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B A N R A I O S S O CI AT WCBA LTHE WESTCHESTER AW COUNTY BAR ASSOCIATION’S MONTHLY Y MAGAZINE ER JANUARY 2021 | VOL. 8 | NO. 1
Haub Law’s Response to COVID-19 p. 12
Inside ... THE 3 WCBA’S 2021 EXPRESS RENEWAL FORM 4 I Can’t Marry My Foreign Fiancé Until Next Year? 7 My Experience with LSHV as the 2019-2021 WCBF Fellow PRACTICE 8 WCBA MEMBERSHIP PROJECT: An Interview with WCBA President Wendy Marie Weathers, Esq. PAGE 11 Faith Based Court Access (FCA) p. 10 14 Flagging New York’s “Red Flag” Law 16 Collaborative Divorce and Passive Resistance 20 TECH SERIES: Code Red: Why Lawyers Don’t Need to Code . . . and more! STER E CO CH T U S N E T
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B A N R I O A T WESTCHESTER S S O C I A LAWYER IN THIS ISSUE… THE WESTCHESTER COUNTY BAR FEATURES ASSOCIATION’S MONTHLY MAGAZINE
Published by the 3 RENEW YOUR MEMBERSHIP TODAY! Westchester County Bar Association WCBA’s 2021 Express Renewal Form 4 Westchester Park Drive, Suite 155 White Plains, NY 10604 4 I Can’t Marry My Foreign Fiancé Until Next Year? Tel.: 914.761.3707 | Fax: 914.761.9402 By Kodai S. Okano, Esq. Email: [email protected] | www.wcbany.org 7 My Experience with LSHV as the 2019-2021 WCBF Fellow Officers and Staff By Antonio Iglesias, Esq. Wendy Marie Weathers, Esq. 8 WCBA MEMBERSHIP PROJECT: An Interview with WCBA PRESIDENT James L. Hyer, Esq. President Wendy Marie Weathers, Esq. PRESIDENT-ELECT By Haub Law Student Kasama Star Dolores Gebhardt, Esq. VICE PRESIDENT 11 Faith Based Court Access (FCA) Andrew P. Schriever, Esq. By Valerie Bezzell VICE PRESIDENT 12 THE PACE PAGE: Haub Law’s Response to COVID-19 Denise P. Ward, Esq. SECRETARY By Jessica Bacher, Esq. Robert C. Hertman, Esq. 14 Flagging New York’s “Red Flag” Law ASSISTANT SECRETARY By Sherry Levin Wallach, Esq. Julie Cvek Curley, Esq. TREASURER 16 Collaborative Divorce and Passive Resistance Brian S. Cohen, Esq. By Arnold D. Cribari, Esq. ASSISTANT TREASURER Richard M. Gardella, Esq. 20 TECH SERIES: Code Red: Why Lawyers Don’t Need to Code EDITOR-IN-CHIEF By Jared D. Correia, Esq. Stephanie L. Burns, Esq. MANAGING EDITOR DEPARTMENTS Isabel Dichiara EXECUTIVE DIRECTOR 1 From the President Roni Brumberger By Wendy Marie Weathers, Esq. DIRECTOR OF MARKETING & COMMUNICATIONS Brittney Moore 10 The Practice Page DIRECTOR OF GRIEVANCE, LRS & By Hon. Mark C. Dillon ASSIGNED COUNSEL Mary Ellen McCourt 18 Member Spotlight MAGAZINE DESIGN & PRODUCTION By Tejash V. Sanchala, Esq. Board of Directors Karen Beltran, Esq. 21 Classifieds and Advertising Rates Michael H. Friedman, Esq. 22 What’s Going On: Membership News Kyle-Beth Hilfer, Esq. James K. Landau, Esq. 23 CLE/Event News Nelida Lara, Esq. Hon. Michael J. McDermott 24 From the Back Bench Hon. John Pappalardo By Richard M. Gardella, Esq. Sherry Levin Wallach, Esq.
Submission of material to the WCBA for inclusion in the Westchester LAWYER, Westchester Bar Journal, website or other WCBA publication, grants the WCBA limited copyright and full permission to reprint the material in any WCBA publication, on the WCBA website, or with LexisNexis or Westlaw at any time without additional consent. Please note that any opinions expressed in the articles contained herein are solely those of the author(s) and do not constitute positions taken by the WCBA. From the President Wendy Marie Weathers, Esq.
Let Freedom Ring!
Happy New Year 2021! New Year, New Beginnings, New Goodbye, and for many of us good Resolutions riddance, to 2020. Speaking of change… how many After a year that brought us a glob- of you make a New Year’s resolution al pandemic that forced us all to restruc- that you ultimately fail to achieve? Ha! ture our lives around it, COVID-19 Me, too! This year will be different! I vaccines are being distributed as I write challenge you all to stick to your reso- this. After an extremely difficult and di- lutions! How?, you ask—by consider- visive election, our federal government We are very proud to ing a few techniques:1 is about to pass another bipartisan aid report that in 2020, the package for those whose lives have been 1. Start with one, and only one, im- upended by COVID. In addition, after WCBA hosted over 150 portant goal. You may have others but it is important to keep one as a many demonstrations, some far from CLEs and webinars and peaceful, an open discussion of race re- priority. lations in our country has been rekin- registered over 3000 2. Write down your resolution, prefer- dled, perhaps for the first time since the attendees. That is three ably as a single word. For example, civil rights movement. times the number of if you want to stop procrastinating, The new year typically brings with write in big letters PROACTIVE in it a time for reflection and reprioritiza- events and registrants a place where all can see. Announce tion. The year 2020 has exposed deep compared to 2019. to all your friends and family to divisions in our society that will not help keep you on track. be remedied quickly. But I was recent- … with this faith we will be 3. Turn each resolution into a habit. ly exposed to an unexpected source able to transform the jangling Everyday, do something to work to- of hope—from all people, Al Pacino. discords of our nation into a ward that goal. For instance, if you During his monologue in the football beautiful symphony of broth- want to lose weight, wake up every drama, Any Given Sunday, Mr. Pacino’s erhood. With this faith we will morning and work out first thing. character, Coach D’Amato, has the fol- be able to work together, to lowing to say at the end of a halftime 4. Work on one change at a time. For pray together, to struggle to- instance, if you want to get healthy, speech during a game his team is losing gether, to go to jail together, to badly: first month, cut out sugar; second stand up for freedom together, month, drink more water; third That’s a team, gentlemen, and knowing that we will be free month, eat more vegetables, etc. either, we heal, now, as a team, one day. or we will die as individuals. 5. Use a calendar. Every day you do In this spirit, as we start this new your new habit, mark an “X” on the Change is, of course, difficult. year, let’s have our New Year’s resolu- day. When you look at the whole Tackling the divisions within what is in tions include being of service to one month, you will notice the blank many ways an adolescent nation, will another—to Listen to those who are days. take time, perhaps even generations. in need, to Learn from our differences Dr. Martin Luther King, Jr. likely knew and to Grow from our challenges. I wish you good luck in any and this as he and his cohorts began what all of your endeavors to change for the seemed at the time to be an impassable better in 2021! hurdle in this country: (continued on page 2)
WESTCHESTER LAWYER | JANUARY 2021 | 1 FROM THE PRESIDENT (continued from page 1) The WCBA in 2021 A diversity and inclusion CLE credit that in 2020, the WCBA hosted over The WCBA has some fun and in- will be provided to the attendees. By 150 CLEs and webinars and registered teresting events scheduled to take place popular demand and due to the over- over 3,000 attendees. That is three in January. whelming success of the three bar as- times the number of events held and On January, 5, 2021, the WCBA sociation’s December Trivia Challenge, registrants recorded in 2019. is again partnering with the WWBA the WCBA is hosting a second Trivia This year, the WCBA endeavors to have another Employment Law Challenge night on January 26. to continue to be a resource to the Roundup. Led by Tejash Sanchala, Kyle Considering the courts’ in-person bench, bar and legal community. We McGovern and Kim Berg, this group shut down, the Law Practice Manage- are already planning a virtual mock tri- evolved based on the synergy of the La- ment Committee and Trial Lawyers & al tournament, the annual golf outing bor & Employment Task Force with- Tort Law Committee timely scheduled and the Annual Banquet! We invite you in the WCBA’s Community Recovery a CLE titled “Best Practices for Virtu- to check out our website www.wcbany. Task Force’s Economic Recovery Pro- al Trials,” to take place on January 28. org, to get involved, and to make a dif- gram, which was created in response to (For the most recent Calendar updates ference! Make it your 2021 New Year’s the COVID-19 pandemic and its dev- please visit www.wcbany.org.) resolution! astating effect on Westchester County. The WCBA is also proud of its Sec- As always, should any of you like On January 19, 2021, the WCBA tion and Committee Chairs. I invite to reach me with comments, sugges- Bankruptcy & Creditor’s Rights Com- you to attend any Section or Commit- tions or concerns, I am always available mittee presents its Annual Roundtable tee meeting. The Sections and Commit- at [email protected], or by calling with Judge Robert D. Drain, U.S.B.J. tees meet regularly to discuss current 914.573.6213. of the United States Bankruptcy Court, laws and trends, to brainstorm on cur- Be well and be safe! rent events/issues and to prepare CLEs. Southern District of New York White Endnote Plains Division. I am excited to spon- I have had the pleasure of attending 1. https://www.phrasemix.com/blog/5- sor this event on behalf of my new firm, several meetings in the past months. Be sure to check out the Events calen- steps-to-achieving-your-new-years-reso- Clair Gjertsen & Weathers, PLLC! lutions On January 20, 2021, the WCBA dar on the WCBA website for upcom- will host a CLE on the “Do’s and Don’ts ing Committee and Section Meetings. of Housing Discrimination in Rentals.” Please join! We are very proud to report
2 | JANUARY 2021 | WESTCHESTER LAWYER Join or Renew Your WCBA Membership Today! Renew or become a member of the WCBA today! As a member of the WCBA, you will enjoy a full range of benefits designed to provide professional support, camaraderie and educational opportunities all year long: n Join our network of over 1600 members with access to CLEs, networking events, and 6 signature events each year.* n Become a part of Westchester’s legal and business community where you can grow your network, advance your firm, and better serve the needs of clients. I read the entire Westchester Bar Journal Fall 2020 edition on n Professional development opportunities include participation in committees, line. It is the best journal I have pro bono work, and being published in the monthly Westchester Lawyer read in my entire 42 years of magazine or yearly Westchester Bar Journal. journal reading. Please pass my n Enjoy members-only discounts on essential products and services as well as thoughts on and particularly to discount pricing on CLEs and Association events.* the very talented Editor-in-Chief Stephanie Burns. Thank you for your support and membership! Jay C. Carlisle, II, Esq. * Events may be virtual. Professor Emeritus Haub Law School
Renew Today! EXPRESS MEMBERSHIP RENEWAL FORM 2021
SCHEDULE OF YEARLY WCBA DUES Standard Bar/Affiliate/Paralegal Government/Municipal/Non-Profit Employee (Full-Time Judge, Attorney, Paralegal) Sustaining Member $300 Admitted to the Bar 10 years or more $185 Admitted to the Bar 10 years or more $129.50 Admitted to the Bar 5-9 years $135 Admitted to the Bar 5-9 years $ 94.50 Admitted to the Bar less than 5 years $ 95 Admitted to the Bar less than 5 years $ 66.50 Affiliate Non-Lawyer $125 Affiliate Non-Lawyer $ 125.00 Paralegal $ 50 Paralegal $ 35.00 Admitted to the Bar less than 1 year FREE Admitted to the Bar less than 1 year FREE Student FREE * SECTION FEES: Please note that there is a small fee for membership in WCBA Sections: o $10: New Lawyers; $20: o Family Law o Municipal Law o Real Property o Tax Law o Trusts & Estates. Please check the section(s) you wish to join and add that fee to your payment below.
