JUNE 2006 VOL. 78 | NO. 5 JournalNEW YORK STATE BAR ASSOCIATION
The Model Guardianship Part
A novel approach to protecting the interests Also in this Issue of incapacitated persons. Tax Certiorari and Condemnation in the by H. Patrick Leis, III 9th Judicial District The Problem with “Truth in Lending” Motorist Insurance Law Update — Part I BESTSELLERS FROM THE NYSBA BOOKSTORE
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BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Rose Mary Bailly Albany Willard H. DaSilva Garden City Louis P. DiLorenzo Syracuse Philip H. Dixon Albany Lesley Friedman Rosenthal New York City Judith S. Kaye New York City Eileen D. Millett New York City John B. Nesbitt Lyons Eugene E. Peckham Binghamton Richard N. Winfield New York City EDITOR EMERITUS Eugene C. Gerhart Binghamton MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside
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THE MODEL GUARDIANSHIP PART A Novel Approach BY H. PATRICK LEIS, III 10
DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 18 Burden of Proof 22 Tax Certiorari & Condemnation in the BY DAVID PAUL HOROWITZ 9th Judicial District 42 Counterpoint BY THOMAS A. DICKERSON BY MICHAEL J. HUTTER AND DAVID PAUL HOROWITZ 45 Language Tips 30 The Whole Truth? BY GERTRUDE BLOCK The Problem With “Truth in Lending” 46 Anything But Law BY GWEN SEAQUIST AND ALKA BRAMHANDKAR BY DAVID D. SIEGEL 48 Meet Your New Officers 34 2005 Update on Uninsured, 50 Attorney Professionalism Forum Underinsured and Supplementary 55 Editor’s Mailbox Uninsured Motorist Law – Part I 56 New Members Welcomed BY JONATHAN A. DACHS 61 Classified Notices 61 Index to Advertisers 63 2006–2007 Officers 64 The Legal Writer BY GERALD LEBOVITS
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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 © 2006 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication 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 $18. 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 | June 2006 | 3 PRESIDENT’S MESSAGE MARK H. ALCOTT
Voice of the Profession; Advocate for the Public
he ancient Roman deity Janus, Consequently, for a year and a half, debate. Motions to amend, points of symbol of all beginnings, used I had a special opportunity to lead the order and motions to table were the This two faces to stare resolutely House, work with the House, observe order of the day. in opposite directions: forward and the House. But my experience with the But, that was then. This is now. The backward. That image captures my House of Delegates started long before House, like the Association for which it mood as I take the helm of our that. I stood at its podium for the first speaks, is now quite a different entity. Association, while concluding my time in the late 1980s, to offer reports Today, the House is the advocate for tenure as President-Elect. I look for- and resolutions on behalf of my sec- the public as well as the profession. It ward with unrestrained enthusiasm to tion. is the vigorous, clear voice of the New my term as President, which is now at In those days, the House was sharply York legal community, but it is also a hand; I look backward with great sat- divided among different regions, prac- champion of the public interest. Today, isfaction on my term as President- tice environments and ideologies. Most the House almost never finds itself Elect, which is receding into history. In important, there was a clear difference embroiled in pointless, procedural tan- this, my first President’s Message, let of opinion about the role of the House gles. It is now a forum for civil debate me deal with both, starting with the and, indeed, the role of the Association. and dialogue, a source of ideas and year just ended, in which I chaired the The dominant view was that the State proposals, the embodiment of the House of Delegates. Bar was akin to a trade association. ideals of our profession and a show- And what a year it was, full of There was an “us against them” mental- case for the talent of our profession. intense and fulfilling debate and ity toward the Office of Court No longer does the House avoid decisions on issues of great conse- Administration and the Legislature. controversial issues. From suspending quence to the profession and the According to this point of view, our job the death penalty, to increasing the public we serve. In fact, it was more was to fight for the narrow special inter- passing score on the bar examination, than a year; I presided over the ests of lawyers, resist any legal or to deciding what does and does not House even before the beginning of administrative reform that would affect qualify as pro bono services, the House my term. In January and April 2005, lawyers, and keep away from “contro- has faced tough issues head-on. And the House considered the legal dis- versial” issues, however law-infused, while there was understandable con- advantages encountered by same-sex that did not directly impact our day-to- cern that doing this might drive mem- couples. Both the President-Elect and day professional lives. bers away, it appears that members the President recused themselves This philosophy manifested itself understand the Association’s changing from chairing that portion of the on the floor of the House where, for role. Indeed, members expect the meeting, due to their strong personal many, procedural maneuvering was views on the subject and their desire more important than substantive to participate in the debate; so I took debate. Indeed, the maneuvering was MARK H. ALCOTT can be reached at the gavel. often designed to prevent substantive [email protected].
