David Tutrone Akihiko Yokota Samara C. Zimmerman Laura Salvatori Anastasia Sotiropoulou Grace Twesigye Michelle Heejung Yoo Ran Zioni Regina Sam Mariella Soussou Tal M. Unrad Tae-seok Yoo Difan Zou Michael Charles Sampson James McPherson Spanarkel Janesa Urbano Myron E. York Jaime Lauren Zuckerman Johanna Dessire Sanchez- Gregory David Speier Rebecca Marie Ornum Shuaiqi Yuan Acosta Andrew Aaron Spievack Valencia Shemika Erae Sanford Mia Whang Spiker Donald Victor Valenzano John Joseph Santoliquido Rebekah S. Spotts Julien Valliorgues Donald Ndive Sanyi Avi Justin Springer Mark C. Vannorman Jessica Maria Saraceno Jane Srivastava Steven E. Varela Katherine Stephanie Sauser Melissa Ann Stamkos Natalya Vasilchenko Jamie A. Schafer Bryan Andrew Stech Natalya K. Vasilchenko Foundation Memorials Joshua Scharff Anna-Philippa Steeger Tares William Vazquez Jody Erin Schechter Andrew Ross Stein Nils Willem Vernooij Jody Schecter Amie Louise Stepanovich Edward Andreas Vincent fitting and lasting tribute to Daniel Schloesser Paul Stephenson Shankar Viswanathan A a deceased lawyer can be made Daniel Christoph Victor Catherine Chiantella Stern Jeremy S. Vogel through a memor ial contribution to The Schloesser Nataliia Stetsenko Rupal Vora Daniel Eli Schlossberg Jacob Srsic Stoehr Ryan Waggoner New York Bar Foundation. This highly Kristen Elizabeth Schreib Alayna Michelle Stone Jordan Chad Walerstein appropriate and meaningful gesture on Joshua Stuart Schultz Ailbhe Storan Kelly Maureen Walsh the part of friends and associates will be Robert Parks Schuster Derrick Storms Gangqiao Wang Andrew Lawrence Charles W. Stotler Yanyan Wang felt and appreciated by the family of the Schwartz Daniel Gregory Straga Nikolaus Martin Othmar deceased. Daniel Schwei Hiroki Sugita Wank Zachary Scott Chris K. Suh Megan Haley Wantland Contributions may be made to The Michele Carmela Sebastiano Tatiana Olivia Sullivan Jacques Pierre Wantz Mourad Seghir Qijie Sun Rachel Leah Warach New York Bar Foundation, One Elk Kenichi Sekiguchi Matthew David Suntag Taylor Reid Ward Street, Albany, New York 12207, stating Claire Therese Sellers Emily Tisch Sussman Laura Wegner in whose memory it is made. An officer Sharmini Sharon Alexander Vladimir Alison Welcher Selvaratnam Sverdlov Elizabeth Ashley Wellington of the Foundation will notify the family Todd Michael Sermersheim Erik Frazon Swabb Andrew Joseph Welz that a contribution has been made and Natalie Ann Serock Eric William Swartz Nathan Freed Wessler by whom, although the amount of the Krupa A. Shah Thomas John Szivos David Douglas Whipple Muhammad Ilyas Shaikh Stefan Jan Szpajda Alexandre Wibaux contribution will not be specified. Holly Shannon Seizaburo Takeuchi Daniel Ernest Wilkens Meena Rani Sharma Kelly Elizabeth Tallinger Charles Joseph Wilkes All lawyers in whose name contri- Philip Shaw Kyoko Tanaka Natalie Lynn Williams butions are made will be listed in a Weili Justin Shaw Marina Tarasova Jennifer Alicia Wilson Mark Harold Shawhan Gary S. Tashjian Frank Windham Foundation Memorial Book main- Mikkel Deke Shearon Patrick Taurel Zachary David Winnick tained at the New York State Bar Center Siddharth B. Shenai Nao Terashima Valerie Victoria in Albany. In addition, the names of Thomas Patrick Sheridan Raghav Thapar Winterhalder Walid Khalil Shibbani Brett Steven Theisen Kathleen Witzke deceased members in whose memory Jacqueline Suzanne Shilling Christina Nicole Thoda Nora Elizabeth Wolf bequests or contributions in the sum of Tori Shinohara Monica C. Thompson Joshua Wolkoff $1,000 or more are made will be perma- Robert Shore Leigh Tinmouth Sidney Wong Nathaniel P. Short Derya Tokdemir Ronald Frederick Wright nently inscribed on a Neil Charles Shulman Meghan Virginia Tomlinson Michael Joseph Wrobel bronze plaque mount- Rebekah Elizabeth Sidhu Khoo Lay Tong Ryan Wynn ed in the Memorial Scott B. H. Silver Qi Tong Gregory Weicheng Xu Amit Simha Guillaume Gabriel Tormo Syed Iftekhar Yakub Hall facing the hand- Danielle Esprit Simmons Vassili M. Touline Koki Yamada some courtyard at the Rupangini Singh Rachel Eri Toyomura John Matthew Yandell Bar Center. Christian Gregory Sison Tuong-vi Tran Chen Yang Amy Skinner Viet Cong Tran Jung Hun Yang