HOW TO RENEW To pay by credit card: Visit our website at www.wcbany.org/join and follow prompts. To pay by check: Submit form with check made out to “WCBA” and mail to: WCBA, 4 Westchester Park Drive, Suite 155, White Plains, NY 10604 For more information, please contact isabel at 914-761-3707, Ext. 50, or [email protected] Contributions or gifts to WCBA are not tax deductible as charitable contributions; however, they may be tax deductible as ordinary and necessary business expenses.
WESTCHESTER LAWYER | JANUARY 2021 | 3 I Can’t Marry My Foreign Fiancé Until Next Year?
By Kodai S. Okano, Esq.
the U.S., the CBP will send back the men.”8 After the Meyer case, the Court NOTE: This article in no way foreign fiancé to his or her home coun- has “continued to solidify the broad supports or encourages any form try immediately, and the foreign fiancé protections available to married cou- of illegal immigration and abuse and the U.S. citizen fiancé will not be ples and families.”9 of the visa systems. able to see each other again in the U.S. This trend has continued in the 21st until the DOS issues a K-1 Visa to the Century. For example, in Lawrence v. Background foreign fiancé. Furthermore, due to the Texas, the Court held that the right to COVID-19 pandemic, the U.S. pro- marry is a realm of personal liberty and Have you ever thought how do I hibits a foreign fiancé, who has been in private life of the individual, and it is a bring my foreign fiancé to the United China, Iran, European Schengen area, promise of the Constitution.10 In addi- States (U.S.) in order to get married? United Kingdom, Republic of Ireland, tion, in U.S. v. Windsor, the Court held The answer to the question is you need and/or Brazil, from entering the U.S.6 that “the states, at the time of the adop- to get a K-1 Visa (or Fiancé Visa) from Hence, the current K-1 Visa appli- tion of the Constitution, possessed full the U.S. Department of State (DOS) cation system creates an inequality in power over the subject of marriage and to just get married in the U.S. the marriage process among U.S. citi- divorce ... and the Constitution dele- The DOS has historically issued zens. On the one hand, a U.S. citizen is gated no authority to the Government approximately 45,000 to 50,000 K-1 allowed to marry his or her U.S. citizen of the United States on the subject of visas each year.1 A K-1 Visa allows a fiancé soon. On the other hand, the marriage and divorce.”11 Furthermore, U.S. citizen and a foreign fiancé to get current U.S. visa application process in Obergefell v. Hodges, the Court held married in the U.S., and to start their makes it difficult to choose when to get that the right to marry is a fundamen- new life in the U.S. married and penalizes a U.S. citizen tal right inherent in the liberty of the To obtain a K-1 Visa, a U.S. who chooses a foreign national as his or person, and under the Due Process Citizen and a foreign fiancé must first her fiancé through the long and cum- and Equal Protection Clauses of the file a I-129F petition and have to go bersome application process. The right Fourteenth Amendment, those protec- through a long and cumbersome appli- to marry is a fundamental human right tions also extend to same-sex couples.12 cation process.2 Historically, it takes six protected by the U.S. Constitution. I These cases reaffirm that the right to to nine months to complete the pro- propose an alternative visa option in marry is a fundamental human right cess.3 However, due to the COVID-19 order to protect said right for a U.S. and demonstrate the Court’s undevi- pandemic, the U.S. Citizenship and citizen with a foreign fiancé. ating protection of the rights of mar- Immigration Services (USCIS) is likely riage, family relationships, and procre- to take a year or more to process said Is the Right to Marry Protected as ation for a U.S. citizen.13 petition.4,5 a Fundamental Human Right? While waiting to obtain a K-1 The U.S. Supreme Court (Court) Does a U.S. Citizen Have the Right Visa, if a foreign fiancé tries to visit a has long protected the right to marry to Live Together with His or Her U.S. citizen fiancé as a tourist and tries against government intrusions since Fiancé? to enter the U.S., the foreign fiancé al- 1923.7 In Meyer v. Nebraska, the Court In general, the federal courts have ways faces a risk of the rejection of his held that “to marry, establish a home held that a U.S. citizen has a funda- or her entry into the U.S., because the and bring up children … and gener- mental right to live with his or her im- U.S. Customs and Border Protection ally to enjoy those privileges long rec- mediate or extended family. For exam- (CBP) has the broad discretion to reject ognized at common law as essential to ple, in Escobar v. I.N.S., the U.S. Court the foreign fiancé’s entry. If the CBP the orderly pursuit of happiness by free of Appeals held that “the right to live rejects the foreign fiancé’s entry into
4 | JANUARY 2021 | WESTCHESTER LAWYER with and not be separated from one’s eign fiancé also does not have the right Australian visa system that seeks to bal- immediate family is ‘a right that ranks to live together with his or her U.S. ance a transnational couple’s right to high among the interests of the indi- Citizen fiancé in the U.S.19 live together in the U.S. and the im- vidual’ and that cannot be taken away Since the right to marry and the portant governmental interests. without procedural due process.”14 right to live together are the two sides In Australia, there is a visa option Additionally, in a dissenting opin- of the same coin, such rights should called a “Bridging visa.” The Bridging ion in Kerry v. Din, Justice Breyer also be extended to a U.S. citizen who visa allows a person who lawfully en- argued that the Court “has long rec- chose a foreign national as his or her tered Australia to stay lawfully while ognized the institution of marriage, partner. Without the right to live to- he or she is waiting for an immigration which encompasses the right of spouses gether, recognizing the right to marry decision, or his or her new visa applica- to live together … is central to human and declaring the right to marry as a tion is being processed.21 Through the life.”15 However, the plurality opinion fundamental human right makes “the Bridging visa, a foreign fiancé and an held that a non-U.S. citizen spouse right to marry” a one-sided right, be- Australian citizen are able to live and did not have a constitutional right to cause the goal of marriage is not just stay together in Australia while they are live in the United States with his or to get married but also to live together, waiting for an actual marriage visa to her U.S. Citizen spouse.16 Further, in to establish a home, and to bring up be issued. Kleindienst v. Mandel, the Court held children.20 The declaration of such a Turn to an implementation of the that a non-U.S. citizen spouse had no one-sided fundamental human right Bridging visa in the U.S., visa fraud and constitutional right of entry to this by the Court degrades the value of the national security would be the main country as a nonimmigrant or other- other fundamental human rights that hurdles to be surmounted to imple- wise.17 Furthermore, the Court held the Court has long recognized. ment such a visa option. However, it is that policies pertaining to the entry of Alternative Visa Option and Its not unreasonably difficult to overcome aliens and their right to remain in the Implementation such hurdles and introduce a Bridging U.S. are particularly concerned with visa option, because the U.S. has already the political conduct of government.18 There are important governmen- implemented an Electronic System for Thus, in the context of immigra- tal interests related to immigration Travel Authorization (ESTA), which is tion laws, the Court does not even matters such as prevention of unlaw- an automated system that determines recognize a non-U.S. citizen spouse’s ful immigrants, visa scams, and visa the eligibility of visitors to travel to the right to live together in the U.S., and it fraud. Therefore, this section proposes U.S. A foreign national, who wishes naturally gives us an answer that a for- an alternative visa option based on the (continued on page 6)
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WESTCHESTER LAWYER | JANUARY 2021 | 5 MY FOREIGN FIANCÉ Endnotes 10 Lawrence v. Texas, 539 U.S. 558 (2003); (continued from page 5) 1 The U.S. Dep’t of State, Bureau of Con- see M.L.B. v. S.L.J., 519 U.S. 102 (1996); sular Affairs, Nonimmigrant Visa Statis- Planned Parenthood of Southeastern Penn- to travel to the U.S., has to obtain the tics – Nonimmigrant Worldwide Issu- sylvania v. Casey, 505 U.S. 833 (1992). 22 ESTA before entering the U.S. To ob- ance and Refusal Data by Visa Category, 11 U.S. v. Windsor, 570 U.S. 744, 767 tain the ESTA, the foreign national has https://travel.state.gov/content/travel/ (2013); see also Haddock v. Haddock, 201 to show that he or she does not pose a en/legal/visa-law0/visa-statistics/nonim- U.S. 562 (1906). threat to the welfare, health, safety, or migrant-visa-statistics.html, FY2013- 12 Obergefell v. Hodges, 576 U.S. 644 (2015). FY2019 Report. security of the U.S. Thus, the ESTA en- 13 Baca, supra note 9, at 621. 2 The U.S. Dep’t of State, Bureau of Con- ables the U.S. administrative agencies to 14 Escobar v. I.N.S., 896 F.2d 564, 569 sular Affairs, Nonimmigrant Visa for a pre-screen all travelers before they try to (D.C. Cir. 1990). Fiancé (K-1), https://travel.state.gov/ enter the U.S. and provides a certain lev- 15 Kerry v. Din, 576 U.S. 86, 108 (2015). el of security. content/travel/en/us-visas/immigrate/ family-immigration/nonimmigrant-vi- 16 Id. at 101. Since the ESTA has already func- sa-for-a-fiance-k-1.html. A K-1 Visa only 17 Kleindienst v. Mandel, 408 U.S. 753, 762 tioned as a pre-screen process, it is not un- permits a foreign-citizen fiancé(e) to trav- (1972). reasonably difficult to include a Bridging el to the United States and marry his or 18 Id. at 766-67. visa application in the ESTA process and her U.S. citizen sponsor within 90 days 19 See also Baca, supra note 9, at 624-28. screen the application simultaneously of arrival. A K-1 Visa itself does not au- 20 Obergefell, 576 U.S. at 668; Zablocki v. tomatically give a permanent residency or provided that a foreign fiancé has already Redhail, 434 U.S. 374 (1978). Noting work permit to the foreign-citizen fiancé. submitted his or her K-1 Visa application that the goal of a marriage can be differ- and is waiting for the application to be 3 See the U.S. Citizenship and Immigration ent, and it depends on who he or she is. Services, Check Case Processing Time, processed. By introducing more gener- 21 Australian Government Department of https://egov.uscis.gov/processing-times/. ous visa options like a Bridging visa, not Home Affairs, Bridging visa A-E, https:// only will a transnational couple’s right to 4 Although the DOS issues a K-1 Visa, a immi.homeaffairs.gov.au/visas/get- live together be protected, but also the I-129F petition which is required to ob- ting-a-visa/visa-listing. tain the K-1 Visa is processed and exam- USCIS can take more time to perform 22 The U.S. Customs and Border Pro- ined by the USCIS. See the U.S. Citizen- detailed and rigorous examinations of tection, ESTA, https://esta.cbp.dhs. ship and Immigration Services, I-129F, gov/?utm_source=google&utm_me- K-1 Visa applications, which would pre- Petition for Alien Fiancé, https://www. dium=google&utm_term=(not%20 vent problems such as illegal immigra- uscis.gov/i-129f. tions, visa scams, and visa fraud. provided)&utm_content=unde- 5 Steven Walker, UF Professor Fights, Sues fined&utm_campaign=(not%20 Conclusion to See His Fiancé Again, the Alligator set)&gclid=undefined&dclid=unde- (Oct. 4, 2020), https://www.alligator. The issues here are only applicable fined&GAID=624963815.1603758365. org/news/uf-professor-fights-sues-to-see- The ESTA allows a citizen of the Visa to approximately fifty-thousand people his-fianc-e-again/article_75a07f0c-06ac- a year in the U.S. Once the K-1 Visa is Waiver Program countries such as Aus- 11eb-8584-5f789d05d049.html; Sarah tralia, Germany, and United Kingdom to issued, no one complains anymore about Martinson, U.S. Citizens Say State Dept visit the U.S. for less than 90 days with- the interference with his or her rights. Illegally Delaying Fiancé Visas, Law360 out obtaining a tourist visa. However, even if the interference is a (Sept. 21, 2020, 7:13 PM), https://www. law360.com/articles/1311558. minor problem to most U.S. citizens, as Kodai S. Okano, Esq., is an assistant law discussed above, it is important to resolve 6 Centers for Disease Control and Preven- clerk to the Honorable Llinét M. Rosado, such problems and protect the value of tion, Travelers Prohibited from Entry Supreme Court of the State of New York, the fundamental human rights by con- to the U.S., https://www.cdc.gov/coro- 12th Judicial District. He received his juris stantly raising our voices and improving navirus/2019-ncov/travelers/from-oth- doctor from SUNY School of Law and LLM er-countries.html (last updated on Sept. an administrative process. Therefore, from Osaka University, Japan. 