NYSBA Journal | June 2006 | 5 PRESIDENT’S MESSAGE
House to be on the front lines of cut- cial to success, both in the courtroom recent veto of legal services funding. ting-edge, law-related issues, no mat- and the House of Delegates, and my But beyond government funding, ter the level of controversy. The touch- experience in presiding over that body lawyers have a special role to play in stone must always be that these are demonstrated as much. providing legal services to the poor law-related issues, and that each dele- It was an extraordinary year and a through pro bono representation. The gate brings to the debate his or her pro- great ride for me, and I am enormous- call to perform pro bono services, fessional experience, legal expertise ly grateful for the opportunity. I am to “do the public good” in our and clarity of thought as a lawyer. particularly grateful that I was in part- Association’s apt phrase, speaks to The matters we dealt with in the nership with President A. Vincent lawyers’ finest instincts. The call House during my tenure as presiding Buzard, a true friend and an outstand- reminds us why we chose to enter the officer reflect this rich diet. To recall ing leader whose accomplishments profession in the first place, and we just a few: were exceptional. must respond. Lawyers dedicated to 1. We strongly defended the inde- Now, facing forward, I look toward pro bono efforts should receive honors pendence of our judiciary and our an even greater opportunity. I will and incentives designed to encourage court system, by unveil my detailed agenda and initia- their continued service. Thus, one of • opposing the proposal to forbid tives at the first House of Delegates my initiatives is that all lawyers courts from considering interna- meeting in Cooperstown, in a few who voluntarily self-certify to the tional sources in interpreting the weeks. But let me share with you my Association that they have rendered a Constitution; major themes, as follows: sufficient number of hours annually of • resisting efforts to strip the courts 1. Defend and strengthen core val- free legal services to the poor will be of their power to grant habeas ues. awarded the official, honorific title corpus relief; 2. Promote and implement major “Empire State Counsel,” which they • opposing the grossly misnamed reform. can use on business cards and letter- and access-barring Lawsuit Abuse 3. Enhance the practice of law. heads and in biographical reference Reduction Act; 4. Advance the rule of law. books, together with an appropriate • supporting fair and reasonable The major issues confronting us and certificate, a listing on the Associa- compensation for our judges; our public fall within these themes. tion’s Web site and recognition at a • deploring the intemperate and Our core values. There are four: public ceremony. inappropriate criticism of the • independence of the courts; Over the next year, we must contin- Supreme Court over the Kelo deci- • independence of the bar; ue our effort to promote gender and sion. • diversity of the profession; ethnic diversity at all levels and in all 2. We took major steps to preserve • access to justice for the poor and facets of our profession, up to the high- and enhance the dignity, integrity and the disadvantaged. est tiers of the bench and bar, law independence of our profession, and to We face enormous challenges in firms, law schools and boardrooms. protect our clients, by each of these areas. Our judges and our We have a number of committees and • defending the attorney-client profession are under attack. As indicat- task forces tackling the issue of diversi- privilege; ed above, we responded to those ty. Further, we are working to develop • improving the oversight of attacks during the past year, and will and promote acceptance of flexible lawyer advertising; continue to do so during my tenure. work arrangements and professional • overhauling and strengthening Despite our efforts, racial minorities lifestyles to meet the needs of our our ethics rules; are still not adequately represented in members who have child care or other • providing for law practice conti- the bar or in our Association; women significant family responsibilities, and nuity. still confront the glass ceiling. And the who need flex time or other innovative One might have expected the legal needs of the weakest and most arrangements to help them pursue House, in confronting those divisive vulnerable members of our society go their careers. issues, to engage in heated, fierce and largely unfilled. These issues will Reform. Opportunity is knocking perhaps even intemperate debate. engage my full attention in the year to on issues of singular importance. After all, lawyers regularly engaged in come. Judicial selection will take center legal argument know that the fine line Access to justice remains at the cen- stage. The United States Court of between zealous and excessive advo- ter of the Association’s focus. We must Appeals for the Second Circuit has cacy can be difficult to find. But that continue to press for adequate funding expedited and is scheduled to hear the line does exist, and good advocates of legal services, and we scored a major appeal in LopezTorres v. New York State know it. It is possible to approach legal triumph in that area, under President Board of Elections this month. The Court issues with both passion and compas- Buzard’s leadership, when the sion. Indeed, such an approach is cru- Legislature overrode the Governor’s CONTINUED ON PAGE 20
6 | June 2006 | NYSBA Journal Schedule of Spring Programs NYSBACLE (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.
The New Regime in Medicaid Planning – Changes Ethics and Professionalism Wrought by the Deficit Reduction Act of 2005 (half-day program) +Fulfills NY MCLE requirement (7.0): 7.0 in practice Fulfills NY MCLE requirement for all attorneys (4.0): 4.0 management and/or professional practice in ethics and professionalism June 5 Syracuse June 7 Melville, LI June 8 Buffalo June 15 Rochester June 16 Albany Attorney Trust Accounts – What Every Attorney June 22 Ithaca Needs to Know June 23 Syracuse (half-day program) Fulfills NY MCLE requirement for all attorneys (4.5): Bridging the Gap: Crossing Over Into Reality II 4.5 in ethics and professionalism (two-day program) June 5 New York City Fulfills NY MCLE requirement for all attorneys (16.0): June 15 Melville, LI 3.0 in ethics and professionalism; 6.0 in skills; 7.0 practice management and/or professional practice Public Sector Labor and Employment Law in June 8–9 New York City New York State +Fulfills NY MCLE requirement (7.0): 1.0 in ethics and Basics of Bankruptcy Practice professionalism; 6.0 in skills and practice management Fulfills NY MCLE requirement for all attorneys (7.5): 1.0 and/or professional practice in ethics and professionalism; 1.5 in skills; 5.0 in practice June 6 New York City management and/or professional practice June 8 Albany June 13 Albany; Buffalo; Melville, LI; June 9 Rochester New York City; Rochester; Westchester The New World of Real Estate Financing June 14 Syracuse Fulfills NY MCLE requirement for all attorneys (7.0): 1.0 in ethics and professionalism; 2.0 in skills; 4.0 in practice Ethical Issues in Matrimonial Cases: management and/or professional practice What’s the Good Lawyer to Do? June 7 Rochester (half-day program) June 9 Albany Fulfills NY MCLE requirement for all attorneys (4.5): 4.0 in ethics and professionalism; 0.5 in practice management and/or professional practice June 16 New York City
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Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: CL2767 The Model Guardianship Part A Novel Approach By H. Patrick Leis, III H. PATRICK LEIS, III, District Administrative Judge in Suffolk County since November of 2003, has served on the bench for 20 years. He was designated in February 2005 as the Presiding Justice of the newly created Model Guardianship Part for New York State and serves as Co-Chair of the Guardianship Task Force for the Second Judicial Department.
