Bridging the Gap December 2015

New York State Bar Association Continuing Legal Education

Wednesday, December 2, 2015 & Thursday, December 3, 2015 NYC | Albany | Niagara Falls

16.0 MCLE Credits

Co-sponsored by the Committee on Continuing Legal Education and the Law Practice Management Committee of the New York State Bar Association This program is offered for educational purposes. The views and opinions of the faculty expressed during this program are those of the presenters and authors of the materials. Further, the statements made by the faculty during this program do not constitute legal advice.

Course Materials for this program are available at the following weblink:

www.nysba.org/December2015BTGMaterials

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Agenda

Day One - Wednesday, December 2, 2015 Agenda

8:30 a.m. Registration

9:00 - 10:15 Plea Bargaining in DWI Cases - Problems and Pitfalls

Speaker: Jonathan D. Cohn, Esq. Gerstenzang, O'Hern, Sills & Gerstenzang Albany, NY

(1.5 skills)

10:15 – 10:25 Break

10:25 – 11:40 Alternative Dispute Resolution & Mediation

Speakers: Daniel M. Weitz, Esq. and Sheila M. Sproule, Esq. Division of Professional and Court Services Office of ADR and Court Improvement New York State Unified Court System New York City

(1.5 skills)

11:40 – 12:30 p.m. Social Media Defamation | What You Tweet Can Get You Sued

Speakers: Marc Aaron Melzer, Esq. Hoguet Newman Regal & Kenney LLP New York City

Shawndra G. Jones, Esq. Axinn, Veltrop & Harkrider LLP New York City

(1.0 areas of professional practice)

12:30 – 1:30 p.m. Lunch Break (on your own)

1:30 – 2:45 p.m. Skillfully Handling Your First Deposition | 10 Tips for Success

Speakers: Mirna M. Santiago, Esq. White Fleischner & Fino, LLP White Plains, NY

Glenn A. Monk, Esq. Harrington, Ocko & Monk, LLP White Plains, NY

Matthew Bremner, Esq. Harrington, Ocko & Monk, LLP White Plains, NY (1.5 skills)

2:45 – 2:55 p.m. Break

2:55 – 4:10 p.m. Handling Other People’s Money | Attorney Escrow Accounts 101 | Ethics Considerations

Speaker: Jay L. Hack, Esq. Gallet Dreyer & Berkey LLP New York City

(1.5 ethics)

4:10 – 5:00 p.m. Elder Law Update | What You Need to Know about Long Term Care, Medicare and Medicaid

Speaker: Ellyn S. Kravitz, Esq. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP New York City Day Two – Thursday, December 3, 2015 Agenda

8:30 a.m. Registration

9:00 - 10:15 Basics of Employment Law | What You Need to Know about Hiring and Firing

Speaker: Jonathan A. Wexler, Esq. Vedder Price, P.C. New York City

(1.5 areas of professional practice) 10:15 – 10:25 Break

10:25 – 11:15 Accounting for Lawyers 101 | Understanding and Reviewing Financial Statements

Speaker: David L. Evans, Esq. Albany, NY

(1.0 areas of professional practice)

11:15 – 12:30 p.m. Reviewing a Residential Lease Agreement | Basic Considerations All Lawyers Should Know

Speaker: Hon. Matthew J. Turner Troy City Court Troy, NY

(1.5 skills)

12:30 – 1:30 p.m. Lunch Break (on your own)

1:30 – 2:45 p.m. Lawyer Assistance Program | Prevention, Intervention and the NY Rules of Professional Conduct | What You Need to Know in New York

Speaker: Deborah A. Scalise, Esq. Scalise & Hamilton, LLP Scarsdale, NY

Gary M. Reing, Esq. New York City

Patricia F. Spataro, LMHC Director, Lawyer Assistance Program Albany, NY

(1.5 ethics)

2:45 – 2:55 p.m. Break

2:55 – 3:45 p.m. Injured on the Job? What All Lawyers Should Know About Workers Comp

Speaker: Robert E. Grey, Esq. Grey & Grey LLP Farmingdale, NY

(1.0 areas of professional practice)

3:45 – 5:00 p.m. E-Discovery in NYS and Federal Courts

Speaker: Steven C. Bennett, Esq. Park Jensen Bennett LLP New York City

(1.5 areas of professional practice)

Day One | 8.0 MCLE Credits

3.5 areas of professional practice, 3.0 skills, 1.5 ethics

Day Two | 8.0 MCLE Credits

3.5 areas of professional practice, 3.0 skills, 1.5 ethics

Total Credits 16.0 MCLE Credits

7.0 Areas of Professional Practice, 6.0 skills, 3.0 ethics

Program Faculty (in order of appearance)

Jonathan D. Cohn, Esq. Jay L. Hack, Esq. Gerstenzang, O'Hern, Sills & Gallet Dreyer & Berkey LLP Gerstenzang, Albany, NY New York City

Ellyn S. Kravitz, Esq. Daniel M. Weitz, Esq. Abrams, Fensterman, Fensterman, Eisman, Division of Professional and Court Formato, Ferrara & Wolf, LLP Services New York City Office of ADR and Court Improvement New York State Unified Court System New York City Jonathan A. Wexler, Esq. Vedder Price, P.C. Sheila M. Sproule, Esq. New York City Division of Professional and Court David L. Evans, Esq. Services Albany, NY Office of ADR and Court Improvement New York State Unified Court System Hon. Matthew J. Turner New York City Troy City Court Troy, NY Marc Aaron Melzer, Esq. Deborah A. Scalise, Esq. Hoguet Newman Regal & Kenney LLP Scalise & Hamilton, LLP New York City Scarsdale, NY

Shawndra G. Jones, Esq. Gary M. Reing, Esq. Axinn, Veltrop & Harkrider LLP New York City New York City Patricia F. Spataro, LMHC Mirna M. Santiago, Esq. Director, Lawyer Assistance Program White Fleischner & Fino, LLP Albany, NY White Plains, NY Robert E. Grey, Esq. Glenn A. Monk, Esq. Grey & Grey LLP Harrington, Ocko & Monk, LLP Farmingdale, NY White Plains, NY Steven C. Bennett, Esq. Matthew Bremner, Esq. Park Jensen Bennett LLP Harrington, Ocko & Monk, LLP New York City White Plains, NY

Faculty members for New York State Bar Association seminars are volunteers in service to the profession. Their generous contributions of time, talent, and energy make this and other Association programs successful. We appreciate their work and service to the members of the New York State Bar Association.

Course Materials for this program are available at the following weblink:

www.nysba.org/December2015BTGMaterials

Supplemental Outlines will be posted post-program.

NYSBA Sections

Ranging in size from approximately 500 members to more than 5,000, each section draws its membership from lawyers or judges with common professional interests. Addressing professional development, improvement of laws and continuing legal education in a variety of substantive law fields, sections keep members informed of developments in that area of concentration through programs, publications, communities, listserves and other resources. Sections offer you opportunities to make a mark within your areas of practice. Within NYSBA sections, you can

• Network with influential colleagues who share your interests • Write for section newsletters and publications • Join online section-wide Communities - private, professional networks offering practical tips and guidance from other NYSBA members • Participate on substantive section committees that address timely developments • Help shape legislation that affects your practice area

Antitrust Business Law Commercial & Federal Litigation Corporate Counsel Criminal Justice Dispute Resolution Elder Law and Special Needs Entertainment, Arts & Sports Law Environmental Law Family Law Food, Drug & Cosmetic Law General Practice Health Law Intellectual Property Law International Judicial (limited to judges) Labor & Employment Law Municipal Law Real Property Law Senior Lawyers (limited to attorneys age 55 and over) Tax Torts, Insurance & Compensation Law Trial Lawyers Trusts & Estates Law Young Lawyers (open to law students and attorneys admitted 10 years or less)

New York State Office of Court Administration

CLE Board

Program Rules (22 NYCRR1500)

http://www.nycourts.gov/attorneys/cle/

What's New? (excerpt www.nycourts.gov/attorneys/cle)

EFFECTIVE JANUARY 1, 2016:

CHANGES TO CLE FORMATS FOR NEWLY ADMITTED ATTORNEYS

Changes to Newly Admitted Attorney Requirement

RECENTLY ADOPTED CHANGES TO FORMATS ALLOWED FOR COMPLETION OF THE NEWLY ADMITTED ATTORNEY CLE REQUIREMENT, TO BECOME EFFECTIVE JANUARY 1, 2016

The New York State CLE Board has adopted the following changes, effective January 1, 2016, to the current requirement that newly admitted attorneys complete all of their CLE credits in the traditional live classroom setting or by fully interactive videoconference (there is no change to the number or categories of credit required, nor to the requirement that they be fulfilled by attending accredited transitional courses):

• Law Practice Management and Areas of Professional Practice credit may be completed in any approved format, including nonparticipatory formats such as on-demand audio or video, or live broadcast.

• Ethics and Professionalism credit may be completed in the traditional live classroom setting; by fully interactive videoconference; or by simultaneous transmission with synchronous interactivity, such as webconference, or teleconference, where questions are allowed during the program.

• There is no change in the requirement for Skills credit, which must be completed in the traditional live classroom setting or by fully interactive videoconference.

Newly admitted attorneys based in law offices outside of the United States may fulfill up to 16 credit hours in any approved format. The remaining credit hours must be completed in a format permissible for the category of credit. Newly admitted attorneys eligible for a prorated CLE requirement must complete the credit in a format permissible for the category of credit, except that no more than 14 credits may be earned through nonparticipatory formats, such as on-demand audio or video, or live broadcast.

Continuing Legal Education (excerpt www.nycourts.gov/attorneys/cle)

FAQ's for Newly-Admitted Attorneys

The CLE Requirement for Newly-Admitted Attorneys • What is a "newly-admitted attorney"? • What if I was practicing law in another jurisdiction before I was admitted to the New York Bar? • As a newly-admitted attorney, what is my CLE requirement? • How do I satisfy my CLE requirement? • What are "transitional" CLE courses?

Fulfilling the Requirement • How do I find CLE courses close to home? • Do out-of-state courses count towards my CLE requirement? • What is New York's "Approved Jurisdiction" policy? • I attended a CLE course where the sponsor did not apply for CLE accreditation. Is there any way to get credit? • May I fulfill my CLE requirement through audiotapes, online courses, or other nontraditional formats? • What if I practice in a foreign country? • May I earn credit for writing a legal article, or for teaching at a CLE program? • May I earn CLE credit for providing pro bono legal services? • May I earn credit for courses I attended before I was admitted to the New York Bar? • May I earn CLE credit for attending a CLE course if I arrive late? What about if I leave early? • May I earn credit for repeating a course?

Exceptions to the Requirement • Are there any exemptions from the CLE requirement? • How do I determine whether I am "practicing law in New York"? • What are my CLE obligations if I practice law outside of New York? • I started practicing law a few months after my admission to the Bar. Do I need to complete all 16 credits for the first year? • What if I stop practicing law during my first two years of admission to the New York Bar? • Are there any conditions under which I may obtain a waiver or modification of my CLE requirement

Compliance & Reporting • How and when do I report compliance with my CLE requirement? • What should I do if I have not received an attorney registration form by my birthday? • What if my birthday comes before the second anniversary of my admission? (My birthday is in March; I was admitted in June.) • What if my birthday comes after the second anniversary of my admission? (I was admitted in March; my birthday is in June. • What should I do if I cannot complete my CLE requirement on time? • What do I do if I completed fewer than 16 credits before my first anniversary, even though I completed all 32 before my second anniversary? • If I earn more credits than I need, may I carry them over? • Who keeps track of my certificates of attendance? • What happens if I do not fulfill my CLE requirement? • What if I have more questions?

CLE Requirements for Newly-Admitted Attorneys

Q] What is a "newly-admitted attorney"? A] Attorneys admitted to the New York State Bar two years or less are considered newly admitted attorneys.

Q] What if I was practicing law in another jurisdiction before I was admitted to the New York Bar? A] If you were practicing law in another state, the District of Columbia, any territory of the United States or any foreign jurisdiction, for at least five of the seven years immediately preceding admission to the New York Bar, you will not be deemed newly admitted for the purposes of CLE, and you must comply with the CLE requirement for experienced attorneys.

Q] As a newly-admitted attorney, what is my CLE requirement? [A] Newly admitted attorneys must complete at least 16 transitional CLE credit hours in each of the first two years of admission to the Bar, as follows:

Before first anniversary During second year of Category of Credit of admission admission Ethics and Professionalism 3 3

Skills 6 6

Law Practice Management and/or Areas 7 7 of Professional Practice

TOTAL 16 transitional CLE credit hours 16 transitional CLE credit hours

The first set of 16 transitional CLE credit hours must be completed by the first anniversary of admission to the Bar, in the designated categories of credit. The second set of 16 transitional CLE credit hours must be completed between the first and second anniversaries.

Q] How do I satisfy my CLE requirement? A] To receive credit, newly admitted attorneys must take accredited transitional CLE courses in traditional live classroom settings, or through attendance at fully interactive videoconferences that have been approved by the CLE Board for use by newly admitted attorneys.

Q] What are "transitional" CLE courses? A] Transitional courses are designed to help newly admitted attorneys develop a foundation in the practical skills, techniques and procedures that are essential to the practice of law. The sponsoring organization will be able to tell you which of its courses are transitional.

Fulfilling the Requirement

Q] How do I find CLE courses close to home? A] The CLE Board does not maintain a list of individually accredited CLE courses. You may check with local bar associations or other organizations in your area that may be presenting CLE courses, or you may check the New York Accredited Provider List for approved CLE providers.

Q] Do out-of-state courses count towards my CLE requirement? A] Some out-of-state course are accredited by the New York State CLE Board. Other out-of-state courses may be accredited by another jurisdiction, and you may be eligible for New York CLE credit under New York’s Approved Jurisdiction policy. (If your course is not accredited by the New York State CLE Board or if your course does not fall under New York’s Approved Jurisdiction policy, you may submit an Application for Accreditation of an Individual Course Activity to the New York State CLE Board.)

Q] What is New York's "Approved Jurisdiction" policy? A] A New York attorney may earn credit for attendance at an out-of-state course provided that the course is accredited by the CLE agency of another state or foreign jurisdiction that has been approved by the New York State CLE Board as meeting New York’s accreditation standards. An out- of-state course accredited by a New York Approved Jurisdiction is eligible for New York CLE credit based on a 50-minute credit hour, and in accordance with the Program Rules and the Regulations and Guidelines. The attorney must obtain from the provider documentation of course accreditation by a New York Approved Jurisdiction, a proper certificate of attendance and for nontraditional formats, proof of the provider’s independent verification of the attorney’s completion of the course. Please see section 6 of the Regulations and Guidelines for details.

Q] I attended a CLE course where the sponsor did not apply for CLE accreditation. Is there any way to get credit? A] You may submit an Application for Accreditation of an Individual Course Activity to the CLE Board. If the application is postmarked more than 30 days after the conclusion of the course, you must include a detailed explanation of the circumstances that prevented you from submitting the application within 30 days of the conclusion of the course. If the Board accepts your application and if the course is approved, you will be awarded the appropriate CLE credit.

Q] May I fulfill my CLE requirement through audiotapes, online courses, or other nontraditional formats? A] No. Unless granted special permission to do otherwise by the New York State CLE Board, newly admitted attorneys must fulfill their CLE requirement in live, traditional classroom settings or by attendance at fully interactive videoconferences that have been pre-approved by the CLE Board for use by newly admitted attorneys.

Q] What if I practice in a foreign country? A] Newly admitted attorneys based in law offices outside the United States may earn a maximum of 12 of the required 32 credit hours through accredited transitional courses in nontraditional course formats (e.g., audiotapes, videotapes, teleconferences, online) without prior permission from the Board.

Q] May I earn credit for writing a legal article, or for teaching at a CLE program? A] No, only experienced attorneys may receive CLE credit for these activities.

Q] May I earn CLE credit for providing pro bono legal services? A] Newly admitted attorneys may earn pro bono CLE credit solely for the purpose of carrying over the pro bono credit to the following biennial reporting cycle. A maximum of 6 CLE credit hours, including pro bono CLE credit, may be carried over to the following reporting cycle.

Q] May I earn credit for courses I attended before I was admitted to the New York Bar? A] Yes. A newly admitted attorney may earn a maximum of 16 CLE credits for attendance at accredited transitional CLE courses from the date of law school graduation, up through the date of admission to the New York Bar. These credits may be applied towards your first-year requirement. Credit hours in excess of 16 may not be carried over and applied to your second-year requirement. No credit may be awarded for attendance at courses occurring more than two years before the date of admission to the New York Bar.

Q] May I earn CLE credit for attending a CLE course if I arrive late? What if I leave early? A] It is up to the sponsor of the program to determine whether you may earn credit if you do not attend the entire program. The sponsor may award partial credit, full credit or no credit at all, depending upon the circumstances.

Q] May I earn credit for repeating a course? A] You may not get credit for repeating the same course, even if the course is in a different format and even if the course is repeated in a different reporting cycle. So, if you had earned CLE credit for attending the live presentation of a program on cross examination, for example, you would not be able to earn credit for watching the video of that course, even if you watched it three years later. If, on the other hand, the program you "repeat" has significant new content, such as revised or updated materials reflecting recent changes in the law, you may be eligible for CLE credit, even if the title of the course has not changed.

Exceptions to the Requirement

Q] Are there any exemptions from the CLE requirement? A] Yes. The following persons are exempt from New York's CLE requirement: 1. Attorneys who do not practice law in New York at all during the relevant reporting cycle, 2. Full time active members of the U.S. Armed Forces, 3. Attorneys with offices outside of New York who are temporarily admitted to practice in a court within New York for a case or proceeding, but who do not otherwise practice law in New York during the relevant reporting cycle, and 4. Attorneys who certify that they are retired from the practice of law pursuant to § 468-a of the Judiciary Law.

Q] How do I determine whether I am "practicing law in New York"? A] You must determine for yourself whether your specific activities are considered practicing law in New York. All members of the New York Bar are presumed to be practicing law in New York unless otherwise shown. The burden of proof is on the individual attorney. You should be guided by case law and the Restatement of Law, Third, The Law Governing Lawyers, Chapter 1, § 3. Attorneys "practice law in New York" if they give legal advice or counsel to, or provide legal representation for, a particular body or individual in a particular situation in either the public or private sector. The practice of law does not include the performance of judicial or quasi-judicial (e.g., administrative law judge, hearing officer) functions. Neither the CLE Board nor its staff may advise attorneys on the issue of whether their specific activities constitute the practice of law in New York.

Q] What are my CLE obligations if I practice law outside of New York? A] 1. If you do not practice law in New York but practice in another jurisdiction (including a foreign country) that requires you to fulfill a CLE requirement, you must certify compliance with that other jurisdiction's requirement on your New York biennial registration form. 2. If you do not practice law in New York but practice in another jurisdiction (including a foreign country) that does not require you to fulfill a CLE requirement, you must certify to this on your New York biennial registration form. 3. If you practice law both in New York and in another jurisdiction (including a foreign country), you will be required to fulfill New York's CLE requirement. Keep in mind that you may obtain credit for out-of-state transitional courses accredited by New York Approved Jurisdictions.

Q] I started practicing law a few months after my admission to the Bar. Do I need to complete all 16 credits for my first year? A] No. Newly admitted attorneys who are not practicing law in New York when they are admitted and begin to practice law in New York during their first two years of admission to the New York Bar are subject to a pro rata CLE requirement.

Q] What if I stop practicing law during my first two years of admission to the New York Bar? A] If you are not practicing law in New York at the end of the two-year period, you are subject to a pro rata CLE requirement.

Q] Are there any conditions under which I may obtain a waiver or modification of my CLE requirement? A] The New York State CLE Board may, in individual cases involving undue hardship or other extenuating circumstances, grant waivers or modifications of the CLE requirement to attorneys. You should submit an Application for a Waiver or Modification to the CLE Board.

Compliance & Reporting

Q] How and when do I report compliance with my CLE requirement? A] An attorney registration form will be mailed to you. Your registration form must be filed within 30 days after your birthday in the second calendar year following your admission to the New York Bar. That is, if you were admitted to the New York Bar in 2007, you will file your registration form within 30 days of your birthday in 2009. Newly admitted attorneys must certify on their attorney registration form that they have satisfactorily completed New York's CLE requirement and that they have retained the proper documentation. Newly admitted attorneys must complete their CLE requirement within two years of their date of admission to the New York Bar, no matter when they register.

Q] What should I do if I have not received an attorney registration form by my birthday? A] If you have not received an attorney registration form by your birthday in the second calendar year following your admission to the Bar, contact the Attorney Registration unit by e-mail [email protected] or by telephone at (212) 428-2800.

Q] What if my birthday comes before the second anniversary of my admission? (My birthday is in March; I was admitted in June.) A] You will certify the number of CLE credits you have actually completed when you file your registration form. You will be considered in compliance even if you have not completed the full second-year requirement, so long as you have completed the first-year requirement. However, you remain responsible for completing your second-year credit hours by your second anniversary of admission to the Bar. Additionally, 12 of the 16 required CLE credit hours for the second year may be applied towards fulfilling your CLE requirement for experienced attorneys in your next reporting cycle. Ethics and professionalism credit hours may not be applied to the next reporting cycle.

Q] What if my birthday comes after the second anniversary of my admission? (I was admitted in March, and my birthday is in June.) A] You must complete your newly admitted CLE requirement by the second anniversary of your admission to the Bar even though you will not register until your birthday. If you have completed the required 32 CLE credit hours during your first two years of admission, credits that you complete between your second anniversary of admission and your birthday may be applied towards your next reporting cycle.

Q] What should I do if I cannot complete my CLE requirement on time? A] You should request an extension of time.

Q] What do I do if I completed fewer than 16 credits before my first anniversary, even though I completed all 32 before my second anniversary? A] The Program Rules require that you complete 16 credits in each of your first two years. You should complete an Extension of Time Application requesting a retroactive extension for the purpose of adjusting your credits.

Q] If I earn more credits than I need, may I carry them over? A] Newly admitted attorneys who have earned more than 16 transitional CLE credit hours in the first year of admission to the Bar may apply up to 8 of their additional credits towards their second-year requirement. Once the second-year requirement is complete, 6 additional credits may be applied towards the next reporting cycle. Ethics and Professionalism credits may not be carried over. For more information, see Carryover Credit FAQs.

Q] Who keeps track of my certificates of attendance? A] The New York State CLE program is a self-reporting system. Certificates of attendance, and/or other documentation of compliance with, or exemption from, the CLE requirement, must be retained by the attorney, for a period of at least four years from the date of the course or program, in case of audit.

Q] What happens if I do not fulfill my CLE requirement? A] The names of attorneys who fail to comply with the CLE requirement may be submitted to the Appellate Division for appropriate action.

Q] What if I have more questions?

A] You may find answers in the Program Rules or in the CLE Board Regulations & Guidelines, or you may e-mail your questions or comments to [email protected].

You may also contact us at (212) 428-2105, or toll free from outside of New York City at 1 (877) NYS-4CLE (697-4253).

For more information about the CLE Rules visit www.nycourts.gov/attorneys/CLE.

Table of Contents Bridging the Gap December 2015

1. Plea Bargaining in DWI Cases - Problems and Pitfalls ……………………………………..1 Speaker: Jonathan D. Cohn, Esq.

2. Alternative Dispute Resolution & Mediation…………………………………………………21 Speakers: Daniel M. Weitz, Esq. and Sheila M. Sproule, Esq. 3. Social Media Defamation What You Tweet Can Get You Sued ………………………….45 Speakers: Marc Aaron Melzer, Esq. and Shawndra G. Jones, Esq.