14, 2020). the U.S. should introduce a more flexi- 7 Meyer v. Nebraska, 262 U.S. 390 (1923). ble visa system to address the diversified needs of U.S. citizens and take less re- 8 Id. at 399. strictive measures that do not interfere 9 Gabriela Baca, Visa Denied: Why Courts Should Review a Consular Officer’s Denial with the fundamental human rights of of a U.S.-Citizen Family Member’s Visa, U.S. citizens. 64 Am. U. L. Rev. 591 (2015).
6 | JANUARY 2021 | WESTCHESTER LAWYER My Experience with LSHV as the 2019-2021 WCBF Fellow By Antonio Iglesias, Esq.
From left: Past Fellows Virginia Foulkrod and Luis Leon with current Fellow Antonio Iglesias at the 2019 WCBF Benefit
It suffices to say that 2020 has truly fundamental need—at a critical mo- cacy with Section 8 agencies and com- been a memorable year. Aside from the ment in time. Specifically, I have been munity outreach. For example, I recently obvious unprecedented circumstances able to provide legal representation in represented at trial an elderly, disabled and challenges caused by the COVID-19 Landlord-Tenant court and in proceed- person facing eviction in the midst of the pandemic, there have been many reward- ings with various administrative agen- COVID-19 pandemic. ing experiences as well for me during my cies for individuals and families that There have been several challeng- first year at LSHV. As I reflect on my would otherwise not be able to afford es along the way during my first year at experience thus far with LSHV and as an attorney. LSHV and as the WCBF Fellow, but I the WCBF Fellow, I am reminded of the The COVID-19 pandemic has dras- have had many rewarding experiences perpetual need to zealously advocate for tically changed how we are able to rep- and am incredibly appreciative for the the underrepresented and marginalized resent our clients, but I am thankful opportunity to serve our communi- groups that we serve. The devastating im- that LSHV has quickly adapted to the ty’s most vulnerable and marginalized pact that the COVID-19 pandemic has circumstances and provided the support groups. Once more, I want to thank all had on the communities we serve cannot necessary to ensure that we can best serve those who support the WCBF and the be overstated. our clients. Throughout my first year Fellowship, and I look forward to con- At LSHV, I have been afforded the at LSHV, I have been able to provide a tinuing to build on my experiences from opportunity to advocate for those in wide array of representation for clients, my first year at LSHV. danger of losing their housing—a basic, including in-court representation, advo-
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WESTCHESTER LAWYER | JANUARY 2021 | 7 WCBA Membership Project
What have you been doing during the pandemic? Think of it as our own “Humans of the WCBA”.
A Dialogue Between Law Student Kasama Star (left) and WCBA President Wendy Marie Weathers, Esq.
Kasama: What kind of law do you NYC Health and Hospital Corpora- got my own office, the only one in our practice? tion. That was mainly a desk job, doing class of 100. I was the point person for Wendy: I do foreclosure defense and things like contract review. I realized victims of domestic violence. They wore bankruptcy law. that I didn’t want to do that. pendants around their necks, when they In my third year of law school, in the pushed the button, my beeper would Kasama: How did you become involved go off. I would get calls at 2am; I would in this type of law? last semester, as I was looking at my resume, I realized that I had experience have to call the precinct/jurisdiction Wendy: You kind of fall into these types in government and the private sector. that they were in to get the police to go of things. Growing up, I had always What I wanted now was experience over there to make sure that they were wanted to be a doctor. I have always with a judge. I saw an ad in the career safe. I had a lot of other great experi- volunteered in the medical field. I was a center for a criminal court judge in Kew ence, like trial experience. I also had candy striper for six years and served as Gardens, Queens. I drove over there a lot of experience empathizing with an EMT during college and beyond. Af- and had an interview with the Honor- youth who did not have the same op- ter Organic Chemistry, I realized maybe able Charles Posner. He hired me on portunities as I did. It was heartbreak- a medical career was not what I wanted the spot. It was amazing. I would do ing, that gave me the drive to always to do. While at law school, I thought night court with him. I would sit on the reach out and help. I would do health law. I thought, how bench with him and go through the rap Kasama: You’ve touched on this already, can I combine both law and medicine. sheet. He would ask, “What would you but tell me more about your volunteer Kasama: I can tell this is going to be a do in this case?” He really mentored me. work. good story, tell me about your intern- He let me write a decision. He reached Wendy: I have always pursued public ships while at law school. out to the New York Law Journal to service and volunteer work. Currently, Wendy: The first summer after law get it published. It did and I still have a I serve as the President of the Westches- school, I interned at the Attorney Gen- copy of the article framed on my wall in ter County Bar Association (WCBA). eral’s office. I drove from Poughkeepsie my office. I started a program, the Community to Albany each day because I couldn’t He was such a mentor to me. I fell Recovery Task Force, which has two afford to get an apartment. It was a in love with being in court. He said components. One component (The two-hour commute each way. I was paid to me that I should consider the DA’s Advance Directives for First Responders $125 per week. I enjoyed that intern- office. So, I had an interview with the Program) helps train first responders ship; it was in the Consumer Fraud Brooklyn’s DA’s office, and they hired on things like power of attorney, health Bureau. I learned a lot and enjoyed the me. Sometimes you think you have this care proxy, etc. The other part of the camaraderie of our class of 20. whole thing planned out…but happen- program is the Economic Recovery stance…Originally, I wanted “judge” Program. We help people on topics like Kasama: What about your other intern- experience. I wasn’t thinking that I was ships? what happens if you’re furloughed, in- going to get a job from working for a formation about PPE, PPP, small busi- Wendy: I interned for the office of the judge. ness loans, etc. There is more informa- Chief Medical Examiner. That was an Kasama: What happened in the tion on our website about this program. amazing experience as well. The General Brooklyn DA’s Office? See Community Recovery Task Force at Counsel went on a vacation for two wcbany.org. weeks. I sat at her desk my second year Wendy: I moved up fairly quickly in the of law school. I also interned for the Brooklyn DA’s office. I was promoted Kasama: Wendy, I’m so impressed to the Domestic Violence Bureau. I with your success, resourcefulness, and
8 | JANUARY 2021 | WESTCHESTER LAWYER volunteerism. So how did you get into advantage of all the experiences and With the extra time that I gained, I am foreclosure and bankruptcy law? opportunities available. While I was in more efficient. I devoted much of this Wendy: It was hard to make ends meet school, I worked, and I aimed to have time to the Westchester County Bar on a government salary, so I accepted an different experiences to learn from. I Association. It helped me balance my offer with a foreclosure and bankruptcy was always juggling and balancing. I full-time job as a foreclosure defense firm two years after working for the would attend CLE’s as a student and and consumer bankruptcy lawyer, my Brooklyn DA’s office. I’ve been practic- network with attorneys. Take advantage full-time commitment to the WCBA, ing foreclosure and bankruptcy law for of what the Bar Association can do for and being the proud single mom of two more than twenty years. you and what you can do for the Bar. teenage girls. Put your name out there and network. Kasama: Wendy, you are always busy Kasama: What advice do you have for Don’t be afraid; get involved! law students? and engaged. What is your next move? Kasama: I can attest to benefiting from Wendy: I have three pieces of advice, Wendy: I have been given a tremendous a Westchester County Bar Association opportunity to partner at an estab- the first is that it is important to have event. I attended “Meet the Judges” in mentors. Find one or two people who lished firm in White Plains. One of the the fall. I made meaningful connections, owners is retiring and he has asked me really care about you getting the right met with attorneys and judges. experience and being there and available to join his practice, and to build it up for questions. I wouldn’t be where I What has changed for you during the and honor his legacy. It is a firm that am today without having those certain pandemic? focuses in foreclosure defense, consumer people in my life and guiding me. The Wendy: It’s really bizarre, there is a bankruptcy, landlord/tenant and real old adage is believing in you before silver lining that came out of this. On estate transactions. We launch January believing in yourself—we are our own one hand, there is so much sadness, 1, 2021! worst critic. with people getting sick, losing lives, Kasama: Wow, congratulations, Wen- The second piece of advice is to jobs, etc. But now that we are remote, dy. I wish you every success; you will show up and work really hard. I am a I am able to do more. I used to spend achieve success and you deserve it. hard worker; I might not be the smart- about four hours a day on the road. I est, but I am always the hardest worker. had to drive from Peekskill to Islip, to The third piece of advice is to take NYC, to Brooklyn, to Bridgeport, etc.