NYSBA Journal | May 2011 | 55 THE LEGAL WRITER CONTINUED FROM PAGE 64 Logical paragraphs, sturdy sentences, • Don’t force your readers to and focused persuasion yield effective think. Don’t let readers work too willing to disassociate themselves from results. hard. Effective e-documents iden- the past and enter the modern age. Give your readers a clear and acces- tify each step of an argument and To help Luddite lawyers, the New sible organizational plan. Cognitive- explain assumptions. To facilitate York State Unified Court System Web process experts stress the importance the reader’s experience, e-writers site now has an e-filing manual and of “chunking” information together should “connect the dots” to a “Frequently Asked Questions” sec- and displaying it in coherent, “self- “make the logical structure intui- tion.31 contained” steps.36 This is because the tive.”43 New York’s e-filing system is easy human mind can “process only about • Make it simple. Avoid synonyms. to use. To take part, one must be a “reg- three to four chunks of information An argument that uses the same istered and authorized filing user,” at a time.”37 Chunking also allows for words for the same things is a title granted after completing and white space on the page, allowing the easier to follow. Less is more in submitting an online form.32 Following reader to focus on the text and giving e-documents. Satisfy readers. initial registration, licensed New York the human eye time to relax before Writers will meet their readers’ moving to the next topic. Don’t bore expectations by following stan- readers with non-essentials. Use a con- dard writing formulas, relying on Your e-document will cise and direct style, with short para- normal capitalization, and struc- be judged by how well graphs, to accommodate the limits of a turing rudimentary sentences.44 computer screen; label the topics with • Use white space. Online readers readers understand you. headings and subheadings.38 need breaks. Writers should pro- Consider whether the document can vide ample white, or blank, space lawyers gain an identification name, be read in an online environment. Some throughout their document. Space password, and access to e-filing in judges will print your materials. Most gives the brain and eyes a much- every court participating in the sys- will read them on their computers. needed rest. This can be achieved tem.33 For service of interlocutory doc- Screen readers quickly lose concen- through wide margins, indenting, uments, users must provide a primary tration and focus. Accommodate your and space between paragraphs.45 e-mail address where documents may readers by ensuring your e-documents • Put the most important content be served; the e-mail address may be are usable — meaning easy to read.39 in the top left of the page. Online the party’s e-mail address or the attor- Seven usability tools apply to e-doc- readers’ eyes gravitate toward the ney’s e-mail address if the party is rep- uments:40 top left of the page.46 According resented.34 Documents may be filed on • Enable skimming. Accommodate to eye-tracking studies, screen the NYSCEF Web site day or night.35 impatient and busy online read- readers process information in Taking into account this trend ers by helping them skim through an F-shaped pattern, “looking toward technology in the courtroom, documents. Use short summaries down the left side for structural lawyers can help online readers, spe- and topic sentences. Carefully cues and then focusing on head- cifically judges, rule for their clients. sculpted headings and topic sen- ings and first sentences of para- Today, lawyers rely on hypertext, por- tences that introduce paragraphs graphs.”47 Writers should place table document format (PDF) files, and allow skimmers to grasp your the most important headings and bookmarks — terms once reserved for legal arguments quickly. Online information there.48 professors offering interactive learning readers glance at documents, hop- • Test your document. Test your courses — to create effective e-docu- ing to find bullet points, outlines, document by having those who ments. and numbered lists. A reader’s know nothing about your case This column explores how to use attention is always attracted to read it.49 Ask them whether it’s the electronic tools to write persuasive, lists. They provide easy and orga- difficult to read or comprehend. user-friendly e-documents. nized ways to process informa- Determine whether any questions tion.41 linger or remain unanswered. Know Whom You’re Writing For — • Omit needless words. Screen Your readers, who don’t know Plan and Organize Accordingly readers can’t, or won’t, absorb your case like you do, should Write for your readers. Be kind to them. lots of words. Every word counts walk away feeling that your argu- Before you create a document that can in an online setting. Cutting half ments are clear. be e-filed, plan its layout and con- your words will make your content. Your e-document will be judged tent more prominent. It’ll also Making e-Files Readable by how well readers understand you. shorten the route your reader Online writers must consider the rela- Basic editing and drafting rules apply. must take to get to your content.42 tionship between their readers and the

56 | May 2011 | NYSBA Journal online device. Readers must be able a word-processing program are key- a click of a mouse, this technology to adapt to the functionality of new word-searchable. To add other material immediately sends the reader, through technology, and writers should ensure to your brief a scanner might be useful hyperlinks, to a transcript, exhibit, or that this transition is seamless. Factors for converting paper documents into legal authority. It organizes a document like screen-type and operating system high-quality e-files.63 Essentially, these in a way that cannot be achieved on are beyond the writer’s control. Other files are digital photographs of the paper.68 Hypertexting ties loose ends things aren’t. Good e-writers always paper documents; they are not word- by allowing readers to sift through think about the reader’s navigational searchable. Some of the more sophis- piles of documents that, in paper form, needs. ticated programs, including the Adobe would be tedious and messy. Thanks You’ll help your readers by choos- Acrobat Pro series, will recognize text to hypertexting, gone are the days of ing a good font. Writers should use using optical character recognition “plunking down the brief to look up standard, easily read symbols and (OCR) software. If the image is crisp the case or dig through boxes for key avoid difficult-to-read characters. The and clean the OCR will work well. But documents.”69 Seventh Circuit recommends Century, poorly scanned paper briefs can result One medium often associated with a typeface designed for books.50 The in the document’s appearing “grainy” hypertext is the CD-ROM. On a single Supreme Court and the Solicitor in PDF format, making it difficult to CD, readers can access a brief, review General also use Century.51 use the OCR function and for readers the record, and consult the authorities to navigate.64 cited.70 A CD-ROM acts as a “place- E-Filing in PDF is Cheap and Easy holder” for paper submissions, requir- Courts require e-filing in PDF.52 To Make PDF Work for You and ing less storage space than multiple file through the NYSCEF, software is Your Reader copies of paper briefs.71 required to convert documents from To create easily navigable documents CD-ROM briefs are particularly word processed files to PDFs.53 Using for your reader, take advantage of persuasive when combined with intel- PDF doesn’t take great skill or exper- PDF’s generous tools. Don’t be afraid ligent writing. Briefs submitted on CDs tise: “the technical requirements for to overuse, even saturate, the docu- can be tailored to the judge’s reading creating and reading PDF files are ment with anything that’ll grab your preferences, if you know them. Also minimal.”54 reader’s attention. possible are different fonts, organiza- Courts prefer PDF to Word or Through PDF’s “navigation pane,” tional preferences, and audio/video WordPerfect documents due to the you can include a table of contents, options that allow the judge to listen to security needs of legal documents.55 commonly referred to as “book- or watch a brief rather than read it. PDF preserves a document’s format- marks.”65 Bookmarks are effective: The advantages of CDs and hyper- ting, integrity, and pagination.56 PDF “the reader can click on different lev- texting cannot be overstated. Through files can be secured by using pass- els of the table of contents and be their use, lawyers can now create inter- words, thereby avoiding unauthorized taken to that point in the document.”66 active documents. If a reader wishes changes or alterations.57 Authors can even prevent their readers from cut- Good e-writers always think about ting and pasting words into separate documents.58 PDF allows writers to the reader’s navigational needs. add digital signatures to verify a document’s authenticity.59 Another tool is “thumbnails.” Slightly to consult a case or statute cited in E-filing with PDF is cost-efficient. different from bookmarks, thumbnails the brief, a simple click on the citation Another benefit is “the consistent allow readers to view “graphical rep- will suffice.72 Through the New York accessibility of PDF files from any resentations of each page in the docu- State Unified Court System, lawyers computer.”60 But the biggest advan- ment.”67 These tools give writers full can instantly send their readers to a tage to PDF is a reader’s ability to rein over documents and allow writers supportive decision.73 This simplicity interact with the document. PDF files to determine exactly where their read- gives lawyers a heightened assurance can be made “key-word searchable” so ers should focus their attention. that their reader, no longer forced to that readers can seamlessly make their sift through piles of paper, will consult way through the document by insert- Hypertexting to Simplicity: their materials. ing any word of interest.61 The CD-ROM Lawyers considering submitting The Adobe Reader is available to Keeping things simple for the demand- briefs on CD-ROM should not over- download for free online.62 Adobe ing, often-lazy online reader is the use the features available to them. Reader has links to software to convert overarching theme of good e-filing. CD-ROM users run the risk of see- word-processed documents to PDF. One way to cater to the lazy is to use ing shocking or disturbing images or Documents converted to PDF from hypertext in your documents. With videos.74 The editor should be care-