hief Judge Judith S. Kaye, recognizing the importance of prioritizing and pro- tecting the interests of incapacitated persons, announced in her 2005 State of Cthe Judiciary address the establishment of a Model Guardianship Part in Suffolk County. Chief Judge Kaye envisioned a pilot court that would bring a holis- tic approach to guardianship proceedings. Implemented in 2005, Suffolk County’s model court is a work in progress. It inte- grates all pending cases involving the incapacitated person before one judge; pro- vides specialized training for family members appointed as guardians; explores mediation as a tool in facilitating the resolution of conflicts; assures that allegations of abuse of incapacitated persons receive immediate attention; utilizes volunteers to monitor the status of the incapacitated person after a guardian has been appointed; and through the newly created position of court examiner specialist, oversees court examiner functions and guardians’ compliance with their obligation to file timely reports and accountings. Suffolk County’s pilot guardianship court is a problem-solving court that is anal- ogous to the recently established drug treatment courts, integrated domestic violence courts, mental health courts and community courts. In addition to determining legal issues, the pilot court addresses the need for maintaining or restoring trust, peace, and harmony within the incapacitated person’s life. This holistic approach to guardianships is best described as restorative jurisprudence.1
NYSBA Journal | June 2006 | 11 In keeping with the Chief Judge’s vision, every indi- The pilot court places a special emphasis on the phys- vidual entering the Model Guardianship Part, whether ical arrangement of the courtroom, with the aim of ensur- suffering from cerebral palsy, mental retardation, head ing that the alleged incapacitated person’s experience in injury, dementia or Alzheimer’s disease, whether a child court is positive. Many respondents are physically frail, or adult, has his or her needs addressed by the court in a elderly or disabled. Others suffer from dementia or caring, understanding and professional manner. Each Alzheimer’s disease and are easily agitated or disorient- respondent who is alleged to be in need of a guardian is ed when removed from familiar surroundings. Upon entitled to receive from the judicial system the same dig- their arrival in the courtroom, they are addressed by the nity and respect we would want to receive were we or a staff in a warm, comforting, and friendly manner in order loved one in the same position. “It is after all, the way a to set them at ease and alleviate their fears. society treats its weakest and most vulnerable members In an effort to prevent alleged incapacitated persons that it ultimately will be judged.”2 from waiting at the courthouse unnecessarily, each case is assigned a specific time on the calendar. This practice is Having all of an alleged incapacitated intended to prevent or at least minimize any physical dis- comfort that an alleged incapacitated person might person’s legal proceedings assigned to endure while waiting for other cases to be heard. one judge familiar with his or her Three counsel tables are placed strategically in the pending case enables the court to discern courtroom. Two tables sit adjacent to each other as in tra- ditional courtrooms. The respondent and his or her coun- the core issues driving the litigation. sel or health care aide sit at a third table which is located immediately in front of the other two and facing the In the pilot court, empathy is the defining force. bench. This eliminates distractions and permits the Envisioning oneself in the position of an alleged incapac- alleged incapacitated person to focus directly on the itated person and attempting to understand his or her judge and converse in a relaxed, informal manner. feelings of vulnerability, fear and hopelessness allows the Recognizing that approximately one-third of Americans judge to determine core issues and facilitates restorative between the ages of 65 and 74 have hearing impairments jurisprudence. and that over one-half the people who are 85 and older experience hearing loss,3 the model part provides assisted Best Practices hearing devices when needed. In addition, when the Integration of cases is a cornerstone of the model part, presence of the alleged incapacitated person has been incorporating the “one family one judge” formula suc- waived, petitioners are asked to provide a photograph. cessfully employed in the Integrated Domestic Violence Putting a face to a name helps to personalize the proceed- Courts. Having all of an alleged incapacitated person’s ing and allows the court to focus directly on the individual legal proceedings assigned to one judge familiar with his needs of each person alleged to be incapacitated. or her pending case enables the court to discern the core issues driving the litigation. Once the core issues are Mediation resolved, the collateral proceedings are often disposed of Cases assigned to the pilot court are among the most con- more effectively. tentious. On the hearing date, the court conferences all Moreover, integration of all legal proceedings involv- cases on the record with the attorneys and their clients in ing the alleged incapacitated person, before one judge, an attempt to encourage a resolution of the pending minimizes court appearances, reduces costs, promotes issues through discussion and negotiation. The court has comprehensive decision making, and prevents contradic- also incorporated mediation techniques into the confer- tory determinations of factual issues. The following types encing of cases, which provides the parties with the of cases have been heard in the pilot court: foreclosure opportunity to take control of the proceeding and forge actions; summary eviction proceedings; civil forfeiture their own agreement. This has resulted in a drastic reduc- proceedings; felony and misdemeanor criminal proceed- tion in the number of contested hearings. Simply listen- ings, including elder abuse; matrimonial actions; various ing and giving each party a chance to air his or her griev- civil proceedings; and applications for orders of protec- ances and concerns often engenders a catharsis, paving tion in the family and district courts. the way to compromise and resolution. It is helpful for the judge presiding in the integrated In addition to conferencing cases, mediation is a valu- guardianship part to have had prior judicial experience in able tool the court uses in helping to resolve conflicts that the areas of criminal law, family law, and general civil lit- arise in the incapacitated person’s family. The model part igation, in addition to guardianship law. This enhances has successfully utilized mediation to assist in restoring the court’s ability to serve the interests of incapacitated persons in an efficient and expedited manner. CONTINUED ON PAGE 14
12 | June 2006 | NYSBA Journal CONTINUED FROM PAGE 12 tive and are required to be held within 28 days after the filing of the petition.6 There are exceptions to this rule, communication, understanding, trust, and harmony but they are rare.7 among the family members of the incapacitated person. It is important to note that parties in mediation are In this method of resolving disputes, a neutral media- never required to reach an agreement. Further, confiden- tor assists the parties in identifying and understanding tiality agreements are executed as a condition of mediation the issues driving the litigation with the ultimate goal of in order to ensure that nothing that transpires before a having the litigants reach an agreement. Mediators are mediator may be used as evidence in a judicial proceeding. trained to be attentive to the emotions and perceptions of Allegations of undue influence or coercion of the the parties and to help them acknowledge the validity of alleged incapacitated person are common. Where one of each other’s viewpoints.4 The mediator stresses commu- the parties has an upper hand or exercises a great deal of nication and understanding and serves more as a facilita- control over the other, mediation may not be advisable. tor of discussion than a director of resolutions.5 Likewise, mediation is not appropriate in cases of alleged Experience has shown that parties are more likely to violence, elder abuse or coercion. honor an agreement reached through mediation because they crafted it themselves. Moreover, a mediator can devote Monitoring more time than a court to the parties’ issues and has the New York’s Article 81 addresses the need to safeguard the capacity to draw out deeply entrenched problems within assets and property of individuals found to be in need of the family. Where possible, it is important that mediators guardians. The Legislature envisioned that this would be meet with the alleged incapacitated person in order to fully accomplished via the appointment of court examiners to appreciate his or her particular interests and needs. review guardians’ 90-day and annual reports. In practice, Volunteer mediators are assigned to guardianship however, as annual accountings are not due until May of matters through the Educational Assistance Corpora- each year, a lengthy period may elapse between the tion’s (EAC) mediation program. The court has also appointment of a guardian and the filing of the first annu- established a roster of mediators who charge on a sliding- al accounting. Therefore, any misappropriation of funds scale basis, and are assigned by the court in appropriate or omission on the part of the guardian may not be circumstances. In addition, the resource coordinator is detected by the court examiners for well over a year. trained as a mediator and is available to meet with the Thanks to the efforts of Honorable A. Gail Prudenti, parties on the same day the court conferences the case. Presiding Justice of the Appellate Division, Second Judicial Department, and Honorable Jonathan Lippman, Chief Administrative Judge for the State of New York, the Where one of the parties has an position of court examiner specialist has been newly upper hand or exercises a great established in all the guardianship parts of the Second Department. The position has also been instituted in the deal of control over the other, First Department. The court examiner specialist monitors compliance mediation may not be advisable. with the court’s orders. At the conclusion of the guardianship hearing, the matter is adjourned for a Although mediation is generally used after the estab- compliance conference before the court examiner spe- lishment of a guardianship, there are instances where it is cialist who makes an inquiry as to whether the order enlisted before the hearing. As a general rule, however, and judgment was submitted and whether the guardian hearings will not be adjourned pending mediation, as obtained a bond, received a commission, and filed a 90- Mental Hygiene Law Article 81 hearings are time-sensi- day report.
