THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION July/August 2013 www.nassaubar.org Vol. 62, No. 11 Follow us on facebook Everyone’s a Winner with OF NOTE NCBA Member Benefit – I.D. Card Photo Alternative Dispute Resolution gaining adherents all across the country. Obtain your photo for court identification NCBA Revitalizes Arbitration Recognizing this trend, the Nassau County cards at NCBA Tech Center. Cost $10. Bar Association has given new life to its Aug. 7, 8 & 9 • Sept. 10, 11 & 12 and Mediation Tribunals Alternative Dispute Resolution (ADR) 9 a.m. – 4 p.m. By Valerie Zurblis Tribunals. For the past three years, the Alternative The current backlog in the courts often Dispute Resolution Committee, chaired by EVENTS causes litigants to wait years before obtain - Marilyn Genoa, thoroughly reviewed and WE CARE Stephen W. Schlissel Golf ing a final resolution, at which point the updated the NCBA’s existing alternative and Tennis Classic costs of litigation may exceed the amount dispute resolution program. The result in controversy, the relief may no longer be is the revitalization of the NCBA ADR Monday, August 5, 2013 needed, or the case may have lost its value. Tribunals, which enables parties and their WE CARE Ducks Game And, with litigation, the only certainty is counsel to opt to resolve their legal disputes that one side will be the “winner” and one out-of-court. Sunday, September 8, 2013 side will be the “loser.” So, it is not surpris - There are two ADR Tribunal panels, one See page 16 for details ing that alternative dispute resolution is for mediation and another for arbitration, SAVE THE DATE! consisting of skilled and qualified attorneys Domus on the Lawn See insert for more ADR information who are NCBA members, who have been admitted to the New York Bar for at least Thursday, September 12, 2013 Alternative Dispute Resolution Committee Chair 5:30-7:30 p.m. Elizabeth Donlon (left) and immediate past chair Marilyn Genoa. (Photo by Valerie Zurblis) See back page Blood Drive Breaks Record 10 years, and who have been screened by NCBA DOMUS OPEN RESCHEDULED! the NCBA Judiciary Committee. NCBA Michael A. Markowitz, Esq. donated blood at the Don’t Miss Out – Space still available ADR Tribunal mediators must have ful - NCBA’s Annual Blood Drive in June, sponsored by the filled at least 40 hours of OCA-approved Golf and/or BBQ Community Relations and Public Education Committee. Rescheduled for Monday, Sept.16, 2013 mediation training. NCBA ADR Tribunal Chaired by Louis Imbroto, this blood drive was the most arbitrators, who have demonstrated arbi - Eisenhower “The Red” Course successful to date. Forty-seven traditional pints of blood 12:00 p.m. Registration tration experience, include several former and 12 ALYX pints were collected, for a record-breaking Nassau County judges. According to 59. Of the blood components that are transfused most Genoa, “Our goal was to provide what SAVE THE DATE! (red blood cells, platelets and plasma), red blood cells are we knew was an extremely important serv - Judiciary Night in the greatest demand. The ALYX Component Collection ice for our members and for the public. Thursday, October 17, 2013 System uses automated technology to safely collect dou - 5:30 p.m. at Domus ble the amount of red blood cells versus regular whole NCBA members now have the ability to See back page blood. More than 150 patients in need will benefit from apply to be arbitrators and mediators for the generosity of the individuals who took the time out of our ADR tribunals and, once approved, will their busy day to donate. (Photo by Hector Herrera) be members of possibly the only alternative WHAT ’S INSIDE See ADR, Page 2 FOCUS: COMMERCIAL LAW Expand Your Client Services with LanguageLine Eastern District Clarifies No “Strip Off” of Wholly Unsecured SEE INSERT FOR MORE DETAILS Junior Mortgage Liens Page 3 NCBA Members Receive 64% Discount!

Court of Appeals Breathes New Nassau County Bar Association members can better communi - Life Into “Separate Entity Rule” Page 3 cate with limited English-speaking clients through LanguageLine Personal Interpreter Service, an over-the-phone interpretation serv - Eastern District Roundup Page 5 ice, AND save 64% of the cost! LanguageLine allows members to conference call with clients Protecting Assets in Bankruptcy Page 7 and a live interpreter over the phone. In your client’s preferred language, you can schedule appointments, provide legal advice, NY Claims for Contribution by explain legal options, and offer recommendations. More than 200 Bankruptcy Trustees Page 9 languages are available. immediately connected to the appropriate interpreter. By signing up through NCBA, there is no cost or obligation to The discounted per minute charge for NCBA members of $1.40 Section 363(f) Sales May Not set up an account online, no sign-up fee and no monthly minimum per minute begins when the interpreter joins the call and ends Be So Free and Clear After All Page 9 usage charges. Members are charged only when they use the serv - when you hang up. The per minute charges include complementa - ice. To sign up, go to www.nassaubar.org, sign in as a member, and ry domestic or international third party calls placed by go to the LanguageLine tab. LanguageLine for you, to anywhere in the world. It’s as Easy as Uno-Dos-Tres Charges are billed to your credit card daily and kept securely. To use LanguageLine, dial the Personal Interpreter access Once you receive your PIN, you can use it over and over again, number, enter your 8-digit PIN, and state the name of the lan - without having to re-register. You can sign up in a few minutes, guage you need right into the phone. It will be recognized by the receive your access number and PIN, and begin using the service LanguageLine speech recognition/response system and you will be immediately. – Valerie Zurblis UPCOMING PUBLICATIONS COMMITTEE MEETINGS Thurs., August 8, 2013 l Thurs., September 12, 2013 – 12:45 at Domus

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the parties is not always about the counsel gets to choose who the neutral arbitration can be provided for as the ADR ... enforcement or validation of statutory will be. In mediation, the mediator’s means of resolving a potential prob - Continued From Page 1 or contractual rights. And how many role is to assist the parties in reaching lem. According to past ADR Com- times have we heard: “It’s not about a binding agreement in resolution of mittee Chair Eugene Ginsberg, “For dispute resolution panels whose mem - the money. It’s the principle of the their dispute. An arbitrator, on the transactional lawyers, consider draft - bers are screened by a judiciary com - thing”? Despite the strength of our other hand, hears evidence and receives ing provisions in your agreements that mittee. Our Association has agreed to facts or legal precedent and regardless testimony, much like a judge, and call for the resolution of a dispute an hourly fee of $300 for mediators of whether we are “super lawyers” or makes a decision that binds the parties. through the NCBA ADR Tribunals.” and arbitrators in order to provide not, none of us can guarantee a result Typically, arbitration is provided for by Attorneys interested in learning affordable ADR services to the com - in litigation. The only safe bet is that – contract. more about the rules governing the munity at large.” irrespective of the nature of the cause It’s important to note that the alter - NCBA ADR Tribunals or to apply to Alternative dispute resolution is a of action, the parties’ legal positions native dispute resolution process need become members of the panels of private process, as contrasted with the and/or their motivations – after a trial not wait until after a legal dispute mediators and/or arbitrators, can find public process afforded by a court, and (or an appeal), one side will be suc - actually arises or until after a case is more information on the NCBA web - may be used for any case that can be cessful and the other, at best, will be in the throes of litigation. Mediation or site, nassaubar.org. decided by a court. The types of mat - disappointed. ters may involve breaches of contract, Mediation is simply a method of labor and employment disputes, trusts resolving a dispute with a neutral and estates matters, landlord-tenant, facilitator whose only aim is to assist intellectual property, product liability, in achieving a negotiated settlement. Scholarship Honors medical malpractice, personal injury, Current ADR Committee Chair and domestic relations, but the list is Elizabeth Donlon put it this way: not all-inclusive. “With a mediated result, everyone is a Late Supreme Court Justice The NCBA ADR Tribunal program winner and no one is a loser. The par - is available to the public, as well as to ties are empowered, because they The Elder Law Section attorneys. On receipt of a request for have the opportunity to have their say Scholar ship, administered by arbitration or mediation and payment and to structure a deal that they can The New York Bar Foundation, of a one-time administrative fee of live with, including creative solutions has been renamed to honor the $500 to the NCBA, the ADR Tribunals not available elsewhere. For the late State Supreme Court Administrator Demi Tsiopelas will lawyers, well, what better source of Justice Joel K. Asarch. The provide a list of panel members, along future business is there than a happy scholarship was created to with their resumes, from which to client?” encourage lawyers and law stu - choose an arbitrator or mediator. A The Arbitration Alternative dents to practice elder law deposit of $1,800 ($300 per hour for 6 throughout New York. “Justice hours) is required for the chosen arbi - Anyone opting for alternative dis - Asarch was an excellent friend trator or mediator. If the matter takes pute resolution through the NCBA to the Elder Law Section and less than six hours to conclude, any ADR Tribunals must be crystal clear its members for many years. balance is to be refunded. Unless oth - about the differences between arbitra - He is truly missed by the bench erwise agreed by the parties, all fees tion and mediation. True, there are and the bar,” said chairman of will be borne equally by the parties. some similarities between the two the State Bar Association’s The Case for the Mediation processes: both are alternatives to liti - Elder Law Section, Anthony J. Alternative gation, both are confidential and Enea. involve a “neutral,” and, certainly, in In litigation, the dispute between the case of the NCBA ADR Tribunals,

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Eastern District Clarifies No ‘Strip Off’ of Wholly Unsecured Junior Mortgage Liens

By Michael L. Moskowitz and debtor may not “strip off” an underwa - precedents – Dewsnup v. Timm and such an interpretation of the Dewsnup Melissa A. Guseynov ter junior mortgage pursuant to section Nobelman v. American Savings Bank 13 decision is a “proper and consistent 506(d) of the Bankruptcy Code. Section – and several other cases in the Second application of Section 506, and not A debtor’s ability to avoid or “strip 506(a) of the Bankruptcy Code provides Circuit and beyond. In Dewsnup , a inconsistent with the Second Circuit’s of f”1 an underwater junior mortgage that an allowed under-secured claim is Chapter 7 debtor sought to strip down a decision in In re Pond .” 17 Furthermore, lien 2 has remained a controversial treated as a secured claim to the extent mortgage lien to the fair mar - from a public policy stand - topic here in the Eastern District of New of the value of the interest in the collat - ket value of the property point, enabling a Chapter 7 York and beyond. Within the Eastern eral, and as an unsecured claim to the under sections 506(a) and debtor to nullify a mortgage District – which includes Kings, Queens, extent of any deficiency. 7 Section 506(d) 506(d) of the Bankruptcy lien would entirely eradicate Richmond, Nassau and Suffolk Coun- states that a lien that secures a claim Code. The Supreme Court the creditor’s in rem rights ties – there has been a split of authority against a debtor is void unless it is an held that section 506(d) does against the property, which between bankruptcy judges sitting in “allowed secured claim.” 8 not permit a Chapter 7 debtor would furnish a debtor with a Central Islip on the issues. Judge Observing that whether a Chapter 7 to reduce the lien, because head start rather than a fresh Trust 3 and Judge Grossman 4 have both debtor may void an unsecured junior the claim was secured by the start, which is contrary to the ruled that lien stripping by a Chapter 7 mortgage is currently an open issue in lien and was fully allowed. primary purpose of Chapter debtor is impermissible, while Judge the Second Circuit, 9 Judge Spatt con - Approximately one year after 7. 18 Eisenberg 5 has held otherwise. cluded that pertinent U.S. Supreme deciding Dewsnup , the However, a minority of In the recent Eastern District of New Court precedent, specifically Dewsnup Supreme Court issued its courts have held the con - York decision Wachovia Mortgage v. v. Timm ,10 governed, and that the opinion in Nobelman v. Michael L. trary, permitting a Chapter 7 Smoot, 6 Judge Spatt resolved the split majority of cases interpreting Dewsnup American Savings Bank , Moskowitz debtor to strip off a junior among the Eastern District bankruptcy to prohibit lien stripping were correct. 11 which analyzed whether a mortgage lien. For example, judges by holding that a Chapter 7 In beginning his analysis, Judge Chapter 13 debtor could invoke section in a recent unpublished decision, In re Spatt first examined the significant dis - 1322(b)(2) of the Bankruptcy Code, 14 McNeal , the Eleventh Circuit held that tinctions between Chapter 13 and the anti-modification clause, to strip a Chapter 7 debtor could use sections Chapter 7. 12 The Court distinguished down a mortgage. 15 In Nobelman , the 506(a) and 506(d) to strip off a wholly that Chapter 7 is a “liquidation chap - Supreme Court ultimately disallowed unsecured junior mortgage lien. 19 ter,” while Chapter 13, the “repayment the bifurcation of an under-secured Notably, many of the cases adopting chapter,” focuses on a reorganization claim secured by a lien on a debtor’s this minority view have been overruled plan that provides the debtor with a principal residence in a Chapter 13 or questioned. 20 blueprint to repay pre-petition debts case. Judge Spatt concurred with the pre - within 3 to 5 years. A creditor’s liens on A majority of courts that have consid - ponderance of courts that have real property generally pass through a ered whether a Chapter 7 debtor may addressed the issue and held that debtor’s Chapter 7 bankruptcy unaffect - void an underwater mortgage lien have Dewsnup prohibited the debtor from ed, while the same is not always true in concluded that Dewsnup’s holding avoiding the mortgage lien in ques - a Chapter 13 case. regarding stripping down also prohibits tion. 21 The Court further expounded In addition, Judge Spatt thoroughly stripping off of unsecured mortgage that the Supreme Court in Dewsnup 16 examined two seminal Supreme Court liens. As affirmed by Judge Trust, See JUNIOR MORTGAGE, Page 18 Court of Appeals Breathes New Life into ‘Separate Entity Rule’