NYSBA Journal | May 2011 | 57 ful. Writers should also be conscious information might remain accessible help you create a winning tech-rhetoric that the sophistication and complexity despite being highlighted in black, document of which you’ll be proud. of technological material might over- covered by a black box, or written In the next issue, the Legal Writer whelm some readers.75 Always ensure in white, so as to disappear into the resumes our regular scheduled topic: that material submitted in a hyperlink page.83 Removing information and re- writing the answer. ■ benefits your case. saving the file might not be enough. It’s possible for deleted text to be retrieved 1. Ann Pfau, E-Filing Has Taken a Significant Step, N.Y.L.J., Jan. 25, 2010, at 9, col. 5 (noting that 84 Be Conscious of the Information from earlier versions of a document. Chapter 367 of the Laws of 1999 implemented a You Emit To avoid filing a document comprised voluntary pilot project to test e-filing in New York Broadcasting easily accessible private of “hidden data,”85 the court suggests State). information increases identity theft. that lawyers save documents under 2. Paul H. Aloe, Civil Practice, 60 Syracuse L. Rev. 717, 719 (2010). E-filers must be aware of the informa- a new name after they delete private 3. Marco B. Koshykar, E-Filing Court Documents: tion they upload. The Federal Rules of information or, better yet, that they The Possibilities and Progress of E-Filing in New York, Civil Procedure limit disclosing pri- invest in software designed to redact Syracuse Sci. & Tech. L. Rep. 1, 6 (Spring 2004). vate information. Only the last four files.86 4. Id. digits of an individual’s social-security 5. Id. number, taxpayer number, or financial- Don’t Re-Invent the Wheel: Good 6. William A. Fenwick & Robert D. Brownstone, account number may be disclosed.76 Writing is Still Good Writing Electronic Filing: What is it? What are its Implications?, The Rules also specify that documents Electronic communication is here Santa Clara Computer & High Tech. L.J. 181, 203 (2002) be redacted to include no more than an to stay. Whether the courts already 7. Id. individual’s year of birth or the initials require e-filed documents or are devel- 8. Id. of a minor’s name.77 oping new rules to permit them, law- 9. Pfau, supra note 1, at 9, col. 6. Rather than rely on redaction, New yers must adapt to this technological York court users must indicate wheth- reality. In the not-so-distant future, all 10. Id. 11. Id. Chief Administrative Judge Pfau pointed er the document to be filed contains courtrooms will be digital. Lawyers to the three main changes that came with imple- “health information, a social securi- will be expected to know how to file menting Chapter 416: (1) “e-filing is no longer an ty number, a credit card number, a documents online. As a result, lawyers ‘experiment,’ subject to a series of sunsets and requiring renewed legislative authority every two bank account number, an individual’s must know how to turn electronic doc- or three years,” (2) “legislative approval is no longer date of birth, an individual’s home uments into effective advocacy tools. required to expand the program; rather the court

Keeping things simple for the demanding, often-lazy online reader is the overarching theme of good e-ﬁ ling. address, a minor child’s name, or trade Electronic tools are only half the system is authorized to promulgate rules permit- secrets.”78 If the answer is yes, access story. Good writing is still good writ- ting voluntary participation in e-filing in additional to the information will be restricted to ing, regardless of a writer’s ability to counties and in more classes of cases,” and (3) “the legislation provides for the establishment of a pro- the consenting parties, the clerk, and adapt to new technology. Technology gram of mandatory e-filing in certain jurisdictions the court.79 isn’t the great savior. It should be in specific types of cases.” Id. at 14, col. 5. Uncertain are the implications for approached with caution. Don’t go 12. Id. at 14, col. 5. lawyers who fail to redact documents overboard and include too much infor- 13. Important Notice to Commercial Practitioners: through e-filing.80 New York courts mation in filings. Just because the tech- Mandatory Electronic Filing, http://www.nycourts. gov/supctmanh/MEF-Notice%20to%20CD.pdf have yet to consider a valid malprac- nology exists doesn’t mean you should (last visited Mar. 15, 2011) (noting those commer- tice claim against a lawyer respon- use it. Overusing technology is risky: cial cases for which e-filing is mandatory in the sible for unlawfully dispersing private It’ll make your documents difficult for Supreme Court, Civil Branch, New York County). information.81 To avoid any dispute, your readers to read. 14. N.Y. St. Courts E-Filing Sys., https://iapps. courts.state.ny.us/fbem/mainframe.html (last vis- lawyers ought to remain conscious, Mastering the online environment, ited Mar. 15, 2011). not only of e-filing’s rules and regula- coupled with strong legal-writing 15. E-Filing in Westchester, http://www. tions, but also the means by which they skills, will make it easy for the court westchesterclerk.com/index.php?option=com_co redact their documents. to rule for you and to want to rule for ntent&view=article&id=14&Itemid=8 (last visited Mar. 15, 2011). The U.S. District Court for the you. The nuts and bolts of writing an 16. N.Y. St. Courts E-Filing Sys., supra note 14. District of New Jersey recently advised e-document doesn’t require lawyers to counsel of the futility of several com- be tech-savvy. But understanding how 17. Id. monly relied-on redaction techniques.82 important it is to use online tools — 18. Id. Among the concerns are that private and especially how to use them — will 19. Id.

