JULY/AUGUST 2013 VOL. 85 | NO. 6 JournalNEW YORK STATE BAR ASSOCIATION

Also in this Issue The Boston “Professional Reliability” Article 81 and Autism Massacre Trials Spectrum Disorder Revising Vietnam’s By John F. Tobin Constitution 2012 UM, UIM and SUM Law It’s All New!

Coming September 2013 NYSBA’s new website at www.nysba.org BESTSELLERS FROM THE NYSBA BOOKSTORE July/August 2013

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BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Marvin N. Bagwell New York City Brian J. Barney Rochester Elissa D. Hecker Irvington Barry Kamins Brooklyn Jonathan Lippman New York City John R. McCarron, Jr. Carmel Eileen D. Millett New York City Thomas E. Myers Syracuse Gary D. Spivey Colorado Springs, Colorado Sharon L. Wick Buffalo MANAGING EDITOR Lawyer Referral and Daniel J. McMahon Albany e-mail: [email protected] Information Service ASSOCIATE EDITOR Nicholas J. Connolly Interested in expanding Tarrytown PUBLISHER your client base? Patricia K. Bucklin Executive Director

NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Join the Lawyer Referral & Information Service Lori Herzing Erin Corcoran Jonathan Grandchamp Why Join? EDITORIAL OFFICES > Expand your client base > Benefit from our marketing strategies One Elk Street > Increase your bottom line Albany, NY 12207 (518) 463-3200 Overview of the Program FAX (518) 463-8844 www.nysba.org The New York State Bar Association Lawyer Referral and Information Service (LRIS) has been in existence since 1981. Our service provides referrals to attorneys like ADVERTISING REPRESENTATIVE you in 44 counties (check our website for a list of the eligible counties). Lawyers Network Media Partners who are members of LRIS pay an annual fee of $75 ($125 for non-NYSBA mem- Meredith Schwartz bers). Proof of malpractice insurance in the minimum amount of $100,000 is Executive Plaza 1, Suite 900 required of all participants. If you are retained by a referred client, you are 11350 McCormick Road Hunt Valley, MD 21031 required to pay LRIS a referral fee of 10% for any case fee of $500 or more. For (410) 584-1960 additional information, visit www.nysba.org/joinlr. e-mail: [email protected]

Sign me up EUGENE C. GERHART Download the LRIS application at www.nysba.org/joinlr or call 1.800.342.3661 or (1912 – 2007) e-mail [email protected] to have an application sent to you. Editor-in-Chief, 1961 – 1998 GGiveive uuss a ccall!all! 8800.342.366100.342.3661 CONTENTS JULY/AUGUST 2013

THE BOSTON MASSACRE TRIALS BY JOHN F. TOBIN 10

DEPARTMENTS 22 The “Professional Reliability” Basis for Expert Opinion Testimony 5 President’s Message BY HON. JOHN M. CURRAN 8 CLE Seminar Schedule Article 81 Guardianships and Autism 18 Burden of Proof 26 BY DAVID PAUL HOROWITZ Spectrum Disorder 30 Point of View BY ANTHONY J. ENEA BY HON. MARK D. FOX AND MICHAEL L. FOX 47 Attorney Professionalism Forum 33 Constitutional Revision: 50 New Members Welcomed Democracy-Building in Vietnam 60 Classified Notices BY PAMELA S. KATZ 60 Index to Advertisers 37 2012 Review of UM, UIM and SUM Law 61 Language Tips BY JONATHAN A. DACHS BY GERTRUDE BLOCK 63 2013–2014 Officers 64 The Legal Writer BY GERALD LEBOVITS

CARTOONS © CARTOONRESOURCE.COM

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2013 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publica- tion of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $30. Library subscription rate is $200 annually. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | July/August 2013 | 3

PRESIDENT’S MESSAGE DAVID M. SCHRAVER

Serving the Profession Through Technology

e all know that the legal the top of the page to promote events, profession is changing rap- alert users to crisis response initiatives Widly, and one of the forces (such as last year’s response to Super- driving that change is technology. As storm Sandy), and highlight NYSBA’s attorneys, sometimes we think of tech- products, programs and services. The nology as a blessing; sometimes as a site will feature a new “Members curse. But it is a fact of life – in both Only” area that will gather all mem- our personal and professional lives. bers-only benefits and resources under Whatever our comfort level may be as one heading to make it easier to take designed to encourage engagement consumers or users, we need to under- full advantage of NYSBA membership. and participation from a defined stand the changes, opportunities and Another area on the home page, called group of users (e.g., organized by prac- challenges that technology presents. “By Members, For Members,” will link tice area, geography, or other affin- One of the key priorities in our to a collection of substantive contribu- ity group). These communities offer Association’s strategic plan is to use tions of members such as reports, blog opportunities for discussion, connec- technology to communicate more posts and articles from many publica- tion and collaboration, and foster deep- effectively with members and pro- tions. In addition, the new website er relationships and a greater sense spective members, and increase the will automatically recognize the device of belonging among members. They overall value of membership in the being used to access the site and pro- will enable the Association to move Association. Since the strategic plan vide an optimized view for that phone, beyond listserves and create a long- was adopted in 2011, we have hired tablet or web browser. term searchable knowledge database. a new Chief Technology Officer, Dave Users will be able to sign up for email Adkins. Our Electronic Communica- Content Management System updates and customize the frequency tions Committee, under co-chairs Mark The new website will feature a new with which they are received. The Gorgos (Coughlin & Gerhart) and Gail content management system (CMS) communities will be private, focused Johnston (Cahill Gordon & Reindel), – the software that allows the cre- and secure; and there will be a mobile has been actively working with Dave ation, modification and publication of app for tablets and smartphones. and our Information Services Depart- various types of content such as web ment to implement the plan. We have pages and documents. The new CMS eLAP Update made significant investments in tech- offers an entirely new shopping cart In March, a new electronic Lawyer nology, and I would like to share these experience for those who purchase Assistance Program website – or eLAP developments with you products or register for programs or – debuted. The site features self-help events online, helping to connect users readings on a variety of topics ranging New Website Design with other products and events that from substance abuse and depression This fall, we will unveil a new and might be of interest. It will also include to wellness and time management. No completely redesigned NYSBA web- an online calendar that will provide fil- login is required to access the materi- site. The Electronic Communications ters to view CLE, Section or all NYSBA als, and access to confidential and Committee was instrumental in guid- events, in addition to the standard grid anonymous individual counseling is ing the new website design, which will or list view. available through the use of a special offer a clean, intuitive interface and email address on the site. improved navigation – every part of Private Online Professional the NYSBA website will be accessible Communities from the home page. The new home A private online professional com- DAVID M. SCHRAVER can be reached page will feature a display area near munity is an interactive online space at [email protected].

NYSBA Journal | July/August 2013 | 5 PRESIDENT’S MESSAGE

Electronic Publishing ery of excellent continuing legal edu- tance to Persons Affected by Super- Moving forward, we are investigating cation (CLE) programming to attor- storm Sandy.” That program was coor- various electronic publishing solutions neys throughout New York State and dinated by the CLE and Pro Bono to provide e-book versions of legal beyond. Through videoconferencing, Departments in the weeks following reference and monograph titles, as well live webcasts, and an extensive digital the storm and drew more than 2,000 as e-versions of newsletters, journals media library of recorded CLE prod- participants, most of whom viewed and other publications. We are looking ucts, our Committee on Continuing the program as a live webcast from our into such options as electronic delivery Legal Education and the CLE Depart- website. via a web browser on your desktop, ment provide high-quality educational I hope you will find all of these mobile-friendly formats and delivery resources in multiple convenient and developments exciting, interesting through an app that will collect pub- user-friendly formats. In June, we were and valuable to your practice and your lications on a virtual bookshelf for pleased to learn that the CLE Depart- membership in the New York State Bar offline viewing. ment was the recipient of the Associa- Association. Please feel free to share tion for Continuing Legal Education’s your thoughts and experiences with Continuing Legal Education 2013 Award of Professional Excellence me. ■ The use of technology continues to in the Public Interest, in recognition of be central to the Association’s deliv- the program “Providing Legal Assis-

You’re a New York State Bar Association member. You recognize the value and relevance of NYSBA membership. For that, we say thank you.

The NYSBA leadership and staff extend thanks to you and our more than 76,000 members — from every state in our nation and 113 countries — for your membership support in 2013.

Your commitment as members has made NYSBA the largest voluntary state bar association in the country. You keep us vibrant and help make us a strong, effective voice for the profession.

David M. Schraver Patricia K. Bucklin President Executive Director

6 | July/August 2013 | NYSBA Journal

NYSBACLE Tentative Schedule of Upcoming Programs (Subject to Change)

The New York State Bar Association Has Been Certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.

Marriage Equality Update Tax Aspects of Real Property Transactions (9:00 a.m. – 1:00 p.m.) (9:00 a.m. – 1:00 p.m.) September 16 New York City October 22 Long Island October 23 Albany Henry Miller October 24 New York City September 17 Albany November 6 Albany October 10 Long Island November 14 Westchester October 29 New York City (live and webcast) Appellate Practice Bridging the Gap October 25 Long Island October 1–2 New York City (live program) October 29 Rochester Albany; Buffalo November 21 New York City (videoconference from NYC) Matrimonial Trial Institute IV The Brave New World of Open Government October 25 Buffalo Live and Webcast (9:00 a.m. – 1:00 p.m) November 1 Long Island October 2 Albany November 15 Syracuse

Gain the Edge Special Education October 9 Albany November 1 Buffalo October 10 New York City November 6 Long Island; Westchester November 20 Syracuse Practical Skills: Basic Matrimonial Practice November 22 Albany October 16 Buffalo; Long Island November 13 New York City (live and webcast) October 17 Westchester October 18 Syracuse Starting a Practice II October 21 Albany; New York City November 14 New York City

Women on the Move Construction & Surety Law October 17 Albany November 15 New York City (live and webcast)

To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount)

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. NAM is pleased to announce that HON. IRA B. WARSHAWSKY former Supreme Court Justice of the state of New York, Nassau County, has joined its panel

Judge Warshawsky has been a distinguished member of the New York judiciary for the past 25 years. He was a New York Supreme Court Justice in Nassau County’s Commercial Division from 2002 until his retirement in 2011. He presided over all manners of business claims and disputes, including business valuation proceedings, corporate and partnership disputes, class actions and complex commercial cases. Immediately prior to this appointment, Judge Warshawsky handled general litigation, including products liability, from 1998 to 2002. Prior to that, he sat in the Nassau County District Court for ten years, from 1987 to 1997, presiding over a wide variety of matters.

According to the 2009/2010 New York Judge Reviews, Judge Warshawsky has been praised for keeping a “calm” demeanor, even during highly charged, high-profile cases. Lawyers interviewed described him as “one of the hardest working, intelligent, even-handed judges, who has a very good sense of Hon. Ira B. Warshawsky justice.” He has been described as a “top-notch judge” who is Former Justice of the Commercial Division known for encouraging settlement negotiations without being of the Supreme Court, Nassau County overly aggressive. One attorney stated, “Judge Warshawsky is one of the best judges I have ever appeared before in the nation.”

Judge Warshawsky is available to hear cases in any of NAM’s offices throughout the New York Metropolitan area.

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The Boston Massacre Trials

By John F. Tobin

ithin minutes after British soldiers fired into a crowd of civilians on King Street in Boston the Wnight of March 5, 1770, the event was touted as a “massacre.” The label has stuck to this day, almost two and a half centuries later, making it one of the most suc- cessful propaganda coups in American history. However, what actually happened that night was a far cry from a massacre, and could be more accurately described as a “riot.” It would require two trials in a court John Adams of law to sort the facts and uncover the truth – at least to the extent that any trial can reveal the truth. But although most Americans have at least a vague notion of what transpired that night, few even know that trials took finch ignored him and continued on, and Garrick loudly place, much less what occurred at them. If they did, they repeated the accusation to passersby. This was overheard would surely view the shooting in a very different light. by Private Hugh White, who was on sentry duty near the Custom House. When White confronted Garrick, tell- The Shooting ing him that Goldfinch was a gentleman and would pay Between October 1768 and March 1770, steadily increas- his bill if he had not already, Garrick responded, “There ing tension between the townspeople of Boston and the are no gentlemen in that regiment.” Angry words were soldiers garrisoned there set the stage for what took exchanged, culminating in White’s striking Garrick in place on March 5. But what happened during the days the head with his musket, knocking him to the ground.2 and hours immediately preceding the shooting were the This altercation soon attracted an angry, unruly crowd, sparks that set off the explosion. consisting at first mostly of young boys, who began On March 2 an employee of a rope-making business taunting White and throwing chunks of ice at him. Fear- yelled out to a passing soldier, “Do you want work?” ing for his safety, White left the sentry box, moved to the When the soldier said he did, the employee replied, Custom House steps, loaded his musket, and called for “Well, then, go and clean my shit house.” That did not the main guard to come to his aid. sit well with the soldier, who returned later with other soldiers, and they brawled with the rope-makers.1 JOHN F. TOBIN ([email protected]) has been engaged in the practice of Then, early in the evening of March 5, a British offi- law for 30 years, handling both civil and criminal cases. He is currently cer, Captain John Goldfinch, was walking on King Street the Chief Assistant District Attorney for the County of Ulster. He spends when he was accosted by a wig-maker’s apprentice, much of his spare time in the study of American history, particularly Edward Garrick, who accused Goldfinch of not paying famous criminal cases. the wig-maker’s master’s bill for dressing his hair. Gold-

NYSBA Journal | July/August 2013 | 11 The bell of the nearby Old Brick Church began to toll, nesses who swore that Captain Preston had ordered the the usual summons to fight a fire, which drew more and soldiers to fire into the crowd and had even complained more people into King Street. The crowd, now consisting that they had not done so sooner. Concluding there was mostly of men, swelled to more than 300 strong, many of probable cause to believe that Preston and the soldiers them brandishing sticks. They were spoiling for a fight. had committed crimes, the Justices issued a warrant for At this point Captain Thomas Preston, the officer Preston’s arrest; he was taken into custody at about 2:00 on duty, led seven soldiers, lined up in two columns, a.m. on March 6. At about 3:00 a.m., after some interroga- through the crowd to the beleaguered sentry. Their mus- tion by the Justices, Preston was remanded to jail. The kets were shouldered and unloaded, but their bayonets next morning the soldiers surrendered to the authorities were fixed. Preston attempted to march his men back to and were likewise remanded to jail.6 the main guard, but the crowd hemmed them in, where- upon the soldiers loaded their muskets and formed up Indictments into a semi-circle facing the crowd.3 On March 13, Jonathan Sewall, the Attorney General, pre- sented the Crown’s case to the grand jury, which handed up indictments charging Preston and the soldiers with murder. But it was not until September 7 that they were “The law shall have its course. arraigned on the indictments; all of them pled not guilty. I will live and die by the law.” Legal Representation When the shootings occurred, Captain Preston, an Irish- man, was 40 years old, had served in the army for 15 It was a little after 9:00 p.m. The air was chilly, the years, and was well liked in Boston, even by the radicals. sky was cloudless, and the ground heavily mantled with Nonetheless, as he sat in jail the morning of March 6, he snow. Though Boston did not then have street lamps, the understood that he was in need of legal representation. area was somewhat illuminated by a first-quarter moon.4 At the behest of Captain Preston, James Forrest, a As Preston, standing in front of the soldiers, called loyalist merchant, appeared that day at the office of John upon the crowd to disperse, many of them drew closer Adams and tearfully implored him to represent Preston and pelted the soldiers with snowballs, chunks of ice, and and the soldiers.7 Although he realized he would be sticks, taunting and daring them to fire their muskets. vilified by the town’s inhabitants and the press, thus Then one of the soldiers, Private Hugh Montgomery, jeopardizing his thriving legal practice, Adams, then a was struck by a club thrown by a member of the crowd, 34-year-old lawyer, immediately agreed to do so, firm in causing him to fall to the ground and drop his musket. his belief that all persons accused of a crime were entitled What happened next can never be determined with to an effective legal defense. any certainty and was the focus of the evidence presented Some months later, contemplating the upcoming tri- at the trials, but what we do know for sure is that some- als, Adams would quote in his diary the following pas- one yelled “fire,” most of the soldiers then discharged sage from Beccaria, the renowned Italian penologist and their muskets into the crowd, and 11 men were struck by opponent of capital punishment: “If, by supporting the the bullets. Three died at once, one died a few hours later, rights of mankind and of invincible truth I shall contrib- one died a few days later, and six survived their wounds. ute to save from the agonies of death one unfortunate victim of tyranny or of ignorance, equally fatal, his bless- Arrests and Incarceration ing and tears of transport will be a sufficient consolation When Thomas Hutchinson, then Lieutenant Governor to me for the contempt of all mankind.”8 He reiterated and Acting Governor of Massachusetts, learned of the this quotation in the closing statements he delivered at shootings, he hurried to King Street where he was con- the trials. fronted by an angry crowd and various members of the Word spread through Boston like wildfire. Within Town Council, all demanding that he take swift action days of agreeing to defend Preston and the soldiers, rocks against the soldiers or face the prospect of an immediate were thrown through the windows of Adams’s home and uprising. After speaking with an unnerved Captain Pres- he was jeered by passersby on the streets. Josiah Quincy ton and getting his account of what occurred, Hutchin- Jr., a lawyer who had agreed to team up with Adams in son stepped out onto the balcony of the Town House, the defense of Preston and the soldiers, and lawyer Rob- where the Council’s chambers were located and which ert Auchmuty, who had agreed to team up with Adams overlooked the scene of the shootings, and assured the in the defense of Preston only, were likewise subjected to gathered crowd that justice would be done, stating, “[t]he criticism and ridicule.9 law shall have its course. I will live and die by the law.”5 Though no record has been found that it was of much Two Justices of the Peace, summoned to the Council concern to them, Adams and Quincy must have realized chamber shortly thereafter, interviewed a number of wit- at the outset that they had a conflict of interest. Captain

12 | July/August 2013 | NYSBA Journal Preston and the soldiers had been charged with murder, trial of Preston alone to be followed by a separate trial of and at that time soldiers were just as entitled as civilians the soldiers, and recognizing the danger to them should to assert what we today would call the defense of justifi- the jury in Preston’s trial conclude he had not ordered cation – that is, they were justified in using deadly physi- them to fire, the soldiers petitioned the court not to sever cal force against the crowd because they had reason to the cases. But their petition was to no avail – the cases believe the crowd was about to use deadly physical force were severed and Preston’s trial was scheduled to pre- against them. The only question the jury would have to cede theirs.12 decide was a factual one: Did Preston and/or the soldiers Under today’s ethical standards, at least in the United have reason to believe the crowd was about to use such States, Adams and Quincy would be obligated to make force against them? If the jury concluded that they did, a choice between representing Preston or the soldiers, they were required by law to return a verdict of not guilty and if they chose the soldiers over Preston, they would on the charge of murder.10 further be obligated to choose just one of the soldiers. But But here’s the rub: Before any of the defendants would they were not as sensitive to such matters in those days, find it necessary to raise that defense at trial, the Crown so Adams and Quincy proceeded nonetheless to repre- would have to prove that he either killed one or more sent both Preston and all the soldiers. of the victims himself or, if he was Captain Preston, that he had ordered the shooting. Accordingly, it was appar- Propaganda and Spin Control ent that Captain Preston would likely contend that the The first trial, that of Captain Preston, would not begin shootings were justified and/or that he had not ordered until October 24, 1770, more than seven months after he his men to fire, while it was equally apparent that the and the soldiers were arrested and incarcerated. While soldiers would likely contend that the shootings were such a gap would be the norm in criminal cases today, justified and/or that Captain Preston ordered them to fire it was highly unusual at that time, when criminal trials and they had merely followed his order to do so. After almost invariably took place less than a month after the all, they could have been executed for not obeying such defendant was arrested. So why the delay, and what was an order.11 going on during those seven months? Even if this conflict of interest was not of much con- Both the radicals, led primarily by Samuel Adams, cern to their lawyers, it certainly was to the soldiers. and the loyalists, led primarily by Thomas Hutchin- Learning that the court was contemplating conducting a son, recognized that Preston and the soldiers stood

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Paul Bernstein, J.D. | Salem, MA MemberMem Since 2001

NYSBA Journal | July/August 2013 | 13 little chance of being acquitted while the town’s passions day.16 Indeed, on average, the Superior Court of Suffolk remained inflamed. Consequently, the radicals did every- County disposed of as many as six jury trials in a day.17 thing in their power to move the case immediately to Preston’s trial was conducted in a courtroom on the sec- trial. To that end, shortly after the shooting, Sam Adams ond floor of the courthouse on Queen Street, built in 1769; convened a meeting of the town’s inhabitants that contin- it is believed to have been attended each day by at least ued throughout March and April, during which he relent- 60 spectators.18 lessly pressured Hutchinson and the judges to schedule The trial was presided over by Acting Chief Justice the trial without delay. When on March 14 two of the Benjamin Lynde, Jr., and Justices Edmund Trowbridge, judges, claiming illness, announced that the trial would John Cushing, and Peter Oliver. Thomas Hutchinson was be put off until the month of June, Sam Adams and his actually the chief justice of the court, but for obvious rea- cohorts marched into the courtroom and scolded them sons he declined to preside at the trial. about it. They did so again in May, this time threatening The Crown was represented by Robert Treat Paine, to withhold the judges’ salaries if they did not comply a longtime legal rival of John Adams and a radical, and with their demand.13 Solicitor-General Samuel Quincy, the older brother of But Hutchinson was equally determined to put off the defense lawyer Josiah Quincy and a loyalist. The former trial as long as possible and also besieged the judges in was a special prosecutor of sorts, having been appointed that regard, persuading them to adjourn the case repeat- to replace Jonathan Sewall, the attorney general who had edly and ultimately until their next term, scheduled to obtained the indictments, who for unclear reasons had begin in the fall. bowed out of the case and practically disappeared.19 The radicals and the loyalists maneuvered from the The first order of business was the selection of the jury, outset to accomplish their aims by propaganda and spin then called the “venire.” It appears that the Crown was control, and it seems that no device was beneath them. not permitted to challenge any of the jurors who had been Within a few days after the shootings, the artist Henry summoned. But the defense successfully challenged most Pelham prepared a drawing purporting to depict the of them, thus exhausting the panel.20 event. It shows the soldiers standing in a straight line, not In accordance with the practice of that day, still fol- in a semi-circle as was actually the case; discharging their lowed in New York and in many other states, the sheriff muskets like a firing squad, not at random as was actu- simply conscripted the needed number of jurors, called ally the case; and Captain Preston standing behind them then and now “talesmen,” from among the bystanders in with his sword raised, not in front of them with his sword the courtroom and in the vicinity of the courthouse at the sheathed, as was actually the case. Paul Revere somehow time. When additional defense challenges had been dealt got hold of the drawing; colored, engraved, and printed with, the resulting jury consisted mostly of avowed loy- it; and distributed it far and wide, without Pelham’s per- alists, who for that reason alone, coupled with remarks mission and without attributing it to him.14 It instantly they had made to others in advance of the trial, could became a rallying point for the radicals and stands to this be counted on to give Preston the benefit of any doubt. day as one of the most enduring and best-known works Indeed, it is not a stretch to say that the outcome of the of pictorial propaganda. trial was decided at that moment.21 Orchestrated by Sam Adams, depositions were taken The jury was confined and guarded overnight from 96 people who claimed to be eyewitnesses to the throughout the trial in the home of the jail keeper, not to shooting, almost all of them unfavorable to Captain Pres- prevent them from being prejudiced by exposure to news ton and the soldiers. The depositions were then published reports and other publicity about the case, but because and distributed throughout the province under the title the law then dictated that once a jury was sworn, it must “A Short Narrative of the Horrid Massacre in Boston.” be sequestered until a verdict was reached. They were Not to be outdone, John Adams and Josiah Quincy, provided with bedding and three meals a day, which assisted by Thomas Hutchinson and General Thomas included a variety of alcoholic beverages.22 Gage, commander-in-chief of all British troops in North Following an opening statement by Samuel Quincy, America who was then in New York, obtained deposi- the Crown called 20 witnesses over the next two days tions from dozens of people who likewise claimed to be to testify against Captain Preston. To a great extent their eyewitnesses, most of them favorable to Captain Preston testimony was contradictory as to the conduct of the and the soldiers and decidedly unfavorable to the mob crowd just before the shooting, what Preston was wear- the soldiers confronted that night. The contents of these ing, where he was standing in relation to the soldiers, depositions were leaked to the press and the public.15 whether anyone shouted the word “fire,” and, if so, whether it was Preston, one or more of the soldiers, and/ Captain Preston’s Trial or one or more members of the crowd who did so. The The trial of Captain Preston began on October 24 and defense had a field day with them on cross-examination, ended on October 30, 1770, the first time in the history of eliciting testimony from some that ended up being more Massachusetts that a criminal trial took longer than one favorable to the defense than to the prosecution. After

14 | July/August 2013 | NYSBA Journal quoting from various legal treatises to educate the jury on the applicable laws, Samuel Quincy announced that the Crown rested its case.23 John Adams then delivered his opening statement. The defense called 25 witnesses over the next three days to testify on behalf of Captain Preston, including Thomas Hutchinson. Not surprisingly, their testimony supported Preston’s contention that he and the soldiers had good reason to believe their lives were in imminent danger from the crowd and that, in any event, he did not order the men to fire. Unlike the testimony of the Crown’s wit- nesses, their testimony was largely consistent and did not suffer much damage on cross-examination by the Crown’s lawyers.24 Captain Preston did not testify at his trial, not because he invoked his right against self-incrimination, but because the rules of evidence in effect then prohibited the defendant in a criminal case from doing so, the theory being that, with so obvious a vested interest in the out- come, his credibility would be worthless. And although they were legally eligible to testify at Preston’s trial, none of the soldiers were called by either the Crown or the defense. Of course, had they been called to testify, they could, certainly should, and probably would have refused to do so, invoking their right against self-incrim- ination.25 Just imagine the ethical quandary John Adams and the other members of the defense team would have John Adams found themselves in if any of the soldiers were called by the Crown to testify at Preston’s trial. When the court reconvened on Saturday, October Although the jury reached a verdict within three 27, the defense rested, and Adams and then Auchmuty hours, they had to wait until the court reconvened at delivered their closing statements. Adams dismantled 8:00 a.m. the next day, October 30, before it could be the unfavorable testimony given by the Crown’s wit- announced. They found Captain Preston not guilty and nesses, highlighted the favorable testimony given by the he was immediately released from jail, from which he defense’s witnesses and even some of the prosecution’s repaired to the relative safety of Castle William, the island witnesses, and lucidly explained the law of self-defense fortress located in Boston harbor to which the 29th Regi- to the jury. Auchmuty’s closing statement was much ment had been removed shortly after the shooting. There briefer, dealt almost exclusively with the law as opposed he set about the task of assisting the soldiers in their to the facts, and was generally thought to be much less defense and preparing to defend himself against civil eloquent. Josiah Quincy, though present throughout the suits for damages reportedly being brought by the sur- trial, seems not to have participated in the questioning viving victims of the shooting and the families of those of the witnesses or the making of opening and closing who did not survive.29 statements.26 No complete transcript of Captain Preston’s trial, if On Monday, October 29, it was Robert Treat Paine’s one was made, has been found. Our knowledge of what turn, on behalf of the Crown, to deliver a closing state- occurred at the trial is based upon the various summa- ment. But Adams’s closing was a tough act to follow, and ries of it prepared by the participants, but in recounting Paine was simply not up to the task. His closing seems to the testimony of the witnesses they did not distinguish have made little impression on the jury or, for that matter, between direct and cross-examination.30 anyone else in the courtroom.27 When Paine finished, the judges, each in turn, spent The Soldiers’ Trial a total of four hours that afternoon charging the jury on The soldiers’ trial began on November 27 and ended on the applicable law. They also gave their own analysis of December 5, 1770. It was conducted in the same court- the merits of the case, something that judges today are room as Preston’s trial and presided over by the same not permitted to do in New York or, to my knowledge, in four judges, with Benjamin Lynde, Jr. again presiding. any other state. Finishing at about 5:00 p.m., the judges The Crown was still represented by Robert Treat Paine directed the jury to retire to their deliberations.28 and Samuel Quincy.31

NYSBA Journal | July/August 2013 | 15 But the composition of the defense team had changed diers would have fired long before. I then asked him in the interim. Auchmuty had not been retained to repre- whether he thought the soldiers were abused a great sent the soldiers. His place was taken by Sampson Salter deal after they went down there. He said he thought they were. I asked him whether he thought the soldiers Bowers, whose task would be largely that of vetting the would have been hurt if they had not fired. He said he prospective jurors which, as will be seen, he performed really thought they would, for he heard many voices rather well. John Adams became the senior member cry out “kill them.” I asked him then, meaning to close of the team, but this time Josiah Quincy would cross- all, whether he thought they fired in self-defense or examine the Crown’s witnesses and conduct the direct on purpose to destroy the people. He said he really examination of the defense’s witnesses.32 thought they did fire to defend themselves; that he did Incredibly enough, the soldiers almost ended up with not blame the man, whoever he was, that shot him.36 the same jury panel that had initially been assembled The defense rested, after which the Crown called two for Preston’s trial, but the judges, thinking better of it, rebuttal witnesses. The proof was finally closed, and the instead arranged for the drawing of a new panel. As case was adjourned for the weekend.37 in Preston’s trial, the panel was exhausted during jury When the trial resumed on Monday morning, Josiah selection, making it necessary, once again, to pull in tales- Quincy delivered his closing statement for the defense. men. But when the process was completed, not one of the It was not as effective as his summation following the jurors was from Boston, a coup for the defense. This jury, testimony of the Crown’s witnesses, nor as eloquent and too, was sequestered and guarded throughout the trial.33 memorable as the closing statement made immediately after by John Adams.38 After a lengthy speech, during which he marshaled Captain Preston did not testify the evidence, expounded on the applicable law, and at his trial, because the squarely addressed the politics of the case, Adams fin- ished with the following remarks on self-defense, des- rules of evidence prohibited tined to become famous: him from doing so. Facts are stubborn things. And whatever may be our wishes, our inclinations, or the dictates of our pas- Following an opening statement by Samuel Quincy, sions, they cannot alter the state of facts and evidence. the Crown called 16 witnesses over the next three days, Nor is the law less stable than the fact. If an assault was the first being John Adams’s own law clerk. Most of the made to endanger their lives, the law is clear – they had a right to kill in their own defense. If it was not witnesses testified about the various clashes between so severe as to endanger their lives, yet if they were soldiers and civilians that took place in Boston during assaulted at all, struck and abused by blows of any the days leading up to March 5 and the shooting. The sort, by snow balls, oyster shells, cinders, clubs, or most damning testimony was that of Samuel Hemming- sticks of any kind, this was a provocation, for which way, who discussed a conversation he had with Private the law reduces the offense of killing down to man- Matthew Kilroy one or two weeks before the shootings. slaughter, in consideration of those passions in our Kilroy, already fingered by another prosecution witness nature which cannot be eradicated. To your candour as being the soldier who shot John Gray, had said that and justice I submit the prisoners and their cause.39 “he would never miss an opportunity, when he had one, In response to the closing statements of Quincy and to fire on the inhabitants, and that he had wanted to have Adams, Robert Treat Paine delivered a weak and rather an opportunity ever since he landed.”34 lackluster one on behalf of the Crown. Then, over the next The testimony of the prosecution witnesses having three-and-a-half hours, addressing the jury, the judges, been concluded, Samuel Quincy presented his summary each in turn, summed up and commented on the evi- and analysis of the facts and applicable law and rested dence and instructed them on the applicable law. Justice the Crown’s case. His brother Josiah, on behalf of the Trowbridge told them that “malice is the grand criterion defense, then delivered a lengthy opening statement in that distinguishes murder from all other homicides.” which he likewise discussed the applicable law and dis- Justice Oliver, commenting on Patrick Carr’s dying dec- sected the testimony given by the Crown’s witnesses.35 laration to Dr. Jeffries, said, “Carr was not upon oath, it is Over the next three days the defense called some 30 true, but you will determine whether a man just stepping witnesses to testify, including Josiah Quincy’s own law into eternity is not to be believed, especially in favor of a clerk and Henry Knox, most of whom gave accounts set of men by whom he had lost his life.”40 supporting the contention that the soldiers fired in self- On December 5 the jury was charged and in less than defense. The high point, though, was the testimony given three hours came in with their verdict. They found six of by Dr. John Jeffries, the surgeon who treated Patrick Carr, the soldiers not guilty of any crime, but they found Hugh one of the mortally wounded victims of the shooting: Montgomery and Matthew Kilroy guilty of manslaugh- I asked him [meaning Carr] whether he thought the ter, likely because there was little doubt that they, at least, soldiers would fire. He told me he thought the sol- had fired into the crowd.41