On April 30, 2013, the New York State Court of has an interest in the possession of banks. Pursuant to longer valid” and “obsolete” due to banks’ intercon - Appeals issued a decision about the scope of post-judg - the separate entity rule, each bank branch is treated nectedness via high speed computers and sophisticat - ment asset turnover orders under CPLR § 5225. In as a separate entity for attachment or garnishment ed communications equipment to track depositors’ Commonwealth of Northern Marianas Islands v. purposes. 2 Under the rule, to attach the assets of a accounts. The court held that a judgment creditor’s Canadian Imperial Bank of Commerce , the judgment debtor, the judgment creditor service of a restraining order upon a bank’s “main Court of Appeals held that a turnover order must serve a restraining notice, turnover office” is sufficient to restrain assets in the possession issued to a parent bank under CPLR § petition or similar process on the office of of another branch of the bank within New York. In 5225(b) is not enforceable against the the specific bank branch where the debtor 1996, the First Department appeared to adopt the bank’s subsidiary unless the parent has maintains its account. 3 In its pure form, the rule in Digitrex .5 “actual possession” of the assets sought. 1 “separate entity rule” meant that if the judg - The Court of Appeals has never considered Answering a certified question from the ment debtor’s assets were on deposit in an whether the “separate entity rule” remains the law U.S. Court of Appeals for the Second out-of-state bank branch, they were not after Digitrex . In 2009, however, the Court of Circuit, the Court ruled that a parent subject to turnover in New York, Appeals issued a decision with practical bank’s “constructive possession or custody” even if the bank’s main office implications for the “separate entity over assets in the actual possession of its was located in New York and rule.” In Koehler v. Bank of Bermuda subsidiary is insufficient to compel the par - subject to personal jurisdic - Ltd. , which was also based upon a ent to surrender those assets to a judgment tion. certified question from the creditor. Frank McRoberts Over the past three Second Circuit, the Court of Marianas was an important decision for decades, the “separate Appeals held that CPLR § 5225 the banking industry. Parent banks no longer need to entity rule” has been eroded authorizes a New York court to bear the administrative burden and potential liability somewhat, particularly in federal require a bank over which it associated with identifying and turning over assets in court. In Digitrex, Inc. v. Johnson , has personal jurisdiction to the possession of far-flung subsidiaries simply the Southern District ruled that turn over assets in New York, because of the parent-subsidiary relationship. But the New York law does not necessari - even if those assets are physi - unstated implications of Marianas may prove even ly require a restraining notice to cally located outside of the more favorable to banks. Above all, the holding in be served upon the particular state. 6 In Koehler , the Court of Marianas appears to breathe new life into the “sepa - branch at which the judgment Appeals quoted a First rate entity rule.” debtor maintains its account for Department decision in which The “separate entity rule” is a common-law doc - the restraint to be effective. 4 The the Court held that “New York trine applicable in post-judgment turnover proceed - court expressed its belief that the ings involving assets in which the judgment debtor “separate entity rule” was “no See SEPARATE ENTITY, Page 18 4 n July/August 2013 n Nassau Lawyer Challenges and Opportunities, Part 2 Nassau On various occasions last year, our Bar Association years, more and more of the decision making in our Bar found itself responding to significant unexpected chal - Association has centered in our Executive Committee, Lawyer lenges that came our way, which were dealt with in an usurping to some degree the role of the Board of Directors, exemplary fashion under the leadership of Immediate Past which has the responsibility under our bylaws to govern The Official Publication of the President Marian Rice. This year, my hope is that we will our Bar Association. We will act to reverse that trend this Nassau County Bar Association find ourselves spending less time reacting to matters year by bringing all non-emergency governance decisions 15th & West Streets requiring immediate attention, and more of it addressing to the Board of Directors. It is also my intention to enliven Mineola, N.Y. 11501 some basic governance issues involving the relationships our board meetings by having highly interactive discus - Phone: (516) 74 7- 4070 Fax: (516) 747-4147 between our Board of Directors, Executive Committee and sions of proposals to adopt various best governance prac - www.nassaubar.org our Executive Director in light of best governance prac - tices, and by considering the approval of a strategic plan E-mail: [email protected] tices, and that we will be able to identify struc - for our Bar Association. tural and process areas where improvements In that regard, I would like to thank Past can make for a more effective and strategically President Sue Richman, who has taken on the NCBA Officers focused Bar Association going forward. task of chairing the Strategic Planning President For example, presently we require any mem - Committee. If properly done, such a plan is a Peter J. Mancuso, Esq. ber who aspires to serve as president of our Bar tremendous tool for the long term positioning of President-Elect Association to agree to a seven year commit - our Bar Association and to assist our Board and John P. McEntee, Esq. ment to go up through the chairs as an officer in Executive Director to keep us on track during First Vice President order to be considered for an officer position by that journey, without the zigzagging that other - Steven J. Eisman, Esq. our Nominating Committee. In my view, this is wise easily occurs in organizations whose pres - Second Vice President simply too much to ask. Such a lengthy com - idents and personal priorities change from year Martha Krisel, Esq. mitment is not required in order to develop the to year. Treasurer experience necessary to be an effective presi - Another tool that will benefit our Bar Steven G. Leventhal, Esq. dent; and in fact, we have had excellent presi - FROM THE Association this year is a revitalized Financial Secretary dents who moved into that position a year early Oversight Committee. Under our bylaws, this Elena Karabatos, Esq. because of resignations of other officers. A com - PRESIDENT committee has a broad mandate to examine all Executive Director mitment of such length also discourages mem - of our financial and budgetary dealings and to Keith J. Soressi, Esq. bers who are otherwise well qualified from Peter J. Mancuso return recommendations to our Board of seeking office, particularly younger members Directors for reform. Given the fact that we Editor-In-Chief whose interest in leadership positions is to be encouraged. have run up a cumulative budget deficit of approximately Christopher J. DelliCarpini, Esq. $950,000 in the five years since the Great Recession of Associate Editor This year, my hope is that we will find 2008, there will be much work for this committee to do, Allison C. Shields, Esq. and it will be expected to report to the Board of Directors Editor/Production Manager ourselves spending less time reacting to on its activities on a regular basis. Sheryl Palley-Engel matters requiring immediate attention, and Finally, on an entirely different note, I would like to Assistant Editor take this opportunity to congratulate Barbara Kraut, who Valerie Zurblis more of it addressing some basic governance has announced her retirement after 30 years of service to Photographer Hector Herrera issues ... where improvements can make for our Bar Association, the last 26 of which were spent as the Director of our Academy of Law. It was in this position that I really got to know her, first while I was on the NAL Focus Editor of the Month a more effective and strategically focused Jeff Morgenstern, Esq. Advisory Board, and then as NAL Dean. What a wonderful Commercial Law Bar Association going forward. person she is, and what a tremendous job she has done of guiding our NAL offerings through the shifting sands of Upcoming 2013 Focus Issues The same conclusions were reached in an operational CLE in New York State over the years! She is well known September – Real Estate Law survey of our Bar Association that was conducted by the and has been recognized for her devotion to her work and October – General/OCA Issue American Bar Association in 2006, but their recommenda - for her constant efforts to improve the quality and diversi - November – Intellectual Property Law tion was never acted upon. Now is the time for us to do so. ty of our course offerings. She has also been a good friend Reducing this commitment from seven to six years would to many of us whose lives have been touched by her kind Committee Editors be a step in the right direction, and it could easily be done and caring ways. Barbara’s departure is expected toward Christopher J. DelliCarpini, Esq., Chair by reducing our number of vice-presidents from two to one. the end of the summer and we will be honoring her for her Allison C. Shields, Esq., Vice Chair This change would require an amendment to our bylaws, outstanding service to our Bar Association in September. Deborah S. Barcham, Esq. which I intend to bring up for discussion at our next Board Details about that will be forthcoming, but for here and Gale D. Berg, Esq. of Directors meeting. now, we thank her for everything that she has done to ben - Deanne Caputo, Esq. Richard D. Collins, Esq. A more immediate issue is that over the course of many efit our members and those we serve. James Fiorillo, Esq. Avrohom Gefen, Esq. Nancy Gianakos, Esq. Robert S. Grossman, Esq. Be Advised: Online Scammers Target Escrow Accounts Kristina S. Heuser, Esq. From the Grievance Committee of along with a request for more informa - Although this particular attorney Charles E. Holster III, Esq. Paul Hyl, Esq. the Tenth Judicial Circuit comes a tion and details. listened to his gut and did some due Gail Jacobs, Esq. warning this month of a scam being The retainer was signed and diligence, the next steps in the scam George M. Kaplan, Esq. perpetrated on attorneys in Nassau returned, but the client provided little would have been the deposit of the Martha Krisel, Esq. and Suffolk Counties, as well as or no further information to enable the “official” check into his escrow account Kenneth J. Landau, Esq. nationwide. attorney to pursue the matter. Wary, followed by a frantic request by the Douglas M. Lieberman, Esq. A Nassau County attorney recently the attorney investigated and found “client” to wire the funds immediately Thomas McKevitt, Esq. called the Committee and relayed a set information on this type of situation to an unrelated party on the client’s Jeff H. Morgenstern, Esq. Daniel W. Russo, Esq. of facts that has become all too famil - and recognized the potential scam. He behalf. Many attorneys unfortunately Meryl D. Serotta, Esq. iar. Fortunately, the attorney extricat - quickly wrote an email to the client take the bait and wire the funds as Rita Sethi, Esq. ed himself before being victimized. terminating the retainer. requested, under the assumption that Andrij V.R. Szul, Esq. Although the background stories vary The very same day, he received an an “official” bank check clears quickly Chris Wittstruck, Esq. from case to case, the scam follows the overnight package containing, among upon deposit. same basic pattern, and too many other things, an “official” bank check Weeks later, the “official” bank Published by Long Island Business News attorneys remain at risk. for $200,000, payable to his order, “as check proves to be a forgery, and the (631) 737-1700; Fax: (631) 737-1890 This particular attorney received an attorney,” ostensibly from the delin - attorney is left with a significant Editor and Publisher email from a prospective client in quent ex-spouse. As in most of these deficit in his escrow account, paid with John L. Kominicki Japan, who claimed that her New cases, the sender’s address was con - other client funds, and no recourse. Graphic Artist York based ex-spouse was significantly fused and misleading, making refer - Needless to say, a problem with the Nancy Wright in arrears in the payment of support, ences to both Rochester and Canada. In Grievance Committee may soon follow. Nassau Lawyer (USPS No. 007-505) is pub - and she needed local counsel. most of these cases, the initial call or The Committee suggests that any lished monthly, except combined issue of July Although the attorney was somewhat emails come from Asia or the Far East attorneys who encounter such scams and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, skeptical, he emailed a retainer agree - and the check or subsequent correspon - report them to the FBI; otherwise, Ronkonkoma, NY 11779-7348, under the aus - ment, etc., to the prospective client, dence has some connection to Canada. there is not much else that can be done. pices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 and at additional entries. Contents copyright The Nassau Lawyer welcomes articles that are written by the members of the Nassau County Bar Association, which would be of interest to New York State ©2013. Postmaster: Send address changes to the Nassau County Bar Association, 15th and lawyers. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its editors, or NCBA, West Streets, Mineola, NY 11501. unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations. Nassau Lawyer n July/August 2013 n 5 Commercial Law Eastern District Roundup

The last six months have seen an On a separate issue, the Court reit - interesting collection of decisions com - erated the well-settled rule that the ing out of the Bankruptcy Court of the interests of nondebtor spouses in a mat - Eastern District of New York. Here is a rimonial action do not vest in a debtor’s capsule look at some of the highlights: property where the Judgment of Exemptions Divorce is not entered until after the bankruptcy case is filed, leaving them In re: Phillips – 12/27/12 as an unsecured creditor. (Case No. 12-72379) 1 A Chapter 7 debtor sought to claim Objection to an exemption of two discrete personal Discharge/Dischargeability injury actions under Section 522(d)(11) In re: Virovlyansky – 1/11/13 of the Bankruptcy Code, potentially (Case No. 11-45486) doubling the $21,625 exemption avail - A discharge was denied to a Chapter able, on the grounds that he suffered 7 debtor for failing to list income he had multiple injuries from separate car acci - earned over a two-year period in dents. In applying the plain meaning of Russia, and for misrepresenting that he the statute and the rules of statutory was unemployed during that period; the construction, Judge Trust held that the fact that this information was disclosed singular phrase “payment for personal in an amended schedule was insuffi - bodily injury” encompassed multiple cient. payments and/or injuries in the aggre - gate, regardless of the number of In re: Vazzaro – 1/14/13 injuries suffered, the number of events (Case No. 10-74869) causing them, or how many payments the debtor expects. Therefore, the One week before filing for bankrupt - debtor was limited to an exemption of cy, the debtor, a guarantor of business $21,625.00 loans, transferred his interest in a mortgage brokerage company In re: Cambria – 2/14/13 to a co-shareholder in a (Case No. 12-70608) 2 newly formed entity for no consideration and did not dis - The joint debtors claimed close the transfer in his peti - a combined homestead tion. He claimed that he did exemption of $43,250 under not have a vested interest in 11 U.S.C. § 522(d)(1), and the original company, and then tried to claim another even if he did, it had nominal $9,227.15 of value in their value. homestead exemption under In holding that full disclo - the “wild card” statute of 11 sure was required, that mul - U.S.C. § 522(d)(5). In ruling tiple omissions or misstate - on a motion to avoid judicial ments were not necessary, liens, Judge Eisenberg held Jeff Morgenstern and that the issue did not that the “wild card” exemp - turn on the value of the omitted asset tion could only be utilized to the extent Judge Grossman denied the debtor’s that the homestead exemption was not discharge and found that there was a fully claimed, and only then up to transfer made with an intent to hinder, $11,975. Since the debtors had already delay, or defraud creditors. claimed the full homestead exemption allowed, there was no “unused” portion In re: Goldberg – 1/29/13 that could be allocated to the “wild (Case No. 11-78915) 4 card” exemption. Therefore, the home - stead exemption was limited to $43,250. This involved an action to block the discharge of a debt based upon a pre- In re: Bellafiore – 5/20/13 petition State Court money judgment of (Case No. 12-76284) 3 about $244,000 for wrongful termina - tion of employment and retaliation due Just prior to his Chapter 7 filing, the to pregnancy. The plaintiff in State debtor contracted to sell the house he Court was an attorney employed at the lived in for $582,000, encumbered by defendant’s law firm who was terminat - two mortgages totaling about $491,000. ed after being out on maternity leave He claimed a homestead exemption in for the third time. The Bankruptcy his petition of about $90,000 under New Court examined the underlying State York law. The trustee objected to the Court judgment under the principle of exemption, claiming that the debtor did “collateral estoppel” to determine if it not have the intent to reside there per - would have preclusive effect in the sub - manently, by virtue of his contract to sequent nondischargeability action. In sell the house. Judge Eisenberg found the latter action, the plaintiff creditor that the homestead exemption statute had to establish a debt owed due to had no such requirement, and that the “willful and malicious injury” under exemption was proper since the debtor Section 523(a)(6) of the Bankruptcy “owned and occupied it as his primary Code, which was not a necessary ele - residence” on the filing date. ment of the State Court’s judgment. The Court also concluded that there After applying the doctrine of collat - was no requirement that the net pro - eral estoppel under New York Law, ceeds of sale be used to purchase anoth - Judge Grossman found that: a) the er homestead within a year under debtor had a full and fair opportunity to CPLR 5206(e), since that Section only litigate plaintiff’s claims in State Court, applied to involuntary sales by judg - and b) the legal and/or factual findings ment creditors and not voluntary sales clearly and unequivocally established by debtors. The debtor’s motion to com - the statutory claim for “willful and pel an abandonment by the trustee of malicious injury.” Despite the fact that the net proceeds of sale was granted, an identity of issues between the State since it was far less that the allowed homestead exemption. See ROUNDUP, Page 15 6 n July/August 2013 n Nassau Lawyer

E! Report on the NYS Bar Assn AT D Summer Meeting in Cooperstown HE DOMUS T VE By Scott M. Karson resolution proposed by the Committee A The annual summer meeting of the on Diversity and Inclusion to continue ON THE the diversity seats for an additional ten S New York State Bar Association was held on June 20 – June 23, 2013 at the year period. Otesaga Hotel in bucolic Cooperstown, The prestigious Root/Stimson Award LAWN New York. The Association’s policy- is presented annually to a lawyer who making body, the House of Delegates, has demonstrated a significant, posi - met on Saturday, June 22, 2013, with tive impact in the community, state or A fun time to NYSBA President-Elect Glenn Lau- nation that is unrelated to the practice Kee of New York City, presiding as of law. The 2013 award was presented kick-off Chair of the House. to Elizabeth Wolford of Rochester. Ms. Wolford was recently nominated by the fall season at The meeting of the House was high - lighted by the formal installation of President Obama to serve as a U.S. Domus! David M. Schraver, a partner at Nixon District Judge in the Western District Peabody, LLP in Rochester, as the of New York. 116th President of the Association. An opportunity for members and prospective members The oath of office was administered to The meeting of the House Mr. Schraver by one of his partners, G. to meet, greet and eat! Robert Witmer, Jr., himself a former was highlighted by the President of the Association. formal installation of Addressing the House, President Annual NCBA BBQ Schraver stated that the motto for his David M. Schraver, a administration will be, “serving the profession and serving the public.” He partner at Nixon Peabody, Thursday, September 12, 2013 intends to focus particular attention on legal education, and will convene a LLP in Rochester, as the 5:30 - 7:30 p.m. conclave of interested stakeholders 116th President of the during his tenure as President to con - sider and recommend ways to improve Association. RAIN OR SHINE the education of lawyers. Mr. Schraver also reported to the House on the rule promulgated by American Bar Association Presi- Chief Judge Jonathan Lippman, effec - dent Elect James Silkenat of Watch the mail for your invitation!! tive May 1, 2013, requiring lawyers to Worcester & Sullivan in New York report the number of hours of pro bono City also ad dressed the House. When There is no charge for this event. Pre-Registration is required. legal services performed, as well as he assumes the presidency at the con - financial contributions made to organi - clusion of the ABA annual meeting, zations providing legal services to the to be held in San Francisco in August, poor, on their biennial registration Mr. Silkenat will became the first forms. Noting that this rule is contrary ABA President from New York since to NYSBA policy, established in 2004, Robert MacCrate in 1987-88. Among which opposes mandatory reporting of Mr. Silkenat’s goals is to find a way to pro bono services, the Association’s match newly-admitted but under- opposition to the new rule will be con - employed lawyers with under-repre - veyed to the Chief Judge by President sented segments of our society. Schraver. The Association’s Executive Com - In 2004, the Association’s bylaws mittee approved a proposal by the were amended to provide for two at- Judicial Section to establish a large seats on the Executive Distinguished Jurist Award. Committee and twelve seats in the The next meeting of the House of House of Delegates, to be appointed by Delegates will be held on Saturday, the President to advance racial and November 2, 2013, at the State Bar ethnic diversity in each of those bodies. Center in Albany, New York. The pertinent bylaws provisions con - Scott M. Karson is the Vice President of the tained a “sunset” clause providing that NYSBA for the Tenth Judicial District. He is these provisions would – if not extend - a former President of the SCBA, a member ed – expire after 10 years; i.e. , on of the Nassau County Bar Association, a November 6, 2014. In Cooperstown, member of the ABA House of Delegates and a partner at Lamb & Barnosky, LLP in the House unanimously approved a Melville.