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WESTCHESTER LAWYER | JANUARY 2021 | 9 AFFIDAVITS VERSUS AFFIRMATIONS By Hon. Mark C. Dillon
There are circumstances in New Rule 2106(a) of the CPLR provides that used for physicians, osteopaths, and York Practice when affidavits must be that affirmations may be used by non- dentists as those professionals are within used, and others when affirmations party physicians, osteopaths, and dentists the expressed scope of Rule 2106 of the may be used instead. The improper authorized to practice in the state. The CPLR, whereas persons with religious use of an affirmation can be fatal to an provision caters to the convenience and reservations are not. application or its defense. An affidavit time pressures of medical and dental Affidavits and affirmations are to be signed by a fact witness should state professionals. By extension, persons executed “in a form calculated to awaken facts, not legal arguments. Affirmations authorized in those fields wholly outside the conscience and impress the mind of may properly be filed under penalties of of New York may not properly submit the person taking it in accordance with perjury by attorneys to recount a case’s information by affirmation (Kelly v. his religious or ethical beliefs” (N.Y. procedural history and provide pleadings Fenton, 116 A.D.3d 923, 924 [2d Dep’t CPLR § 2309[b]). For this reason, the and other exhibits. Rule 202.8 of the 2014]). The language of Rule 2106 of the documents invoke the language of an Uniform Civil Rules for the Supreme CLPR does not extend to chiropractors oath. Affirmations are to be executed to Court and the County Court instructs (Casas v. Montero, 48 A.D.3d 728, 729 reflect that their content is “affirmed...to that legal arguments should not be [2d Dep’t 2008]), engineers (Woodard v. be true under the penalties of perjury” included in affidavits but in a separate City of New York, 262 A.D.2d 405 [2d (CPLR 2106[a]). A mistake in the legal brief, though in practice, our state Dep’t 1999]), architects (Laventure v. form of a submission, or in the right to courts routinely accept legal argument McKay, 266 A.D.2d 516, 517 [2d Dep’t submit it, will not necessarily be lethal contained within attorney affirmations. 1999]), or other non-designated experts provided it is caught in time, and courts Affirmations are more convenient and professionals. If an affirmation is are lenient in allowing the correction of to prepare than affidavits, if for no improperly used instead of an affidavit, mistakes under the grace provisions of other reason than a notary public or the defect is waived unless the adversary Section 2001 of the CPLR (e.g. Gallucio other acknowledging officer need not party objects to it (Sam v. Town of v. Grossman, 161 A.D.3d 1049, 1053 be enlisted to confirm the identity of Rotterdam, 248 A.D.2d 850, 851 [3d [2d Dep’t 2018]). However, attorneys the affirmant, administer an oath, and Dep’t], lv. to appeal denied, 92 N.Y.2d should not rely on the discretionary oversee the document’s execution. When 804 [1998]), though an objection may forgiveness of such defects, because, an attorney is also a party, the attorney be cured by an oath taken by a notary absent the favorable exercise of that should utilize the affidavit format to public before the return date of the discretion, a non-compliant affirmation support or oppose factual matters (N.Y. application (Brightly v. Liu, 77 A.D.3d is rendered incompetent as proof of the CPLR 2106[a]; Nazario v. Ciafone, 65 874, 875 [2d Dep’t 2010]). facts asserted within it (Law Offices of A.D.3d 1240, 1241 [2d Dep’t 2009]), Occasionally, a witness may have a Neal D. Frishberg v. Toman, 105 A.D.3d notwithstanding that person’s status as sincere religious objection to swearing 712, 713 [2d Dep’t 2013]). an officer of the court. If an attorney an oath to the Almighty. Any person None of this is rocket science, which serves process under Section 308 of the who, for religious reasons, wishes to is all the more reason that documents New York Civil Practice Law and Rules use an affirmation as an alternative to a should be submitted to courts in the (“CPLR”) or other statute, or serves sworn statement may do so. However, proper form. litigation paperwork in the normal to be effective, such an affirmation must course, the attorney is best advised to still be taken before a notary public or Hon. Mark C. Dillon is a Justice at the execute an affidavit of service, rather than other authorized official (N.Y. CPLR Appellate Division, Second Department, an an affirmation, as such conduct casts the § 2309[a]; Slavenburg Corp. v. Opus adjunct professor of New York Practice at attorney in the role of a fact witness to Apparel, Inc., 53 N.Y.2d 799, 801 Fordham Law School, and an author of CPLR the task undertaken. [1981]). This procedure is different than Practice Commentaries in McKinney’s.
10 | JANUARY 2021 | WESTCHESTER LAWYER Equal justice under law is not merely a caption on the Faith Based Court Access (FCA) facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. By Valerie Bezzell —Justice Lewis F. Powell, Jr., U.S. Supreme Court
A new and innovative access-to-justice program is available in Westchester. The Faith-Based Court Access (FCA) program, a part of New York State Chief Judge Jan- et DiFiore’s “Access to Justice Initiative”, is designed to ensure that all communities, including the disadvantaged, can access the court system in a safe and respectful way even if they lack the technology to do so. Ninth Judicial District Adminis- trative Judge Kathie E. Davidson, in collaboration with area faith leaders, the Honorable George Latimer and the Westchester County government launched the new FCA pilot program Pictured form left to right: Maria-Alana Recine, Court Attorney Referee, Reverend Mizell and along with five local houses of worship. Chris Brown, Hon. Kathie E. Davidson, Administrative Judge for the Ninth Judicial District, The mission of the FCA is to provide Crystal Collins, Assistant to the County Executive for Advocacy, Community Liaison & Faith disadvantaged persons remote access to Based Partnership Initiatives, Office of the Westchester County Executive the New York State Court system, pro- moting equal use of our legal system. The uses; face masks, hand sanitizer and oth- San Andres Episcopal Church designated Houses of Worship offer pri- er PPE provided. 22 Post Street, Yonkers, NY vate “safe-haven” space, trained person- Some areas of the law in which an Mon., Wed., Fri., 9:30 AM-1:30 PM nel and electronic resources to log into unrepresented person may seek assis- 914-963-9563 court proceedings and to connect with tance from this program include, but are Pastor Richard Suero legal service providers. Each participat- not limited to: Landlord/Tenant Mat- Church Secretary Beatriz Castrillon ing House of Worship has designated a ters; Family Law (Domestic Violence, [email protected] room equipped with a laptop/computer, Adoption, Custody/Visitation, Child Bethesda Baptist Church telephone, Internet access, web camera, Support, Divorce); Surrogate matters 71 Lincoln Ave., New Rochelle, NY Tues., printer and scanner providing for a fully (Guardianship, Wills, Trusts & Estates); Thur., 10 AM-2 PM equipped access-to-justice resource cen- and Foreclosure Matters. A list of the ini- 914-632-6713 ter. The locations are available to help tial FCA sites follows: Reverend Dr. Paul Weaver [email protected] anyone who does not have a lawyer and Grace Baptist Church cannot afford to hire one; anyone seeking 52 South 6th Ave., Mount Vernon, NY Church of the Assumption a safe, private location to access Court Mon., Wed., Fri., 9:30 AM-1:30 PM 131 Union Ave., Peekskill, NY Help Resources; anyone who needs ac- 914-664-2676 Mon., Tues., Thurs., 9:30 AM-1:30 PM cess to Do-It-Yourself (DIY) documents Reverend Bill Mizell, under the leadership 914-737-2071 and who does not have access to comput- of Reverend Dr. W. Franklyn Richardson Father Esteban Sanchez er equipment. [email protected] [email protected] The FCA hopes to expand to addi- Mount Hope A.M.E. Zion Church To find out more about access to tional Houses of Worship as well as to 65 Lake Street, White Plains, NY justice initiatives in the Ninth Judicial other parts of the Ninth Judicial District Tues., Thurs., 9:30 AM-1:30 PM District, contact Maria-Alana Recine (Westchester, Putnam, Dutchess, Rock- 914-948-6372 914-824-5476 or land and Orange Counties). Senior Pastor Reverend Dr. Gregory [email protected]. Recommended COVID-19 safety Robeson Smith, Brother David Burton For more information on the FCA measures are observed at sites including;: [email protected] and please visit: http://ww2.nycourts.gov/ appointment scheduling to limit density, [email protected] faith-based-court-access. social distancing and sanitizing between
WESTCHESTER LAWYER | JANUARY 2021 | 11 Haub Law’s Response to COVID-19 By Jessica Bacher, Esq. Executive Director Pace Land Use Center
Westchester County was home to The COVID-19 pandemic a global level. The Paths to Practice start the original hot spot of the COVID-19 with required foundational courses in a pandemic in the United States; so, it is and climate change gravely given area, build on those courses with entirely fitting that the county’s only law threaten public health. Both intermediate doctrinal electives and relat- school, Elisabeth Haub School of Law ed courses, and culminate with a practical at Pace University (Haub Law), has re- call for a sharper focus skills-based capstone experience. These sponded by ramping up our programs in professional tracks, which are recom- the fight against the virus. on “sustainability,” a term mended courses and course sequences, Careers related to the health care and given new meaning by these provide a more flexible way for students bio-tech industries, particularly near the to organize their course selections around Law School’s campus in Westchester, are undeniable threats. a particular practice interest. on the rise. The U.S. Bureau of Labor The current Advanced Certificate Statistics projects that employment in Law will soon be seeking American Bar in Health Law and Policy is awarded healthcare occupations is expected to Association and New York state approval to JD students upon their graduation grow 15% from 2019 to 2029, which is to offer an online Advanced Certificate from Haub Law. To earn the Certificate, much faster than the average for all oc- for Health Law and Policy to practicing students must earn 15 credits, with cupations, adding about 2.4 million jobs. lawyers looking to expand their capabili- the following required courses: Health Health care jobs sit at the intersec- ties in health law, and to non-lawyer pro- Law in America, Bioethics and Medical tion of science, technology and the law. fessionals working in the healthcare space Malpractice, Public Health Law, and Skilled lawyers will be needed in so many who need to understand the legal and Healthcare Lawyering Skills. areas of this field, including understand- policy landscape to do their jobs. The remaining credits may be satisfied ing the implications of new regulations, Haub Law’s Paths to Practice curricu- with a list of electives. Courses we offer in- advising health-related corporations and lar approach provides students with a road clude: Accounting for Lawyers, Cannabis organizations on transactional and com- map for pursuing their particular interest Law, Constitutional Law Seminar: End of pliance matters, and influencing policy. in law, with a focus on the knowledge and Life Issues, Corporate Finance, Elder Law, Haub Law, with its Paths to Practice skills actually needed to work in particu- Environmental Litigation and Toxic Torts, curricular approach and existing certifi- lar specialties. Our Advanced Certificates Food Systems Law, Guided Research or cate program in Health Law and Policy, in Environmental Law, International Law Directed Research (Health Law topic), is uniquely suited to provide lawyers and and Health Law and Policy are ground- Externship: Legal Services/Public Interest/ graduates with the skills they will need to ed in interdisciplinary subject matter Health Law, Health Law & Policy Seminar compete in this new marketplace. Haub and encourage engagement with law on (Healthcare Compliance), Health Law