16 | July/August 2013 | NYSBA Journal At this point it is worth noting that Governor Hutchin- would have been as foul a stain upon this country as son, before the trials began, had received instructions the executions of the Quakers or witches anciently. As from the ministry in England to grant a reprieve to Pres- the evidence was, the verdict of the jury was exactly 47 ■ ton and the soldiers if they were convicted until an actual right. pardon was eventually obtained from the King. News of this had reached Boston in advance of the trials and cre- 1. Hiller B. Zobel, The Boston Massacre 182 (N.Y.: Norton, 1971) (Zobel). ated quite a stir.42 2. Id., pp. 185–86. The six soldiers who had been acquitted were imme- 3. Id., pp. 194–95. diately released from custody. Captain Preston sailed for 4. Id., p. 184. England the next day, never to return. Montgomery and 5. Id., p. 203. Kilroy, on the other hand, were remanded to jail to await their sentencing on December 14. They were facing the 6. Id., pp. 204–205. possibility of death, manslaughter being a capital offense. 7. Diary and Autobiography of John Adams, 4 Vols. 3:292–3:293 (L.H. But- terfield et al., eds. Cambridge, Mass.: Harvard Univ. Press, 1961). But when they appeared in court that day and were asked 8. Diary 1:350–1:351n. why they should not be sentenced to death, they invoked 9. Thomas J. Fleming, Verdicts of History 1: The Boston Massacre, Am. Heri- what was called the “benefit of clergy,” which spared tage Mag. 18.1 (1966), p. 2 (Fleming). their lives. Benefit of clergy could be claimed only once 10. Zobel, p. 197. in a person’s lifetime. The price they had to pay for it was 11. Id., pp. 241–42. gruesome – as John Adams and others looked on, the 12. Id., pp. 242–43. sheriff branded each of the soldiers on the right thumb to 13. Fleming, supra note 9, p. 3. ensure that they would never again invoke the benefit of 14. Zobel, p. 211. clergy. They were then released from custody and soon 15. Id., pp. 210–14. rejoined their regiment, now in New Jersey.43 Private Hugh Montgomery, just before leaving Boston 16. Id., p. 248. 17. Legal Papers of John Adams. 3 Vols. 1:xlviii–1:xlix (L. Kinvin Wroth et al., to rejoin his regiment, disclosed to John Adams that it eds. Cambridge, Mass.: Belknap Press, 1965) (Legal Papers). was he, not Captain Preston, who urged the soldiers to 18. Zobel, pp. 247–48. 44 fire. 19. Id., p. 219. The soldiers’ trial was transcribed by John Hodgson, 20. Id., pp. 244–45. who was not a trained or experienced court reporter but 21. Legal Papers 3:17–3:19; Zobel, pp. 244–46. merely someone who could take shorthand. His tran- 22. Legal Papers 3:21; Zobel p. 250; Hiller B. Zobel, The Jury on Trial, Am. scription was published, but its accuracy and complete- Heritage Mag. 46.4 (1995), p. 6. 45 ness are doubtful. 23. Legal Papers 3:50–3:62; Zobel, pp. 248–54. Many who attended the trials, both those of radical 24. Legal Papers 3:62–3:81; Zobel, pp. 254–60. and those of loyalist tendencies, agreed that the conduct 25. Zobel, pp. 254–55. of the proceedings and all persons in the courtroom was 26. Legal Papers 3:81–3:89; Zobel, pp. 260–64. 46 consistently orderly and decorous. 27. Legal Papers 3:90–3:93; Zobel, p. 264. 28. Legal Papers 3:93–3:98; Zobel, pp. 264–65. John Adams’s Reflections 29. Legal Papers 3:22–3:24; Zobel, pp. 265–66. There is little evidence that the reputation or livelihood of 30. Legal Papers 3:20–3:21; Zobel, pp. 248–49. John Adams suffered as a result of his defense of Preston 31. Legal Papers 3:24; Zobel, pp. 268–69. and the soldiers. Indeed, he was elected to the House of 32. Zobel, p. 268. Representatives from Boston in June 1770, and his stellar 33. Id., pp. 269–71. career in government service thereafter is well known 34. Legal Papers 3:101–3:144; Zobel, pp. 271–76. to all of us. He handled his last case in December 1777, 35. Legal Papers 3:144–3:169; Zobel, pp. 276–81. immediately after which he replaced Silas Deane as a 36. Legal Papers 3:169–3:226; Zobel, pp. 281–87. member of the American Commission in Paris. 37. Zobel, p. 287. Although he kept a diary throughout his life, John 38. Legal Papers 3:226–3:241; Zobel, pp. 287–89. Adams recorded in it few of his thoughts concerning the 39. Legal Papers 3:242–3:270; Zobel, pp. 289–93. two trials. But many years later, in his own retirement, 40. Legal Papers 3:270–3:312; Zobel, pp. 293–94. Adams had this to say: 41. Legal Papers 3:312–3:314; Zobel, p. 294. The part I took in defense of Captain Preston and the 42. Legal Papers 3:13–3:14. soldiers procured me anxiety and obloquy enough. 43. Legal Papers 3:29–3:31; Zobel, pp. 294–98. It was, however, one of the most gallant, generous, 44. Zobel, p. 300. manly, and disinterested actions of my whole life, 45. Zobel, p. 270. and one of the best pieces of service I ever rendered 46. Legal Papers 1:xxix. my country. Judgment of death against those soldiers 47. Zobel, p. 302.

NYSBA Journal | July/August 2013 | 17 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected]) has represented plaintiffs in personal injury cases for over 25 years and is of counsel to Ressler & Ressler in New York City. He is the author of New York Civil Disclosure and Bender’s New York Evidence (both by LexisNexis), as well as the 2008 and 2013 Supplements to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School, and Professional Responsibility and Electronic Evidence & Disclosure at Brooklyn Law School. In addition to presenting NYSBA’s Annual CPLR Update Program statewide, he serves on the Office of Court Administration’s CPLR Advisory Committee, as Associate Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee, and is a frequent lec- turer and writer on these subjects. Sweat the Small Stuff

Introduction ment at different times, before differ- acknowledgment substantially com- I like to think of myself as a “big pic- ent notaries, and neither was present plied with the Real Property Law”:8 ture” kind of guy, never lost in the when the other executed the docu- [The husband] submitted an affida- trees, always able to see the forest. I ment.3 Up to this point, the execution vit from the notary public who had also like to think of myself as highly was not subject to attack. The Court of witnessed his signature in 1997 and evolved, aided in this evolution by Appeals zeroed in on the certificates of executed the certificate of acknowl- heavy doses of self-help palaver. A acknowledgement that accompanied edgment. The notary, an employee personal favorite: “Don’t sweat the each signature: of a local bank where the husband small stuff.” The certificates appear to have been then did business, averred that it While this combination of qualities typed at the same time, with spaces was his custom and practice, prior helps make me a thoughtful, easygo- left blank for dates and signatures to acknowledging a signature, to ing fellow (just ask my sons), the com- that were to be filled in by hand. confirm the identity of the signer bination can have dangerous repercus- The certificate of acknowledgment and assure that the signer was the sions in my professional life. Danger relating to [the wife’s] signature person named in the document. lurks behind many of those trees, and contains the boilerplate language He stated in the affidavit that he the small stuff can be deadly. Read- typical of the time. However, in the presumed he had followed that ing the Court of Appeals decision in acknowledgment relating to [the practice before acknowledging the Galetta v. Galetta,1 it is clear that the husband’s] signature, a key phrase husband’s signature.9 lawyer’s touchstone should be: “Sweat was omitted and, as a result, the The trial court denied the wife’s the small stuff.” certificate fails to indicate that motion for summary judgment, find- In Galetta, a prospective bride and the notary public confirmed the ing that the “acknowledgment of the groom executed a prenuptial agree- identity of the person executing husband’s signature substantially ment shortly before their wedding. the document or that the person complied with the requirements of Each signed the agreement, and each was the individual described in the Real Property Law.”10 On appeal, signature was notarized. In the litiga- the document. The record does three justices of the Fourth Depart- tion that ensued after the husband not reveal how this error occurred ment affirmed, but upon a different filed for divorce, the wife sought to and apparently no one noticed the rationale, holding “that the certifi- set aside the prenuptial agreement. omission until the issue was raised cate of acknowledgment was defec- It was undisputed that both parties’ in this litigation.4 tive but . . . that the deficiency could signatures on the document were Domestic Relations Law § 236(B)(3)5 be cured after the fact and that the authentic, and that the agreement, (DRL) requires that prenuptial agree- notary public affidavit raised a triable prepared by the husband’s attorney ments be executed with the same for- question of fact as to whether the pre- (the wife elected not to be represented mality as a recorded deed,6 and the nuptial agreement had been properly by counsel), was not procured by certificate of acknowledgment accom- acknowledged when it was signed in fraud or duress.2 What possible basis panying the husband’s signature did 1997.”11 could there be for setting the agree- not comply with the requirements of The two dissenters, believing first ment aside? the Real Property Law (RPL).7 It was that the husband’s argument was upon this error that the wife sought unpreserved, would have grant- Oops! a declaration that the agreement was ed summary judgment to the wife, While the signatures on the prenup- unenforceable. “declaring the prenuptial agreement tial agreement were on a single page, The husband argued that the agree- to be invalid because the acknowledg- the parties had executed the agree- ment was enforceable because “the ment was fatally defective.”12

18 | July/August 2013 | NYSBA Journal ning with the words “and duly No Cure From the Court and 306, and discussed the prevail- acknowledged . . .” established of Appeals ing practice in 1997, when the docu- that the signer had made the requi- A unanimous Court of Appeals13 ment was executed, for certificates of site oral declaration.20 reversed, determining that the wife “was acknowledgement: entitled to summary judgment declaring At the time the parties here signed This language was omitted in the the prenuptial agreement to be unen- the prenuptial agreement in 1997, certificate accompanying the hus- forceable.”14 The Court first examined proper certificates of acknowledg- band’s signature: the language of DRL § 236(B)(3) and ment typically contained boiler- In the certificate of acknowledg- reviewed its 1997 decision in Matisoff plate language substantially the ment relating to the husband’s v. Dobi,15 where the Court held that same as that included in the cer- signature, the “to me known and an unacknowledged prenuptial agree- tificate accompanying the wife’s known to me” phrase was inexpli- ment was invalid. signature: “before me came (name cably omitted, leaving only the fol- The Court next examined the of signer) to me known and known lowing statement: “On the 8 [sic] acknowledgement procedure set forth to me to be the person described day of July, 1997, before me came in RPL § 291, the procedure DRL § in and who executed the forego- Gary Galetta described in and who 236(B)(3) requires for proper execution: ing instrument and duly acknowl- executed the foregoing instrument Real Property Law § 291, govern- edged to me that s/he executed and duly acknowledged to me that ing the recording of deeds, states the same.” The “to me known and he executed the same.” Absent the that “[a] conveyance of real prop- known to me to be the person omitted language, the certificate erty . . . on being duly acknowl- described in the document” phrase does not indicate either that the edged by the person executing the satisfied the requirement that the notary public knew the husband same, or proved as required by this official indicate that he or she or had ascertained through some chapter, . . . may be recorded in the knew or had ascertained that the form of proof that he was the per- office of the clerk of the county signer was the person described son described in the prenuptial where such real property is situat- in the document. The clause begin- agreement.21 ed.” Thus, a deed may be recorded if it is either “duly acknowledged” or “proved” by use of a subscribing witness. Because this case involves an attempt to use the acknowledg- ment procedure, we focus on that methodology. The Court explained that the We Find acknowledgment procedure achieves two goals. First, to prove the identity of Missing Heirs the person whose name and signature R appears on the document and, second, A Better Way “[to impose] on the signer a measure of deliberation in the act of executing the document.”16 The Court turned to the specific issues at bar, to wit, “whether the cer- tificate of acknowledgment accompa- nying defendant husband’s signature Serving Trust Institutions and Probate was defective”17 and, if the certificate Attorneys in Greater New York Since 1967. was defective, “whether such a defi- ciency can be cured and, if so, whether Reasonable, Non-Percentage Based Fees. A 97% Success Rate. the affidavit of the notary public pre- pared in the course of litigation was Results Guaranteed or No Charge. sufficient to raise a question of fact precluding summary judgment in the wife’s favor.”18 1.800.663.2255 The Court noted that three provi- [email protected] sions of the RPL “must be read togeth- er to discern the requisites of a proper www.heirsearch.com acknowledgment,”19 that is §§ 292, 303,

NYSBA Journal | July/August 2013 | 19 Determining that the acknowledge- but the certificate simply failed to the document was the same per- ment did not conform to the statutory reflect that fact. Thus, the husband son named in the document” and requirements, the Court next consid- makes a strong case for a rule per- he was “confident” he had done ered whether the defect could be cured, mitting evidence to be submitted so when witnessing the husband’s and whether the notary public’s affida- after the fact to cure a defect in signature.26 vit submitted to the trial court created a certificate of acknowledgment The Court concluded: a question of fact precluding summary when that evidence consists of [E]ven assuming a defect in a cer- judgment.22 The Court distinguished proof that the acknowledgment tificate of acknowledgment could Galetta from Matisoff, the earlier case was properly made in the first be cured under Domestic Relations where there was no acknowledge- instance – that at the time the docu- Law § 236(B)(3), defendant’s sub- ment,23 because in Galetta “there was ment was signed the notary or mission was insufficient to raise a triable question of fact as to the propriety of the original acknowl- On the one hand, Galetta can be regarded edgment procedure. Plaintiff was therefore entitled to summary as a paean to form over substance. judgment declaring that the pre- nuptial agreement was unenforce- able.27 an attempt to secure an acknowledged other official did everything he document but there was an omission or she was supposed to do, other “Be Afraid, Be Very Afraid” in the requisite language of the certifi- than include the proper language For the small subset of practitioners cate of acknowledgment.”24 The Court in the certificate. By considering engaged in the practice of drafting acknowledged that this type of evidence, courts would prenuptial agreements and oversee- [a] compelling argument can be not be allowing a new acknowl- ing their execution, the implications of made that the door should be left edgment to occur for a signature Galetta are clear. open to curing a deficiency like that was not properly acknowl- Does Galetta have any lessons for the one that occurred here where edged in the first instance; instead, the rest of us? the signatures on the prenuptial parties who properly signed and Certainly, affidavits are a part of agreement are authentic, there are acknowledged the document years every litigator’s (and many a non- no claims of fraud or duress, and before would merely be permitted litigator’s) professional life. They are, the parties believed their signa- to conform the certificate to reflect I suspect, the most common litigation tures were being duly acknowl- that fact.25 document, and their ubiquity means edged but, due to no fault of their Unfortunately for the husband, the they rarely rate a second thought. own, the certificate of acknowledg- Court never arrived at considering Affidavits must be in admissible ment was defective or incomplete. whether a cure was possible. form, and that requires proper exe- Although neither party submitted [S]imilar to what occurred in Mati- cution. An attorney who routinely evidence concerning how the error soff, the proof submitted here was spends hours agonizing over the text occurred, we can infer from the fact insufficient. In his affidavit, the of a 10-line affidavit often will not even that the signatures and certificates notary public did not state that he glance at what appears above or below of acknowledgment are contained actually recalled having acknowl- the body of the affidavit.28 If famil- on a single page of the document edged the husband’s signature, nor iarity breeds contempt, contempt can in the same typeface that the cer- did he indicate that he knew the breed mistakes, sometimes fatal. tificates were typed or printed by husband prior to acknowledging Accordingly, practitioners should the same person at the same time. his signature. The notary averred heed Galetta’s strict application of the Since one acknowledgment includ- only that he recognized his own rules governing execution of docu- ed all the requisite language and signature on the certificate and that ments in all situations, not just those the other did not, it seems likely he had been employed at a particu- involving DRL § 236(B)(3). For exam- that the omission resulted from a lar bank at that time (corroborating ple, CPLR 2309(c) requires that an typographical error. Thus, the defi- the husband’s statement concern- affidavit that is executed outside New ciency may not have arisen from ing the circumstances under which York State be accompanied by a Cer- the failure of the notary public to he executed the document). As for tificate of Conformity: engage in the formalities required the procedures followed, the nota- § 2309. Oaths and affirmations when witnessing and acknowledg- ry had no independent recollec- (c) Oaths and affirmations taken ing a signature. To the contrary, it tion but maintained that it was his without the state. An oath or affir- may well be that the prerequisites custom and practice “to ask and mation taken without the state of an acknowledgment occurred confirm that the person signing shall be treated as if taken within

20 | July/August 2013 | NYSBA Journal the state if it is accompanied by goal of imposing “on the signer a mea- 8. Id. such certificate or certificates as sure of deliberation in the act of execut- 9. Id. at *2. would be required to entitle a deed ing the document,” that requisite lan- 10. Id. acknowledged without the state guage was present in the acknowledg- 11. Id. at *3 to be recorded within the state if ment for the husband’s signature, and 12. Id. such deed had been acknowledged there was no proof that any error on 13. Judge Abdus-Salaam took no part in the case. 14. Galetta, 2013 N.Y. Slip Op. 2831. before the officer who adminis- the part of the notary detracted from 15. 90 N.Y.2d 127 (1997). tered the oath or affirmation. the husband’s “deliberation” in execut- 16. Galetta, 2013 N.Y. Slip Op. 2831. A number of courts have held that ing the agreement. 17. Id. the absence of a certificate of con- On the other hand, the procedures 18. Id. formity, absent effort to remedy the set forth in RPL § 291 have a pur- 19. Id. at *4. 29 defect, is a fatal defect. However, pose and reflect societal goals. Unlike 20. Id. at *4–5 (footnote omitted). most courts that have considered the Galetta, there are many cases where 21. Id. at *5. issue have held the absence of a certifi- parties executing a document are not 22. Id. The Court rejected the wife’s argument that cate of conformity is not a fatal defect, available, or able, to offer testimony the issue was not preserved. but a “mere irregularity” subject to the concerning the circumstances sur- 23. The Court explained: “When there is no acknowledgment at all, it is evident that one of the generous standard of relief set forth in rounding the execution of a document purposes of the acknowledgment requirement – to CPLR 2001. when a dispute later arises. And, let’s impose a measure of deliberation and impress In a recent decision (noting the not forget that the Court left open the upon the signer the significance of the document – has not been fulfilled. Thus, a rule precluding a agreement of the First and Third possibility that a defect in a certificate party from attempting to cure the absence of an Departments), the Second Department, of acknowledgement could be cured acknowledgment through subsequent submissions in Fredette v. Town of Southampton,30 upon a proper evidentiary showing. appears to be sound.” Id. at *8. held that a trial court Regardless of how you view the 24. Id. 25. Id. at *8. improvidently exercised its discre- Galetta decision, the Court’s message ■ 26. Id. The Court discussed in detail the deficien- tion in excluding from consider- is clear: “Sweat the small stuff.” cies in proof, and how those defects might have ation the affidavits of Ken Glaser been overcome. and Kris Kubly on the ground 1. Galetta v. Galetta, 2013 N.Y. Slip Op. 03871 27. Id. at *9. (2013). that the affidavits, while nota- 28. An earlier Burden of Proof column, We All Do It, 2. No issue as to capacity of either party was N.Y. St. B.J. (Mar./Apr. 2010), p. 20, addressed an rized, were not accompanied by a raised. item appearing above the body of the affidavit. certificate of conformity required 3. Galetta, 2013 N.Y. Slip Op. 03871. 29. PRA III v. Gonzalez, 54 A.D.3d 917 (2d Dep’t by CPLR 2309(c). This Court has 4. Id. at *2. 2008) (Summary judgment for plaintiff was previously held that the absence 5. DRL § 236(B)(3) provides, in pertinent part: reversed where, inter alia, the affidavits in support of the motion did not have certificates of confor- Agreement of the parties. An agree- of a certificate of conformity for mity: “We further note that the affidavits provided ment by the parties, made before or an out-of-state affidavit is not a by the plaintiff were both signed and notarized during the marriage, shall be valid and outside of the State of New York, and were not fatal defect, a view shared by the enforceable in a matrimonial action if accompanied by the required certificates of confor- such agreement is in writing, subscribed Appellate Division, First and Third mity, and the plaintiff made no attempt to rectify by the parties, and acknowledged or Departments as well.31 this defect” (citation omitted)). proven in the manner required to entitle Whether the rule from this line of a deed to be recorded. 30. 95 A.D.3d 940 (2d Dep’t 2012). cases survives Galetta is a question, 6. Galetta, 2013 N.Y. Slip Op. 03871. 31. Id. (citations omitted). to paraphrase Professor David Siegel, 7. Id. better left to be determined in someone else’s case.

Conclusion On the one hand, Galetta can be regarded as a paean to form over substance. After all, the husband and wife both signed the prenuptial agree- ment, before notaries, and there was no fraud or duress. While the notary acknowledging the husband’s signa- ture may not have ascertained the husband’s identity before witnessing his signature, it was, in fact, the hus- band’s name and signature that were endorsed on the agreement. As for the

NYSBA Journal | July/August 2013 | 21 The “Professional Reliability” Basis for Expert Opinion Testimony By Hon. John M. Curran

he “professional reliability” exception for expert Traditional common law rule prohibited an expert testimony has been recognized in New York since from expressing an opinion based on material not in Tat least 1974.1 It is frequently referred to by the evidence or not personally known to the expert.6 This courts as the professional reliability exception to the traditional approach required the expert to detail the facts rule against hearsay.2 It is respectfully submitted, how- upon which he or she relied before rendering an opinion ever, that the “professional reliability” exception is not and typically involved the use of hypothetical questions an exception to the hearsay rule but an exception to the – which eventually fell out of favor.7 Statutes ultimately traditional evidentiary foundation required for expert eliminated the need for hypotheticals.8 In New York, opinions. CPLR 4515 was enacted in 1963, allowing expert wit- Referring to the professional reliability exception as an nesses to express their opinions “without first specifying exception to the hearsay rule creates conceptual confu- the data upon which it is based.” Rule 703 of the Federal sion which has and will continue to cause the exception Rules of Evidence (FRE), proposed in 1969 and enacted to be improperly used as a “conduit for hearsay.”3 When in 1975, provides that an expert may base an opinion on such hearsay is allowed, it deprives the opposing party of its rightful opportunity to cross-examine the truth of the HON. JOHN M. CURRAN is a Justice of the Supreme Court in Erie County. matter asserted.4 Until such time as the Court of Appeals He currently presides over the Medical Malpractice Part and previously resolves this “open question” of New York law,5 or the served as the Justice presiding over the Eighth Judicial District Commer- Legislature enacts a statute on the subject, lawyers and cial Division. He serves as chairman of the education subcommittee for the courts are urged to refrain from treating the profes- the New York court system’s Electronic Discovery Working Group and was sional reliability foundation exception as an exception to the primary draftsman of its Bench Book for Electronic Discovery. the hearsay rule.

22 | July/August 2013 | NYSBA Journal matters not personally known to the expert and not in the statements to the expert, because those statements met record if the matter is “of a type reasonably relied upon the “test of acceptance in the profession.”18 The parties by experts in a particular field.” One treatise has sug- assumed that the expert was therefore also allowed “to gested that this proposed change in federal evidentiary repeat to the jury all the hearsay information on which it law influenced the New York Court of Appeals to liberal- was based.”19 The Court referred to this as a “question- ize its approach to the foundation requirements for expert able assumption.”20 opinion testimony.9 In Goldstein, the Court drew a clear distinction between the admissibility of an expert’s opinion based in part on Stone out-of-court materials and the admissibility of the hear- In People v. Stone,10 the Court of Appeals affirmed admis- say information underlying that opinion. While the Court sion of expert psychiatric opinion testimony that was acknowledged that FRE Rule 703 had been amended in based in part on extrajudicial statements the expert pro- 2000 to allow such hearsay evidence under a strict analy- cured from individuals who did not testify at trial. The sis,21 the Court declined to decide “whether the New opinion regarding the defendant’s sanity was allowed York rule is the same as, or less or more restrictive than, because the trial court had “reasonably assured itself of a this federal rule.”22 legally competent basis for the psychiatrist’s opinion.”11 The issue in Stone was whether the opinion would be Hinlicky allowed, not whether the hearsay extrajudicial statements The most recent Court of Appeals decision to address were admissible. “the professional reliability exception to the hearsay rule” is Hinlicky v. Dreyfuss.23 There, the Court affirmed admis- Sugden sion into evidence of an algorithm which was a portion A few months later, in People v. Sugden,12 the Court of of clinical guidelines published by the American Heart Appeals recognized two exceptions to the common law Association in association with the American College of rule that expert testimony be based on matters personally Cardiology. The defendant physician testified that he fol- known to the expert or in the record: (1) an expert may lowed the algorithm in his practice to evaluate patients, rely on out-of-court material “if it is of a kind accepted including the plaintiff. The trial court allowed admission in the profession as reliable in forming an opinion”; and (2) an expert may rely on out-of-court material which “comes from a witness subject to full cross-examination [at] the trial.”13

Hambsch The first time the Court of Appeals referred to the “‘pro- fessional reliability’ exception” was in Hambsch v. New York City Transit Authority,14 where the Court held that the exception requires “evidence establishing the reliability of the out-of-court material.”15 In Hambsch, the plaintiff sought to introduce an expert opinion based in part on the expert’s discussion with a radiologist. The Court found that the plaintiff failed to present evidence of the professional reliability of such a foundation and affirmed exclusion of the opinion.