4. Skillfully Handling Your First Deposition 10 Tips for Success …………..………………..55 Speakers: Mirna M. Santiago, Esq. | Glenn A. Monk, Esq. | Matthew Bremner, Esq.

5. Handling Other People’s Money Attorney Escrow Accounts 101 | Ethics Considerations …………………………………………………………………………………67 Speaker: Jay L. Hack, Esq.

6. Elder Law Update | What You Need to Know about Long Term Care, Medicare and Medicaid ………………………….…………………………………………….……………….79 Speaker: Ellyn S. Kravitz, Esq.

7. Basics of Employment Law What You Need to Know about Hiring and Firing ………..105 Speaker: Jonathan A. Wexler, Esq.

8. Accounting for Lawyers 101 Understanding and Reviewing Financial Statements …..121 Speaker: David L. Evans, Esq.

9. Reviewing a Residential Lease Agreement Basic Considerations All Lawyers Should Know …………………………………………………………………………….……..……...123 Speaker: Hon. Matthew J. Turner

10. Lawyer Assistance Program | Prevention, Intervention and the NY Rules of Professional Conduct | What You Need to Know in New York …………………………………………139 Speakers: Deborah A. Scalise, Esq. | Gary M. Reing, Esq. | Patricia F. Spataro, LMHC

11. Injured on the Job? What All Lawyers Should Know About Workers Comp……………167 Speaker: Robert E. Grey, Esq.

12. E-Discovery in NYS and Federal Courts …………………………………………………..199 Speaker: Steven C. Bennett, Esq.

13. Speaker Biographies………………………………………………………………………….201

Plea Bargaining in DWI Cases Problems and Pitfalls

Jonathan D. Cohn, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

1 2 PLEA BARGAINING -- PROBLEMS AND PITFALLS

GUIDING YOU THROUGH THE PROCESS

JONATHAN COHN GERSTENZANG, O'HERN, SILLS & GERSTENZANG

AGENDA

• The penalties for VTL § 1192 offenses • 20-day Order • The Drinking Driver Program ("DDP") • Ignition Interlock Device ("IID") • Suspension pending prosecution • Chemical test refusals

3 GE / THE FIRST OFFENDER • Assuming fairly low BAC and no aggravating factors -- DWAI • 90-day suspension of driver's license (with certain exceptions) • DDP/conditional license eligible • Victim Impact Panel • Alcohol screening/assessment • $300-$500 fine + $255/$260 surcharge

• Driver responsibility assessment 3 11/20/2015

THE SECOND OFFENDER • If the prior conviction is fairly recent, the prosecutor will likely offer a plea to DWI • 6-month license revocation -- no full re-licensing until the expiration of statutory revocation period • Eligibility for the DDP and a conditional license? • Ignition Interlock Device

4 GE / THE CLIENT WITH 3 OR MORE ALCOHOL-RELATED CONVICTIONS

• Lifetime driving record (Form MV-15F) • Length of revocation likely impacted by the new DMV regulations • Possible lifetime denial • Revocation/suspension is critical

20-DAY ORDER

• Issued at the time of sentencing by the Court • Stays the suspension/revocation • Ability to enroll in the DDP and obtain conditional license without losing driving privileges • Generally, Courts will issue the 20- day Order if your client is eligible • Fine/surcharge 6 11/20/2015

5 GE / 7 11/20/2015

ELIGIBILITY FOR A 20-DAY ORDER

• If eligible for the DDP and a conditional/restricted = 20-day stay • Irrelevant if suspended/revoked • A defendant convicted of a felony may still be eligible • VTL § 1193(2)(d)(2) -- not eligible if: • (1) charged with vehicular manslaughter/homicide, or • (2) prior conviction within past 5 years

8 11/20/2015

6 GE / CHEMICAL TEST REFUSALS AND 20-DAY ORDERS

• Facts: • Your client is charged with DWI and he is alleged to have refused the chemical test. He enters a plea to DWAI at the arraignment. Is he eligible for the 20-day Order?

9 11/20/2015

20-DAY ORDERS CONT'D • If you appear at the refusal hearing and the officer(s) no- show, the temporary suspension is lifted = 20-day Order becomes effective • If your client is revoked at the refusal hearing, the 20-day Order is a nullity

10 11/20/2015

7 THE DRINKING DRIVER PROGRAM

• What is the DDP? • 7 week course, 16 hours total • Helps participants examine the arrest experience and make more appropriate choices in the future • $225 to enroll in the course

11 11/20/2015

ELIGIBILITY FOR THE DDP • Conviction of an alcohol or drug- related driving violation • Cannot participate in the DDP if you have within past 5 years • The 5-year window runs from the completion date • Prior conviction within 5 = ineligible (cannot bank the DDP)

12 11/20/2015

8 GE / WHEN TO ENROLL IN THE DDP

• 15-18 days from sentencing • May be times when you advise your client to enroll sooner • Failing to enroll in the DDP within 20 days and continuing to drive = AUO 2nd • $75 due immediately at the DMV, $225 is payable to the program

13 11/20/2015

CONDITIONAL LICENSE

• Upon enrolling in the DDP, your client may be eligible for a conditional license • For example, a person who has 3 convictions within 25 years is not eligible • Upon completion of the DDP, your client may be able to obtain full license

14 11/20/2015

9 GE / SCOPE OF CONDITIONAL LICENSE • Employment • Alcohol treatment • School (not high school) • Court ordered probation activities • DMV • 3 hours • Medical • Child care

15 11/20/2015

REFERRAL FOR ADDITIONAL TREATMENT • Preliminary screening part of the course • If your client is referred for an evaluation, person must go to an approved provider under OASAS -- http://www.oasas.ny.gov • Advise your clients about the possible referral

16 11/20/2015

10 GE / IGNITION INTERLOCK DEVICE • Definition • BAC measuring device connected to a motor vehicle and prevents vehicle from starting without first determining that the BAC level does not exceed calibrated setting • .025% BAC

17 11/20/2015

WHO IS REQUIRED TO INSTALL AND MAINTAIN AN IID?

• Misdemeanor DWI; • Y/O adjudication for DWI (11/01/13); • Felony DWI; or • Any other crime in either the VTL or Penal Law of which an alcohol- related violation of VTL § 1192 is an essential element

18 11/20/2015

11 GE / WHO MAY NOT BE REQUIRED TO INSTALL AN IID?

• DWAI -- VTL § 1192(1);

• DWAI Drugs -- VTL § 1192(4); or

• DWAI Combined Influence -- VTL § 1192(4-a)

• People v. Levy, 91 A.D.3d 793, 938 N.Y.S.2d 315 (2d Dep't 2012)

19 11/20/2015

WHAT IF YOUR CLIENT OWNS A VEHICLE BUT CANNOT DRIVE?

• Condition imposed on any vehicle(s) you own or operate -- not access • Imposed regardless if your client can operate a vehicle • If your client is sentenced to probation, they may want to sell the vehicle(s) prior to being sentenced 20 11/20/2015

12 GE / HOW LONG DOES YOUR CLIENT HAVE TO INSTALL THE IID?

• 10 business days from sentencing • Cannot drive during those 10 days without an IID • Must provide proof to the monitor within 3 business days of installation

21 11/20/2015

WHEN SHOULD THE IID BE INSTALLED?

• Have your client install the IID prior to sentencing • Allows the client to drive away from Court • Minimizes potential violations • Make sure your client contacts the monitor

22 11/20/2015

13 GE / HOW LONG IS THE IID CONDITION IMPOSED?

• Effective November 1, 2013, the IID is imposed for no less than 12 months • However, IID restriction shall terminate upon proof of installation for at least 6 months • Unless the court ordered such person to install the IID for a longer period • Probation term

23 11/20/2015

HOW MUCH DOES THE IID COST? • Approximately $100-$125 installation and $100-$120 per month — Maximum Fee Schedule • Financial disclosure form -- must be done prior to sentencing — DPCA-500IID-FDR — 9 NYCRR § 358.8 — Submit 3 copies

24 11/20/2015

14 GE / BLOWING INTO THE IID

• Start-up test • Rolling test within 5- 15 minutes • Subsequent rolling tests not to exceed 30 minutes

25 11/20/2015

WHAT HAPPENS IF YOU TEST POSITIVE OR MISS A TEST?

• Start-up retest is required within 5-15 minutes of missed/failed start-up test • Rolling retest within 1-3 minutes after missed/failing rolling test

26 11/20/2015

15 GE / LOCKOUT MODE

• Failed start-up retest • Missed start-up retest • Failed rolling retest • Missed rolling retest • Missed service visit

27 11/20/2015

DUTY OF IID MONITOR TO REPORT DEFENDANT TO COURT AND DA

• Failed to have IID installed • Failed to comply with service visits • Tampering/circumventing • Lockout mode • Positive test of .05% BAC or higher (Conditional Discharge/Probation)

28 11/20/2015

16 GE / WHAT HAPPENS WHEN THE COURT IS NOTIFIED OF AN ALLEGED VIOLATION?

• IID condition lengthened • Alcohol treatment • Jail

29 11/20/2015

SUSPENSION PENDING PROSECUTION

• Charged with DWI and alleged to have a BAC of .08% or more at the time of the arrest • Does not apply to refusals or where the BAC is < .08 • Does not apply to a person who accepts a plea at the arraignment and is sentenced

30 11/20/2015

17 GE / SUSPENSION PROCEDURE

• Court must make initial findings 1. The accusatory instruments are sufficient on their face 2. Reasonable cause to believe the person operated with a BAC of .08% or more as shown by the chemical test printout

31 11/20/2015

EVIDENCE TENDING TO REBUT • If the Court makes the initial findings, the defendant is entitled to an adjournment in order to present evidence tending to rebut at a Pringle hearing • Common problems: • Times • Dates • Chemical test -- not properly

certified 32 11/20/2015

18 GE / SHOULD A PERSON REFUSE

• Accident involving serious physical injury • Felony DWI • Commercial driver's license • Plea bargaining policy

33 11/20/2015

ISSUES TO BE DETERMINED AT THE REFUSAL HEARING

• Reasonable grounds to believe that such person had been driving in violation of VTL § 1192 • Lawful arrest • Was the person read the refusal warning • Did the person refuse 34 11/20/2015

19 GE / CAN YOU WIN?

• Officer fails to appear • Invalid basis for the stop • Requested an attorney • Refusal by conduct • Was the warning read in "clear or unequivocal language"

35 11/20/2015

CONTACT INFORMATION

• Jonathan Cohn • (518)456-6456 (o) • (518)779-5857 (c) • [email protected]

36 11/20/2015

20 GE / Alternative Dispute Resolution and Mediation

Daniel M. Weitz, Esq. | Sheila M. Sproule, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

21 22 Alternative Dispute Resolution and Mediation

UCS Office of ADR Programs December 2, 2015 Presenters: Daniel Weitz Sheila Sproule

You throw Partner You get Partner Throws gets Snake Rabbit 10 0

Snake Snake 1 1

Rabbit Snake 0 10

Rabbit Rabbit 5 5

Win as many points as you can 2

23 • What was object of game? • Who got high scores? • What was thinking before each round?

• Trust • Relationship (short term/ long term) • Communication • Reputation • What does “win” mean? •“Tragedy of the Commons”

Win As Many Points As You Can

Individual Conflict Management Styles: The Dual Concern Model

Confrontation Collaboration

skill

knowledge Compromise attitude

Avoidance Accommodation

Degree of Concern for Other’s Outcome

Thomas-Kilmann: http://www.kilmann.com/conflict.html

24 Consensual Adjudicative

Settlement Neutral Parties Conference Arbitration Decides Decide Collaborative Outcome Outcome Law

Parties Parent Parties Retain Mediation Coordination Litigation Cede Control Negotiation Early Neutral Control Over Evaluation Over Process Process Informal Formal The ADR Continuum

Court Annexed ADR Programs

25 Ethics

Qualifications & Training

Court Annexed ADR Program Design

 §146.4 Qualifications and Training of Neutrals

 (a) Neutral Evaluation. Neutral evaluators who wish to qualify for appointment to a court roster must have successfully completed at least six hours of approved training in procedural and ethical matters related to neutral evaluation and be:

 (1) Lawyers admitted to practice law for at least five years who also have at least five years of substantial experience in the specific subject area of the cases that will be referred to them; or

 (2) Individuals who have served at least five years as a judge with substantial experience in the specific subject area of the cases that will be referred to them.

Qualifications and Training – New York State Part 146 of the Rules of the Chief Adminstrative Judge

26  §146.4 Qualifications and Training of Neutrals

 (b) Mediation. Mediators who wish to qualify for appointment to a court roster must have successfully completed at least 40 hours of approved training as follows:

 (1) At least 24 hours of training in basic mediation skills and techniques; and

 (2) At least 16 hours of additional training in the specific mediation techniques pertaining to the subject area of the types of cases referred to them.

 Mediators must also have recent experience mediating actual cases in the subject area of the types of cases referred to them.

Qualifications and Training – New York State Part 146 of the Rules of the Chief Adminstrative Judge

 §146.4 Qualifications and Training of Neutrals

 (c) Mixed Process. Persons who serve as both mediators and neutral evaluators in the same matter must meet the qualifications and training specified in both subdivisions (a) and (b) of this section.

Qualifications and Training – New York State Part 146 of the Rules of the Chief Adminstrative Judge

27 Community Dispute Resolution Centers

28 DISPUTE RESOLUTION RATE FOR ALL CASES 2014-2015 FISCAL YEAR

DR Provided with No Agreement 26%

DR Provided with Agreement 74%

Of the cases conciliated, mediated, and arbitrated at CDRCs this year, 74% resulted in mutual agreement or final decision.

HOW PEOPLE GET TO CDRCS Law Enforcement Town & Village Courts Other Courts 2% 4% 1% Schools 5% Other City Courts 7% 24%

NYC Civil Court 10%

Self-Referrals Family Courts 17% 14%

Public Agencies 16% CDRCP Caseloads

29  Mediation is a consensual dispute resolution process in which a neutral third party helps disputing parties to communicate and negotiate

 Mediators help parties identify issues, clarify perceptions and explore options for a mutually acceptable outcome

Mediation Defined

 Pre-Mediation

 Information Gathering

 Identifying Issues (Agenda)

 Generating Movement

 Closure

Preview of the Mediation Process (non- linear stages of mediation)

30 “Plane crashes are much more likely to be the result of an accumulation of minor difficulties and seemingly trivial malfunctions”

Malcolm Gladwell, Outliers p. 183

Mediaton Skills

Where would you put the • Neutral following participants in this • Parties conference room? • Attorneys • Interpreter D o o r

Table

Seating Arrangements 18

31 Mediator Skills: Opening Statement

 Introduce yourself and others in room  Disclaim bias/explain neutrality  Explain mediation and your role  Discuss guidelines ◦ Courtesy (if necessary) ◦ Note taking ◦ Confidentiality ◦ Caucus ◦ Length of session ◦ Order of speaking  Questions

Opening Statement - Components

32  Develop rapport and trust between yourself and parties

 Educate parties about the goals and purposes of the process

Opening Statement - Goals

Opening Statement - Words

33  Open-Ended Questions ◦ Encourage free flow of information  Narrow Questions ◦ Continue free, yet tailored, flow of information  Closed Questions ◦ Discourage free flow of information  Leading Questions ◦ Discourage free flow, encourage directed flow

Questioning Skills

What are we listening for and what do we do with it when we hear it

Accumulating Information

34 Deconstructing Dialogue

 Positions: What people say they want; a unilateral and sometimes inflexible proposal of one party expressing an acceptable outcome of an issue in dispute.

 Interests: Why people want what they want; The underlying desires and concerns which motivate people (Getting to Yes, p.41)

 Issues: Topic for discussion

Understanding Positions, Interests and Issues

35  Separate Positions from Interests (reframe) and Identify Issues

 Example: “She can’t stop me from seeing my kids, I demand Custody!”

 Try to get behind the stated position (demand) to the

Summarizing and Reframing

 Separate Positions from Interests (reframe) and Identify Issues

 Example:“You want to see your children”

“and to have a say in decision making”

Summarizing and Reflecting

36  Separate Positions from Interests (reframe) and Identify Issues

 Example: “I don’t want my son near that no good girlfriend of his. This separation is confusing enough for johnny already. He doesn’t need to be exposed the turnstile of ?!?! His father brings home”

Summarizing and Reframing

 Separate Positions from Interests (reframe) and Identify Issues

 Example: “To limit confusion for Johnny” “Johnny’s well being”

Summarizing and Reframing

37  Separate Positions from Interests (reframe) and Identify Issues

 Example: “He must return the disks he took! Those disks contain our customer lists and when he stole the disks he violated our non-compete clause!

 Parties often take positions against each other… try to get behind the stated position (demand) to the…

Summarizing and Reframing

 Separate Positions from Interests (reframe) and Identify Issues

 Example: “Preserve customer lists, honor agreement”

38  Separate Positions from Interests (reframe) and Identify Issues

 Example: “I’ve made numerous requests to fix the leak and they’ve done nothing. I haven’t been able to use my shower safely in a month. I’m entitled to an abatement and I’m not paying him a dime”

Summarizing and Reframing

 Separate Positions from Interests (reframe) and Identify Issues

 Example: To use the shower, safely

Summarizing and Reframing

39  Makes conflict appear manageable

 Serves as roadmap with priorities

 Developing the agenda can serve as a break from discussing substance

 Enables flexibility during negotiations

 May help parties identify trade-offs

Identifying Issues - (Developing the Agenda)

 Separate Positions from Interests (reframe) and Identify Issues

 Example: “She can’t stop me from seeing my kids, I demand Custody!”

 Issue : “Parenting Time” and “Decision Making”

Framing Issues

40  Separate Positions from Interests (reframe) and Identify Issues

 Example: “I don’t want my son near that no good girlfriend of his. This separation is confusing enough for Johnny already. He doesn’t need to be exposed the turnstile of ?!?! his father brings home”

 Issue: Significant others

Framing Issues

 Separate Positions from Interests (reframe) and Identify Issues

 Example: “He must return the disks he took! Those disks contain our customer lists and when he stole the disks he violated our non- compete clause!

 Issue: “The disks”

 Identify issues in neutral language to invite “interest-based discussion” rather than “adversarial positional bargaining”

Framing Issues

41  Separate Positions from Interests (reframe) and Identify Issues

 Issue: “The shower, the rent”

Summarizing and Reframing

Generating Movement

42 41

43  “Tell me what you know. Then tell me what you don’t know and only then can you tell me what you think. Always keep those three separated.” ◦ Colin Powell

44 Social Media Defamation What You Tweet Can Get You Sued

Marc Aaron Melzer, Esq. | Shawdra G. Jones, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

45 46 Shawndra Jones, Esq., Axinn, Veltrop & Harkrider LLP Marc Melzer, Esq., Hoguet Newman Regal & Kenney, LLP

December 2, 2015

 Overview of Defamation under New York Law  Application to Social Media  Tweeting and Retweeting  Recent “Twibel” Cases  Defamation Claims and Other Social Media Platforms  Mitigation

47  Facebook: 1.55 billion monthly active users1  Twitter: 320 million monthly active users2  LinkedIn: 396 million members & an average 100 million unique visiting members per month3  Instagram: 400 million monthly active users4

*At least some of these numbers are approximations. 1 http://newsroom.fb.com/company‐info/ (as of Sept. 30, 2015) 2 https://about.twitter.com/company (as of Sept. 30, 2015) 3 https://press.linkedin.com/site‐resources/news‐releases/2015/linkedin‐announces‐third‐quarter‐2015‐results (as of Sept. 30, 2015) 4 https://instagram.com/press/ (as of Sept. 2015)

 “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right‐thinking persons, and to deprive him [or her] of their friendly intercourse in society”

Foster v. Churchill, 665 N.E.2d 153, 157 (N.Y. 1996) (citation and internal quotation marks omitted); Stepanov v. Dow Jones & Co., Inc., 987 N.Y.S.2d 37, 41 (App. Div. 2014) (quoting Foster)

48 statement  Published to a third party without authorization or privilege  With fault as judged under the applicable standard o At least a negligence standard  And either constituting defamation per se or causing special harm

 Truth  Privilege  Consent  § 230 of the Communications Decency Act of 1996  Lack of personal jurisdiction  Statute of limitations

49  Three‐factor inquiry 1. Do the specific words at issue have “a precise meaning” that is “readily understood”? 2. Are the statements “capable of being proven true or false”? 3. Does “the full context of the communication . . . or the broader social context and surrounding circumstances” signal to listeners or readers that what is being heard or read “is likely to be opinion, not fact”?

E.g., Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705, 718 (S.D.N.Y. 2014)

 “[D]ecisions from courts in this Circuit suggest that defamatory statements published on Facebook and Twitter . . . could indeed be actionable in defamation suits.”

Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705, 724 (S.D.N.Y. 2014) (emphasis added) (citing cases)

50  140‐character limit  @username  #/hashtags

https://support.twitter.com/groups/50‐welcome‐to‐twitter/topics/203‐faqs/articles/13920‐new‐user‐faqs# (last visited Nov. 20, 2015) https://support.twitter.com/articles/49309# (last visited Nov. 20, 2015)

 “Tip: What you say on the Twitter Services may be viewed all around the world instantly. You are what you Tweet!”

https://twitter.com/privacy?lang=en (internal quotation mark omitted) (last visited Nov. 20, 2015)

51  Gordon & Holmes v. Love, No. BC462438 (Cal. Super. Ct. Jan. 24, 2014)  Feld v. Conway, 16 F. Supp. 3d 1 (D. Mass. 2014)  Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705 (S.D.N.Y. 2014)

 Restis v. Am. Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705 (S.D.N.Y. 2014)  Binion v. O’Neal, No. 14‐13454, 2015 WL 3544518 (E.D. Mich. Apr. 2, 2015)  Bouveng v. NYG Capital LLC, No. 14 Civ. 5474(PGG), 2015 WL 3503947 (S.D.N.Y. June 2, 2015)

52  N.Y. Civ. Rights Law §78 ◦ Retraction? ◦ Correction? ◦ Removal?

 “Communications posted on Web sites may be viewed by thousands, if not millions, over an expansive geographic area for an indefinite period of time.”

Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002).

53  Marc Melzer  Shawndra Jones [email protected] [email protected]

54 Skillfully Handling Your First Deposition 10 Tips For Success

Mirna M. Santiago, Esq. Glenn A. Monk, Esq. | Matthew Bremner, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

55 56 NYSBA Bridge the Gap Skillfully Handling Your First Deposition 10 Tips for Success Mirna M. Santiago, Esq., White Fleischner & Fino, LLP Glenn A. Monk, Esq., Harrington, Ocko & Monk, LLP Matthew Bremner, Esq., Harrington, Ocko & Monk, LLP

What is a Deposition?

Black’s Law Dictionary defines a deposition as:

A pre‐trial discovery device by which one party (through their attorney) asks oral questions of the other party or a witness for the other party… under oath outside of the Court Room.

A Deposition can also be taken of a non‐party witness.

57 What is the Purpose of a Deposition?

• Assess the witness (i.e. are they likable, credible, articulate, how do they hold up under pressure, etc…) • Lock in witness testimony to use in support of a Summary Judgment Motion or at the time of trial • Preserve testimony of a witness who may be potentially unavailable at the time of a trial • Identify information not learned through other discovery devices (i.e. degenerative pre‐existing conditions, physical limitations, etc…)

Party Depositions:

The priority of depositions is dictated by who serves the notice of deposition first. However, the plaintiff cannot serve his/her notice of deposition until the defendant’s time to answer has elapsed. If a defendant delays service of his notice of deposition until after plaintiff serves a notice, defendant will have lost its priority. Most attorneys serve a deposition notice along with their Answer in order to preserve the priority.