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Nassau Lawyer n July/August 2013 n 7 Commercial Law Protecting Assets In Bankruptcy

Exemptions protect a debtor’s assets from the reach general overview. of judgment creditors or, in the context of bankruptcy, One of the most significant exemptions available to from the trustee. Bankruptcy Code section 522 lists New Yorkers is the “homestead exemption” which pro - the federal bankruptcy exemptions available to tects a debtor’s primary residence against liquidation debtors to protect their assets in a bankruptcy pro - by the bankruptcy trustee. In New York, the home - ceeding. stead exemption, as with most exemptions, are covered The Bankruptcy Code, however, provides that each by the CPLR sections 5205 and 5206, or the Debtor state has the right to “opt out” of the federal and Creditor Law sections 282 and 283. The exemptions and instead apply its own state homestead exemption for residents residing exemptions. For many years New York in the metropolitan New York area, which opted out of the federal exemptions, limiting includes the five boroughs, Nassau, Suffolk, an individual filing for bankruptcy to appli - Rockland, Westchester and Putnam County, cation of the New York exemptions only. is $150,000. In 2011, New York changed its statute to For residents of Duchess, Albany, allow debtors filing for bankruptcy protec - Columbia, Orange, Saratoga and Ulster tion to use either the federal exemptions or Counties, the exemption is $125,000, and the New York exemptions. A debtor is not for all other counties in New York it is allowed, however, to cherry pick the exemp - $75,000. The exemption is applied after tions and apply part of the federal exemp - deducting the outstanding balance on the tions and part of the New York exemptions. mortgage(s). For instance, assuming a Therefore, when filing a bankruptcy a Kenneth Halpern house in Nassau County is worth $600,000 debtor must decide whether to apply only with a $400,000 mortgage, and the proper - federal exemptions or only New York exemptions. A ty is owned by both husband and wife, and both file husband and wife filing a joint bankruptcy petition for bankruptcy, they would be entitled to a total of a exceeds the mortgage balance(s) and the homestead may each take the exemptions, thereby doubling the $300,000 exemption ($150,000 each) by using the exemption then the trustee could sell the property available exemptions in a joint bankruptcy petition. New York exemption. In this example, since the equi - (usually at auction), pay the mortgage(s), and give the Exemptions may be available to protect the equity in ty is only $200,000 the house is fully protected. If, in debtor(s) their homestead exemption, then use the bal - property after allowance for the security interest or the same scenario, only one spouse filed for bank - ance to pay the estate expenses and make distribution mortgage on the particular asset, but more about that ruptcy, the residence would still be protected because to creditors that filed claims. In this situation, the later. the equity would be divided in half and, therefore, the debtor(s) might choose to file a Chapter 13 to save their This article addresses the most commonly used $150,000 homestead exemption would protect the residence, but that is not the subject of this article. exemptions. It is not intended to cover all federal and residence. In the event that the debtor is a renter and does New York exemptions, its purpose being to promote a On the other hand, if the value of the residence See BANKRUPTCY, Page 17

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   8 n July/August 2013 n Nassau Lawyer IN BRIEF

State Bar Association’s Committee on Interim Finance Authority. Since 2005, as the region's "Top Legal Eagle for Member Activities Legal Education and Admission to the he has also been included in New York Litigation." He has also been recognized Irene V. Villacci was recently Bar and the Committee on Professional Metro Super Lawyers, and listed in The by New York Super Lawyers, two years installed as President-Elect of the Discipline. Ms. Cooper, who concentrates Best Lawyers in America for 23 years. in a row, as a leading litigation attorney. Women’s Bar Association of the State her practice in estate litigation, is a past Partner and director Jeffrey S. Brown Mr. Schlosser is a member of the faculty of New York (WBASNY) at the organiza - Chair of the State Bar Association’s was cited for excellence in “Healthcare” of the National Institute for Trial tion’s Annual Convention in Phila - Trusts and Estates Law Section and is for New Jersey. Mr. Brown is a frequent Advocacy, has chaired the Continuing delphia. Ms. Villacci, who had previously the Suffolk County Bar Association’s speaker on healthcare issues, including Legal Education Program on New York served as a Vice President and representative to the State lecturing at the Seton Hall University Civil Motion Practice at Hofstra Law Corresponding Secretary, is a Bar Association’s House of School of Law where he serves on the School, and is a member of the Con - former President of the Nassau Delegates. She is also the Advisory Board of the Health Law & tinuing Legal Education faculty panel of County Women’s Bar Associ - author of “Case Notes” and a Policy Program, as well as before the the New York State Bar Association and ation. She concentrates her past President of the Suffolk New Jersey Association of Health Care the Nassau County Bar Association practice in elder law, wills, County Bar Association. Facilities, the Bergen County Medical Academy of Law. He also received the trusts and estates, Guard- Ms. Cooper earned her Juris Society and Bergen County Bar Associ - 2003 Leadership Award presented by ianships, and real estate. Ms. Doctor from Hofstra Uni - ation. Mr. Brown has been featured in the Long Island Chapter of the National Villacci, who earned her Juris versity School of Law. Chambers USA since 2009 and in New Multiple Sclerosis Society. Mr. Schlosser Doctor from Hofstra University Richard Eisenberg , Of Jersey Super Lawyers for eight years. earned his Juris Doctor from Hofstra School of Law, is also a former Counsel to Meyer, Suozzi, William J. O’Mahony and Michael University School of Law, with distinction. Village of East Rockaway English & Klein, P.C., was Sepe of Rockville Centre-based Sepe & James Garbus , a member and co- Trustee. appointed as a member of O’Mahony, PLLC have been rated “AV chair of both the Corporate Law and A. Thomas Levin , a mem - Hon. Stephen L. the Board of Trustees at Preeminent” by Martindale-Hubbell, Corporate Finance practice groups at ber and Chair of the Municipal Ukeiley Usdan Center For the the highest possible rating in both legal Meyer, Suozzi, English & Klein P.C., has Law, Land Use and Environ - Creative and Performing ability and ethical standards, as estab - been appointed to the Board of Directors mental Compliance practice and the Arts. Mr. Eisenberg practices in the lished by the confidential peer review for the Long Island Gay, Lesbian, Professional Responsibility practice at Corporate, Real Estate and Litigation opinions obtained from members of the Bisexual & Transgender Network. Mr. Meyer, Suozzi, English & Klein P.C., and Dispute Resolution Departments at Bar and Judiciary. As a firm Sepe & Garbus concentrates his practice in was recently appointed as a member of the firm. He began his career as a O’Mahony, PLLC has also been recog - mergers and acquisitions and corporate the American Bar Association’s Stand - Kings County Assistant District Attor - nized in the Bar Register of Preeminent finance. ing Committee on Public Education. Mr. ney. Mr. Eisenberg earned his Juris Lawyers. Eugene S. Ginsberg , a full-time Levin is a former President of the New Doctor from Boston University Law James C. Ricca , a partner at impartial mediator, arbitrator, fact finder York State Bar Association (NYSBA) School. Forchelli, Curto, Deegan, Schwartz, and hearing offer, received The Robert W. and a Life Member of that Association’s Garfunkel Wild, P.C. was recognized Mineo & Terrana, LLP, has been select - MacGregor Labor Relations and Com - House of Delegates. He is also a member in Chambers USA having earned ed as one of the Top Ten Legal Eagles by munity Service Award from the Long of the Executive Committees of the Awards for Excellence in the category of LI Pulse Magazine. Mr. Ricca concen - Island Chapter of LERA (Labor Em - NYSBA Municipal Law Section, Inter - “Healthcare” for both New York and trates his practice in the areas of bank - ployment Relations Association). Mr. national Section and Senior Lawyers New Jersey. Founding partner and ing, corporate and finance law, foreclo - Ginsberg has been the Chapter’s Section, and has served as Chair or chairman Robert Andrew Wild was sures, trusts and estates and real estate Treasurer since 1988. He received the Executive Committee Liaison to several also recognized as a healthcare lawyer litigation. He chairs the Queens County Bar Association’s President’s Award in committees. Mr. Levin has also served both in New York (“Healthcare”) and Bar Association’s Banking Law Commit - 2004 and was previously recognized on the New York State Independent nationwide (“Healthcare: Regulatory & tee and has authored numerous articles. for his Distinguished Professional Judicial Qualification Commission for Litigation”). Mr. Wild, who concentrates Mr. Ricca has been recognized by the Achievement by the Labor and the Tenth Judicial District and as Chair his practice on complex transactions for Neighborhood Housing Development Employment Law Committee, which he of the New York State Conference of Bar healthcare providers, is a Chairman and Corp. for his pro bono services, has formerly chaired. Mr. Ginsberg is a Leaders. Board member of Long Island United served as a volunteer mentor with the Fellow of the College of Labor and Ilene Sherwyn Cooper , a trusts Way, a Board member of the Alumni Big Brothers/Big Sisters Organization Employment Lawyers, a Fellow of the and estates partner at Farrell Fritz, Association of St John’s Law School, and and as a Trustee on the Board of College of Commercial Arbitrators and a P.C., was appointed to the New York a past Board member of the Nassau Jamaica Hospital. Mr. Ricca was a recip - member of the National Academy of ient of the “50 Around 50” award by the Distinguished Neutrals. Mr. Ginsberg Long Island Business News (2010) and earned his Juris Doctor from New York has on several occasions been selected for University Law School and is a former Member Benefits inclusion in New York’s Super Lawyers. adjunct professor at the Touro College Kevin Schlosser , a partner and Jacob D. Fuchsberg Law Center. He Chair of the Litigation Department of received his Fifty Year Certificate and Meyer, Suozzi, English & Klein, P.C., “Medal” from the Bar Association in 2005. was appointed Chair of the Commercial Leslie Tayne of the Melville-based MEMBER DIRECTORY Litigation Committee of the Bar Assoc - Law Offices of Leslie H. Tayne P.C. was iation. Mr. Schlosser, who has been recently appointed Vice Chair of the Bar Information on members, court personnel, legal organizations, involved in all aspects of state and feder - Association’s Attorneys and Accoun - committees and more. al litigation, was recognized by the New tants Committee. Ms. Tayne, who is also York Law Journal in 2013 for obtaining a volunteer with the Association’s the largest jury verdict in a contract Mortgage Foreclosure Clinic, is a board DOMUS DINING case in the State of New York. He is member of the Jewish Lawyers Did you know that you can sign for your lunch at Domus? One of rated “AV Preeminent” by Martindale- Association of Nassau County and is Vice your benefits of membership is that you automatically have a Hubbell, and was recognized by Long President of the Work and Family “house” account. You will be billed at the end of each month. Island Pulse Magazine in 2010 and 2011 See IN BRIEF, Page 14 Simply present your membership card to the cashier in the Dining Room at Domus. COMMITTEE REPORT Appellate Division of the Supreme COMMITTEE MEMBERSHIP Appellate Practice Court, Second Judicial Department, Don’t miss out on what may be your most valuable member benefit, Meeting Dates: 5/21/13, 6/25/13 who delivered a lecture regarding medi - Committee Membership. With over 50 committees to choose Chair: Jackie Gross ation of appellate disputes from, at least one must be right for you! You can select committees and oral argument practices. The Committee held two Upcoming lunch meeting online at www.nassaubar.org or call Donna or Stephanie in the meetings in late spring. At scheduled for Tuesday, membership office (516-747-4070). There are no additional fees for the May 2013 meeting, the September 24, 2013 at 12:30 joining committees. Committee featured guest p.m. The scheduled discus - speakers Aprilanne Agostino, sion topic concerns Family Esq., Clerk of the Appellate Court appeals. All NCBA E-BULLETIN Division of the Supreme members are welcome to Emails sent to members on a regular basis contain pertinent Court, Second Judicial attend. information including upcoming events and seminars, as well as Department, and Principal Appellate Court Attorney Michael J. Langer, an associate in the Law Offices of Kenneth J. benefits, important news and more. Please make sure we have your Kenneth Band, Esq., who Weinstein, is a former law clerk current email address in our records so you don’t miss out on this provided substantial guid - Michael J. Langer in the United States Court of ance for the appellate practi - Appeals for the Second Circuit, valuable benefit. Send email additions/ changes/ corrections to and a former Deputy County tioner both new and seasoned. The Attorney in the Office of the Nassau County [email protected] Committee’s June 2013 meeting fea - Attorney. Mr. Langer's practice focuses on tured Ariel Belen, former Justice of the matrimonial and family law, criminal defense and general civil litigation. Nassau Lawyer n July/August 2013 n 9 Commercial Law