12 | JANUARY 2021 | WESTCHESTER LAWYER & Policy Seminar (Health Equity), cus on “sustainability,” a term given new The Environmental Law Survey Insurance Law, Legislative and Regulatory meaning by these undeniable threats. A course intersects directly with issues re- Process, Non-profit Organizations,fear-based trend of people leaving cit- lating to environmental health. Core Skills Workshop: Law[yering] & ies has emerged as an initial response to statutes studied in the class (Toxic Science, and more. For more informa- the pandemic. If this trend continues, Substances Control Act, Clean Air Act, tion please visit: https://law.pace.edu/ it could pose serious risks to low-car- and Clean Water Act) index the re- advanced-certificate-health-law-policy. bon land use strategies recently adopted quirements of regulation to human and The Haub Law faculty offering by densely populated urban communi- ecological health impacts. Notably, the courses in the health law certificate cur- ties and worsen already disproportion- National Environmental Policy Act com- riculum are uniquely suited given their ate public health harms in marginalized pels the consideration of environmental areas of expertise. For instance, Prof. communities. Land use law can play an impacts, including health, in the context Barbara Atwell offers a new Health Law essential role in effectively addressing of decision making. & Policy Seminar on Health Equity. This these issues and shaping a healthier, more Prof. Katrina Kuh’s Climate Change class will explore the unique challenges prosperous future. Law course provides the opportunity for that people of color, immigrants, mem- The Center’s reports will describe lo- students to research and write on one of bers of the LGBTQ community, the dis- cal land use solutions, garnered from case the many areas where climate change in- abled, domestic violence survivors, those studies and reports, to show how localities tersects with environmental health. Prof. suffering from mental health challenges, are responding to the pandemic through Margot Pollans’ course in Food Systems the poor, and others are confronted with land use planning and regulation. We will Law identifies the human health costs of when they interface with our health care demonstrate how comprehensive plans, food production, including those related system. The class will address legal in- land use regulations, the review of devel- to food consumption, food production, stitutional structures that need to be re- opment proposals, novel uses of public and labor in the food system. These pro- formed or dismantled in order to achieve infrastructure, and other feasible strate- grams and courses stand at the forefront health equity for all. gies can protect public health, promote of a strong interdisciplinary approach to Likewise, Professors Steven Chananie, equity, and provide financial stability. health law and policies that will help us Gretchen Flint, Karen Gallinari and Linda Moreover, Haub Law students have fight the COVID-19 pandemic and fend Martin offer rich expertise and research in already been addressing COVID-19 is- off the next one. issues related to health law and policy. sues in their research. Haub Law students, Jessica Bacher, Esq., is the Director of Land Use, Human Health, and Morgan Dowd, Marissa Cohen, and Matthew Pappalardo provided substantial the Health Law and Policy Certificate and Equity assistance to the NYS Bar Association’s Executive Director of the Pace Land Use Law Center. Established in 1993, the Land Use Haub Law has already been very Health Law Section, in particular to active in health law and policy research Law Center is dedicated to fostering the de- the Task Force which was created to ad- velopment of sustainable communities and and is involved in a number of innova- dress legal and ethical issues raised by regions through the promotion of innova- tive projects. For instance, the Land Use, COVID-19. tive land use strategies and dispute resolu- Human Health, and Equity Project, Environmental Law and Health tion techniques. As the Executive Director, launched by the Land Use Law Center, Law and Policy Ms. Bacher’s responsibilities include devel- makes accessible effective land use tools opment and implementation of projects re- for strengthening public health and envi- Haub Law offers a number of cours- lating to local land use practice, distressed ronmental protections in urban commu- es in its nationally ranked Environmental property remediation, transit-oriented de- nities in response to the pandemic. These Law program that relate to health law velopment, sustainable communities, land strategies can contribute to communities’ and policy, including Advanced Seminar use responses to sea level rise, and code healthy and resilient post-pandemic fu- in Environmental Law: enforcement, as well as providing strategic assistance to numerous municipalities. Most tures while also reinvigorating cities’ cli- Environmental Litigation recently, she led the City of Newburgh, New mate change management capabilities. Clinic–Clinical Advocacy; York, in the development of a distressed Through a team of two dozen stu- Environmental Law Survey; property remediation implementation plan dent researchers led by Professor John Climate Change Law; that focuses on the development of a land R. Nolon, this project addresses climate Food Systems Law; bank. change and COVID-19 by discovering Access to Justice Seminar; and local solutions. The COVID-19 pandem- Agriculture & Environmental Law. ic and climate change gravely threaten public health. Both call for a sharper fo-
WESTCHESTER LAWYER | JANUARY 2021 | 13 Reprinted with permission from the Fall 2020 issue of the New York Criminal Law Newsletter.
Flagging New York’s “Red Flag” Law
By Sherry Levin Wallach, Esq.
New York’s “Red Flag” Law was en- action or proceeding, or with In defining “likelihood to engage acted on August 24, 2019 and it has respect to any other determi- in serious harm,” the statute refers to been codified in Article 63-A of the Civil nation or finding, in any court, Section 9.39 (a) of the Mental Hygiene Procedure Law and Rules (C.P.L.R.) as the forum or administrative pro- Law. However, unlike that which is re- Extreme Risk Protection Order. The in- ceeding. quired under the Mental Hygiene Law, tent behind this statute is commendable; In practice, people are being crimi- the determination pursuant to Article it is meant to protect our communities nally charged for the possession of weap- 63-A for a TERPO does not have to be against gun violence. Unfortunately, the ons or other items that are recovered made by licensed mental health profes- standards set forth in the statute seeming- or surrendered pursuant to a TERPO sionals. Instead it can be made by any ly circumvent constitutional protections, or ERPO. The respondent then be- lay person or any member of law en- the Criminal Procedure Law (C.P.L.) and comes a defendant in a criminal case. forcement, who believes a person has the it changes the burdens established under Consequently, these statutes have massive “likelihood to engage in serious harm,” the C.P.L. for criminal prosecutions. implications both constitutionally and may make application, regardless of prior The Temporary Extreme Riskprocedurally for those people charged experience or training. In essence, a judge Protection Order (TERPO) and Extreme with crimes. issuing a Temporary or Final Extreme Risk Protection Order (ERPO) statues At least 17 states and the District of Risk Protection Order is making a find- are found in C.P.L.R. Sections 6340- Columbia have “red flag” laws, and others ing under the Mental Hygiene Law that 6347. Not only are the statutes vague have had legislation for these laws drafted classifies the respondent’s mental state 1 and constitutionally unsound, but they and/or introduced. The New York ERPO without professional analysis or support arguably violate both U.S. Constitution statutes provide for a civil court order and/or legal counsel. Indeed, C.P.L.R. (Amendments I, II, IV, V, VI and XIV) based upon an ex parte application which Article 63-A is not clear about how such and the New York State Constitution is issued by a supreme court judge sitting a finding can or will be used in a subse- (Article I). The TERPO or Final Extreme in a civil part. The ERPO and TERPO quent criminal prosecution. The law also Risk Protection permits and encourages prohibit a respondent from purchasing, begs the question: Can a person deter- arbitrary and discriminatory enforce- possessing, or attempting to purchase or mined under C.P.L.R. Section 6343 to ment by failing to provide minimal possess a firearm.4 have mental incapacity be acting with 2 guidelines to given law enforcement. The application may be made by the requisite intent to be later charged These “civil” laws have criminal law law enforcement and/or lay people such criminally for possession of said weap- implications. There is nothing in these as school employees or family members,5 ons? Additionally, this decreased standard statutes that alerts the unrepresented and it can be based upon uncorroborat- opens the door for retaliatory and unsub- respondent of the possibility of crimi- ed hearsay allegations. The basis of the stantiated allegations to serve as the basis nal prosecution for complying with its application can be merely the belief of for a TERPO and a search of the respon- terms or any order issued pursuant to the applicant (or other reporter) that the dent’s property and person. 3 C.P.L.R. Article 63-A. In fact, if any- respondent has firearms and that there is The “red flag law” is a Civil Order thing C.P.L.R. Section 6347 states that: “probable cause” to believe that the re- effectively circumventing the Right to no findings or determination spondent is “likely to engage in conduct Counsel under the Sixth Amendment of made pursuant to this article that would result in serious physical harm the United States Constitution. It alters shall be interpreted as binding, to himself, herself or others as defined in the burdens required for a lawful search or having collateral estoppel paragraph one or two of subdivision (a) of and seizure that exist in a criminal pro- or similar effect, in any other section 9.39 of the mental hygiene law.”6 ceeding under the C.P.L. The respondent