58 Non‐Party Depositions

Where the person to be examined is not a party, he/she shall be served with a subpoena. The subpoena shall be served at least twenty days prior to the deposition unless the Court otherwise orders.

The other parties are entitled to notice of the non‐party deposition.

The deposition is held in the County in which the non‐party resides, is regularly employed or has an office for the regular transaction of business in person.

Rules Governing Depositions

• Uniform Rule Part 221 • 221.1 ‐ Objections at Depositions • 221.2 –Refusal to Answer When Objection Is Made • 221.3 – Communication With The Deponent • CPLR § • 3113 – Conduct of the Examination • 3114 –Examination of the Witness Who Does Not Understand the English Language • 3115 – Objections to Qualifications of Person Taking Deposition, Competency; Questions and Answers • 3116 – Signing Deposition; Physical Preparation; Copies

59 TOP TIPS FOR YOUR FIRST DEPOSTION TEN 1. Create a Theme For Your Case a. In all cases, there’s a plaintiff’s side, the defendant’s side and the truth b. The theme is the story that you would tell the jury so they’ll see things from your side c. Every story has a theme; just need to uncover it d. Begin thinking about the theme of your case from the outset. You should definitely have a theme in place prior to the deposition

TOP TIPS FOR YOUR FIRST DEPOSTION TEN 2. Know What You Will Need to Prove to Prevail on Your Case & Obtain the Necessary Discovery a. Read the relevant Pattern Jury Instructions for your case b. Do a thorough investigation of the claim needs to be done including procuring all necessary evidence/information through the discovery process c. Obtain relevant information d. Obtain necessary Liability Discovery e. Obtain necessary Damages Discovery

60 TOP TIPS FOR YOUR FIRST DEPOSTION TEN 3. Prepare Your Witness(es) a. Meet with the witness as early in the case as possible to cement their version of the events b. Also meet with the witnesses closer to the deposition, so that they know what to expect c. Role playing is an excellent way to get a witness ready d. Remember that what you speak of to the client/witness will likely be covered by the attorney/client privilege, but any documents that you show them to prepare them or refresh their recollection probably would not be e. Remind the witness NOT to bring any of their own documents with them to the deposition to refer to during the testimony, as the opposing side will then be entitled to copies f. General advice to tell the witness

TOP TIPS FOR YOUR FIRST DEPOSTION TEN 4. Research, Research, Research a. Do a social media search, (ie. Facebook, LinkedIn, Twitter, MySpace, Google) b. Look up your own witness c. Use Google Earth to obtain images of location involved d. Search for traditional news media articles on the internet (i.e. paper, journals, magazines (state and local)) e. Rules for utilizing social media for research

61 TOP TIPS FOR YOUR FIRST DEPOSTION TEN 5. Know the Rules of Evidence and the Ethical Rules Regarding Attorney Conduct at a Deposition a. What are the privileges, what testimony is admissible and inadmissible, etc. at trial? b. Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable. The party seeking to assert the privilege has the burden of proving the applicability. The most common privileges are: • attorney/client; • attorney work product; and • materials prepared for litigation. c. You should know how to convert potentially inadmissible information to admissible evidence at trial, i.e. what do you need to shoehorn hearsay statement into admissible form of evidence (dying declaration, spontaneous utterance, statement against interest, etc.) d. See NYCRR 221

TOP TIPS FOR YOUR FIRST DEPOSTION TEN 6. Have Your Exhibits Ready a. Prepare your exhibits the day before b. Know the order that you will use them c. Highlight or mark up your copy, so you know what questions to ask d. Have extra copies ready to use for the witness, the court reporter and opposing counsel

62 TOP TIPS FOR YOUR FIRST DEPOSTION TEN 7. Ease the Witness into the Testimony a. Use the housekeeping details to get the witness to relax b. Remind the witness that all answers must be verbal c. Find out if the witness has taken any medication that would impair his/her ability to tell the truth or to recall information d. Ask about illicit drug use within 24 hours of the deposition

TOP TIPS FOR YOUR FIRST DEPOSTION TEN 8. Be an Active Listener a. Use an outline instead of scripted questions b. Be prepared to follow up on questions, even if the new line of question is not on your outline

63 TOP TIPS FOR YOUR FIRST DEPOSTION TEN 9. Preserve the Record & Stand Up for Yourself a. Assume that the deposition testimony will be read to a jury one day b. Make your questions clear and concise; do not use compound questions c. Ask to have questions read back by the court reporter d. Almost anything goes at a deposition; objections as to admissibility, relevance etc., should be reserved for the time of trial e. Do not allow yourself to be bullied by an older/more experienced attorney

TOP TIPS FOR YOUR FIRST DEPOSTION TEN 10. Use Human Nature to Your Advantage People a. Want to be liked and they want to please b. Do not like an awkward silence c. Want to appear smart d. Respond to authority e. Get tired after hours of questioning f. Can be combative

64 After the Deposition

Remember: Per CPLR 3116(a), “…if the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for execution.”

Closing Words of Wisdom

• Know your file better than anyone else in the universe and read through ALL medical records, you never know what might be buried in them • LISTEN to what the witness is saying • Have the judge’s phone number with you • Be prepared to question first

65 66 Handling Other People’s Money Attorney Escrow Accounts 101 Ethical Considerations

Jay L. Hack, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

67 68 Attorney Escrow Accounts, IOLA and Ethics. What Every New Lawyer Needs to Know.

Jay L. Hack, Esq. Gallet Dreyer & Berkey, LLP

a/k/a . . . How to avoid finding yourself in a place you never want to be

69 Source of law Appellate Division Rules –They admitted you; they make the rules that allow you to stay. The rules are in your materials.

22 NYCRR Part 1200 Rule 1.15 of the Rules of Professional Conduct for Attorneys; and 22 NYCRR Part 1300 Rule 1300.1 – Dishonored Check Reporting.

Two important questions before we start talking about the rules

Raise your right Raise your left hand if you are hand if you have admitted to read the Appellate practice law in Division Rules. New York.

What happens if you raised you right hand but not your left hand?

70 Ethics Lesson #1 Anyone want to hazard a guess? False swearing to the Appellate Division is unethical.

What Goes in an Attorney Escrow Account? OPM (Other People’s Money) –No commingling with your own funds. If OPM is held incident to the practice of law OR if someone involved might think you are acting as an attorney. Must deposit those funds into an account at a bank IN NEW YORK.

71 IOLA vs. Other Escrow Accts. IOLA = Interest on Lawyer Accounts

All Escrow IOLA Accounts

IOLA vs. Other Atty. Escrow Accounts The ONLY REAL DIFFERENCE is who gets the interest on the account. Not IOLA –The parties can agree who gets the interest. IOLA –The IOLA Fund for New York gets the interest on the account.

All other rules are the same

72 What the IOLA Fund Is Not 1. It is not a regulator of escrow accounts. 2. It does not make ethics rules. 3. It does not answer ethics questions. 4. It has nothing to do with non‐IOLA accounts. 5. It has nothing to do with bounced check reporting. 6. It does not provide money to the Lawyer’s Fund for Client Protection. 7. It does not discipline attorneys.

To IOLA or Not to IOLA Attorney’s good faith judgment How long will the deposit exist? How much interest will be earned? Guideline: <$150 or even more if less than the cost of establishing and maintaining the account. IOLA is optional. Interest‐bearing account is always a permitted alternative, BUT if no interest, then must be an IOLA.

73 Opening an Escrow Account

1. Account in name of provider of legal service (law firm, sole proprietor). 2. Subtitle the account –THREE SUBTITLE CHOICES! – Attorney Special Account, Attorney Trust Account, or Attorney Escrow Account. 3. You can have a common account with multiple clients BUT if it is interest bearing –use separate subaccounts. CLIENT GETS INTEREST! Get SS#. 4. Who can sign the signature card/checks? Attorneys ONLY! 5. Signature stamps? (Wow! There’s an ethics opinion that allows it but not a good idea.) 6. Be prepared for the third degree from your bank.

FDIC Insurance 1. $250,000 FDIC insurance –IOLA versus Non‐IOLA is the same. 2. Insurance is per beneficial ownership interest. 3. Separate from your own accounts at the bank. 4. You must maintain records of separate ownership interests and amounts, but you must do that anyway as an attorney, so no extra burden.

74 Time to Disburse: UCC, Fed. Reg. CC and Releasing Funds 1. Uncollected versus available for withdrawal. Available for withdrawal does not mean bank can’t charge back a deposited check that bounces. Greenberg, Trager & Herbst, LLP v HSBC Bank USA. 17 NY 3d 565 (2011). In your materials. 2. NO checks against undeposited or uncollected funds. 3. Wire transfers into your account –be careful. 4. No cash withdrawals! No checks payable to cash! No ATM withdrawals!

The Biggest Secret in Banking . . . Check drawn Deposited into on account at Given to Bank B in New York Bank A in Attorney on Monday Alaska How long does it take Bank B to get the money? Check (Mon.) Check (Tuesday?) Bank Money (Mon.) The Federal Bank B A Dishonor (Thurs.?) Reserve Money (Tuesday) Return Money Dishonor (Wednesday) (Thurs.)

Notice of Dishonor from A to B if $2,500 or more

75 The Bounced Check Rule 1. Only open escrow account with a bank that agrees to the bounced check rule. 2. Bank must report ANY situation in which a check bounces on an attorney escrow account because of insufficient funds to the Lawyer’s Fund. 3. Bank has 10 days to withdraw report ONLY for bank mistake. Bank mistake, NOT your mistake. The attorney covered the overdraft IS NOT a bank mistake. 4. If not withdrawn, report is forwarded to disciplinary committee

Scams Targeting Attorneys

1. Attorney given more money than needed for the transaction. 2. Attorney collects money for “client.” 3. Attorney asked to reissue an escrow account check –AFTER they give you back the original. Oops! The depositor electronically deposited it.

76 Protective Steps 1. WAIT after a check is deposited –If you are worried, call drawee bank. Was the check paid? 2. NEVER disburse funds on the day you deposit the funds if deposited by check. 3. If you have to flip money fast, get a wire transfer. 4. Be suspicious. Do you KNOW and TRUST the source of the money?

If you are not sure? 1. NYSBA Committee on Professional Ethics 2. City Bar Ethics Hotline 3. Err on the side of caution 4. My rule: Never send money “outside” the transaction.

77 78 Elder Law Update What You Need To Know about Long Term Care, Medicare and Medicaid

Ellyn S. Kravitz, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

79 80 New York State Bar Association Bridging the Gap

Elder Law What You Need to Know about Long Term Care, Medicare and Medicaid

By: Ellyn S. Kravitz, J.D, LL.M., CELA Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP

1. Financing Long Term Care 2. Medicare 3. Medigap Insurance Policies 4. Medicaid 5. Resource and Income Levels for Nursing Home Medicaid 6. Resource and Income Levels for Community Medicaid 7. Asset Transfers 8. Regional Rates 9. Calculation of Penalty Period for Transfer of Assets 10. Residence 11. Exempt Transfers 12. Medicaid Liens 13. Estate Recovery 14. Retirement Accounts 15. Types of Supplemental Needs Trusts 16. Long Term Care Insurance

82 BRIDGING THE GAP 2015: ELDER LAW WHAT YOU NEED TO KNOW ABOUT LONG TERM CARE, MEDICARE AND MEDICAID

By: Ellyn S. Kravitz, J.D, LL.M., CELA Abrams, Fensterman, Fensterman, Formato, Ferrara & Wolf, LLP www.abramslaw.com

Financing Long Term Care

• Medicare

• Medicaid

• Long Term Care Insurance

• Private Pay

83 What is Medicare?

• Health insurance - U.S. citizens or permanent residents

• 65 and older w/minimum 10 years (40 calendar quarters cumulative/non‐ continuous) or • Under 65 and certified disabled (SSD); or • Any age with End‐Stage Renal Disease/ ALS

MEDICARE

PART A Hospital and skilled nursing benefits PART B Doctors/Durable Medical Equipment PART C Managed Care PART D Prescription

84 Part A Premiums & Deductibles

Part A Premium :

• No premium if otherwise eligible

• If not eligible based on 40 quarters of work • $224 per month if between 30‐39 quarters • $407 per month otherwise

• If Part A not free, also subject to possible penalty if not bought when first eligible.

Medicare Part A - Cont’d

Hospital deductible $1,260 for 2015 $1,288 for 2016

Hospital co-insurance amounts: Day 1-60 - $0 for each benefit period for 2015/2016 Day 61-90 - $315 per day for 2015 & $322 for 2016 Days 91 and beyond - $630 per each lifetime reserve day & $644 for 2016

Skilled nursing facility co-insurance amount $157.50 for 2015 & $161 for 2016

85 What’s NOT Covered by Parts A and B

• Long‐term care • Routine dental care • Dentures • Cosmetic surgery • Acupuncture • Hearing aids/exams for fitting hearing aids • Other – check on www.medicare.gov

Automatic Enrollment – Part A and B

Automatic for those already receiving: Social Security benefits Railroad Retirement Board benefits • Initial Enrollment Period Package • Mailed 3 months before • Age 65 • 25th month of disability benefits

• All others must enroll themselves even if Part A premium free.

86 4 Enrollment Periods

Automatic Enrollment: Seven (7) month period beginning 3 months before you turn 65 and ending 3 months after you turn 65, BUT: • If you wait until the month you turn 65 or the 3 months following, start date will be delayed. • If you wait until more than 3 months after you turn 65, you will: (1) Need to wait until next open enrollment (January 1 to March 31); (2) Coverage will be delayed to July1; and (3) Incur a lifetime premium penalty on Part B

Medicare - Benefits in a Nursing Facility

NO LONG TERM COVERAGE

Will cover only a portion of nursing home costs if:

1. Individual had a minimum 3 day hospital stay within 20 days of entering nursing facility AND

2. Hospital stay is related to the same condition for which the person enters the nursing facility

87 Observation Status

• Observation Status is a designation used by hospitals to bill Medicare. • Unfortunately, it can hurt hospital patients who rely on Medicare for their health care coverage. • People who receive care in hospitals may learn they have not actually been “admitted” as inpatients. • When hospital patients are classified as outpatients on Observation Status, they may be charged for services that Medicare would have paid if they were properly admitted as inpatients.

Patient Notification of Observation Status is Now Law

• In October 2015, President Obama signed the NOTICE Act, which requires hospitals to inform Medicare patients who are in the hospital under observation status that they haven't been "admitted" to the hospital and what this means in terms of subsequent costs. • Medicare patients who have been in the hospital for more than 24 hours are required to be notified of their status within 36 hours of when they came to the hospital. Hospitals are required to provide patients with verbal and written notification of their status.

88 Medicare – Benefits in a Nursing Facility

• If meet requirements:

• First 20 days paid in full • Days 21-100 - all costs but a daily co-insurance - $157.50 ($161 for 2016) • After 100 days – no coverage

• SKILLED NURSING CARE VS. CUSTODIAL CARE

MEDIGAP INSURANCE POLICIES

• Supplemental health insurance

• Follow federal guidelines

89 MEDICAID

• Federally based • Administered through state or county agencies • Federal minimum standards but states allowed flexibility • Means Tested • Elderly, blind or disabled • Works with Medicare and other benefits

Categories of Medicaid

Categories of Medicaid Coverage

• A. Community Medicaid - Physicians, dentists, pharmaceutical, nursery services and other professional services provided to individuals on a clinical or outpatient basis for individuals who are eligible; and • B. Home Care Services - Home health services, such as personal care services, nursing, physical therapy, occupational therapy and home health aid services; and • C. Institutional Services - Hospitals, other medical facilities, nursing homes.

90 Eligibility for Medicaid

• A. Medicaid may be authorized for individuals whom are: • a. Medically needy • b. Categorically needy • B. To be eligible for New York Medicaid, the applicant • must be: • a. A legal U.S. resident, citizenship is not a requirement. There is no durational residency requirement.

Eligibility cont’d

• b. The applicant must be a resident of the state and county where the application for Medicaid is made. Residency requires a physical presence within the state and the “intent to remain.” Any person age twenty-one (21) and over is a resident of New York State if he or she is living in the State and: • (i) intends to remain permanently or indefinitely; or (ii) is unable to state intent unless he or she is in an institution, and another state made the placement. • c. Under the age of twenty-one (21) or over the age of sixty-five (65). • If you are between the ages of twenty-one (21) and sixty-five (65) you can be eligible for Medicaid, only if you are: • 1. Disabled - a physical or mental incapacity which prevents you from any gainful employment, which is expected to endure for at least one (1) year; • 2. Blind - certified blind by NYS Commission for Blind and Visually handicapped. • 3. Eligible for Public Assistance –either receiving or be eligible to receive safety net assistance or family assistance, thus, must be below the public assistance income and resource levels; or • 4. Recipient of Supplemental Security Income (“SSI”) - If receiving SSI from the Social Security Administration, you will be automatically eligible for Medicaid. No application for Medicaid is necessary.

91 2015 Resource & Income Levels -

2015 Resource & Income Levels - Community Medicaid

• Single Individual $14,850

• Couple $21,750

• Legally responsible relative • Spousal Refusal • Right of Election • Divorce

92 ASSET TRANSFERS

• Rules apply to both income and assets

• Individual and spouse

• Disclaimers

• Jointly held asset

• Home care

Calculation of the Penalty Period

• The total value of all uncompensated transfers divided by the average monthly regional cost of nursing home care

• Example: $100,000 gift • Regional rate - $10,000 • Penalty period/period of ineligibility – 10 months

93 2015 Regional Rates

Monthly Regional Nursing Home Rates (Use the rate for the region in which the facility is located)

• NEW YORK CITY (All boroughs) - $11,843 • LONG ISLAND - $12,390 • NORTHEASTERN - $9,414 • NORTHERN METROPOLITAN - $11,455 • WESTERN - $9,442 • ROCHESTER - $10,660 • CENTRAL - $8,768

PENALTY PERIOD

• DRA 2005 - the look back is 60 months for any disposal of assets made on or after the date of enactment.

• Below Medicaid resource allowance • In a nursing facility • Approved application but for the penalty period

• Penalty period begins when you need nursing home care and in the facility

94 RESIDENCE

• Intent to return home requirement

• Qualified individual living in residence

• $814,000 home equity cap

• Spouse • Child under 21, blind or disabled

EXEMPT TRANSFERS

• Transfer of residence to a qualified person: • - Spouse • - Blind or disabled child • - Sibling with equity interest – 1 year resident • - Caregiver child – 2 year resident

• Not for purposes of applying for Medicaid • Transfer to a child with disabilities • Sole benefit trust • Transfer between spouses

95 MEDICAID LIENS

• Liens allowed in limited circumstances

• Liens eliminated if recipient returns home

• Notice of Lien required

ESTATE RECOVERY

• State may assert claim against estates of persons who received benefits after age 55

• Definition of estate – probate vs. non-probate

• Exempt assets

96 RETIREMENT ACCOUNTS

• Pay–out status

• Age of Medicaid applicant

• IRS vs. Medicaid tables

• Community spouse retirement account

Supplemental Needs Trusts

• First Party Self Settled Trusts

• Third Party Trusts

• Pooled Trusts

97 LONG TERM CARE INSURANCE

• Purchase when younger

• Good for those with moderate wealth

• Look at financial stability of insurer

Ellyn S. Kravitz, J.D., LL.M, CELA [email protected] www.abramslaw.com

98 WGIUPD GENERAL INFORMATION SYSTEM 12/16/14 DIVISION: Office of Health Insurance Programs PAGE 1 GIS 14 MA/29

TO: Local District Commissioners, Medicaid Directors

FROM: Judith Arnold, Director Division of Eligibility and Marketplace Integration

SUBJECT: 2015 Medicaid Only Income and Resource Levels and Spousal Impoverishment Standards

EFFECTIVE DATE: January 1, 2015

CONTACT PERSON: Local District Support Unit Upstate (518)474-8887 NYC (212)417-4500

The purpose of this General Information System (GIS) message is to advise local departments of social services (LDSS) of the income levels and figures used in determining Medicaid eligibility effective January 1, 2015.

Due to a 1.7 percent cost of living adjustment (COLA) for Social Security Administration (SSA) payments effective January 1, 2015, several figures used in determining Medicaid eligibility must be updated. With an increase to the Supplemental Security Income (SSI) benefit levels, the Medically Needy income and resource levels will be adjusted accordingly.

As a result of these changes, a Mass Re-budgeting (MRB) will be performed upstate the weekend of December 12, 2014, for January 1, 2015, budget changes (New York City date to be determined). Budgets that utilize a federal poverty level will not be included in this Mass Re-budgeting. When the actual federal poverty levels (FPLs) are available, a second Mass Re-budgeting of affected cases will be performed. A separate GIS message will be issued when the 2015 FPLs are available.

NOTE: Budgets with a "From" date of January 1, 2015, or later, that utilize an FPL, must be calculated with the 2014 Social Security benefit amount(s) and Medicare Part B premium until the 2015 FPLs are available on MBL. Upstate districts should separately identify these cases for re-budgeting once the 2015 FPLs are available as these cases will not be included in Phase Two of Mass Re-budgeting. In New York City, the 2014 Social Security benefit amounts and Part B premium should be used until Phase Two of Mass Re- budgeting.

A chart with the new Medicaid levels is attached. MBL will be programmed to 5, or greater is entered.

99 WGIUPD GENERAL INFORMATION SYSTEM 12/16/14 DIVISION: Office of Health Insurance Programs PAGE 2 GIS 14 MA/29

Effective January 1, 2015, Medicaid eligibility must be determined using the following figures:

MEDICALLY NEEDY HOUSEHOLD INCOME LEVEL SIZE RESOURCES ANNUAL MONTHLY ONE 9,900 825 14,850 TWO 14,500 1,209 21,750 THREE 16,675 1,390 FOUR 18,850 1,571 FIVE 21,025 1,753 SIX 23,200 1,934 SEVEN 25,375 2,115 EIGHT 27,550 2,296 NINE 29,725 2,478 TEN 31,900 2,659 2,175 182 PERSON

1. Medically Needy Income and Resource Levels (see chart above). 2. The Supplemental Security Income federal benefit rate (FBR) for an individual living alone is $733 and $1,100 for a couple. 3. The allocation amount is $384, the difference between the Medicaid income level for a household of two and one. 4. The 249e factors are .968 and .160. 5. The SSI resource levels remain $2,000 for individuals and $3,000 for couples. 6. The State supplement remains $87 for an individual and $104 for a couple living alone.

Note: The SSI State supplement amount that is used to determine the amount allocated to the parents in determining eligibility for an SSI- related child, when the household includes an SSI-related parent, a non SSI-related parent, an SSI-related child and at least one non SSI-related child, is the SSI State supplement for an individual living with others ($23). MBL was incorrectly using the SSI State supplement of $87 (for individuals living alone). This error is corrected and the appropriate allocation amount will be determined for MBL Budget Type 05 calculations with an effective date of January 1, 2015, or later.

7. The standard Medicare Part B monthly premium will remain $104.90 in 2015. The Medicare Part A premium is $224/month for 2015 for individuals having 30-39 work quarters. This is a $10 decrease from 2014. The Medicare Part A premium will be $407/month for those who are not otherwise eligible for premium-free hospital insurance and have less than 30 work quarters. This is a decrease of $19 from 2014. 8. The Maximum federal Community Spouse Resource Allowance is $119,220. 9. The Minimum State Community Spouse Resource Allowance remains $74,820. 10. The community spouse Minimum Monthly Maintenance Needs Allowance (MMMNA) is $2,980.50. 11. Maximum Family Member Allowance is $656 until the FPLs for 2015 are published in the Federal Register.