58 | May 2011 | NYSBA Journal 20. Id. Print — Part 1, 81 N.Y. St. B.J. 64, 64 (Mar./Apr. 65. Crist, supra note 36, at 84. 2009). 21. Supreme Court, Appellate Division First 66. Id. Department, Memorandum, http://www.courts. 51. Seventh Circuit, Requirements and Suggestions 67. Id. state.ny.us/courts/ad1/EmailFilingRule6.pdf (last for Typography in Briefs and Other Papers 1, 5, visited Mar. 15, 2011). http://www.ca7.uscourts.gov/rules/type.pdf (last 68. Id. at 87. visited Mar. 15, 2010). 22. Appellate Division, Fourth Department, Rule 69. Martin Siegel, supra note 47. 1000.13(a)(4)(iii), http://www.courts.state.ny.us/ 52. N.Y. St. Courts E-Filing Sys., Frequently Asked 70. Crist, supra note 36, at 87. ad4/Court/Rules/AD4%20RuleBook%20May%20 Questions: New York State Courts Electronic Filing 71. Id. at 88. 2008.pdf (last visited Mar. 15, 2011). System, Electronic Filing in the Supreme Court and the Court of Claims, 1, 8, https://iapps.courts.state. 72. Rothman, supra note 57. 23. Id. 1000.3(h)(1) & (3), http://www.courts.state. ny.us/fbem/mainframe.html (last visited Mar. 15, ny.us/ad4/Court/Rules/AD4%20RuleBook%20 73. New York State decisions are available online 2011). May%202008.pdf (last visited Mar. 15, 2011). at http://www.courts.state.ny.us/decisions/index. 53. Id. shtml (last visited Mar. 15, 2011). The e-lawyer may 24. Aloe, supra note 2, at 720. link directly to opinions found there. 54. Crist, supra note 36, at 82. 25. Id.; Act of Aug. 31, 2009, ch. 416, 2009 74. Crist, supra note 36, at 91. McKinney’s Sess. Laws of N.Y. 55. Id. 75. Krause, supra note 63. 26. Joel Stashenko, Efficiencies, Savings Seen in 56. Daniel J. Siegel, E-Filing is Coming: Here’s How Mandatory E-Filing, N.Y.L.J., Mar. 3, 2011, at 1, col. 3. to Prepare 2, 3, http://www.jenkinslaw.org/blog/ 76. Fed. R. Civ. Pro. 5.2(a). wp-content/uploads/2007/12/lpmefiling.pdf (last 27. Id. 77. Id. visited Mar. 15, 2011). 28. Id. 78. Uniform Rules for N.Y. St. Trial Cts. § 202.5-b(d) 57. Joel Rothman., E-Filing Appeals with Adobe (3)(iii). 29. Joel Stashenko, Court Rule Altered to Buttress Acrobat, http://www.llrx.com/node/996/print E-Discovery; E-Filing Advances, N.Y.L.J., Aug. 31, (last visited Mar. 15, 2011). 79. Id. 2010, at 3, col. 2. 58. Id. 80. Shari Claire Lewis, The Need to Redact Personally 30. Id. Identifiable Data from E-Filings, N.Y.L.J., Aug. 17, 59. Id. 2010, at 6, col. 5. 31. N. Y. St. Courts E-Filing Sys., supra note 14. 60. Id. at 82. 81. Id. 32. N. Y. St. Courts E-Filing Sys., User’s Manual 61. Rothman, supra note 57. for Supreme Court and Court of Claims Cases, Part 1: 82. U.S. Dist. Ct. for the Dist. of N.J., Effective Overview of the System 1, 4, https://iapps.courts. 62. Adobe Acrobat Reader, http://get.adobe.com/ Personal-Identity and Metadata Redaction Techniques state.ny.us/fbem/mainframe.html (last visited Mar. reader/ (last visited Mar. 15, 2011). for E-Filing, http://www.njd.uscourts.gov/cm-ecf/ 15, 2011). RedactTips.pdf (last visited Mar. 15, 2011). 63. Jason Krause, The Force of E-Filing: The Move 33. Id. at 4–5. Toward Digital Documents is Slow, Confusing — and 83. Id. Inevitable, http://www.abajournal.com/magazine/ 34. Id. at 11. 84. Id. article/the_force_of_e_filing/ (last visited Mar. 15, 35. Id. at 13. 2010). 85. Id. 36. Alysson Troffer, Writing Effectively Online: How 64. Crist, supra note 36, at 83. 86. Id. to Compose Hypertext, http://homepage.mac.com/ alysson/htprinter.version.html (last visited Mar. 15, 2011) (cited in Maria Perez Crist, The E-Brief: Legal Writing for an Online World, 33 N.M. L. Rev. 49, GERALD LEBOVITS is a New York City Criminal Court judge in New York County and an adjunct profes- 76 (2003)). sor at St. John’s University School of Law and Columbia Law School. He thanks University of Ottawa 37. Id. judicial interns Corey Groper and Hayden Bernstein for researching this column. Judge Lebovits’s 38. Id. email address is [email protected]. 39. Robert B. Dubose, Legal Writing for the Re-Wired Brain, St. Bar of Tex., Managing Your Law Practice CLE Special Events Program 1, 13 (June 11, 2010), http://www.texasbar.com/flash- drive/materials/managing_your_law_prac- tice/Special_ManagingYourLawPracticeCLE_ LegalWritingRewiredBrain_Dubose_FinalArticle. Find us on the Web! pdf (last visited Mar. 15, 2010). 40. Id. 41. Id. at 13–15. Just a click away: The NYSBA Journal is available to you anytime at all. 42. Id. at 15–16. 43. Id. at 16. Log in as a member: Let us know: 44. Id. at 16–18. Membership gives you access to Comment on any article you’ve read, current issues and the Journal archive on topics you’d like addressed or the issues 45. Id. at 18–19. HeinOnline. The archive offers the Journal facing today’s practitioners through the 46. Id. at 19. in a word-searchable format, beginning editor’s blog. 47. Martin Siegel, What E-Filing Means for Appellate with the first issue in 1928. Attorneys, 26 Tex. Law. 29 (Dec. 6, 2010). The Journal at www.nysba.org/barjournal. 48. Dubose, supra note 39, at 19. Find an article: The Editor’s blog at http://nysbar.com/ 49. Id. at 19–20. Our word-searchable index lists all Journal blogs/barjournal/. Click on “comments.” articles from 2000 through present. 50. Gerald Lebovits, Document Design: Pretty in