14 | JANUARY 2021 | WESTCHESTER LAWYER (and potential future criminal defendant) the search may be executed. It does not statute remains, new legislation must be is not represented by counsel during the limit the number of times searches may enacted under the Criminal Procedure ex-parte proceeding even though the re- be conducted. Although the statute pro- Law to preclude the admissibility of sult of the issuance of the TERPO may vides for an order that must be issued by anything recovered under a TERPO or be search warrants. Further, the law re- the court, there are no additional direc- ERPO or statements made by the respon- quires respondents to sign a receipt for tives in the black letter law that require dent in response to the application or the guns surrendered and/or anything recov- the TERPO to set forth parameters for issuance of said Order. ered during a search admitting possession the execution of a search in the statute. It thereof, whether or not the items are flouts the standard set out in the Criminal Endnotes lawfully possessed. For example, if an ille- Procedure Law for a search warrant and 1 See, Connolly v. General Constr. Co., 269 gal gun is recovered pursuant to a search the myriad of case law that has been de- U.S. 385, 391 (1926); United States authorized pursuant to a TERPO, the veloped protecting an individual’s Fourth v. Harriss, 347 U.S. 612, 617 (1954); unrepresented person is required to sign Amendment Rights.8 People v. Shack, 86 N.Y.2d 529, 538 a receipt for the item not being advised Upon this Temporary Order, the (1995). as to the implications of doing so or of unrepresented respondent is required to 2 See, People v. Bright, 71 N.Y.2d 376 his or her constitutional right to remain voluntarily surrender all of his firearms. (1988). silent. The respondent will then be pros- Even upon this surrender, law enforce- 3 See e.g., People v. Byron, 17 N.Y.2d ecuted in criminal court for the unlawful ment is authorized to conduct a search of 64, 67 (1966); Pomeroy v. Whalen, 44 possession of a firearm, which may be a the respondent’s person and home upon N.Y.2d 992, 994 (1978). 4 New York Civil Procedure Law misdemeanor or felony charge, both of (any) reason to believe an enumerated (C.P.L.R.) Article 63-A. which carry with them the potential for listed weapon is still in the respondent’s 5 Id. New York is the only state to have terms of incarceration. possession. C.P.L.R. Section 6342 states legislation that allows teachers and Since this ex parte application can that the temporary order itself must in- school administrators to be the appli- be made by law enforcement or lay peo- clude a form to be completed and exe- cants for a petition. ple and the supporting deposition can cuted by the unrepresented respondent 6 C.P.L.R. § 6342(1). be based on uncorroborated double which must list all the “firearms, rifles 7 See, C.P.L.R. § 6342. or even triple hearsay,7 it bypasses the and shotguns possessed by him or her and 8 United States Constitution Amendment Criminal Procedure Law’s standard of their particular locations.”9 Requiring IV. proof required for a search warrant un- a respondent to sign a receipt for items 9 C.P.L.R. § 6342(4)(e). der C.P.L. Section 690 thereby eviscer- either surrendered or recovered violates a ating the established standard of proof person’s right to self-incrimination in that Sherry Levin Wallach, Esq., is the Deputy required for the admissibility of evi- if the weapons surrendered or recovered Executive Director of the Westchester Legal dence in a criminal case. Further, upon are illegally possessed, the respondent Aid Society and the Secretary of the New the issuance of a final ERPO, C.P.L.R. will be prosecuted criminally. See, U.S. York State Bar Association (NYSBA). She is Section 6343(3)(d) provides that: Const. Amend. V. a member of the Board of Directors of the [a]s part of the order, the court Article 63-A of the C.P.L.R., which WCBA. Ms. Levin Wallach is the Executive may also direct a police officer legislates the ERPO, fails to include the Committee Liaison to the NYSBA Committee to search for firearms, rifles and protections afforded to people under the of LGTBQ People and the Law and the Committee on Immigration Representation, shotguns in a respondent’s pos- Criminal Procedure Law, Penal Law, and the New York State and United States a member of the NYSBA Committee on session consistent with the pro- Professional Discipline and serves on the cedures of article six hundred Constitutions. Thus, in addition to be- ing constitutionally unsound, any evi- NYSBA Task Force on Parole Reform. She is ninety of the criminal procedure a Past Chair of the NYSBA Criminal Justice dence recovered pursuant to a TERPO or law. and Young Lawyers Sections and Co-Chaired ERPO cannot be permitted to be used in NYSBA’s Task Force on Incarceration Release The language of C.P.L.R. Section any criminal proceeding. 6343 permits a search to be ordered by Planning and Programs as well as a past Co- The remedies to correct the consti- Chair and Chair of the NYSBA’s Membership the judge without a warrant issued pur- tutional wrongs and legal inconsistencies Committee. Ms. Levin Wallach is a mem- suant to Article 690 of C.P.L. The use of created by the statute are: (1) repeal the ber of the Criminal Justice, Women in the the word “may” in this section of Article statute; or (2) amend the statute to clearly Law, Trial Lawyers and Torts Insurance 63-A, merely permits the authorization provide for the same constitutional pro- Compensation Law Sections. She is Co- of a search warrant that comports with tections afforded people under the United Founder, lecturer and Team Leader for the procedures of Article 690 of C.P.L. States and New York Constitutions. See the NYSBA’s Young Lawyer’s Section Trial The search as it is authorized under U.S. Const. Amend. I, II, IV, V, & IV; Academy and a frequent CLE speaker for C.P.L.R. Section 6342 provides no pa- N.Y.S Const. Art. I. Additionally, if this the NYSBA and Westchester County Bar rameters as to the time frame in which Association.
WESTCHESTER LAWYER | JANUARY 2021 | 15 Collaborative Divorce and Passive Resistance By Arnold D. Cribari, Esq.
This article is inspired by President case. The collaborative family specialist case. It is required by the Collaborative Barrack Obama’s eulogy at the funeral and financial specialist, who are neutral, Code of Conduct and the Participation service of Congressman John Lewis, and can also provide her with invaluable sup- Agreement, which both parties and their a collaborative divorce. port, and their neutrality can engender lawyers sign at the beginning of the case. What do you do when you are in trust that can enable them to have a pos- Nonviolence is also a necessity in the midst of representing a client in a itive influence on her difficult spouse. a collaborative divorce. The need to be collaborative divorce and his/her spouse It is likely that the whole interdisci- nonviolent in one’s actions is obvious; is persistently unreasonable? [In order plinary team of collaborative professionals however, the need to be nonviolent in to make the language in this article less (both lawyers, the family specialist and the one’s words is not so obvious. Both spous- cumbersome, your client will be the financial specialist) agree with your client, es need to feel safe, both physically and wife, and her unreasonable spouse will and will do their best to get her husband emotionally, in order for the collaborative be her husband.] on track to reach a fair settlement. divorce process to work. When there is a One option is to recommend to your Tell your client to keep her eye on hint of the threat of any form of violence, client (the wife) that she terminate the the dual goals of a good divorce settle- collaborative professionals use their active collaborative process and litigate the di- ment and a good aftermath. A good di- listening skills to restore peace and order. vorce with new attorneys. vorce settlement is one that meets your Such active listening skills can even Let’s say she is reluctant to litigate client’s needs and interests, and those of diffuse a potentially explosive, life-threat- because of the risks, including the poten- her children and spouse. A good divorce ening situation. An example of this ap- tial monumental legal fees and stress that aftermath is one in which your client and pears in “Nonviolent Communication: can result from a big battle in divorce her future former husband (now her cur- A Language of Life,” at pages 13 through court. rent husband) are cordial towards each 14, between the author, Dr. Marshall Then, what do you do? other at the future important events in Rosenberg (referred to as “I”) and an First, tell her not to despair, that she their children’s lives. initially hostile Palestinian (referred to is not alone and that she has selected a In the wake of the moving funeral as “He”) in the riveting dialogue below divorce settlement process where she can service of Congressman John Lewis and that took place in a mosque at Deheisha obtain the help she needs. President Barrack Obama’s inspiring eu- Refugee Camp in Bethlehem: Chances are that there are significant logy, it occurred to me that the concept “Murderer, Assassin, Child Killer” power imbalances in her relationship with of “Passive Resistance” can apply in a col- her unreasonable husband. The collabora- laborative divorce. Then, it occurred to “I addressed the man who had called tive divorce process is designed to correct me that an ideal mindset for a spouse and me a murderer: such power imbalances. the collaborative divorce professionals to I: Are you angry because you would How so? have, when confronted with a persistent- like my government to use its re- ly unreasonable spouse, is “Respectful Tell her that you, as her collaborative sources differently? (I didn’t know lawyer, can prepare her, empower her, ad- Nonviolent Assertiveness and Resistance.” vocate for her, give her legal advice, help Respectfulness, which is a cornerstone whether my guess was correct, but her identify her needs and interests, and of collaborative divorce, is a commitment what is critical is my sincere effort to support her throughout the collaborative made at the outset of the collaborative connect with his feeling and need.)