14 | June 2006 | NYSBA Journal A critical function of the court examiner specialist is to In an effort to safeguard incapacitated persons already confirm that guardians are complying with judgments under the care of court-appointed guardians, the pilot requiring the posting of bonds. In the pilot court, a writ- court has, in conjunction with EAC, implemented a pro- ten order is issued appointing a court examiner on the gram by which volunteer case monitors are appointed. same day as the guardianship hearing. This order The resource coordinator oversees the appointment of the requires the examiner to report to the court examiner spe- volunteer monitors and assists in their training in the area cialist in the event that the guardian has not obtained a of gerontology and elder abuse. bond within 30 days of the hearing. The importance of The role of the monitor is to visit incapacitated per- requiring fiduciaries to obtain bonds was illustrated by sons in the community, whether they reside in their own the recent prosecution of a court-appointed attorney home, another’s home or a residential facility, and to guardian for the theft of over $2 million from the assure that their personal needs are not being neglected. guardianship accounts of 14 incapacitated persons.8 The monitor submits a written report to the court regard- Fortunately, the guardian was bonded, and the guardian- ing the health, safety and welfare of the incapacitated ship estates were made whole by the bonding companies. person. Had bonds not been posted, a number of incapacitated In addition, the resource coordinator marshals com- persons would have lost their entire life savings. munity resources and facilitates their availability to inca- A resource coordinator is assigned to the pilot court in pacitated persons, their guardians, families and care- order to closely monitor the health and welfare of indi- givers. In this regard, the resource coordinator identifies viduals found to be incapacitated. While most guardians local community resources including, but not limited to, are well-intentioned, there are instances in which the per- public benefits, nursing homes, geriatric caregivers, adult sonal needs of incapacitated persons have been compro- daycare programs, respite care and home health care mised, even at the hands of caregivers who are family resources. The resource coordinator also serves as a liai- members. These circumstances underscore the necessity son with Suffolk County community stakeholders, partic- of enlisting monitors in the field after the establishment ularly Adult Protective Services, the District Attorney’s of guardianships. office, the Sheriff’s Department, the Police Department and the Suffolk County Task Force to Prevent Family
NYSBA Journal | June 2006 | 15 Violence. In sum, the resource coordinator assists in fulfilling the overall mis- sion of the pilot court to provide a holistic problem-solving approach to guardianship proceedings, which gives priority to the emotional and psycho- logical well-being of incapacitated persons who come before the court.
Pro Bono Initiative Suffolk County’s local Pro Bono Action Committee was established through the Deputy Chief Administrative Judge for Justice Initiatives, Honorable Juanita Bing Newton. The Committee has partnered with the Suffolk County Bar Association’s Pro Bono Project in an initiative by which experienced elder law attorneys will mentor newly admitted lawyers in representing petitioners and drafting guardianship petitions on behalf of indigent parties. Chief Judge Kaye’s vision for a model guardianship court includes the implementation of a pilot public-guardian program to assume responsibility in cases in which incapacitated persons are of limited means and have no friend or relative willing to step in and serve as guardian. Because the pool of attor- neys who are able to serve as pro bono guardians and assume the overwhelm- ing and demanding responsibilities for a stranger is dwindling, this issue requires urgent attention on a statewide basis. The court system is working with Suffolk’s Pro Bono Action Committee to explore the feasibility of imple- menting a pilot public-guardian program in Suffolk County.
Conclusion Chief Judge Judith S. Kaye’s initiative for a holistic, problem-solving approach to guardianship proceedings has already realized a profound impact: a more humane, empathetic and cohesive treatment of incapacitated persons. Finally, guardianship proceedings in the pilot court provide the judge, the judge’s staff, and the guardianship bar in general, with the unique opportuni- ty of assisting those who are in dire need in a novel way and of observing the loving interaction among family members, caregivers and the incapacitated person. Whether parents, spouses, siblings, or friends, these selfless individu- als provide loving care for those who suffer from debilitating illnesses and injuries. Moreover, dedicated and compassionate attorneys and volunteers who agree to accept the responsibility to act as guardians, monitors, and medi- ators are an integral part of the pilot court as well. The commitment and con- tributions of all of these dedicated individuals are immeasurable. It is hoped that the lessons being learned in the pilot court will serve to benefit the future of guardianship proceedings throughout New York State. ■
1. The concept of restorative jurisprudence is to be distinguished from the theory of restorative justice which involves offender accountability and repairing the harm done to victims in criminal law. For further discussion see Restorative Justice Online, the Centre for Justice and Reconciliation, Prison Fellowship International at
NYSBA Journal | June 2006 | 17 BURDEN OF PROOF BY DAVID PAUL HOROWITZ DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury litigator in New York City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the Office of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer on the subject.