Goldstein The best explanation by the Court of Appeals of the professional reliability foundation exception is in People v. Goldstein.16 There, the Court reversed the defendant’s conviction and ordered a new trial because the prosecu- tion’s psychiatrist “recounted statements made to her by people who were not available for cross-examination.”17 While the Court’s holding was ultimately based on a vio- lation of the Sixth Amendment’s “confrontation clause,” the Court laid out a detailed analysis of the professional reliability foundation exception, holding that the psy- chiatrist’s “opinion [under that exception] was admis- sible,” even though it was based in part on out-of-court

NYSBA Journal | July/August 2013 | 23 of the algorithm “under the professional [re]liability and the Court of Appeals has expressly declined to do exception to the rule against hearsay.”24 so, the lower courts run the risk of creating a “trackless The algorithm was not hearsay, said the Court, because morass of arbitrary and artificial rules” if they appear to it was not offered to prove the truth of the matter asserted create such an exception. therein but to demonstrate the process the defendant A recent spate of Appellate Division cases appears to physician followed.25 Because defense counsel urged that be running this risk.33 Judge Colleen Duffy has soundly “the algorithm was properly admitted under the profes- questioned these decisions in an article that provides an sional reliability exception to the hearsay rule,” the Court excellent discussion of the law on this subject.34 addressed the exception only to observe that it did not The decisions discussed by Judge Duffy involve civil need to reach that issue. The Court added, “We note only commitment proceedings against alleged dangerous sex that whether evidence may become admissible solely offenders brought under Article 10 of the Mental Hygiene Law (MHL). But the language of these decisions is not limited to such proceedings and may lead to their cita- Nothing in any of the decisions tion in other contexts. Caution is urged against a careless repetition of the phraseology from these decisions as it from the Court of Appeals on this may be more appropriate to limit them to Article 10 civil subject creates a new exception to commitment proceedings. One of the problems in trying to limit these decisions, however, is that the statutory the rule against hearsay. language provides almost no basis for such a limitation. MHL § 10.07(c) states that Article 45 of the CPLR (Evi- because of its use as a basis for expert testimony remains dence) is applicable to trials conducted in civil commit- an open question in New York.”26 While the Court ref- ment proceedings. While MHL § 10.08(b) provides the erenced FRE Rule 703, it also observed that, in Goldstein, Attorney General’s psychiatric examiner with broad it had “acknowledged the need for limits on admitting access to the respondent’s “relevant” records, and MHL the basis of an expert’s opinion to avoid a ‘conduit for § 10.08(g) allows admission of reports by such examiners hearsay.’”27 pursuant to CPLR 4518 (Business Records Exception), the The Court’s reference to the “professional reliability statute does not authorize receipt of hearsay evidence. exception to the hearsay rule” is unfortunate because it The most troubling aspect of these decisions’ routine did not make its decision on that basis. The Court’s refer- reference to a “professional reliability exception to the ence in that regard should be viewed as nothing more hearsay rule,” an exception not yet created under law, than quoting the defendant’s argument on appeal which is their allowance of hearsay evidence through experts. was in turn based on the ruling of the trial court. This is despite the clear distinction drawn in Goldstein between the allowance of an opinion based on hearsay The Future of the Hearsay Rule and the receipt of the underlying hearsay evidence and is Nothing in any of the decisions from the Court of Appeals especially worrisome because a number of the decisions on this subject creates a new exception to the rule against acknowledge Goldstein but then appear to ignore it. hearsay. The Legislature has not done so either. Accord- The earliest of these decisions, State of New York v. ingly, the courts are still governed by New York common Wilkes,35 allowed an expert to testify to “limited amounts law evidentiary principles. “In New York, the general of hearsay information.” This testimony consisted of rule is that all relevant evidence is admissible unless its advising the jury of uncharged past incidents of sex admission violates some exclusionary rule . . . .”28 “This offenses as contained in parole documents that were not general principle . . . gives rationality, coherence and jus- in evidence. While recognizing the statement in Goldstein tification to our system of evidence and we may neglect – that it was a “questionable assumption” whether such it only at the risk of turning that system into a trackless evidence was proper – the Appellate Division neverthe- morass of arbitrary and artificial rules.”29 less allowed the evidence, concluding that it was “well- The prohibition against hearsay is of course one such settled” that such hearsay was admissible to inform the exclusionary rule. “The deprivation of the right of cross- jury of the basis of the expert’s opinion.36 In support of examination constitutes the principal justification for the this “well-settled” proposition, the court cited to three hearsay rule.”30 Further, “the rule is settled that if the evi- Appellate Division decisions which, on their facts, do not dence is hearsay, and a proper objection is made, the Trial stand for this extraordinary proposition.37 Moreover, the Judge must exclude the evidence unless some recognized language in Goldstein and Hinlicky expressly leaves this exception to the rule applies.”31 Unlike the FRE, New question unresolved; therefore, the issue cannot be “well York does not have a “residual exception” to the rule settled” under New York law. against hearsay.32 Because no such exception based on the The problem now is that this same concept is being professional reliability of hearsay underlying an expert’s repeated in the other departments. The most recent exam- opinion has been recognized by the Court of Appeals, ple also is of great concern because, unlike some of the

24 | July/August 2013 | NYSBA Journal other similar decisions, the court gave very little consid- 10. 35 N.Y.2d 69 (1974). eration to this important evidentiary issue.38 Instead, the 11. Id. at 75. court allowed testimony by the prosecution’s psychiatrist 12. 35 N.Y.2d 453. 13. Id. at 460–61. regarding the “details of the appellant’s sex offense his- 14. 63 N.Y.2d 723 (1984). tory” since the purpose of that testimony was to explain 15. Id. at 725 (citations omitted). the basis for the expert’s opinion. The court made no 16. 6 N.Y.3d 119 (2005). mention of Goldstein and did not address the serious 17. Id. at 122. 18. Id. at 126. implications of allowing an expert to serve as a conduit 19. Id. for such hearsay evidence.39 20. Id. It takes very little imagination to see how such a broad 21. FRE Rule 703 (“Facts or data otherwise inadmissible shall not be dis- exception to the hearsay rule could be used and abused. closed to the jury by the proponent of the opinion or inference unless the court determines that the probative value in assisting the jury to evaluate the Under the guise of exploring an expert’s opinion, vol- experts’ opinion substantially outweighs their prejudicial effect.”). umes of hearsay – untested by cross-examination – could 22. 6 N.Y.3d at 127. be presented to a jury. If these recent decisions of the 23. 6 N.Y.3d 636, 648 (2006). 24. Id. at 643. Appellate Division are blindly followed based on their 25. Id. at 645–46. easy and ready quotes, the “professional reliability” basis 26. Id. at 648 (citing Goldstein, 6 N.Y.3d at 126–27 (concerning out-of-court for expert opinion testimony will not just be a “conduit factual statements)). for hearsay,” it will cause a flood. ■ 27. Id. 28. People v. Scarola, 71 N.Y.2d 769, 777 (1988). 29. Ando v. Woodberry, 8 N.Y.2d 165, 167 (1960). 1. People v. Stone, 35 N.Y.2d 69 (1974); People v. Sugden, 35 N.Y.2d 453 (1974). In Sugden, the Court of Appeals referred to People v. DiPiazza, 24 N.Y.2d 342 30. Jerome Prince, Richardson on Evidence § 8-102 (Farrell 11th ed. 1995). (1969), as the first case of the trend toward a “professional reliability” excep- 31. Id. tion. 32. FRE Rule 807. 33. State of N.Y. v. Robert F., 101 A.D.3d 1133 (2d Dep’t 2012); State of N.Y. v. 2. State of N.Y. v. Hall, 96 A.D.3d 1460 (4th Dep’t 2012); State v. Mark S., 87 Floyd Y., 102 A.D.3d 80 (1st Dep’t 2012); State of N.Y. v. Hall, 96 A.D.3d 1460 A.D.3d 73 (3d Dep’t), lv. denied, 17 N.Y.3d 714 (2011); State of N.Y. v. Fox, 79 (4th Dep’t 2012); State of N.Y. v. Mark S., 87 A.D.3d 73 (3d Dep’t 2011); State of A.D.3d 1782 (4th Dep’t 2010); State of N.Y. v. Motzer, 79 A.D.3d 1687 (4th Dep’t N.Y. v. Anonymous, 82 A.D.3d 1250 (2d Dep’t 2011); State of N.Y. v. Motzer, 79 2010); A-Tech Concrete Co., Inc. v. Tilcon N.Y., Inc., 60 A.D.3d 603 (2d Dep’t A.D.3d 1687 (4th Dep’t 2010); State of N.Y. v. Pierce, 79 A.D.3d 1779 (4th Dep’t 2009); State of N.Y. v. Suggs, 31 Misc. 3d 1009 (Sup. Ct., N.Y. Co. 2011); State of 2010), lv. denied, 16 N.Y.3d 712 (2011); State of N.Y. v. Fox, 79 A.D.3d 1782 (4th N.Y. v. J.A., 21 Misc. 3d 806 (Sup. Ct., Bronx Co. 2008); Sunnyside Plus v. All- Dep’t 2010); State of N.Y. v. Wilkes, 77 A.D.3d 1451 (4th Dep’t 2010). state Ins. Co., 8 Misc. 3d 306 (Civ. Ct., Queens Co. 2005). 34. Hon. Colleen D. Duffy, J.S.C., The Admissibility of Expert Opinion and the 3. People v. Goldstein, 6 N.Y.3d 119, 126 (2005) (quoting Hutchinson v. Groskin, Bases of Expert Opinion in Sex Offender Civil Management Trials in New York, 75 927 F.2d 722, 725 (2d Cir. 1991)). Alb. L. Rev. 763 (2011/2012). 4. Wagman v. Bradshaw, 292 A.D.2d 84, 91 (2d Dep’t 2002) (“The danger and 35. 77 A.D.3d at 1453. unfairness of permitting an expert to testify as to the contents of inadmis- 36. Id. sible out-of-court material is that the testimony is immune to contradiction. It offends fair play to disregard evidentiary rules guaranteed by the force of 37. Id. (citing People v. Campbell, 197 A.D.2d 930 (4th Dep’t 1993) (defense common sense derived from human experience”). psychiatric testimony offered to prove involuntariness of defendant’s admis- sion and not for the truth of defendant’s statements to the psychiatrist)); 5. Hinlicky v. Dreyfuss, 6 N.Y.3d 636, 648 (2006); see also Goldstein, 6 N.Y.3d at People v. Wlasiuk, 32 A.D.3d 674 (3d Dep’t 2006) (admission of report and vid- 126–127. eotape underlying expert’s opinion deemed an improper conduit of hearsay); 6. Sugden, 35 N.Y.2d at 459; see also Cassano v. Hagstrom, 5 N.Y.2d 643, 646 Shahram v. Horwitz, 5 A.D.3d 1034 (4th Dep’t 2004) (harmless error to preclude (1959). plaintiff’s expert from testifying about a medical record previously received 7. Michael M. Martin, Daniel J. Capra & Faust F. Rossi, New York Evidence in evidence which was available for the jury to review). Handbook § 7.5, p. 630 (2d ed. 2002). 38. Robert F., 101 A.D.3d 1133. 8. Id. 39. Id. 9. Id. at § 7.3.2, p. 616.

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NYSBA Journal | July/August 2013 | 25 ANTHONY J. ENEA is the managing member of the firm of Enea, Scanlan & Sirignano, LLP of White Plains, New York. He focuses his practice on Elder Law, Guardianships, Medicaid Plan- ning and Applications, Wills, Trusts and Estates, is the Immediate Past Chair of the Elder Law Section of the New York State Bar Association, a Past President and a Founding Member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA), a member of the Council of Advanced Practitioners of NAELA, a Past Presi- dent of the Westchester County Bar Association and the founding Co-Chair of its Elder Law Committee in 1992, and a Vice President of the Westches- ter County Bar Foundation and the Columbian Lawyers Association of Westchester County. Mr. Enea wishes to acknowledge the assistance of his Senior Associate, Sara Meyers, and Associate, Helene Rahal. Article 81 Guardianships and Autism Spectrum Disorder By Anthony J. Enea

or years I have worked with the parents of children to seek legal guardianship for their ASD child who has diagnosed with Autism Spectrum Disorder (ASD). reached the age of 18. At age 18, a child in New York is FI have learned that ASD refers to a range of neu- legally considered to be an adult,3 and a parent is no rodevelopment disorders that most frequently manifest longer the legal guardian of the child once he or she has themselves as both verbal and non-verbal communication reached that age. This regularly presents a predicament difficulties, social impairments and repetitive, restricted for the parent of an ASD child who requires some level and stereotyped patterns of behavior. Autism or “classi- of intervention and assistance with respect to decision cal” ASD is the most severe form of ASD. Milder forms of making for health care and therapeutic issues, financial ASD include Asperger’s syndrome, childhood disintegra- issues, and the day-to-day management of his or her tive disorder and pervasive development disorder–not affairs. otherwise specified (PDD-NOS).1 I was recently consulted by the parent of a 21-year-old It has been estimated that one out of every 88 children ASD child. Since the child had reached adulthood, the age 8 will have an ASD, and that males are four times as mother had become extremely frustrated with the dif- likely to have an ASD as females.2 ASD affects people of ficulties she was encountering in assisting her child with all races, ethnicities and socio-economic groups. Sadly, obtaining varied supportive and medical services the there is no known cure for ASD at this time; however, child needed. Her frustration reached the boiling point much progress has been made in diagnosing ASD, dis- when she was unable to receive any information for two covering potential genetic predispositions for ASD and weeks as to where the child had been hospitalized due to treating ASD through the use of early behavioral and the facility’s need to comply with HIPAA – because her educational intervention programs. child was an adult.4 While a legal guardianship may not Unfortunately, in addition to the many challenges the be appropriate or necessary for every young adult with parents of an ASD child may face, they will also eventu- an ASD, there are numerous cases where it is both an ally be faced with the issue of whether they will need appropriate and necessary form of intervention.

26 | July/August 2013 | NYSBA Journal In deciding whether to seek legal guardianship and Goals what form of guardianship (personal, property or both) One of the goals of Article 81 is that the guardianship is most suitable for the ASD child in question, there are a should be the “least restrictive form of intervention.”6 number of factors to be considered. The guardian should have only those powers necessary to assist the incapacitated person to compensate for Issues limitations and to allow the person the greatest amount Obviously, one of the first issues that must be addressed is of independence and self-determination in light of the what level of assistance as to personal and property deci- person’s ability to appreciate and understand his or her sion making the ASD child will need – both presently and functional limitations. In appointing a guardian, the in the future. Does the child have the requisite capacity to court is guided by the concept of least restrictive form of manage his or her personal, medical and financial affairs intervention. and to communicate his or her wishes with respect there- This provision of Article 81 – to customize and tailor to? This assessment should involve a detailed review of the the rights and duties of a guardian while still allowing ASD child’s medical history and any assessments made as the AIP the self-determination and independence suit- to his or her limitations with respect thereto. able for his or her abilities – is what makes an Article 81 Section 81.02 of the N.Y. Mental Hygiene Law (MHL) guardianship proceeding significantly more desirable requires that appointment of a guardian must be “neces- than an Article 17-A proceeding under the Surrogate’s sary” to meet the alleged incapacitated person’s (AIP) Court Procedure Act (SCPA), for the vast majority of ASD needs for property management, personal care or both. cases. While the pros and cons of each proceeding have In deciding whether a guardian is necessary, § 81.02(a)(2) been the topic of many an article, these will not be the specifically provides that the court shall consider the suf- focus herein.7 ficiency and reliability of available resources, as defined While a guardianship for a “developmentally disabled in § 81.03, to provide for personal needs or property man- person” would be appropriate under either Article 81 agement without the appointment of a guardian. Section of the MHL or Article 17-A of the SCPA, unfortunately, 81.03(e) defines available resources to mean “resources Article 17-A does not permit tailoring and limiting the such as, but not limited to, visiting nurses, homemakers, authority of the guardian to the specific needs of the AIP. home health aides, adult day care and . . . residential care This distinction was highlighted in In re John J. H.8 Surro- facilities.” The definition of “resources” also includes gate Kristen Booth Glen of New York County, in denying powers of attorney, health care proxies, trusts, and repre- sentative and protective payees.5 Thus, if an adult ASD child (over the age of 18) has the capacity to execute a Durable Power of Attorney (POA) and Health Care Proxy Form (HCP), the need for the appoint- ment of a guardian may be obviated, especially if these documents are drafted in a sufficiently broad manner to meet the present and possible future needs of the ASD child.

One difficulty in assessing the needs of an ASD child ■ COURT & LITIGATION One Grand Central Place is that behavioral and social interactive issues can often 60 East 42nd Street be a major factor with respect to his or her needs. Thus, ■ BANKRUPTCY & DEPOSITORY Suite 965 any pre-guardianship assessment should focus not only New York, NY 10165 ■ TRUSTS & ESTATES on the ASD child’s ability to independently perform 212-986-7470 Tel activities of daily living (feeding, dressing, cooking, bath- ■ INDEMNITY & MISCELLANEOUS 212-697-6091 fax ing and toileting), but also on his or her ability to socially interact, such as to independently go food and clothing ■ LICENSE & PERMIT [email protected] shopping, to speak clearly, to read and understand bills and bank statements, to use a credit card and to make change. For example, many ASD adults can reside inde- pendently in a home or apartment and make decisions as to their travel and food needs, but are unable to maintain and balance a checking account or handle their financial affairs. If it is determined that a guardian is needed, it is SURETY BOND SPECIALISTS most important to fashion a guardianship that will allow the ASD child the greatest amount of freedom, indepen- dence and flexibility while also insuring that his or her 212-986-7470 personal and property management needs are adequately provided for.

NYSBA Journal | July/August 2013 | 27 the petition of the parents of an autistic child who, as part following illustrate some of the property management of their guardianship application, sought the authority powers that may be granted under § 81.21(a):11 to sell the child’s artwork and donate the proceeds as a 1. make gifts; charitable contribution, held that the Surrogate’s Court 2. enter into contracts; in an Article 17-A proceeding lacked the power to grant 3. create revocable or irrevocable trusts or property anything other than a plenary property guardianship, (would include a Special Needs Trust) which may which did not include blanket gift-making authority. Sur- extend beyond the incapacity or life of the incapaci- rogate Glen noted what was already well known in the tated person; guardianship community – that Article 17-A was “a blunt 4. provide support for persons dependent upon the instrument” that did not permit any of the individualized incapacitated person for support; tailoring that was available in Article 81. Thus, the peti- 5. marshal assets; tion was withdrawn by the child’s parents and an Article 6. pay such bills as are reasonably necessary to main- 81 proceeding was commenced. tain the incapacitated person; 7. apply for government and private benefits; In assessing the needs of an 8. lease and/or purchase a residence; 9. retain accountants and attorneys; ASD child behavioral 10. defend or maintain any judicial action.12 and social interactive issues Section 81.22 delineates the personal needs powers granted to the guardian. Again, as in § 81.21 these pow- can often be a major factor. ers are to be fashioned so as to afford the incapacitated person the greatest amount of independence and self- In the past there was some question whether an determination with respect to his or her personal needs. Article 81 proceeding could be utilized for a develop- The following is illustrative of some of the personal needs mentally disabled minor child; however, in In re Cruz,9 powers granted under § 81.22: Justice Diane A. Lebedeff of the Supreme Court of New 1. determine who shall provide personal care and York County held that Article 81 provides no indication assistance; that it should not apply to minor children. Justice Leb- 2. make decisions regarding social environment and edeff opined, “There is sufficient, albeit slight, affirmative other social aspects of the life of the incapacitated language in the statute which supports its application to person (IP); minors, and no language which preludes such applica- 3. determine whether the IP should travel; tion.” She added that “[w]here it is clear that the child’s 4. determine whether the IP should possess a license functional limitations are permanent, there is good reason to drive; to pursue an Article 81 guardianship from the beginning 5. authorize access to a release of confidential records; rather than first utilizing S.C.P.A. 17 or 17-A during child- 6. make decisions regarding education; hood then commencing a M.H.L. Article 81 guardianship 7. apply for government and private benefits; at adulthood.” The child in Cruz had suffered substantial 8. consent to or refuse generally accepted routine or brain injury during birth, and the medical malpractice major medical or dental treatment; claim had been settled for $3.5 million. 9. close the place of abode.13 While the minor’s parents are the legal guardians of It should be noted that under § 81.22(b) no guardian the minor’s person and can make decisions relevant to may: (a) consent to the voluntary formal or informal his or her person, it is generally when the minor child has admission of the IP to a mental hygiene facility under inherited or recovered monies that he or she will require Article 9 or 15 of this chapter or to a chemical dependence a guardianship for his or her property.10 facility under Article 22; and (b) revoke any appointment Section 81.21 of the MHL delineates the powers that or delegation made by the incapacitated person such as a are necessary and sufficient to manage the property and power of attorney, health care proxy or living will.14 financial affairs of the AIP and those depending upon the In spite of the above-stated advantages of utilizing AIP. The guardian must afford the incapacitated person Article 81 for an ASD child, there is still a time and place the greatest amount of independence and self-determina- for an Article 17-A proceeding. Most often, it is used for a tion with respect to property management in light of that person who will not be able to care for himself or herself person’s functional level, and maintain an understanding due to a permanent and unchanging condition. and appreciation of the AIP’s functional limitations and personal wishes, preferences and desires with regard to Decisions managing the activities of daily living. Once the decision has been made to pursue an Article Section 81.21(a) permits precisely the requisite level of 81 guardianship for the ASD child, there are a number tailoring of the guardian’s property management powers of important decisions and issues that will need to be that is necessary and appropriate for an ASD child. The addressed prior to the filing of the Petition. For example:

28 | July/August 2013 | NYSBA Journal 1. Who is going to be the guardian? Both parents, or In conclusion, clearly the decision to seek an Article 81 just one parent (most commonly both)? Will a stand- guardianship for an ASD child is one that must be thor- by guardian be selected? oughly evaluated prior to doing so. It is a decision that 2. To what extent will the guardian need powers over will have a far-reaching and profound impact on the life the person and property of an ASD child? of an ASD child and his or her parents. 3. Has the guardianship been discussed with the ASD However, because of the nature of an Article 81 pro- child? Does he or she understand the nature of the ceeding, and the inherent flexibility within Article 81, it proceeding and has he or she expressed an opinion is a decision that can be tailored and fashioned to the of the powers being sought by the guardian? needs and concerns of both the parent and child while at 4. Has there been a consultation with those profession- the same time being a decision that can be modified or als most familiar with the needs of the ASD child to revoked at a later date if a change in circumstances has assess what levels of independence are most appro- occurred. If properly fashioned, it can truly help insure priate for the child? the health and financial well-being of the ASD child for 5. How to insure that the ASD child will be comfort- the balance of his or her lifetime. ■ able at the guardianship hearing? Explain to the child as best as possible some of the legal terms 1. See Autism Fact Sheet, National Institute of Neurological Disorders and Stroke, http://www.ninds.nih.gov. utilized at the hearing such as “incapacity,” “powers 2. Prevalence of Autism Spectrum Disorders – Autism and Developmental Dis- over the property and person.” abilities Monitoring Network, 14 Sites, United States, 2008, Morbidity and Mor- 6. Will it be necessary, as part of the guardianship pro- tality Weekly Report, vol. 63, no. 3, Mar. 30, 2012, Centers for Disease Control ceeding, to seek to have approved a Self-Settled Special and Prevention. Needs Trust for the ASD child? Generally, this is nec- 3. N.Y. General Obligations Law § 1-202. essary if the ASD child has assets or will be receiving 4. Health Insurance Portability and Accountability Act of 2005 (HIPAA) 45 C.F.R. § 164.512(b). assets (inheritance, suit or settlement) that will impact his or her eligibility for such programs as Medicaid 5. MHL §§ 81.02(a)(2), 81.03, 81.03(a). and/or Supplemental Social Security Income (SSI). 6. MHL § 81.03(d). 7. Is the ASD child presently enrolled in any federal or 7. SCPA art. 17-A. 8. 27 Misc. 3d 705 (Sur. Ct., N.Y. Co. 2010). state programs such as Medicaid and/or SSI? Does 9. 2001 NY Slip Op. 400 83U, 2001 WL 940206 (Sup. Ct., N.Y. Co. 2001). Medicaid need to be given notice of the guardian- 10. In re Mede, 177 Misc. 2d 974 (1998); see SCPA 2220(1). ship proceeding? 11. MHL § 81.21, (a). 8. Is there a likelihood that the guardian or ASD child 12. MHL § 81.21(a). may be residing out of state? If so, it may be advisable 13. MHL § 81.22. to address this likelihood in the guardianship petition and obtain and necessary powers with respect thereto. 14. MHL § 81.22(b). Y our Foundation

From pro bono work to volunteerism to fi nancial generosity, the legal profession does so much to help so many. Contributing knowledge, time, funding and a passion for justice, together The New York Bar Foundation and sharing and caring attorneys and fi rms have done a lot. Together we can do much more. Supporting the New York Bar Foundation provides an opportunity to have a meaningful impact in our local com- munities and across the state. Yoourur Giifft Mattersatters If all New York State Bar members contributed just $25 to The Foundation annually, nearly $2 million would be available to expand legal community eff orts to help many more people in need. • Detect or prevent elder abuse • Secure eff ective civil representation and basic access to the courts for the poor • Provide advice and counsel to homeowners facing foreclosure • Deliver matrimonial and family law services to domestic violence survivors • Award scholarships and fellowships to deserving law students Lawyers caring. Lawyers sharing. Around the Corner and Around the State. Please give today. Call us at 518-487-5650 or give on-line at https://www.tnybf.org/donation2.cfm

NYSBA Journal | July/August 2013 | 29 POINT OF VIEW BY HON. MARK D. FOX AND MICHAEL L. FOX

Civility in Litigation – A Path to Winning

t seems, does it not, that rudeness has become per- Client Expectations vasive in our society. And, unfortunately, it seems No client wants a lawyer who seems soft and agreeable. Ito have infected the legal profession as well. While In contested matters, the client often wants a “pit bull” certainly not present in every case, and certainly not part who will aggressively go after the other side and give no of the conduct of every attorney, the problem has been quarter to the adverse party or the party’s counsel. Such recognized by commentators, rule-makers and judges. attitudes are not necessarily the fault of the client. They Yes, judges. Courts can find themselves in the position are the by-product of movie and television portrayals of of mediating problems stemming from the acrimonious trials, where outspoken incivility seems to be the order nature of interactions between counsel of parties to a of the day. lawsuit.1 In fact, some courts have resorted to treating attorneys like recalcitrant children when opposing parties HON. MARK D. FOX is a Retired United States Magistrate Judge, Southern can’t agree on matters that should otherwise be routine. District of New York. Former Member, Committee on Security & Facilities For example, one court required the sparring attorneys to of the Judicial Conference of the United States (Former Vice Chair, engage in a game of “rock, paper, scissors” to determine Subcommittee on Space Management and Planning). J.D., Brooklyn Law the site for a party deposition!2 (See sidebar.) School; B.A., State University of New York at Buffalo. The problem is being addressed through appeals MICHAEL L. FOX is Senior Counsel & Litigation Managing Attorney, Jaco- to our better nature and encouraging civility for its bowitz & Gubits, LLP. Immediate Past Chair of NYSBA Young Lawyers own sake and for the betterment of our profession, and Section, and Delegate to both the ABA House of Delegates and NYSBA through actual (and threatened) rules and ethics changes House of Delegates. J.D., Columbia University School of Law; B.A., Buck- that provide serious consequences for rude, uncivil and nell University (Phi Beta Kappa, summa cum laude). The thoughts and so-called scorched-earth tactics. But there is, we submit, opinions expressed are those of the author alone, and do not reflect another tactic for dealing with adversaries in litigated those of Jacobowitz & Gubits, LLP or its attorneys, or of the NYSBA Young matters. Lawyers Section. Simply put, civility can help you win.

30 | July/August 2013 | NYSBA Journal POINT OF VIEW Counsel’s task, then, is to change those expectations. At the beginning of the attorney-client relationship, take Avista Management, Inc. v. Wausau the time to make certain the client understands that being a zealous advocate does NOT mean being rude and Underwriters Insurance Co. uncompromising on issues of little importance or routine procedure. A proper strong tone can be used without Hon. Gregory A. Presnell: being difficult or unpleasant. The client has not been con- “This matter comes before the Court on Plaintiff’s ditioned to think that way. The client must understand Motion to designate location of a Rule 30(b)(6) that your every action is calculated to be of benefit to his deposition (Doc. 105). Upon consideration of the or her cause and that “killing with kindness” can actually Motion – the latest in a series of Gordian knots work. The bottom line must be that the client trusts your that the parties have been unable to untangle judgment as an attorney in tactical matters that come up without enlisting the assistance of the federal during the litigation. courts – it is Why Civility? “ORDERED that said Motion is DENIED. Think about it: Who is the most important figure in the Instead, the Court will fashion a new form of litigation? Who determines the schedule? Who deter- alternative dispute resolution, to wit: at 4:00 P.M. mines what you get and what you have to give up in on Friday, June 30, 2006, counsel shall convene discovery, and when you can get it or have to turn it over? at a neutral site agreeable to both parties. If Who decides the motions in limine and evidentiary objec- counsel cannot agree on a neutral site, they shall tions that determine what evidence the jury hears and meet on the front steps of the Sam M. Gibbons what information is kept from them? And finally, who U.S. Courthouse, 801 North Florida Ave., Tampa, gives the jurors the instructions that will determine the Florida 33602. Each lawyer shall be entitled to particular issues they are to consider and the factors and be accompanied by one paralegal who shall act standards they are to apply in making their decision? Of as an attendant and witness. At that time and course we are referring to the court. location, counsel shall engage in one (1) game We are not suggesting that a lawyer’s rudeness, lack of “rock, paper, scissors.” The winner of this of civility and lack of cooperation in pre-trial matters will engagement shall be entitled to select the loca- absolutely result in unwarranted adverse rulings. Every tion for the 30(b)(6) deposition to be held some- judge we know consciously strives to base rulings on the where in Hillsborough County during the period merits of each issue. Judges are, however, human beings. July 11–12, 2006. If either party disputes the out- We have all as litigators had the experience of appearing come of this engagement, an appeal may be filed before an impatient judge who rules on issues without and a hearing will be held at 8:30 A.M. on Friday, (in our opinion, at least) giving full consideration to our July 7, 2006 before the undersigned in Courtroom argued position. Perhaps that happens because the judge 3, George C. Young United States Courthouse had grown tired of countless disputes over minor issues and Federal Building, 80 North Hughey Avenue, in a case. However, when we appear before judges who Orlando, Florida 32801.” respect us as competent, professional and courteous advocates, we may be more likely to receive full consid- Third, those lawyers are building up resentment eration of our arguments before a ruling is made. And and frustration among their colleagues at the Bar; they is that not what we as advocates wish for – to have the destroy any potentially professional relationship with judge or jury be receptive to hearing our argument? adversary counsel. This will not be helpful when the time Attorneys who take a scorched-earth approach to dis- to discuss settlement arrives, or when a simple stipula- covery, fighting to the bitter end on each and every issue, tion or professional courtesy might be desired by the accomplish three things, none of which is good. scorched-earth counsel. First, they quickly make the court aware that they are wasting their own, their adversary’s, and the court’s time The Jury by fighting over issues that may be largely meaningless, Jurors, as lay people, may be entertained by film and or by taking positions that clearly lack merit. The danger television portrayals of court proceedings where there is is that when a real issue comes into dispute counsel may demeaning and rude behavior between litigants, but, as be seen as having “cried wolf” once too often. most people, jurors tend to be offended by real-life rude Second, those attorneys are running up substantial and offensive conduct. For example, the ABC television hourly legal bills for their clients, with no commensu- program What Would You Do? has actors performing sce- rate benefit. In today’s world, clients are becoming more narios in public places, such as restaurants or grocery stores, sophisticated and far more conscious of burgeoning liti- which often are offensive or cruel to a targeted individual, gation costs. and then continues filming to get the reactions of nearby

NYSBA Journal | July/August 2013 | 31 POINT OF VIEW observers. Some people are simply embarrassed by the con- money-grubbing bitterness and greed to a true level of duct, while others actually intervene. All of the unknowing professionalism. Good and honorable practitioners will observers however, have one thing in common: they are all extend such a courtesy to a colleague without hesita- made extremely uncomfortable by the public rude behavior. tion. Occasionally, regrettable exceptions such as this 5 Jurors’ reactions to such behavior in the courtroom [the situation in the Davey case] will arise. are bound to be the same. Jurors like and feel positively Should not this “sense of collegiality and honor toward people in authority (like attorneys) who are polite among practicing attorneys” exist in every case? Should and considerate of others – including court personnel, we not all strive to “elevate the practice of law” in our other attorneys, and the jurors themselves. (Of course, daily work – both for the benefit of the profession and for how counsel treats a witness depends upon the witness the public perception of the profession? and his or her place in the scheme of the case – a matter In the Davey case, in response to this sheer lack of pro- for discussion at another time.) fessional courtesy, executor’s counsel had no option but Keep in mind that while we as litigators are comfort- to call the preparing attorney into court, requiring that he able in the courthouse environment, it is a strange and take time from his practice to travel to court and testify. stressful place for the jurors. They have been summoned This prompted the Surrogate Court judge to note: to perform an important civic duty, which most of them However, [attorney A] may take some solace that attor- take very seriously, but they have no real information ney B has been caused to take time from his lucrative about what is going to happen, what is expected of them estate planning practice, travel some 90 minutes round- – or even where the restrooms are located. We have all trip for his court appearance, spend nearly another hour seen lawyers in courthouse hallways and elevators who testifying in court and receive only the pittance of his strut and brag loudly about their exploits and intentions witness fee and mileage as his sole recompense. For those without being cognizant of those around them and of the members of the bar who choose to view professional courtesy as 6 impression they are making. It is obnoxious, very bad a foreign currency, that should be sanction enough. form, and can be damaging to the lawyer’s case if anyone Do not allow professional courtesy, civility, and respect within earshot becomes a juror on the matter. to be foreign currencies in your practice – no one benefits On the other hand, counsel who are polite and helpful from that. to strangers who appear in need of direction, and courte- We respectfully submit that civility in litigation really ous and friendly to courthouse personnel, receive certain can be the path to effective advocacy – and potentially to benefits. If they have been observed by potential jurors a sought-after victory. ■ in their case, these jurors will start with kind feelings toward counsel. When jurors like and feel comfortable 1. See Pritchard v. Cnty. of Erie, No. 04CV534C, 2006 WL 2927852 (W.D.N.Y. Oct. 12, 2006) (in an earlier motion decision in this case, the court stated: with counsel, they are far more likely to see that attor- [it] “may resort to various devices under the Rules and within its ney as a reliable source of information and thus be more inherent supervisory authority to control the conduct of the parties apt to listen to and consider carefully the arguments the and counsel in this case, for example micro management of discovery attorney presents. When counsel get to that place, their or sanctions under Rules 11, 16(f), 37, and 28 U.S.C. § 1927 for unrea- sonable and vexatious conduct by counsel. This case needs to get to its summation may in turn become very effective. merits and not dwell on arguments for the sake of vexatious litigation. Continuing down the current path of this action will inevitably lead to In Conclusion further delays, added expense, and ultimately justice denied.” 2. See Avista Mgmt., Inc. v. Wausau Underwriters Ins. Co., No. 05CV1430, 2006 While it is true, generally, that attorneys who refuse ordi- WL 1562246 (M.D. Fla. June 6, 2006). nary professional courtesies to adversaries (contrary to 3. See Premo v. Breslin, 89 N.Y.2d 995, 997 (1997); Frank M. v. Siobahn N., 268 the behavior of most counsel) cannot be sanctioned for A.D.2d 808 (3d Dep’t 2000); 22 N.Y.C.R.R. § 130-1.1. “frivolous conduct” absent a provision of statute or court 4. 27 Misc. 3d 182 (Sur. Ct., Madison Co. 2010). 5. Id. at 185. 3 rule – that does not mean that a sanction of sorts is not 6. Id. (emphasis added). available to the discourteous attorneys’ colleagues. In In re Will of Davey,4 counsel failed to provide what would be Are you feeling overwhelmed? a standard professional courtesy in a probate proceeding The New York State Bar Association’s – provision to executor’s counsel of the original will by Lawyer Assistance Program can help. the attorney who prepared it. The court stated: We understand the competition, constant stress, and high expectations you There is a long-standing tradition among the members face as a lawyer, judge or law student. Sometimes the most difficult trials happen of the bar that the attorney who prepared the will outside the court. Unmanaged stress can lead to problems such as substance will provide the original to the executor’s counsel on abuse and depression. request along with the affidavit of the attesting wit- NYSBA’s LAP offers free, confidential help. All LAP services are confidential and protected under section 499 of the Judiciary Law. nesses and otherwise be reasonably cooperative in pro- viding other relevant information without charge. This Call 1.800.255.0569 practice is borne of a sense of collegiality and honor NEW YORK STATE BAR ASSOCIATION among practicing attorneys and it elevates the practice LAWYER ASSISTANCE PROGRAM of law from what might otherwise be an atmosphere of