16 | JANUARY 2021 | WESTCHESTER LAWYER He: Damn right I’m angry! You think reflecting back the emotion expressed, In closing, it occurs to me that some we need tear gas? We need sewers, thereby demonstrating understanding; may say that a divorcing couple is dis- not your tear gas! We need housing! and listening and paraphrasing empa- qualified from the collaborative process We need to have our own country! thetically. By using these techniques, Dr. if one or both spouses are difficult. It is Rosenberg built connection, trust and true that a difficult spouse is more likely I: So you’re furious and would appre- rapport with the Palestinian. to abuse the collaborative process and in- ciate some support in improving The upshot of the above dialogue crease the chances that negotiations will your living conditions and gaining is that the Palestinian subsequently in- irreversibly break down. In my opinion, political independence? vited Dr. Rosenberg to his home for the ethical way for collaborative profes- a Ramadan dinner and they became sionals to proceed in a difficult case is to He: Do you know what it’s like to live friends. provide informed consent. The client is here for twenty-seven years the way Collaborative divorce lawyers use advised of the risks, including the poten- I have with my family – children the same techniques that Dr. Rosenberg tial costs (money and time) of proceed- and all? Have you got the faintest applied in the above example. ing collaboratively, and then the client idea what that’s been like for us? Returning to the ideal mindset for decides whether or not to assume those a difficult collaborative divorce, what risks. I: Sounds like you’re feeling very about assertiveness? The potential benefits are consider- desperate and you’re wondering Assertiveness is important because able for a client who assumes such risks. whether I or anybody else can really the collaborative divorce process works On many occasions, I have seen how the understand what it’s like to be living best when each party’s needs and interests modeling of respectful conflict resolu- under these conditions. Am I hear- are fully asserted in a respectful manner. tion by the collaborative professionals ing you right? What about resistance? can help transform the difficult spouse In my approximately 20 years of into a respectful negotiating partner. He: You want to understand? Tell me, experience as a New York collaborative do you have children? Do they divorce lawyer, numerous difficult cases go to school? Do they have play- got settled when my client and I did not grounds? My son is sick! He plays in give up, did not give in, and respectfully open sewage! His classroom has no resisted when the other spouse persistent- books! Have you seen a school that ly made unreasonable demands. When has no books! the other spouse said or did something I: I hear how painful it is for you to offensive or upsetting at a collaborative raise your children here: you’d like settlement conference, I would remind me to know that what you want myself not to be reactive, but rather do is what all parents want for their the following: initially acknowledge, si- children – a good education, oppor- lently and secretly, whatever judgment I tunity to play and grow in a healthy may make that is triggered by the oth- environment… er spouse’s unreasonableness; formulate He: That’s right, the basics! Human a strategy to move the negotiation for- rights - isn’t that what you ward in a positive way; and take action Americans call it? Why don’t more accordingly, which might include using of you come here and see what kind active listening techniques to diffuse the of human rights you’re bringing conflict. Arnold D. Cribari, Esq., has practiced law here! This respectful nonviolent asser- tiveness and resistance reminds me of for over 40 years, and for the past 30 years I: You’d like more Americans to be peaceful protest in the civil rights con- he has concentrated exclusively in matri- monial and family law. For the past 20 years aware of the enormity of the suffer- text. Both involve having courage, re- ing here and to look more deeply his practice has included collaborative law spectfully speaking out, and not shying and divorce mediation. Arnold is the author at the consequences of our political away from conflict or “good trouble,” as actions?” of numerous articles including Restraining Representative John Lewis would say. the Custodial Parent from Relocating the The natural reaction when violent It is also important to have patience Child to a Distant Domicile.., Collaborative words are spoken is to be reactive, by and faith in the collaborative process. Law: Divorce Lawyer as Peacemaker and using angry and offensive language in When this happened in my difficult col- The Struggle to Preserve Collaborative Law response that creates a conflict, and get- laborative divorce cases, there was almost Benefits when Litigating a Divorce. ting into an argument that exacerbates always a breakthrough, and the recalci- the conflict. Instead of being reactive, trant spouse finally saw the light. Once Dr. Rosenberg used active listening tech- that occurred, the divorcing couple was niques, including listening very carefully on the road to the promised land of a to what the Palestinian said; paraphras- good divorce settlement and aftermath ing his statements as to content and to their divorce.
WESTCHESTER LAWYER | JANUARY 2021 | 17 member Spotlight
In this feature, Tejash V. Sanchala interviews WCBA members about their experiences and insights. Tejash is Co-chair of the Employment Law Committee, a member of the WCBA Nominating Committee and a former WCBA Board Member. Tejash can be reached at: [email protected]
Daniel Alter, Esq.
Tejash: How long have you been a Tejash: Can you talk about your Tejash: What is one of your favorite member of the WCBA? work in public service before you success stories? joined the private sector? Daniel: I joined the WCBA earlier Daniel: Over the past few years, my this year, when I moved my practice Daniel: Ever since I was in high work developing legal regulations for from a firm in New York City to school, community service has been blockchain technology—especially Yankwitt LLP in Westchester County. an important part of my life. That in the cryptocurrency and financial Tejash: What is your current job sense of responsibility and satisfaction services space—has been gratifying. and practice area? extended to my legal career. I joined While I was General Counsel at the Daniel: I am a partner at Yankwitt the U.S. Attorney’s Office, because I Department of Financial Services, LLP, where I handle a broad range of believed (and still do) that responsi- we worked hard to make New York commercial, regulatory, and appellate ble lawyers in government can do the the leading regulatory innovator in litigation. I also have a financial ser- right thing in hard situations and help this sector to keep pace with tech- vices regulatory advisory practice, in make people’s lives better. I contin- nological innovation. It has been which I service banking, cryptocur- ued on that mission by working for tremendously rewarding to watch a rency and digital asset clients. the New York State Attorney Gener- multi-billion-dollar market rise on al’s Office helping to fight mortgage the legal foundations we built. New Tejash: How was your experience fraud on behalf of both homeowners York continues to be an international clerking for two appellate judges and investors, and, as General Coun- trailblazer in this field, and there is for the Second Circuit – the Hon- sel for the New York State Depart- enormous potential for businesses orable John M. Walker Jr. and the ment of Financial Services, I helped across the state to benefit from those Honorable Guido Calabresi? to enforce international anti-terror- advances. Now that I am in the pri- Daniel: I was fortunate to work for ism sanctions against global banks vate sector, I continue to participate two wise and thoughtful jurists. Each that repeatedly violated them for in developments in this area of the one had a distinct view of the law and profit. Now in the private sector, my law and continue to feel rewarded by approach to judging, which I closely clients benefit from the hands-on ex- the work. observed and from which I learned. perience I had working on important, Tejash: Who were some of your Being able to clerk for the two federal complex issues that build skills that legal mentors? judges was an invaluable learning ex- are hard to develop elsewhere. perience and informed how I practice Daniel: I have had the honor of law today. learning from tremendously ac- complished attorneys. Also, Judges Walker and Calabresi were wonderful
18 | JANUARY 2021 | WESTCHESTER LAWYER teachers and working in the U.S. At- civil rights advocates. Both jobs, Tejash: What is the best advice you torney’s Office under Mary Jo White however, strive to protect the fun- have ever received? was like practicing law in Camelot. damentals on which our society was Daniel: A wise person once told me My parents were equally important built – personal liberties and equal that you cannot control what people to my growth as a lawyer. They prac- treatment under the law. They are say about you; you can only control ticed together for many years in a more alike than most people realize. what you do. small litigation firm, specializing in Tejash: What do you splurge on? Spotlight commercial and matrimonial work. Tejash: What advice would you give I watched how they tirelessly advo- Daniel: My child and chocolate. to new lawyers? cated for clients and always remained Tejash: What is the best hour of Daniel: My advice would be two- decent people while doing it. They your day? fold: 1) protect your integrity, as it is were successful but not arrogant, and your most valuable asset, and 2) form Daniel: I’m definitely a morning per- they demonstrated to me the import- strong relationships in your personal son; I would have to say my most pro- ant lesson that caselaw is made of and professional lives. It is hard to ductive hour is between 9 and 10 a.m. real-life stories. succeed without them. Tejash: What are some of your fa- Tejash: If you were not practicing Tejash: What is one of your future vorite movies? law, what would you be doing? ambitions? Daniel: The Godfather I and II, Daniel: I would likely be a writer of Daniel: I would like to write a book Young Frankenstein, and The Lion in some kind – a journalist, historian, that makes people both think and Winter. or novelist, perhaps. I have always laugh. considered being able to use language Tejash: What are some of your favo- Tejash: What is your favorite part of artistically as a gift and achievement. rite vacation trips ? being involved with the WCBA? Tejash: What might people be sur- Daniel: Every summer, my family Daniel: I believe the WCBA and its prised to learn about you? and I go to the beach for a week. It is rich, diverse programming provides easy, and good for the soul. We enjoy Daniel: People are always surprised opportunities for collegial and engag- jumping the waves, beautiful sunsets, to learn that I was the National Civil ing work. I look forward to getting delicious meals, and sleeping in the Rights Director for the Anti-Defama- involved and building meaningful salt air. For me that is perfection. tion League. People do not generally relationships. associate government lawyers with
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WESTCHESTER LAWYER | JANUARY 2021 | 19 technology series
Code Red: Why Lawyers Don’t Need to Code By Jared D. Correia, Esq.
I mean, don’t get me wrong, law- The situation is even worse yers can code, if they want to; but, they don’t have to. when lawyers become There’s a prevailing argument in involved in a software build, legal tech circles over whether lawyers because lawyers charge far should be coders. This argument is often misconstrued to mean that law- more money than the average yers should be developing their own software developer or software. And, that’s an entirely differ- ent thing. It’s sort of like making the consultant, which means assumption that the guy who tinkers that lawyers are leaving with an old Corvette on the weekend money on the table when they should launch an automotive corpora- tion. And, the same argument applies do anything but lawyer. for lawyers that applies to that week- end warrior: he shouldn’t do that be- are leaving money on the table when cause he can make more money in his they do anything but lawyering. Those Jared D. Correia, Esq., is the Founder and day job, which also carries with it far attorneys who stick to substantive prac- CEO of Red Cave Law Firm Consulting, which less risk. tice and farm out lower leverage activ- offers subscription-based law firm business management consulting and technology The point is: if you want to be a ities make money; those lawyer who services for solo and small law firms. Red lawyer, be a lawyer; if you want to start abandon those activities lose money. Cave also works with legal institutions and a software company, start a software That’s why it’s so important to practice legal-facing corporations to develop pro- company. But don’t do both. at the top of your law license if you’re gramming and content. A former practicing an attorney, and to effectively delegate attorney, Jared has been advising lawyers The math works, too. work. and law firms for over a decade. He is a reg- Solo, small and large law firms ular presenter at local, regional and national If you need some help picking events, including ABA TECHSHOW. He reg- waste money and resources when they someone else’s software, we can assist. ularly contributes to legal publications, -in develop their own software, rather than cluding his column, ‘Managing,’ for Attorney The Westchester County Bar Asso- using off-the-shelf software that can be at Work, and his ‘Law Practice Confidential’ customized for far less than it costs to ciation now offers discounted law prac- advice column for Lawyerist. Jared is the au- build software from scratch. The situ- tice management consulting services thor of the American Bar Association publi- ation is even worse when lawyers be- through Red Cave Law Firm Consult- cation ‘Twitter in One Hour for Lawyers’. He come involved in a software build, be- ing. To access consulting services, visit is the host of the Legal Toolkit podcast on Legal Talk Network. Jared also teaches for cause lawyers charge far more money https://redcavelegal.com and start run- ning your law firm like a business. Concord Law School, Suffolk University Law than the average software developer or School and Solo Practice University. consultant, which means that lawyers
20 | JANUARY 2021 | WESTCHESTER LAWYER Classifieds LEGAL JOBS | OFFICE SPACE | SERVICES
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WESTCHESTER LAWYER | JANUARY 2021 | 21 What's Going On MEMBERSHIP NEWS | COMMITTEES | SECTIONS
WCBA’s Vererans Apprecation Day 2020
From left: Paul M. Millman, Ryan Ondrovic with his father Supreme Court Judge Robert Ondrovic and WCBA President Elect James Hyer deliver presents to Montrose VA Hospital in Honor of Veterans Day.