“Will the Gatekeeper Let Daubert In?”
ast month’s column reviewed accepted within the appropriate scien- court judges often must review federal Frye’s dominant role in deter- tific community. The Supreme Court’s cases where Daubert was the standard Lmining the reliability of scientif- subsequent ruling in Kumho Tire4 used in assessing the same theory. In ic evidence in New York state courts. extended the Daubert gatekeeping role these situations, analysis and discus- In the parallel universe into which and criteria from scientific testimony to sion of Daubert is all but inevitable. state court litigators occasionally cross all expert testimony. One early decision opined: – the federal courts in New York – Twice since Daubert was decided, Frye and Daubert, in the greater Daubert governs the admissibility of the New York State Court of Appeals number of cases, will produce sim- scientific and technical evidence. has reaffirmed that Frye remains the ilar results. There may be instances, I come not to praise Daubert, nor to standard in New York,5 most recently however, in which the criterion of bury it, and have no intention of rein- in 1996. The Court of Appeals in the general acceptance by the relevant venting the wheel1 by discoursing at 2000 Andon decision, reviewing the scientific community will play a length on Daubert qua Daubert. A good scope of expert disclosure permitted in decisive and differentiating role. number of prior Journal articles have an infant lead-paint exposure case, This is such a case. The present thoughtfully considered Daubert, and made clear its disdain for turning the Federal rule, which dethrones the two recent ones provide a fine founda- “fact-finding process into a series of general acceptance test, is the tion on this topic, albeit from different mini-trials.”6 “While open discovery is expression of a reformist zeal to perspectives.2 Instead, the focus here is crucial to the search for truth, equally clear the underbrush and open all on the inroads, real and imagined, that important is the need to avoid undue pathways to the truth. The Frye Daubert has made in state practice. delay created by battling experts.”7 rule, in that context, is contrariant. In 1993 the United States Supreme This language from Andon may be an Nevertheless, it faithfully reflects Court decided Daubert.3 This decision, important signal for the manner in and supports the traditional reluc- along with subsequent cases refining which the Court of Appeals will evalu- tance of the common law to upset Daubert and expanding its scope, rep- ate the practical implications of using established liberty and property resented a sea change from the federal Daubert as a standard in state courts. If interests without good cause, sup- courts’ long-standing application of federal practice is any guide, imple- ported by a preponderance of cred- the Frye test. No longer was general menting Daubert in New York would ible and reliable evidence.8 acceptance within the scientific com- necessitate far more extensive motion Appellate courts have approved the munity to be the key. Instead, perform- practice and hearings than currently review of Daubert opinions by state ing what the Court referred to as its occur under Frye. trial court judges in this context. “We “gatekeeping” function, federal dis- Despite the clear language from the note that although federal courts use trict court judges were to make an ini- Court of Appeals reaffirming Frye, the the broader Daubert test instead of the tial determination, after a hearing, as prospect of utilizing Daubert in state Frye standard in connection with to whether an expert was qualified to court proceedings has been advocated determining the admissibility of scien- testify. The determination was to be by attorneys, mainly those represent- tific expert testimony, it is instructive made by applying a number of factors, ing defendants, and has proved tanta- to examine federal authority for pur- among them whether the expert’s con- lizing to a number of judges at the trial poses of discussion of accepted scien- cept had been tested, the known rate of level. tific methodology.”9 error for the testing, whether the con- In applying Frye in analyzing In the first reported decision where cept had been subjected to peer review, whether a particular theory has gained a New York trial court applied Daubert and whether the concept is generally general acceptance, New York state to determine whether an expert was
18 | June 2006 | NYSBA Journal While Frye is still supreme in New York, qualified, the plaintiff had called an expert to testify concerning vehicle sta- Daubert is out there, ever present, ever hopeful, bility, and the expert sought to testify waiting for an opening to permit it a starring, or at concerning a theory of vehicle dynam- ics he had developed. The court con- least regular, role in New York practice. cluded that the expert was qualified to testify under Daubert, and explained its avoidance of Frye: Where the expert’s qualifications So what is a litigator to do? Where, however, the evidence is were at issue, rather than the theory Complacency is not recommended. not scientific or not novel, the Frye espoused by the expert, the Second While issues of admissibility often analysis is not applicable. Department has cited Daubert and seem a long way off when an expert is Inasmuch as the testimony in the Kumho Tire (along with state authority) first consulted, or, even later, when a case at bar is that of an engineer, in reviewing an expert’s qualifica- CPLR 3101(d)(1)(i) response is served, and inasmuch as the testimony is tions.14 “To establish the reliability of it is crucial to consider any and all based upon, according to the wit- an expert’s opinion, the party offering admissibility issues as early in disclo- ness, recognized technical or other that opinion must demonstrate that the sure (or before disclosure) as possible. specialized knowledge, the court expert possesses the requisite skill, There is no economy in expending time finds that the stricter general training, education, knowledge, or and money retaining an expert who, acceptance standard of Frye is not experience to render the opinion.”15 ultimately, is found not to be qualified. applicable. The court will apply While Frye is still supreme in New Although Daubert may never become the reliability standard as derives York, Daubert is out there, ever present, the standard in New York state courts, from Daubert and Kumho Tire.10 ever hopeful, waiting for an opening to as a practical matter, any expert’s Wahl was not appealed, but was permit it a starring, or at least regular, prospective testimony should be criticized by another trial judge: role in New York practice. While prac- probed and tested using the criteria set This Court declines to apply tical considerations may militate forth in Daubert. Even where Daubert Daubert to the facts of the pending against Daubert’s adoption, and Frye plays no role in a court’s determination case. Over the years, since Wesley, clearly has staying power, the day may