NYSBA Journal | May 2011 | 59 CLASSIFIED NOTICES MEMBERSHIP TOTALS

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60 | May 2011 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: Please let me know The reader’s Question (3) points out being. (Pet owners would be more whether that is needed in the the difference between restrictive and likely to choose who.) Qfollowing sentences: non-restrictive pronouns. The restric- In sentence (b), the majority of (1) Nowhere is it alleged (that?) the tive pronoun that “restricts” the mean- readers would choose who (particular- landlord violated any safety regu- ing of the rest of the sentence, raising the ly those readers who have been taught lation. question, “What upgrades?” (Answer, grammar). However, the grammati- (2) Neither did I make any substan- “Substantial upgrades that would trig- cal rule that requires who to refer to tial upgrades to the house which ger the codes.”) So the restrictive rela- humans and that to refer non-humans would trigger modern codes, tive pronoun that is correct. is currently eroding, being honored assuming (that?) they apply. more in the breach than in the obser- (3) Should it be which or that in the Substantial upgrades that would vance. Grammarians now approve of second example: “upgrades to the trigger modern codes . . . that instead of which when the refer- house which would trigger . . .” Substantial upgrades, which would ence is to members of a group or class. or “upgrades to the house that trigger modern codes, . . . And in sentence (c), most Americans would trigger”? would therefore probably choose that, Answer: In asking these questions, In sentence (2), which is a non- car-poolers being thought of as mem- Olean Attorney Edward J. Wagner has restrictive clause, indicating that previ- bers of a group. But the traditional done a favor to many readers who are ously the “substantial upgrades” have rule is still in force; so, if you prefer, ignorant about these matters. been identified. Thus, the sentence always choose who when referring to In Question (1), it is not grammati- now states that all the upgrades will trig- persons. cally necessary to add the word that, ger modern codes. But non-restrictive As to the decision about whether but I would include it because if that is relative clauses must be enclosed in to use that or which: Which is consid- omitted, “alleged the landlord” looks commas; so place a comma before ered more formal than that and is like a phrase. This ambiguity might which and after codes to make the sen- acceptable to some educated persons cause readers to hesitate, then re-read tence grammatically acceptable. in statements like: “Social security is the sentence. Therefore include that to It seems appropriate here to discuss an entitlement which is impervious to avoid waste of time. a question that Attorney Wagner did congressional attack.” Grammarians, A recent newspaper column con- not mention, but that other attorneys however, still prefer the restrictive tained a similar confusing omission often ask. The question is, in what pronoun that in formal contexts. of that: “The judge held the stick was circumstances do we use that, which, a deadly weapon.” Add the word that and who? For example, what pronoun From the Mailbag and you avoid the impression that would you select for each of the fol- From Jacob M. Braude’s Lifetime “The judge held the stick . . .” is a sub- lowing sentences? Speaker’s Encyclopedia: ject-verb-object construction. So write: (a) My dog Pug sniffs at every tree You can always tell a barber “The judge held that the stick was a trunk (that/which) we pass during By the way he parts his hair; deadly weapon.” our morning walk. You can always tell a dentist The answer to Question (2) is that (b) I have a friend (that/who) plays When you’re in a dentist’s chair; correct grammar does not require basketball every day after work. And even a musician – the word that. But the sentence may (c) Many people (that/who) used to You can tell him by his touch; be clearer if you include that. The drive their cars to work are now You can always tell a lawyer, phrase “alleged the landlord” might joining car pools. But you cannot tell him much. be confusing. But the sentence is still In sentence (a), readers are unani- ungrammatical because it lacks a mous in choosing the pronoun that comma before which. To be correct, to modify “tree trunks.” The tradi- the sentence should read “substantial tional grammatical rule states that upgrades, which would trigger mod- human beings are identified as who or ern codes, . . .” The pronoun which is whom, and objects as that. The answer GERTRUDE BLOCK is lecturer emerita at the non-restrictive. would not be unanimous if the sen- University of Florida College of Law. She is the For those readers who were not tence began, “My dog Pug (who/that) author of Effective Legal Writing (Foundation taught grammar because they “tested sniffs at every tree trunk we pass on Press) and co-author of Judicial Opinion Writing out” of grammar classes in middle our morning walk.” Readers would (American Bar Association). Her most recent school, here is a short explanation of then select who or that depending on book is Legal Writing Advice: Questions and the restrictive pronoun that and the whether they consider Pug “human” Answers (W. S. Hein & Co., 2004). non-restrictive pronoun which. enough to refer to him as a human