100 WGIUPD GENERAL INFORMATION SYSTEM 12/16/14 DIVISION: Office of Health Insurance Programs PAGE 3 GIS 14 MA/29

12. Family Member Allowance formula number is $1,967 until the FPLs for 2015 are published in the Federal Register. 13. Personal Needs Allowance for certain waiver participants subject to spousal impoverishment budgeting is $384. 14. Substantial Gainful Activity (SGA): Non-Blind $1,090/month, Blind $1,820/month, Trial Work Period (TWP) $780/month. 15. SSI-related student earned income disregard limit of $1,780/monthly up to a maximum of $7,180/annually. 16. The home equity limit for Medicaid coverage of nursing facility services and community-based long-term care is $828,000.

Please direct any questions to the Local District Support Unit at 518-474- 8887, Upstate, and 212-417-4500 for NYC.

101 102 Checklist for Purchasing Long Term Care Coverage

How is your health? Some insurers will not issue a policy if you have an existing medical condition, and others may issue a policy but charge a higher premium.

What is your age? The premiums for these policies are based on your age at the time of purchase. The older you are at the time you purchase a policy, the more expensive the policy will be.

What type of policy do you want to buy to meet your long term care needs? Long Term Care Nursing Home Nursing Home Home Care and Home Care Only Only Partnership Non-Partnership

Do you want: Tax-Qualified, Non-Tax-Qualified? It may be easier to qualify for benefits under a non-tax qualified policy if offered by an insurer.

What Maximum Policy Benefit do you want? This is the total benefit available under the policy. Some insurers offer coverage for a certain number of years or unlimited coverage, others offer a dollar amount limit. The higher the number of years of benefits or the higher the dollar amount limit, the more expensive the coverage. In choosing this benefit you should keep in mind that it is estimated that the average nursing home stay is 2½ years.

What Elimination/Waiting Period do you want? This is the amount of time you must pay for services before you receive benefits under the policy. A longer period will reduce the cost of the coverage. Medicare may pay some or all of the first 100 days if skilled nursing care is required.

What Daily Benefit Amount do you want for nursing home? This is the maximum amount per day that will be paid under the policy. Before choosing this amount, you should check to see the average cost of nursing homes in the county in which you will reside at claim, and consider how much you can self-pay per day.

What Daily Benefit Amount do you want for home care? This is the maximum amount per day that will be paid under the policy. Before choosing this amount, you should check to see the average cost of home care services in the county in which will you reside at claim, and consider how much you can self-pay per day.

Do You Want An Inflation Protection Benefit? It is important to realize that a daily benefit amount which Is adequate today to meet nursing home and home care costs may not be adequate at the time you need to use the benefits. The inflation protection benefit increases the daily benefit amount and policy maximums over time to help keep pace with inflation and increased expenses. Depending on your age, this benefit can be expensive. These are the most common inflation protection benefits offered: Increase of 3.5% compounded annually. Required For Partnership Policies Purchased Before Age 80. 5% per year Annual cost of living increase Option To Increase Benefits In The Future At Attained Age Rates.

Do you want to purchase a non-forfeiture benefit? This benefit is designed to ensure that if you lapse your policy (i.e., stop paying premiums) after a number of years, you retain some benefits from the policy. Most nonforfeiture benefits being offered provide either reduced benefits for the original term of the policy, or full benefits for a reduced period of time. This benefit is can be expensive.

103 104 Basics of Employment Law What You Need to Know about Hiring and Firing

Jonathan A. Wexler, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

105 106 Bridging the Gap: The Basics of Employment Law

Jonathan A. Wexler Vedder Price P.C. December 4, 2015

EMPLOYMENT‐AT‐WILL: THE BASICS • The principle: an employee can be discharged at any time, with or without cause or advance notice • It’s a two‐way street: an employee can quit at his/her discretion • But wait, there are some exceptions…

107 EMPLOYMENT‐AT‐WILL EXCEPTIONS: ANTI‐DISCRIMINATION/RETALIATION LAWS • Federal, state, and city laws prohibiting discrimination and retaliation: • Title VII of the Civil Rights Act of 1964, ADEA, Rehabilitation Act of 1973, ADA, ERISA, Civil Rights Act of 1866, OWBPA, Executive Order 11246, Equal Pay Act, Sarbanes‐Oxley Act, NLRA, Veterans Rights, FLSA, FMLA, NY State/City Human Rights Laws, NY Labor Law, NY Workers’ Compensation Law, etc.

WHAT IS DISCRIMINATION? • Types of Discrimination – Facially Discriminatory Policies or Practices (rare): the policy or practice’s actual language treats employees or applicants differently – Disparate Treatment: intentional discrimination by an employer against employees or applicants who are members of a protected class (e.g., Hispanics, females, disabled persons) (McDonnell‐Douglas burden‐shifting) – Disparate Impact: discrimination resulting from practices or procedures which, although not facially discriminatory, have the effect of discriminating against members of a protected class (Duke Power Co. v. Griggs)

108 WHAT IS HARASSMENT?

• Sexual Harassment: form of sexual discrimination that is in violation of Title VII of the Civil Rights Act of 1964 (i.e., unwelcome sexual advances, unwelcome requests for sexual favors, or words or conduct of a sexual nature having the purpose or effect of creating a hostile, intimidating or offensive work environment) • Quid Pro Quo/Hostile Work Environment • Does it matter who does the harassing ‐‐ supervisor, co‐workers, etc.? • Other Kinds of Harassment: harassment based on a protected characteristic

RETALIATION • Retaliation: any materially adverse action taken against an employee because the employee engaged in protected activity ‐‐ i.e., protesting unlawful discrimination or retaliation, or participating in an investigation of alleged unlawful discrimination or retaliation ‐‐ that is harmful to the point that such conduct could well dissuade a reasonable employee from making or supporting a charge of discrimination.

109 HOW DOES THIS ACTUALLY WORK?

• Avenues of recourse available to employees who allege discrimination, harassment and/or retaliation against their employer: • The Equal Employment Opportunity Commission (“EEOC”) • Litigation (the EEOC right‐to‐sue letter) • Available damages for successful plaintiffs include unlimited back pay, reinstatement, emotional distress damages, punitive damages, front pay, attorney fees

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 • Federal anti‐discrimination law: protects employees and applicants against discrimination based on race, color, sex, religion, and/or national origin (Title VII does not address age or disability, but we’ll get to that) • Requires reasonable accommodations for religious needs and other observances • Bottom line: an employer cannot use any of the above‐mentioned criteria as a motivating factor in an employment decision (hiring, firing, promoting, demoting, etc.)

110 AGE DISCRIMINATION IN EMPLOYMENT ACT (“ADEA”) • An employer cannot discriminate against an employee with respect to the terms, privileges and conditions of employment based on the employee’s age • The ADEA protects only workers age 40 and over, but New York state and city laws protect workers over the age of 18

ADA, ERISA & § 1981 • Americans with Disabilities Act (“ADA”): an employer cannot discriminate against an employee with a disability (the ADA will be discussed in greater detail at a later point) • Employee Retirement Income Security Act of 1974 (“ERISA”): prohibits discriminating or retaliating against an employee in order to deprive him/her of the benefits of an employee benefit plan • Civil Rights Act of 1866 (“§ 1981”): Section 1981 of the Civil Rights Act of 1866 (and Section 1981(b) of the Civil Rights Act of 1991) prohibits retaliation and discrimination in the making of contracts based on race, national origin, and alienage

111 OWBPA & EXECUTIVE ORDER 11246 • Older Workers Benefits Protection Act (“OWBPA”): amended the ADEA to protect older workers from age discrimination • Executive Order 11246 (1964): prohibits federal contractors and subcontractors from discriminating on the basis of race, color, sex, religion, or national origin, and requires them to take affirmative action to eliminate discrimination in the workplace

EQUAL PAY ACT OF 1963

• The EPA prohibits an employer from paying different wages to men and women who perform equal work in the same workplace

112 OTHER ANTI‐ DISCRIMINATION/RETALIATION LAWS • Sarbanes‐Oxley Act: protects whistleblowers who expose their employers’ financial misconduct • National Labor Relations Act: protects private‐sector workers based on “protected concerted activity” (e.g., forming labor unions, engaging in collective bargaining, participating in strikes) • Veterans Rights: several federal laws prohibit discrimination against those citizens who have served in the armed forces and, further, protect their jobs and benefits when they return from active leave

NEW YORK STATE & CITY LAWS • NYS Human Rights Law: prohibits discrimination on the basis of gender, age, race, creed (religion), color, national origin, sexual orientation, military status, marital status, domestic‐violence victim status, arrest/criminal convictions • NYC Human Rights Law: prohibits discrimination on the basis of race, color, age, creed (religion), national origin, alienage or citizenship status, gender (including gender identity), sexual orientation, disability, arrest or conviction record, marital status, partnership status, unemployment, or status as a victim of domestic violence

113 NEW YORK STATE & CITY LAWS

• NYC Human Rights Law is intended to be construed very, very liberally (the Restoration Act) • See Phillips v. City of New York, 66 A.D.3d 170, 884 N.Y.S.2d 369 (1st Dep’t 2009) • Other relevant New York state laws: • N.Y. Lab. Law § 201‐d (prohibits discrimination and retaliation for political and recreational activities, use of consumable products, and membership in a union) • N.Y. Lab. Law § 740 (whistleblower protection) • N.Y. Workers’ Comp. Law § 120 (prohibits retaliation for claiming or attempting to claim compensation)

OTHER EMPLOYMENT‐AT‐WILL EXCEPTIONS • Employment for a fixed term: e.g., professional athletes and high‐level executives; remember the Statute of Frauds • Collective Bargaining Contracts: termination only for good cause after probationary period • Constitutional Restrictions: apply only to government employees • Tort of Wrongful Discharge: common law remedy (i.e., judge‐ made); e.g., termination violates public policy • Implied Contracts: holding employers responsible for statements made in employee handbooks

114 OTHER EMPLOYMENT‐AT‐WILL EXCEPTIONS • Constructive Discharge: employee X quits his job. X wasn’t fired, but resigned due to alleged intolerable workplace conditions. Does X have a viable cause of action? • Elements: • The employee’s work conditions are so intolerable as to cause a reasonable person to resign under the same circumstances. • The employer intentionally created, implemented, or permitted the conditions to occur.

FAMILY AND MEDICAL LEAVE ACT (“FMLA”) • Allows employees to take up to 12 weeks of medical leave upon the occurrence of one or more of several qualifying events or 12/26 weeks for military leave • But you must have been employed for the previous 12 months and worked at least 1,250 hours during that time (i.e., you cannot ask for FMLA leave due to your pregnancy on your first day of work). • Most importantly, your job will be waiting for you when you return (with one slight exception)

115 FMLA QUESTIONS

• What qualifies as a “serious health condition”? • Are step‐relatives covered? • Does FMLA leave need to be taken in one lump sum? • Is FMLA leave a paid leave period? • What notice obligations are imposed upon both the employer and employee? • What do I need to keep in mind regarding FMLA medical certification?

AMERICANS WITH DISABILITIES ACT (“ADA”) • Let’s refresh: an employer cannot discriminate against an employee with a disability • Did the ADAAA, or any other legislation/regulations, change anything? • Who is considered disabled/what is a disability? (Hint: it’s a broader definition than you might think) • If an employee is “disabled,” an employer has a duty to provide a reasonable accommodation so that the employee can perform the essential functions of his/her job, unless doing so would cause an undue hardship or pose a direct threat to health/safety • How does an employer determine the appropriate accommodation? (The Interactive Process)

116 FAIR LABOR STANDARDS ACT (“FLSA”) • The FLSA establishes: • Minimum wage (federal = $7.25/hour; NY = $8.75/hour and going to $9.00/hour on 12‐31‐15) • Overtime pay (generally one and one‐half times the regular rate of pay for work over 40 hours per week) • Record‐keeping requirements • Child labor standards • Wage exceptions for workers who receive tips

FLSA EXCEPTIONS

• But there are exceptions to the FLSA’s requirements: • Executives • Administrators • Professionals • Computer professionals • Highly paid employees • Outsides sales

117 Worker Adjustment and Retraining Notification (WARN) Act • Federal legislation intended to protect communities in the event of a mass layoff or plant closing • WARN requirements: • When employer with 100 or more employees intends to close a plant with at least 50 employees or plans a mass layoff, the employer is required to provide 60 days of notice to all affected employees • What is the single site of employment? • What are the implications when a state, like New York, has it own WARN Act?

Hiring Considerations

• Pre‐employment inquiries must be job‐related and avoid protected characteristics • Criminal Background (Article 23‐A of the NYS Correction Law; Ban the Box in NYC); EEOC hot‐button topic • Credit History (NYC); EEOC hot‐button topic • Unemployment (NYC) • Fair Credit Reporting Act

118 WHERE CAN I LEARN MORE?

• http://www.eeoc.gov • http://www.employmentlawalliance.com • http://www.dol.gov • http://www.labor.ny.gov • http://www.nlrb.gov • http://www.law360.com/employment • http://www.bna.com/products/labor/dlr.htm

119 120 Accounting for Lawyers 101 Understanding and Reviewing Financial Statements

David L. Evans, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

121 122 Reviewing a Residential Lease Agreement | Basic Considerations All Lawyers Should Know

Hon. Matthew J. Turner

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

123 124 Basics of Landlord Tenant Practice Hon. Matthew J. Turner Troy City Court Troy, New York

Purpose of Summary Proceeding

 It is a simple, quick, and inexpensive means of determining right of possession as between landlord and tenant (Allyn v. Markowitz, 83 Misc. 2d 250 [County Court, Rockland County 1975]).

 It is merely to determine right of immediate possession, not title (David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, UCCA § 204).

125 Summary Proceeding-Outside New York City

 UCCA § 204 states: “The court shall have jurisdiction of summary proceedings to recover possession of real property located in whole or in part within the city, to remove tenants therefrom, and to render judgment for rent due without regard to amount”

Summary Proceeding-New York City

 NYCCCA §204 states:

 “The court shall have jurisdiction over summary proceedings to recover possession of real property located within the city of New York, to remove tenants therefrom, and to render judgment for rent due without regard to amount, and in such a proceeding after the court has determined that a warrant of eviction be issued, it shall not be necessary for the court to sign the warrant, but it may be signed by the clerk of said court. The court shall also have jurisdiction over special proceeding by tenants of multiple dwellings in the city of New York for judgment directing deposit of rents and the use thereof for the purpose of remedying conditions dangerous to life, health or safety, as authorized by article seven-a of the real property actions and proceedings law”

126 Proper party

 Under RPAPL §721, the following people may bring forward a summary proceeding:

 The landlord or lessor

 The reversioner or remainderman

 The purchaser following a foreclosure sale or tax sale

 A person forcibly put out or kept out

 Among others

An agent of the landlord is not a proper person

 The agent or power of attorney may not bring the action in their own name (Ferro v. Lawrence, 195 Misc. 2d 529 [App Term, 2d Dept 2002](emphasis added).

127 Grounds for summary proceeding

 The tenant:

 Continues in possession after the expiration of the lease term; (RPAPL §711[1])

 Fails to timely pay rent; (RPAPL §711[2])

 Maintains an illegal business on the premises; RPAPL §711[5])

 Is adjudicated bankrupt; (RPAPL §711[4])

 Fails to pay agreed upon taxes or assessments; or

 Disables smoke or fire detection apparatus in certain localities (Matter of Calvi v. Knuntson, 195 AD2d 828 [3d Dept 1993]).

Focus of the presentation will be on following grounds

 Holdover

 Nonpayment

 Illegal activities

128 Holdover

 In order to maintain an action by summary proceeding, the landlord must “allege and prove that, as of the time the proceeding is commenced, the tenant remains in possession beyond the expiration of his term (see RPAPL § 711 [1]; Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1 [4th Dept 1983]).

 The lease period must have elapsed naturally under the terms of the agreement (In the Matter of Calvi v. Knuntson, 195 AD2d at 832).

 The landlord must not be seeking a right of reentry based on a breach of a condition of the lease (In the Matter of Watervliet Housing Authority v. Bell,262 AD2d 810 [3d Dept 1999]).

Holdover

 As the summary proceeding is statutory by nature, there must be strict compliance under the statute.

 If the statutory requirements have not been followed, the court will lack jurisdiction to hear the matter (Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d at 2).

129 11/23/2015

Notice to terminate month to month- NYC

 Governed under Real Property Law § 232-a

 A month to month tenant must be provided with 30 days notice (prior to expiration of the term) that the landlord seeks to terminate the lease.

 Notice must be provided in the same manner as would be allowed under the law for serving a notice of petition for summary proceeding

Notice to terminate month to month tenancy (outside NYC)

 A month to month tenant must be given 30 days notice prior to expiration of the lease term (Real Property Law § 232-b)

 The notice must be served according to RPAPL §735

 Personal service

 Substituted service to a person of “suitable age and discretion who resides or is employed at the property sought to be recovered”

 Nail and mail (must be mailed within one day of the nailing in a conspicuous location of the property)

130

6 Filing petition with court

 “The notice of petition, or order to show cause, and petition together with proof of service thereof shall be filed with the court or clerk thereof within three days after;

 Personal delivery to respondent, when service has been made by that means, and such service shall be complete immediately upon such personal delivery; or

 Mailing to respondent, when service is made by the alternatives above provided, and such service shall be complete upon the filling of proof of service” (RPAPL § 735[2] [a][b]).

Nonpayment

 When a tenant has defaulted in the payment of rent owed, the landlord must demand rent (orally or in writing) “providing the tenant with a minimum of three days to pay the rent owed or surrender possession of the premises” (545 West Company v. Schachter, 16 Misd. 3d 431, 431 [Civ Ct, NY County 2007]).

 The written notice must be definitive and unequivocal (Id.).

131 What if landlord accepts rent?

 When the landlord accepts rent due, the right to evict is no more (L & T East 22 Realty Co., v. Earle, 192 Misd. 2d 75 [App Term, 2d Dept 2002]).

Nonpayment

 A lease term may not require that a tenant deposit rent arrears prior to submitting an answer in the matter (Lipkis v. Gilmour et. al., 158 Misc. 2d 609 [App Term, 1st Dept 1993]).

132 Nonpayment

 It is an abuse of discretion to require a tenant to submit rent arrears prior to ligation as there is “no statutory provision calling for [a] deposit” The court went on to note “the right to litigate the merits of the case was erroneously conditioned upon prepayment of the unproven amount claimed as rent” (Eversman v. Collodo, 88 Misc. 86 [App Term, 1st Dept 1976]; see also Parkway v. Washington, 97 Misc. 2d 881 [Hous Part, Civ Ct, Kings County 1979).

Warranty of habitability

 Under Real Property Law 235-b [1], there is an implied warranty of habitability between the landlord and the tenant that the subject property will be;

 “fit for human habitation and for uses reasonably intended by the parties” and;

 “such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health, or safety.”

133 Warranty of habitability

 Is an affirmative defense in a nonpayment proceeding (Park West Management Corp., v. Mitchell et.al., 47 NY2d 316 [1979]).

 “A simple finding that conditions on the lease premises are in violation of an applicable housing code does not necessarily constitute automatic breach of the warranty” (Park West Mgt.v. Mitchell, 47 NY2d 316, 327-328 [1979]).

Warranty of habitability-examples breach

 Inadequate plumbing-

 foul odor from tap water, which landlord failed to remedy, supported tenant’s claim of a breach of the warranty of habitability (Newkirk v. Scala, 90 AD3d 1257 [3d Dept 2011] citing Park West Management Corp., v. Mitchell, 47 NY2d 316 [1979]).

 Failure to provide heat-

 The rent stabilized property had no heat for over five weeks, the landlord failed to address rodent infestation, or “repair conditions which were manifestly dangerous to the tenant’s health and safety” (Salvan v. 127 Management Corp., et.al., 101 AD2d 721 [1st Dept 1984]).

134 Warranty of habitability-no breach

 Failure to provide a roll-in shower for a tenant who was a quadriplegic did not breach the warranty of habitability (Port Chester Housing Authority v. Mobley, 6 Misc. 3d 32 [App Term, 9th & 10th Jud Dists 2004](finding abatement of rent appropriate on other grounds).

Abatement of rent when breach found

 The proper measure of damages is the “difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach” (Park West Mgt.v. Mitchell, 47 NY2d at 317).

 Can either be a sum of money or an off-set of the rent when the tenant has pled the affirmative defense of a breach of the warranty of habitability (Id.).

135 Illegal activities

 In 1988, Congress passed The Anti-Drug Abuse Act which required public housing officials to use leases which would allow for the termination of a tenancy if “[a]ny criminal activity that threatens the health, safety, or right to peaceful enjoyment. . . or any drug-related activity on or off such premises. . . shall be cause for termination of tenancy.” (Department of Housing and Urban Development v. Rucker, 535 US 125, 127 [2002]).

 A tenant in public housing may be evicted for possession of marihuana, in her home, even if the tenant alleges that she was unaware of the drugs (In the Matter of Willock v. Schenectady Municipal Housing Authority, 271 AD2d 818, 819 [3d Dept. 2000]).

Illegal activities

 However, if a tenant is being evicted pursuant to New York statutory law RPAPL §711[5] and §715, then the strict liability standard under Rucker does not apply. New York Housing Authority v. Grillasca, 18 Misc. 3d 524, 528 (Civ. Ct. New York County, 2007).  In Grillasca, a mentally ill tenant with an IQ of 72 pleaded guilty to Criminal Possession of a Controlled Substance in the Fourth degree and received five years of probation. Id. at 526. Thereafter, the public housing authority sought to recover possession of the property and brought an eviction proceeding pursuant to RPAPL §711[5] and §715. Id. at 525. The court held that the provisions under New York statutory law required that the petitioner show the apartment was used “‘customarily or habitually’ for an illegal trade . . . like the sale of illegal drugs.” Id. at 527. And that “a single instance of illegal drugs in the apartment, even combined with a single criminal disposition, is insufficient to prove that the apartment is habitually used for the illegal sale of drugs.” Id. Further, the petitioner is required to show that the tenant had actual knowledge of the illegal drug activity before an eviction could be ordered. Id.

136 Illegal activities

 In Grillasca, a mentally ill tenant with an IQ of 72 pleaded guilty to Criminal Possession of a Controlled Substance in the Fourth degree and received five years of probation. Id. at 526. Thereafter, the public housing authority sought to recover possession of the property and brought an eviction proceeding pursuant to RPAPL §711[5] and §715. Id. at 525. The court held that the provisions under New York statutory law required that the petitioner show the apartment was used “‘customarily or habitually’ for an illegal trade . . . like the sale of illegal drugs.” Id. at 527. And that “a single instance of illegal drugs in the apartment, even combined with a single criminal disposition, is insufficient to prove that the apartment is habitually used for the illegal sale of drugs.” Id. Further, the petitioner is required to show that the tenant had actual knowledge of the illegal drug activity before an eviction could be ordered. Id.

Illegal activities

 When a tenant has been charged with possessing a small amount of marihuana and elects to resolve the case with an Adjournment in Contemplation of Dismissal, that fact alone is insufficient to conclude that the tenant’s apartment has been “customarily or habitually” used for drug activity. 554 West 148th Street Associates LLC v. Thomas, 8 Misd. 3d 132 A, 2005 Slip Op 51139U (Sup. Ct. App. Term, New York, First Department), citing, New York Housing Authority v. Grillasca, 18 Misc. 3d 524, 528 (Civ. Ct. New York County, 2007).