NY Claims for Contribution by Bankruptcy Trustees

Under the Bankruptcy Code a as the Wagoner rule, which is a variant claimed damages. 11 The effect is that a to assert. 17 Generally, a bankruptcy Chapter 7 bankruptcy trustee is forti - of New York’s in pari delicto defense. 5 In tortfeasor who is forced to pay more trustee’s claim for contribution is fied with all of the rights that the debtor pari delicto is an equitable doctrine and than his share of liability could be made premised on state common law claims, had as of the petition date, which is rooted in the common-law notion that whole. 12 Specifically, CPLR § 1401 pro - including fraud, aiding and abetting a includes all causes of action the debtor a plaintiff's recovery may be barred by vides for contribution claims among fraud, breach of fiduciary duty, negli - could have brought prepetition. 1 his own wrongful conduct. 6 The in pari “two or more persons who are gence and/or malpractice. Fact Creative bankruptcy trustees are delicto doctrine subjects claims to dis - subject to liability for dam - patterns that involve bank - increasingly asserting claims for contri - missal based on a premise that (i) courts ages for the same personal ruptcy trustees asserting a bution under New York statutory law should not mediate disputes between injury, injury to property claim for contribution include, against third parties such as, banks, wrongdoers, and (ii) denying judicial or wrongful death.” 13 “The for example, an accounting or accountants and attorneys, on behalf of relief to a wrongdoer is an effective amount of contribution to law firm that advised an enti - debtors who engaged in fraudulent means to deter illegal conduct. 7 which a person is entitled ty involved in gross misman - behavior, such as a ponzi scheme. 2 The Second Circuit views issues of shall be the excess paid by agement prior to bankrupt - Under this theory, even though a misconduct by a debtor as a matter of him over and above his equi - cy, 18 and when banks held third-party may not be directly liable to standing in the first instance rather table share of the judgment monies on behalf of ponzi the wronged investors, and may not owe than as an equitable defense such as in recovered by the injured scheme perpetrators. 19 When them a duty of care, the bankruptcy pari delicto .8 In essence, under party.... The equitable shares exploring the viability of a trustee is attempting to seek contribution Wagoner , a bankruptcy trustee lacks shall be determined in accor - contribution claim in New from the third party for amounts the standing to pursue claims against a dance with the relative Shannon Anne York and in the Second trustee pays to creditors in satisfaction of third party for defrauding a fraudulent culpability of each person Scott Circuit, the overriding issue is the wronged investors’ allowed claims. 3 debtor because the trustee stands in the liable for contribution.” 14 “what effect Wagoner has on In that scenario, the duty of care would shoes of that fraudulent debtor. 9 Accordingly, a claim for contribution the contribution claim?” run from the third-party alleged tortfea - Further, “[a] claim against a third party rises and falls based on the existence of Contribution is not, in and of itself, a sor ( i.e. , the defendant) to the debtor for defrauding a corporation with the separate tortfeasors. 15 basis upon which liability can be (which duty was alleged to be breached). 4 cooperation of management accrues to imposed. Rather, contribution offers a Despite a bankruptcy trustee’s creative creditors, not the guilty corporation.” 10 A Bankruptcy Trustee’s Claim vehicle for one tortfeasor to recover from pleading, a claim for contribution will Thus, Wagoner is a complete bar, rather For Contribution another tortfeasor where: (1) an inde - likely not survive dismissal in the Second than a defense, to claims asserted on A bankruptcy trustee’s right to bring pendent basis exists to hold the pro - Circuit, mainly because of the well-estab - behalf of a fraudulent debtor. a contribution claim is derived from posed contributor liable; and (2) the lished Wagoner rule. New York Claim for Contribution state law, made applicable by Section injured party has not made a direct The Trustee’s Standing – or 544 of the Bankruptcy Code. 16 It is nec - claim against the proposed contribu - Lack Thereof In New York, the statute governing essary to establish which rights tor. 20 Significantly, “an action for contri - claims for contribution enables a tort - belonged to a debtor at the time of the bution will not lie unless all the essen - For the past 20 years, the Second feasor to sue other purported tortfeasors bankruptcy filing in order to determine tial elements of a cause of action against Circuit has followed a principle known for their proportionate share of the which rights the trustee has standing See CONTRIBUTION, Page 14 Section 363(f) Sales May Not Be So Free and Clear After All Purchasers of assets, whether such claims … and other interests … and all assets are to be purchased in or out of debts arising in any way in connection bankruptcy, are generally concerned with any acts of the Debtor.” The Sale about potential successor liability Order further provided that the sale of claims. The Bankruptcy Code provides the assets would not subject Morgan to some reassurance to purchasers by “any liability for any claims against the Melville Law Center allowing property of a debtor to be Debtor … including, but not limited to, 225 Old Country Road sold free and clear of claims, liens and claims for successor or vicarious liabili - Melville, NY 11747 other interests. 1 In March ty …” The Bankruptcy Court 631.761.0800 2012, however, the Southern thereafter entered an order District reiterated that sec - confirming the Debtor’s liqui - tion 363(f) of the Bankruptcy dating plan on October 31, CityPlace Tower Code may not eliminate all 2005 and entered an order 525 Okeechobee Blvd, Suite 1670 potential personal injury suc - closing the Debtor’s bank - West Palm Beach, Florida 33401 cessor liability claims. In its ruptcy case on December 29, 561.899.0222 ruling, the Court held that 2006. section 363(f) may not be In 2008 a truck driven by With offices in New York and used to extinguish state law Denise Frederico was Florida and attorneys licensed in claims that arise from a involved in a collision caus - both states, we are a resource to debtor’s prepetition conduct ing injury to Frederico. The colleagues and clients seeking where such conduct does not truck had been manufac - multi-juristictional experience and Veronique A. result in injury until after the tured, designed and/or sold legal resources in both areas of completion of the debtor’s Urban by Grumman in 1994. bankruptcy case. Frederico commenced a per - the country. In In re Grumman Olson Indus., sonal injury action in New Jersey Inc. , a manufacturer of truck parts, Superior Court against Morgan alleg - filed for Chapter 11 bankruptcy protec - ing that the truck was defective and tion on December 9, 2002 in the that Morgan should be held liable to Southern District of New York (the Frederico under a theory of successor ůƚĞƌŶĂƟǀĞŝƐƉƵƚĞZĞƐŽůƵƟŽŶ /ŶƚĞůůĞĐƚƵĂůWƌŽƉĞƌƚLJ “Bankruptcy Court”). 2 On July 1, 2003, liability. 3 In response, Morgan brought ƉƉĞůůĂƚĞWƌĂĐƟĐĞ >ĂďŽƌĂŶĚŵƉůŽLJŵĞŶƚ the Bankruptcy Court entered a sale an adversary proceeding against ĂŶŬŝŶŐ>ŝƟŐĂƟŽŶ >ŝƟŐĂƟŽŶ order pursuant to section 363(f) of the Frederico in the Bankruptcy Court ĂŶŬƌƵƉƚĐLJ͗ĞďƚŽƌƐΘƌĞĚŝƚŽƌƐ DĂƚƌŝŵŽŶŝĂů Bankruptcy Code authorizing the sale seeking declaratory and injunctive ŽŵŵĞƌĐŝĂů>ŝƟŐĂƟŽŶ DƵŶŝĐŝƉĂů>Ăǁ of certain of the Debtor’s assets to MS relief barring Frederico from bringing ŽŶƐƚƌƵĐƟŽŶ>ŝƟŐĂƟŽŶ WĞƌƐŽŶĂů/ŶũƵƌLJ Truck Body Corp., a predecessor to her claims against Morgan. Morgan ŽƌƉŽƌĂƚĞĂŶĚƵƐŝŶĞƐƐ ZĞĂůƐƚĂƚĞdƌĂŶƐĂĐƟŽŶƐ Morgan Olson L.L.C. (“Morgan”). argued that the Sale Order insulated it ƌŝŵŝŶĂů dĂdžĂƟŽŶ The Sale Order sought to limit from successor liability claims, includ - -ĐŽŵŵĞƌĐĞĂŶĚdĞĐŚŶŽůŽŐLJ dƌƵƐƚƐĂŶĚƐƚĂƚĞƐ Morgan’s potential exposure to succes - ing claims like the ones being brought ĐŽŶŽŵŝĐĞǀĞůŽƉŵĞŶƚ ŽŶŝŶŐĂŶĚ>ĂŶĚhƐĞ sor liability claims in various ways, by Frederico. The Bankruptcy Court including by providing that the sale of the assets was “free and clear of all … See SALES, Page 17 10 n July/August 2013 n Nassau Lawyer NASSAU ACADEMY OF LAW Nassau Lawyer n July/August 2013 n 11

12 n July/August 2013 n Nassau Lawyer PRO BONO ATTORNEY OF THE MONTH NCBA New Members

We welcome the following new members Attorneys By Gail Broder Katz Cheryl Helfer Adam D. Citron Summer is here and most of us can relax a little and erosity and kindness are well known in the community, Sherril-Anne Francena Cleveland maybe get away for a bit. But domestic abuse doesn’t take not only for her representation of Coalition clients, but for Maureen Godfrey a vacation and fortunately neither do Pro Bono Project the countless hours she spends each year on other pro attorneys. That is why the Nassau County Coalition bono matters. Jordan Thompson III Against Domestic Violence is especially pleased to honor Ms. Helfer received her Juris Doctor from St. John's Cheryl Helfer, Esq. as the Pro Bono Attorney for University School of Law in 1980 and has received addi - Students July/August 2013. tional legal training in the areas of mediation and collab - Amanda R. D’Introno Ms. Helfer is a partner of Helfer & Helfer LLP located orative law since then. Throughout her career, she has Alexandra Diane Eisman in Bellmore and serving clients throughout Nassau and been a highly involved member of the legal community, Suffolk counties. Her practice focuses on matrimonial law with current affiliations that include the Nassau County Timothy W. E. Fisher and divorce-related issues, including child custody, sup - Matrimonial Mediation Panel, the Nassau County Bar Alexis A. Hall port, property division and claims of neglect and domestic Association, the Nassau County Women's Bar Association Megan Elizabeth Hanna abuse. She has been a strong supporter of the Pro Bono (past president), the New York State Bar Association, the Mary Monica Holupka Project (”PBP”) since its inception. Since then she has New York Association of Collaborative Professionals and successfully represented five Coalition clients. the International Association of Collaborative Profes - Emanuel Kataev Typically, Coalition clients are assigned to pro bono attor - sionals. She has also been recognized as a New York Meghan Kearns neys through the PBP. However, Ms. Helfer actually man - Super Lawyer for 2011, 2012 and 2013 and is proud to be David Khalily aged to assign one to herself. Last summer a young woman, an elected fellow of the New York Bar Foundation. In Jerry Lagomarsine Mrs. A, came into Ms. Helfer’s office seeking a divorce. After addition to her many legal talents, Cheryl is also profi - speaking briefly with her, Cheryl recognized that this cient in French and Mandarin Chinese. Michael Moradi woman was a victim of domestic abuse and needed the serv - Clearly, Cheryl provides pro bono legal services Shirley Yaghoobian ices of the Coalition. She provided Mrs. A with the 24/7 because she believes in giving back to the community. In Coalition hotline number (516) 542-0404, described the serv - her own words “I really feel that when people are put in a ices offered and encouraged her to call. Ms. Helfer then position where they and or their children’s lives are at called the Pro Bono Project, explained the situation and stake, they shouldn’t be compromised by the fact that offered to represent the young woman on a pro bono basis. they couldn’t afford representation.” Cheryl Helfer is Mrs. A did call the hotline and is now being represented truly a gift to the underserved populations in our com - To Advertise by one of the best matrimonial attorneys in New York. munities and we are proud to honor her as the Pro Bono Ms. Helfer is very happy to work with the Pro Bono Attorney for July/August 2013. Call (631) 737-1700 Project and have it as a resource. On at least two occa - sions, prior to the formation of the PBP, she directed Gail Broder Katz, Esq. is the Pro Bono Project Coordinator for the [email protected] clients like Mrs. A to the Coalition and offered to (and Nassau County Coalition Against Domestic Violence. For information about the Project and how you can help she can be contacted at eventually did) represent them for free. Ms. Helfer’s gen - [email protected] or 516-465-4700.

ATTORNEYS & JUDGES NCBA is looking for mentors for Middle School students. 8 a.m. to 8:45 a.m. one day every other week Oct. 2013 through May 2014 Students in (y)our following communities are awaiting

AU COU S N S T A Y N mentors: B Founded A 1899 N R O A TI S S O C I A Hempstead • Uniondale • Jericho Make a difference Westbury • East Meadow in someone’s life – Be a Mentor! Contact Elaine Leventhal at 516-747-4070 x.212 Nassau Lawyer n July/August 2013 n 13

Y OUNG L AWYER OF THE M ONTH Louis Imbroto

By Andrea M. Brodie of the community. Mr. Imbroto was the Chair of the Nassau County Bar The Young Lawyers Committee Association’s Blood Drive in June (YLC) of the Nassau County Bar 2013, where they received the most Association is pleased to highlight units of blood in Nassau County Bar G Residential & Commercial Inspections the accomplishments and accolades Association history. Mr. Imbroto is G Mold Testing & Clearance of Louis B. Imbroto, Esq. an active member of the Young As an associate with Berkman, Lawyers Committee, the Columbian G EIFS / Stucco Inspections Henoch, Peterson, Peddy & Fenchel, Law yers Association and the Louis B. Imbroto repre - Chaminade Alumni sents fi nancial institu - Lawyers Association. O-ce (888) 202-8869 tions in all aspects of In addition to his www.LongIslandInspectionService.com mortgage foreclosure involvement in these actions. organizations, Mr. NYS Lic# 16000059014 In August 2006, Imbroto is the Presi - Mr. Imbroto graduated dent of LIincs, an from Fordham Univer - organization that sity with a Bachelor seeks to empower LAW OFFICES OF of Arts in Political young professionals in Science. While attend - their communities and HOWARD R. BRILL, P.C. ing Fordham University, careers, and he is the Mr. Imbroto was a Chair of the Nassau COUNSEL TO THE PROFESSION member of Pi Sigma County Youth Cabinet. Alpha Political Honor Mr. Imbroto was a Society and Phi Sigma Tau 2013 “30 under 30” Honoree by the • IMMIGRATION LAW • Philosophy Honor Society, and he Huntington Township Chamber of was the President of the Philosophy Commerce and received the 2013 • DEPORTATION • POLITICAL ASYLUM Society. Distinguished Alumnus Award from • EXCLUSION • WORK PERMITS Mr. Imbroto graduated cum the Brooklyn Law School Italian- • REMOVAL • VISAS laude from Brooklyn Law School in America Law Students Association. • APPEALS • “GREEN CARDS” June 2009. He served as the Articles The YLC congratulates Mr. • EMPLOYER SANCTIONS • CITIZENSHIP and Symposia Editor for the Journal Imbroto on his accomplishments      of Law and Policy. While at and contributions to the community 250 Fulton Avenue, Suite 200 • Hempstead • NY 11550 Brooklyn Law School, Mr. Imbroto and believes Mr. Imbroto will con - received numerous scholarships and tinue to excel in his endeavors in the (516) 489-8786 • FAX (516) 486-4933 
  
Spanish Spoken was the President of the Italian- coming years.     American Law Students Association Member:  American        Immigration Lawyers Association and Director of Race Judicata (5K Lecturer  
   & Panelist: Nassau  
         County Bar Association, Suffolk County Bar Association race for charity). Andrea M. Brodie, Esq. is the senior Today, Mr. Imbroto is licensed in associate at Saltzman Chetkof & Rosenberg LLP in Garden City and Chair New York and a very active member of the Young Lawyers Committee.

ASSOCIATION MEMBER NEWS

Criminal Courts Bar Association Annual Golf Outing & Dinner, May 28, 2013

Seated, L to R: Hon. Frank Gulotta, Jr., Hon. William Donnino, Hon. John Kase, Hon. Andrew Engel. Standing L to R: Ronald Bekoff, Hon. Sondra Pardes, Hon. Susan Kluewer, Hon. Hope Zimmerman.