NYSBA Journal | May 2011 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

EXECUTIVE LAWYER ASSISTANCE PROGRAM 2010-2011 OFFICERS M. Catherine Richardson, President Patricia K. Bucklin Patricia F. Spataro, Director One Lincoln Center, Syracuse, NY 13203 Executive Director [email protected] John J. Kenney, Vice President [email protected] LAWYER REFERRAL AND 10 East 40th Street, 35th Fl., New York, NY 10016 Keith J. Soressi INFORMATION SERVICE Patricia K. Bucklin, Secretary Associate Executive Director Eva Valentin-Espinal, Coordinator One Elk Street, Albany, NY 12207 [email protected] [email protected] Paul Michael Hassett, Treasurer Richard Rifkin 1500 Liberty Building, Buffalo, NY 14202 PRO BONO AFFAIRS Special Counsel Cristine Cioffi, Assistant Secretary Gloria Herron Arthur, Director [email protected] 2310 Nott Street East, Niskayuna, NY 12309 [email protected] BAR SERVICES DIRECTORS Mark Wilson, Manager MARKETING AND James B. Ayers, Albany [email protected] INFORMATION SERVICES Richard J. Martin, Senior Director Vice Chair of The Fellows EXECUTIVE SERVICES [email protected] Lawrence R. Bailey, Jr., White Plains Andria Bentley, Executive Services Counsel Jonathan G. Blattmachr, New York DESKTOP PUBLISHING [email protected] Charles E. Dorkey, III, New York MARKETING MEETINGS Emily F. Franchina, Garden City Kathleen M. Heider, Director MIS Sharon Stern Gerstman, Buffalo [email protected] John M. Nicoletta, Director John H. Gross, Hauppauge [email protected] Robert L. Haig, New York CONTINUING LEGAL EDUCATION Jeffrey Ordon, Network Support Specialist Frank M. Headley, Jr., Scarsdale H. Douglas Guevara, Senior Director [email protected] Stephen D. Hoffman, New York [email protected] Sonja Tompkins, Records Supervisor John R. Horan, New York Debra York, Registrar [email protected] Glenn Lau-Kee, New York [email protected] Kathryn Grant Madigan, Binghamton Lucian Uveges, Database Administrator Kay Crawford Murray, New York CLE PROGRAMS [email protected] Jean E. Nelson II, Associate Director Carla M. Palumbo, Rochester Paul Wos, Data Systems and [email protected] Richard Raysman, New York Telecommunications Manager Lesley Friedman Rosenthal, New York Kimberly Hojohn, CLE Program Coordinator [email protected] [email protected] Sanford J. Schlesinger, New York WEB SITE Katherine Suchocki, Staff Attorney Justin L. Vigdor, Rochester Barbara Beauchamp, Editor [email protected] Lucia B. Whisenand, Syracuse [email protected] Cindy O’Brien, Program Manager EX OFFICIO [email protected] MEMBERSHIP SERVICES Susan B. Lindenauer, New York Patricia K. Wood, Senior Director CLE PUBLICATIONS Chair of The Fellows [email protected] Daniel J. McMahon, Director [email protected] Megan O’Toole, Membership Services Manager [email protected] Kirsten Downer, Research Attorney [email protected] CHIEF SECTION LIAISON Patricia B. Stockli, Research Attorney Lisa J. Bataille [email protected] [email protected] JOURNAL BOARD Joan Fucillo, Publication Manager PRINT AND FACILITIES OPERATIONS MEMBERS EMERITI [email protected] Roger E. Buchanan, Senior Director HOWARD ANGIONE [email protected] LAW PRACTICE MANAGEMENT Immediate Past Editor-in-Chief Teresa B. Schiller, Director BUILDING MAINTENANCE ROSE MARY BAILLY [email protected] GRAPHICS RICHARD J. BARTLETT FINANCE AND HUMAN RESOURCES PRINT SHOP COLEMAN BURKE JOHN C. CLARK, III Paula M. Doyle, Senior Director Gordon H. Ryan, Print Shop Manager ANGELO T. COMETA [email protected] [email protected] ROGER C. CRAMTON FINANCE PUBLIC AFFAIRS AND WILLARD DASILVA LOUIS P. D ILORENZO Kristin M. O’Brien, Director ADMINISTRATIVE SERVICES [email protected] PHILIP H. DIXON LAW, YOUTH AND CITIZENSHIP PROGRAM MARYANN SACCOMANDO FREEDMAN Cynthia Gaynor, Controller Eileen Gerrish, Director EMLYN I. GRIFFITH [email protected] [email protected] H. GLEN HALL PAUL S. HOFFMAN LEGAL AND GOVERNMENTAL AFFAIRS MEDIA SERVICES AND PUBLIC AFFAIRS JUDITH S. KAYE Kathleen R. Mulligan-Baxter, Senior Director Lise Bang-Jensen, Director CHARLES F. KRAUSE [email protected] [email protected] PHILIP H. MAGNER, JR. WALLACE J. MCDONALD OUNSEL S FFICE C ’ O Patricia Sears Doherty, Editor, State Bar News J. EDWARD MEYER, III GOVERNMENTAL RELATIONS [email protected] JOHN B. NESBITT Ronald F. Kennedy, Director Brandon Vogel, Media Writer KENNETH P. N OLAN [email protected] [email protected] EUGENE E. PECKHAM ALBERT M. ROSENBLATT Kevin M. Kerwin, Assistant Director LESLEY FRIEDMAN ROSENTHAL HE EW ORK AR OUNDATION [email protected] T N Y B F SANFORD J. SCHLESINGER Rosanne M. Van Heertum ROBERT J. SMITH Director of Development LAWRENCE E. WALSH [email protected] RICHARD N. WINFIELD

62 | May 2011 | NYSBA Journal 2010-2011 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