137 Illegal activities

 It should be noted that possession of small amounts of marihuana is not a crime. People v. Allen, 92 NY2d 378, 384 (1998). In 1977, the New York legislature passed the Marihuana Reform Act which “decriminalized” the possession of “[s]mall amounts of marihuana for personal use.” Id. Pursuant to Criminal Procedure Law (CPL) §170.56, a person is afforded an Adjournment in Contemplation of Dismissal after being charged, for the first time, with a Penal Law (PL) § 221.05 violation of Unlawful Possession of Marihuana. People v. Mann, 83 Misd. 2d 442, 444-445 (Nassau Dist. Ct. , 1975).

138 Lawyer Assistance Program Prevention, Intervention and the NY Rules of Professional Conduct What You Need to Know in New York

Deborah A. Scalise, Esq. Gary M. Reing, Esq. | Patricia F. Spataro, LMHC

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

139 140 NYSBA Lawyer Assistance Program

DOING NOTHING IS NOT AN OPTION

The New York State Bar Association Lawyer Assistance Program

An Awareness Test

https://www.youtube.com /watch?v=Ahg6qcgoay4

141 CALL 800.255.0569 NYSBA Lawyer Assistance Program

A Stressful Profession

Adversarial System Competitive field Demanding Clients Prolonged Periods of Stress

Attorneys Suffer from Higher Rates of:  Substance abuse  Depression  Suicide  Divorce  Reluctance to seek help

142 CALL 800.255.0569 NYSBA Lawyer Assistance Program

UNMANAGED STRESS CAUSES PROBLEMS

What is STRESS?

In general, stress is a normal physical response to real or imagined threats or danger

NOTE: Stress can be difficult to define because it is so different for each of us

143 CALL 800.255.0569 NYSBA Lawyer Assistance Program

Stress is Stress – Not So!

 Stress  PTSD  Compassion Fatigue  Vicarious Trauma  Burnout

144 CALL 800.255.0569 NYSBA Lawyer Assistance Program

PTSD a mental health condition caused by a terrifying event Compassion Fatigue the emotional & physical erosion Vicarious Trauma a profound shift in beliefs Burnout the physical and emotional exhaustion

Stress Impacts All Systems

Cognitive Symptoms Emotional Symptoms •Memory •Moodiness •Concentrate •Irritable •Judgment •Loneliness

Physical Symptoms Behavioral Symptoms •Aches & pains •Procrastination •Chest pain •Relationship •Rapid heartbeat •Alcohol/drugs

145 CALL 800.255.0569 NYSBA Lawyer Assistance Program

Staying Healthy

Awareness Balance Connect

Stress & Depression

First episode of major depression is usually preceded by a period of intense stress

146 CALL 800.255.0569 NYSBA Lawyer Assistance Program

SIGNS OF DEPRESSION

 Overwhelming sadness  Diminished interest in fun activities  Changes in behaviors  Fatigue  Feeling worthless  Poor concentration  Suicidal ideation

SUICIDE

WHAT ARE THE SIGNS? WHAT TO DO WHEN YOU SEE THE SIGNS?

https://www.youtube.com/watch?v=NwwCaa5xbek

147 CALL 800.255.0569 NYSBA Lawyer Assistance Program

Addiction

 Loss of control  Preoccupation  Tolerance  Withdrawal

STRESS AND ADDICTION

Using drugs and alcohol to cope with stress leaves you vulnerable for increased use when stress gets worse

148 CALL 800.255.0569 NYSBA Lawyer Assistance Program

DEPENDENCY

A disease that is: Progressive Persistent Predictable

BRAIN DISEASE

Alcohol and drugs flood the reward system of the brain:

 Produces euphoric feeling  Changes way brain works  Becomes a necessity and not a choice

149 CALL 800.255.0569 NYSBA Lawyer Assistance Program

Attorney Fact

Lawyers suffer from alcoholism at rate twice that of the general population

RETHINKING DRINKING In general population: 35% NEVER DRINK 35% DRINK AT LOW-RISK 20% DRINK AT HIGH-RISK 10% ADDICTED/DEPENDENT

150 CALL 800.255.0569 NYSBA Lawyer Assistance Program

What is Risky Drinking

Risky Drinking: More than the daily limit OR more than the weekly limit High Risk drinking: More than both daily and weekly limits

CAGE Assessment

 Control  Annoyed  Guilty  Eye-Opener

151 CALL 800.255.0569 NYSBA Lawyer Assistance Program

WHAT IS PRESCRIPTION ABUSE?

Taking someone else’s prescribed medication to self- medicate Taking a prescription medication in a way other than prescribed Taking medication to get high

152 CALL 800.255.0569 NYSBA Lawyer Assistance Program

The disease of addiction is progressive & FATAL if left untreated

153 CALL 800.255.0569 NYSBA Lawyer Assistance Program

Emotional well-being & Ethics... What’s the Connection?

Doing Nothing is Not an Option

If you experience symptoms- SEEK HELP If you notice signs in others- SAY SOMETHING

154 CALL 800.255.0569 NYSBA Lawyer Assistance Program

Courage to Confront…

1. Approach with facts ONLY 2. Remain calm and non- judgmental 3. Discuss expectations 4. Provide resources and referrals 5. Communicate consequences

If you see signs in self

 Call for assistance  Like any disease the earlier you get help the better the results

155 CALL 800.255.0569 NYSBA Lawyer Assistance Program

LAP

 assists attorneys, judges, and law students affected by addiction, stress, depression, and other MH issues  assists colleagues, staff, friends, family

LAP Services

Professional Services Assessment Referral Intervention Education Peer Assistance - Caring, trained attorneys who know what it’s like and want to help

156 CALL 800.255.0569 NYSBA Lawyer Assistance Program

Confidentiality:

Protected by Section 499. Judiciary Law The hallmark of our success

Contact Information LAWYER ASSISTANCE PROGRAM 1-800-255-0569 www.nysba.org/lap

157 CALL 800.255.0569 158 SCALISETHICS 2015 Ethics Resources 2015

SCALISE HAMILTON & SHERIDAN, LLP 670 White Plains Road Suite 325 Scarsdale, N.Y. 10583 (914)725-2801 Fax (914)931-2112

Rules of Professional Conduct (effective April 1, 2009)/Lawyer’ s Code of Professional Responsibility (prior to April 1, 2009)    Judiciary Law Section 90 (Case comments)  22 NYCRR Section 1200  Lexis and Westlaw

Judiciary Law  Judiciary Law Section 90  Judiciary Law Section 264(4)  Judiciary Law Sections 467-499  CPLR Section 9407 and 9701

Attorney Admissions  Judiciary Law Section 53  Judiciary Law Section 56  Judiciary Law Section 90(1)  Judiciary Law Section 460-466  CPLR 9401-9406  General Obligations Law 3-503  2 NYCRR Section 520  22 NYCRR Section 602 (1st Dept.)  22 NYCRR Section 690 (2nd Dept.)  22 NYCRR Section 805 (3rd Dept.)  22 NYCRR Section 1022.34 (4th Dept.)

Other Applicable Rules  22 NYCRR ' 1200 Appendix A Standards of Civility (Aspirational)  22 NYCRR ' 1205 Cooperative Business Arrangements between lawyers and non-legal Professionals (AMultidisciplinary Practice@)

159 SCALISETHICS 2015

 22 NYCRR ' 1210 Statement of Client’ s Rights  22 NYCRR ' 1215 Written Letter of Engagement  22 NYCRR ' 1220 Mediation of Attorney-Client Disputes  22 NYCRR ' 118 Registration of Attorneys  22 NYCRR ' 130 Costs and Sanctions  22 NYCRR ' 137 Fee Dispute Arbitration  22 NYCRR ' 1300 Dishonored Check Rule  22 NYCRR ' 1400 Procedure in Domestic Relations Matters  22 NYCRR ' 1500 Continuing Legal Education

Attorney Disciplinary Procedures  Judiciary Law Section 90  22 NYCRR '' 603 & 605 (First Department)  22 NYCRR '' 690 & 691 (Second Department)  22 NYCRR ' 806 (Third Department)  22 NYCRR ' 1022 (Fourth Department)

Disciplinary Case Law  Appellate Division Reporters (for attorneys)  Court of Appeals and Judicial Conduct Committee (for judges)  Non-Disciplinary Case Law  All other courts

Judicial Conduct  22 NYCRR ' 100 Judicial Conduct  22 NYCRR ' 101 Advisory Committee on Judicial Ethics  22 NYCRR ' 7000 State Commission on Judicial Conduct B Procedural Rules  22 NYCRR ' 7100 Judicial Nomination Commission  22 NYCRR ' 7400 Ethics Commission for the Unified Court System

Formal and Informal Ethics Opinions  ABA  NYSBA  Association of the Bar of the City of New York  NY County Lawyers Association  Nassau County Bar Association  ABA/BNA Manual

Other Resources and Periodicals  Annotated Code and Model Rules  ABA Standards on Imposing Lawyer Sanctions

160 SCALISETHICS 2015

 Professional Responsibility: A Contemporary Approach, Russell G. Pearce, Daniel J. Capra, Bruce A. Green (Thomson Reuters 2011)  The New York Code of Professional Responsibility: Opinions, Commentary and Caselaw, New York County Lawyer’s Ethics Institute (Oxford 2010)  Simon’ s New York Rules of Professional Conduct Annotated, Roy Simon (Thomson West 2012)  Modern Legal Ethics: Charles Wolfram (West Publishing)  Legal Ethics: The Lawyers Deskbook on Professional Responsibility, Ronald D. Rotunda, American Bar Association Center on Professional Responsibility (Thomson West 2012)  Regulation of Lawyers: Statutes and Standards, Stephen Gillers and Roy D. Simon, (Aspen Publishers 2012)  Attorney Escrow Accounts, Rules, Regulations and Related Topics, Peter Coffey and Anne Reynolds Copps, Editors (New York State Bar Association 2012)  New York Law Journal

Telephone Hotlines  Association of the Bar of the City of New York (212) 382-6600 Ext. 8  Association of the Bar of the City of New York LAP (212) 302-5787  NY County Lawyers” Association (212) 267-6646  NY State Bar Association (800) 342-3661  NY State Bar Association LAP 1-800-255-0569  American Bar Association (800) 285-2221or e-mail [email protected]  American Bar Association CoLAP 1-866-LAW-LAPS(529-5277)  American Bar Association Judicial Assistance 1-800-219-6474

Websites  ABA Center for Professional Responsibility (www.abanet.org/cpr/home.html)  ABA/BNA Lawyer’ s Manual on Professional Conduct (www.bna.com/products/lit/mopc.htm)  American Legal Ethics Library/Cornell Legal Information Institute (www.secure.lawcornell.edu/ethics)  American Judicature Society (www.ajs.org)  Association of Professional Responsibility Lawyers (www.aprl.net)  National Organization of Bar Counsel (www.nobc.org)  The New York State Lawyers Assistance Trust (NYLAT) (www.nylat.org)

161 162 SCALISETHICS 2015

Dealing With an Ethical Dilemma Submitted by Deborah A. Scalise, Esq.1

In today=s legal world every practitioner encounters ethical issues ranging from obligations to be fulfilled in the practice of law, (such as Continuing Legal Education and biannual registration), to issues arising from client representation, (such as conflicts and client fraud). Somehow a lawyer must find a way to deal with such issues and to do so in compliance with the New York Rules of Professional Conduct, as well as a multitude of other rules in the Judiciary Law; and the Rules of Court. In addition, where the rules are not specific, lawyers may look to bar association advisory opinions or case law for guidance. As a result, it can be difficult to deal with issues on behalf of a client, while maintaining and protecting our licenses to earn a living. This article will give a brief practical overview as to what to do if an ethics and professional responsibility issue arises and what to do when facing disciplinary authorities conducting a grievance investigation.

1. What can a lawyer do when faced with an ethical dilemma?

If taking an action on behalf of a client feels wrong but you are unable to pinpoint the problem - follow your instinct; don=t do it, or ask for time to research the issue (see Ethics Resources Outline). If you are pressed for time due to a trial or court appearance, a brief discussion with the judge or law secretary as to a pending “ethics issue” (without disclosing harmful facts) will usually result in a short adjournment to allow you to make a telephone call to consult with a colleague or a supervisory attorney. If you are unable to reach someone, contact one of the bar association ethics hotlines. You will find that most issues have arisen before and someone will either have an answer or give you guidance as to a rule, case or advisory opinion.

2. What can a lawyer do when faced with an allegation of ethical misconduct?

22 NYCRR § 1200 Rule 8.3 (formerly 22 NYCRR § 1200.4 [DR 1-103]) provides that a lawyer may report another lawyer=s misconduct to either Aa tribunal or other authority empowered to investigate or act upon such violation.@ Notwithstanding the rule, even if the allegations are only made to the court in which you are appearing, the grievance

1 Deborah A. Scalise is a partner in SCALISE HAMILTON & SHERIDAN, LLP in Scarsdale, New York (914)725-2801. The firm focuses its practice on the representation of professionals (accountants, doctors, lawyers, judges, pharmacists) in professional responsibility and ethics matters and white collar criminal matters. Ms. Scalise is the Chair of the NYSBA CLE Committee and also serves as the Co-chair of the Professional Ethics Committee of WBASNY. She has been in private practice since 2002 and is a former Deputy Chief Counsel to the Departmental Disciplinary Committee for the First Judicial Department.

163 SCALISETHICS 2015 committee can still initiate an investigation! Thus, you may be subject to financial sanctions by the court, as well as disciplinary sanctions by disciplinary authorities. As a result, once there is any allegation of ethical misconduct a lawyer should act carefully and try to resolve the issues so as not to risk a negative Opinion by a Court.

P Consider obtaining counsel.

Representing yourself is not a good idea because you are too close to the issues. In addition, practitioners in the field know the grievance procedures, rules and staff and will be able to shepherd you through the system. If you cannot afford to hire someone, at the very least have a respected colleague look over your documents before you submit them to the court or the grievance authorities to give your answer a dispassionate review.

P Cooperate with the court=s or grievance committee=s requests.

Any delay in the submission of your response may negatively impact on the investigation. Moreover, a failure to respond may result in an interim suspension pending a final hearing. See 22 N.Y.C.R.R. ' 603.4(e)(1)(1st Dept.); ' 691.4(l)(1) (2d Dept.); '806.4(f)(1)(3rd Dept.) and ' 1022.19(f)(1)(4th Dept.).

P All statements can and will be used against you.

Do not make any Aoff the cuff@ statements about your conduct to the court, clients, colleagues and opposing counsel. Moreover, if you contact staff for the grievance committee, keep the conversation to a minimum. Most important, do not misrepresent the facts because the grievance authorities will find out if you do. As a result, you could be subject to additional charges for lying to the committee during the investigation.

P Written responses.

When providing a written response to a grievance, consult the client=s files and your records before responding. Focus on an explanation of your conduct. Do not blame the client, the court or your supervisors unless you can back-up your claims. Note: 22 NYCRR § 1200 Rule 1.6(b) (formerly 22 NYCRR § 1200.19(c) [DR 1-103 (c)]) permits a lawyer to reveal client confidences or secrets in order to defend the lawyer or the lawyer=s employees against an accusation of wrongful conduct.

164 SCALISETHICS 2015

P Aggravating and mitigating circumstances.

If you find yourself the target of a disciplinary investigation there are certain factors, which may be presented as aggravating or mitigating circumstances which can affect the sanction imposed upon a finding of misconduct. Aggravating circumstances which considered by the grievance committees when sanctioning a lawyer include, inter alia, failure to cooperate with the committee, lying to the committee, lack of remorse, prior disciplinary history and untreated substance abuse. Mitigating circumstances include, inter alia, character references, pro bono activities, community service and treatment for substance abuse.

P Substance Abuse.

Lawyers Assistance Programs (ALAP@) are available to members of the legal community with alcohol or substance problems. The New York State Lawyers Assistance Trust (NYLAT) has a website which provides invaluable information about resources to deal with these issues at www.nylat.org. NYLAT works hand in hand with local LAPs including those established by the New York State Bar Association and the Association of the Bar of the City of New York.

Each LAP offers free, confidential assistance to lawyers, judges, law students and their families in addressing their problem, identifying appropriate resources and beginning the recovery process. These programs work together to assist lawyers in need and their services are confidential pursuant to '499 of the Judiciary Law as amended by Chapter 327 of the Laws of 1993 and Federal Regulation 42 CFR Part 2. There are national, statewide and local LAP programs and they that can be reached as follows:

 New York State Bar Association LAP - Pat Spataro (800)255-0569  New York City Bar Association LAP - Eileen Travis (212)302-5787  Brooklyn Bar Association LAP - (718)624-4001  Nassau County Bar Association LAP - Peter Schweitzer(888)408-6222  ABA Co-LAP - Leigh Stewart-1-800-238-2667 or 1-866-LAW-LAPS(1- 866-529-5277)  ABA Judicial Assistance - Ann Foster- 1-800-219-6474

If you, or any lawyer you know is experiencing a problem, don=t wait until a grievance is filed, call LAP, they can help!

165 166 Injured on the Job? What All Lawyers Should Know About Workers Comp

Robert E. Grey, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

167 168 Basic Outline Of New York State Workers’ Compensation

By: Robert E. Grey Grey & Grey, LLP

1. Who is covered

a. employer/employee relationship b. jurisdiction c. covered employment

2. What is covered

a. accidents

i. in the course of employment - outside workers - special errands - dual purpose - gray area

ii. out of the employment - presumption - assaults - heart attacks and strokes - unwitnessed accidents

iii. time limitations - notice - statute of limitations

b. occupational diseases

i. peculiar to and characteristic of the employment ii. date of disablement - notice - statute of limitations iii. hearing loss

169 3. Benefits

a. Temporary Disability Benefits.

i. The waiting period: no compensation for first week out. If out for 2 weeks, benefits are due for days lost in the second week. If out one day into the third week (15 days of disability) the waiting period is waived and benefits are payable back the beginning.

- Days are counted starting with the first full day missed from work (does not include the date of the accident.

- Days are counted starting from the first medical evidence of disability.

ii. Average Weekly Wage: WCL § 14 provides method of calculation of average weekly wage based on 52 weeks of earnings before the accident – but usually not straight division of the payroll.

- If the worker has multiple jobs, all are considered (concurrent employment).

- Workers under the age of 25 are entitled to an adjustment (wage expectancy).

- If the worker did not work for the employer for a substantial part of the year before the accident, a similar worker payroll should be used.

iii. Temporary Total Disability.

- 2/3 of the worker’s average weekly wage, up to the maximum rate for the date of the accident.

- For accidents between July 1, 1992 and July 1, 2007 the maximum benefit is $400/week.

- For accidents between July 1, 2007 and July 1, 2008 the maximum benefit is $500/week. The minimum benefit rate is also raised to $100 per week (from $40) as of July 1, 2007.

- For accidents between July 1, 2008 and July 1, 2009 the maximum benefit is $550/week.

170 - For accidents between July 1, 2009 and July 1, 2010 the maximum benefit is $600/week.

- The maximum benefit rate for accidents occurring after July 1, 2010 will be two-thirds of the state average weekly wage.

as of 7/1/10 = $739.83; as of 7/1/11 = $772.96; as of 7/1/12 = $792.07 as of 7/1/13 = $803.21 as of 7/1/14 = $808.65 as of 7/1/15 = $844.29 iv. Temporary Partial Disability.

- Degrees of partial disability are generally mild (25%), moderate (50%) and marked (75%).

- Degree of Disability = Degree of loss of earning capacity. Remaining earning capacity = 100 minus degree of disability. v. Calculation of Rate of Compensation:

( degree of disability ) AWW x (------) = rate of compensation ( 150 )

- Example: if AWW is $900, and degree of disability is 50%, 50/150 = 1/3. $900 x 1/3 = $300 rate.

- Rate is always subject to the maximum rate for the date of accident. vi. Reimbursement to the Employer.

- If wages are paid for time out of work due to on-the-job injury, the workers’ compensation award for the period is reimbursed to the employer, not paid to the claimant.

- If accrued time the employer must re-credit the worker with the dollar amount of time that equals the workers’ compensation award.

171 -- Collective bargaining agreement may provide otherwise.

vii. Reduced Earnings.

- If the worker has a partial disability (some earning capacity) and returns to work at a wage lower than the average weekly wage, workers’ compensation rate is 2/3 of the difference between the AWW and the reduced earnings figure.

-- Example: Worker with AWW of $900 and partial disability returns to work earning $500. Reduction in earnings is $400 ($900 - $500) and workers’ compensation rate is $266.67 ($400 x 2/3).

-- Note that work at reduced earnings may increase workers’ compensation rate (for example worker with $900 AWW gets $150 per week for mild partial disability when not working, but $266.67 per week when working and earning $500 per week. b. Permanent Disability Benefits.

i. Schedule Loss of Use.

- Tables in WCL § 15(3) provide value of limbs, vision, and hearing in weeks of compensation (for example an arm = 312 weeks).

- Schedule loss is the percent of those weeks equal to the percentage loss of function of the member (for example a 10% schedule loss of use of the arm = 31.2 weeks of compensation).

- The award is the number of weeks of compensation according to the schedule multiplied by the worker’s maximum rate (2/3 of the AWW subject to the maximum rates).

- Prior payments of compensation and wages (all wages, not just at the compensation rate) are deducted from the award.

172 ii. Permanent Partial Disability.

- Usually for body parts not covered by the schedule loss provisions, such as neck, back, heart attack, lungs, etc.

-- Body parts covered by the schedule loss provisions may be “classified” permanent partial disabilities if they are found to be medically unstable.

- Awards are only payable for actual loss of earnings (not working or working at reduced earnings).

- Workers injured before March 13, 2007, can potentially be paid for life if found to be permanently disabled. Workers injured after March 13, 2007 are subject to a capped number of weeks. The number of weeks depends on the degree of disability (or loss of earning capacity) shown on the following table:

Degree of Disability = Weeks of benefits 96%-99% = 525 weeks. 91-95% = 500 weeks. 86-90% = 475 weeks. 81-85% = 450 weeks. 76-80% = 425 weeks. 71-75% = 400 weeks. 61-70% = 375 weeks. 51-60% = 350 weeks. 41-50% = 300 weeks. 31-40% = 275 weeks. 16-30% = 250 weeks. 1-15% = 225 weeks. iii. Permanent Total Disability.

- Worker must have a permanent loss of all earning capacity. Benefit rate is 2/3 of the AWW (subject to maximum rate) payable weekly, not subject to the caps.

- Workers with a medical partial disability may be “totally industrially disabled” due to vocational factors such as age, education, experience, language barrier, etc.

173 c. Death Benefits

i. Death benefits are payable to surviving spouse, children under 18, children under 23 who are enrolled full-time in an accredited academic institution, totally disabled or blind and dependent children of any age.

ii. Benefits may also be paid to totally disabled or blind and dependent siblings, grandchildren or parents.

iii. If no spouse or dependents, “no dependency” award of $50,000 is to parents, if none to estate.

iv. Death benefit is same as total disability benefit rate.

v. Funeral expenses also payable subject to cap (downstate amount = $6,000).

d. Medical Treatment

- All medical expenses related to the accident are payable by the workers’ compensation carrier.

- No pre-authorization is required for specialized services costing less than $1,000.

-- But worker is required to use carrier-selected facility for diagnostic tests such as X-ray and MRI.

-- Over $1,000 carrier must either approve test or deny based on an IME within 30 days of the day it receives the request.

--- If carrier does not respond, doctor must file form MD-1.

- Medical treatment is covered for established injuries for life. e. Section 32 Settlements.

i. Worker may opt to settle some or all of the issues in the case in exchange for a one-time payment by the carrier.

- Must be carefully considered depending on the individual worker’s situation.