32 | July/August 2013 | NYSBA Journal Constitutional Revision: Democracy-Building in Vietnam By Pamela S. Katz

The National Academy of Politics and Public Administration II in District 9, HCMC Vietnam

any people in the United States think of Viet- cal training academy for southern Vietnam (the National nam just in terms of the Vietnam War (here Academy of Politics and Public Administration II2) to talk Mknown as the American War). In fact, souvenir about the United States Constitution put me in the posi- shops in the tourist part of town sell T-shirts proclaim- tion to meet some high-level Party officials. As a result of ing “Vietnam: A Country, Not a War.” But, as a Fulbright these contacts, I was able to sit with the Deputy Director Scholar in Vietnam this year, I have come to see the coun- of the Academy, Pham Minh Tuan, Ph.D. in Law, for a try differently. Among other things, Vietnam is a dynamic lengthy interview, which gave me a clear window into and instructive place to watch as it, a communist nation, moves toward more democratic governance. PAMELA S. KATZ is a Professor of Political Science and Legal Studies One of my interests and reasons for seeking the Ful- at The Sage Colleges in Troy, NY. She is currently in Ho Chi Minh City bright in Vietnam was to better understand – and to feel (Saigon), Vietnam, as a Fulbright Scholar teaching at the University of – how economic openness in this communist/socialist Economics and Law, part of the Vietnam National University system. She nation is facilitating political openness and democracy.1 is also director of State Court Watch, a project of the Law, Youth and Unwittingly, but fortunately, I landed here in the middle Citizenship Program of the New York State Bar Association. See www. of a groundbreaking constitutional amendment process. statecourtwatch.org. An unusual invitation from the Communist Party politi-

NYSBA Journal | July/August 2013 | 33 considerably since 1992, including Vietnam’s initia- tion into the Association of South East Asian Nations (ASEAN) in 1995 and the World Trade Organization (WTO) in 2007. The National Assem- bly initiated the consti- tutional revision in order to facilitate the nation’s international integra- tion, ensure the stability required for economic and social development, and strengthen the rule of law. The Constitutional Draft- ing Committee (CDC) was established by the Nation- al Assembly to undertake the drafting of the revi- sions and the implemen- tation of the amendment process.5 The CDC identi- fied specific objectives of Banner about the constitution on Pasteur Street in HCMC, the revision, including: District 1 • “deepen [and] . . . ensure the people’s own- ership of state power and the literal “Party line” on this process.3 Here is what I affirming the position and role of the Communist learned. Party as a leading force of the state and society . . .” Vietnamese constitutional history tracks its tumultu- • “affirm human rights protections . . .” ous past. The first Vietnamese constitution was approved • “build . . . economic institutions, the socialist by its first National Assembly in 1946, shortly after Viet- market-oriented economy, cultural and educational nam had gained independence in 1945. That constitu- development, social equality and environmental tion, however, was never adopted because war with the protection . . .” French broke out later that year. In the aftermath of the • “defend the sovereignty of Vietnam . . .” 1954 Geneva Accords, North Vietnam, then known as • “[ensure] rule of law . . .” the Democratic Republic of Vietnam, approved what is • “be proactive in international integration.”6 now considered the nation’s second constitution. Then, All of these matters are addressed, administratively in 1975 after the collapse of the U.S.-supported regime and/or substantively, in the first draft of the revision.7 in Saigon and unification of the country, work to revise In December 2012, the CDC finished its first draft the 1959 constitution began. In 1980, a new constitution of the amendments and submitted it to the National applying to all of what is now the Socialist Republic of Assembly. The National Assembly approved the draft Vietnam was adopted. Then, in 1986, Vietnam undertook and decided to submit it to the public for its opinion.8 To comprehensive economic reforms widely known here as facilitate this, the CDC established an editorial board for doi moi. Soon thereafter, work on yet another constitu- the constitutional amendment process, which comprised tion began, to reflect the new conceptualization of state leading scientists and intellectuals in the areas of law, power, independent economic sectors, a market economy social science, history and technical science in Vietnam. and international integration. The result was the 1992 This board’s role is to gather, quantify, and summarize constitution, the nation’s fourth and the one currently the opinions collected from the public to inform modi- under revision today.4 fications of the original draft. Once the CDC approves Work on the current constitutional revision began in these modifications, it will be up to the National Assem- 2011 with passage of a resolution of the National Assem- bly to approve the final proposed constitutional revision bly, Vietnam’s legislative body. The country and its rela- by a two-thirds vote. No public referendum is required to tionship to the world in a global economy have changed ratify the decision of the National Assembly to approve

34 | July/August 2013 | NYSBA Journal the amendments; however, the constitution contains a provision for the National Assembly to submit them to If you go to Ho Chi Minh City . . . the public for referendum, if it so chooses. The solicitation and collection of opinions from the Aside from standard sightseeing, here are public has been the most radical and progressive ele- some recommendations from a fellow New ment of the process. It has taken many forms intended to Yorker who has lived here for almost a year. accommodate the differences in education levels among the population and take advantage of the various ways Restaurants in which the Vietnamese people participate in their com- Vietnamese: Cuc Gach Quan – an enormous munities. In larger cities where the population is gener- menu with helpful staff to assist in making ally literate, a copy of the 1992 constitution, along with selections. Order the homemade tofu! 9/10 Dang the proposed revisions from the first draft, was delivered Tat, ph. 08-3848-0144. District 1. to every home. On the draft itself, residents indicate their Com Nieu Sai Gon – featured in Anthony approval for or make comments on the revisions and Bourdain’s Vietnam episode, flying rice bowls and return it to the local authority.9 In the rural areas, commu- all. 6C Tu Xuong St., ph. 08-3932-6388. District 3. nity (mostly quasi-Communist Party and governmental) Night market at Binh Tanh market – outdoor groups, such as youth associations, women’s groups and Vietnamese dining on plastic chairs, starts after farmers’ associations, held meetings at which the revi- 7:00 p.m. District 1. sions were discussed. Minutes from those meetings were French: La Bouchon de Saigon – casual French then submitted as comments for consideration. Vietnam- dining, red-checked tablecloths, welcome glass ese living overseas were also solicited for comment via of Champagne, and charming wait staff. 40 Thai mail and the Internet.10 Van Lung, ph. 08-3829-9263. District 1. Various governmental, Party, business and educational Italian: Stella – reasonably-priced homemade entities and organizations have been involved with opin- pasta and sauce by an Italian chef. 121 Bui Vien, ion collection through meetings, conferences, websites Pham Ngu Lao area, District 1. and the media. One of the most prominent has been the Vietnam Fatherland Front, a government-created central Things to Do clearinghouse for various political, social and community Vietnamese massage Relaxing and affordable organizations throughout the country.11 Through their in this clean and lovely spa, with well-trained network of political and community organizations from therapists and English speaking staff. Tell them the central to the provincial and district levels, they have, Miss Pamela from America sent you! Indochine as of March 2013, collected approximately eight million Spa – 69 Thu Khoa Huan St., ph. 08-3827-7188. comments.12 Major newspapers have published full text District 1. of the proposed amendments alongside the original text Tailor: Mr. Lam will make a suit for you in to show the changes being proposed.13 The National top-quality Italian fabric for a fraction of what Assembly has its own website for people to give com- it would cost and in record time. Lam Couture – ments as well as for them to review the planning docu- 158C Dong Khoi St., ph. 08-3824-3830. District 1. ments for the constitutional amendment process.14 Local Back of the Bike Tours: Motorbike around authorities, too, have links on their websites for people to HCMC to visit (safe) street food vendors , learn post comments. As indicated above, the editorial board about Vietnamese cuisine, and eat your way of the CDC will consolidate and summarize these posts, through the city. www.backofthebiketours.com. reports and comments. Co Giang Street: Lively market street in District This outreach to the public is truly extraordinary, 1, especially in the morning. though it is clear that, as with most things, the process on Cookunest Café: Live, acoustic music with the paper is a lot more clear and impressive than its imple- locals in a unique, quiet setting. 13 Tu Xuong St., mentation in reality. But, to whatever extent it is real, it ph. 08-2241-2043 Call to reserve a table on the reflects an effort to inform and possibly empower the first floor. District 3. people. Deputy Director Tuan asserted that 10 to 15 years Bui Vien Street: Don’t miss Pham Ngu Lao ago people in Vietnam knew little to nothing about their area, where you can start your evening in a constitution. Awareness has grown with this effort and, plastic chair on the street with a 40-cent beer, he asserts, it is considered by the Communist Party to be go to Stella for dinner (see above), and enjoy the largest political activity undertaken to date to encour- the scene at Universal Bar (90 Bui Vien), where age people to understand the constitution and express cover bands play American music loudly and with their aspirations with regard thereto.15 uncanny precision. I don’t want to shill for the Vietnamese Communist Party; there is much cynicism and complaint about gover-

NYSBA Journal | July/August 2013 | 35 nance generally and the constitutional revision process in entific research centers: the Institute of Social Sciences and Vietnam Technical particular among Vietnamese, expressed online by brave Science Institute, are members. 6. Interview with Pham Minh Tuan, Deputy Director of the Institute of bloggers or with eyes, groans, or smirks in conversa- Politics and Public Administration II, in HCMC, Vietnam (Apr. 16, 2013), as tion.16 In fact, as I write today, a young woman, Nguyen translated by Khang Nguyen. Phuong Uyen, convicted of taking photographs at a polit- 7. Draft posted online in Vietnamese at http://duthaoonline.quochoi. ical protest in Ho Chi Minh City, was sentenced to six vn/DuThao/Lists/DT_DUTHAO_NGHIQUYET/View_Detail. years in jail after a secret trial.17 And recently a journalist, aspx?ItemID=32&TabIndex=1 (last visited May 19, 2013). 8. The draft revision establishes a constitution with 11 articles and 124 Nguyen Dac Kien, was fired from his newspaper for his chapters, reducing the 1992 constitution by one article and 23 chapters, and blog’s implicit criticism of a Party official in relation to the modifying 99 chapters. revision process.18 There are clearly still many challenges 9. There was no box on the form to reject the revision. And, anecdotally, it to face. But, at least one important aspect regarding the appears as though some people were concerned about writing negative com- process undoubtedly deserves tribute. ments or refusing to submit the completed form for fear of retribution. 10. See, e.g., P. Thao, Overseas Vietnameses (sic) Comment on Constitutional Revision, Baomoi.com (Jan. 18, 2013) http://en.baomoi.com/Home/society/ www.dtinews.vn/Overseas-Vietnameses-comment-on-constitutional-revi- This outreach to the public is sion/331633.epi (last visited May 19, 2013). 11. For more about the Fatherland Front, see the website at http://www. truly extraordinary, though it is mattran.org.vn/home/gioithieumt/luatmt/lmttqvn1.htm. 12. Initially, the collection of public opinion was to take three months, clear that the process on paper from January 1, through March 31, but the National Assembly and the CDC decided to extend the time because of the considerable participation. Now, is a lot more impressive than its the comment period will end on October 31, 2013. 13. The news media (print and online) are largely controlled by the govern- implementation in reality. ment. 14. The official website of the National Assembly and the constitutional revi- sion is at http://duthaoonline.quochoi.vn/DuThao/Lists/DT_DUTHAO_ The Communist Party and government took a risk NGHIQUYET/View_Detail.aspx?ItemID=32&TabIndex=1&LanID=33 (last when they decided to inform and involve the people as it visited May 18, 2013). Links from here take you to the proposed revisions and various areas for posting. People may post their comments on the website did. While the reasons for this risk – which, I’d venture to anonymously if they so choose. The website is only translated into English on say, was calculated – are obscure, there is no doubt that it its home page. offers the first step toward civic engagement: knowledge 15. In my own experience talking with large groups of law students in Ho and understanding. The information campaign undertak- Chi Minh City and Hanoi, 100% of them knew about the constitutional revi- sion process and most had some knowledge of the changes being proposed. en through conferences, websites, banners on the streets, 16. See Petition 72 and the Struggle for Constitutional Reforms in Vietnam, blog of newspapers and magazines got people knowing and talk- the International Journal of Constitutional Law and Constitutionmaking.org, a ing. Even though some say that the Party’s and govern- joint project of the Comparative Constitutions Project and the United States Insti- ment’s purpose in doing so was just so much propaganda tute of Peace. http://www.iconnectblog.com/2013/03/petition-72-the-struggle- for-constitutional-reforms-in-vietnam/ (last visited May 19, 2013). This blog dis- to say to themselves and the world that the People were cusses Petition 72, introduced by Vietnamese scholars, including former Commu- engaged, when they undertook this effort they took the nist Party officials, and signed by approximately 6,000 supporters (though some risk that people would actually become engaged. And they sources indicate over 10,000 signatures to date). The Petition criticizes some of the revisions’ provisions, including those regarding protection for human rights, have. This is good news for the prospect of increased self- and suggests additional revisions. See also Vietnam Crony Communists Resist Con- government and transparency in Vietnam. ■ stitution Backlash, Bloomberg News, Apr. 8, 2013, http://www.bloomberg.com/ news/2013-04-07/vietnam-crony-communists-resist-constitution-backlash.html 1. For more on private ownership, and market oriented economic (includ- (last visited May 19, 2013); Anh Ba Sam blog anonymous post, Notice of Drafting ing monetary) policies in today’s Vietnam, see Vu Thanh Tu Anh, Decentral- Group Recommendations and Up 72 on Constitutional Amendments, Apr. 16, 2013, ization of Economic Management in Vietnam from the Institutional Perspectives, http://translate.google.com/translate?hl=en&sl=vi&u=http://anhbasam.word Policy Paper for Fulbright Economics Teaching Program (FETP) Dec. 31, press.com/&prev=/search%3Fq%3Danh%2Bba%2Bsam%2Bblog%26client%3D 2012, http://www.fetp.edu.vn/en/policy-papers/discussion-papers/ firefox-a%26hs%3DCZE%26rls%3Dorg.mozilla:en-US:official (last visited May decentralization-of-economic-management-in-vietnam-from-the-institutional- 19, 2013); and blog posts at http://www.boxitvn.net/. Some of these blogs are perspectives/ (last visited May 15, 2013). largely unavailable via straight Google searches from within Vietnam and/or are occasionally hacked, most suspect, by the government. 2. The National Academy is also known as the Institute of Politics and Administration or Political-Administrative Academy Region II. 17. See press release of the U.S. Consulate in HCMC http://hochiminh. 3. The interview was videotaped, translated, and edited for NYSBA’s Law, usconsulate.gov/pr-05172013.html (last visited May 24, 2013). Youth and Citizenship program’s State Court Watch/Interviews for Under- 18. Chris Brummitt, Critics Pile on Vietnam in Rare Constitutional Debate, Nw. standing project, http://www.statecourtwatch.org/scw-interviews.html. Asian Weekly, Mar. 10, 2013 at http://www.nwasianweekly.com/2013/03/crit- 4. In 1995, the U.S. Embassy in Hanoi was opened and Vietnam opened its ics-pile-on-vietnam-in-rare-constitutional-debate/ (last visited May 19, 2013). embassy in Washington, D.C. the same year. In 2001, minor amendments to the 1992 constitution affirmed the rule of law as a characteristic and require- ment of the Socialist Republic of Vietnam. 5. The CDC’s president and vice president are the Chairman and Vice- Chairman, respectively, of the National Assembly. Other members include the Prime Minister, the Deputy Prime Minister, and the ministers of Internal Affairs, Defense, Public Security and Planning and Investment. In addition, heads of important socio-political organizations, such as trade unions, youth www.facebook.com/nysba unions, women’s associations, farmers associations and the two largest sci-

36 | July/August 2013 | NYSBA Journal JONATHAN A. DACHS ([email protected]) is a member of the firm of Shayne, Dachs, Sauer & Dachs, LLP, in Mineola, New York. Mr. Dachs is a graduate of Columbia College of Columbia University and received his law degree from New York University School of Law. He is the author of “Uninsured and Underinsured Motorist Protection,” 2 New Appleman New York Insurance Law, Chapter 28 (LexisNexis), and of a chapter on UM/UIM and SUM (Pre-and Post-Regulation 35-D) in Weitz on Auto- mobile Litigation: The No-Fault Handbook (New York State Trial Lawyers Institute). This article marks the 20th consecutive year that Mr. Dachs has presented his annual survey of UM/UIM/SUM Law in the Journal.

2012 Review of UM, UIM and SUM Law

By Jonathan A. Dachs

nce again, and for the 20th year in a row, we pre- requires that all policies under which a fire department, sent this annual survey of developments in the fire company (as defined in General Municipal Law § 100), Oarea of uninsured motorist (UM), underinsured ambulance service, or “voluntary ambulance service” (as motorist (UIM), and supplementary uninsured motorist defined in Public Health Law § 3001) is a named insured (SUM) law from the previous year. As always, 2012 was a shall provide Supplementary Uninsured/Underinsured busy and important year in this ever-changing and highly Motorist coverage to an individual employed by, or who complex area of the law. is a member of, such entities and who is injured by an uninsured or underinsured motor vehicle while acting in PART I. GENERAL ISSUES the scope of his or her duties for the named insured entity, Insured Persons except with respect to the use or operation by such indi- The definition of an “insured” under the SUM endorse- vidual of a motor vehicle not covered under the policy.4 ment (and most liability policies) includes a relative In Morette v. Kemper, Unitrin Auto & Home Ins. Co., of the named insured and, while residents of the same Inc.,5 the named insured under a commercial auto insur- household, the spouse and relatives of either the named ance policy was a limited liability company (LLC), of insured or spouse. which the injured party/decedent was the sole member. The injured party’s estate sought to make a claim for “Named Insured” SUM benefits under the SUM endorsement of the LLC’s In American Alternative Ins. Corp. v. Pelszynski,1 the court policy. The endorsement in question defined held that a volunteer firefighter injured in an accident “[t]he unqualified term ‘insured’ . . . to mean [y]ou, as while on route to a fire emergency in his own vehicle the named insured and, while residents of the same (equipped with a blue light and a two-way radio provid- household, your spouse and the relative of either you ed by the volunteer fire department) was not an insured or your spouse.” Similarly, “survivor rights” cover- under the volunteer fire department’s SUM Endorse- age was afforded to “you or your spouse, if a resident of the same household,” should either one die, in ment and, therefore, not entitled to make an SUM claim which event “this SUM coverage shall cover . . . [t]he thereunder. The court explained, “‘You’ in the definition survivor as named insured [and] . . . [t]he decedent’s refers to the Fire Company, which cannot have a spouse legal representative as named insured, but only while or relative.”2 acting within the scope of such representative’s duties Note, however, that by legislation that was proposed as such.” At the time the policy was issued, “spousal in 2012, and which became effective in April 2013,3 and liability” was excluded, but the insurer issued a notice is applicable to any policies issued or renewed on or after to the LLC that “upon written request of an insured, that date, Insurance Law § 3420(f) (Ins. Law) was amend- and upon payment of the premium” it would provide ed by adding a new subdivision (5). Section 3420(f)(5) “Supplemental Spousal Liability Insurance coverage

NYSBA Journal | July/August 2013 | 37 . . . cover[ing] the liability of an insured spouse because physical presence and requires at least some degree of of the death of or injury to his or her spouse, even permanence and intention to remain. Mere intention to where the injured spouse must prove the culpable con- reside at certain premises is not sufficient.”10 duct of the insured spouse.” Also, the policy excluded as an “insured” a member of a limited liability compa- Insured Events ny only “while moving property to or from a covered The UM/SUM endorsements provide for benefits to auto” or “for a covered auto owned by him or her or a member of his or her household.” No other language “insured persons” who sustain injury caused by “acci- was contained in the policy excluding members of a dents” arising out of the “ownership, maintenance or limited liability company from coverage.6 use” of an uninsured or underinsured motor vehicle.

Use or Operation One fairly common ground for In Allstate Ins. Co. v. Reyes, where the respondent was disclaiming liability or denying bitten on her breast by a dog that reached out through an open window in a parked car (in a no-parking zone), coverage is the ground of the supreme court held that the term “use” in the defini- tion of an “uninsured motor vehicle” (i.e., “ownership, non-cooperation by the insured. maintenance or use”) encompassed the facts of that case. As explained by the court in denying the petition to stay Analyzing this policy in accordance with general rules arbitration, “[c]ertainly, the use of a vehicle to transport a governing interpretation of insurance policies, the court household pet is now commonplace and the dog would observed that “[o]nly by employing a construction which not have been close enough to bite the respondent’s right allows for a member of the limited liability company who breast without the use of Mr. Kazimer’s vehicle to haul is a ‘natural person’ (Limited Liability Law § 102(w)) to be the dog and Mr. Kazimer’s act of permitting the rear an ‘insured’ under the policy can these policy provisions window to remain open. It is not necessary that the use be given any effect; otherwise they are illusory.” Accord- of the vehicle be the proximate cause of the respondent’s ingly, the court held that the decedent, as the sole member injuries. Rather, this court finds that the use of the vehicle of the named insured LLC, was an “insured” for whom was a proximate cause of the respondent’s injuries.”11 SUM benefits were provided. Finally, the court went on to distinguish the case law cited and relied upon by the Claimant/Insured’s Duty to Provide Timely insurer, which held that a business auto policy issued Notice of Claim to a corporation does not provide uninsured motorist UM, UIM and SUM endorsements require the claimant, coverage to a family member of the sole shareholder of as a condition precedent to the right to apply for benefits, the corporation, from cases involving limited liability to give timely notice to the insurer of an intention to companies, to the extent that their members are “natural make a claim. Although the mandatory UM endorsement persons.” The court noted, requires such notice to be given “within ninety days or “The LLC was designed as a hybrid of the corporate as soon as practicable,” Regulation 35-D’s SUM endorse- and limited partnership forms, offering the tax benefits ment requires simply that notice be given “as soon as and operating flexibility of a limited partnership with practicable.” Liability policies contain similar notice the limited liability of a corporation.” provisions. Significantly, a limited liability company is “an Numerous recent cases have again held that where an unincorporated organization of one or more persons insurance policy requires that notice of an occurrence be having limited liability for the contractual obligation and other liabilities of the business” (Limited Liability given “as soon as practicable,” notice must be given with- Company Law § 102(m) emphasis added). A limited in a reasonable period of time under all the circumstances. liability company is more akin to a partnership (see An insured’s failure to satisfy the notice requirement con- Partnership Law §§ 2, 10) since both entities are stitutes a failure to comply with a condition precedent, “combination[s] of individuals, who can suffer injuries which, as a matter of law, vitiates the contract.12 “Where and do have spouses, households and relatives.”7 no excuse or mitigating factor is offered, the reasonable- Finally, the court pointed to the case of Aetna Casualty & ness of the delay is determined as a matter of law.”13 Surety Co. v. Mantovani,8 wherein an arbitration award in In Gilliard v. Progressive, the court observed, favor of a partner for underinsured motorist benefits under “In the context of supplementary uninsured/underin- a business auto policy issued to a partnership was upheld. sured motorist (hereinafter SUM) claims, it is the claim- ant’s burden to prove timeliness of notice, which is Residents measured by the date the claimant knew or should have In Neary v. Tower Ins.,9 the court noted that “[t]he stan- known that the tortfeasor was underinsured. Timeliness dard for determining residency for purposes of insurance of notice is an elastic concept, the resolution of which coverage requires something more than temporary or is highly dependent on the particular circumstances.

38 | July/August 2013 | NYSBA Journal In determining whether notice was timely, factors to In several recent cases, the courts have noted that the consider include, inter alia, whether the claimant has legislation that requires an insurer to show prejudice offered a reasonable excuse for any delay, such as laten- does not apply to cases in which the pertinent policy was cy of his/her injuries, and evidence of the claimant’s issued before the effective date of the statute.20 due diligence in attempting to establish the insurance Yet, it should be remembered that “even prior to the 14 status of the other vehicles involved in the accident.” statutory amendment, when an insurer received notice Here, the plaintiff met his prima facie burden with of an accident in a timely fashion, the insurer could not respect to the issue of “due diligence” by submitting the properly disclaim a late SUM claim absent a showing of correspondence he sent within two weeks of the accident prejudice.”21 to the alleged tortfeasor, vehicle owner and insurer, seek- In Donald Braasch Construction, Inc. v. State Ins. Fund,22 ing its policy limits, as well as a subsequent discovery the court stated, demand for the policy limits served in the course of liti- “Notice provisions in insurance policies afford the gating the underlying personal injury action. insurer an opportunity to protect itself . . . , and the In Rosier v. Stoeckeler, the court observed that “notice giving of the required notice is a condition to the of a claim or a potential claim provided by an insured insurer’s liability. . . . Absent a valid excuse, a failure only to the insured’s broker, and not to the carrier or its to satisfy the notice requirement vitiates the policy. The agent, generally is not considered sufficient notice to the burden of justifying the delay by establishing a reason- carrier.”15 able excuse is upon the insured,” and such excuses The court, in Konig v. Hermitage Ins. Co., observed that include the lack of knowledge of an accident; a good- Insurance Law § 3420(a)(3) gives the injured party faith and reasonable basis for a belief in nonliability; an independent right to give notice of the accident and a good-faith and reasonable basis for a belief in 23 to the insurer and to satisfy the notice requirement noncoverage. of the policy. “[W]hile an insured’s failure to provide In numerous cases decided in 2012,24 the courts ana- notice may justify a disclaimer vis-a-vis the insurer lyzed the reasonableness of the excuses for late notice in and the insured, it does not serve to cut off the right several contexts with fairly consistent results – rejecting of an injured claimant to make a claim as against the insurer.” As such, the injured person “is not to be the proffered explanation or excuse. Cases in this area charged vicariously with the insured’s delay.” “How- are very fact specific, and, thus, should be analyzed ever, where an injured party fails to exercise the inde- carefully. pendent right to notify the insurer of the occurrence, a disclaimer issued to an insured for failure to satisfy Discovery the notice requirement of the policy will be effective as The UM and SUM endorsements contain provisions against the injured party as well.”16 requiring, upon request, a statement under oath, exami- In GEICO v. Torres,17 the court held that the claim- nation under oath, physical examinations, authorizations, ants were not diligent in ascertaining the identity of the and medical reports and records. The provision of each proposed additional respondent’s insurer or in notifying type of discovery, if requested, is a condition precedent the insurer of the claim, where the police accident report to recovery. prepared the night of the accident contained the insurer’s In Progressive Northern Ins. Co. v. Foss,25 the court held policy number, but respondents waited eight months to that the SUM insurer had ample time to seek the discov- inform the insurer of the accident. ery it sought via its petition to stay arbitration before com- In Kalthoff v. Arrowood Indemnity Co.,18 where notice mencing the proceeding but “unjustifiably failed to do to the insurer was provided by the injured party and not so.” Accordingly, the court granted the claimants’ motion by the insured, the court held that the disclaimer, which to dismiss the petition. referred to late notice by both the injured party and the In Goel v. Tower Ins. Co. of New York,26 the court held insured, was effective against the injured party because it that the defendant insurer did not establish that the plain- was sent to the insured with a copy to the injured party. tiff’s failure to comply with the coverage conditions by In Castro v. Prana Associates Twenty One, LP,19 Prana not sitting for an examination under oath (EUO) and by wrote a letter to Northfield, dated September 29, 2009, not producing all of the documents sought by the insurer notifying it of the underlying action and requesting constituted willful non-compliance with the terms of the defense and indemnification as an additional insured subject policy and, therefore, affirmed the denial of the under the Northfield policy. However, the court held that insurer’s motion for summary judgment and directed the the letter did not trigger Northfield’s duty to disclaim plaintiff to appear for an EUO within 90 days. The court coverage as to Four Star, its named insured. Both insureds further noted that the court below “properly considered were required to provide notice of a claim; accordingly, the totality of the circumstances in concluding that plain- notice provided by Prana could not be imputed to Four tiff’s conduct was not so willful as to require excusing Star. Prana and Four Star were not united in interest; in defendants from liability. . . . Moreover, the record shows fact, they were adverse to one another. that defendants did not act diligently to obtain plaintiff’s