of whether or not an expert is qualified several trial courts, in New York, come when the perception is that Frye’s to testify, its criteria provide a useful have decided to apply the Daubert head-counting methodology is not roadmap to be utilized by an adver- standard rather than the general suited to an ever-increasingly complex sary on cross-examination. It would be acceptance standard set forth in litigation arena. small consolation that an expert’s testi- Frye. Nevertheless, whenever directly confronted with the issue, appellate courts have consistently rejected the idea that Daubert should be the controlling standard in New York rather than Frye.11 When trial courts have conducted Daubert or blended, self-styled “Frye/ Daubert” hearings, and the rulings have been appealed, the appellate divi- sions have made clear that “New York has not adopted the Daubert standard, but rather continues to adhere to the Frye test for determining the admissi- bility of novel scientific evidence.”12 In a recent decision the First Department held that the “[p]laintiff’s unpreserved claim that the trial court should have applied the more flexible standard for admitting expert testimo- ny articulated in Daubert v. Merrell Dow Pharms. is without merit; in any event, the Daubert standard would not yield a different result.”13
NYSBA Journal | June 2006 | 19 mony is held to be admissible by a trial 2004) p. 10; Harold L. Schwab, Is It Junk Or Genuine? 10. Wahl v. Am. Honda Motor Co., 181 Misc. 2d 396, Part II, N.Y. St. B.J. (Jan. 2005) p. 25. 693 N.Y.S.2d 875 (Sup. Ct., Suffolk Co. 1999) (cita- court when, thereafter, the expert’s tion omitted). 3. Daubert, 509 U.S. 579. credibility is demolished in front of the 11. DeMeyer v. Advantage Auto, 9 Misc. 3d 306, 797 4. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). jury by opposing counsel. N.Y.S.2d 743 (Sup. Ct., Wayne Co. 2005) (citation For now, follow Frye, but keep an 5. See People v. Wernick, 89 N.Y.2d 111, 651 N.Y.S.2d omitted). 392 (1996); People v. Wesley, 83 N.Y.2d 417, 611 12. Zito v. Zabarsky, 2006 N.Y. Slip Op. 506, 2006 eye over your shoulder for Daubert. ■ N.Y.S.2d 97 (1994). WL 205067 (2d Dep’t 2006). 6. Andon v. 302–304 Mott St. Assocs., 94 N.Y.2d 740, 1. At some point very early in its history the 13. Pauling v. Orentreich Med. Group, 14 A.D.3d 357, 709 N.Y.S.2d 873 (2000). wheel would, undoubtedly have been found unreli- 787 N.Y.S.2d 311 (1st Dep’t 2005) (citation omitted). able under both Frye v. United States, 293 F. 1013 7 Id. at 747. 14. Hoffman v. Toys “R” Us, Ltd., 272 A.D.2d 296, (D.C. Cir. 1923), and Daubert v. Merrell Dow Pharms., 8. Collins v. Welch, 178 Misc. 2d 107, 678 N.Y.S.2d 509 U.S. 579 (1993). 707 N.Y.S.2d 641 (2d Dep’t 2000). 444 (Sup. Ct., Tompkins Co. 1998) (citation omitted). 2. Henry G. Miller, The Daubert Debacle, N.Y. St. 15. Id. 9. Parker v. Mobil Oil Corp., 16 A.D.3d 648, 793 B.J. (Mar./Apr. 2005) p. 24; Harold L. Schwab, Is It N.Y.S.2d 434 (2d Dep’t 2005), leave granted, 6 N.Y.3d Junk Or Genuine? Part I, N.Y. St. B.J. (Nov./Dec. 702, 810 N.Y.S.2d 416 (2006) (citation omitted).
PRESIDENT’S MESSAGE Associate Judge, George Bundy Smith. Kenneth G. Standard, has been study- CONTINUED FROM PAGE 6 The Association will play an impor- ing these issues, and its exceptional, tant role in vetting the qualifications of ground-breaking report and recom- will review Judge John Gleeson’s the candidates and will work hard to mendations will be released to the determination that New York’s con- forge a relationship with the new House of Delegates for discussion at vention system unconstitutionally Chief Judge. More to the point, we will the Cooperstown meeting. allows party leaders, rather than vot- take a close and skeptical look at the The rule and practice of law. We ers, to select the justices of the constitutionally mandated but archaic face challenges and opportunities, at Supreme Court. Whatever the result policy that forces still vigorous judges home and abroad. The Association has on appeal, the issue of judicial selec- to leave the bench at age 70 (and, as a already spoken out on government tion will be very much in play. No sys- practical matter, even earlier). practices and policies that, while tem is perfect, but our Association has The Court of Appeals will also designed to defend against terrorism, a long-standing policy in favor of decide, early in my term, the constitu- have the effect of eroding our liberties. merit selection, a policy I do not intend tional issues relating to same-sex cou- But this is an issue which is not going to abandon. We will take a close look at ples. The Association is perfectly posi- away, and the Association’s voice that policy in light of whatever the tioned to react, and it will do so. We must continue to be heard. Second Circuit decides. have called on the Legislature to adopt Paradoxically, this is also a time Moreover, three of the seven seats a comprehensive solution for same- when new democratic and legal insti- on our Court of Appeals will be up for sex couples, allowing them to engage tutions are struggling to emerge in reappointment, including the seat of in marriage, civil unions or domestic parts of the world where they have Chief Judge Judith Kaye and the partnerships, without specifying previously been unknown. Our seat of our only African-American which of these solutions should be Association has great resources, a vast implemented. Whatever decision the breadth and much to offer in this area, Court reaches, the legislative issue and we will do so. Your CLE will be in play, and we will be players. What is common to each of these Reform is also needed to reduce the important issues is the manner in Classroom obstacles faced by those with criminal which we must approach them. In fol- records when attempting to return to lowing the House’s example, let us society and their families after incar- make ready for vigorous, intense ceration. Such barriers include the debate that is both smart and respon- inability to secure employment, reuni- sive to the needs of the Association’s fy with children, purchase property or members and the public. Together, if reside in certain areas. The conse- we act with both passion and compas- quences of these barriers are far-reach- sion, we can find common ground and ing, affecting New York’s families and reach sensible solutions to even the Come click for CLE credit at: communities, and have a dispropor- most contentious issues. tionate impact on minorities. The Together, we can be not only the www.nysbaCLEonline.com Association’s Special Committee on clear, compelling and effective voice of
or to purchase CDs Collateral Consequences of Criminal the profession but also the vigorous call 800-582-2452 Proceedings, appointed by President advocate for the public. ■
20 | June 2006 | NYSBA Journal Tax Certiorari & Condemnation in the 9th Judicial District By Thomas A. Dickerson
The Tax Cert Part also maintains a Web site3 that con- tains Part rules and calendar4 procedures, downloadable decisions, articles, publications, and important links.