174 4. Procedure.

a. Indexing.

i. WCB “assembles” a claim upon receipt of a “FROI”, C-3 or C-4.

ii. WCB will “index” only when a C-4 is received.

iii. Carrier must respond to indexing by filing either a FROI or SCROI either accepting the claim) or contesting the claim.

b. Non-hearing resolutions.

i. If the claim is not contested, the Board is likely to issue an administrative or a proposed decision without holding a hearing.

- Workers often lose schedule loss and other awards if they are not represented because of these decisions.

- Administrative and Proposed decisions usually establish the injured body parts, the AWW, the period of time out of work, and reimbursement to the employer.

-- Findings are sometimes wrong or incomplete.

c. Hearings.

i. Scheduled in controverted cases, due to an objection to an administrative or proposed decision, or the request of a party.

- Claimants request a hearing using form RFA-1.

- Carriers request a hearing using form RFA-2.

ii. Following a hearing an EC-23 Notice of Decision is issued.

- The date the decision is “filed” is often a few days after the hearing.

iii. The carrier has 10 days to pay an award (plus 5 days for mailing) from the date the decision is filed.

- Late payment penalty is 20% of the money due.

iv. The carrier (or the claimant) has 30 days to appeal the decision (plus 5 for mailing) from the date the decision is filed.

175 - Lesson: Do not call the carrier about late payment or nonpayment until more than 35 days after the date the decision is filed. It may cause an appeal to avoid a late payment penalty. d. Appeals.

i. Appeals go to the Office of Appeals in Albany.

- There is no time limit on how long it can take the Office of Appeals to decide a case.

176 Lien Issues

Any time there is a workers’ compensation case and a third-party case, there are workers’ compensation lien issues to consider. The recent Court of Appeals decision in

Burns v. Varriale has limited the application of the rule in Kelly v. State Insurance Fund

to cases involving death or permanent total disability.

The vast majority of workers’ compensation claims involving ongoing weekly

payments are permanent partial disability claims, to which the Kelly principle no longer

applies. Thus, there should be no longer be “Kelly language” in workers’ compensation

carrier consent letters.

The landscape of workers’ compensation lien issues has also been affected by the

March, 2007 amendments to the Workers’ Compensation Law. We re-print below the

text of two relevant articles published in the New York Law Journal: Recent Changes to

Workers' Comp and 'Kelly' Negotiations, NYLJ 5/23/07 and Kelly’s Application for

Permanent Partial Disability Ends, NYLJ 11/26/07.

177 Recent Changes to Workers' Comp and 'Kelly' Negotiations

By: Robert E. Grey Grey & Grey, LLP

When an employee is injured on the job, his or her sole remedy against the employer is a claim for workers compensation benefits.1 The employee is, however, permitted to bring a personal injury action against any potentially liable third party to the employment relationship.2 Such lawsuits are known as “third-party actions,” and may occur as a result of motor vehicle accidents, violations of the Labor Law, premises or product defects, and medical or legal malpractice claims, among other circumstances.3

Attorneys who represent injured workers in third-party actions must be familiar with Workers’ Compensation Law Section 29, which covers the rights and obligations of the attorney and the workers’ compensation carrier. As a threshold matter, the attorney may not settle or discontinue the third-party action without the written consent of the carrier.4 The carrier has an interest in the third-party action as a matter of law, and thus its rights may not be impaired without its written consent.5

The carrier’s interests are its right to a lien for payments made prior to the date of settlement or judgment in the third-party action6 and its right to take credit for the worker’s net third-party recovery against future workers’ compensation payments.7 These rights are not, however, unlimited.

1 WCL §11. An exception is where the injury was the result of an intentional tort. See, e.g., Oben v. Charmer Ind., 37 A.D.3d 791; 2007 N.Y. App. Div. LEXIS 2320 (2nd Dept. 2007) 2 WCL §29(1) 3 See, e.g., Buck v. Graphic Arts Mutual Ins. Co., 19 A.D.3d 966; 799 N.Y.S.2d 289 (3rd Dept. 2005) (motor vehicle); Reinitz v. Arc Elec. Constr. Co., Inc., 104 A.D.2d 247; 483 N.Y.S.2d 821 (3rd Dept. 1984) (Labor Law); Place v. Ryder, 2 A.D.3d 961; 767 N.Y.S.2d 689 (3rd Dept. 2003) (premises liability); General Aniline & Film Corp. v. A. Schrader & Son, Inc., 13 A.D.2d 359; 215 N.Y.S.2d 861 (3rd Dept. 1961) (products liability); Prentice v. Levy, 27 A.D.3d 970; 813 N.Y.S.2d 234 (3rd Dept. 2006) (medical malpractice); McDowell v. LaVoy, 63 A.D.2d 358; 408 N.Y.S.2d 148 (3rd Dept. 1968) (legal malpractice). 4 WCL §29(5) 5 See, e.g., Durham v. Barker Chem. Corp., 151 A.D.2d 887, 543 N.Y.S.2d 182 (3rd Dept. 1989) 6 WCL §29(1) 7 WCL §29(4)

178 If the circumstances of the accident would have implicated No-Fault insurance coverage (such as the use and operation of a motor vehicle, or a collision involving two covered persons), then the workers’ compensation carrier has neither a lien nor a credit to the extent that its payments are equivalent to basic economic loss under the Insurance Law.8 Basic economic loss includes wage loss payments less than $2,000 per month within three years of the accident date or a combination of wage loss and medical payments totaling less than $50,000.9 It should be noted, however, that the compensation carrier retains the right to consent even in the absence of a present lien or credit.10 Failure to obtain consent in these circumstances may result in the forfeiture of future workers’ compensation benefits and an action against the erring attorney.11

In addition, the compensation carrier’s right to recover its lien is offset by its obligation to contribute its equitable share of the litigation expense incurred in obtaining the third-party recovery.12 The Court of Appeals decision in Matter of Kelly v. State Insurance Fund established that where the compensation carrier is relieved from future liability as a result of a third-party settlement, that must be considered a benefit to the carrier when determining its equitable share of the litigation expense.13 In order to apply the Kelly principle, the compensation carrier’s lien must be added to the present value of its future liability. The combination of the two is considered the “total benefit” to the carrier from the third-party settlement. That total benefit can then be compared to the third-party settlement amount and a ratio obtained. The compensation carrier’s lien is then reduced by that ratio multiplied by the litigation expense.

8 WCL §29(1-a). See also Dietrick v. Kemper Ins. Co., 76 N.Y.2d 248, 556 N.E.2d 1108, 557 N.Y.S.2d 301 (1990) 9 Dietrick, supra, Johnson v. Buffalo & Erie County Private Ind. Council, 84 N.Y.2d 13; 636 N.E.2d 1394; 613 N.Y.S.2d 861(1994) 10 Parmelee v. Int’l Paper Co., 157 A.D.2d 878, 550 N.Y.S.2d 150 (3rd Dept. 1990); Durham v. Barker Chem. Corp., 151 A.D.2d 887, 543 N.Y.S.2d 182 (3rd Dept. 1989); Burton v. ITT Cont. Baking Co., 93 A.D.2d 921, 462 N.Y.S.2d 335 (3rd Dept. 1983). 11 Id. 12 WCL §29(1); Matter of Kelly v. Commissioners of the State Insurance Fund, 60 N.Y.2d 791, 456 N.E.2d 131, 468 N.Y.S.2d 850 (1983). 13 Kelly, supra.

179 By way of example, assume a third-party action settlement of $350,000. The third-party attorney’s disbursements are $5,000 and the legal fee is $115,000, for a total litigation expense of $120,000. The compensation carrier’s lien is $120,000 and the plaintiff is a 50 year old man receiving permanent partial disability benefits at a rate of $300 per week. Using the tables found in the appendix to the Pattern Jury Instructions, the plaintiff’s life expectancy is about 26 years and (using a discount rate of 4%) the annual benefit amount of $15,600 has a present value about $245,000.14 Thus, the lien ($120,000) plus the present value of the future liability ($245,000) exceeds the $350,000 third-party settlement. As the “total benefit” to the compensation carrier exceeds 100%, its equitable share of the litigation expense is 100%. Reducing the lien of $120,000 by the full litigation expense of $120,000, the lien is entirely extinguished. The plaintiff’s net recovery is $230,000, against which the compensation carrier will take a credit, resuming payments (known as “deficiency compensation”) if and when the credit is exhausted.

The recent amendments to the Workers’ Compensation Law will have a significant impact on negotiations under Kelly. For the past 15 years, the maximum weekly workers’ compensation benefit has been $400. For accidents on or after July 1, 2007 that figure will rise to $500, with additional increases to $550 for accidents on or after July 1, 2008 and $600 for accidents on or after July 1, 2009. As of July 1, 2010, the maximum weekly benefit rate will be tied to the New York State average weekly wage, which is anticipated to result in a maximum benefit rate of at least $650, which will then rise annually thereafter.15

One result of the increase in the maximum benefit will be to create workers’ compensation liens in motor vehicle cases that did not previously exist. The current $400 maximum benefit is $1,733.33 per month, which is less than the basic economic loss

14 The recent decision of the Appellate Division, Third Department in Burns v. Varriale, 34 A.D.3d 59; 820 N.Y.S.2d 655 (3rd Dept. 2006) casts some doubt on whether a Kelly calculation is appropriate in a case of permanent partial disability. However, the Court of Appeals has granted leave to appeal this decision. 2007 N.Y. LEXIS 136 (2/15/2007) 15 WCL §15(6), as amended 3/13/07.

180 amount of $2,000 per month. When the weekly benefit rises to $500, however, the figure is $2,166.66 per month - $166.66 per month more than basic economic loss. At $550 per week the excess is $383.33 per month, and at $600 per week it is $600 per month. To the extent that workers’ compensation payments exceed $2,000 per month, the excess is not equivalent to basic economic loss, and thus becomes a lien on third-party settlements. Practitioners who have become accustomed to the absence of workers’ compensation liens in vehicular accidents must beware this new pitfall.

Another result of the increase in the maximum benefit will be to increase workers’ compensation lien amounts, particularly for high-wage workers.16 However, the recent amendments also impose time limits on awards for permanent partial disability. Workers injured after March 13, 2007 who are permanently partially disabled are no longer entitled to lifetime payments. Instead, the law now includes a scale of time limits ranging from four to ten years, depending on the level of permanent disability.17

Just as the increase in the maximum benefit will increase workers’ compensation liens, the time limits on permanent partial disability awards will reduce the present value of future liability. The combination of the two may seriously impair a third-party attorney’s ability to negotiate workers’ compensation liens under Kelly.

To return to the example above, the increase in the maximum benefit could well result in a compensation lien of $150,000 instead of $120,000. If the worker was found to be 50% disabled, then he would only be entitled to 300 weeks of permanent partial disability benefits – 20 years less than his life expectancy. The present value of the future liability is now only about $83,000, making the total benefit to the carrier $233,000 (compared to the former $365,000), which is 66% of the value of the third- party settlement. The compensation carrier is thus responsible for 66% of the litigation expense of $120,000, or $80,000, reducing the lien from $150,000 to $70,000. The

16 An injured worker’s maximum benefit rate is two-thirds of his or her average weekly wage. Therefore, those who earn $600 per week or less do not benefit from the increased maximum benefit. 17 WCL §15(3)(w), as amended 3/13/07.

181 plaintiff’s net third party recovery is now $160,000, against which the carrier will take credit as discussed above. This is, of course, a substantially lower net recovery to the plaintiff.

There are other ways that the changes in the Workers’ Compensation Law will impact third-party settlements. It is anticipated that the new time limitations on permanent partial disability awards, combined with other statutory amendments, will result in a significant increase in the final settlement of workers’ compensation claims. Should this occur, workers’ compensation liens will increase dramatically due to the up- front payment of the settlement amount, and the compensation carrier’s future liability will simultaneously be eliminated in its entirety. This is the “perfect storm” from the perspective of the third-party attorney, because the combination of dramatically increased lien amounts and the removal of Kelly leverage may render many third-party cases incapable of settlement.

It is likely to be several years before the effects of the recent amendments to the Workers’ Compensation Law are seen either at the Workers’ Compensation Board or in third-party actions. However, in evaluating a potential third-party case today, it would be wise to consider the extent and negotiability of the lien that will exist tomorrow.

182 Kelly’s Application for Permanent Partial Disability Ends

By: Robert E. Grey Grey & Grey, LLP

On October 11, 2007, the Court of Appeals limited its 1983 decision in Matter of Kelly v. State Insurance Fund18 to cases of permanent total disability and death, ending its application in cases involving permanent partial disability. This decision, Matter of Burns v. Varriale,19 will have a significant impact on attorneys, injured workers, and workers’ compensation carriers involved in personal injury litigation. Where an injured worker pursues a workers’ compensation claim against the employer and also sues a third party as permitted by Workers’ Compensation Law §29(1), the compensation carrier has a lien for benefits paid prior to the date of the third- party settlement (or judgment) and is also entitled to take credit for the injured worker’s net third-party recovery against future workers’ compensation benefits.20 The compensation carrier thus reaps two benefits from the third-party recovery, and is obligated to pay its proportionate share of the litigation expense associated with obtaining that recovery. The rule in Kelly called for this to be accomplished by adding the compensation carrier’s lien to the present value of its future liability, comparing the total to the third-party recovery, and charging the compensation carrier with a like percentage of the third-party litigation expense. The compensation carrier’s lien was then reduced by the resulting figure. In Burns, the Court of Appeals upheld a determination by the Third Department21 that the present value of future workers’ compensation benefits payable for permanent partial disability is speculative, and that therefore the compensation carrier’s lien should not be reduced by the present value of its future liability. The Court observed that a permanently partially disabled worker may return to work, or may be found to have “voluntarily withdrawn from the labor market,” and that these eventualities may result in the reduction or suspension of workers’ compensation benefits.

18 60 N.Y.2d 791, 456 N.E. 2d 131, 468 N.Y.S.2d 850 (1983) 19 Court of Appeals, 10/11/07. 20 WCL Section 29(4) 21 Burns v. Varriale, 34 A.D.3d 59, 820 N.Y.S.2d 655 (3rd Dept. 2006)

183 The result of this holding is that in cases of permanent partial disability, the compensation carrier’s lien can no longer be reduced by reference to the present value of the compensation carrier’s future liability. In short, it is the end of Kelly in such cases. The Court recognized, however, that there are likely to be cases in which the injured worker would have remained entitled to workers’ compensation benefits but for the third-party recovery, and that in such circumstances the compensation carrier must still be charged with its proportionate share of the third-party litigation expense. The Court suggests that the “the trial court, in the exercise of its discretion, can fashion a means of apportioning litigation costs as they accrue.” In the decision below, however, the Third Department had suggested that this be left to the Workers’ Compensation Board, and this may be the more effective procedure. An example may be instructive in differentiating the difference between the Kelly mechanism and a likely Burns mechanism. Assume that the injured worker is a 45 year old man and that he has been found to be permanently partially disabled with a weekly benefit rate of $300. Assume further that the third-party action has been settled (with the compensation carrier’s consent) for $150,000 and that the third-party litigation expense (legal fee and disbursements) is $53,333.33. Lastly, assume a workers’ compensation lien of $75,000. Under Kelly, the present value of the compensation carrier’s future liability would exceed $75,000, and thus the lien plus the present value of the future liability would exceed the third-party settlement.22 The compensation carrier would therefore be responsible for the entire litigation expense of $53,333.33, and its lien would be reduced from $75,000 to $21,666.67. As a result, the plaintiff’s net third-party recovery after deduction of the litigation expense and the compensation lien would be $75,000 and the compensation carrier would make no further payments for 250 weeks (250 weeks x $300 = $75,000). In week 251, workers’ compensation payments would resume at $300 per week.23 Under Burns, however, the compensation carrier’s lien is only reduced by the percentage that the third-party litigation expense bears to the third-party recovery,

22 This would render the case a so-called “deficiency” case. 23 Assuming that the worker remained entitled to benefits during the entire period.

184 without regard to the present value of future liability. In our example, the third-party litigation expense is 35.56% of the recovery ($53,333.33/$150,000). Therefore, the compensation carrier’s lien is reduced by $26,670 ($75,000 x .3556) to $48,330. As a result, the plaintiff’s net recovery is now $48,446.67 instead of $75,000. As before, the compensation carrier is entitled to take credit for the net third-party recovery, but it is now obligated to reimburse the claimant its share of the remaining third-party litigation expense as workers’ compensation payments become due. In our example, the carrier has only paid $26,670 (the amount of the lien reduction) towards the third-party litigation expense of $53,333.33. This leaves the carrier with a potential outstanding obligation of $26,663.33. The extent to which the carrier must meet this obligation depends on how long the claimant remains entitled to compensation. If the claimant’s entitlement to compensation benefits continues, then under the Third Department’s mechanism the carrier would initially have to pay the claimant $106.68 for each week that the $300 rate is in effect. This figure results from the fact that $106.68 is 35.56% of $300, which is the ratio the third-party litigation expense bears to the third-party recovery. If there is no change in the claimant’s entitlement to compensation benefits, the carrier would continue to pay $106.68 per week for 250 weeks before its payments ($26,633.33) plus the amount of its lien reduction ($26,670) reach the third-party litigation expense of $53,333.33. During this period the unpaid portion of the weekly compensation award would be $193.32 per week ($300 minus $106.68 = $193.32), which after 250 weeks would total $48,330, nearly exhausting the claimant’s net third party recovery. Thus, just as in the Kelly scenario, under Burns compensation payments would resume at the full $300 weekly rate 251 weeks after the 3rd party settlement. It will therefore be seen that the principal effect of the Court of Appeals decision in Burns will be to reduce the net third-party recoveries of permanently partially disabled workers, possibly impacting the ability of personal injury practitioners to settle cases. In addition, the decision is likely to require post-settlement proceedings before the Workers’ Compensation Board to adjust the compensation carrier’s obligation to pay the third- party litigation expense.

185 Taken together with recent amendments to the Workers’ Compensation Law,24 it appears that we have reached the end of Kelly and the beginning of the next chapter of workers’ compensation lien litigation.

24 See Recent Changes to Workers’ Comp and ‘Kelly’ Negotiations, NYLJ 5/23/07

186 Employee Claim C-3 State of New York - Workers' Compensation Board Fill out this form to apply for workers' compensation benefits because of a work injury or work-related illness.Type or print neatly. This form may also be filled out on-line at www.wcb.ny.gov. WCB Case Number (if you know it): A. YOUR INFORMATION (Employee) 1. Name: 2. Date of Birth: ______/______/______First MI Last 3. Mailing address: Number and Street/PO Box/Apartment No. City State Zip Code - - 4. Social Security Number: 5. Phone Number: (_____)______6. Gender: Male Female 7. Will you need a translator if you have to attend a Board hearing? Yes No If yes, for what language? B. YOUR EMPLOYER(S) 1. Employer when injured: 2. Phone Number: (_____)______3. Your work address: Number and Street City State Zip Code 4. Date you were hired: _____/_____/_____ 5. Your supervisor's name:

6. List names/addresses of any other employer(s) at the time of your injury/illness:

7. Did you lose time from work at the other employment(s) as a result of your injury/illness? Yes No C. YOUR JOB on the date of the injury or illness 1. What was your job title or description? 2. What types of activities did you normally perform at work?______

3. Was your job? (check one) Full Time Part Time Seasonal Volunteer Other:______4. What was your gross pay (before taxes) per pay period? 5. How often were you paid? 6. Did you receive lodging or tips in addition to your pay? Yes No If yes, describe:

D. YOUR INJURY OR ILLNESS 1. Date of injury or date of onset of illness: ______/______/______2. Time of injury: AM PM

3. Where did the injury/illness happen? (e.g., 1 Main Street, Pottersville, at the front door)

4. Was this your usual work location? Yes No If no, why were you at this location?

5. What were you doing when you were injured or became ill? (e.g., unloading a truck, typing a report) ______

6. How did the injury/illness happen? (e.g., I tripped over a pipe and fell on the floor)

7. Explain fully the nature of your injury/illness; list body parts affected (e.g., twisted left ankle and cut to forehead):______

187

THE WORKERS' COMPENSATION BOARD EMPLOYS AND SERVES PEOPLE C-3.0 (1-11) Page 1 of 2 WITH DISABILITIES WITHOUT DISCRIMINATION www.wcb.ny.gov YOUR NAME:______DATE OF INJURY/ILLNESS: ______/______/______First MI Last D. YOUR INJURY OR ILLNESS continued 8. Was an object (e.g., forklift, hammer, acid) involved in the injury/illness? Yes No If yes, what? 9. Was the injury the result of the use or operation of a licensed motor vehicle? Yes No If yes, your vehicle employer's vehicle other vehicle License plate number (if known): If your vehicle was involved, give name and address of your motor vehicle insurance carrier:

10. Have you given your employer (or supervisor) notice of injury/illness? Yes No If yes, notice was given to: ______orally in writing Date notice given: _____/_____/_____ 11. Did anyone see your injury happen? Yes No Unknown If yes, list names:______

E. RETURN TO WORK 1. Did you stop work because of your injury/illness? Yes, on what date? _____/_____/_____ No , skip to Section F.

2. Have you returned to work? Yes No If yes, on what date? _____/_____/_____ regular duty limited duty 3. If you have returned to work, who are you working for now? Same employer New employer Self employed 4. What is your gross pay (before taxes) per pay period? How often are you paid? F. MEDICAL TREATMENT FOR THIS INJURY OR ILLNESS 1. What was the date of your first treatment? ______/______/______None received (skip to question F-5) 2. Were you treated on site? Yes No 3. Where did you receive your first off site medical treatment for your injury/illness? none received Emergency Room Doctor's office Clinic/Hospital/Urgent Care Hospital Stay over 24 hours Name and address where you were first treated: Phone Number: (_____)______4. Are you still being treated for this injury/illness? Yes No Give the name and address of the doctor(s) treating you for this injury/illness: Phone Number: (_____)______5. Do you remember having another injury to the same body part or a similar illness? Yes No If yes, were you treated by a doctor? Yes No If yes, provide the names and addresses of the doctor(s) who treated you and COMPLETE AND FILE FORM C-3.3 TOGETHER WITH THIS FORM:

6. Was the previous injury/illness work related? Yes No If yes, were you working for the same employer that you work for now? Yes No I am hereby making a claim for benefits under the Workers' Compensation Law. My signature affirms that the information I am providing is true and accurate to the best of my knowledge and belief. Any person who knowingly and with INTENT TO DEFRAUD presents, causes to be presented, or prepares with knowledge or belief that it will be presented to, or by an insurer, or self-insurer, any information containing any FALSE MATERIAL STATEMENT or conceals any material fact, SHALL BE GUILTY OF A CRIME and subject to substantial FINES AND IMPRISONMENT.