NYSBA Journal | July/August 2013 | 39 cooperation in a manner that was reasonably calculated judicial scrutiny of the arbitrator’s determination under to bring it about.”27 CPLR 7511(b). . . . To be upheld, an award in a compulso- In Jones v. American Commerce Ins. Co.,28 an action ry arbitration proceeding must have evidentiary support to recover uninsured motorist benefits, the claimant/ and cannot be arbitrary and capricious.’”34 insured moved for summary judgment on the issue of In Allstate Ins. Co. v. GEICO,35 the court stated that “[a]n liability prior to the exchange of any discovery. In revers- arbitration award must be upheld when the arbitrator ing the trial court’s grant of that motion, the Second ‘offer[s] even a barely colorable justification for the out- Department held that “[s]ince the defendant [insurer] come reached.’”36 had no personal knowledge of the relevant facts, it should In Modafferi v. Manhattan and Bronx Surface Transit be afforded the opportunity to conduct discovery, includ- Operating Authority, the court stated that “‘[a]n arbitra- ing depositions of the plaintiff, the operator of the unin- tion award can be vacated by a court pursuant to CPLR sured vehicle, and an eyewitness identified in the police 7511(b)(1)(iii) on only three narrow grounds: if it is accident report.”29 clearly violative of a strong public policy, if it is totally or completely irrational, or if it manifestly exceeds a spe- Petitions to Stay Arbitration cific, enumerated limitation on the arbitrator’s power.’”37 Filing and Service There, the defendant failed to demonstrate the existence CPLR 7503(c) provides, in pertinent part, that “[a]n of any of the statutory grounds for vacating the arbitra- application to stay arbitration must be made by the party tor’s award, and, thus, its motion to vacate the award was served within twenty days after service upon him of the denied (and the award was confirmed). notice [of intention to arbitrate] or demand [for arbitra- tion], or he shall be so precluded.” The 20-day time limit PART II. UNINSURED MOTORIST ISSUES is jurisdictional and, absent special circumstances, courts Self-Insurance have no jurisdiction to consider an untimely application. In Incorporated Village of Rockville Centre v. Ziegler,38 the In Allstate Ins. Co. v. LeGrand, the court noted that “[t]he claimant, a police officer injured while on duty when failure to move to stay arbitration within the 20-day his police vehicle was struck by an underinsured motor period specified in CPLR 7503(c) generally constitutes a vehicle, sought SUM benefits from the Incorporated Vil- bar to judicial intrusion into the arbitration proceedings lage – his employer and the owner of the vehicle he was [but that] a motion to stay arbitration may be entertained occupying at the time – and from an insurer that issued an outside the 20-day period when ‘its basis is that the par- excess policy to the Village, which provided SUM coverage ties never agreed to arbitrate, as distinct from situations with a limit of $500,000 subject to a $500,000 self-insured in which there is an arbitration agreement which is nev- retention. The Village and the insurer contended that no ertheless claimed to be invalid or unenforceable because coverage was available to the claimant because the Vil- its conditions have not been complied with.’”30 In this lage was self-insured and its self-insured retention did not case, the accident took place while the insured was driv- provide SUM coverage. Based upon evidence “tending to ing a rental car in Mexico. The policy provided benefits show that the Village did not provide underlying underin- for accidents that occurred within the state of New York, sured motorist coverage,” and the fact that “there was no “the United States, its territories or possessions or Cana- agreement to arbitrate,” the court reversed the denial of da.” Since the policy did not provide for coverage in the the petition and granted a permanent stay of arbitration. geographic area where the accident occurred, the court The Second Department, in Metropolitan Property & held that “it cannot be said that the parties ever agreed to Casualty Ins. Co. v. Singh,39 observed that the New York arbitrate this claim.”31 Thus, the petition to stay arbitra- City Transit Authority, the owner of a bus, was a self- tion, filed more than 20 days after receipt of the demand insurer. The claimant’s failure to rebut that showing led for arbitration, was not untimely. to the granting of the claimant’s insurer’s petition to stay The court, in GEICO v. Albino,32 held that it was proper arbitration of his uninsured motorist claim. to allow the petitioner leave to amend its petition to include, inter alia, a claim that no hit-and-run accident Insurer’s Duty to Provide Prompt Written Notice had occurred. The court stated, “While CPLR 7503(c) of Denial or Disclaimer (Ins. Law § 3420(d)) provides that a party served with a demand for arbitra- A vehicle is considered “uninsured” where it was, in fact, tion must seek a stay within 20 days thereafter or be pre- covered by an insurance policy at the time of the accident, cluded from doing so, it does not prohibit the amendment but the insurer subsequently disclaimed or denied coverage. of a timely petition.”33 In City of New York v. Greenwich Ins. Co., the court observed, Arbitration Awards: Scope of Review Under Insurance Law § 3420(d)(2), an insurer wishing In In re Bobak (AIG Claims Services, Inc.), an SUM case, the to deny coverage for death or bodily injury must “give court observed, “In a case such as this, ‘[w]here arbitra- written notice as soon as is reasonably possible of such tion is compulsory, our decisional law imposes closer disclaimer of liability or denial of coverage.” “When

40 | July/August 2013 | NYSBA Journal an insurer fails to do so, it is precluded from disclaim- As the court further explained, the plain language of Ins. ing coverage based upon late notice, even where the Law § 3420(d) insured has in the first instance failed to provide the cannot be reconciled with allowing the insurer to delay insurer with timely notice of the accident.” Although disclaiming on a ground fully known to it until it has the timeliness of such a disclaimer generally presents completed its investigation (however diligently conduct- a question of fact, where the basis for the disclaimer ed) into different, independent grounds for rejecting the was, or should have been, readily apparent before the claim. If the insurer knows of one ground for disclaiming onset of the delay, any explanation by the insurer for liability, the issuance of a disclaimer on that ground with- its delay will be insufficient as a matter of law.40 out further delay is not placed beyond the scope of “rea- sonably possible” by the insurer’s ongoing investigation “[T]he timeliness of an insurer’s disclaimer [or denial] is of the possibility that the insured may have breached measured from the point in time when the insurer first other policy provisions, that the claim may fall within a learns of the grounds for disclaimer of liability or denial policy exclusion, or (as here) that the person making the of coverage.”41 claim is not covered at all. Stated otherwise, the statute In How Shim Yu v. General Security Ins. Co., the court mandates that the disclaimer be issued, not “as soon as observed that “[a]n insurer’s failure to provide notice [or is reasonable,” but “as soon as is reasonably possible.”50 disclaimer] as soon as is reasonably possible precludes The First Department, in AIU Ins. Co. v. Veras, held effective disclaimer, even where the policyholder’s own that a letter of disclaimer sent 15 days after the insurer notice of the incident to its insurer is untimely.”42 completed its two-week internal investigation, which led The Fourth Department, in RLI Ins. Co. v. Smiedala,43 to the decision to disclaim, was untimely as a matter of noted that an insurer’s opposition to a motion for summary law. The court further rejected the insurer’s argument judgment in a declaratory judgment action could be deemed that the delay was due to its investigation of other pos- a written disclaimer/denial of coverage, subject, of course, sible grounds for disclaiming. Citing George Campbell to the timeliness requirement of Ins. Law § 3420(d)(2). Painting, the court stated: “‘[J]ust as we would not permit In George Campbell Painting v. National Union Fire Ins. the insured to delay giving the insurer notice of claim Co. of Pittsburgh, PA,44 the First Department declined while investigating other possible sources of coverage, to follow, and expressly overruled, its prior longstand- we should not permit the insurer to delay issuing a dis- ing rule, set forth in DiGuglielmo v. Travelers Property claimer on a known ground while investigating other Casualty,45 wherein it had held that, notwithstanding possible grounds for avoiding liability.’”51 the statutory language in Ins. Law § 3420(d) requiring In Brother Jimmy’s BBQ, Inc. v. American International a liability insurer to give written notice of disclaimer Group, Inc.,52 the court held that a delay of 38 days in “as soon as is reasonably possible,” an insurer “is not disclaiming excess coverage was unreasonable as a mat- required to disclaim on timeliness grounds before con- ter of law, because the ground alleged as support for the ducting a prompt, reasonable investigation into other disclaimer was clear from the face of the notice of claim possible grounds for disclaimer.”46 Based upon its reas- and other documents submitted to the excess carrier.53 sessment of the statutory language and the decisions In City of New York v. Greenwich Ins. Co.,54 the notice of of the Court of Appeals interpreting it, and “dictated claim received by the insurer contained only the date of by fidelity to the plain language chosen by the Legis- loss and did not indicate when the insured first learned lature, the teachings of our State’s highest court, and of the subject accident. The insurer’s investigation did not the policy considerations embodied in the law,” the begin until more than 31 days after it received the notice court held – in agreement with prior decisions/law in letter and continued for approximately five and a half the Second Department47 – that “§ 3420(d) precludes months. Noting that “insurers have a duty to ‘expedite’ the an insurer from delaying issuance of a disclaimer on a disclaimer process,” and that the insurer did not explain ground that the insurer knows to be valid – here, late “why anything beyond a cursory investigation” was nec- notice of the claim – while investigating other possible essary to determine whether the insured timely notified it grounds for disclaiming.”48 Thus, because the insurer of the claim, the court held that the five-and-a-half month in this case had sufficient information to disclaim cov- delay in disclaiming was unreasonable as a matter of law. erage on the ground of late notice, but did not issue a The court in Country-Wide Ins. Co. v. Preferred Trucking disclaimer on that ground until nearly four months later, Services Corp.55 held that the disclaimer was untimely that disclaimer was ineffective as a matter of law. The because it came approximately four months after the court further noted that once the insurer possessed all insurer learned of the ground for the disclaimer. The the information it needed to determine that the plain- court rejected the insurer’s contention that the disclaimer tiffs, which sought coverage as additional insureds, had was timely because it had no basis for disclaiming cov- failed to give timely notice of the claim, as required by erage until it became apparent that the operator of the the policy, it “had no right to delay disclaiming on the subject truck would not cooperate with the defense of the late-notice ground while it continued to investigate underlying personal injury action. The court explained, whether plaintiffs were, in fact, additional insureds.”49 “Plaintiff’s diligent conduct prior to the disclaimer, in

NYSBA Journal | July/August 2013 | 41 attempting to secure the cooperation of both Preferred’s attitude of the insured, after his or her cooperation was owner and the operator of the truck, shows that plaintiff sought, was one of “willful and avowed obstruction.”63 believed that both had knowledge or information per- In American Transit Ins. Co. v. Hossain,64 the court held taining to the accident and the underlying litigation, and that although the insurer sent letters and investigators to belies plaintiff’s representation that its sole concern was three different addresses for the insured, the record did not with the testimony of the operator of the truck.”56 establish that the insured received the letters or had actual In City of New York v. General Star Indemnity Co.,57 the notice of the attempts to contact him. Further, the insurer court held that issues of fact remained as to whether never attempted to contact the insured at various other information the insurer received, which failed to identify addresses in its file or at a possible work location. Thus, the the named insured or the number of the master policy, evidence was insufficient to establish lack of cooperation. provided a sufficient basis for a disclaimer, and whether the disclaimer subsequently issued by the insurer was Cancellation of Coverage timely. The insurer claimed that it did not receive suf- One category of an “uninsured” motor vehicle is where ficient documentation until 11 days after it received first the policy of insurance for the vehicle had been canceled notice of the claim, and it disclaimed 30 days later. prior to the accident. Generally speaking, in order effec- In How Shim Yu v. General Security Ins. Co.,58 the insurer tively to cancel an owner’s policy of liability insurance, learned by August 27, 2004, that the plaintiff had served the an insurer must strictly comply with the detailed and summons and complaint in the underlying action on the complex statutes, rules and regulations governing notices Secretary of State on December 31, 2001, that the Secretary of cancellation and termination of insurance, which dif- of State had sent the documents to the address on file for fer depending upon whether, for example, the vehicle at the insured, and that those documents had been returned issue is a livery or a private passenger vehicle, whether unclaimed. Thus, the insurer was aware by that date of the the policy was written under the Assigned Risk Plan, grounds for disclaimer but did not disclaim until July 18, and/or was paid for under a premium financing contract. 2007 – almost three years later. This delay was held to be In GEICO v. Phillip,65 the court noted that the initial unreasonable as a matter of law; the court rejected the insur- burden of demonstrating a valid cancellation is on the er’s contention that it had to wait until the motion court in insurance company that disclaimed coverage on that the underlying action confirmed the Special Referee’s find- ground. In addition, the court observed that Vehicle ing that the insured had deliberately left its mail unclaimed. & Traffic Law § 313 (V&TL) governs the procedures The Second Department, in Tower Ins. Co. v. Khan,59 which an insurance carrier must follow in order to prop- held that a disclaimer issued 17 days after the insurer erly cancel an automobile insurance policy. Pursuant to obtained all of the facts necessary to support the dis- § 313(2)(a), an insurance carrier is required to file with claimer was timely. the Commissioner of Motor Vehicles a notice of cancella- In Castro v. Prana Associates Twenty One, LP,60 where tion within 30 days after the cancellation in order for the the insurer did not receive notice until it received notice cancellation to be valid and effective against third parties. of the summons and complaint from the claimant on May In GEICO v. Allen,66 the claimant was injured while a pas- 25, 2010, and from the insured’s broker on June 2, 2010, senger in a vehicle that was operated by Clifton Jordan and the court held that using either notice date, the insurer’s insured by Infinity Auto Ins. Co., under a policy issued to disclaimer letter, dated June 14, 2010 (either 20 or 12 days Sarah Pemberton. In opposing the petition to stay the unin- later), was timely as a matter of law. sured motorist arbitration sought by the claimant against his In City of New York v. General Star Indemnity Co.,61 the own insurer, Infinity contended that its policy to Pemberton court held that issues of fact existed as to the timeliness had been validly “rescinded ab initio” based upon Pember- of the disclaimer issued either 64 or 30 days after receipt ton’s death seven years earlier. The court rejected that con- of notice, and whether the insurer conducted a “diligent” tention, however, because “‘Vehicle and Traffic Law § 313(1)(a) investigation. supplants an [insurer’s] common-law right to cancel a contract Several recent cases reiterated the proposition that a of insurance retroactively on the grounds of fraud or misrep- disclaimer pursuant to Ins. Law § 3420(d)(2) is unneces- resentation, and mandates that the cancellation of a contract sary when a claim does not fall within the coverage terms pursuant to its provisions may only be effected prospectively. of the insurance policy. Stated another way, “[a]n insurer This provision places the burden on the insurer to discover is not required to deny coverage where none exists.”62 any fraud before issuing the policy, or as soon as possible One fairly common ground for disclaiming liability thereafter, and protects innocent third parties who may be or denying coverage is the ground of non-cooperation injured due to the insured’s negligence.’”67 by the insured. In order to support a disclaimer on that ground, the insurer must demonstrate that (1) it acted Stolen Vehicle/Non-Permissive Use diligently in seeking to bring about the insured’s coop- Also in GEICO v. Allen, where the respondent was injured eration; (2) the efforts it employed were reasonably cal- on August 7, 2010, in a letter dated September 1, 2010, culated to obtain the insured’s cooperation; and (3) the Infinity also disclaimed coverage on the ground that

42 | July/August 2013 | NYSBA Journal owner Pemberton had died in 2003, and, thus, Jordan was In Allstate Ins. Co. v. Stricklin,71 at a framed issue hearing operating the vehicle without the permission of its owner. concerning the possible identity of the hit-and-run vehicle, The respondent then made an uninsured motorist claim the respondent testified that within “about five minutes” against GEICO, and GEICO sought to stay arbitration on after the accident, an unidentified individual handed him the ground that Infinity insured the vehicle. In response a piece of paper containing the license plate number of the to that proceeding, Infinity contended that not only had car that fled the scene. The respondent further stated that

One category of an “uninsured” motor vehicle is where the policy of insurance for the vehicle had been canceled prior to the accident. the policy issued to Pemberton been validly “rescinded this individual told him that he “went down the road and ab initio” based on her death in 2003 but, further, that it retrieved the plate number.” While the respondent was had validly disclaimed coverage based on nonpermis- “headed into the ambulance,” he gave the piece of paper sive use, submitting in support a transcript of a recorded to a police officer at the scene. The plate number and iden- statement from Jordan “that could be interpreted as indi- tifying information of the offending vehicle were included cating that he ‘had no business’ driving the subject car, in the subsequently prepared police accident report. The which had belonged to his ex-wife’s deceased mother individual identified as the owner of the vehicle denied and was sitting outside the home of his ex-wife, who involvement in an accident. The hearing court admitted never used it.”68 The supreme court granted the petition the uncertified police report into evidence even though no and permanently stayed the arbitration, without a hear- police officer testified and concluded, based thereon, that ing. On appeal, the Second Department reversed. “there is another tortfeasor for which there is coverage.”72 Although the court agreed that Infinity did not validly Thus, the hearing court granted the petition to perma- disclaim on the ground that it rescinded the policy upon nently stay the uninsured motorist claim. learning of the insured’s death in 2003, noting that the The Second Department reversed, on the basis that the right to cancel a contract of insurance retroactively on the police accident report was inadmissible under the present grounds of fraud or misrepresentation has been overrid- sense exception to the hearsay rule, since the statement den by V&TL § 313(1)(a), which mandates only prospec- contained therein was not made “substantially contem- tive cancellations, it held that the issue of permissive use poraneously” with the witness’s observations, and the could be validly litigated and a hearing was necessary to declarant’s description of the relevant events was not determine that issue. The fact that Pemberton had died “sufficiently corroborated by other evidence.” Since there seven years prior to the accident did not conclusively was no other evidence that the alleged identified vehicle resolve the issue in favor of Infinity. After her death, the was involved in the subject accident, the court denied the vehicle could have come under the ownership of another petition to stay arbitration. individual who gave Jordan express or implied permis- In GEICO v. Baik,73 the court upheld the granting of the sion to operate it. Thus, the matter was remitted for a insurer’s petition to stay arbitration on the ground that the hearing on permissive use. petitioner established that neither the respondent nor the In Fiduciary Ins. Co. of America v. Jackson,69 the court held policyholder reported the alleged hit-and-run accident to the that the presumption of permissive use was rebutted by police, a peace or judicial officer, or to the Commissioner of evidence that the vehicle owner left the keys on a table in Motor Vehicles within 24 hours of the accident, or as soon as his mother’s home with instructions that his mother or his possible thereafter, as required for a valid hit-and-run claim. cousin would pick it up for repairs. As explained by the In GEICO v. Albino,74 the court observed that where court, a case is determined after a hearing, the appellate divi- a finding of constructive consent requires a consensual sion’s power to review the evidence is “as broad as that of link between the negligent operator and one whose the hearing court, taking into account in a close case the possession of the car was authorized. Here, there was fact that the hearing judge had the advantage of seeing no evidence showing a consensual link between the the witnesses.”75 Thus, the court upheld the determina- owner and his mother on the one hand, and the driver tion, made after a framed issue hearing, that there was no on the other. There is no basis to disturb the court’s physical contact between the claimant’s vehicle and an finding that the owner’s testimony that he did not give 76 the driver permission to use the car was credible.70 alleged hit-and-run vehicle. Hit-and-Run Actions Against the Motor Vehicle Accident UM/SUM coverage is available to victims of accidents Indemnification Corp. (MVAIC) involving a “hit-and-run,” i.e., where an unidentified vehi- In Johnson v. MVAIC,77 the court held that the petition to cle involved in an accident leaves the scene of that accident. commence an action against MVAIC was time-barred.

NYSBA Journal | July/August 2013 | 43 The petitioner’s accident occurred on January 20, 2003, of the policy . . . unless the insured can demonstrate when he was 14 years old. The applicable three-year stat- that the insurer, either by its conduct, silence, or unrea- ute of limitations for a personal injury action was tolled sonable delay, waived the requirement of consent or until the petitioner turned 18, and expired on April 27, acquiesced in the settlement.”82 2009, when he turned 21. The petition for leave to sue In that case, the respondent sent two letters to the MVAIC was not filed until June 14, 2010, after the expira- petitioner. The first notified it of the respondent’s intent tion of the statute of limitations. to commence a negligence action against the tortfeasor, who maintained liability coverage limits of 25/50, and, PART III. UNDERINSURED MOTORIST ISSUES thus, of the potential for an SUM claim. The second stated Purpose that the respondent and the tortfeasor agreed to a bind- In Weiss v. Tri-State Ins. Co., the court observed that “SUM ing arbitration proceeding. The respondent was awarded coverage in New York is a converse application of the $50,000 in the arbitration and thereafter executed a gener- golden rule; its purpose is ‘to provide the insured with the al release with the tortfeasor in the amount of $25,000 and same level of protection he or she would provide to others filed a request for an SUM claim. The petitioner denied were the insured a tortfeasor in a bodily injury accident.’”78 the SUM claim on the ground that it did not receive a written notice of an intention to settle or a request for con- Trigger of Coverage sent to settle with the tortfeasor. The respondent’s con- In Bobak v. AIG Claims Services, Inc.,79 although the evi- tention that his second letter satisfied the written notice dence established that Reliance, the tortfeasor’s primary requirement and that the petitioner acquiesced to the insurer, was insolvent, and that no benefits would be settlement by its silence in response thereto was rejected afforded to the claimant by the guaranty association that by the court. That letter did not contain any reference to assumed the liabilities of the insolvent insurer, the evi- any intention to settle – only to an intention to arbitrate. dence also established that the tortfeasor had a $1,000,000 Thus, notice was not provided as required by the SUM excess liability policy with Travelers, and that Travelers policy, which impermissibly impaired the petitioner’s had not disclaimed coverage thereunder. The court, there- subrogation rights. fore, counted the Travelers $1,000,000 coverage in the trig- In GEICO v. Morris,83 the issue was whether the ger comparison and found, based thereon, that the claim- respondent ever sent to the petitioner a written request ant’s $1,000,000 SUM policy was not triggered because the for consent to settle. Although the petitioner denied tortfeasor’s $1,000,000 bodily injury limits were not less receiving any written request for consent to settle, the than the claimant’s $1,000,000 bodily injury limits. claimant’s counsel stated that he sent such a letter and Justice Carni, the lone dissenter, would have held that that the petitioner had twice orally assured him that the SUM coverage was triggered simply by the insolvency such written consent would be sent. At the conclusion of of the primary insurer, and that “where, as here, a vehicle a framed issue hearing, the supreme court held that the is insured by a motor vehicle liability policy issued by respondent never sought the petitioner’s written consent an insolvent insurance company and is thus an ‘unin- to settle, and, thus, granted the petition for a permanent sured motor vehicle,’ the existence of an excess insurance stay of arbitration. The Appellate Division affirmed, not- policy does not change its status as such.” He explained, ing that the petitioner had effectively rebutted the pre- “In other words, an excess or umbrella policy does not sumption that a properly-mailed item was received by constitute a ‘bodily injury liability insurance policy’ for the addressee by submitting evidence demonstrating its purposes of determining whether a motor vehicle is ‘an “regular practices and procedures in retrieving, opening, uninsured motor vehicle’ triggering SUM coverage.” He and indexing its mail and in maintaining its files on exist- further concluded that “the amount of a tortfeasor’s cov- ing claims.” The court also upheld the supreme court’s erage under a motor vehicle liability policy may not be credibility determinations. combined with the amount of his or her coverage under a In Day v. One Beacon Ins.,84 the court held that the commercial general liability excess policy in determining “Release or Advance” Condition of the SUM Endorsement whether SUM coverage is implicated.”80 (Condition 10) applies only to settlements with motor vehicle bodily injury insurers, and not to settlements with Consent to Settle non-motor vehicle defendants. In addition, the court held The Third Department, in State Farm Mutual Automobile that the provision in Condition 10 that prohibits settlement Ins. Co. v. Perez,81 observed that with “any negligent party” without the SUM insurer’s [w]here an insurance policy “expressly requires the written consent, did not apply only to motorist tortfeasors, insurer’s prior consent to any settlement by the insured but included non-motorist tortfeasors, as against whom with a tortfeasor, failure of the insured to obtain such the SUM insurer would have a subrogation right pursuant prior consent from the insurer constitutes a breach of a to Condition 13 (Subrogation) of the Endorsement (“any condition of the insurance contract and disqualifies the person legally responsible for the bodily injury or loss”). insured from availing himself of the pertinent benefits As explained by the court in expressly rejecting the claim-

44 | July/August 2013 | NYSBA Journal ant’s contention that the consent to settle provision applies thereafter went ahead and settled with the tortfeasor, only to motor vehicle defendants, issuing a general release, and then commenced this action [t]he provision on its face plainly refers to settlements for declaratory judgment against New York Central. Both with “any negligent party” and does not refer mere- parties moved for summary judgment. ly to motorist tortfeasors. We thus reject plaintiff’s The court denied summary judgment to both parties, “strained, unnatural and unreasonable” interpreta- finding in the record the existence of issues of fact. First, tion of that policy condition. Plaintiff’s interpretation the court noted that although the plaintiff entered into would require the replacement of the word “motorist” “binding” arbitration, it was unclear whether the plaintiff for “party” in the last sentence of Condition 10, such that the phrase would read “negligent motorist” rather was in fact bound to accept the policy offer from the tort- than “negligent party.” Had the sentence been intend- feasor. If the plaintiff was not so bound, the arbitration ed to read in the manner suggested by plaintiff, it proceeding did not impair, or even affect, New York Cen- would have been easy enough to phrase it that way.85 tral’s subrogation rights. If, in fact, New York Central’s rights were still preserved after the plaintiff received the Thus, in this case, where the SUM insurer offered policy offer and notified it of the offer, as required, “then, to advance the amount of the settlement offered by the in accord with the policy terms, [New York Central] motor vehicle tortfeasor, but not the amount offered by could have advanced the proposed settlement funds to the non-motor vehicle tortfeasor, the court held that it plaintiff and stepped into the litigation, requiring plain- complied fully with its obligations under Condition 10. tiff’s cooperation in the pending claim.”89 Indeed, if New Moreover, where the claimant settled with both the motor York Central’s rights were fully protected at the time the vehicle tortfeasor and the non-motor vehicle tortfeasor plaintiff formally notified it of the policy limits offer, then without the insurer’s consent, the court held that the execution of the general release more than 30 days later claimant violated Conditions 10 and 13 of the Endorse- was also proper, pursuant to the terms of the Release or ment and, thus, vitiated the SUM coverage provided by Advance provision. The court noted that, under these that policy. The court, therefore, granted the insurer’s circumstances, “we discern no reason why the parties’ motion for summary judgment dismissing the breach of obligations under the SUM policy should be altered contract complaint against it.86 merely because the policy limits were tendered as the In Warner v. New York Central Mutual Fire Ins. Co.,87 result of an arbitration proceeding rather than through the plaintiff, who was injured in a two-car accident, negotiation.”90 There was, however, insufficient proof in commenced a personal injury action against the owner/ the record as to the parties’ understanding of the high/ operator of the other vehicle and notified New York low agreement to warrant summary judgment in favor Central, his insurer, that he would be pursuing an SUM of the plaintiff. In addition, there was an issue of fact as claim. Thereafter, the plaintiff’s counsel advised New to whether New York Central should be estopped from York Central (in writing, following a telephone call with disclaiming coverage based on its alleged representations an associate liability examiner) that the tortfeasor’s policy and acquiescence to the plaintiff regarding participation limits had not yet been offered, and that the case would in the arbitration. While the plaintiff’s counsel set forth be proceeding to trial or “there [was] a possibility that the those representations in an affidavit, New York Central case would be arbitrated instead.” Counsel’s letter noted denied that consent was given in the affidavit of its liabil- that the liability examiner with whom he had spoken ity examiner, thus warranting the denial of summary had advised that “regardless of whether the [tortfeasor’s] judgment. $25,000 policy limit is paid as a result of settlement, trial or arbitration, there would be no effect on [the plaintiff’s] Offset/Reduction in Coverage right to pursue his SUM claim.”88 New York Central In Rivera v. Amica Mutual Ins. Co.,91 the court held that did not respond or refute this assertion. The plaintiff the offset/reduction-in-coverage provision of the SUM then proceeded to a high/low arbitration in which the Endorsement (Condition 6) was not ambiguous because agreement was that the plaintiff would receive at least it referred to “[t]he SUM limit shown on the Declara- $7,500 regardless of the arbitrator’s decision, and, if the tions,” and the Declarations clearly set forth a “per acci- arbitrator found that the case was worth at least $25,000, dent” limit. In so holding, the First Department aligned the tortfeasor’s carrier would tender the policy limit. The itself with the Fourth Department in In re Graphic Arts arbitrator did find that the claim was worth “in excess of Mutual Ins. Co. (Dunham),92 and the Second Department $25,000,” without specifying the amount, and the plaintiff in Automobile Ins. Co. of Hartford v. Ray93 and GEICO v. advised New York Central of this decision and requested Young,94 and disagreed with the Third Department in its consent to settle for the full $25,000 of the tortfeasor’s Butler v. New York Central Mutual Fire Ins. Co.95 policy. New York Central then disclaimed SUM coverage on the ground that the plaintiff had violated the policy Non-Duplication by entering into arbitration without its written consent Regulation 35-D’s SUM Endorsement contains a provi- and by compromising its subrogation rights. The plaintiff sion entitled “Non-Duplication” (Condition 11), which