Kathryn Driscoll Hopkins recipient of the 2013 Lawrence E. Elovich Leadership Award

L to R: Trudy Adell, Esq., Helen Elovich, Kathryn Driscoll Hopkins, Esq., former U.S. Senator Alphonse D’Amato, NYS Chief Judge Jonathan Lippman and Cory Klein, Esq. President, Long Beach Lawyers Association. (Photo Courtesy of LBLA). 14 n July/August 2013 n Nassau Lawyer tedly intended by the debtor by perpe - 1094 (2d Cir. 1995). 17. In re Granite Partners, LP , 194 B.R. at 324 trators such as Nicholas Cosmo and 2. See e.g., Picard v. J.P.Morgan Chase & Co. , 460 (citations omitted). ... B.R. 84 (S.D.N.Y. 2011), appeal docketed, No. 11- 18. Silverman , 467 B.R. at 556. CONTRIBUTION Bernard Madoff. 25 Moreover, the claims Continued From Page 9 5044 (2d Cir. Dec. 7, 2011); Picard v. HSBC Bank 19. See, e.g., Picard v. J.P.Morgan Chase & Co. , could not survive because it is obvious PLC , 454 B.R. 25 (S.D.N.Y. 2011), appeal docketed, 460 B.R. 84; Picard , 454 B.R. at 25. the proposed contributor can be made that the victims, i.e. , the injured parties, No. 11-5207 (2d Cir. Dec. 15, 2011); Silverman v. 20. CPLR § 1401 (McKinney’s 2013). out.” 21 Thus, the question becomes to such a scheme are the creditors, and Meister Seelig & Fein, LLP (In re Agape World, 21. Silverman v. Mesiter Seelig & Fein LLP (In re Inc.) , 467 B.R. 556 (E.D.N.Y. 2012). Agape World, Inc.) , 467 B.R. 556 (E.D.N.Y. whether Wagoner , which generally bars not the fraudulent debtor. Consequent- 3. Id. 2012) ( citing Calcutti v. SBU, Inc. , 273 F. a trustee from asserting claims of negli - ly, since the merits of the negligence 4. Id. Supp. 2d 488, 497 (S.D.N.Y. 2003). gence or fraud against third-parties on claims would also be subject to dis - 5. Shearson Lehman Hutton, Inc. v. Wagoner , 944 22. United States of America v. Staten Island behalf of a fraudulent debtor, bars a missal, a claim for contribution would F.2d 114 (2d Cir. 1991); see also, e.g., Am. University Hospital , 2011 U.S. Dist. LEXIS Tissue, Inc. v. Arthur Andersen, LLP , 275 F. 51648, *17 (2011) (A contrary holding is belied claim for contribution. similarly be subject to dismissal. Supp.2d 398, 404, 406 (S.D.N.Y. 2003) (noting by the statute itself which was developed in The answer is yes. Specifically, in the Finally, in reality, a bankruptcy that Wagoner is controlling authority). response to the unfairness of allowing one tort - event Wagoner bars the underlying trustee’s obligation to pay creditors for 6. Pinter v. Dahl , 486 U.S. 622, 632 (1988). feasor to be held liable for injuries caused by claims, the defendant is not “subject to their losses arises only from the 7. Goldin v. Primavera Familienstiftung (In re another tortfeasor). liability” for fraud and/or negligence and Granite Partners, LP) , 194 B.R. 318, 338 23. For example, in Hill v. Day (In re Today’s Bankruptcy Code and not based on any (S.D.N.Y. 1996); Symbol Technologies, Inc. v. Destiny, Inc.) , 388 B.R. 737, 753 (S.D. Tex. therefore, a claim for contribution can - adjudication of the debtor’s liability. In Deloitte & Touche, LLP , 2008 N.Y. Misc. LEXIS 2008), a Texas bankruptcy court did not dis - not be imposed. 22 In other words, a fact, establishing a debtor’s liability is 9586 (Sup. Ct., Suffolk Co. June 16, 2008). miss a claim for contribution, only after an bankruptcy trustee must be able to an event that will never occur, and 8. The Wagoner construct is not followed by any explicit finding that in pari delicto does not bar establish that there is a viable cause of arguably, a trustee’s contribution claim other circuit unless New York law is deemed to standing to bring the underlying claims in the 26 control. By contrast, the in pari delicto defense Fifth Circuit. action for which the defendant would be is therefore, unripe. At any rate, the has been recognized as a valid defense against 24. Ashcroft v. Iqbal , 556 U.S. 662 (2009)(holding subject to liability in conjunction with a assertion that proofs of claims filed bankruptcy trustees asserting claims against that under Rule 12(b)(6) of the Federal Rules a debtor. 23 A bankruptcy trustee cannot against the estate are a sufficient show - third parties in at least six circuits. Baena v. complaint must be dismissed unless it alleges circumvent his lack of standing by ing of a debtor’s liability is erroneous KPMG LLP , 453 F.3d 1 (1st Cir. 2006); Official facts that if accepted as true, state a claim to Comm. Of Unsecured Creditors v. R.F. Laffert & relief that is plausible on its face.) (quoting Bell asserting a claim for contribution. Thus, insofar as a debtor is in no danger of Co. , 267 F.3d 340 (3d Cir. 2011); Terlecky v. Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). where dismissal of the underlying being held liable for more than its fair Hurd (In re Dublin Sec., Inc.) , 133 F.3d 377 (6th 25. For example, Nicholas Cosmo, the president claims are mandated, so too is the claim share, and thus, contribution, as con - Cir. 1997); Moratzka v. Morris (In re Senior and sole shareholder of Agape, et al., is the for contribution. templated under New York law is Cottages of Am., LLC) , 482 F.3d 997 (8th Cir. admitted Ponzi scheme perpetrator in the In 27 2007); Sender v. Buchanan (In re Hedged-Invs. re Agape World, Inc. , bankruptcy matter, Moreover, with respect to any negli - flawed. It is not pragmatic to seek Assocs., Inc.) , 84 F.3d 1281 (10th Cir. 1986) and Case No. 11-9170-reg, United States gence claims against third parties, a recovery from a third-party defendant to Official Comm. Of Unsecured Creditors of PSA, Bankruptcy Court, Eastern District of New claim for contribution should be based apportion damages to an estate that Inc. v. Edwards , 437 F.3d 1145 (11th Cir.). York. In re Agape Litigation , 681 F.Supp.2d on the breach of a defendant’s duty to recovers, for example, approximately 9. Wagoner , 944 F.2d 114; see also, e.g,. Mediators, 352 (E.D.N.Y. 2010) (Cosmo sentenced to 21 the fraudulent debtor, and not on any Inc. v. Manney (In re Mediators, Inc.) , 105 F.3d months imprisonment and three years of one-third of the amounts outstanding to 822 (2d Cir. 1997); Hirsch v. Arthur Anderson & supervised release after he pleaded guilty to tort committed against the investors creditors. Such recovery is simply not in Co. , 72 F.3d 1085, 1094 (2d Cir. 1995); Breeden fraud). Likewise, in Securities Investment /creditors directly. A complaint against keeping with the contribution statute. v. Kirkpatrick & Lockhart, LLP , 268 B.R. 704 Protection Corporation v. Bernard L. Madoff a defendant that had dealings with a In the Second Circuit, a bankruptcy (S.D.N.Y. 2001). Investment Securities LLC (In re Madoff fraudulent debtor prior to the bankrupt - trustee cannot circumvent his lack of 10. Id.; see also, e.g., Picard v. J.P.Morgan Chase Securities) , SIPA Liquidation (substantively & Co. , 460 B.R. 84, 91 (S.D.N.Y. 2011) (“there consolidated), Adv. Pro. No. 08-01789, the cy filing generally will not survive the standing for his direct claims by seeking is no doubt that the common law causes of fraudulent scheme was admitted. pleadings requirement set forth in relief under the guise of a contribution action in the Amended Complaints, premised 26. See e.g., CD Liquidation Trust v. Martillo (In re Achcroft v. Ibqal .24 For example, specu - claim. 28 A party that is confronted with on a Ponzi scheme of unprecedented scope and CD Liquidation Co., LLC) , 462 B.R. 124 (2011). lative allegations of negligence in which a claim of contribution must be aware duration orchestrated by [Madoff], belong to 27. Parenthetically, it can be argued that because the creditors, not to [Madoff].”); In re Granite a proof of claim is analogous to the commence - a trustee asserts that a defendant that when standing is divested and an Partners, LP) , 194 B.R. at 324 (S.D.N.Y. 1996) ment of an adversary proceeding, that the fil - breached its duty of care by providing adjudication of the underlying claims (the Bankruptcy Code does not permit the ing of claims satisfies the requirement of the negligent advice which, in turn, man - can never be reached, a claim for contri - trustee to assert the personal, direct claims of debtor’s liability. See Nortec Trading Corp. v. aged to defraud thousands of other peo - bution is similarly subject to dismissal. creditors for the benefit of the estate of for a Newfield , 311 F.2d 163, 164 (2d Cir. 1962) (the particular class of creditors). Second Circuit adopting the tenet that the fil - ple, is simply unavailing. The harm Consequently, the suggested strategy is 11. See CPLR § 1402. ing of a proof of claim is analogous to the com - alleged would have likely occurred to immediately seek dismissal of such 12. Graphic Arts Mut. Ins. Co. v. Bakers Mut. Ins. mencement of an action within the bankruptcy whether or not the third party account - claims under the Federal Rules of Co. , 45 N.Y.2d 551, 557 (1978). proceeding). ant or attorney gave advice, good or bad. Bankruptcy Procedure Rule 7012(b)(6). 13. CPLR§ 1401. 28. Devon Mobile Commc’ns Liquidating Trust v. Likewise, in finding a proximate 14. CPLR § 1402. Adelphia Commc’ns Corp. (In re Adelphia 15. AG Capital Funding Partners, LP v. State St. Commc’ns Corp.) , 322 B.R. 509, 529 (S.D.N.Y. Shannon Anne Scott is an attorney at Jaspan cause of the injury, it is mere conjecture Bank & Trust Co. , 5 N.Y.3d 582, 594 (2005) (cita - 2005) (“This standing requirement cannot be that “but for” the defendant’s alleged Schlesinger LLP in the litigation department, tions omitted); see also, United States of America , circumvented by the expedient of filing a third- negligence, the fraudulent scheme where her concentration is in commercial 2011 U.S. Dist. LEXIS 51648, *22 n. 6. party complaint and denominating the ... and bankruptcy litigation. occurred, when in truth, it was admit - 1. Hirsch v. Arthur Anderson & Co. , 72 F.3d 1085. 16. 11 U.S.C. § 544. claims as claims for contribution[.]”).

Commercial Litigation Depart ment at Farrell Fritz, 13th Street in Manhattan on certain days in August IN BRIEF ... P.C., was recently appointed as Secretary of the and in the fall. Board of Directors for Flushing Council on Culture New Partners, Of Counsel and Associates Continued From Page 8 and the Arts/Flushing Town Hall. Ms. Harrison also Committee for Long Island Women’s Agenda. She is serves on the Governance/Nominating and Develop- Stefan Borovina has joined Goldberg Segalla also a routine volunteer puppy raiser for the Guide ment Committees. She concentrates her practice in LLP as an associate in the Business and Commercial Dog Foundation of Smithtown where she cares for and labor and employment law and was honored as a and General Liability practice groups. Mr. Borovina trains puppies that eventually become service dogs. 2013 “Public Interest Attorney of the Year” at Touro previously served as an Assistant District Attorney in Eric M. Kramer , a trusts and estates partner at Law Center. Ms. Harrison was previously selected the Nassau County District Attorney’s Office where Farrell Fritz, P.C. and a Certified Public Accountant, as a “Rising Star” by The Queens Courier. She earned he was a member of the Vehicular Crimes Bureau. was appointed co-chair of the Estate Planning her Juris Doctor from St. John’s University School of Maja Szumarska has joined the Garden City Committee for the New York State Society of CPAs Law. firm of Stagg, Terenzi, Confusione & Wabnik, LLP. (NYSSCPA). Mr. Kramer concentrates his practice Linda M. Oliva , an associate at Pegalis and Ms. Szumarska, who concentrates her practice in in estate tax planning and is a member of the Erickson, LLC, was elected to the Board of Directors commercial litigation, earned her Juris Doctor from NYSSCPA’s PAC Board of Trustees, Board of of the Nassau County Women’s Bar Association. Ms. Brooklyn Law School, receiving the CALI Award in Directors and serves on the Governance Committee. Oliva assumes the position of Cor responding Trial Advocacy and Appellate Advocacy, as well as Mr. Kramer earned his Juris Doctor from the State Secretary for the 2013-2014 year. She concentrates the Prince Scholarship, Dean’s Merit Scholarship University of New York at Buffalo. her practice in medical negligence cases and is an and Academic Achievement Scholar ship. Eun Chong (EJ) Thorsen , an attorney in the active member in her civic association and mentors Steve Gokberk has joined Salenger, Sack, Kimmel Litigation Practice Group at Vishnick McGovern students at the ABGS Middle School in Hempstead. & Bavaro, LLP as an associate. Mr. Gokberk was for - Milizio LLP, was recently installed as Corresponding Ms. Oliva earned her Juris Doctor from St. John’s merly a law clerk with the firm while earning his Juris Secretary of the Queens County Women’s Bar University School of Law. Doctor at St. John’s University Law School where he Association. Ms. Thorsen also serves on the Board of Thomas D. Glascock , a real estate and corporate received the CALI Award for Excellence in Domestic Directors of the Judges and Lawyers Breast Cancer attorney at Uniondale-based Forchelli, Curto, Violence Litigation (Clinic Part I and Part II). Alert, is Vice President of Internal Affairs and a Deegan, Schwartz, Mineo & Terrana, LLP, was New Firms and Locations Board member of the Korean American Youth recently appointed Treasurer of The Huntington Foundation. Township Chamber of Commerce. Mr. Glascock is a Franchina & Giordano, P.C. has relocated to 1050 Anthony F. Iovino , a partner at Bondi Iovino & frequent lecturer and author. Franklin Avenue, Suite 302, Garden City. Fusco, was recently honored with the “Outstanding Rick Collins , criminal defense attorney at Collins Bruno, Gerbino & Soriano, LLP of Melville has Service Award” by the Nassau-Suffolk School Boards McDonald & Gann, and one of the country’s foremost opened an office in Bergen County, New Jersey. Association for his commitment to the schools and legal authorities on performance enhancing drugs community of Oceanside. Mr. Iovino is a former elect - and dietary supplements, is co-starring in the Off-Off The In Brief section is compiled by the Honorable Stephen Broadway play “Line” – the longest running play in L. Ukeiley, Suffolk County District Court Judge. Judge ed Trustee of the Oceanside School Board and has Ukeiley is an adjunct professor at both the Touro College received numerous honors and awards for his com - Off-Off Broadway history. Collins, who in the past has Jacob D. Fuchsberg Law Center and the New York Institute munity service. During 2011, he was named “Long worked as a stage and film actor and is a member in of Technology, and author of The Bench Guide to Landlord Islander of the Week” by Newsday for his commitment Good Standing of the Screen Actors Guild, will be & Tenant Disputes in New York ©. playing the role of Dolan in the popular show, playing and service to the Long Island Literary Community. PLEASE E-MAIL YOUR SUBMISSIONS TO Nassau Lawyer: Heather P. Harrison , an associate in the at the 13th Street Repertory Company at 50 West [email protected] with subject line: IN BRIEF Nassau Lawyer n July/August 2013 n 15 Judge Trust held that the company’s actions did not violate the permanent ROUNDUP ... discharge injunction because they Ready to Help Seniors Continued From Page 5 arose from a “common core of operative Court claims and the nondischargeabil - facts” with the pre-petition criminal ity claims was lacking, the Court found complaint and were a continuation of at NCBA’s Clinics that the debtor’s conduct was “willful it. The filing of the second complaint and malicious” since the factual find - was not “an act to collect a discharged Nassau County Bar Association mend alternatives and referral sources. ings were not in dispute, and granted debt” and on exception to the injunc - members have been volunteering to NCBA thanks the following volun - summary judgment to the plaintiff tion is for the commencement or con - help Nassau’s older residents since teer attorneys who consistently step creditor. tinuation of a criminal investigation or 1989 when Past NCBA President forward to participate in the clinics Preference prosecution. Frank E. Yanelli began the NCBA every month: Reopening Case Senior Citizen Consultation Clinics. Anne Dello-Iacono Pryor, as Trustee v. NYS Dept. of Tax & This unique program is designed to Joanne Fanizza Finance (In re: Waring) – 5/1/13 In re: Narasse – 3/29/13 offer legal guidance on any issue of con - Edward A. Fregosi, Jr. (Adv. Pro. Case No. 12-8047) 5 (Case No. 96-21345) cern to senior citizens, many of whom Ellen Makofsky The Chapter 7 Trustee sought to The debtor sought to reopen her live on modest fixed incomes. Joan Robert recover, as a preferential payment, the Chapter 7 case 15 years after it was Consulting attorneys do not perform Terry Scheiner sum of $7,067 paid by the debtors closed to allow the trustee to prosecute legal services, but are able to recom - Rita Stein within 90 days prior to their bankrupt - a previously undisclosed personal cy filing. The debtors were on a six- injury case against the City of New month extension to file their 2010 tax York. He claimed that the failure to dis - return. Within that extension period, close the claim was an omission made the tax payment in question was made in good faith, because he had incompe - to New York State. The dispute essen - tent bankruptcy counsel, he was suffer - tially revolved around whether the ing from a traumatic brain injury from payment was “on account of an the accident giving rise to the personal antecedent debt,” which is one of the injury claim, and his personal injury elements to be satisfied under Section lawyers were not advised of the bank - 547(a) of the Bankruptcy Code. Judge ruptcy filing. The personal injury action Trust ruled that that element was not was commenced in State Court shortly satisfied because Section 547(b)(4) pro - after the bankruptcy petition was filed. vides that “a debt for a tax is incurred When the City learned of the bankrupt - on the day when such tax is last cy filing in 2012, it challenged the payable without penalty, including debtor’s standing to bring the action, any extension.” Since the debtors since it was an asset of the bankruptcy made the payment within the six- estate. month extension period (expiring After an extensive evidentiary hear - October 18, 2011) and did not incur a ing with medical testimony, Judge penalty for lateness, it was not made Lord concluded that “cause” existed to “on account of an antecedent debt.” reopen the case, that the failure to dis - close the action was inadvertent and Violation of Discharge Injunction not in bad faith, that there was a In re Otten – 5/3/13 potential benefit in allowing the Rita Stern (above) and Terry Scheiner (below) assist Nassau seniors at the June NCBA (Case No. 10-74946) 6 trustee to pursue the lawsuit for credi - Senior Citizen Legal Consultation clinic. NCBA members who would like to volunteer The debtor was a former employee of tors, with the debtor being able to when the clinics reconvene in September, may contact Elaine Leventhal (516) 747-4070 a company who had filed a pre-petition claim a statutory exemption and or [email protected]. (Photos by Hector Herrera) criminal complaint against him for retaining any surplus monies that altering records to increase his sales might be a realized after claims were commissions. After receiving his dis - paid; and that there was no prejudice charge, the former employer cooperated to New York City by reopening the with law enforcement in a continuing case. investigation and filed a second crimi - Jeff Morgenstern, Esq. maintains an office in nal complaint. The debtor brought an Carle Place, where he concentrates in bank - action claiming that these post-dis - ruptcy, creditors’ rights, and commercial and charge actions violated the injunction real estate litigation. provided for by Section 524(a) of the 1. 485 B.R. 53. Bankruptcy Code and that the primary 2. 2013 Bankr. Lexis 667. 3. 2013 Bankr. Lexis 2055. purpose of those actions was to use the 4. 487 B.R. 112. criminal process as a sword to collect on 5. 2013 Bankr. Lexis 1874. a dischargeable claim. 6. 2013 Bankr. Lexis 1920.