Employee's Signature: Print Name: Date: _____/_____/_____ On behalf of Employee: Print Name: Date: _____/_____/_____ An individual may sign on behalf of the employee only if he or she is legally authorized to do so and the employee is a minor, mentally incompetent or incapacitated. I certify to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that the allegations and other factual matters asserted above have evidentiary support, or are likely to have evidentiary support after a reasonable opportunity for further investigations or discovery. Signature of Attorney/Representative (if any): Date: ______/______/______Print Name: 188 Title: ID No., if any: R If Licensed Representative, License No.: Expiration Date: ______/______/______C-3.0 (1-11) Page 2 of 2 Limited Release of Health Information (HIPAA) C-3.3 State of New York - Workers' Compensation Board WCB Case No. (if you know it):______To Claimant: If you received treatment for a previous injury to the same body part or for an illness similar to the one described in your current Claim, fill out this form. This form allows the health care providers you list below to release health care information about your previous injury/ illness to your employer's workers' compensation insurer. The federal HIPAA law (Health Insurance Portability and Accountability Act of 1996) says you have a right to get a copy of this form. If you do not understand this form, talk to your legal representative. If you do not have a legal representative, the Advocate for Injured Workers at the Workers' Compensation Board can help you. Call: 800-580-6665. To Health Care Provider: A copy of this HIPAA-compliant release allows you to disclose health information. If you send records to the employer's workers' compensation insurer in response to this release, also mail copies to the Claimant's legal representative. (If no legal representative is listed below, send copies to the Claimant.) Health care providers who release records must follow New York state law and HIPAA. This release is: This form does NOT allow your health care provider(s) Voluntary. Your health care provider(s) must give you the same care, to release the following types of information: payment terms, and benefits, whether you sign this form or not. Limited. It gives your health care provider(s) permission to release only those health records that are related to the previous illness/condition you HIV-related information describe below. Temporary. It ends when your current claim for compensation is established Psychotherapy notes or disallowed and all appeals are exhausted. Revocable. You can cancel this release at any time. To cancel, send a letter Alcohol/Drug treatment to the health care provider(s) listed on this form. Also, send a copy of your letter to your employer's workers' compensation insurer and the Workers' Mental Health treatment (unless you check below) Compensation Board. Note: You may not cancel this release with respect to medical records already provided. For records only. It gives your health care provider(s) listed on this form Verbal information (your health care providers may not discuss your health care information with anyone) permission to send copies of your health care records to your employer's workers' compensation insurer. Any medical records released will become part of your workers' compensation file and are confidential under the Workers' Compensation Law. A. YOUR INFORMATION (Claimant) 1. Name:______2. Social Security Number:______-_____-______3. Mailing Address: ______4. Date of Birth: ______/______/______5. Date of the current injury/illness: ______/______/______6. Current injury/illness, including all body parts injured:______7. Your legal representative's name and address (if any):______Check here if you allow your health care provider(s) to release mental health care information. B. YOUR HEALTH CARE PROVIDER(S) (List all health care providers who treated you for a previous injury to the same body part or similar illness. If more than 2 providers attach their contact information to this form.) 1. Provider:______2. Phone Number: (______)______3. Mailing Address: ______4. Other provider (if any):______5. Phone Number: (______)______6. Mailing Address:______C. READ AND SIGN BELOW. I hereby request that the health care provider(s) listed above give my employer's workers' compensation insurer copies of all health records related to any previous injury/illness, to all body parts, described above.

______Claimant's signature (ink only -- use blue ballpoint pen, if possible.) Date If the claimant is unable to sign, the person signing on his/her behalf must fill out and sign below:

______Your name Relationship to Claimant Signature189 (ink only -- use blue ballpoint pen, if possible.) Date Versión en español al reverso de la forma. C-3.3 (12-09) www.wcb.ny.gov Divulgación limitada de información sobre la salud (HIPAA) C-3.3 Estado de NuevaYork - Junta de Compensación Obrera (WCB) WCB Case No. (if you know it) (Número de caso WCB [si lo sabe]) Al reclamante: Si usted recibió tratamiento por una lesión anterior en la misma parte del cuerpo o por una enfermedad similar a la que motiva ahora su reclamación, complete este formulario. Este formulario les permite a los proveedores de salud que usted señala a continuación divulgar a la compañía de seguros de compensación obrera de su empleador la información sobre su salud relacionada con su lesión/enfermedad anterior. La Ley federal HIPAA (Ley de portabilidad y responsabilidad del seguro de salud de 1996) establece que usted tiene derecho a recibir una copia de este formulario. Si no comprende este formulario, hable con su representante legal. Si no tiene un representante legal, el Representante de los obreros lesionados de la Junta de Compensación Obrera puede ayudarlo. Llame al 800-580-6665. Al proveedor de salud: Una copia de esta divulgación, redactada según lo que establece la ley HIPAA, le permite divulgar información sobre la salud. Si envía los registros al asegurador de compensación obrera del empleador en respuesta a la presente divulgación, también debe enviar por correo copias al representante legal del reclamante. (Si a continuación no se especifica un representante legal, envíe las copias al reclamante). Los proveedores de salud que divulgan los registros deben cumplir con las leyes del estado de Nueva York y la HIPAA. Esta divulgación es: Este formulario NO autoriza a su(s) proveedor(es) de Voluntaria. Su(s) proveedor(es) de salud deben otorgarle la misma atención, condiciones de pago y beneficios, independientemente de que salud a divulgar los siguientes tipos de información: usted firme este formulario o no. Limitada. Le otorga a su(s) proveedor(es) de salud permiso para divulgar Información relacionada con el VIH únicamente los registros médicos que se relacionen con la enfermedad/ afección anterior que usted describe a continuación. Temporal. Termina cuando se otorgue o desestime su actual reclamación Notas de terapia psicológica de compensación y se hayan agotado todas las apelaciones. Revocable. Usted puede cancelar esta divulgación en cualquier momento. Tratamientos por abuso de alcohol o drogas Para hacerlo, envíe una carta al (a los) proveedor(es) de salud que se indican en este formulario. Además, envíe una copia de su carta a la compañía de seguros de compensación obrera de su empleador y a la Junta Tratamiento de salud mental (a menos que usted lo de Compensación Obrera. Nota: No podrá cancelar esta divulgación en lo indique a continuación) que se refiere a registros médicos que ya se hayan provisto. Solamente para registros. Le otorga a su(s) proveedor(es) de salud que se indica(n) en este formulario permiso para enviar copias de sus registros de Información verbal (sus doctores no pueden hablar salud a la compañía de seguros de compensación obrera de su empleador. con nadie sobre su información de salud) Los registros médicos divulgados se incorporarán a su expediente de compensación obrera y son confidenciales conforme a la Ley de compensación obrera. CONTESTA LAS SIGUIENTES PREGUNTAS, EN INGLÉS SI ES POSIBLE, EN LOS ESPACIOS PROVISTOS Y FIRMA AL FRENTE DE LA FORMA. A. YOUR INFORMATION (Claimant) INFORMACIÓN PERSONAL (Reclamante) 1. Name (Nombre) 2. Social Security Number (Número de seguro social) 3. Mailing Address (Dirección postal) 4. Date of Birth (Fecha de nacimiento) 5. Date of the current injury/illness (Fecha de la lesión/enfermedad actual) 6. Current injury/illness, including all body parts injured (Descripción de la lesión/enfermedad actual, incluyendo todas las partes del cuerpo lesionadas) 7. Your legal representative's name and address (if any) (Nombre y dirección de su representante legal [si corresponde]) Check here if you allow your health provider(s) to release mental health care information. (Marque aquí si autoriza a su(s) proveedor(es) de salud a divulgar información sobre tratamientos de salud mental.) B. YOUR HEALTH CARE PROVIDERS (List all health care providers who treated you for a previous injury to the same body part or similar illness. If more than 2 providers, attach their contact information to this form. SU(S) PROVEEDOR(ES) DE SALUD (Enumere todos los proveedores de salud que le han tratado por lesiones previas a las mismas areas del cuerpo ó por enfermedades semejantes.Si son más de 2 proveedores, adjunte su información de contacto a este formulario.) 1. Provider (Proveedor de salud) 2. Phone Number (No de teléfono) 3. Mailing Address (Dirección postal) 4. Other provider (if any) (Otro proveedor [si corresponde]) 5. Phone Number (No de teléfono) 6. Mailing Adress (Dirección postal) C. READ AND SIGN BELOW I hereby request that the health care provider(s) listed above give my employer's workers' compensation insurer copies of all health records related to any previous injury/illness, to all body parts, described above. LEA Y FIRME A CONTINUACIÓN. Por la presente solicito que los proveedores de salud aquí enumerados le provean al asegurador de compensación obrera de mi patrono copias de todos los records médicos relacionados a cualquier lesión/enfermedad aquí enumeradas. If the claimant is unable to sign, the person signing on his/her behalf must fill out and sign below: (Si el reclamante no puede firmar, la persona que firme el formulario en su nombre y representación debe llenar y firmar a continuación) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Claimant's signature (Firma del reclamante ) use solo tinta - preferiblemente azul Date (Fecha) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx190 Your name (Su nombre) Relationship to Claimant (Relación con el reclamante) Signature(Firma) Date(Fecha) C-3.3 (12-09) www.wcb.ny.gov Instructions for Completing Form C-3, “Employee Claim” Please complete this form and send it to the Workers' Compensation Board centralized mailing address listed at the bottom of these instructions. If you need additional help in completing this form, contact the Workers' Compensation Board at 1-877-632-4996. You may also fill this form out online at: http://www.wcb.ny.gov/

If you do not have or know your Workers' Compensation Board Case Number, please leave this field blank. It is not required to process your claim. Remember to enter your name and the date of your injury/illness on the top of page two. Section A - Your Information (Employee): Item 1: Enter your full name, including first name, middle initial, and last name. Item 2: Enter your date of birth in month/day/year format. Include the four digit year. Item 3: Enter your mailing address, including P.O. Box, if applicable, city or town, state, and Zip code. Item 4: Enter your Social Security Number. This is very important to help service your claim faster. Item 5: Indicate the primary contact phone number, including area code. This may include a cell phone number. Item 6: Indicate your gender (Male or Female). Item 7: Board hearings are conducted in English. If you will need a translator to understand the proceeding, the Board will provide one. Check Yes and indicate the language needed.

Section B - Your Employer(s): Item 1: Indicate the employer you were working for at the time you were injured or became ill. Item 2: Enter the phone number for this employer, either a primary contact number or the number for your supervisor. Item 3: Enter the employer's address, including P.O. Box, if applicable, city or town, state, and Zip code. Item 4: Indicate the date you were hired by this employer. Item 5: Enter your direct supervisor's name, whom you report to on a regular basis. Item 6: If you have more than one job, please indicate the names and addresses of all other employers you work for besides the one you were injured at. Please attach a separate sheet if you need more room. Item 7: Check Yes if you lost time from any of your other jobs as a result of your injury or illness; otherwise, check No.

Section C - Your Job on the Date of the Injury or Illness: Item 1: Indicate your current job title or job description (e.g., warehouse worker). Item 2: Indicate your typical work activities for this job (e.g., keeping inventory, unloading trucks, etc.). Item 3: Check the type of job you had. Item 4: Enter your gross pay (before taxes) per pay period. Item 5: Indicate how often you received a paycheck (weekly, bi-weekly, etc.). Item 6: Indicate if you received any tips or lodging in addition to your regular pay. If you did, describe them.

Section D - Your Injury or Illness: Item 1: Enter the date when you were injured or the first date you noticed you became ill. Enter the date in month/day/year format. Include the four digit year. If this is an illness or occupational disease, then skip item 2. Item 2: Enter the time when the injury occurred. Check whether it was AM or PM. Item 3: Indicate the location where the injury/illness occurred, including the address of the building and the physical location in the building where the injury/illness happened. Item 4: Check whether this was your normal work location. If it was not, explain why you were at this location. Item 5: Describe in detail what you were doing at the time of the injury/illness (e.g., unloading boxes from a truck by hand). This explains the events leading up to the injury. Item 6: Describe in detail how the injury/illness occurred (e.g., I was lifting a heavy box off a truck). This should include all people and events involved in the injury/illness. Item 7: Indicate fully the nature and extent of your injury/illness, including all body parts injured. Be as specific as possible. (e.g., I strained my back trying to lift a heavy box. It hurts to bend over or hold even lighter objects now.) Item 8: Indicate if some object was involved in the accident OTHER THAN a licensed motor vehicle. Other objects may include a tool (e.g., hammer), a chemical (e.g., acid), machinery (e.g., forklift or drill press), etc. Item 9: Indicate if a licensed motor vehicle was involved in the accident. If so, check if the motor vehicle involved was yours, your employer's, or a third party's. Include the license plate number (if known). If your vehicle was involved, fill out the name and address of your automobile liability insurance carrier. Item 10: Check if you gave your employer or supervisor notice of your injury or illness. If so, indicate who you gave notice to as well as if it was orally or in writing. Include the date you gave notice. Item 11: Check if anyone else saw the injury happen. If anyone did see it, include their name(s).

Section E - Return to Work: Item 1: If you stopped working as a result of your work-related injury/illness, check Yes and indicate on what date you stopped working. If you have not stopped working, check No and skip to the next section. 191

C-3.0 (1-11) Section E - Return to Work (cont): Item 2: If you have since returned to work, check Yes. Also indicate on what date you started working again, as well as if you have returned to your Normal Duties or if you are on Limited or Restricted Duty. (If you have not returned to your full pre-injury or illness work duties, then you are on Limited Duty.) Item 3: If you have returned to work, indicate who you are working for now. Item 4: Enter your gross pay (before tax pay) per pay period for the job you are working at now. Indicate how often you are receiving a paycheck (weekly, bi-weekly, etc.). Section F - Medical Treatment for This Injury or Illness: Item 1: If you did not receive medical treatment for this injury/illness, check None Received and skip to item 5. Otherwise, enter the date you first received treatment for this injury/illness and complete the rest of this section. Item 2: Check if you were first treated on the job for this injury or illness. Item 3: Check the location where you first received off site medical treatment for your injury or illness. Include the name and address of the facility as well as the phone number (including area code). Item 4: If you are still receiving ongoing treatment for the same injury or illness, check Yes and indicate the name and address of the doctor(s) providing treatment as well as the phone number (including area code); otherwise check No. Item 5: If you believe you already had an injury to the same body part or a similar illness, check Yes and indicate if you were treated by a doctor for this injury or illness. If you were treated by a doctor, indicate the name(s) and address(es) of the doctor(s) whom provided care and complete and file Form C-3.3 together with this form. Item 6: If you had a previous injury or illness, check if your previous injury or illness was work-related. If Yes, check if the injury or illness happened while working for your current employer. Sign Form C-3 in the place provided for "Employee's Signature on page 2, print your name, and enter the date you signed the form. If a third-party is signing on behalf of the employee, that person should sign on the second signature line. If you have legal representation, your representative must complete and sign the attorney/representative's certification section on the bottom of page 2. What Every Worker Should Do in Case of On-The-Job Injury or Occupational Disease:

1. Immediately tell your employer or supervisor when, where and how you were injured. 2. Secure medical care immediately. 3. Tell your doctor to file medical reports with the Board and with your employer or its insurance carrier. 4. Make out this claim for compensation and send it to the Workers' Compensation Board centralized mailing address. Failure to file within two years after the date of injury may result in your claim being denied. If you need help in completing this form, contact the Workers' Compensation Board at 1-877-632-4996. 5. Go to all hearings when notified to appear. 6. Go back to work as soon as you are able; compensation is never as high as your wage. Your Rights:

1. Generally, you are entitled to be treated by a doctor of your choice, provided he/she is authorized by the Board. If your employer is involved in a preferred provider organization (PPO) arrangement, you must obtain initial treatment from the preferred provider organization which has been designated to provide health care services for workers' compensation injuries. 2. DO NOT pay your doctor or hospital. Their bills will be paid by the insurance carrier if your case is not disputed. If your case is disputed, the doctor or hospital must wait for payment until the Board decides your case. In the event you fail to prosecute your case or the Board decides against you, you will have to pay the doctor or hospital. 3. You are also entitled to be reimbursed for drugs, crutches, or any apparatus properly prescribed by your doctor and for carfares or other necessary expenses going to and from your doctor's office or the hospital. (Get receipts for such expenses.) 4. You are entitled to compensation if your injury keeps you from work for more than seven days, compels you to work at lower wages, or results in permanent disability to any part of your body. 5. Compensation is payable directly and without waiting for an award, except when the claim is disputed. 6. Injured workers or dependents of deceased workers may represent themselves in matters before the Board or may retain an attorney or licensed representative to represent them. If an attorney or licensed representative is retained, his/her fee for legal services will be reviewed by the Board and if approved will be paid by the employer or insurance company out of any compensation benefits due. Injured workers or dependents of deceased workers should not directly pay anything to the attorney or licensed representative representing them in a compensation case. 7. If you need help returning to work, or with family or financial problems because of your injury, contact the Workers' Compensation Board office nearest you and ask for a rehabilitation counselor or social worker. This form should be filed by sending directly to the address listed below:

New York State Workers' Compensation Board Centralized Mailing PO Box 5205 Binghamton, NY 13902-5205

Customer Service Toll-Free Number: 877-632-4996 192 C-3.0 (1-11) 193 194 195 Important:

This form is signed under penalty of perjury.

196 AUTHORIZATION FOR SPECIAL SERVICES IS NOT REQUIRED IN AN EMERGENCY

197 198 E-Discovery in New York State and Federal Courts

Steven C. Bennett, Esq.

Materials for this program are posted at www.nysba.org/December2015BTGMaterials

199 200 Biographies

201 202 Steven C. Bennett, Esq.

Park Jensen Bennett LLP Partner 40 Wall Street 41st Floor New York, NY 10005 (646) 200-6345 [email protected]

Steven C. Bennett's practice focuses on complex domestic and international commercial litigation and arbitration, including bankruptcy, construction, corporate governance, data security, energy, privacy, real estate and other matters. Mr. Bennett gained extensive trial experience during six years at the Office of the United States Attorney for the Southern District of New York, where he served as Chief of the Tax and Bankruptcy Unit, and nearly twenty years as a partner in a major international law firm.

• Counsel to Chapter 11 Trustee in bankruptcy proceedings involving alleged financial impropriety • Counsel to hedge fund defendants in clawback litigation involving an alleged Ponzi scheme • Counsel to major creditor (and unsecured creditors committee member), in bankruptcy proceedings involving two evidentiary hearings regarding approval of multi-lateral settlement terms • Counsel to telecommunication company in defense of claims by terminated dealer, including week-long arbitration hearing • Counsel to multinational company in US and South American litigation involving indemnification provisions in an acquisition transaction • Counsel to manufacturer on appeal from arbitration award involving former executives of the company • Counsel to American company bringing claims against foreign software provider, including week-long arbitration hearing • Special counsel to debtor in connection with claims against company based on foreign law, including two-day hearing on foreign law issues • Counsel to major creditor in support of plan confirmation, over valuation objections, including multi-day hearings • Counsel to company in defense of shareholder litigation focused on merger transaction • Counsel to manufacturer in defense of product liability and contract breach claims • Counsel to manufacturer in cost sharing and pricing dispute with co-venturer • Counsel to manufacturer in connection with tax-sharing agreement attendant to merger transaction • Counsel to debtor in connection with evidentiary hearings and expedited appeal on Section 363 sale of assets • Counsel to major creditor in opposition to plan exclusivity, including two-day hearing • Counsel to company on claims against service supplier for breach of contract • Counsel to developer on claim for breach of architect agreement • Counsel to American financial institution on claims of fraud against foreign financial institution • Counsel to debtor, rejecting request for rescission of plan confirmation • Counsel to real estate developer on claims by lender for rescission of lending/development agreement • Counsel to debtor on environmental, tax and employment claims, including multi-day evidentiary hearings • Counsel to power producer on claims against distributor, for breach of energy supply contract, including two-week trial, and appeal • Counsel to foreign manufacturer in defense of claims by American company for alleged breach of machinery supply contract • Counsel to entertainment company for alleged breach of buy-out agreement, including week-long trial, and appeal • Counsel to committee on debtor's motion to modify wages and benefits, including multiday evidentiary hearing • Counsel to entertainment company, on claims against seller of real estate, for breach of contract • Counsel to foreign transportation company in defense of claims based on Alien Tort statute, including motion to dismiss and appeal • Counsel to private equity fund in defense of claims by shareholders in company arising out of investment in company • Counsel to interim receiver in cross-border insolvency proceedings • Counsel to foreign financial institution in defense of securities law claims arising out of financing at American company • Counsel to construction consortium on enforcement of arbitration award against foreign energy company • Counsel to architectural firm in defense of claims arising out of alleged defects in construction at manufacturing facility • Counsel to amicus in connection with Supreme Court proceedings on privacy claims 203

204 Matthew Br emner, Esq.

Harrington, Ocko & Monk, LLP Managing Partner 81 Main Street Suite 215 White Plains, NY 10601 914- 686-4800 [email protected]

As an integral part of the insurance defense team at Harrington, Ocko & Monk, LLP, Matthew Bremner has worked on a broad range of negligence-based claims, including construction site accidents, toxic torts, alleged improper operation and maintenance of equipment and facilities, negligent security, products liability, slip-and-falls, automobile accidents, and other negligence- based claims. Mr. Bremner is involved with all aspects of litigation from pre-suit investigation through the completion of discovery and pretrial preparation. Additionally, Mr. Bremner is involved in complex civil and commercial litigation in the New York state and federal courts in matters concerning insurance coverage disputes and subrogation claims, as well as defending companies in construction defect and property damage cases. Mr. Bremner is also currently involved in the defense of a building owner named as a defendant in the World Trade Center mass-tort litigation, currently pending in the United States District Court for the Southern District of New York.

Mr. Bremner graduated from SUNY Albany with his Bachelor's Degree in 2004 and Master's Degree in 2005. He earned his J.D. from Brooklyn Law School in 2011, where he served as an Executive Articles & Research Editor on the Editorial Board of the Brooklyn Law Review. During his studies at Brooklyn Law School, Mr. Bremner served as a judicial intern for the Honorable Judge Ariel Belen in the Appellate Division, Second Department for the State of New York. Upon graduation, he received the Judge Barry Hurowitz Memorial Award in recognition of overall excellent performance as judicial intern. He was also the recipient of the "CALI Excellence for the Future Award" for academic achievement in the study of personal injury & medical malpractice law. Prior to returning to Harrington, Ocko, and Monk, LLP in the fall of 2011, Mr. Bremner worked at the firm as a paralegal and summer associate.

205

206 Jonathan D. Cohn, Esq.

Gerstenzang, O’Hern, Sills & Gerstenzang Associate 210 Great Oaks Boulevard Albany, NY 12203 (518) 456-6456 [email protected]

Jonathan D. Cohn is an associate in the law firm of Gerstenzang, O'Hern, Sills & Gerstenzang. He received his Bachelor's Degree from Lafayette College, where he graduated with honors. He is a 2008 cum laude graduate of Albany Law School, where he was selected as a member of the Government and Law Journal. Jonathan was one of a select group to be published as a member of the journal. Jonathan is also a member of the National College for DUI Defense ("NCDD").

Prior to joining the firm, Jonathan was an Assistant District Attorney in the Rensselaer County District Attorney's Office, who handled all aspects of criminal law. He also gained a thorough understanding of the Criminal Procedure Law and Penal Law as a Law Clerk to Honorable Karen A. Drago, Schenectady County Court Judge.

Jonathan's practice is focused on Criminal Defense – with an emphasis on alcohol-related offenses.

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208 David L. Evans, Esq.

Spectrum Consulting, LLC 2 Tower Place Albany, NY 12203 (518) 469-6339 [email protected]

Professional Experience: • Extensive background expertise in areas that include: - Multistate and International tax issues - Federal taxation (including latest legislation and cases) - Mergers and Acquisitions (Planning and Due Diligence) - New York State tax laws - Personal and corporate taxation - Valuation of closely held businesses - Estate planning • Provides tax planning and advice to private and public clients • Contributing author to the New York State Tax Service, a six-volume publication of New York State tax laws, regulations and technical service memoranda • Frequently lectures on tax issues and appears regularly on radio and television

Education: • B.B.A., summa cum laude, Hofstra University • J.D., State University of New York at Buffalo, cum laude

Admissions to Practice: • 1979, New York, Fourth Department • 1986, US Supreme Court • 1982, US Tax Court

Active and Prior Professional Memberships Include: • American Institute of Certified Public Accountants • New York Bar Association • New York State Society of Certified Public Accountants - Former board member - Past chairperson of the Tax Division Executive Committee • Past president: Estate Planning Council of Eastern New York, Inc. • Former Hearing Officer, NYS Tax Commission

209

210 Robert E. Grey, Esq.

Grey & Grey LLP Managing Partner 360 Main Street Farmingdale, NY 11735 (516) 249-1342 [email protected]

Robert Grey, the managing partner of Grey & Grey, L.L.P., is a graduate of the Johns Hopkins University (1987) and St. John’s University School of Law (1990). The firm represents workers in the areas of workers’ compensation, Social Security Disability, Long Term Disability, personal injury and related matters. Its offices are located in Manhattan, Queens, Nassau, Suffolk, Westchester and the Bronx.