NYSBA Journal | July/August 2013 | 45 provides that the SUM coverage shall not duplicate any also Spartacus Sch. of Sports, Inc. v. Nationwide Mut. Ins. Co., 101 A.D.3d 1105 (2d Dep’t 2012); Gilliard v. Progressive, 96 A.D.3d 718 (2d Dep’t 2012). of the following: 13. Konig v. Hermitage Ins. Co., 93 A.D.3d 643 (2d Dep’t 2012). (a) benefits payable under workers’ compensation or 14. Gilliard, 96 A.D.3d at 718–19 (citations omitted). other similar laws; 15. 101 A.D.3d 1310, 1312–13 (3d Dep’t 2012) (citations omitted). See also (b) non-occupational disability benefits under article Prince Seating Corp. v. QBE Ins. Co., 99 A.D.3d 881 (2d Dep’t 2012). nine of the Workers’ Compensation Law or other 16. 93 A.D.3d 643, 645 (2d Dep’t 2012) (citations omitted). similar law; 17. 100 A.D.3d 411 (1st Dep’t 2012). (c) any amounts recovered or recoverable pursuant 18. 95 A.D.3d 1413 (3d Dep’t 2012). to article fifty-one of the New York Insurance Law or 19. 95 A.D.3d 693 (1st Dep’t 2012). any similar motor vehicle insurance payable without 20. Ins. Law § 3420(a)(5), as added by N.Y. Laws 2008, ch. 388, § 2 (eff. Jan. 17, regard to fault; 2009). See, e.g., Rosier, 101 A.D.3d 1310; Chiarello v. Rio, 101 A.D.3d 793 (2d Dep’t 2012); Avenue New Realty, LLC v. Alea N. Am. Ins. Co., 96 A.D.3d 489 (1st Dep’t (d) any valid or collectible motor vehicle medical pay- 2012); AH Prop., LLC v. New Hampshire Ins. Co., 95 A.D.3d 124 (2d Dep’t 2012). ments insurance; or 21. Waldron v. N.Y. Cent. Mut. Fire Ins. Co., 88 A.D.3d 1053 (3d Dep’t 2011). (e) any amounts recovered as bodily injury damages See Rekemeyer v. State Farm Mut. Auto. Ins. Co., 4 N.Y.3d 468, 476 (2005); In re from sources other than motor vehicle bodily injury Brandon (Nationwide Mut. Ins. Co.), 97 N.Y.2d 491, 498 (2002); Bhatt v. Nation- liability insurance policies or bonds. wide Mut. Ins. Co., 61 A.D.3d 1406, 1406–07 (4th Dep’t 2009). 22. 98 A.D.3d 1302 (4th Dep’t 2012). Weiss v. Tri-State Ins. Co. 96 In , the court held that where 23. Id. at 1303 (citations omitted); see Chiarello, 101 A.D.3d 793. the maximum SUM coverage was $500,000 per accident, 24. Albano-Plotkin v. Travelers Ins. Co., 101 A.D.3d 657 (2d Dep’t 2012); Her- and the claimants settled the underlying bodily injury mitage Ins. Co. v. JDG Lexington Corp., 99 A.D.3d 428 (1st Dep’t 2012); Lancer action by accepting the $100,000 coverage limits of the Ins. Co. v. Super Value, Inc., 96 A.D.3d 807, 946 N.Y.S.2d 213 (2d Dep’t 2012); AH Prop., LLC, 95 A.D.3d 1243; Chiarello, 101 A.D.3d 793; Castlepoint Ins. Co. offending vehicle, and an additional $255,000 from a v. Mike’s Pipe Yard & Building Supply Corp., 101 A.D.3d 504 (1st Dep’t 2012); defendant bar/diner, in settlement of Dram Shop claims Szczukowski v. Progressive Ne. Ins. Co., 100 A.D.3d 1454 (4th Dep’t 2012); Aponte against them – for a total settlement of $355,000 – the v. GEICO, 92 A.D.3d 476 (1st Dep’t 2012); Kalthoff v. Arrowood Indem. Co., 95 A.D.3d 1413 (3d Dep’t 2012). SUM coverage was reduced to $145,000. As noted by the 25. 96 A.D.3d 855 (2d Dep’t 2012). court, the Dram Shop recovery constituted under Condi- 26. 96 A.D.3d 629 (1st Dep’t 2012). tion 11(e) (“Non-Duplication”) an amount “recovered as 27. Id. at 629 (citation omitted). bodily injury damages from sources other than motor 28. 92 A.D.3d 844 (2d Dep’t 2012). vehicle bodily injury insurance policies or bonds.”97 Since 29. Id. at 845 (citations omitted). 30. 91 A.D.3d 502, 502 (1st Dep’t 2012). Condition 11 does not allow duplicate recovery of such 31. Id. damages “under the terms of the SUM endorsement, the 32. 91 A.D.3d 870 (2d Dep’t 2012). plaintiff’s receipt of the Dram Shop recovery reduces, by 33. Id. at 871; see In re Allcity Ins. Co. (Russo), 199 A.D.2d 88 (1st Dep’t 1993). that same $255,000, the amount payable under the SUM 34. 97 A.D.3d 1103, 1104, lv. to appeal denied, 98 A.D.3d 1326 (4th Dep’t 2012), lv. to appeal denied, 20 N.Y.3d 1055 (2013) (citations omitted). endorsement. The plaintiffs are not penalized by this 35. 100 A.D.3d 878 (2d Dep’t 2012). reduction, since they secured the maximum amount for 36. Id. at 878 (citing Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 N.Y.3d 471, which they are covered under the SUM endorsement” 479–80 (2006)). 37. 93 A.D.3d 673, 673 (2d Dep’t), lv. to appeal denied, 19 N.Y.3d 805 (2012) (i.e., $500,000). Note, however, that the court did not (citations omitted). appear to consider the question of whether, in fact, the 38. 94 A.D.3d 1002 (2d Dep’t), motion for lv. to appeal denied, 19 N.Y.3d 815 recovery from the Dram Shop defendants constituted (2012). duplication, or simply additional benefits required to 39. 98 A.D.3d 580 (2d Dep’t 2012). ■ 40. 95 A.D.3d 732, 733 (1st Dep’t 2012) (citations omitted). make the severely injured plaintiff whole. 41. RLI Ins. Co. v. Smiedala, 96 A.D.3d 1409, 1412 (4th Dep’t 2012). 42. 92 A.D.3d 568, 568, recalled, vacated & substituted by 95 A.D.3d 627 (1st 1. 85 A.D.3d 1157 (2d Dep’t 2011), lv. to appeal denied, 18 N.Y.3d 803 (2012). Dep’t 2012). 2. The court did not address Pelszynski’s second argument, i.e., that he was 43. 96 A.D.3d 1409. covered under the volunteer fire department’s policy because he was occupy- 44. 92 A.D.3d 104 (1st Dep’t 2012). ing a vehicle which was being operated by the fire department and for its 45. 6 A.D.3d 344, 346 (1st Dep’t), lv. to appeal denied, 3 N.Y.3d 608 (2004). benefit. 46. George Campbell Painting, 92 A.D.3d at 105. 3. 2013 N.Y. Laws ch. 11 (eff. Apr. 16, 2013). 47. See City of N.Y. v. Northern Ins. Co. of N.Y., 284 A.D.2d 291 (2d Dep’t), lv. 4. See Norman H. Dachs & Jonathan A. Dachs, SUM Legislation – Good News/ dismissed, 97 N.Y.2d 638 (2001). Bad News, N.Y.L.J., Mar. 12, 2013, p. 3, col. 1. 48. George Campbell Painting, 92 A.D.3d at 106. 5. 35 Misc. 3d 200 (Sup. Ct., Essex Co. 2012). 49. Id. 6. Id. at 206–07. 50. Id. at 111. 7. Id. at 207–08 (some citations omitted). 51. 94 A.D.3d 642, 643 (1st Dep’t 2012). 8. 240 A.D.2d 566 (2d Dep’t), lv. to appeal denied, 90 N.Y.2d 810 (1997). 52. 96 A.D.3d 429 (2d Dep’t 2012). 9. 94 A.D.3d 725 (2d Dep’t 2012). 53. See also Munoz v. City of N.Y., 95 A.D.3d 648 (1st Dep’t 2012) (43 days). 10. Id. at 725–26 (citations omitted). See also Schenback v. United Frontier Mut. 54. 95 A.D.3d 732 (1st Dep’t 2012). Ins. Co., 101 A.D.3d 1788 (4th Dep’t 2012) (“[a] resident is one who lives in the 55. 99 A.D.3d 582 (1st Dep’t 2012). household with a certain degree of permanency and intention to remain”). 56. Id. at 582–83. 11. 38 Misc. 3d 478, 480 (Sup. Ct., Dutchess Co. 2012). 57. 96 A.D.3d 431 (1st Dep’t 2012). 12. See Albano-Plotkin v. Travelers Ins. Co., 101 A.D.3d 657 (2d Dep’t 2012); 58. 92 A.D.3d 568, recalled, vacated & substituted by 95 A.D.3d 627 (1st Dep’t Donald Braasch Constr., Inc. v. State Ins. Fund, 98 A.D.3d 1302 (4th Dep’t 2012); 2012). AH Prop., LLC v. New Hampshire Ins. Co., 95 A.D.3d 1243 (2d Dep’t 2012); see 59. 93 A.D.3d 618 (2d Dep’t 2012). CONTINUED ON PAGE 59

46 | July/August 2013 | NYSBA Journal ATTORNEY PROFESSIONALISM FORUM

To the Forum: motion to quash since he likely knew (b) The court, as appropriate, I am always conscious about running weeks prior that the bond was issued, may make such award of costs up unnecessary legal fees in litigation thereby staying the damages hearing. or impose such financial sanc- matters and I am acutely aware that, in I believe that Delayer’s actions tions against either an attorney or this current economic climate, clients are unprofessional. At a minimum, a party to the litigation or against scrutinize legal bills more than ever. I Delayer’s behavior is a clear example both. Where the award or sanc- recently succeeded in winning sum- of uncivil (perhaps unethical) con- tion is against an attorney, it may mary judgment on liability for my cli- duct motivated solely for the purpose be against the attorney person- ent in a breach of contract matter and of increasing my client’s litigation ally or upon a partnership, firm, the trial court subsequently directed expenses. corporation, government agency, a hearing on damages in which my My questions for the Forum: Did prosecutor’s office, legal aid soci- adversary, David Delayer (Delayer), my adversary act unprofessionally? Is ety or public defender’s office with moved for a stay in the appellate court. Delayer’s conduct sanctionable? which the attorney is associated The stay was granted, however, on the Sincerely, and that has appeared as attor- condition that Delayer’s client post an A. Barrister ney of record. The award or sanc- undertaking. The day after the stay tions may be imposed upon any was granted, I emailed Delayer ask- Dear A. Barrister: attorney appearing in the action or ing if his client would be posting the What constitutes sanctionable con- upon a partnership, firm or corpo- undertaking directed by the appellate duct is one of the most hotly debated ration with which the attorney is court. His response was, “We have not matters faced by the bench and the associated. made that determination as of yet.” A bar. Section 130-1 of the Rules of the (c) For purposes of this Part, con- few days later, at a conference before Chief Administrator of the Courts, 22 duct is frivolous if: the trial court, Delayer said that his N.Y.C.R.R. 130-1 (Rule 130-1 or Part (1) it is completely without merit clients “were not seeking to obtain 130) sets forth the provisions govern- in law and cannot be supported an undertaking.” Since Delayer repre- ing how costs and sanctions may be by a reasonable argument for an sented that he was not going to seek an awarded by a court when it finds that extension, modification or reversal undertaking, the trial court scheduled a party or its attorney has acted in a of existing law; a damages hearing at the conference manner warranting the imposition of to occur in 30 days. The day after costs or sanctions. Specifically, Rule The Attorney Professionalism Committee the conference and in preparation for 130-1.1 states: invites our readers to send in comments the hearing, I served a document sub- (a) The court, in its discretion, may or alternate views to the responses poena upon Delayer, which he moved award to any party or attorney printed below, as well as additional to quash. That motion was argued a in any civil action or proceeding hypothetical fact patterns or scenarios to few days before the damages hearing before the court, except where pro- be considered for future columns. Send and was granted in part by the trial hibited by law, costs in the form of your comments or questions to: NYSBA, court. The following morning, I was reimbursement for actual expenses One Elk Street, Albany, NY 12207, Attn: informed by Delayer that his client had reasonably incurred and reason- Attorney Professionalism Forum, or by posted the undertaking directed by the able attorney’s fees, resulting from e-mail to [email protected]. appellate court which it had required in frivolous conduct as defined in This column is made possible through order to stay the damages hearing. That this Part. In addition to or in lieu the efforts of the NYSBA’s Committee on afternoon, counsel for the insurance of awarding costs, the court, in its Attorney Professionalism. Fact patterns, company (which issued the undertak- discretion may impose financial names, characters and locations presented ing) informed me that Delayer had sanctions upon any party or attor- in this column are fictitious, and any resem- applied for the bond “weeks earlier.” ney in a civil action or proceeding blance to actual events or to actual persons, This is the first I had heard about the who engages in frivolous conduct living or dead, is entirely coincidental. These timing of the application for the bond, as defined in this Part, which shall columns are intended to stimulate thought and from past experience I know that be payable as provided in section and discussion on the subject of attorney a bond is usually issued in a matter 130-1.3 of this Part. This Part shall professionalism. The views expressed are of days (if not the same day). Had I not apply to town or village courts, those of the authors, and not those of the known that Delayer had applied for the to proceedings in a small claims Attorney Professionalism Committee or bond weeks ago (and assuming it was part of any court, or to proceedings the NYSBA. They are not official opinions issued shortly after he applied for it), in the Family Court commenced on ethical or professional matters, nor then I would not have been forced to under Article 3, 7 or 8 of the Family should they be cited as such. spend unnecessary time opposing his Court Act.

NYSBA Journal | July/August 2013 | 47 (2) it is undertaken primarily to Naposki v. First National Bank of Atlanta, (the Standards) (see 22 N.Y.C.R.R. § delay or prolong the resolution of 18 A.D.3d 835 (2d Dep’t 2005). 1200, App. A). Part VI of the Standards the litigation, or to harass or mali- Of course, an analysis as to what provides that “[a] lawyer should not ciously injure another; or constitutes sanctionable conduct use any aspect of the litigation process (3) it asserts material factual state- would be incomplete without mention- . . . for the purpose of unnecessar- ments that are false. ing Rule 11 of the Federal Rules of Civil ily prolonging litigation or increas- Frivolous conduct shall include the Procedure. Although the federal courts ing litigation expenses.” Furthermore, making of a frivolous motion for are often hesitant to order sanctions Part IX of the Standards states that costs or sanctions under this sec- when faced with the allegation that a “[l]awyers should not mislead other tion. In determining whether the party or its counsel engaged in conduct persons involved in the litigation pro- conduct undertaken was frivolous, intended to “cause unnecessary delay, cess” and Part IX(b) provides that “[a] the court shall consider, among or needlessly increase the cost of litiga- lawyer should not ascribe a position to other issues, (1) the circumstanc- tion . . .” (see Fed R. Civ. P. 11(b)(1)), another counsel that counsel has not es under which the conduct took Rule 11 is not by itself the only weapon taken or otherwise seek to create an place, including the time available to combat delay tactics by an attorney. unjustified inference based on coun- for investigating the legal or factual 28 U.S.C.A. § 1927 states that sel’s statements or conduct.” basis of the conduct; and (2) wheth- [a]ny attorney . . . who so multi- You mentioned that you had emailed er or not the conduct was continued plies the proceedings in any case Delayer the day after the stay was when its lack of legal or factual unreasonably and vexatiously may granted by the appellate court ask- basis was apparent, should have be required by the court to satisfy ing if his client would be posting the been apparent, or was brought to personally the excess costs, expens- undertaking directed by the appellate the attention of counsel or the party. es, and attorneys’ fees reasonably court and that Delayer claimed he had (d) An award of costs or the impo- incurred because of such conduct. not made that determination. As you sition of sanctions may be made In Wechsler v. Hunt Health Systems, noted above, Delayer thereafter made either upon motion in compli- Ltd., 216 F. Supp. 2d 347 (S.D.N.Y. a representation before the trial court ance with CPLR 2214 or 2215 or 2002), the District Court granted sanc- that his clients “were not seeking to upon the court’s own initiative, tions pursuant to both Rule 11 and 28 obtain an undertaking.” It is entirely after a reasonable opportunity to U.S.C. § 1927 against a defense counsel possible that Delayer misrepresented be heard. The form of the hearing who “on the eve of [a] . . . pre-trial con- his position concerning the undertak- shall depend upon the nature of ference to set a trial date . . . sought [a] ing in his exchange with you (a poten- the conduct and the circumstances procedurally unsound motion for sum- tial violation of Rule 4.1 of the New of the case. mary judgment.” Id. at 357. The court York Rules of Professional Conduct Although a full discussion of what in Wechsler noted that such conduct by (the RPC) which requires that “[i]n the constitutes sanctionable conduct could defense counsel “sought to needlessly course of representing a client, a lawyer take up volumes of this Journal, it delay th[e] action.” Id. at 358. shall not knowingly make a false state- appears that the situation which you Naposki and Wechsler show just two ment of fact or law to a third person”). have described focuses primarily on examples of how courts view delay tac- Of greater concern is that Delayer may the question of whether a potentially tics – they are not taken lightly. While we have misrepresented himself before the expensive delay caused by an adver- all know that delay and expense are often trial court concerning the status of the sary rises to the level of frivolous con- inevitable in litigation, smart lawyers rec- undertaking. Such misstatement could duct and should be sanctioned. Rule ognize that they only create problems for amount to a violation of Rule 3.3(a)(1) 130-1.1(c)(2) notes that frivolous con- themselves when they engage in delay of the RPC which states that “[a] lawyer duct includes actions which are “under- tactics that include unnecessary motion shall not knowingly make a false state- taken primarily to delay or prolong the practice (as seen in Wechsler) or discovery ment of fact or law to a tribunal . . .” resolution of the litigation, or to harass “undertaken primarily to delay or pro- If you had known that Delayer had or maliciously injure another.” Rule long the resolution of the litigation, or to actually received the undertaking ear- 130-1.1(c)(2). One example of sanction- harass or maliciously injure another.” See lier in time than he later told you, then able delay involved a law firm which Rule 130-1.1(c)(2). you would not have had to operate had hindered the resolution of a litiga- We are sure that there are many under the assumption that the damages tion by twice moving for additional members of our profession who would hearing was going forward as previous- time to submit an appeal brief while consider completely unprofessional ly scheduled by the trial court and you withholding for many months informa- Delayer’s failure to inform you about would not have been forced to engage tion regarding a related settlement in the status of the bond in a timely man- in an unnecessary discovery dispute in another state that mooted the appeal ner. Certainly, many would view Delay- advance of the previously scheduled and of the firm’s intention to move to er’s conduct as violations of multiple hearing date. By keeping you in the dismiss the appeal on that ground. See provisions of the Standards of Civility dark as to the status of the undertaking,

48 | July/August 2013 | NYSBA Journal Delayer’s conduct likely caused you to to the cost of a case. Nevertheless the incur unnecessary litigation expenses court expressed the view that attorneys QUESTION FOR THE (a violation of Part VI of the Standards) potentially have both a moral duty NEXT ATTORNEY and the position he took as to the under- and a heightened ethical duty not to PROFESSIONALISM FORUM: taking may have been both misleading engage in conduct that could result in and contrary to what he represented to one’s adversary being forced to incur I have been trying to develop an you in prior conversations (a violation unnecessary litigation expenses. In the appellate practice and decided a few of Part IX of the Standards). words of the court, “the day may come years ago to write a quarterly electron- Now, was Delayer’s conduct sanc- when the law takes a more moralistic, ic newsletter discussing recent appel- tionable? Perhaps wanting to go in one might say ‘holistic,’ approach,” late decisions on issues that are of the other direction, one court recently adding that “we all gain when nobody interest to my colleagues and potential answered this question in the negative. is allowed gratuitously to cause anoth- clients. My thought was that the news- Conason v. Megan Holding, LLC, N.Y.L.J., er’s loss.” Id. Furthermore, the court letter would give me an opportunity to May 7, 2013, at 22 (Sup. Ct., N.Y. Co. embraced the idea that “[i]n normal demonstrate my writing and analytical Apr. 18, 2013), was an action for alleged civil society, the failure to save some- abilities, and attract clients. rent overcharges. The plaintiffs won one else money is bad form” and that The newsletter (known as “The summary judgment on liability. The “[w]hat in normal civil society is com- Able Law Firm Letter”) targets attor- court directed an assessment of dam- mon courtesy may some day in law neys and members of the business ages by way of a hearing and ordered become ethical obligation.” Id. community who might refer business an award of attorney fees for the plain- While counsel’s tactics in Conason to my firm, and it includes my bio- tiffs. The defendants sought a stay of may not have risen to the level of sanc- graphical and contact information. the damages hearing in the Appellate tionable conduct, we can think of situ- When I write about a case, I give Division and further perfected their ations that might warrant a different the citation. I discuss the decision, its appeal. The Appellate Division stayed result. Consider, for example, the adver- implications to the particular practice the damages hearing on the condition sary who insists that a deposition must area and whether the decision is in my that the defendants post an undertak- be scheduled in a distant location on a opinion correct. I never mention the ing. The plaintiffs thereafter moved holiday week, claiming that is the only names of the attorneys who handled for costs in the form of attorney fees, place and time the witness will be avail- the case. My plan is working, and I claiming that the defendants failed to able for the next six months. The fact, as have gotten several clients who tell me inform them they were applying for a discovered when the deposition is taken, they decided to hire me because of the bond, thus causing the plaintiffs unnec- is that the attorney knew full well that newsletter. Recently, I had a case in the essary work in litigating a subpoena, the witness was available in the adver- Court of Appeals which resulted in a among other motion practice. The court sary’s home city for much of that time major victory for me. I have decided to addressed the issue of whether a party and there was no reason for the out-of- write about the case in my newsletter could be sanctioned for failing to save town deposition. Was the concealment and plan on identifying the name of its adversary money, noting doing so of this fact frivolous conduct within the my client and highlighting the fact that would cause no prejudice to itself. In meaning of Part 130? We are sure that I was the attorney who successfully the end, the court denied the plaintiffs’ many of us would view it as such. handled the case. motion for costs and found that the Although Delayer’s conduct (which A number of colleagues have sug- conduct at issue was not sanctionable. bears a striking resemblance to the con- gested that my newsletter is attorney The court stated that while Part 130 duct at issue in Conason) may not, at least advertising, and that it is unprofes- could expressly provide that failing to in the view of one judge, have been sanc- sional for me to tout my victory by save an adversary money was sanc- tionable, it should be a cautionary tale for writing about it. Frankly, I do not think tionable, it did not, and questioned attorneys in their dealings with oppos- my colleagues are correct, but I am where “to draw the line between mere ing counsel. The lesson to be learned is wondering whether it is possible that discourtesy and sanctionable miscon- that the case law may not always keep I am doing something wrong. I have duct.” In addition, the court found that pace with the conduct. Lawyers take a also been told that even though my a code of conduct prohibiting causing great risk when they engage in practices Court of Appeals decision is a reported an adversary to waste money would be which delay cases and cause unneces- case, I need the permission of my client difficult to interpret and enforce. sary litigation expense. to write about the case and identify its The court in Conason apparently felt Sincerely, name. constrained by the fact that (unlike in The Forum by Sincerely, Rule 11) there is no express language in Vincent J. Syracuse, Esq., and I.A.M. Able, Esq. Part 130 permitting an award of costs Matthew R. Maron, Esq., and sanctions when attorneys engage Tannenbaum Helpern Syracuse in conduct that unnecessarily adds & Hirschtritt LLP

NYSBA Journal | July/August 2013 | 49 NEW MEMBERS WELCOMED

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50 | July/August 2013 | NYSBA Journal Samuel Zachary Lenarz Erika Joyce Myrill Nolan J. Robinson Andrew Philip Smook William Richard Vander Lugt Felix Bakary Leno Christopher Scott Na David Rochelson Cynthia Olivia Smuzynska Andreea Roxana Vasiliu Erika T. Leon Kaveh Mohamed Namazie Katharine Rodgers Shannon Ione Smyth Anthony John Vogel Jenny Rose Leon Shaira Nanwani Stacey Rodkin Federico Francesco Soddu Danielle Von Lehman Alex Gregory Leonard Sarah Margaret Naseman Jesse Michael James Roehling Deborah Soo-hye Sohn Nisha Dipak Vora Terence Yuwen Leong Dania M. Nasser David Michael Roemerman Adrian Tony Solomon Denille E. Wachtenheim Max Lerner Kimberly Eve Nathan Luke Austin Rooney Banafsheh Soltani Allison Beth Wadness Kevin K. 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Milstein Elizabeth Clare Quirk Keith Adam Mininson Kaloyan Radosslavov Katherine Anne Mirett Shannon Brittany Raimondi Matthew Evan Mirett Or Raitses In Memoriam Colin Timothy Missett Lauren Hannah Rakower William J. Moccia Ravi P. Ramchandani Michael Craig Monteleone Benjamin Branda Reed Ian R. Arcus Hugh Janow Eugene W. Salisbury Christopher Paul Monterosso Benjamin James Reed Albany, NY Pearl River, NY Buffalo, NY Christopher David Julie Rebecca Reich Leonard Berkowitz David A. Latham William I. Schapiro Montgomery Rachel Price Reiser North Woodmere, NY London, UK Buffalo, NY Sam Myron Reitman Joon H. Moon Robert T. Cole Louis Solomon Meltz Norman Shapiro Nathan Samuel Richards Michael L. Moore Washington, DC White Plains, NY Goshen, NY Roy Moran Victor Kelvin Richards Matthew W. Morse Alexa Jillian Rissoff Russell J. Ippolito Jon N. Willcox Adam Jacob Moss John Jerry Robinson Tarrytown, NY White Plains, NY Colin J. Mulholland Marita B. Robinson Karl D. Mulloney-Radke

NYSBA Journal | July/August 2013 | 51 Chaya Rochel Biskin-Sitko Nathan Howard Samantha Leah Schott Meghan J. Gilligan Michael McKevitt Kane Albert J. Boardman Julia Medeiros Howard- John L. Schwab Milton A. Gregory Jennifer Katz Joseph Stansel Bogen Gibbon Zev Schwartz Jacquelyn Grippe Steven Christopher Kos Melissa Ann Bonneville Lisa M. Howell Gina Shlaferman John Carlo Jensen Marie Lampropoulos Kristyn Marie Boyd Albert Huang Stanislav Skarbo Benjamin Dane Ritter Andrew C. Lotempio Charity L. Brady Daniel Mark Isaacs James Slattery Leia Danielle Schmidt Parker Roy Mackay Katelyn Ann Brandes Solomon Israel Peter Harold Smiley Benjamin D. Snyder Scott R. MacPherson Katherine S. Braver Andraz Jadek Russell Mark Smith Kristopher Stevens Liam A. McMahon Alexis Brine Kylan Derrick Johnson Philip Anderson Smithback Daniel T. Tedford Katelyn Jill Murray Georgina Jane Brown Dasha Kabakova Rebecca Claire Smithwick Ashley M. Van Hoff Kelly Ann O’Brien Hal L. Budnick Nicole Gloria Kaganovsky Victoria Smolyar Lauren M. Wojnowicz Melissa A. Palmer Jacob Bukhsbaum Alexander H. Kamerman Robert B. Sobelman Travis J. Yoxall Jennifer Marie Paulino Stacy Noel Cammarano Michael Kang Mariya Solovey Bridget Elizabeth Rochester SIXTH DISTRICT Ethan A. Carrier Peter Kapitonov Justin L. Sowa Matthea W. Ross Allison Julie Arotsky Peter James Chambers Shannon Rose Karam Gregory Sparer Danielle Elizabeth Schembri Christopher John Austin Miles Chan Maksim Kats Phillip W. Starkweather Joshua Charles Sibenik Patrick Wyatt Blakemore Theresa Marie Chandler Yevgeniy Kats Jawaid Hasan Stationwala Matthew Scott Szalkowski Mark Yun (Allen) Chen Maria Shuk-mon Cheung Levi Katzoff Shimon Sternhell Phillip Victor Urban Gabriel Alejandro De Corral Lucas Paul Christiansen Reed Mankin Keefe Mariangela Carroll Sullivan Amanda Zafur Andrew Bernard Des Rault Hoi Chu Daniel Francis Kesack Yvette Sutton Tamaron Dawn Greene NINTH DISTRICT John David Cleaver Raymond T. Kim Robin Lynn Swartout Diana Lucy Hallett Jamal Ben Al-Haj Christine Khalili-borna David Samuel Kleban Meredith Davidson Symonds Kerry Anne Harnett Sarah Rheagan Alexander Clemens Yitzchak Kopel David Michael Teslicko Guillaume A. Hess John M. Amandolare Sean D. Collymore Jason David Labate Helen Elizabeth Tsibelman James Byron Hicks Elizabeth Ashley Anderson John Confalone Allison Ackerman Lack Enisa Tutovic Colin Angus Leslie Kristen Elizabeth Andreoli Alexandra Katherine Melissa K. Lambert Stan Ulis Todd Marks Jacob Joseph Awad Costanza Risa Raquel Lander John Carlos Vazquez Matthew T. Pineo Hinna Lamba Bailey Laura Cramer-Babycz David Michael Landfair Nadirah Renee Vincent Drew Godfrey Rolle Raphael John Basso Michael Charles Crowley Stacie Robin Large Peter Michael Wade Michael Murray Shaw Joseph G. Bernard Alali Dagogo-Jack Joseph Lawlor Charles Dallas Wakefield Yang Yang Bobbi M. Bittker Gati Dalal Anuradha Lazarre Lauren Amanda Wansor Jordan Jacob Yorke Jared Evan Blumetti Amy Rachel Dallas Charles David Lee Michael A. Wertheim Rory Kennedy Brady Casey L. Dalporto Richard Geo Sang Lee Celadon Charles Whitehurst SEVENTH DISTRICT Shaina Brenner Sharon Davidov Alexander P. Lev Derek Wikstrom Casey Patrick Acker Coleman P. Burke Lindsey Margaret Davis Nora Anne Lynch Melanie Catherine Jennifer Nicholas E. Arazoza Lisa Capone Monica I. De Jesus Santana Audree Leticia Maldonado Williams Alexa L. Ashworth Robin D. Carton Coque Keaton Dion Robert Douglas Marko Angharad Katharina Wilson Melanie Jennifer Bailey Antoinette Maire Caruso Rachel Drachman Spencer Adam Marr Stephen Todd Wishner Kevin Lewis Bray Dalila Christine Castillo Dmitry Dukhan Ann Elise McCaffrey Dovid L. Wolosow Colin Richard Bruckel Elizardi Castro Vassiliki Eliza Economides Golden Elesha McCarthy John Russell Wunderlin Terance Rowe Calcagno Michael Albert Collado Erin Elizabeth Elmouji Michael Mario McGovern Alexander S. Yellen Alex James Cameron Amanda Connor Jennifer Leigh Elson Patrick John McKeown Daniel J. Yost Steven Michael Cammarata Kerry E. Costello Andrew M. Erdlen Janna Elyse Miksis Sarah Marie Young Todd James Casella Nicholas Curtiss-Rowlands Emily Caroline Erstling Corinne Marie Milliken Farah Yasmin Zaman Benjamin J. Casilio Lindsay Dembner Rachael Danielle Faraone Evan Robert Minsberg Alexander Ian Ziccardi Leigh Ann Chute Caitlin Simone Demko Valerie Paige Farnum Elise Moran Minter THIRD DISTRICT Schauna M. Comfort Anthony Michael Desiato Vernal Farnum Alea Jasmin Mitchell Craig Daniel Alfred Adam J. Falcheck Christina Ambrosio DiFiore Igor Faynshteyn Elisheva Mochkin Ari Fabian Ambrose Diana Teresa Ferretti Andrew J. Donovan Monica Laure Feltz Loreal Tieshae Monroe Brianna LeClair Bailey- Katherine Gavagan Kristin Erika Drennan Mark Patrick Fitzgerald Jacqueline Murekatete Gevlin Mary Johanna Hanzlik Yousra A. Elmadfai Julia L. Forman Julie Michele Murray Alaina M. Bergerstock Elizabeth Ludington Heins Aaron Feuer Izel Fortunato Kelly Kelechi Ndubuka David Philip Berson Christa Marie Hibbard Robert A. Feuerstein Flavia Franco Chantee Maria Nelson Benjamin Casolaro Robert Cooley Jeffries Julia Flockermann Daphney Gachette Kimberly Elizabeth Nosek Dustin S. Delp Jennifer Laura Karnes Robert Wilkins Forster Joel Alan Gaffney Daniel M. Novick Jenna Marie Dicostanzo Andrew D. Kleehammer Alex Justin Freundlich Joshua Barkentin Gardner Aileen Elizabeth Nowlan Lance A. Dunning Amanda Blair Lawrence Allan Goldfarb Christopher Warren Garos Sean Christopher O’Neill Mark Harrison Foster Kurt Odenbach Tawfik Ahmed Goma Aleksandr Gelerman Nina Claudia Oksman Michael T. Grady Michael Tyler Pattison Julia Beth Gordon Michael Gervais Karen Elisabeth Oprea Jennifer E. Jack Christina Perinelli Ivie A. Guobadia Diana Gesualdi Tracey Lynn Orick Martin Louis Levine Danielle Denise Ponder Hope Halpern Quenten Elizabeth Gilliam Matthew H. Ormsbee Diana Marin Candice Ann Sengillo Megan Kathleen Hannon Rachel Tillie Goldberg Chan W. Park Anna R. Mumford Benjamin Thomas Skomsky Jacob J. Herbst Mordechai Goldenberg Jasmine Paul Christopher J. Ritchey Stephen J. Sorensen Jasmine Celeste Hernandez Maurice Dwayne Golding Melanie Marie Perez Diana Schaffner Kelly N. Thaw Stacey L. Horan William Avi Goldman Ritha Pierre Michael C. Tedesco Alexander Freund Tilton Jenelle Lindsey Hubbard Tomer Yaakov Goldstein Bartolomeo A. Pittari Rebekah E. Weiler Peter M. Van Dellon Joseph Aaron Jacobson Shoshannah G. Goodman Elyor Pogorelskiy Mecene Jophard Jourdain Julie Gordon James D. Pollock FOURTH DISTRICT EIGHTH DISTRICT Alexandra Tara Kamenetsky Kate E. Gracia Vyacheslav Polyakov Jordan Austin Julie Aline Barnes Claire E. Knittel Jesseka Roxanna Green- Emily S. Poppish Daniel Martin Chauvin James Peter Blenk Eugene Adam Kornel Gooden Joseph A. Provenza Katherine J. Demartino Richard Ruben Capote Jennifer G. Kumar Molly Beth Greer Mahfuzur Rahman Aimee Bharatkumar Kehoe Kelly Lin Carr Yeshaya A. Larkin Joseph Robert Gregory Andrea Lynn Ravich Janelle Lavigne Brian Thomas Cook Erin Carol Larocca Dylan Nathaniel Hanson Daniel Douglas Ricciardi Brianna J. Rinkewich Thomas J. Deboy Jessica Louise Lovejoy Joshua Adam Hantman Ricardo Antonio Rodriguez Martha Ellen Donovan FIFTH DISTRICT Casey Milton Lovell Renee Kameko Hasman Samuel Rubin Brian Michael Eberle Daniel J. Bobbett Samantha Ashley Lyons Nirupama Shree Hegde Jessica Ruth Rubin-Wills Jeffrey Christopher Ertel Michael D. Brown Melody Joy Mahla Todd Harris Henderson Inna Rudman Jonathan David Falk Alex Jared Chase Michael Louis Mangini Ryan Nigel Henry Yury Sakharov Maureen Renee Finn Timothy Doolittle Christy Jean Mazzola Kathryn Anne Hettler Alexander F. L. Sand Nicole Marie Flaig Daniel Stephen Engle Thomas J. McDonald Nathan Mountford Horne Thomas Joseph Sander Kathleen Joanna Gabel Anne J. Fletcher Yaneike Nicole McKenzie- Jada Monyale Horton Matthew Joseph Schommer Jeffrey Brooks Hitchings Roy G. Franks Rebecca Richelle Josefiak Coley