LAW YOU SHOULD KNOW Hosted by: Kenneth J. Landau, Esq. LAW YOU SHOULD KNOW Shayne, Dachs, Sauer & Dachs, Mineola LAW YOU SHOULD KNOW on 90.3 FM WHPC

Post Traumatic Senior Citizens Immigration Reform Stress Disorder Need Your Advice! Mon., July 29 at 4 p.m. Mon., Aug 5 at 4 p.m. or Tues., July 30 at 12 noon or Tues., Aug 6 at 12 noon Share your legal knowledge as a or Sun., Aug. 4 at 7 a.m. or Sun., Aug 11 at 7 a.m. consultant at the NCBA’s Senior Citizen Consultation Clinics — Elder care, matrimonial, real estate, trust & estates — Just 2 hours a month at Domus on 90.3 FM radio or voicestream over the internet at www.ncc.edu/whpc or Pro bono legal consultation only; no legal services are performed. download podcast at www.itunes.ncc.edu or listen on your smartphone with radio app Tunein.com Contact Elaine Levanthal at the NCBA 516-747-4070 or [email protected]

16 n July/August 2013 n Nassau Lawyer WE CARE We Acknowledge, with Thanks, Contributions to the WE CARE Fund WE CARE AT CITIFIELD Donors In Honor Of Hon. Pauline Balkin Kathryn Hopkins receipt of the Long Beach Lawyer’s Lawrence Mets VS Chicago Cubs Elovich Leadership Award Peter Panaro Linda Mejia’s Installation as President of the Nassau County Women’s Bar Association Peter Panaro Marriage of Anthony Capetola and Hon. Julianne Eisman Joan & Steve Schlissel Neil & Jill Cohen’s son Adam graduating from Law School Hon. Denise L. Sher Peter Mancuso’s Installation as President of NCBA Ronda & Jerry Starr Meryl & Steve Gassman Nubest Salon Meryl & Steve Gassman Steven Eisman Gregory Peterson, recipient of the Gitelman Award Steven Eisman Eric Rosenblum’s Installation as President of the Nassau Lawyers’ Association Livia & Al Berger Meryl & Stephen Gassman Donors Speedy Recovery Joan & Steve Schlissel Lea Ruskin Joan & Steve Schlissel Beverly Hacker Donors In Memory Of Mary Davidson Doris White, widow of Hon. Donald J. White Joanne & Hon. Frank Gulotta Jr. Alexandra Tomich Cheryl Mallis William Betts Grace D. Moran Hon. Catherine England Hon. Andrea Phoenix Stanley Gelfman, husband of Hon. Sondra Miller Judith Schmertz Sydelle, mother of Steve Madden Hon. Denise L. Sher Ruth Mahoney, mother of Donal Mahoney & mother-in-law of Hon. Lawrence J. Brennan In Memory Of Dorothy Spatt, Wife Of Hon. Arthur D.Spatt Hon. Zelda Jonas Charles & Gail Singer Hon. Arthur Spatt for My Beloved Wife Grace D. Moran Hon. A. Kathleen Tomlinson In Memory Of Betty Spera, Mother-In-Law Of Hon. John G. Marks Hon. Kenneth S. Diamond Teddy & Helen Kotsonas Nassau County Traffic & Parking Joanne & Hon. Frank Gulotta Jr. Elaine Leventhal Violations Agency Hon. Steven Jaeger Hon. John G. Marks Hon. Denise L. Sher Hon. Zelda Jonas Barbara Mule Hon. Elaine Jackson Stack Edward & Anne Marks In Memory Of Patricia E. Doyle Hon. Ruth C. Balkin Joanne & Hon. Frank Gulotta Jr. Hon. Denise L. Sher Hon. Joseph A. DeMaro Peter Panaro Courtney Voses, Esq. Hon. Diane M. Dwyer Hon. Sondra K. Pardes In Memory Of Rita O’Brien, Mother Of Hon. William O’Brien Mindy & Hon. Fred Hirsh Hon. Sondra Pardes Hon. Joy Watson Hon. Steven & Peggy Jaeger Hon. Denise Sher In Memory Of Joseph J. Lo Piccolo, Father Of Joseph A. Lo Piccolo Stephen Gassman Hon. Denise L. Sher Hon. Peter B. Skelos Hon. Joy Watson WE CARE OWEN B. WALSH General: Thomas A. Dent HIGH SCHOOL SCHOLARSHIP OF THE NCBA Contributions may be sent to: NCBA , Attn: WE CARE, 15th & West Streets , Mineola , NY 11501 or at: www.nassaubar.org Dear Mr. Walsh, Thank you so much for choosing me as a recipient of the Owen B. Walsh WE CARE Scholarship Award. The Scholarship will be a great help for my family and me. I hope to one day give back to my community in the same way. Thank you again and God bless. Sincerely, Nicole Koster WE CARE Foundation, My Freshman Year at Hampton University, VA Arnie Preminger (left), CEO of the has been a great success. It took some adjusting Sunrise Day Camp for children with to being away from home, but I got through it. My cancer, receiving the WE CARE Peter Sobel (left) accepting WE CARE grants Grant Recipient plaque from for Christmas Dream and Five Towns Com munity first quarter grades weren't what I expected, but last Richard Fromewick, member of the Center from WE CARE Board member, week I received my final grades for the year and I am WE CARE Board. Christopher McGrath. happy to inform you that I made the Dean's List. I WE CARE would like to take this time to thank you for investing SAAVVE TH ATE into my life; into my future. Without your financial support I would not have been able to attend the school of my choice. Once again thank you for being a blessing to me and to so many other young adults. VS Sincerely, Sundayy,, Shyan Hardy September 8, 20013 WE CARE, Good afternoon, my name is Bradley Atkins, a recipient of Game TimeTime 1:35p.m.1:35 your Owen B. Walsh Scholarship Award. I just wanted to take the time out of my day to tell you thank you for awarding me a All you can eat BBQ (begins after 1st inning) scholarship. Not everyone is given the chance to be given such $45 per person CCitibankitibank Park,Central Islip an opportunity and I truly appreciate it. Sincerely, For more information contact Bradley Atkins Elaine Leventhal 516.747.4070 x.212 Nassau Lawyer n July/August 2013 n 17

BANKRUPTCY ... Commonly Used Federal and New York Exemptions Continued From Page 7 Exemption Federal New York not have to use either the federal or New York homestead exemption, the Homestead (metro New York) $22,975 $150,000 debtor can use the alternative exemp - Motor vehicle $3,675 $4,000 tion. The New York statute provides Jewelry $1,550 $1,000 that if a debtor does not use a home - Wildcard $1,225 applied to any property $1,000, if homestead not used stead exemption, then he/she is enti - applied to any personal property tled to a $10,000 exemption to be Wildcard (homestead carryover) $11,500 applied to any property – applied to protect cash, bank deposits and tax refunds. In addition, under the Tools of trade $2,300 $3,000 New York exemptions, there is a “wild - Life Insurance $12,250 All card” exemption of $1,000 that can be Personal injury claim $22,975 $7,500 applied to any personal property if the Cash, bank deposits, tax refunds, homestead exemption is not used. if homestead is not used – $10,000 less § 5205 exemptions Under the federal exemptions, if the Wedding ring, watches and jewelry $1,550 $1,000 homestead exemption is not used, Retirement benefits, 401(k) plans, IRA, there is a wildcard exemption of $1,225 Social Security, 529 college plans All All plus the unused portion of the federal homestead exemption, not to exceed $11,500 that can be used to protect any fine jewelry, diamond engagement petition and each owns one vehicle, if the wildcard exemption is available, asset. rings, etc. are usually not protected they can each use an exemption to pro - then it can be added to the motor vehi - Under New York law, damages under either the federal or New York tect the equity in the automobile; how - cle exemption in order to fully protect received as a result of personal injury is exemption statutes, except by using the ever, if both vehicles are owned by one the vehicle. protected to the extent of $7,500; while wildcard exemptions. spouse, the equity in only one vehicle Almost all retirement benefits, the federal exemption would be Under the New York exemptions, would be protected. including 401(k) plans, Social Security, $22,975. tools of the trade are protected to the A debtor is entitled to add a wild - IRA, and qualified 529 college funds are Without going into detail, household extent of $3,000; while the federal card exemption to another exemption protected under both the federal and furniture, household belongings, cloth - exemption is $2,300. in order to fully protect an asset. For New York exemptions. The cash value ing and personal affects are generally The New York exemption for a motor instance, if a debtor is using the feder - of life insurance is fully protected under protected. Valuation is based on current vehicle is $4,000, while the federal al exemption of $3,675 to protect a New York law and to the extent of used value, not the original purchase exemption, is $3,675. Values are based motor vehicle worth $7,000, the $12,250 under the federal exemption. price. In most cases, the trustee does on the equity in the vehicle (fair-market trustee would be entitled to sell the not investigate personal belongings and value less balance of lien). If the vehicle vehicle giving the debtor $3,675 and Kenneth Halpern is an attorney in Garden furnishings. is owned jointly, the exemption is dou - using the balance to pay administra - City concentrating his practice in bankruptcy Art collections, antique collections, proceedings representing debtors and bled. If a husband and wife file a joint tive expenses and creditors; however, creditors.