During his 25 year career, Mr. Grey has represented thousands of clients before the New York State Workers’ Compensation Board. He has also tried many personal injury cases both in New York State Supreme Court and in the Federal District Court for the Eastern District. Mr. Grey also has significant experience as an appellate attorney. He has successfully argued appeals in the Appellate Divisions for the First, Second and Third Departments, as well as in the New York State Court of Appeals. On the federal level, he has successfully argued to the Second Circuit Court of Appeals.

In 2014, Mr. Grey was named to the New York State Workers’ Compensation Board’s Advisory Council. Since 2010, he has served as the Chair of the New York Workers’ Compensation Alliance, a political action committee advocating for injured and disabled workers. He has also served on the Board of the New York Committee for Occupational Safety and Health since 2006, becoming its Treasurer since 2008. Mr. Grey is also the Outreach Committee Chair for the Mt. Sinai – Irving J. Selikoff Center for Occupational and Environmental Medicine Advisory Board, which named him its Man of the Year in 2008.

Mr. Grey has also taught a course in “Protecting the Injured Worker” as an adjunct professor at the Cornell University School of Industrial and Labor Relations, and in 2008 he was the honoree of the Transport Workers Union Local 100 Widows & Orphans Fund.

Mr. Grey has been deeply involved in efforts to assist World Trade Center responders after September 11th. He helped to draft legislation expanding workers’ compensation and pension benefits, served as a technical advisor on the New York State September 11th Worker Protection Task Force, and was a participant in the Mount Sinai World Trade Center Health Program Advisory Board.

Mr. Grey is a frequent lecturer for the New York State Bar Association, and has also given many lectures for bar associations in Nassau, Suffolk, Brooklyn, Queens, the Bronx, and White Plains, as well as for the New York State Trial Lawyers Association. His articles have been published in the New York Law Journal, the Journal of the Suffolk Academy of Law, the Syracuse University Law Review, the Nassau Lawyer, the Suffolk Lawyer, and the New York Times, among publications.

211

212 Jay L. Hack, Esq.

Gallet Dreyer & Berkey, LLP Partner 845 Third Avenue - 8th Floor New York, NY 10022-6601 (212) 935-3131, Ext. 307 [email protected]

Areas of Practice Banking Corporate Law

Experience Mr. Hack’s primary practice focus is providing full-range legal services to banks and other financial institutions. His broad-based financial institutions practice runs the gamut, from acting as issuer's counsel in many public offerings by bank holding companies to helping clients address examination report criticisms so that enforcement action can be avoided. He has also assisted many clients in developing retail banking documentation that satisfies federal and state consumer regulations or commercial necessities.

He also supports other practice areas within the firm by bringing his extensive knowledge of banking transactions and banking law to the table when bank clients are in need of real estate or litigation assistance.

Bar Admissions New York, 1977 U.S. District Court, Southern District of New York, 1978

Education Boston University School of Law, J.D. cum laude, 1976 Boston University Law Review: Member (1974-75) Editor (1975-76) University of Michigan, A.B. with honors, 1973 Major: Psychology (high honors)

Published Works Tugboats, Glaucoma and the Check Collection Process, NY Business Law Journal, Fall 2008. Trust Preferred Securities. Community Bank Notes, the magazine of the Independent Bankers Association of New York State, March/April 2005. Declarations Against Penal Interest - Standards of Admissibility in an Emerging Majority Rule, 56 Boston University Law Review 148 (1976), quoted by the United States Supreme Court inWilliamson v. United States, 512 US 594, 617 (1994) (Kennedy, J., concurring); also cited by United States Courts of Appeals for the first, third and fifth circuits, the Court of Military Appeals and the Supreme Courts in the states of California, Kansas, Maine, Massachusetts, Minnesota, New Hampshire, New York, North Carolina and Wisconsin.

Professional Associations and Memberships New York State Bar Association (Member, Business213 Law Section | Member, Banking Law Committee)

214 Shawndra Jones, Esq.

Axinn, Veltrop & Harkrider LLP Associate 114 West 47th Street New York, NY 10036-1510 (212) 474-1000 [email protected]

Since joining Axinn in 2012, Shawndra Jones’s practice has focused on labor and employment matters, contract disputes and other commercial litigation. Shawndra also has experience with internal investigations, trade secrets litigation, patent litigation, antitrust matters, securities litigation and civil rights litigation. She has been involved in various aspects of litigation, including arguing in court, drafting motions and briefs, conducting interviews and coordinating document productions. Her experience includes matters before state and federal courts, administrative agencies and arbitration panels.

Before entering private practice, Shawndra served as a law clerk to the Honorable Alvin W. Thompson of the United States District Court for the District of Connecticut.

Shawndra is a member of the American Bar Association, Section of Labor and Employment Law; the New York State Bar Association, Labor and Employment Law Section & the Commercial and Federal Litigation Section, Social Media Committee; the New York City Bar Association, Judiciary Committee; Volunteer Lawyers for the Arts, Young Associate Member; and Practicing Attorneys for Law Students Program, Inc., Mentor.

215

216 Ellyn S. Kravitz, Esq.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP Partner 630 Third Avenue 5th Floor New York, NY 10017 (212) 279-9200 [email protected]

Ellyn S. Kravitz is a partner at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP. She concentrates her practice in elder law, special needs planning, estate planning, estate administration, guardianship, and veterans’ benefits. Ellyn is an authority on issues affecting adults and children with disabilities, and our senior population.

Ellyn holds the designation of a Certified Elder Law Attorney (CELA), awarded by the National Elder Law Foundation as accredited by the American Bar Association. There are fewer than 400 CELAs throughout the United States. Ellyn is accredited by the U.S. Department of Veterans Affairs to present and prosecute claims for veterans’ benefits.

She was named as a “New York Super Lawyer” by Law & Politics magazine from 2009 through 2013. She was included in the list of Top Women Attorneys in the New York Metro Area for 2012 and 2013 in the New York Times Magazine.

She is a member of the New York State Bar Association. She is member of Executive Committee of the Elder Law Section of the New York State Bar Association and the current Co-Chair of the Guardianship Committee. She was former co-chair of the Estate and Tax , the Legal Education and Health Care Committee. She served as past Co-Chair of the Elder Law Committee of the Westchester County Bar Association. Ellyn is a member of the National Academy of Elder Law Attorneys (NAELA) and the New York State Chapter of NAELA. She is also a member of the Board of the Estate Planning Council of New York City, Inc.

She serves on the Legal Advisory Committee of the Evelyn Frank Legal Resources Program of Selfhelp Community Services, Inc. She also serves on the Benefit Committee of the Kellner Family Pediatric Liver Disease Foundation.

She is a frequent presenter to both consumer and professional groups and has provided input to state and national programs addressing legal, financial and other related matters involving persons with disabilities and our senior population.

217

218 Marc Aaron Melzer, Esq.

Hoguet Newman Regal & Kenney LLP Associate 10 East 40th Street 21st Floor New York, NY 10016-0301 (212) 689-8808 [email protected]

Marc Aaron Melzer focuses on intellectual property and information technology law, along with complex commercial litigation. Mr. Melzer’s practice includes IP and technology counseling and representation of individuals and institutions in litigation matters in both federal and state courts. Recent representative engagements include: Representing a state agency in a multimillion dollar software and construction litigation against a defense contractor in the Southern District of New York, culminating in a five week bench trial.

Representing minority shareholders over misuse of corporate intellectual property, including famous marks. Representing a technology company in a trade secrets, trademark, and contract dispute. Advising a graphic design firm regarding intellectual property matters, including trademark prosecution, and social media legal issues. Representing a foreign corporation before the U.S. Trademark Office with regard to extension of protection of its mark in the United States. Representing a physician with regard to employment and tenure rights. Representing an international testing company in a class action litigation brought in the District of Puerto Rico involving an oil facility explosion.

Mr. Melzer is an active member of the New York State Bar Association’s Commercial and Federal Litigation Section Social Media Law Committee, and has presented related CLE programs and collaborated on the Committee’s social media guidelines for attorneys and other projects. He is also a member of the New York City Bar Association, where he completed a three-year term in 2014 as an active member of the Information Technology Law Committee, American Bar Association, and the Copyright Society of the U.S.A.

Mr. Melzer graduated from University of Pennsylvania Law School with a J.D. in 2005 and from Fordham University School of Law in 2010 with an LL.M. in intellectual property and information technology law. He served on the staff of the Fordham Intellectual Property, Media & Entertainment Law Journal and the University of Pennsylvania Journal of Constitutional Law, for which he was Articles Editor. Mr. Melzer graduated from Princeton University in 2002 with an A.B. from the Woodrow Wilson School of Public and International Affairs. He was previously a litigation associate at Kramer Levin Naftalis & Frankel, LLP in New York City, and a Research Fellow with Fordham Law’s Center on Law & Information Policy.

Mr. Melzer is the author of Copyright Enforcement in the Cloud, 21 Fordham Intell. Prop. Media & Ent. L.J. 403 (2011), and A Vintage Conflict Uncorked: The 21st Amendment, the Commerce Clause, and the Fully-Ripened Fight Over Interstate Wine and Liquor Sales, 7 U. Pa. J. Const. L. 279 (2004). He was also a contributor to WIPO-commissioned report An Analysis of the Economic/Legal Literature of the Effects of IP Rights as a Barrier to Entry, CDIP/4/4 REV./STUDY/INF/3 (June 22, 2011), and a co-author of Codifying Shari’a: International Norms, Legality and the Freedom to Invent New Forms, 2 J. Comp. L. (UK) 1 (2007). 219

220 Glenn A. Monk, Esq.

Harrington, Ocko & Monk, LLP Managing Partner 81 Main Street Suite 215 White Plains, NY 10601 914- 686-4800 [email protected]

Glenn A. Monk is the managing partner of the Insurance Defense practice group at Harrington, Ocko & Monk, LLP. Mr. Monk has over 30 years of experience as a trial attorney specializing in tort defense litigation. Areas of particular expertise include: construction accidents, premises liability and security, products liability, general liability and insurance coverage. Mr. Monk represents corporations in OSHA and other administrative proceedings, and advises on claims handling.

Mr. Monk graduated from Colgate University, cum laude, in 1976. He attended Boston College Law School, graduating cum laude in 1980. During law school, Mr. Monk interned at the Organized Crime Strike Force of the United States Attorney’s Office in the Eastern District of New York. Mr. Monk served as an Assistant District Attorney in the Trial Division of the New York County District Attorney’s Office and 1980 to 1984, during which he was appointed to the Special Narcotics Prosecutors Office and Chinese Youth Gang Unit. Upon leaving the District Attorney’s Office, Mr. Monk joined the firm of Jones Hirsch Connors & Bull, where he became a partner in 1989. He joined and formed Harrington, Ocko & Monk in 1996.

Mr. Monk is a member of the New York State Bar Association where he serves on the Executive Committee of the Torts, Insurance & Compensation Law Section and Chairs the Premises Liability/Labor Law Committee of which he was the recipient of the “Chair of the Year” Award, in January 2008. Mr. Monk was selected to the 2013 Metro New York Super Lawyers List.

Mr. Monk is a frequent lecturer at numerous New York State Bar Association programs, most recently as a Presenter and Chair of the New York City Law School for Insurance Professionals, 2014 program, and Co-Statewide Chair of the 2013 New York State Bar Association program: Law School for Insurance Professionals. In previous years, Mr. Monk has lectured at this program on Preservation of Evidence and Accident Investigation and Third-Party Practice. Mr. Monk was the Co-Statewide Chair of the CLE program “Premises Liability- What You Need to Know in New York,” and lectured as Chair of the New York City program on “Intruder/Negligent Security Cases,” in April 2011. Mr. Monk has also lectured for several construction and safety industry associations including AGCNY and SENY.

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222 Gary M. Reing, Esq.

521 Fifth Avenue, Suite 1713 New York, NY 10175 (914) 245-7609 [email protected]

Gary graduated from Ithaca College in May of 1973 with a B.A. in Political Science, and from Golden Gate University School of Law with a J.D. in May of 1978. He is admitted to the New York State and Federal Court for the Southern District of New York and the Tax Court of the United States. He is a certified class counsel and he is able to represent taxpayers in tax tribunals through the country.

Gary limits his practice to real estate, tax, estate and trust matters and fair debt collection, with offices in both Westchester County and New York City. He has been heard on National Public Radio (Marketplaceand Marketplace Money) on occasion, regarding tax and financial issues and has been quoted in various publications on tax issues.

Gary is the immediate past chairman for the Lawyers Assistance Program for New York City Bar Association and is also a trustee of the New York Lawyer Assistance Trust. He presents on issues of recovery from alcoholism and addiction as well as the programs offered by the Lawyers Assistance Program committees. Additionally he serves on the board for the Insight Foundation and Temple Beth Shalom. Gary has been married to his wife, Ellen, for 30 years and they have two children, Jesse and Scott.

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224 Mirna M. Santiago, Esq.

White Fleischner & Fino, LLP Of Counsel 303 Old TarryTown Road White Plains, NY 10603 (914) 509-2910 [email protected]

Mirna Martinez Santiago joined White Fleischner & Fino in 2010 and focuses her practice on national coverage matters and litigation. She has over 18 years of experience working with or on behalf of insurance companies in a variety of capacities, handling a range of matters including tort, professional liability, coverage and regulatory affairs. Mirna also lectures on an array of topics and has published articles on legal, as well as non-legal, subjects. Mirna is an active member of the New York State Bar Association, through which she has held a number of leadership roles. As of February 1, 2015, Mirna will assume the position of Chair of the New York State Bar Association’s Torts, Insurance and Compensation Law (“TICL”) Section. Mirna is the first Black woman and the first Latina to ever hold the Chair position in TICL. Mirna is also passionate and actively involved in championing diversity and is a member of the New York State Bar Association's Committee on Diversity and Inclusion, as well as the Committee on Tort, the Committee on Continuing Legal Education and the Committee on Membership. Mirna's many honors include the 2012 New York State Bar Association Torts, Insurance & Compensation Law Section Award for Outstanding Chair (Diversity) and the 2010 New York State Bar Association Sheldon Hurwitz Young Lawyer Award for Outstanding Contribution to the Practice of Law in the Field of Insurance. Mirna has also written numerous articles for a variety of publications, including many for the New York State Bar Association. Mirna is fluent in written and spoken Spanish and spoken Garifuna.

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226 Deborah A. Scalise, Esq.

Scalise Hamilton & Sheridan, LLP Partner 670 White Plains Rd Suite 325 Scarsdale, NY 10583 (914) 725-2801 [email protected]

Deborah A. Scalise is a partner in the firm SCALISE HAMILTON & SHERIDAN LLP in Scarsdale, New York. The Firm represents professionals in professional responsibility and ethics matters, and white- collar criminal matters. Among other services, the Firm advises lawyers proactively via advisory letters; reviews websites and escrow accounts to ensure compliance with ethical obligations; and provides defensive counsel when a professional or judge is faced with allegations of ethical misconduct or criminality. Before entering private practice in 2002, Ms. Scalise was Deputy Attorney General in Charge of Public Advocacy for the Westchester Region and handled cases involving consumer frauds, civil rights, and public integrity. Prior to that, she was the Deputy Chief Counsel to the Departmental Disciplinary Committee for the First Judicial Department. In her nine years at the Committee, she litigated complex disciplinary matters including, investigations, hearings and appellate review of attorney ethical misconduct. Her first position as a lawyer was as an Assistant District Attorney in Kings County, where she handled economic crimes and arson cases. Ms. Scalise earned a Juris Doctor from Brooklyn Law School, and both a Bachelor of Arts and Master of Arts Degree in Forensic Psychology from the John Jay College of the City University of New York. Ms. Scalise is active in several bar associations. She is a member of the New York State Bar Association (NYSBA) where she serves as the Chair of the Continuing Legal Education (CLE) Committee and on the Attorney Professionalism Committee. She twice served as Vice President to Women’s Bar Association of the State of New York (WBASNY), where she also serves as Professional Ethics Committee Co-chair. A Past President of the White Plains Bar Association (WPBA) and the Westchester Women's Bar Association (WWBA), she serves on several Committees for both including, Outreach Co-chair and is actively involved in educational programs for students, including Take Your Children to Work Day, Law Day and Career Day. She is a member of the American Bar Association (ABA) and a former member of its Public Sector Lawyer’s Division’s Ethics and CLE Committees. She is also a member of the New York State Trial Lawyers Association (NYSTLA) and the New York County Lawyers Association, serving on the Board of NYCLA’s Ethics Institute. She is a member of the Westchester County Bar Association (WCBA) and served as Co-chair of the Ethics and Professional Responsibility Committee. As a member of the New Rochelle Bar Association (NRBA), she is a Small Claims Court Arbitrator in the New Rochelle City Court. She is also a member of the Federal Bar Council, the Brooklyn Columbian Lawyers Association, the Westchester Columbian Lawyers Association and the Eastchester Bar Association. Ms. Scalise has coordinated and/or lectured in CLE Programs for the: Appellate Division, First, Second and Third Departments; NYSBA; Practicing Law Institute; WBASNY; WWBA; WCBA; WPBA; NRBA; Brooklyn Women's Bar Association; Rockland County Women's Bar Association; Pace University Law School CLE Program; St. John's University Law School CLE Program; Fordham Law School CLE Program; CUNY Law School CLE Program; NYSTLA; New York Civil and Criminal Trial Attorneys Association; New York State Association of Disciplinary Attorneys; and New York County Supreme Court Arbitrators. She has also been a faculty member of the Cardozo Law School Intensive Trial Advocacy Program and a guest lecturer at Brooklyn Law School, Columbia Law School, Cardozo Law School, Pace Law School and John Jay College. Ms. Scalise is an Adjunct Professor at Fordham Law School, where she teaches Professional Responsibility. Ms. Scalise was a contributing author for a chapter in the Oxford University Press’s The New York Rules of Professional Conduct: Opinions, Commentary, and Case Law, a treatise for attorneys providing case law, bar opinions, and commentary governing ethical conduct. She also authored several articles related to professional responsibility and ethics issues for among others, the NYSBA Association's Journal; the WBASNY and WWBA newsletter; the WCBA Journal; and the NYSTLA Bill of Particulars In 2014, the firm received the WWBA’s Family Friendly Award and was recognized by the N.Y. Law Journal as one of the Top 100 Largest Women-Owned Law Firms. 227

228 Patricia Spataro

New York State Bar Association Director/Lawyer Assistance Program One Elk Street Albany, NY 12207 (518) 487-5685 [email protected]

Patricia Spataro is Director of the New York State Bar Association’s confidential Lawyer Assistance Program (LAP). The purpose of the LAP is to provide educational outreach and confidential assistance to attorneys, judges, law school students and their immediate family members who are affected by problems of alcoholism, substance abuse, stress, or depression.

Ms. Spataro is a licensed Mental Health Counselor and a certified Employee Assistance Professional with more than 20 years experience in the mental health field.

As the LAP Director, Patricia works closely with the State Bar’s Lawyer Assistance Committee and the numerous local bars’ Lawyers Helping Lawyers Committees statewide. In addition, she collaborates with LAP Directors throughout New York State to develop and deliver outreach efforts, educational programs, and comprehensive services to attorneys, judges, and law school students experiencing mental health problems.

Patricia serves as liaison to the New York State Bar Association’s Lawyer Assistance and Judicial Wellness committees. She is a past member of the New York Lawyer Assistance Trust Board of Trustees.

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230 Sheila M. Sproule, Esq.

NYS Unified Court System Division of Professional and Court Services Office of ADR and Court Improvement 25 Beaver Street New York, NY 10004 (212) 428-2862 [email protected]

Sheila Sproule is a management analyst at the NYS Office of ADR Programs, Division of Court and Professional Services of the Unified Court System, where she works on ADR policy-related initiatives and programs. She serves as deputy counsel to the Mediator Ethics Advisory Committee, which provides written responses to mediator ethical dilemmas applying the Community Dispute Resolution Program Standards of Conduct for mediators. Sheila is the immediate past president of the Association for Conflict Resolution for Greater New York and is a former adjunct professor at Fordham Law School's Mediation Clinic where she served for 10 years. She is a graduate of Fordham College and Fordham Law School.

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232 Hon. Matthew J. Turner

Attorney and Counselor at Law 54 Second Street Troy, NY 12180 (518) 274-7252

Judge Turner is a graduate of The Catholic University of America, '86, and Albany Law School, '89. He was first elected Judge of the City Court of Troy in 1998 and was re- elected in 2004 and 2010. Judge Turner previously served as a Deputy Corporation Counsel for the City of Troy and an Assistant Public Defender in Rensselaer County. Judge Turner has served on the Board of Trustees for The IOLA Fund of the State of New York as well as the New York State Office of Court Administration's Plumadore and Coccoma Commissions that address issues of importance to the City Courts throughout New York. Judge Turner has served for the last 10 years as the Vice President for Legislative Affairs of the New York State Association of City Court Judges. In addition to his duties as a City Court Judge, Judge Turner is a solo practitioner with an office in Troy.

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234 Daniel M. Weitz, Esq.

NYS Unified Court System Deputy Director, Division of Professional and Court Services and Coordinator Office of ADR and Court Improvement 25 Beaver Street, Room 855 New York, NY 10004 (212) 428.2863 [email protected]

EDUCATION

B.A., 1991, New York University J.D., 1996, Benjamin N. Cardozo School of Law/Yeshiva University

BIO

Daniel Weitz (CSL '96) is the Deputy Director of the Office of ADR and Court Improvement Programs for the New York State Unifed Court System. In his current position he oversees court-annexed ADR intiatives, directs the Community Dispute Resolution Centers Program, and provides education and training programs for members of the judiciary, the bar, and court litigants.

Mr. Weitz works with the Mediation Clinic and teaches Introduction to Mediation in Cardozo's Kukin Program for Conflict Resolution.

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236 Jonathan A. Wexler, Esq.

Vedder Price Shareholder 1633 Broadway 47th Floor New York, NY 10019 (212) 407 7732 [email protected]

Jonathan A. Wexler is a Shareholder at Vedder Price and a member of the firm’s Labor and Employment practice area in the New York office. He represents private-sector, not-for-profit and public-sector clients in litigation matters in federal and state courts and before such administrative agencies as the Equal Employment Opportunity Commission, the New York State Division of Human Rights, the National Labor Relations Board and the New York Department of Labor.

Mr. Wexler has arbitrated statutory claims as well as grievances under collective bargaining agreements and has negotiated labor contracts on behalf of employers. Mr. Wexler counsels clients concerning labor and employment law matters, including EEO laws, restrictive covenants, trade secrets, wage and hour matters, and employee benefits issues, and he has prepared personnel policies, employment agreements and separation agreements for numerous clients.

Mr. Wexler is a member of the Labor and Employment Section of the New York State Bar Association. He has lectured and conducted training in the areas of effective supervision, sexual harassment and compliance with employment laws.

Mr. Wexler was selected for inclusion from 2009 to 2014 in New York Super Lawyers. In addition, the Legal 500 United States guide recommends Mr. Wexler in the Labor and Employment—Workplace and Employment Counseling category.

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