52 | July/August 2013 | NYSBA Journal Debra Lynn Mechanick Ivana Garbowski Gina M. Rodgers Alexander N. Dergarabedian Jorge Adriel Rodriguez Jennifer M. Nath Mark Gaylord Sean D. Roos Pranav M. Desai Matthew Thomas Rosenthal James E. Nelson Diana Renee Gesualdi Norah Marie Roth Jamie Porter Devries Andrew David Rossel Caroline G. Orlando Kenneth Elswood Gillespie Andrew Michael Rothstein Adrian Ihor Dlaboha Laura S. Rossi Meju Michelle Park Marissa Lynn Glass Joshua Neil Rudin Raymond Patrick Fernandez Dana Theresa Russo Thomas Leonardo Patalano Steve Gokberk Brittney Ciara Russell Ann M. Ferrara Frank Paul Sabatini Leroy J. Pelicci Raquel Lauren Goldstein Jacqueline Sabarese Paul J. Giovanniello John Michael Saragas Rebecca Ann Regan Michael John Graff Michael Anthony Sabino Jeffrey Ephraim Glatt Elie Schulman Rachael K. Reid Jason William Hake Prerna Sahni Jesse Avram Goldberg Deena Bailey Schwartz John Leikin Reinus Philip Hammarberg Brian Michael Sanders Angel Manuel Guardiola Jesse A. Seiden Craig Relles Jenny Soohl Han Max Daniel Schlan Carla Bess Gunther Anna Shalomova Caitriona A. Rowland Kenneth Kiseung Han Arieh D. Schulman Joshua Seth Guttman Ryo Shiba Zachary H. Saltzman Ian Edward Hannon Paul Livingston Scrom Adina J. Halpern Jamie Sinclair Nicole Teresa Sardinha Ethan Alexander Harris Andrew Edward Evan Blackley Hannay Ariana C. Smith Jay J. Scharf Rachel Meredith Haskell Shaughnessy Theodore William Hastings Jennifer Ann Smith Riti Priya Singh Chauncey Henry Leran Sheena Simone Sigma Hicks Rachel Serenity Sparks Jeffrey Eric Smith Randall Holman John Zachary Simon Sarah Lynn Hollender Bradley Rebecca A. Stockel Bryan R. Houde Shikha Singhvi Timothy Chichen Hou Danielle Marie Stevens Brian Taylor Sumner Jaime Sarah Hyman Shana Ivy Slawitsky Anna Hwang Frasilie Stinvil Jaime Trevino Ruby Arlene Hypes Jessica Lynn Smith Mikhail Ibragimov Hao Tao Ellen J. Wardrop Tal Kenan Jawitz Rebecca Kate Sorenson Edgar O. Irizarry Alexander Tapia Thomas Matthew Zegarelli Katelyn Marie Jerchau Nicole Lynn Sottilo Veronica Joya James Allen Thurtell Zhiyao Zhu Eric D. Kane Matthew Frank Spano John Michael Kalinowski Daniel Toca Jillian Leigh Kane Panagiota Christen Stathakos Constantine Kalogiannis Jonathan S. Tomberg TENTH DISTRICT Michael Keane Rachel Joan Stein Jennifer Diane Kelly Joann Tsempelis Mariam Ahmad Jessica Donna Keller Jason Keith Sterling Aleksandr Khutoryansky Nkechinyelum Udogwu Gregory Michael Ainsley Samantha Kent Gonzalo Gaston Suarez Robert Nam Su Kim Mary Van Noy George S. Asllani Jacquelyn Barbara Kercelius Amy E. Swensen Yeunjo Kim Jessenia Leonor Vazcones- Gil Auslander Daniel Scott Klebanoff Jaclyn Swerz Shintaro Kitayama Yagual Colleen Marie Baktis Aaron M. Kleinmann Michelle N. Tanney Sergey Korolev Alla Voronovitskaia Alimi A. Banjoko Marissa Taylor Kovary Ruth Rachel Taranto Paras D. Kothari Dingding Wang Nicole Chealisse Bayer Melissa Ellen Koven Justin Thomas Tauro Julia Kourasheva Songyan Wang Kristy Lynn Behr Julia Ilona Kudlacz Janine Marie Townsend Jason William Krawitz Yangyu Wang Jack Anthony Bennardo Thomas Richard Lai Rachel Rita Troiano Jennifer Kucuk Elisha Wellerstein Orly Kaye Bertel Alyssa Ann Laib James M. Tsimis Angelina Amrita Lachhman Sholom Wohlgelernter Samir N. Bhalodkar Erika Brittany Last Shoira Turaeva Wen-wei Lai Kirsten Marie Wolf Emily Nicole Blatt Joseph G. Leocata Jeannea Marie Varrichio Sonia Laird Bryan J. Wolin William Gerald Blum Jonathan Chet-ming Li Christina Ann Vergara Nicole Lapsatis Takuro Yamaguchi James Brian Bouklas Micah R. Liebert Christina Virgo Stamatios Nikolas Boyuan Yang Oana Elena Brebenel Michael N. Lopez Nicholas D. Vitalo Lathourakis Vladimir Yelizarov Gregory Nicholas Brescia Lauren Michele Lundquist Unitah Rose Vivinetto Clair S. Lee Ayda Zaghi Laura Rose Bugdin Kent Oscar Markgraf Marshall S. Volk Lilian Lee Michael Wesley Zimmerman Stephen V. Buonomo Audrey Ayanna Mars John Paul Volpe Arely D. Lemus Irene Apostolou Zoupaniotis Ilana Blake Canner William Hamlet Martoccia Meaghan Ashley Walters Janelle Melissa Lewis Lauren Ashley Carrabs Victoria C. Mauri Rei Watanabe Jessica Palumbo Limbacher TWELFTH DISTRICT Raymond A. Castronovo Daniel Alexander Scheiwe Christopher J. Wesser Shelly Lin Rolfi Jason Adon Evelyn C. Centeno Mazzella Joshua Lawrence Wolinsky Xiaolin Liu Henrietta Asiedu Rita Chang Bret Lawrence McCabe Calvin Woody Joyce Man-ning Lo Jennifer Marie Brannon Mitchell Roger Charchalis Jolly-ray Paul McFarlane Lingfei Xu Ramy Louis David Marc Chaise Meredith E. Chesler Seamus Michael McGrath Qian Jennifer Yang Leila Lucevic Katerina Davydov Jason Eric Chimon Samuel Ethan Meller David Seth Yohay Patricia Helen Lui Daniel Davis Gamer Jeffrey David Cohan Ward McLaughlin Miller Karen Muir Young Sophia Luu Nicole Alayne Gentile Brett R. Cohen Laura A. Moletto David Edward Zahn Florina Malakh Laura Anne Godfrey Sean Edward Comerford Lauren E. Monaghan David John Zaleski Sekinat Olubunmi Malik Daniel Goldmintz Kristen Brett Conway Elizabeth Jung Moran Shirin Zarabi Besmir Martinaj Paula Luz Gutierrez-Rivera Meredith Allyn Coppola Hayley Anne Morgan Melissa Allison Zeidler Ellen Catherine McGrath Rachael Anne Harding Mariel Crippen Kristin Nicole Moro Zachary Adam Zimmern Caitlin Mary Meagher Hadassah Leah Holmes Ashley Michelle Cuneo James A. Morris Mordechai Mendlowitz Lucienne Nicole Lozada ELEVENTH DISTRICT Nancy Dalien David M. Mott Gabriel Gilbert Mendoza Cynthia Adjo Markham Nissim Abaev Shari Alexandra Dawkins Michael Jay Mutarelli Jenna Rae Minor Etondi M. Mbame Stella R. Adegite Marissa Maureen Debellis Kevin Nguyen David Hugh Montgomery Madeline M. Moore Benjamin Alvarez Jaclyn Delle Pape Nicholls Paola Monzon-cheng Robert M. Murray Kyle Philip Antonelli Laura Emily Deluca Patrick Colm Nolan Melisa S. Morgan Ehimwenma Osayande Adam Antreassian Dahlia N. DeSimone John Jerome Norton Shirin Movahed Stephanie Peguero Daniel Avezbaki Chaim M. Dienstag Alexander Joseph Papa Ester Murdukhayeva Holly Anne Robertson Ara K. Ayvazian Erica C. Diner Christina Elizabeth Daniel Sophokles Nakos Heidy M. Rodriguez Deidre Maeve Baker Corinne E. Donohue Papadopoulos Megan McDonald Neal Krystle Eve Rodriguez Steven Thomas Beard Joseph R. Einav Amit R. Parikh Diana Mary Nevins Orleny Altagracia Rojas Jacob Bitton Ashley Renee Elem Helen Partlow Michelle K. Ng Luisa Maria Rosario Moshe Chaim Bobker Marissa Christina Eliades R. Anthony Pastore Oluwatosin Ojo Brad Anthony Smith Bella Borukhova Robert William Elliott Vincent Joseph Pastore Leonard Yehuda Adam Daniel Steinmetz William Michael Brown Talia Stephanie Englander Sara E. Pervil Oppenheimer Madeleine Elizabeth Stokes Erin Michellle Campbell Brett Donald Erland Lienne Pisano John-Paul Ovadia Brian Dexter Thomas Andrew D. Cerio Natalia Fekula Matthew Richard Pisciotta Steve Jungsuk Park Helen Dilenia Torres Michael Taiyuan Chen Richard John Femia Paul Philip Plush Suvano Pinyochotiwong Trinh Tran David K. Cheung Jessica Hope Ferguson Brian Powers Eliezer Poupko Elizabeth Feldmeier Vieyra Jinhyuk Choi William K. Field Dana Purcaro Maureen Michelle Pritchard Rebecca Lynn Visgaitis Lauren Allison Curatolo Brian Fishkin Gary V. Pustel Karen Camille Ekaterina Vyrkin Scott Nicholas Cutrone David Samuel Fooden Robin Meredith Quitko Queensborough-Evans Philip Richard Weissman Sean Patrick Damm Brendan Michael Fredette Jennifer Rabizadeh Amir Rasoulpour Samuel Yaggy Jillian Marie De Chavez Stephen Edward Fregosi Michael Joseph Rago Nicole Joy Alyssa Reid Lisa Marie Zayas Elias Demopoulos Kassandra Danielle Friedman Joseph E. Reich Ariuntuya Rentsen

NYSBA Journal | July/August 2013 | 53 THIRTEENTH DISTRICT Paul Kenneth Beck Brian R. Chase Jochem Dousi Anam S. Haroon Theresa Omotayo Adewale Justin Ross Becker Darren Jon Check Andrea Dufaure Mizuki Hayashi Kimberly Azucena Bello Jennifer Marie Bennett Dandan Chen Siobhan Maria Clare Metcalf Ian Murray Hazlett Aiden Eugene Cotter Malgorzata Elzbieta Fang Chen Duff Holly Angela Heath John Culotta Bereziewicz Sheng Chen Sarah Kathryn Dugan Jonathan William Heaton Joshua Degenstein Kyle Thomas Berglin Shiyi Chen Georgia Bennett Dunphy Michael Heck Steven Demizio Amanda Jean Brillantes Maya Cheriyan Hiroyuki Ebisawa Mark Jason Heftler Jesse David Eisenberg Bernardo Serene Chew Jason J. Edler Ashley Heisler Michael S. Elias Maria Loreste Bernido Sunita Vij Chhabra Michael James Edwards Julie Estee Heller Lauren Marie Flynn Justin Lewis Bernstein Nancy Aris Chidlovsky Lynn Eisenberg Eliyahu Dov Hendeles Findayawah Munjai Gbollie Erin Elizabeth Berry Jessica Vivian Chiu Mallory Kim Elizondo Clifford Chad Henson Magdalena Kuczynska Moran Bickel Suraj Chivukula Stefan Jesse Erwin Edward George Higbee Cristina Maria Masiello Mitchell S. Bierman Dennis Cho Whitney Ann Evans Brandon H. Hill Elizabeth Anne Murphy Grisel Blanco-Obregon Dustin Gary Cho Robin Fagan Brian David Hill Gary Michael Ricci Ryan Patrick Blaney Hyun Mi Cho James Allen Fantau Christopher Hirl Julia Sobolev Valentine Anna Bleicher In Young Cho Aaron Fanwick Kazuhisa Hirose Roman Tchaikovsky Harold William Bloom Yen-an Cho Jennifer Lynn Fasolino Norman Pai Ho Jessica A. Termini David Edward Bocan Wonjin Choi Jiajia Fei Jia Lin Hoe Julienne Nicole Verdi Richard Norman Boe Bilal Mohammed Choksi Cheryl D. Feinberg Shane Christian Hoffmann Clare Elizabeth Bogdanowicz So Jung Choo Eric William Feinberg Estelle Hofschneider OUT OF STATE Sharon T. Boland Isabel Deway Chou Peter Lim Felton Bradley Neil Holland Mariame Aana Brian William Bombassaro Chun Wing Chow Amie Elizabeth Ferriero Danielle Dabritz Holmes Yussuf Salah Abdel-aleem Emma Eaton Bond Wamiq Shaheer Chowdhury Michael Joseph Figura Benjamin Aaron Hooper Allen F. Acosta Kateryna Bondar Olivia Chriqui Marc Edward Finkel Shinichiro Horaguchi Lucas Charles Adams Daniel Eduardo Bonilla Matthew Robert Christiansen Daniella Fischetti Luke Roosevelt Hornblower Yaniv Adar Derek Adam Borchardt David Seung Kyun Chung Julianne Christine Fitzpatrick Ashley Elizabeth Horton Adewole Ebenezer Adebayo Nicolaj Bording Janghwan Chung Brian Liam Flood Ping Kuo Hsiao Adefoyeke Abimbola Adedeji Charles J. Bordonaro Kyoung Hun Chung Melissa Katherine Flores Alex Hsu Jawad Ahmad Andrew James Borek Matthew Tully Clark Todd Flubacher Barbie Paiyin Hsu Sogol Ahmadinia Maria Grigorievna Borodina Lauren Whitney Clarke Sherif Mohamed Foda Chao Tsung Huang Kwangmin Ahn Kate Bousfield Jillian Beth Clayton Michael Angelo Formichelli Kuan-chen Huang Adam Munther Ajlouni J. Alexis Bowie Michael Tripp Cofield Mariko Alice Foster Yuqian Huang Suhaib Al-ali Jennifer N. Boyd Aaron David Cohen Cherine Fuad Foty Zhe Huang Justin Philip Alexander Dennis Edward Boyle Roy S. Cohen Stephen Allen Fraser Siavash Human Martin Alexandre Adrienne R.W. Bradley Lauren Collins Alison Ellis Frick Ashley Humphries Christopher Michael Alexion Kathryn Joyce Bradley Allison Kendall Condon Matthew Ross Friedman Shonnie Hur Rafael Antonio Altimari Daniel Justin Bremmer Melinda Jean Cooperman Dao Fu Madoka Iida Jaclyn Georgette Ambriscoe Lauren Aimee Broccoli Jason Andrew Copley Leyue Fu Thor Gerald Imsdahl Dante N. Amenta Richard Michael Brodsky Cyriane Marie Coste Xin Fu Kyle Innes Steven Augustine Andreacchi Astrid Suzanne Brouillard Dawn Marie Coulson Daniel Fuentes Sophia Moena Isani Kristine Aisa De Paz Antoja Heather Michelle Brown Rafael A. Cox Alomar Marc Furman Yuka Iwai Alvaro Antoni Perez Anne Marie Buckley Marc Christopher Cozzolino Andrew Joseph Gallo Jonathan Aaron Jablon Aurelia Antonietti Matthew Koch Bugher Jacopo Nicolo Crivellaro Matthew Paul Gallo Matthew Aaron Jackson Alexandra Sergeyevna Kenneth Anthony Bukowski Aisling Mary Cronin David Carl Galusi Edward Gerard Jager Appatova Hagit Hadas Bulmash Kelly Elizabeth Cruze Lindsay Michele Gamble Sonia Jain Sarah Apsel Joseph Frank Buono Sabrina Leanne Cua Stephanie L. Gardner Pooja Jaitly Lauren Grace Aranguren Nathan Robert Burby Nicole Marie Cueto Jessica Garestier Jeffrey Allen Jaketic Kerry-ann Candice Archer Kevin Patrick Burke Guillermo Ernesto Cuevas Anton Garmoza Carolina Jara Ronda Agatha Archibong Ladawn Lynee Burnett Daniel Cullen Jennifer P. Garner Michel A. Jeanniot Rania Samir Arja Adam David Burns Christopher James Cunio Jessica Lee Gavrich Yumi Jee Rebecca Kelly Arnold Rudolph John Burshnic Alex Custin Rahwa Gebretnsaie Shu-chin Jen Nima Ashtyani-asl Tafara Leslie Burutsa Michael Christopher Cyr Andrew David Geibel Gary E. Jenkins Maya Atrakchi Benjamin Reed Cady Taras Michael Czebiniak Jing Geng Mallory Ann Jensen Jonas Walter Jakob Anne-laure Virginie Cagniart Michael Christopher Courtney Chyrell George Theresa Marie Jensen Attenhofer Mark G. Califano D’Agostino Brian Anthony Giantonio Cyun-ren Jhou Kyle Thomas Auty Aikaterini Despoina Callahan Johan Magnus Dagergard Todd Andrew Gilbert Fei Jiang Nassy Avramidis Christopher Callahan Marika Denise Dagounis James Evans Gillenwater Hang Jiang Sahar L. Azar Kristan Elizabeth Callahan Lauren Cole Daniel Michael Aaron Ginzburg Kezhen Jiang Kevin Babikian Curt D. Campbell Pauline Eulalie Daraux Jason Edward Glick Neville Jiang Alexander Paul Bachuwa Michael Anthony Candelmo Richard Dassin Arkady Alexander Xin Jiang Stephanie Marie Backes John Richard Canney Ashley Lauren Davidson Goldinstein Sandra Teresa Jimenez Kathryne Elisabeth Badura Charles Capouet Jason Gregory Davila Eitan Michael Goldstein Hayley Fraser Jodoin Kwang Ja Baek Cristina Frances Caratzola Anastasia Davis Bondarenko James Christopher Good Amanda Denise Johnson Ashley L. Baelz Martha Jo Cardi Peter John Davis Desiree Grace Jessica Lynn Johnson Andrew Monroe Baer Jonathan Sloan Carter Polly Deveau Davis Sean Thomas Greecher Surraya Johnson Suzanne Kadijeh Baidon- Nicole Lauren Castle Lynn Alvey Dawson John Alan Greenhall Kaitlyn N. Jorge Ciobanu Molly Rebecca Catchen Brian Kerwin Day Rebecca Gregory Corey Lynn Judson Shanna Bailey Oded Cedar Lisa Nicole De Gray Susan Perrault Groden Cheryl Li Anne Kam Maria Luisa Celeste Balasta Michael David Celentano Juan Pablo Dechamps Marc J. Gross Yuko Kanamaru Negisa Balluku Scott Steven Centrella Denise Maria Del Priore Elizabeth Grossman Tae Sun Kang Gina Marie Barbieri Margo Kim Ceresney Amanada Kay Dewyer David Matthew Guess Neema J. Kassaii Paul Nathan Barger Irina Ceric Pavandeep Dhillon Yi Guo William Gordon Kaupp Daniel Nathan Baronofsky Ishpreet S. Chadha Alhousmi Diallo Rochelle Marie Gutfran Andleev Kaur Christine Barratt Huijin Chae Jean-marc Dibattista Yalda M. Haery Joel E. Kaye Michael Anthony Barsimanto Jooyup Chae Mark Dicicco David Haffner Jared Ryan Kelly Jina Louise Bartholomew Rasika Chakravarthy Nayna Rio Diehl Lucy Gemma Haley John Eugene Kelly Caroline Firth Bartlett Allison Chan Moira Thornton Dillaway Liselle Marion Hamilton Chad B. Kempen Mukerrem Onur Basar Chao-tien Chang Elan Kazruth Dimaio Chao Han J. Michael Keyes Leslie Beth Baskin Jeffrey Yen Chang Matar Diouf Dong Young Han Gina Kim Aveet Anil Basnyat Lucy Ok Chang Vanessa L. Dohner Michelle Ann Han Hae Young Kim Wellesley Wenger Baun Megan C. Chang Lynn A. Donohue Luis Hansen Hye-shil Kim Anna-Lee Bayley Jennifer Morgan Chapkin Tracy A. Doudt Mie Struwe Hansen Hyunah Kim Ria Mariana Bazie

54 | July/August 2013 | NYSBA Journal Ja Hyun Kim Elizabeth Anne Lyon Thomas Won Park Ashley Simpson Stephanie Wei-ming Wang Jeesun Kim Donald Lee Mabry Christopher John Parker Deeban Mani Siva Ting Wang Ji Yung Kim Ashley E. MacDonald Kerry M. Parker Rory Skaggs Yiru Wang Minar Kim Nicole Marie Maciejunes Nicholas Owen Paslow Meg Slachetka Yue Wang Minkyung Kim Christopher Thomas Madden Florent Patoret Maria Slobadehikova Zhaojing Wang Josue Madrid Shanelle Chante Patterson Marcus Ulf Lars Sohlberg Matthew James Kinnier Zi Wang Paul C. Kleist Kamran I. Makhdoom Kathryn Shirilla Pearson Molly Rebecca Soiffer Shawn Watts Dina Kleyman Sonya Malhotra Stephen Pearson Caroline Carmichael Solis Colinette Waugh Annmarie Elizabeth Matthew Richard Maline Jing Pei Jonathan R. Solomon Klimowicz Erin P. Malone Lawrence Robert Perchick Xiaolin Song Erin Ashley Weber Charles Christian Kline John Joseph Mangin Giancarlo Petroro Stamatia Soumela Ingram Weber Katherine Klonick Joel Marrero Justin Pevnick Andrea Spadacini Jiannan Wei Marguerita Kniesser Claire Martin Chetan Phull Lindsay Anne Spero Saranne Elizabeth Weimer Christopher S. Ko Toi Monique Mason Marie-anne Josette Pic Matthew Douglas Spurlock Stewart Marvin Weintraub Takashi Kobayashi James J. Mavrikidis Pauline Pietrois-Chabassier Michael Andrew Stanton Aaron Matthew Weisbuch Jasmin Kocak Lisa Marie McElligott Mark Plummer Elizabeth Anne Stapleton Jenny Rachel Weisenbeck Larissa Mika Koehler Michael Scott McGetrick Tommaso Poggiani Mikala M. Steenholdt Stephanie J. Weiss Michael Casey McQueeny Olanrewaju Adetokunbo Rachael Ann Steenholdt Daniel Harris Kohn Amy Elizabeth Wesner Eva Maria Colette Meeuwis Popoola Leslie Sarah Stephenson Perri J. Koll Konstantinos Wexias Seiichi Kondo Madeline A. Meibergen David Lowry Pressly Jennifer Lynn Stevenson Susan Whelan Masashi Konno Eric Meng Clifton K. Prince John R. Storella Caroline Jungsun Koo Robert Menzel Christopher M. Psihoules Eliot Barness Strange La Wanda Dyson White Andrew W. Koster Carissa Meyer Adam Hunter Ptashkin CJ Stroh Michael Whitlock Tara Michelle Krieger Kenneth Charles Michaels Aisha Pujadas-Walsh Hideaki Suda Sarah Wieselthier Tomasz Krzywicki Yasufumi Miki Zachary Pyle Lin Sun Gregory Michael Wilkes Iuliia Mykolayivna Kuchma Diana Milanesi Afua Kweinorki Quayenortey Mengjiao Sun Amy Frances Willey Colleen Depman Kukowski Andrew Jacob Miller Colin Chandler Quillinan Douglas Steven Sunshine Sean Barry Tobias Williams Vera N. Kurnia Blake Richard Miller Karen Rabinovici Randall Adam Swick Tasha Latrice Williams Yen-fu Lai Christopher Caldwell Miller Vivek Ramachandran Gregory Scott Tabakman Annie May Willis Michele Nicole Miller Hari Raman Kengo Takaki Priya Lamba James Scott Fraser Wilson Todd L. Miller Aliya Ramji Naoko Takayanagi Jeffrey Greg Landis Lawrence Bernard Wiseman Abigail Echlin Langer John G. Mills Pauline Camille Rampazzo Noa Sigalit Tal Sanders Witkow Brendan Patrick Lanigan Byungsuh Min Regina Marie Rana Nicholas Gavin Taliercio Maria Camille Galvez Jonathan Yakov Mincer Mikhail Raykher Cynthia Tan Ilana Wolk Lantion Lucas Jeremy Minkowski Michael Ross Read Sze Yao Tan Henry Blake Wong Sarah Lavin Andrei Molchynskyy Maanasa K. Reddy Terence Ky Won Tan Ilan Wong Jessica Ann Lawless Renee Marie Moorad Fitzann R. Reid Xiao Tang Alexandra Brittany Wood Kelli Ann Layton Mary Patricia Moore Ana Raquel Reis Yuan Tao Katherine Tricia Wood Tatiana Lazaro-Lopez Adam Morris Alexander Rheaume Julie Lynn Tersigni Hsiao-chien Wu Hanh Hong Le Steven Morris Zachary Riback Adam Milan Teslik Jinfeng Wu Chung Eun Lee James Mortimer Gregory Scott Rich Elnaz Teymouri Linqi Wu Allison Louise Rief Heather Danielle Lee Mia Motiee Jeffrey Michael Thibault Yiyang Wu Bridgitte Elizabeth Mott Sarah Shawki Rizk Angelique Barbara Thomas Hui-chun Rose Lee Douglas Karl Wyatt Hyung Won Lee Sheen Munshi Adam Thomas Roche Michael B. Thomas Jan-henning Wyen Hyuntaik Lee Rehan Murad Alexander J. Rodney Rosalee Belinda Connell Joyce Jayoon Lee Mariel Jacobsen Murray Krystal M. Rodriguez Thomas Zhuoer Xu Lu Lei Diaa Musleh Michael W. Rosen Amelia Ann Thompson Lisha Yakub Nancy Leon Kamal Naffi Aaron Rosenblatt Hugh Anthony Thompson Chunyang Yan John J. Leshinski Esfand Yar Nafisi German Rozencranc Grant Alexander Toeppen Tomoki Yanagisawa Peter Houghton Levan Jean Paul Yugo Nagashima Karolina Ewa Rozycka Christie Kimberly Tomm Kwanseok Yang Lindsay Erin Levin Jusitn Mas Nakajo-Kleinman Christopher John Rubino Carl-erik Torgersen Zi Yang Shmuel Dovid Levin Sae Hyun Nam Charles Kevin Ruck Meagan Jayne Tousley Qinglan Ye Alexander Nuo Li Nicole Marie Nash Howard David Ruddell Etienne Clement Toussaint Yaozhi Ye Jolanta Rusinski Guanwen Li Elliott Benjamin Nathanson Wynn Phuong Tran Wan-hsun Yen Daniel Christian Needham Alyssa Beth Russell Mengyang Li Dennis Brandon Trice Elisa Yi Yifei Li David Needham Matthew Paul Russo Marie Chantal Tuffet Clemence Marie Germaine Meredith Lindsay Ryan Netta Yochay Siwei Liao Ajinkya Mahesh Tulpule Neulat Hyun Kyung Ryu Koo Byung Ho Yoon Lisa Dorothy Liebherr John Alfred Turner David G. Lim Michael Richard Newman Mariah Nel Samost Jaesik Yoon Seth Charles Turner Christy Chieh-fang Lin Elizabeth Carolyn Nielsen James E. Sanborn Josiah Monroe Young Shuna Lin Jonathan William Noltie Kimberly Sandberg Max Baba Twine Miguel Yturbe Redo Maria-Luisa Valls Link Michael Ross Noveck Ryan Taliaferro Sanson Matthew Joseph Tynan Tong Yun Regina Kuang Rong Liou Eric Gregory Null Arlene Santiago Neal Ramesh Ubriani Jeremy Lincoln Zacker Eva Litina Timur John Nusratty Taichi Sasaki Elena Vaccari Robert Zalcman David Emerson Littlejohn Michael Haynes O’Connell Toshihiko Sato Carlos Aksel Valdivia Zachary Herman Zarnow Yuechuan Liu William Matthews O’Connell Bruno Sbardellini Cossi Elizabeth J. Varas Aaron Simcha Jon Zelinsky Erin Ann O’Dea Margaret Kathleen Schallau Zhiqiang Liu Monica Kim Vashaw Hui Zeng Dana Livne Breabdan O’Donnell Jonathan A. Schnader Victoria Anne Vaskov Samuel Oduro Veronica Schnotala Hui Zeng Paula Frida Lobeck Agustin Manuel Vazquez Shogik Oganisyan Christopher Kent Schuyler Jingxin Zhan Susie Elizabeth Lockwood Junichi Veda Rachel Logan Hyolim Oh Stephen Schweizer Anqi Zhang Brent Cameron Vegliacich Meghan Feronie Loisel Naoki Okumura Jennifer Lee Scott Siyu Zhang Alana Mary Longmoore Moshood Afolabi Olajide Natalia De Lourdes Nisha Venkataraman Peizhi Zhao Harriet Elizabeth Loos Christopher James Oliver Segermeister Nicole Anne Veno Meng Zhou Gabriel Lopez Carl D. Owens Christina Marie Segro Daniel Louise Villalobos Shudan Zhou John J. Lovejoy Aurelie Pacaud Bhakti Y. Shah Raquel Villar Xiaoling Zhou Adam Seth Lovett Diana Marcela Pak Yi Cheryl A. Sharp Michael Vincenti Bo Zhu David Low Serena Gayle Palastrand Linyan Sheng Keisuke Wada Li Zhu Jeffrey Alan Palumbo Brett Shields Qinghua Luan Joseph Gibson Walker Ian P. Zimmerman Richard Cong Luong Danielle Sue Parent Aya Shinozaki Damon Wallace Michael Ross Shulman Lauren M. Zink Michael Thet Lwin Chul Han Park William Thomas Wallace Sanghyun Park Allie Karoline Sievers Kara Ann Lynch Ruiqing Wang

NYSBA Journal | July/August 2013 | 55 THE LEGAL WRITER the purpose of the pending action, not ly admitted without some material CONTINUED FROM PAGE 64 another action or future action,12 even qualification or explanation, you may, if the parties are the same.13 under CPLR 3123(a), qualify or explain If your lawsuit has multiple plaintiffs your responses. A request in a notice or multiple defendants, specify clearly Total Denial to admit might contain facts that are which party is responding to the notice If you deny something from a notice to true (which you’ll admit), facts that to admit and which party sought the admit, don’t equivocate. Deny the item are false (which you’ll deny), and facts admissions. outright. You can’t deny items from that you can’t admit or deny.