claimants had not yet discovered their injuries, such to the sale of a debtor’s property free and clear. In this ... as in asbestos cases. Such claimants do hold a “claim” case, Federico, as a future claimant, had not received SALES against the debtor at the time of the sale as such term notice because “at the time of the bankruptcy, there Continued From Page 9 is defined in the Bankruptcy Code and a sale order was no way for anyone to know that the Fredericos disagreed with Morgan and determined that the Sale can therefore protect a debtor against this type of ever would have a claim.” 10 As a result, the Court Order did not exonerate Morgan from liability to future tort claim. found that Frederico’s right to due process would be Frederico. 4 Morgan then brought an appeal before the The second category of future tort claims compris - violated if she were prevented from seeking redress of Court. es those where the claimants are injured after the her claims under successor liability laws. One of the issues before the Court on appeal was completion of the sale as a result of a defective prod - The Grumman case provides a useful reminder whether the Sale Order could be used to extinguish uct manufactured or sold by the debtor prior to the that the “free and clear” language of section 363(f) is claims of third parties where the injury occurred after commencement of its bankruptcy case. This is the not an automatic means of avoiding all potential the close of the bankruptcy case and where such par - category in which the Court classified Frederico’s successor liability claims. Rather, purchasers ties, as future claimants, did not receive any notice of claim. should undertake a meaningful due diligence or opportunity to participate in the bankruptcy case. In the Chateaugay case, the court adopted the fair process prior to the purchase of any assets to ensure The Court held that because Frederico did not receive contemplation test pursuant to which “a contingent or that they are not unknowingly taking on potential any notice or opportunity to participate in the bank - unmatured obligation is a ‘claim’ if the occurrence of liabilities. The Grumman case likewise should ruptcy case, Frederico’s due process rights would be the contingency or future event that would trigger lia - prompt purchasers to fully review the terms of the violated if she were barred from bringing her claims bility was within the actual or presumed contempla - proposed sale order and understand the risks that against Morgan. tion of the parties at the time the original relationship may arise under such order. Section 363(f) of the Bankruptcy Code provides, in between the parties was created.” 9 Applying the relevant part, that a debtor’s property may be sold Chateaugay test, the Court found that Frederico’s Veronique Urban is an associate in the Bankruptcy & “free and clear of any interest in such property of an claim was not a claim within section 101(5) of the Creditors’ Rights practice group of Farrell Fritz, P.C. in entity other than the estate” if certain conditions are Bankruptcy Code because Frederico did not have any Uniondale, New York. met, as specified in section 363(f). 5 prepetition relationship with Grumman. As a result, As a preliminary matter, the Court stated that Frederico did not hold a “claim” against the estate at 1. 11 U.S.C. § 363(f). although section 363 refers only to interests of prop - the time that the Sale Order was entered and 2. Morgan Olson L.L.C. v. Frederico (In re Grumman Olson Indus., Inc.) , No. 11 Civ. 2291, 2012 U.S. Dist. LEXIS 44314 (S.D.N.Y. erty itself, the statute does allow for the extinguish - Frederico’s claim could therefore not be discharged by Mar. 29, 2012) (JPO). ment of claims that arise from the property being sold. the Sale Order. 3. Frederico based her argument upon New Jersey’s product-line The dilemma before the Court, however, was to deter - The Court further found that section 363(f) of the exemption to the general rule against successor liability which mine the interplay between section 363(f) and the Bankruptcy Code requires notice and a hearing prior states that “by purchasing a substantial part of [a] manufac - turer’s assets and continuing to market goods in the same occurrence of future claims for injuries that had not product line,” the purchasing company can be held liable as a yet occurred at the time that the Sale Order was successor for defects in the predecessor’s products. Lefever v. entered. K.P. Hovnanian Enters., Inc. , 160 N.J. 307, 310 (N.J. 1999). In reaching its decision, the Court first reviewed 4. Morgan Olson L.L.C. v. Frederico (In re Grumman Olson Indus., the definition of the term “claims” under section Inc.) , 445 B.R. 243 (Bankr. S.D.N.Y. 2011). 5. 11 U.S.C. § 363(f). 6 101(5) of the Bankruptcy Code. The Court acknowl - 6. The Bankruptcy Code defines the term “claim” as a (A) right to edged that the Second Circuit has generally interpret - payment, whether or not such right is reduced to judgment, liq - ed the term “claims” broadly. 7 Despite such a broad uidated, unliquidated, fixed, contingent, matured, unmatured, interpretation, however, the Second Circuit has gen - disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if erally been in agreement with other courts that future such breach gives rise to a right to payment, whether or not such claims may not always be discharged in a debtor’s right to an equitable remedy is reduced to judgment, fixed, con - bankruptcy case. tingent, matured, unmatured, disputed, undisputed, secured, or In addressing whether future claims can be dis - unsecured. 11 U.S.C. §101(5). 7. See, e.g., In re Motors Liquidation , 428 B.R. 43, 57-58 (S.D.N.Y. charged in a bankruptcy case, the Court looked to the 2010). reasoning and analysis presented in In re Chateaugay 8. United States v. LTV Corp. (In re Chateaugay Corp.) , 944 F.2d Corp. 8 In that case, the court found that future tort 997 (2d. Cir. 1991). claims should be subdivided into two categories. The 9. Id. at 1004 (internal citations omitted). See also Epstein v. Official Committee of Unsecured Creditors (In re Piper Aircraft, first category relates to contingent, unmatured claims Corp.) , 58 F.3d 1573 (11th Cir. 1995) (adopting and applying a which often arise in cases where the claimants were modified version of the fair contemplation test). exposed to the debtor’s products prepetition but such 10. Id. at 708. 18 n July/August 2013 n Nassau Lawyer water mortgages on debtors’ principal B.R. at 569. residence.” 11 U.S.C. § 1322(b)(2). residences may need to be settled by 9. Id. at 563-64. In stating the issue was unde - 15. The Supreme Court concluded that even cided in this Circuit, the Court limited the though the bank was undersecured, it was JUNIOR MORTGAGE ... the circuits and possibly the Supreme Second Circuit opinion, In re Pond , 252 F. 3d protected by the anti-modification clause in Continued From Page 3 Court. 25 Indeed, it is likely this issue 122 (2d. Cir. 2001) as only relevant in chapter section 1322(b)(2) of the Bankruptcy Code. will reach the Supreme Court within 13 cases. Smoot , 478 B.R. at 564. Nobelman , 508 U.S. at 325-26 (holding that resolved that the term “secured” has a the next five years. 10. Dewsnup v. Timm , 502 U.S. 410 (1992). section 1322(b)(2) prohibited chapter 13 “specific definition in the Chapter 7 11. The Fourth, Sixth and Ninth Circuits, as debtor from utilizing section 506(a) to strip well as courts in New Jersey, Utah and down an undersecured mortgage lien to the context, so that valuation of the under - Michael L. Moskowitz is a partner in the law Illinois, have prohibited lien stripping in fair market value of the underlying property). lying collateral is irrelevant.” 22 Thus, firm Weltman & Moskowitz, LLP. He is a chapter 7 cases based on the Dewsnup case. 16. Smoot , 478 B.R. at 557 (explaining that most whether a lien is voided under section member of the NCBA’s Bankruptcy Law See In re Talbert , 344 F.3d 555 (6th Cir. courts interpreting Dewsnup have resolved 506(d) is not ascertained through refer - Committee and the Lawyer Referral Panel for 2003); Ryan v. Homecomings Fin. Network , that the undersecured versus unsecured dis - bankruptcy matters. Melissa A. Guseynov, an 253 F.3d 778 (4th Cir. 2001); In re Laskin , tinction is inconsequential). ence to section 506(a), and is not a result associate at the firm, contributed to this arti - 222 B.R. 872 (B.A.P. 9th Cir. 1998); In re 17. In re Caliguri , 431 B.R. at 327. of the value of the underlying security cle. The firm, with offices in New York and Richins , 469 B.R. 375 (Bankr. D. Utah 2012); 18. Id. at 328. interest. 23 New Jersey, regularly represents the inter - In re Cook , 449 B.R. 664 (D.N.J. 2011); In re 19. In re McNeal , 477 Fed. Appx. 562 (11th Cir. Notwithstanding Judge Spatt’s ests of lenders in the state, federal and bank - Immel , 426 B.R. 538 (Bankr. N.D. III. 2010). 2012) (unpublished). recent Smoot decision, the state of the ruptcy courts in both New York and New 12. Smoot , 478 at 559-60. 20. Smoot , 478 B.R. at 567 (citing cases that Jersey. 13. Nobelman v. American Savings Bank , 508 adopted the minority view but have since law regarding lien stripping remains, U.S. 324 (1993). been rejected or questioned). to some degree, uncertain. While a Conflict of Interest Disclosure: Weltman & 14. Section 1322(b)(2) of the Bankruptcy Code 21. Id. at 568. majority of courts have held that a Moskowitz, LLP represented Pentagon provides that a plan may modify the rights 22. Id. at 568 (citation omitted). of holders of secured claims, “other than a 23. Id. Chapter 7 debtor may not avoid liabil - Federal Credit Union, a junior secured claim secured only by a security interest in 24. Id. at 570. ity on an underwater mortgage, as lender in the Caliguri case referenced in real property that is the debtor’s principal 25. Id. is now the case in the Eastern District the article. In re Caliguri, 431 B.R. 324 of New York, there is some divergent (Bankr. E.D.N.Y. 2010). In that case, case law. In fact, Judge Spatt Weltman & Moskowitz successfully remarked in dicta that the minority defended against the debtor’s attempts to SEPARATE ENTITY ... opinions allowing a Chapter 7 debtor strip off Pentagon Federal Credit Continued From Page 3 to strip off unsecured liens “are Union’s junior mortgage lien. premised on sound principles of statu - courts have the power to com mand a tory interpretation, and would be con - 1. A “strip off” cancels a wholly unsecured lien in its entirety. In contrast, a “strip down” of garnishee present in the state to bring trolling here if we were writing on a an undersecured lien reduces the lien to the out-of-state assets under the gar - 24 clean slate.” As a result, practition - value of the underlying collateral. nishee’s control into the state.” 7 The ers must remain abreast of the status 2. A lien is underwater when the outstanding Court of Appeals also relied upon of the evolving case law in each district balance due on a senior lien exceeds the fair Matter of National Union Fire Ins. Co. market value of the secured property. (and sometimes how a particular judge 3. See In re Caliguri , 431 B.R. 324 (Bankr. of Pittsburgh, Pa. v. Advanced Empl. may have ruled within a district) in E.D.N.Y. 2010). Concepts, Inc. , in which the First order to evaluate the most effective 4. See In re Pomilio , 425 B.R. 11 (Bankr. Department discussed the holding in case strategy, whether representing a E.D.N.Y. 2010). Digitrex .8 Above all, Koehler seemed Chapter 7 debtor or a secured lender. 5. See In re Lavalle , No. 097239478, 2009 WL 4043089 (Bankr. E.D.N.Y. Nov. 19, 2009). to undermine the central tenet of the Although the Smoot decision made 6. Wachovia Mortg. v. Smoot , 478 B.R. 555 “separate entity rule” that the “situs clear that wholly unsecured mortgage (E.D.N.Y. 2012) (reversing bankruptcy court’s of a bank account is fixed at the liens will generally pass through a holding that an unsecured junior lien may be branch of the bank where the account Chapter 7 bankruptcy case unaffected avoided by chapter 7 debtor). 9 7. 11 U.S.C. §506(a). is carried.” Under Koehler , so long as in the Eastern District of New York, 8. 11 U.S.C. §506(d). As stated in Smoot , a the garnishee has a jurisdictional Judge Spatt warned that ultimately, mortgage claim is secured if it is supported presence in New York, it may be com - the inconsistent treatment of under - by an executed and recorded mortgage. 478 pelled to turn over the judgment deposits in their possession. Under debtor’s property, even if the property Digitrex , this practical control is suffi - is located out-of-state, potentially in cient, by itself, to compel the turnover the actual possession of a satellite of assets in the possession of the branch. unserved bank branch. Under REVEL IN YOUR Some judges speculated that Marianas , however, control, without Koehler meant the end of the “separate actual possession or custody, is inade - entity rule.” One court stated that quate to compel judicial turnover of ACCOMPLISHMENTS “Koehler indicates that New York bank assets. In other words, Marianas courts will not apply the “separate enti - reaffirms the basic principle of the ty rule” in post-judgment execution “separate entity rule” that the physical proceedings.” 10 Others courts argued situs of a judgment debtor’s bank