Types of Property The issues raised in the Tax Cert Part – particularly valu- ation and exemption issues – and the way in which they are analyzed and resolved have much to do with the type of real property in dispute. For example, the following types of real property have come before us within the con- text of trials or motions in either tax certiorari or eminent domain proceedings: two electricity-generating power plants,5 one, oil- and gas-fired, the other, primarily, coal- fired (59-day trial); farmland including residence, barn and shed;6 a continuing care retirement community7 (73- day trial); a “home for the elderly”;8 a senior housing complex;9 an adult home;10 a branch bank;11 single-fami- ly residences12 including 11 townhouse-style structures;13 apartment complexes;14 shopping centers;15 office build- ings;16 contaminated industrial property;17 a burned- down bowling alley;18 a luncheonette;19 and various other commercial properties.20
Tax Exemptions With respect to entities seeking an exemption from real property taxes, we have examined a cellular telephone tower,21 a Free Loan Society,22 a School Tax Relief (STAR) exemption,23 a continuing care retirement community,24 his is my third year presiding over the Tax an adult home,25 property owned by a religious order,26 Certiorari and Condemnation Law Part of the 9th TJudicial District, which covers Westchester, Putnam, Rockland, Dutchess, and Orange Counties (“Tax THOMAS A. DICKERSON is a Justice of the New York State Supreme Court, Cert Part”). The Tax Cert Part manages numerous matters 9th Judicial District, sitting in White Plains. His court Web page is at seeking, among other forms of relief, exemptions from www.nycourts.gov/courts/9jd/taxcert.shtml. He is the author of Class real property taxes, reductions in real property tax assess- Actions: The Law of 50 States, Law Journal Press, 1988–2006; Travel ments, and the resolution of a variety of eminent domain Law, Law Journal Press, 1981–2006; Article 9 (rev. 2005, 2006) of 3 issues including valuation. The attorneys,1 assessors,2 and Weinstein, Korn & Miller, New York Civil Practice CPLR, Lexis-Nexis, and appraisers who have appeared in our Tax Cert Part are over 220 legal articles. Justice Dickerson received his law degree and an generally professional and knowledgeable and a pleasure M.B.A. from Cornell University. to work with.
22 | June 2006 | NYSBA Journal The Salvation & Praise Deliverance Center,27 residences involves reassessment to market on sale, is relatively for clergy28 and cultural organizations.29 rare in Nassau County and New York City because those taxing authorities “annually reassess all parcels (and Some Procedural Issues hence) [r]eassessment on sale is thus permissible as part We have also addressed a number of procedural issues of these broader reassessment programs.”41 In the 9th involving the interpretation and application of 22 Judicial District, however, only a few smaller municipal- N.Y.C.R.R. § 202.59 to tax certiorari30 matters and ities in 200542 were in the New York State Office of Real 22 N.Y.C.R.R. § 202.61 to eminent domain proceedings,31 Property Services (ORPS) annual reassessment program the proper service of tax certiorari petitions32 and (now referred to as “Guidelines for the Annual Aid whether taxpayers are required to permit appraisers to Program”43), i.e., Pelham and the Town of Rye in perform interior inspections.33 Westchester County; Kent, Patterson, Southeast and Putnam Valley in Putnam County, and Milan, Northeast, Recent Developments Red Hook and Rhinebeck in Dutchess County. A num- There have been a number of recent developments in the ber of other communities outside of Westchester County tax certiorari and condemnation law areas, including the are in the midst of implementing revaluations as of this continuing fallout in the realm of eminent domain law writing.
Because so few municipalities in the 9th Judicial District participate in an annual reassessment program, tax certiorari cases alleging selective reassessment are more likely to arise. from the U.S. Supreme Court’s decision in Kelo v. City of Another community in Westchester County, the New London, the efforts of some communities to consider Village of Bronxville, has recently approved a village- and implement revaluation programs, and the increasing wide revaluation “aimed at making property taxes fair incidence of selective reassessment cases in the tax certio- and equitable and ending widespread tax discrepan- rari field. cies.”44 The Village of Bronxville had previously initi- ated two studies,45 the results of which are available Proposed Changes in Eminent Domain Law on the Village’s Web site.46 The studies provide a valu- The U.S. Supreme Court’s decision in Kelo v. City of New able resource for communities interested in revalua- London34 approved the taking of private property for tion. transfer to benefit and complement the area surrounding facilities for a corporation, Pfizer, Inc. Annual Reassessment Programs Those who govern the City were not confronted with The ORPS annual reassessment program is based upon the need to remove blight . . . but their determination RPTL § 157347 and, according to ORPS, the advantages that the area was sufficiently distressed to justify a pro- of participating in the program include achieving gram of economic rejuvenation is entitled to our defer- assessment equity for taxpayers, local control over the ence. . . . We emphasize that nothing in our opinion equalization rate, improved bond ratings, fewer court precludes any State from placing further restrictions challenges to assessments and increased land assess- on its exercise of the takings power. ments.48 Generally, the ORPS program has been well The Kelo decision has generated many articles35 and received49 and has been implemented by many munici- encouraged some New York State legislators to propose palities50 statewide. In addition, such a program implies changes in New York’s Eminent Domain Procedure Law that arm’s-length, representative properties that have providing for, among other things, greater control by sold may be reassessed, using, as one factor, the sale elected officials,36 greater compensation37 and, even, jury prices of the subject property and comparable properties trials on valuation.38 in the neighborhood “‘so long as the implicit policy is applied even-handedly to all similarly situated proper- Selective Reassessment vs. Annual Reassessment ty.’”51 This would seem to apply to the initial assessment The selective reassessment of real property is a recurring of newly created property52 as well. In any event, issue in tax certiorari proceedings in New York State because so few municipalities in the 9th Judicial District courts, particularly in the 9th Judicial District.39 It may participate in an annual reassessment program, tax cer- be, as suggested by one commentator,40 that the inci- tiorari cases alleging selective reassessment are more dence of selective reassessment, at least to the extent it likely to arise.