If you deny an item from the notice to admit and your adversary proves at trial that the item you denied was true, your adversary may seek costs and attorney fees.

You don’t need to repeat in your a notice to admit the same way you Assume that your client is suing response your adversary’s requests would deny items in pleadings. You the defendant, Kevin Bourne, after the from its notice to admit. It’s time con- can’t deny items from a notice to admit defendant crashed his Harley-David- suming and unnecessary. And CPLR based “upon information and belief” son into your client causing injuries 3123 doesn’t require you to rewrite or upon “knowledge of information and other damages. Here’s an example your adversary’s request. Just respond sufficient to form a belief.”14 of a request in the notice to admit and to the requests. Example: your response: Response to Request No. 1 Inability to Admit or Deny Request No. 4 Admitted. You may serve a sworn statement On May 29, 2010, defendant, Kevin Response to Request No. 2 explaining why you can’t truthfully Bourne, was driving an illegally Denied. admit or deny the request.15 One rea- modified Harley-Davidson motor- Aside from not responding to a son might be that you lack information cycle manufactured in Flint, Michi- notice to admit — silence is an option to admit or deny the request. But you’ll gan.18 — you have six other options in have to state that you’ve made a “rea- Response to Request No. 4 responding to a notice to admit: (1) sonable inquiry” to get the information Defendant, Kevin Bourne, admits admit the fact(s); (2) deny the fact(s); sought.16 that on May 29, 2010, he was driv- (3) state your inability to admit or deny Assume that Charlene Lowe was ing a Harley-Davidson motorcycle. the fact(s); (4) partly admit the fact(s) or injured by an air conditioner that fell Bourne denies that the Harley- admit with a qualification or explana- from a window of an eight-story build- Davidson motorcycle was illegally tion; (5) state that the fact(s) is a trade ing while she was riding on her pink modified. Bourne further states after secret, privileged, or “immunized mat- Vespa. Here’s an example of a request reasonable inquiry that he has insuf- ter under CPLR 3101(b)-(d)”;10 or (6) in the notice to admit and the response: ficient information, either known or move for a protective order.11 Request No. 3 readily obtainable, to enable him to The air conditioner, which injured admit or deny whether the Harley- Total Admission Charlene Lowe, was manufactured Davidson motorcycle was manufac- If you agree with the request, admit it. in Québec, Canada. tured in Flint, Michigan.19 It’s best to admit a request expressly if Response to Request No. 3 you know that the fact is true. If you After reasonable inquiry, plaintiff Trade Secret or Privileged or don’t admit a fact in your response and Charlene Lowe has insufficient Immunized Matter your adversary later proves that fact information, either known or read- You may serve a sworn statement at trial, your client might be liable for ily obtainable, to enable her to explaining in detail that an item sought your adversary’s expenses in proving admit or deny the statement in in a notice to admit is privileged or that fact at trial. For more informa- Request No. 3.17 involves a trade secret or that an indi- tion, see “Post-Trial Sanctions Motion,” vidual is privileged or disqualified later in this column. If you’re unsure Partial Admission or Admission from testifying as a witness.20 Many whether a request is true, admit the With a Qualification or of these items fall under the category fact with a qualification or explana- Explanation of “immunized matter” discussed in tion. If you admit something from a If you believe that the matters sought CPLR 3101(b) through (d),21 such as notice to admit, the admission is for in a notice to admit can’t be fair- attorney-work product. Examples:

56 | July/August 2013 | NYSBA Journal Response to Request No. 5 unsatisfied with your response and 3123(a), get “such further time as the Plaintiff’s request seeks informa- move to challenge your response as court may allow.” tion protected by a spousal privi- insufficient. CPLR 3123(a) says nothing about lege. getting your adversary to stipulate to Response to Request No. 6 Sworn Statement extending your time to respond to a Plaintiff’s request seeks infor- CPLR 3213(a) provides that you serve notice to admit. You may, however, ask mation from defendant that will a “sworn statement.” It’s unclear who your adversary for more time. Draft reveal a trade secret. may provide the sworn statement. a stipulation extending your time to Response to Request No. 7 One treatise advises that any person respond to the notice to admit. Then Plaintiff’s request seeks attorney- who could have verified a pleading29 present the stipulation to the court work product. may provide the sworn statement in to “so order” it. If your adversary Response to Request No. 8 response to a notice to admit.30 But a won’t agree to give you more time, Plaintiff’s request seeks informa- notice to admit isn’t a pleading. Anoth- move by order to show cause or by ex tion that is attorney-client privi- er treatise recommends that your client parte order (without notice) to extend leged. provide the sworn statement.31 your time to respond to the notice to Also unclear is whether an attorney admit.36 Moving for a Protective Order may provide the sworn statement.32 Seek an interim stay of your If you believe that the notice to admit The best advice for an attorney is that response to the notice to admit. You — in its entirety or as to specific an attorney may provide the sworn don’t know how long the court will requests — is unreasonable, you may statement only if the attorney has per- take to resolve your order to show move for a protective order under sonal knowledge of the facts sought or cause. Some judges will decide the CPLR 3103.22 A good reason to move if the attorney’s knowledge is based on order to show cause immediately, from for a protective order is when your documentary evidence.33 the bench, on the return date. Other adversary’s notice to admit is vague or Because “the stakes are high,”34 judges will take longer. ambiguous. Another reason to move consult with your client (or the appro- Don’t wait until the last minute to is when your adversary seeks infor- priate person) before responding to a move to extend your time to respond. mation that’s “patently burdensome, notice to admit. If your client is a cor- The court might grant your motion unnecessarily prolix, and unduly pro- poration, one of the corporation’s offi- if you show good cause for an exten- tracted.”23 Also move for a protective cers or authorized employees should sion of time.37 The court might grant order if your adversary seeks informa- provide the sworn statement. your motion to extend your time to tion beyond what’s permissible in a Make sure your responses are respond if the requests in the notice notice to admit.24 accurate. The sworn statement, which to admit are complicated and volumi- You may ask the court to “deny[], appears at the end of your response, nous.38 It will help if you show that limit[], condition[], or regulate[] the might look like this: your adversary won’t be prejudiced use of a notice to admit.”25 The court Defendant, Genevieve Pierson, by the delay if you get an extension to may strike or modify a request in a being duly sworn, deposes and respond.39 notice to admit; it may also condition says: I have read the within deni- a response or do something else to cor- als, claims of privilege and trade Moving to Amend or Withdraw rect the improper request.26 secrets, qualifications and expla- an Admission Move for a protective order within nations to admissions, and state- After seeking leave from the court, your 20-day deadline. Moving for a ments of my inability to admit or the court may allow you to amend or protective order won’t toll your 20-day deny, and they are true. withdraw an admission if it’s “just” deadline to respond to the notice to ______[signature] for the court to do so.40 You’ll have to admit, though.27 You must still serve, Sworn to before me this ____ day provide the court with a basis for mov- by the 20-day deadline to respond, a of ______, 20__. ing to amend or withdraw; you’ll also response to any request that you’re [Notary stamp and signature]35 need to show the absence of prejudice not challenging in the notice to admit CPLR 3123 doesn’t require you to on your adversary if the court amends or seek an extension of time from provide a sworn statement for admis- or withdraws your admission.41 The the court.28 If you need more time to sions. You don’t need to swear or affirm court’s leave may be granted condi- respond to the requests you’re not to the admissions in your response. tionally.42 The court may allow you challenging, move to extend your time to withdraw or amend, under CPLR to respond. Moving to Extend Time to 3123(b), “at any time.” You don’t have to move for a pro- Respond to a Notice to Admit Under CPLR 3123(b), you may tective order. Writing a response in If you need more time beyond the move to withdraw or amend a timely examples 5 through 8 above is suf- statutory 20 days to respond to the filed admission. You’ll need to show ficient. But your adversary may be notice to admit, you may, under CPLR the court a basis for your withdrawal

NYSBA Journal | July/August 2013 | 57 THE LEGAL WRITER will automatically be deemed admit- at trial. The court may consider your CONTINUED FROM PAGE 57 ted if their adversary fails to respond. adversary’s motion for costs and attor- If the court, however, finds that your ney fees irrespective of the result of the or amendment.43 Your inadvertence requests in the notice to admit are action, even if your adversary loses the may be a ground for the court to grant inadequate or inappropriate, the court trial.55 your motion. will likely not deem the response (or The court will decide your adver- Likewise, under CPLR 3123(b), you non-response) an admission. sary’s motion for costs and attorney may move to withdraw or amend a fees outside the jury’s presence.56 non-admission: a response you denied Using an Admission at Trial The court might award costs and or stated you were unable to admit or To use an admission from a notice to attorney fees to your adversary “[u]nless deny. admit at trial, you’ll need to offer it the court finds . . . good reasons for the denial or . . . refusal . . . to admit the item or [if the court finds that] If you deny something from a notice the admissions sought were . . . no[t] substantial[ly] important[ ].”57 Some to admit, don’t equivocate. judges might not be so willing to award costs and attorney fees: “The Deny the item outright. unless clause is a refuge for judges unenthusiastic about CPLR 3123 costs Also, you may move under CPLR into evidence. Before the close of the sanctions. . . . It’s probably another 3123(b) to vacate an automatic admis- evidence, ask the court to read the reason for the relative disuse of CPLR sion after you’ve failed to respond admissions into the record. If your 3123.”58 timely to a notice to admit. You’ll need adversary never responded to your Move for costs and attorney fees to show that your failure to respond notice to admit, you’ll need to show under CPLR 3123 “at or immediately was inadvertent.44 You may also show that you served your adversary and following the trial.”59 Waiting a few that your adversary made improper that you never received a response, or days after a trial to move for costs and requests in its notice to admit, such as you received a late response from your attorney fees is too late.60 Make sure seeking an admission on an ultimate adversary.47 you have bills or other proof ready at issue of fact. If your adversary sought Your adversary might object to your disposal. improper requests, you may also seek the admission’s admissibility.48 Your The court might not award you a protective order to strike the notice. adversary may raise any objection costs if the witness you used to prove that may be interposed at trial.49 Your the disputed fact was the same witness Moving to Challenge Response to adversary may object on the ground you needed to prove your case.61 a Notice to Admit that it timely responded to your notice In an upcoming issue of the Journal, Your adversary might respond to to admit. Your adversary might object the Legal Writer will discuss disclosure your notice to admit with a vague on the ground of relevance. motions in its series on civil-litigation or ambiguous answer. Don’t assume Even if you’ve introduced the documents. ■ that your adversary’s response is an admissions into evidence, your adver- admission or a denial. If you’re unsat- sary may ask the court to “put that isfied with your adversary’s response answer into context by introducing GERALD LEBOVITS ([email protected]), a New to your notice to admit, you may seek other answers”50 to give the court, or York City Civil Court judge, teaches part time at relief from the court. You may ask the the jury, a “[]complete picture.”51 Columbia, Fordham, and NYU law schools. He court to declare that your adversary’s thanks court attorney Alexandra Standish for responses, in their entirety or in part, Post-Trial Sanctions Motion researching this column. are insufficient and should be deemed CPLR 3123 “has its own built-in pen- admitted.45 You may ask the court alty for a violation.”52 The CPLR 3126 to direct your adversary to serve an sanction doesn’t apply to notices to 1. 1 Michael Barr, Myriam J. Altman, Burton N. Lipshie & Sharon S. Gerstman, New York Civil 53 amended response to respond ade- admit. Practice Before Trial § 30:40, at 30-8 (2006; Dec. quately to the requests in your notice If you deny an item from the notice 2009 Supp.). to admit.46 to admit and your adversary proves 2. 6 Jack Weinstein, Harold Korn & Arthur If your adversary never responded at trial that the item you denied was Miller, N.Y. Civ Prac: CPLR ¶ 3123.06, at 31-539 (2d ed. 2012; Mar. 2013 Supp.) (citing Barbara A. v. to your notice to admit, you may move true, your adversary may move under Gerald J., 146 Misc. 2d 1001, 1003, 553 N.Y.S.2d 638, to compel your adversary to respond CPLR 3123(c) for costs and attorney 640 (Fam. Ct. Queens County 1990) (“The results of to your notice to admit. Some practi- fees.54 Your adversary will have to such privately arranged testing may be admitted into evidence upon consent of both parties or upon tioners don’t bother moving to compel show the court the costs that were a notice or motion to admit (CPLR 3123) or, at trial, because their adversary’s responses incurred in having to prove the items if it meets evidentiary criteria.”), aff’d, 178 A.D.2d

58 | July/August 2013 | NYSBA Journal 412, 577 N.Y.S.2d 110 (2d Dep’t 1991)). the response to a notice to admit); contra Barnes, 59 2012 REVIEW OF UM, UIM, SUM LAW Misc. 2d at 968, 301 N.Y.S.2d at 908 (finding that an 3. CPLR 2103(e). CONTINUED FROM PAGE 46 attorney may not verify the response to a notice to 4. David D. Siegel, New York Practice § 364, at admit)). 60. 95 A.D.3d 693 (1st Dep’t 2012). 624 (5th ed. 2011). 33. Elrac, 186 Misc. 2d at 833, 720 N.Y.S.2d at 915 61. 96 A.D.3d 431 (1st Dep’t 2012). 5. Barr et al., supra note 1, § 30:91, at 30-13. (“While the Court is not prepared to state that 62. See State Farm Fire & Cas. Co. v. Raabe, 100 A.D.3d an attorney may never answer a notice to admit, 738 (2d Dep’t 2012) (“when a claim is denied because 6. Id. § 30:110, at 30-14. an attorney should only be permitted to do so if the claimant is not an insured under the policy, there 7. Id. the attorney has knowledge of the facts or if the is no statutory obligation to provide prompt notice of See also Hasbani v. Nationwide Mut. 8. Id. § 30:112, at 30-14. answers are based on documentary evidence, the disclaimer”). in the same manner as an attorney having such Ins. Co., 98 A.D.3d 563 (2d Dep’t 2012) (“Since the 9. Id. knowledge or using such documentary evidence policy did not provide coverage to the plaintiffs with 10. Weinstein et al., supra note 2, ¶ 3123.08, at may do so in a motion for summary judgment.”). regard to the vehicle involved in the accident, requir- 31-540. ing payment of a claim upon a failure to timely dis- 34. Barr et al., supra note 1, § 30:92, at 30-13. claim would create coverage where it never existed”); 11. Barr et al., supra note 1, § 30:120, at 30-15. 35. Adapted from Barr et al., supra note 1, § 30:141, Utica Mut. Ins. Co. v. GEICO, 98 A.D.3d 502 (2d Dep’t 12. 1 Byer’s Civil Motions § 24:47 (Howard G. at 30-16. 2012); 1812 Quentin Rd., LLC v. 1812 Quentin Rd. Con- Leventhal 2d rev. ed. 2006; 2012 Supp.); Siegel, dominium Ltd., 94 A.D.3d 1070 (2d Dep’t 2012); Hough 36. Barr et al., supra note 1, § 30:190, at 30-19; supra note 4, at § 364, at 624 (citing Seidenberg v. v. USAA Cas. Ins. Co., 93 A.D.3d 405 (1st Dep’t 2012). CPLR 2212(b), 2214(d). Rosen, 114 N.Y.S.2d 279, 280 (Sup. Ct. N.Y. County 63. Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 1952)). 37. Id. § 30:192, at 30-19 (citing CPLR 2004). 159, 168–69 (1967). 13. Barr et al., supra note 1, § 30:242, at 30-24. 38. Id. 64. 100 A.D.3d 421 (1st Dep’t 2012), lv. to appeal denied, 20 N.Y.3d 859 (2013). 14. Siegel, supra note 4, at § 364, at 624-25 (citing 39. Id. 65. 98 A.D.3d 6169 (2d Dep’t 2012). Barnes v. Shul Private Car Serv., Inc., 59 Misc. 2d 967, 40. Byer’s Civil Motions, supra note 12, § 24:47. 968, 301 N.Y.S.2d 907, 908 (Sup. Ct. Kings County 66. 95 A.D.3d 1322 (2d Dep’t 2012). 41. Barr et al., supra note 1, § 30:212, at 30-21. 1969)); Barr et al., supra note 1, § 30:152, at 30-17. 67. Id. at 1323 (citations omitted). 42. Siegel, supra note 4, at § 364, at 624 (citing 68. Id. at 1322. 15. CPLR 3123(a); Barr et al., supra note 1, § 30:151, CPLR 3123(b)). 69. 99 A.D.3d 625 (1st Dep’t 2012). at 30-17. 70. Id. at 625–626 (citation omitted). 43. Barr et al., supra note 1, § 30:215, at 30-21. 16. Barr et al., supra note 1, § 30:151, at 30-17. 71. 93 A.D.3d 717 (2d Dep’t 2012). 44. Id. § 30:216, at 30-22; Weinstein et al., supra 17. Adapted from Barr et al., supra note 1, § 72. Id. at 718. note 2, ¶ 3123.13, at 31-545. 30:151, at 30-17. 73. 94 A.D.3d 888 (2d Dep’t 2012). 45. Barr et al., supra note 1, § 30:170, at 30-18. 74. 91 A.D.3d 870 (2d Dep’t 2012). 18. Id. § 30:125, at 30-16. 46. Id. 75. Id. at 871 (citations omitted). 19. Id. 76. See also GEICO v. Tuzzo, 94 A.D.3d 996 (2d 47. Id. § 30:230, at 30-23. 20. Byer’s Civil Motions, supra note 12, § 24:47; Dep’t 2012). CPLR 3123(a). 48. CPLR 3123(b); Barr et al., supra note 1, § 30:04, 77. 91 A.D.3d 541 (1st Dep’t 2012). at 30-5. 21. Weinstein et al., supra note 2, ¶ 3123.08, at 78. 98 A.D.3d 1107, 1110 (2d Dep’t 2012), lv. to 31-540. 49. Barr et al., supra note 1, § 30:231, at 30-23. reargue/lv. to appeal denied, ___ A.D.3d ___ (2d Dep’t 2013). 50. Id. § 30:232, at 30-23. 22. Siegel, supra note 4, at § 364, 624 (citing Nader 79. 97 A.D.3d 1103, lv. to appeal denied, 98 A.D.3d v. Gen. Motors Corp., 53 Misc. 2d 515, 517, 279 51. Id. § 30:232, at 30-23. 1326 (4th Dep’t 2012), lv. to appeal denied, 20 N.Y.3d N.Y.S.2d 111, 114 (Sup. Ct. N.Y. County), aff’d, 29 1055 (2013). A.D.2d 632, 286 N.Y.S.2d 209 (1st Dep’t 1967); 52. Siegel, supra note 4, § 364, at 625. 80. Id. at 1106–07. Epstein v. Consol. Edison Co. of N.Y., 31 A.D.2d 746, 53. Glasser v. City of N.Y., 265 A.D.2d 526, 526, 697 81. 94 A.D.3d 1314 (3d Dep’t 2012). 746, 297 N.Y.S.2d 260, 261 (2d Dep’t 1969)). N.Y.S.2d 167, 168 (2d Dep’t 1999) (“CPLR 3123 is 82. Id. at 1314 (citations omitted). See also Warner 23. Barr et al., supra note 1, § 30:201, at 30-20 self-executing . . . the penalties embodied in CPLR v. N.Y. Cent. Mut. Fire Ins. Co., 97 A.D.3d 1065 (3d (quoting Nader, 53 Misc. 2d at 516, 279 N.Y.S.2d at 3126 do not apply.”). Dep’t 2012). 112). 54. Byer’s Civil Motions, supra note 12, at § 24:47 83. 95 A.D.3d 887 (2d Dep’t 2012). 24. See last month’s issue for more information on (citing Reid v. Unique Van Serv., Inc., 284 A.D.2d 520, 521, 726 N.Y.S.2d 578, 578 (2d Dep’t 2001)). 84. 96 A.D.3d 1678, motion reargue granted in part, what’s permissible in a notice to admit: Drafting 99 A.D.3d 1261 (4th Dep’t 2012), lv. to appeal dis- New York Civil-Litigation Documents: Part XXV — 55. Byer’s Civil Motions, supra note 12, § 24:47; missed, 20 N.Y.3d 992, lv. to appeal denied, 20 N.Y.3d Notices to Admit, 85 N.Y. St. B.J. 64 (June 2013). Siegel, supra note 4, at § 364, at 625. 862 (2013). 25. Barr et al., supra note 1, § 30:200, at 30-19. 56. CPLR 3123(c). 85. Id. at 1681 (citations omitted). 26. Id. § 30:202, at 30-20. 57. CPLR 3123(c); Byer’s Civil Motions, supra note 86. See Norman H. Dachs & Jonathan A. Dachs, Settlement With Non-Motor Vehicle Tortfeasor Under 27. Id. § 30:100, at 30-13. 12, at § 24:47. SUM Endorsement, N.Y.L.J., July 10, 2012, p. 3, col. 1. 58. Siegel, supra note 4, § 364, at 625 (emphasis 28. Id. § 30:204, at 30-20. 87. 97 A.D.3d 1065 (3d Dep’t 2012). added). 29. CPLR 3020(d). 88. Id. 59. CPLR 3123(c). 89. Id. at 1067–68. 30. Weinstein et al., supra note 2, ¶ 3123.08, at Id. 31-540. 60. Siegel, supra note 4, § 364, at 625 (citing Halli- 90. at 1068. gan v. Glazebrook, 59 Misc. 2d 712, 713, 299 N.Y.S.2d 91. 91 A.D.3d 562 (1st Dep’t 2012). 31. Siegel, supra note 4, § 364, at 625 (citing 951, 952 (Sup. Ct. Suffolk County 1969) (finding 92. 303 A.D.2d 1038 (4th Dep’t 2003). Elrac, Inc. v. McDonald, 186 Misc. 2d 830, 833, 720 motion made two days after trial ended untimely)). 93. 51 A.D.3d 788 (2d Dep’t 2008). N.Y.S.2d 912, 915 (Sup. Ct. Nassau County 2001); 94. 39 A.D.3d 751 (2d Dep’t 2007). contra Barnes, 59 Misc. 2d at 968, 301 N.Y.S.2d at 61. Barr et al., supra note 1, § 30:182, at 30-18 (cit- 908). ing Coyne v. State Farm Fire & Cas. Co., 50 Misc. 95. 274 A.D.2d 924 (3d Dep’t 2000). 2d 58, 60, 269 N.Y.S.2d 868, 871 (Syracuse City Ct. 96. 98 A.D.3d 1107 (2d Dep’t 2012), lv. to reargue/lv. 32. Weinstein et al., supra note 2, ¶ 3123.08, at 1966) (finding that because witness was necessary to appeal denied, ___ A.D.3d ___ (2d Dep’t 2013). 31-540 (citing In re Weill’s Estate, 35 Misc. 2d 64, to prove plaintiff’s case, plaintiff not entitled to 97. Id. at 1110. 64-65, 229 N.Y.S.2d 503, 504 (Sur. Ct. Nassau costs for proving ancillary fact elicited from the County 1962) (finding that an attorney may verify same witness)).

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60 | July/August 2013 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: Some lawyers use that error frequently in the writing of acteristics that give English its large the words scrip and script as first-year law students. Perhaps that’s word-stock is its flexibility. English Qif they were interchangeable, understandable, for as they enter law speakers can create new word-catego- often as a truncated version of manu- school their interest is more focused ries almost at will; an example is the script. Are they really synonyms? on a place to live than on legal con- noun flexibility, created from the adjec- Answer: No. During the 14th cen- cepts. But somewhere during the three tive flexible. tury when it was first used in English, years between their entrance into law English speakers can also eas- the noun scrip meant “a small bag, wal- school and their graduation from it, ily change nouns into adjectives: the let, or satchel, especially one carried they should have learned the differ- noun change becomes changeable; remark by a pilgrim, a shepherd, or a beggar” ence in the spelling. becomes remarkable; laugh becomes (Oxford English Dictionary). The English Attorney Benz predicted, “Your laughable. The suffix -able or -ible indi- noun was probably introduced by mis- mention of [the] error probably won’t cates ability, and it’s widely used. When sionaries, who had been directed to change anything, but it will at least you hear it attached to a word for the travel without purse or scrip (“money get it off my chest.” I predict that she first time, it may sound strange, and or luggage”), so they had to depend on is right! the impulse is to say, “It can’t be done.” public generosity for food and clothing Question: When I am sending one Take a fairly recent addition to Eng- – thus, their identification as beggars. copy of two different documents (for lish, the adjective doable. It was met The noun script came into Middle example, one letter and one order), with considerable displeasure by many English from Old French escriptum, which of the following two sentences correspondents, who sent emails pro- which was then its neuter past partici- is correct? testing that doable was a “non-word.” ple, and that past participle originally (1) I enclose copies of the letter and Now that most people have become came into French from the Latin verb the order. used to it, the emails have ceased. scribere, “to write.” The Latin infini- (2) I enclose a copy of the letter and But the protests might have been tive scribere can also mean “to prepare the order. avoided had the new word contained a text for filming.” Today, the noun Answer: Neither of the sentences a hyphen. When a new word contains script usually distinguishes handwrit- is as clear as it should be. The second mid-placed touching vowels that usu- ing from printing, but it can also refer sentence could be clarified by adding ally have a single sound (in this case to a type of writing that uses cursive “one copy” in two places of that sen- the vowel sound o) as in coat, boat, or characters to make printed texts look tence. Then the sentence would read, goat, separate the vowels by a hyphen. like handwriting. In legal usage, script “I enclose one copy of the letter and (If you are old enough, you may recall connotes an original document. one copy of the order.” That sentence that cooperate was originally hyphen- Another correspondent wondered sounds a little redundant, but clarity ated – co-operate – to avoid the sound whether script was a shortened form – of necessity – trumps redundance in of “coop” as its first syllable.) of prescription; it does have that sense, legal writing. Latin phrases borrowed by law- especially related to narcotic drugs. Another unambiguous statement yers have also been given the Eng- For example, the O.E.D. provides a would be: “I enclose one copy each of lish tendency to change categories. news article from 1951 that says a the letter and the order.” For example, legal dictionaries list the (drug) addict may acquire prescripts Latin verb-phrase nolle prosequi as pri- or scripts from a doctor. The nouns From the Mailbag marily a noun-phrase in English, with scrip and script are, in this sense, inter- I cannot believe that you used the word the meaning, “the plaintiff/prosecutor changeable. substitutable in a recent column. The will not further prosecute the case.” The O.E.D. also confirms that scrip word substitute is a noun, not an adjec- The American Heritage Dictionary lists derives from “subscription,” which tive. Your sentence should have read, “Mr. nol pros and the Latin praecipe as both originally was defined as “a receipt S. is correct in his argument that ‘gender’ nouns and verbs. ■ for a portion of a loan subscribed.” is not a substitute for ‘sex’.” My thanks to all correspondents who My comment: Although the reader expressed interested in the etymology is incorrect in his primary point, his GERTRUDE BLOCK ([email protected]) is lecturer of scrip and script; as a result of their choice of the noun substitute instead of emerita at the University of Florida College of questions I was forced to do some the adjective substitutable is better than Law. She is the author of Effective Legal Writing interesting exploration. mine. The noun substitute is shorter (Foundation Press) and co-author of Judicial On another issue, New Jersey and makes the point more clearly. Opinion Writing (American Bar Association). attorney Elenora Benz writes that she However, the reader is mistaken Her most recent book is Legal Writing Advice: dislikes lawyers’ misspelling of the when he says that substitute cannot Questions and Answers (W. S. Hein & Co.). word tenet – they spell it tenant. I see become an adjective. One of the char-

NYSBA Journal | July/August 2013 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

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62 | July/August 2013 | NYSBA Journal 2013-2014 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

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

NYSBA Journal | July/August 2013 | 63 THE LEGAL WRITER BY GERALD LEBOVITS Drafting New York Civil-Litigation Documents: Part XXVI — Notices to Admit Continued

n the last issue, the Legal Writer 4518(a). Establishing that a document court involvement is necessary.5 Make began its discussion of notices to is a business record before trial will sure, therefore, that you don’t ignore Iadmit, a disclosure-like device. make your life easier at trial. It might notices to admit. The Legal Writer gave 17 examples of help you dispense with a witness who Although you needn’t file your proper and improper ways to write can establish the foundation for the response with the court, your response notices to admit, marked Request Nos. document. Examples: should comply with the format 1 through 17. Request No. 18 requirements for court documents.6 We continue in this issue with writ- The document, attached as Exhibit Your response should have a caption. ing and responding to notices to admit. A, was prepared at or near the In this column, “adversary” distin- time of the events recorded in the Use a notice to guishes the party seeking a notice to document. admit (the seeking party) from the Request No. 19 admit to establish party responding to a notice to admit The document, attached as Exhibit that a document is a (the responding party). If you discuss A, was prepared in the regular a document in your notice to admit, course of business. business record. CPLR 3123(a) requires you to attach Request No. 20 the document. If you attach a docu- On [the date the document was Include the name of the court, the ment to your notice to admit, make created], making invoices like the county, the title of the action, the index sure you mark it as an exhibit. Plain- one attached as Exhibit A was part number, the names of the parties, and tiffs should mark exhibit tabs using of [insert the name of the appropri- the title of the document.7 The title numbers, from 1 onward. Defendants ate party or entity]’s regular course of the document might be “Plaintiff’s should mark exhibit tabs using letters, of business. Response to the First Notice to Admit” from A onward. Even though you can’t use a notice or “Defendant’s Response to the First to admit to seek technical or scientific Notice to Admit.” If you received a Proper Ways to Use a Notice to information that only an expert would second notice to admit, label your Admit (continued) give, you may get DNA tests into evi- response “Plaintiff’s Response to the In the last issue, the Legal Writer dis- dence on a notice to admit.2 Second Notice to Admit” or “Defen- cussed using a notice to admit “to Request No. 21 dant’s Response to the Second Notice establish the foundation for admitting The certified General Hospital to Admit.” If your lawsuit has multiple [a specific] document[] into evidence record, dated February 2, 2011, parties, identify which named party is at trial.”1 We discussed how to request attached as Exhibit 1, is George responding to the other named party’s from your adversary whether a docu- Grieves’s DNA test. notice to admit. ment is authentic. We also discussed Include an introductory para- how to request from your adversary Responding to a Notice to Admit graph stating who’s responding to whether a document is genuine or an You have 20 days to respond to a notice the requests, who propounded the accurate copy of the original. In the to admit. Serve a copy of your respons- requests, and what responses corre- framework of establishing foundation es on all parties.3 You don’t need to file spond to the requests in the notice for a document, use a notice to admit your response with the court. to admit.8 Example: “In response to to establish that a document isn’t hear- Your response must be in writing. plaintiff Amanda Blake’s First Notice say. If you agree with all the items in to Admit, defendant Frank Martino Use a notice to admit to establish the notice to admit, do nothing. Failing replies as follows, in the order cor- that a document is a business record to respond to a notice to admit — by responding to the notice to admit.”9 — a hearsay exception under CPLR keeping silent — is an admission.4 No CONTINUED ON PAGE 56

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