Analy sis the pow 1. Th er to impose e Honorab tions monetary sa accounts deposit is the central inquiry le J and c nc- 1. 28 that if the Court of Appeals meant to C o on U. abranes se A. cluded tha S.C. § 636(b)(1 tions t all indic 2. Se )(A) (2002). In “very stron a- e, e.g., Alpern his Opin gly support v. Lieb, 1993 U ion, Judge clusion th ” the con- LEXIS 3229 ( .S. Dist. was per Cabranes at the Act N.D. Ill. 1993) suaded by tr empowers m F2 Am., Inc ; Maisonville v r the decisio ate judges agis- ., 902 F.2d 746 . easoning o ns and to impo DiPonio (9th Cir. 199 G f the Sixt excep se sanctio Construction C 0); R . OR Cir h and Sev t in the f ns, of Bri o., Inc., v. Int for determining whether the court has A cuits, enth orm of cklayers ’l Union overturn the “separate entity rule,” “it A UB which hav dis sanctions , 2010 U.S. Di AS S si e held tha pose of a cl that * (E.D. Mic st. LEXIS 620 W .N ons on Rul t deci- aim or defe 19 h. June 23, 20 47, WW e 11 motion Wh nse. Baumha 10); McGuffin 1 I tive o s are dispo ile Judge ft, 2010 U.S. D v. O. f a claim si- Leval agr Mich. ist. LEXIS 59 0 I N 1 and are th Judge C eed with June 16, 2010 497 (E.D. . 6 1 prope erefore n abranes 3. ). OL le rly resol ot that san Kiobel v. M 11 I V u ved by are ctions illson et 10 R an or case d that 2 al., 592 F 0 ma der isp 010 .3d 7 R 2 e gistrate ju 12 of a ositive requ ). 8 (2d Cir. the power under CPLR § 5225 to com - BE s dge. re ire de would have said so.” The law remains o v EM p iew, he novo 4. See K EPT im In reac stated that iobel v. Royal S hin a R Dutc o g his ti ule 11 F. S h Petrol t con on d sa upp. eum clu oes nc- 2d 4 Co., s . Cab sion, J not dis 57 (S.D.N 456 e o ranes udge miss a .Y. 2006 g reaso suit 5. See ). d C ned firs a c or prev Kiobel v u t that laim ent . Royal J m moti a Rul or d Dutch P u on f e 11 efen U.S. etrole e or san se f Dist. L um Co t le ctio rom EXI ., 200 a o ns, wh advan 20 bein S 28812 4 r r ich ced. g *29, t t h to giv A 6. K 43 (S is e oug proceed es rise s such, J iobel, 592 .D.N.Y. 20 ag P [a]lth ings separate cluded udge Leval co F.3d at 80. 04). pel the bank to turn over those assets. h e “ e and that n- 7. Id. unclear, even now, because there have c s fro dis a of M ut becau ted th m the unde tinct magistrate D t a rlyi au jud 8. K y l en rst ng a thoriz ge is iobel, 2 it a em ve he inv ctions ed by 004 U.S r y at l o t t olves and law to . Dist. L o o st se efi partie impos 34. EXIS 2 h ird un en s disti Ord e by w 8812, at aut v. R th ts’ co t to b er- the u nct from those er, Rule 11 s ay of 32- ef n en ov nde in anc 9. l hi da s e rlying tions Id. at * The be .4 C defen oney of th t action, is th consent o without the 34. io ria f m nt no al e func f the p 10. K ige ffs’ nt o mou id equival tion- arties.21 See Id. at er t in N lainti amou the a nd d ent of an 3. T *37. t n p , a e ind he 11. K f e red es ll… th claim 13 epend Hono iobel, 5 The Court of Appeals has not a opm fer ca- ess a of . A ent rable 92 F.3d been “no appellate decisions in the New s vel re tifi itn sm re s such Chie 78. n de od cer [w] as tu , when Denn f Jud 12. Id io nd Wo ass t w e na an mi a court d is Jacob ge . at 85; see t a ba l . n h tm nes ete s also c im r c B me e t Pi wheth r- Bennett n is- K fo nry ate ng ge er a Ser v. Gene a ag ge ion He st ha Jud - monet Chie vice of ral Cast S , m Jud ot e ly c te one ap ary aw f Judge N. Gordon er em ) m udg da- ial tra s propri ard is Jacob Co., 97 syst the 23(c te J men ater 9 agis intiff ate, the “cla th s declined (6th Cir. 19 6 F.2d 995, 99 court e in Rule istra ecom m t.” M pla ingp im” has be e opinion o to join 92) (“nothing 8 eral al rol Mag nd r trate men ward aris osed of and en dis- f either Ju ly vests in the Act exp r fed ritic deral to ort a agis state r, a ’ fees nothing bu or Ju dge Cabra magistrate jud ress- In ou y a c e Fe tion a rep 4, M e weve neys Rulejudg t the entry dge Leval a nes to ent ges with juris s pla e. Th . n for , 200 at th , ho attor sful ment, or it of a nd instead er orders imp diction addressed the “separate entity rule” in ge tic .S.C a 31 th did ir ces s func the stated osing Ru York State courts to resolve the ques - d s tm h d e c tion iss th le 1 ate ju of ju ), 28 U Pi Marc ende fs’ of th ly su rema 14 al equivale ue – wheth at tions”); Alpern 1 sanc- tr ation “Act” to: On omm intif ird rtial ins. Seco nt, er magistr v. Lieb, 38 F.3 nistr Act ( dges ion. rec pla th ir pa led nd, Judge have the ate judges Cir. 1994) ( d 933, 936 (7t dmi dge te ju t tman eny the pea reasone Cabranes authority “the power to h a te Ju istra ge Pi d from 10 s ap d that a s to order R like the award sanctio gistra mag al Jud ourt on. rney nion narrow st anctions th ule 11 power to awar ns, Ma rizes retri t C to moti atto “Opi exception atutory emselves, o the ha d damages, be autho ny p stric n.5 ected 11 nts’ an’s t. – allowi a re r only to m nds of the dis longs in 636, ine a rt, Di otio obj rt enda Pitm oujurd ng magis commenda ake 13. Kio trict judge.”) § term e cou m iffs Repo Def dge ict C ges to sum trate tion of Ru bel, 592 F.3d d de e th laint an’s e Ju Distr ro- marily pu tions to le 11 sanc 14. at 86-87. more than 50 years. After the decision an for ief, P tm d rat e ecr nish the d - Id. at 87 tion of whether the ‘separate entity ]ear g be e rel te Pi n, an agist o th early riminal con acts of istrict court . [H ndin nctiv istra atio M er” t l “cl of duct that that d – is an issu 15. See 28 er pe r inju Mag end an Ord entia darmdagi occur in ivides the d e U.S.C. § 636( matt on fo d- comm and defer stan strate’s pre the istrict cou 87-88. e)(2); Kiobel, 5 moti plea d Re filed c- g a o law” 1)(A), sence – to th the Second rts within 92 F.3d at cept a n the an s obje plyin ry t 6(b)(principle t e general Circuit a 16. Kio ex nt o udg- dant ose Ap ontra § 63 te hat magist Cou nd the Ci bel, 592 F.3d dgme ry j defen o th on, or c .S.C. instora rate judge rts them rcuit 17. at 89. or ju mma h ion t ositi eous 28 U Mag t dispose o s may selves.22 Id. at 91 (the f su quas osit Opp n nder rmed f claims w Jacobs Chief Jud Act “broadly e , for or Opp the ated: ew u d affi referr hen acting went on t ge trate judge mpowers mag Marianas o i in , the “separate entity rule” gs iss - n st evi oo al alr by state s to ‘hea s- rule’ still survives in the aftermath of in ism ma I eys r e W er eady ex d that h r and de to d infor ions. ttorn ed Judg der. eaft ists and th efer the is e would pretrial ma termine’ any ent, t or , t ts’ a learn hief ’s Or thenro basis to ere was sue to Cong 23 tter designate m men dant ndan ave C man neys der expand t ress. district c d to them by t ndict defen defe e h ffs’] e Pit ttor j’u Od r his excepti ourt, with the he an i the a w w ainti Judg ts’ a oods icial action 15 on by fied l exception of de by e in “No [pl e ndan ge W udge . Sign ist of matters. a speci- ma idenc (1) n of ar Defe Jud ate Ju ificance fa As for the ma tion s ev s or seve sses hief gistr dg ea Cabran lling within th tters 12 res mis at tne - d C Ma sue es conc It fol is excepte supp o dis th wi stimo peale : (1) tion gisly luded acco lows from t of the ma d list, the ext to se, t of a ified ir te ap unds ized tehrat a rd- he Second gistrate judge ent is a strong candidate for consideration ca ce nt he ro or rd magis decisi Circu ’s powe the Koehler decision.” al n e t o g th O tra on it’s evid rs is imin tena id d for be n two t au sa aunt hor te judge in Kiobel ence and subm to take cr main s for g pai can on as no ch a iznetd by law is b that there t it recommen rmit ismis bein here are an w on, su abse only to rec inding pr is no he district cou dations to to pe to d on “[T] sses Pitm ecisi ionnso,t impos ommend, ecedent in rt…[and] such tion, up ” (2) witne - ive d anct ) thee, sanction Circ the Sec duties as are additional s ac claim ny; the lain posit 11 s se d (2 s absent th uit as to ond not inconsist clas ate a ted, that at [p dis ule es; annt of then p 1 e con- whether a Constitut ent with the to st gran oubt ny th be ing R arti ns o arties. 6 Judge h Magistrat ion and laws o ilure n be d stimo to pos the p nc2t.io as the pow e (citing f the United S fa ef ca miss g te ows im nt of 1 sa Thei eHdono er under t 28 U.S.C. § 63 tates”) reli ly dis e givin el kn hat onse le 1 entif rable Pie impose sa he Act to 18. See 6[b][1][B]). by New York’s highest court, perhaps, ich ari ol ns t e c Ru id rre L nction Federa Marianas e did not explicitly address h J s l w olunt C. C ] cou know th n of ents udge Ledeva val . Conseque Courts Improv o inv hryn tiffs’ ]e pril sitio atem stain l found t such tim ntly, until 2000, Pub ement Act of nd t Kat “[W nd A impo he st eme psouw hat the A e as Congr . L. 106-518 § a .1 (3) 04 a s of t ot b ers ump-agist ct S ess or the ing “M 202 (2000) (a ction uring and 9, 20 ired basi uld n nce rate judge tates Supr United agistrate Judg ddress- an a ses d se;” ry 2 el] w the fs co eavnid edete e s to hear eme Court Aut e Contempt n, lap led fal ebrua couns the aintif cord 11 rmThine a wide issue addresses th hority”). casio ave ag- een F iffs’ for y pl e re ternsts. range of or resolve is 19. Kio n oc ase h by m betw aint ublic b of th eme , save fdorg et mat- s the Act’s bel, 592 F.3d a O l ph tions f , [pl Rep the use stat ef Ju hose matte ambiguit inherent 20. I t 98. -tria sanc ule o 2004 enin 6 On beca ose ex cCehpit d rs express y, the an d. at 97-98; se Koehler Marianas e like and , based pr of R 2, e B .” th sed ed wiotn ly alysis e also L the “separate entity rule,” but it has e n al th es s r ec hin of awre th ositio eder 5 to tness intiff rting reve he s the Act.17 Cabranes a Judges Richman S nce v. Wilder imp er F 5,19 wi , pla po rcuit Jpuodng te L se Moreover, nd Leval – ec. Corp., 467 o the und $1 f the ents 11 d Ci ly u e vcahl orelied pro albeit di 232-33 ( F.Supp. 2d 22 t udges 2 ourt fit o atem Rule econ sole m ever, upon the vides a roa cta – D. Conn. 2006 8, te j 1. es C bene se st ing S rder hoewnts to th irst amend- dmap for p Foun ); Laser Med. istra ure 1 Stat - the mpos hese d’s O nel, ted ef Act made and ju ractitioner d. v. Aerofloat Research roced ited pub is of der i at t Woo e Pa 200-moo - by Congre dges alike, s, D Soviet Airline vil P e Un rcuit bas n or d th - . Th now 0, which fpuub ss in on each s ist. LEXIS 152 s, 1994 U.S. Ci y, th d Ci d, for a roun sup ound the tead rther veste issue. ide of this 10 *2 (S.D.N. entl Secon esse oved the g tiary gr ore jud gienss he d magistra Magee v. Pau Y. 1994); Rec the addr m on iden ed o ign l but withs .a Tra te l Revere Life upon a certified question from the for t s- ns ev pos t ea ew nge of F.R Ins. Co. obvious implications for the doctrine a i o o p ot p i co .D. , 178 peals n th mag ancti ad n ys o n r ap ersn.1g8 v ot- ntempt pow 33, 37 (E.D.N. of Ap cisio ther s ts h orne the nd fo flicti Judgee m oLev - 21. See Y. 1998). a de whe y to men ’ att hat grou con of th al viewed K also Maisonvi ed ings, orit state ants at t heir inldyiscias tive ges, this as athryn C. C 747- lle v. F2 Am. lish r th auth r, efend g th cord ed t ana eo jfu dthe fa ole, a form 48 (9th Cir. 1 Inc., 902 F.2d othe the es, o t. D guin by re lish cuit’s in strat t ct that Co Honorable er clerk to 2 990). ong have selv por n, ar rted Cir mtaegnided to istric ngress Richard C. W the 2. Kiobel, 592 am ges them e a otio uppo econd ther a dallow mag Circui esley of the F.3d at 106-07 jud tions mak he m ere s S whe t to to istrate jud t Court of Ap Second 23. Id. (“I res . trate sanc ly to t ts w ted sue – suan ized ges ig peals, is a co pectfully sugg le 11 ed on ourt emen ” da ed is pur thor ation associ mmercial lit- needs est that this k Marianas a Second Circuit. If is any Ru riz t C tat der ing au n- te at F to be un not because the Court of Appeals express - ue ho ric s 7 Or e ct re me arrell Fr tied by C iss e aut Dist 11 ce. and trat en a ce, a ecom itz, P.C. Supre ongress or by ad, ar o the ule viden ion agis wh feren ake r er me Court.”). the inste tion t of R - e “Opin 06, M iffs’ t’s re nly m wheth menda osition impor In an , 20 laint cour s, or o es on d ecom e imp is an r 29 ied p te- order judg mpose r for th ision ition- tembe den st sta issue istrict d be i udge is dec pract Sep tman the fir th s to d shoul ce for J s.3 Th court that e Pi ect to on wi dation tions uidan nction deral ssue Judg resp moti d 1 sanc sive g this guide, the “separate entity rule” is sa fe i ith he an 1 ua of ly rejected the notion that a bank’s r n n w t le s one fo sses a withi otion nted econd Ru s per side or tant addre courts m ut gra t’s s ond rovide each gress s it deral s the nt, b endan e sec – p rs on s Con rt ers, a the fe ell a me o def or th an itione ime a Cou both as w ect t ts.8 F Pitm pract such t reme ivides ircuit resp emen Judge ch until s Sup d ond C elves. stat strate on ea issue State e Sec thems d third Magi tion . nited er. th ourts roun ment, sanc filing he U matt likely to remain the law in New York. t C kg te 000 e t he control over a judgment debtor’s assets cui ac sta 5, th s t Cir ural B ht d a $ gned d to dresse roced broug mpose o si ecline ad Farrell Fritz l & P n was k i y wh n d the , P.C. actua actio w Yor ttorne Pitma aking 1 F e class of Ne a ate or m 320 RXR Plaz utativ istrict te, 28 agistr ons f a A p ern D t Statu M sancti Uniondal South en Tor defen- pose e, NY 11556 n the he Ali t of im is sufficient, on its own, to require the i o t ou n uant t rising loratio purs 50, a il exp . § 13 t in o U.S.C emen ©2010 volv Long Island Bus nts in iness News, all da rights reserved bank to turn over those assets. Indeed, Frank McRoberts is a commercial litigation in Marianas the Court explicitly associate at Farrell Fritz. He has litigated judgment enforcement matters in numerous rejected a “practical control test” pro - commercial cases.

JUL Y/AU GUS posed by the plaintiff. Under the pro - T 2 010 
 I VO L. 5 9 I N B O. ank 11 I 1. _ N.Y.3d _, 2013 WL 1798585 (Apr. 30, 2013). in W g/Ba W W. nkr NA S upt S A U posed “practical control test,” courts cy L BA aw R. O R Focu G Being featured on the pages of Nassau Lawyer s would be asked to inquire “whether 2. See, e.g., McCloskey v. Chase Manhattan Bank , Bankrup 11 N.Y.2d 936 (1962). is an accomplishment. Reprints allow you to take e tcy l the bank could practically order its 3. Therm-X-Chem. & Oil Corp. v. Extebank , 84 mploym aw vs. your editorial coverage and optimize it for mar- De en A.D.2d 787 (2d Dept. 1981). bt shou t d subsidiary to turn over the assets of sol ld neve isc e reaso r be th rim n behin e in a d tr Em a 4. 491 F. Supp. 66 (S.D.N.Y. 1980). n e eat ploy t m m er i p en la s m o keting purposes. Communicating with reprints lo t te u y o S s the judgment debtor.” For the Court of e t n f e b Th e or ction e cogn e ong app applic 525 a izan sign oing e lican ants s to t that ifican conom t or w who h emplo they v t inc ic cr ho in ave f yees do no 5. See S & S Mach. Corp. v. Manufacturers Hanover iduals rease isis h dicat iled f and, t vio- who in th as ca Emp e that or ba perha Long are e nu used a loyee they nkrup ps, jo Isla filing mber Se s Who inten tcy p b Appeals, practical control is not adds credibility to your message and helps brand nd f of cti H d rot acro , th or b ind on 5 ave to fil ectio ss the rough ankru i- 25 is Decla e. n a f natio out N ptcy st impli red B Trust Co. , 219 A.D.2d 249 (1st Dept. 1996). inal e n. Mo ew on ances cated ankru s ffort re an York, . Sup in a ptcy ought to esc d mor and Presi pose, variet to ob ape c e peo dent for y of c avail tain rushi ple, in acco of a insta ircum ing th a fina ng de untan comp nce, - enough: actual possession or custody of n b a t your accomplishments for effective promotions. Ban emsel cial “ t, hav file t emp ny l hat t k v fr e d l ea h 6. 12 N.Y.3d 533 (2009). ruptc es of esh s for oyed rns e att y Co the pr tart” Pr ba by th that achin de t otect by eside nkrup e com an p g the o sto ions o nt m tcy pany roper ir ass p cre f the in all ay exp prot has ty. ets or ditor owing erien ection S forec s from ued that ce so . Th ince i losing acce indiv me tr e a judgment debtor’s assets is an essen - 7. Id. at 540 (quoting Morgenthau v. Avion Res. pr ndivi on th H ss to idua epida Reprints help extend the life and value of your otecti duals eir owev corpo l to h tion on w er, ra av th are a ho s w und te rec e con e Ban lread eek b ould b er Se ords tin- t krup y fina ankru e pre ction and f aking tcy C ncial ptcy natin clude 525 unds. cert ode b ly bur g the d from the co Ltd. , 49 A.D.3d 50, 54 (1st Dept. 2007)). and ain a ars em dened S her debto dem mpan job ap ctions ploy , tuart bank r sole oting y tial precondition to compel a bank to plic ag ers I. rup ly o or t “fresh ants ainst from Go Fo tcy. n acc ermi- press and leverage it for extended and tar- start which bank rdon r exa ount o I .” may rupt (B mple f his n p be de empl ankr. , in I or B articu trime oyees W.D. n re H 8. 269 A.D.2d 101 (1st Dept. 2000). ankr lar, ntal n Secti Ark. icks uptcy Sec to the ated on 52 1986) 65 B pers Cod tion ir again 5 in h , the .R. 9 ons w e, 11 525 posi st a b olding court 80 turn over assets. h U. o tio a t re tion o have S.C. § f th n hav nk tel hat a lied o from soug 525, e ing n ler by bank n geted use. For more information or to place er being ht ba prote fi o cus tran discr t nk c le to sf im 9. International Legal Consulting Ltd. v. Malabu or o erm rup ts d fo mer erri i- therw inate tcy pr r ban cont ng he respec ise d d by t otec- bank krup act af r to a t to iscrim heir e attem tcy un ter th may their inat mplo ban pted der C e tell not empl ed ag y- krup to jus hapt er In contrast, the basic premise of o t e dis termi ymen ainst b telle tify th r 7. crimi nate t. An in y arg r into e tra The Oil and Gas Ltd. , 35 Misc. 3d 1203(A) (Sup. a nate the e emp uing a bo nsfer an order contact: gains with mploy loyer invol that t okke of the t m ve h ep , an respec ent any e rea er po indiv indivi t to of, or that decre ssign sition idual: dual empl it wa ase i ment bee (1) is solely oyme ras s mad n com did n n ins or ha beca nt smen e: (1) pens ot Digitrex and its progeny is that if a olve s be use t” o to p atio Ct., N.Y. Co. 2012). that nt; or en a d that harm f the reven n an is disc (3) ebtor to c telle t the d harg has n ; (2) h de ustom r; (2) “emb eable ot pa as nce; a er rel to pr ar- in ban id a b nd (3 ations event krup debt ond a ) bec and any tcy. telle ause public 10. JW Oilfield Equip., LLC v. Commerzbank, co r w the con Ma urt ru ith fin bank fi- bank’s main office is linked to its tth led an cou ew V. tha in fa cial d ld no Sp t the vor of ifficul t (631) 913-4223 ero Se dis the t ties. T      cti crim elle he on 5 inat r, an 25 ion p d foun AG , 764 F. Supp. 2d 587 (S.D.N.Y. 2011). is v rohib d iolate ition d “w of branches with modern computers and hen [email protected] the 11. Shaheen Sports, Inc. v. Asia Ins. Co., Ltd. , communications equipment, the main 2012 WL 919664 (S.D.N.Y. Oct. 22, 2012). branch has the practical ability to 12. Dewar v. Bank Pub. Co. Ltd. , N.Y. Branch, require those branches to turn over 37 Misc. 3d 1231(A) (Sup. Ct., N.Y. Co. 2012). Nassau Lawyer n July/August 2013 n 19 LAWYER TO LAWYER

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