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22 | JANUARY 2021 | WESTCHESTER LAWYER CLE/Events News
VIRTUAL NETWORKING EVENTS Immigration Committee VIrtual Meeting For more information visit: www.wcbany.org On December 10, 2020, the Immigration Committee met to Jan. 5 Fri. 12:30 PM - 1:30 PM discuss current issues and shared tips in the practice of immi- WWBA and WCBA Employment Law Roundup gration during these challenging times. Join us for a collaborative discussion: Navigating Please join us next time! Employment Law Matters in the COVID-19 Era
Jan. 11 Mon. 12:30 PM - 1:30 PM Happy New Year! You’ve Been Hacked! Now What?! Join us to discuss how to recognize, prevent and react to cyber attacks Jan. 22 Tues. 12:30 PM - 1:30 PM WWBA and WCBA Employment Law Roundup
Jan. 26 Tues. 5:30 PM - 7:00 PM Bar Association Trivia Night Challenge Join us at 5:30 p.m. and enjoy the comedy stylings of Debra Reiser, Esq., “Funniest Lawyer in NY Finalist,” while everyone logs in. At 5:45 PM we’ll send you to breakout rooms and start Round 1. Play 3 rounds of Trivia and meet a new group of colleagues in breakout rooms for each round. Jan. 27 Wed. 12:15 PM - 1:15 PM Does Video Conferencing Work for You? This webinar will show you how attention paid to your Don’t Miss Out . . . body language can make video meetings more positive New Mentoring Circles and successful. Forming This Spring! FEB. 2 Tues. 12:30 PM - 1:30 PM Law Practice Management Committee Meeting Mentoring Circles serve WCBA attorney members at all VIRTUAL CLEs stages of their career. Circles includes a mix of seasoned lawyers and those new to the legal world, a particular Jan. 19 Tues. 12:30 PM - 2:00 PM specialty or who are looking to expand their practice. Roundtable with Judge Robert D. Drain: What’s For information click here. New and Relevant Sponsored by CLE Credit: 1 Professional Practice Thank you to our sponsor: Clair Gjertsen & Weathers, PLLC Jan. 20 Wed. 12:00 PM - 1:00 PM Law Offices of Joseph F. Albert Do’s and Don’ts of Housing Discrimination in Rentals Join Andrew Lieb, Esq., MPH to learn the ins and outs of housing discrimination. Practice Limited to Property Tax Law CLE Credit: 1 Diversity, Inclusion & Elimination of Tax Certiorari and Residential Bias Joseph F. Albert, Esq. Jan. 28 Thur 1:00 PM - 2:00 PM Best Practices for Virtual Trials 100 White Plains Road, Tarrytown, NY 10591 Phone: 914-332-6666 | Fax: 914-332-0806 | [email protected] Moderator: Hon. Walter Rivera, NYS Court of Contact: [email protected] Claims CLE Credit: 1 Skills
WESTCHESTER LAWYER | JANUARY 2021 | 23 BackFROM THE Bench BY RICHARD M. GARDELLA, ESQ. Editor-in-Chief
WCBA Past President
WCBF Past President
The reading of the obituary of a to the White Plains bench and shook the the school’s student body as president. prominent California lawyer in the Wall hand of his downcast White Plains oppo- Before joining the professional bas- Street Journal last November sent me back nent, saying a few words. I could not hear ketball circuit after graduation, Arnelle to New Rochelle’s High School’s basket- what was said, but I assumed it was some- turned down a professional football ca- ball court seven decades earlier. thing to this effect: “nice game kid.” reer. The Los Angeles Rams drafted him White Plains High School’s men’s All of these years later while I do not in 1955. basketball team was playing a powerful remember the score of the game or which Following service in the U.S. Air New Rochelle squad led by an athletic team won, that simple, mature, and sym- Force, he earned a law degree from Dick- center. As a member of my high school’s pathetic gesture by the big center remains inson Law School in Carlisle, Pennsyl- junior varsity, I had played that center crystal clear in my memory. I had seen a vania. Recruited by Robert Kennedy, he in preparation practices with the varsity. budding man of character show concern joined the Peace Corps working in Turkey Looking at him now from the stands, I re- for an opponent in the midst of hot com- where he learned the language. He also alized how unsuited for the practice role I petition. served in India. In 1968, he moved to San was. A physical specimen, he stood almost Reading the obituary of Jesse Francisco to eventually become a lawyer four inches taller than me at 6-foot-7 Arnelle, a top California lawyer, who died in private practice. and possessed athletic ability I could only October 21, 2020 in his San Francisco In May of that year, Penn State in- dream about. home at the age of 86, confirmed my vited Arnelle back to receive an alumni But his superior physical attributes long-ago reaction to that basketball ges- award. Just a month before the invitation, and his playing ability are not what is ture. In later life, Arnelle, the thoughtful Dr. Martin Luther King, Jr. had been as- remembered here nor are they what trig- New Rochelle center from my memory, sassinated. According to the Journal piece: gered this ancient memory. It was a ges- kept faith with his character and remained … In a stinging speech, Mr. ture—a small gesture—during the game the person revealed to me at that game Arnelle refused to accept the that revealed his character and perked my back then. award because of what he de- respect for and my interest in him. Over the years since the game, I scribed as a failure to recruit A young, inexperienced member of had watched his career as he played col- more Black students, professors the White Plains varsity squad was given lege football for Penn State, moved on to and administrators…. the daunting task of guarding the rival play professional basketball for the Fort center. Putting all of his effort and ability Wayne Pistons and later became a suc- He pointed out in his speech that there in the task, he sadly did not come close cessful West Coast lawyer. While work- were no Black professors with tenure nor to mastering that challenge. In the second ing in New Rochelle in the 1970’s as a a Black member of the school’s board of half, his effort ended when he fouled out. newspaper editor, I also learned of the trustees. That board lack was corrected Dejected, the young White Plains player strong and respected family to which in the following year when Arnelle was took a seat on the bench with his head Arnelle belonged. elected to the Penn State Board—a post down. The Wall Street Journal article fleshed he would hold for forty-five years. Suddenly something happened that out the exceptional, important life he According to the Journal piece, in I never saw in past encounters between lived. At Penn State, he also played center 1984 Arnelle with his friend, William the two rival teams. When the dejected for the basketball team that made it to the Hastie, founded one of the first Black law White Plains center slumped down on the Final Four in 1954. While at Penn State, firms serving top U.S. corporations. He bench, the New Rochelle center ran over he was elected as the first Black to head was quoted later saying:
24 | JANUARY 2021 | WESTCHESTER LAWYER
Careful Parenting Provides a Good Life Foundation
Good, careful parenting is a foun- ond and third paragraphs of that His parents taught him to dation stone—maybe even the key- piece state: stand and salute when the na- stone—of a successful free society. … With two other brothers tional anthem played on the In a way, Arnelle’s life story with and his parents, he lived in a radio. When he showed up its success at most or even, perhaps, public housing project in New unprepared for a high school all phases, is proof of the thoughtful, Rochelle, N.Y. ‘Whatever you Spanish class, a teacher chal- every day parenting by parents who did, it had to be done perfect- lenged him to try harder ‘oth- care and take the daily trouble and ly.’ He told the New Yorker in erwise,’ he recalled being told, responsibility that comes with that 1993 ‘whether it was making ‘get out of my classroom and basic life role. your bed, cleaning your room, be just another athletic bum.’ It is clear that the former New Ro- washing the dishes, or cleaning The above parenting and coaching chelle sports star was the recipient of out the furnace.’ His father, an guidance brings to mind the follow- that kind of close family supervision immigrant from Jamaica who ing words of Frederick Douglas, the by loving parents. ran a small moving company, 19th century abolitionist: “It is easier The Journal obituary provided ev- ‘would come behind us and to raise strong children than to repair idence of that important parental show us how we could do it broken men.” guidance as well as that offered by better.’ school teachers who care. The sec-
… it was an audacious plan … it Arnelle retired from the firm in Endnote was pretty damn presumptuous 1998. An outdoors man, he climbed Mt. 1 The Wall Street obituary of Jesse Arnelle of two guys like us to say they Kilimanjaro and hiked trails in Spain. He in the November 14, 2020 issue of that were going to build a corporate is survived by his wife and two children. newspaper was relied on in writing this practice. The Journal article quoted one of his column, which also used quotes from that long-time friends as saying: article. However, as to Arnelle’s height However, that is exactly what they did. while in high school, the memory here is Companies, including Wells Fargo & He never acted like he was any- that he was listed as 6-foot-7 and that is Co., Waste Management Inc., Textron, thing special. He had time for the height stated in this column. The Jour- Inc., and Gannet Co., put Arnelle on everybody. nal obituary says he was 6-foot-5. their Boards. If that is what Arnelle felt, he was Photos courtesy of collegian.psu.edu Within ten years, the firm had thir- wrong. The one-time New Rochelle ty-one lawyers at offices in five cities. High School center, who lived a remark- Richard M. Gardella, Esq., is counsel to About the firm managed by Hastie, the able and full life after high school, was a Bertine, Hufnagel, Headley, Zeltner, Drum- obituary stated: special person. I take pride in my recog- mond & Dohn LLP. He is a past president … along with Blacks, the firm nition of that fact from the stands seven- of the Westchester County Bar Association employed Native Americans, ty years ago.1 and the Westchester County Bar Founda- tion, the editor-in-chief of this Magazine, Asians, Latinos and Whites. Cli- and a former WCBA delegate to the Ameri- ents included Wells Fargo, Shell can Bar Association and the New York State Oil Co., and McDonald’s Corp. Bar Association.
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