STEPHEN P. Y OUNGER FIRST DISTRICT Park, Maria Y. Convissar, Robert N. Aaron, Stewart D. Romero, Manuel A. † Doyle, Vincent E., III President Abernethy, Samuel F. Sunshine, Hon. Jeffrey S. Effman, Norman P. New York Abramowitz, Alton L. Sunshine, Hon. Nancy T. * Freedman, Maryann Saccomando Adler, Roger B. Gerstman, Sharon Stern THIRD DISTRICT VINCENT E. DOYLE III † * Alcott, Mark H. Hager, Rita Merino Anello, Robert J. Ayers, James B. † * Hassett, Paul Michael President-Elect Berke-Weiss, Laurie Barnes, James R. Manias, Giles P. Buffalo Bohorquez, Fernando A., Jr. Baynes, Brendan F. Russ, Arthur A., Jr. Brown, Earamichia Costello, Bartley J., III Schwartz, Scott M. Davidoff, Michael DAVID P. M IRANDA Chambers, Hon. Cheryl E. Seitz, Raymond H. Chang, Vincent Ted DeFio Kean, Elena Secretary Cheng, Pui Chi Doherty, Glen P. NINTH DISTRICT Albany Christian, Catherine A. Fernandez, Hon. Henry A. Amoruso, Michael J. Cohen, Carrie H. Fernandez, Hermes Brown, Terryl Glasheen, Kevin P. Burke, Patrick T. EYMOUR AMES R Collazo, Ernest J. S W. J , J . * Cometa, Angelo T. Greenthal, John L. Burns, Stephanie L. Treasurer Conley, Sylvia Jeanine Hacker, James E. Byrne, Robert Lantry New York DeMarco, Joseph V. Hanna, John, Jr. Cohen, Mitchell Y. Di Pietro, Sylvia E. Hurteau, Daniel Joseph Cusano, Gary A. Draper, Thomas G., Jr. Kahler, Annette I. Dohn, Robert P. MICHAEL E. GETNICK Drayton, Joseph Michael Kaplan, Edward Ian Fedorchak, James Mark Immediate Past President Ellerin, Hon. Betty Weinberg Liebman, Bennett M. Fontana, Lucille A. Utica Eppler, Klaus Miranda, David P. † Fox, Michael L. Finerty, Hon. Margaret J. Moy, Lillian M. Goldenberg, Ira S. * Forger, Alexander D. Pettit, Stacy L. Marwell, John S. VICE-PRESIDENTS Gallagher, Patrick C. Privitera, John J. Miklitsch, Catherine M. Galligan, Michael W. Roberts-Ryba, Christina L. * Miller, Henry G. FIRST DISTRICT Gesinsky, Loren Rosiny, Frank R. Nachimson, Steven G. Glanstein, Joel C. Ryan, Rachel * Ostertag, Robert L. Claire P. Gutekunst, New York Goldberg, Evan M. Salkin, Prof. Patricia E. Rauer, Brian Daniel Ann B. Lesk, New York Gutekunst, Claire P. * Yanas, John J. Sachs, Joel H. Gutheil, Karen Fisher Sanchala, Tejash V. FOURTH DISTRICT SECOND DISTRICT Hanks, Kendyl T. Sandford, Donald K. Baker, Carl T. Selinger, John Hawkins, Dennis R. Healey, Andrew J. Manuel A. Romero, Brooklyn Ho, John Si Singer, Rhonda K. Herrmann, Diane M. Starkman, Mark T. Hoffman, Stephen D. Hoag, Rosemary T. THIRD DISTRICT Hollyer, A. Rene Stone, Robert S. Ladouceur, Michelle H. Strauss, Barbara J. Lillian M. Moy, Albany Honig, Jonathan Lais, Kara I. James, Hon. Debra A. Strauss, Hon. Forrest Martin, Trinidad Van Scoyoc, Carol L. FOURTH DISTRICT James, Seymour W., Jr. McAuliffe, J. Gerard, Jr. Kahn, Michele Wallach, Sherry Levin McNamara, Matthew Hawthorne Weis, Robert A. Patricia L. R. Rodriguez, Schenectady Kanter, Gregg Herbert Onderdonk, Marne L. Kaplan, Matthew E. Rodriguez, Patricia L. R. TENTH DISTRICT FIFTH DISTRICT Kennedy, Henry J. Slezak, Rebecca A. Asarch, Hon. Joel K. Kera, Martin S. Thomas E. Myers, Syracuse Stanclift, Tucker C. Block, Justin M. * King, Henry L. Watkins, Patricia E. * Bracken, John P. Kobak, James B., Jr. SIXTH DISTRICT Bucaria, Thomas A. Kornreich, Edward S. FIFTH DISTRICT Chase, Dennis R. Mark S. Gorgos, Binghamton Larson, Wallace L., Jr. Fennell, Timothy J. Fishberg, Gerard Lau-Kee, Glenn Fish, Marion Hancock Franchina, Emily F. SEVENTH DISTRICT † * Leber, Bernice K. Foley, Timothy D. Gann, Marc Lesk, Ann B. Gensini, Gioia A. Good, Douglas J. June M. Castellano, Rochester Levy, M. Barry + * Getnick, Michael E. Gruer, Sharon Kovacs Lieberman, Ellen Gigliotti, Hon. Louis P. Hayden, Hon. Douglas J. EIGHTH DISTRICT Lindenauer, Susan B. Howe, David S. Hendry, Melanie Dyani Lupkin, Jonathan D. David L. Edmunds, Jr., Buffalo Humphrey, Mary R. Karabatos, Elena * MacCrate, Robert Ludington, Hon. Spencer J. Karson, Scott M. Marino, Thomas V. McArdle, Kevin M. NINTH DISTRICT † * Levin, A. Thomas Medenica, Olivera Myers, Thomas E. Luskin, Andrew J. John S. Marwell, Mount Kisco Miller, David S. Pellow, David M. Makofsky, Ellen G. Miller, Michael * Richardson, M. Catherine McEntee, John P. TENTH DISTRICT Minkowitz, Martin Stanislaus, Karen Pachman, Matthew E. Morril, Mark C. Tsan, Clifford Gee-Tong * Pruzansky, Joshua M. Emily F. Franchina, Garden City Moses, Barbara Carol Virkler, Timothy L. Randazzo, Sheryl L. Nathanson, Malvina * Rice, Thomas O. SIXTH DISTRICT ELEVENTH DISTRICT Nelson, Lester Shulman, Arthur E. Nijenhuis, Erika W. Barreiro, Alyssa M. David Louis Cohen, Kew Gardens * Patterson, Hon. Robert P., Jr. Denton, Christopher ELEVENTH DISTRICT Prowda, Judith B. Fortino, Philip G. Cohen, David Louis TWELFTH DISTRICT Robertson, Edwin David Gorgos, Mark S. DeFelice, Joseph F. Steven E. Millon, Bronx Rothstein, Alan Grayson, Gary J. Gutierrez, Richard M. Russell, William T., Jr. Gutenberger, Kristin E. Lee, Chanwoo Lewis, Richard C. THIRTEENTH DISTRICT Safer, Jay G. Nizin, Leslie S. Schindel, Ronnie + * Madigan, Kathryn Grant Risi, Joseph J. Jonathan B. Behrins, Staten Island Sen, Diana Sagorika Mayer, Rosanne Taylor, Zenith T. Seymour, Samuel W. Orband, James W. Vitacco, Guy R., Jr. * Seymour, Whitney North, Jr. Pogson, Christopher A. MEMBERS-AT-LARGE OF THE Sigmond, Carol Ann Sienko, Leonard E., Jr. TWELFTH DISTRICT Silkenat, James R. Masley, Hon. Andrea EXECUTIVE COMMITTEE EVENTH ISTRICT Smith, Hon. George Bundy S D Millon, Steven E. Sonberg, Hon. Michael R. Burke, Philip L. * Pfeifer, Maxwell S. Samuel F. Abernethy Spiro, Edward M. + * Buzard, A. Vincent Price, Hon. Richard Lee Timothy J. Fennell † * Standard, Kenneth G. Castellano, June M. Quaranta, Kevin J. Syracuse, Vincent J. Chapman, Richard N. Sands, Jonathan D. Hermes Fernandez Tesser, Lewis F. Gould, Wendy Lee Summer, Robert S. Walsh, Jean T. Harren, Michael T. Weinberger, Richard Hon. Margaret J. Finerty Wolff, Adam John Hetherington, Bryan D. THIRTEENTH DISTRICT Yavinsky, Hon. Michael J. Jackson, La Marr J. Glenn Lau-Kee Behrins, Jonathan B. † Younger, Stephen P. Kingsley, Linda S. Dollard, James A. Zuchlewski, Pearl Kurland, Harold A. Ellen G. Makofsky Hall, Thomas J. Zulack, John F. Laluk, Susan Schultz Eileen D. Millett * Moore, James C. Mattei, Grace Virginia SECOND DISTRICT Moretti, Mark J. OUT-OF-STATE Sherry Levin Wallach Bonina, Andrea E. * Palermo, Anthony R. Kurs, Michael A. Doyaga, David J., Sr. Schraver, David M. Millett, Eileen D. Gerber, Ethan B. Stapleton, T. David, Jr. Perlman, David B. Hernandez, David J. Tilton, Samuel O. Ravin, Richard L. Kamins, Hon. Barry * Vigdor, Justin L. Torrey, Claudia O. Longo, Mark A. * Witmer, G. Robert, Jr. * Walsh, Lawrence E. Lonuzzi, John A. IGHTH ISTRICT Weinstock, David S. McKay, Hon. Joseph Kevin E D Cassata, Hon. Joseph J.

† Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | May 2011 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

E-Filing: Mastering the Tech-Rhetoric

he Legal Writer interrupts our cases in Supreme Court, New York litigants consent to filing a CD-ROM.23 regularly scheduled program — County,13 and in commercial and tort The CD-ROM must be identical to the the multi-part series on writing cases in Supreme Court, Westchester printed record. The benefit of submit- T 14 civil-litigation documents — to discuss County. As of June 2011, all commer- ting a companion CD-ROM is that you a hot topic: electronic filing, or e-filing. cial cases, including breach of contract can use hyperlinks, explained later in As technology advances, all lawyers actions, must be commenced electroni- this article. need to know about e-filing. The topic cally in Supreme Court, Westchester To expand mandatory e-filing, fur- is also critical because the New York County.15 The e-filing system is cur- ther legislative action is required:24 State Unified Court System is moving rently optional for tort, commercial, “Although Chapter 416 envisions vol- toward mandating e-filing throughout and tax certiorari cases in 15 counties untary e-filing, the new legislation the state. of the Supreme Court.16 Two other gives OCA [Office of Court Administra- Twelve years ago, when New York counties, Broome and Erie, permit e-fil- tion] authority to make e-filing manda- introduced a voluntary pilot project to ing Supreme Court cases.17 The system tory in certain cases, but the authority test e-filing,1 it appeared unlikely that is also available in New York City for mandatory e-filing is temporary e-filing would take off. The first case Civil Court no-fault actions,18 probate and will expire absent further legisla- was e-filed on November 22, 2000.2 and administrative proceedings in five tive action on September 1, 2012.”25 By 2002, only 300 lawyers had regis- counties of the Surrogate’s Court,19 Lawyers should expect, however, tered with the New York State Courts and the Court of Claims.20 that voluntary e-filing will become Electronic Filing System (NYSCEF). New York’s Appellate Division, First mandatory e-filing before September High implementation costs,3 privacy Department, requires practitioners to 2012. Chief Judge Jonathan Lippman and confidentiality concerns,4 and the file ten copies of a brief or appendix, recently stated that he hopes for a “digi- computer hesitancy, and in some cases and one of those copies must be a PDF: tal courthouse.”26 The Chief Judge said illiteracy, of senior lawyers5 explained “Effective July 1, 2010, pursuant to that “he will seek authority to require the initial reluctance. But the undeni- amendments to rule 600.11, each party all state courts to implement manda- able advantages of e-filing, including perfecting or answering an appeal tory electronic filing” in all New York the rarity that documents submitted shall file, in addition to the requisite state courts.27 He believes that manda- electronically would be lost or mis- number of paper copies, one search- tory e-filing will take about 12 to 18 filed,6 the ability of lawyers to file able PDF copy of the brief via e-mail. months to implement.28 E-filing has materials at any hour,7 and the ben- Effective September 1, 2010, each many benefits, he explained, includ- efit of practically instant accessibility,8 party filing an appendix (or record ing efficiency and saving New Yorkers have led to technological advances. on appeal) shall file, in addition to the money. At the end of 2009, more than 200,000 requisite number of paper copies, one As lawyers gravitate toward elec- cases and more than 500,000 docu- searchable PDF copy of the appendix tronic filing in state courts, the practice ments9 had been filed, and more than (or record on appeal).”21 The Second, has become widespread at the federal 13,000 lawyers had registered with Third, and Fourth Departments do level.29 E-filing has been required in NYSCEF.10 not provide for e-filing. Although the all New York federal district courts Substantial changes have occurred Fourth Department’s rules provide since 2004 and in the Court of Appeals in the area of e-filing. On September that “submission to the Clerk’s Office for the Second Circuit since January 1, 2009, Chapter 416 came into effect, by electronic means will be accept- 2010.30 significantly altering the e-filing land- ed,”22 e-filing is not yet in place. The The trend is obvious. Courts are scape.11 Chapter 416 made e-filing no Fourth Department allows litigants rapidly requiring electronic filing, and longer a pilot program.12 E-filing is to file a companion CD-ROM of the lawyers are becoming more and more now required in certain commercial records, appendices, and briefs if the CONTINUED ON PAGE 56

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