NYSBA Journal | June 2006 | 23 What Is Selective Reassessment? Conclusion The policy of selective reassessment has been found by The issues raised in the tax certiorari, tax exemption and the U.S. Supreme Court and New York courts to be a vio- condemnation law areas are exciting, indeed, and of con- lation of the equal protection clause of both the United siderable importance to municipal taxing authorities and States Constitution and the New York State Constitution. real property taxpayers. ■ But what exactly is selective reassessment? Generally, 1. Westchester County Bar Association at
24 | June 2006 | NYSBA Journal selective reassessment found); Falbe v. Tax Assessor of Cornwall, 8 Misc. 3d 1004(A) (Sup. Ct., Orange Co. 2005) (order directing village to pay tax refund vacated because of misrepresentations); Young v. Town of Bedford, 9 Misc. 3d 1107(A), 808 N.Y.S.2d 921 (Sup. Ct., Westchester Co. 2005) (use of current mar- ket value for initial assessment of newly created property; no selective reassess- ment found); McCready v. Assessor of Ossining, 2006 N.Y. Slip Op. 50719 (Sup. Ct., Westchester Co. 2006) (screening procedure for updating and correcting inventory data fair and reasonable; no selective reassessment found. 13. Markim v. Assessor of Orangetown, 9 Misc. 3d 1115(A), 808 N.Y.S.2d 918 (Sup. Ct., Rockland Co. 2005) (assessor failed to adequately explain assessment methodology; selective reassessment found), modified, 11 Misc. 3d 1063(A) (Sup. Ct., Rockland Co. 2006). 14. MGD Holdings Hav, LLV v. Assessor of Haverstraw, 8 Misc. 3d 1013(A), 801 N.Y.S.2d 779 (Sup. Ct., Rockland Co. 2005) (motion for summary judgment denied), modified, 11 Misc. 3d 1054(A) (Sup. Ct., Rockland Co. 2006) (motion to reargue granted and upon reargument earlier decision adhered to). 15. Midway Shopping Ctr. v. Town of Greenburgh, 11 Misc. 3d 1071(A) (Sup. Ct., Westchester Co. 2006). 16. Reckson Operating P’ship LP v. Town of Greenburgh, 2 Misc. 3d 1005(A), 784 N.Y.S.2d 923 (Sup. Ct., Westchester Co. 2004) (because purchasers of commer- cial buildings buy an “income stream” the income capitalization approach is the best method of determining value); 2 Perlman Dr., LLC v. Bd. of Assessors, 9 Misc. 3d 382, 800 N.Y.S.2d 816 (Sup. Ct., Orange Co. 2005) (RPTL § 727(1) Moratorium; two exceptions reviewed); MRE Realty Corp. v. Assessor of Greenburgh, 8 Misc. 3d 1027(A), 806 N.Y.S.2d 446 (Sup. Ct., Westchester Co. 2005) (RPTL § 727(1) Moratorium; failure to timely file). 17. D’Onofrio v. Vill. of Port Chester, 8 Misc. 3d 1015(A), 801 N.Y.S.2d 777 (Sup. Ct., Westchester Co. 2005) (claimant’s motion to exclude evidence at trial as to any diminution in the value of the property by reason of cleanup or remediation costs resulting from alleged environmental contamination granted). 18. SKM Enters., Inc. v. Town of Monroe, 2 Misc. 3d 1004(A), 784 N.Y.S.2d 924 (Sup. Ct., Orange Co. 2004) (petitioner’s recycled 1996 appraisal submitted at the trial of 1997 tax assessment challenge stricken and 1997 petition dismissed). 19. In re Vill. of Port Chester, 10 Misc. 3d 1057(A) (Sup. Ct., Westchester Co. 2005) (claim dismissed as abandoned). 20. In re Vill. of Port Chester, 5 Misc. 3d 1031(A), 799 N.Y.S.2d 164 (Sup. Ct., Westchester Co. 2004) (condemnor ordered to pay advance payments into an escrow account pending outcome of condemnee’s federal appeal in action chal- lenging the condemnation proceeding on due process grounds; condemnor ordered to pay statutory interest of 6% on the advance payments); In re Vill. of Haverstraw, 9 Misc. 3d 1120(A) (Sup. Ct., Rockland Co. 2005) (motion seeking order directing condemnor to tender the remaining balance of the advance payment denied pursuant to Eminent Domain Procedure Law § 304(F) (EDPL)). 21. Nextel of N.Y., Inc. v. Assessor of Spring Valley, 4 Misc. 3d 233, 771 N.Y.S.2d 853 (Sup. Ct., Rockland Co. 2004) (Nextel’s telecommunications equipment tax- able as real property pursuant to Real Property Tax Law § 102(12)(I) (RPTL) or as common law fixtures). 22. Gemilas Chasudim Keren Eluzer Inc. v. Assessor of Ramapo, 5 Misc. 3d 1026(A), 799 N.Y.S.2d 160 (Sup. Ct., Rockland Co. 2004) (RPTL § 420-a(1)(a); although property was owned by tax-exempt organization it was not used primarily for the charitable activities of the society). 23. Brodie v. Office of the Assessor, 8 Misc. 3d 1001(A) (Sup. Ct., Rockland Co. 2005) (claim for STAR tax exemption barred by statute of limitations). 24. Miriam Osborn Mem. Home Ass’n v. Assessor of Rye, 4 Misc. 3d 1009(A) (Sup. Ct., Westchester Co. 2004), subsequent proceedings, 6 Misc. 3d 1011(A) (Sup. Ct., Westchester Co. 2005), 6 Misc. 3d 1035(A) (Sup. Ct., Westchester Co. 2005), 7 Misc. 3d 1004(A) (Sup. Ct., Westchester Co. 2005), 8 Misc. 3d 1008(A) (Sup. Ct., Westchester Co. 2005), 9 Misc. 3d 1019 (Sup. Ct., Westchester Co. 2005); 11 Misc. 3d 1059(A) (Sup. Ct., Westchester Co. 2006), and 11 Misc. 3d 1065(A) (Sup. Ct., Westchester Co. 2006). 25. Adult Home at Erie Station v. Assessor of Middletown, 8 Misc. 3d 1010(A), 801 N.Y.S.2d 237 (Sup. Ct., Orange Co. 2005) (request for tax exemption pursuant to RPTL § 420-1(1)(a) denied).
NYSBA Journal | June 2006 | 25 26. Foreclosure of Tax Liens by Town of Mount Pleasant, No. 03-11004 (Sup. Ct., bill ‘clarifies that the exercise of eminent domain powers should be reserved for Westchester Co. March 8, 2004) available at
26 | June 2006 | NYSBA Journal departure from both good assessment practices. . . . The Village should conduct further studies to examine strategies for bringing effective tax rates in line with the standard articulated in the New York State Real Property Tax Law”); see Medina, A Showdown on Taxes in Bronxville, N.Y. Times Sunday Edition, Westchester Section, July 24, 2005, p. 1. 46. See Village of Bronxville homepage
NYSBA Journal | June 2006 | 27 recipients of public amenities to bear the least amount of their cost. . . . This 61. See, e.g., Stern v. City of Rye, 268 A.D.2d 482, 702 N.Y.S.2d 100 (2d Dep’t approach lacks any rational basis in law and results in invidious discrimination 2000) (“reassessment upon improvement is not illegal in and of itself. Here, the between owners of similarly situated property”); Stern v. Assessor of Rye, 268 petitioners’ properties were reassessed after recent improvement. However, A.D.2d 482, 702 N.Y.S.2d 100 (2d Dep’t 2000) (“However, rather than adding rather than adding the value of the improvement to the prior assessment . . . the value of the improvement to the prior assessment . . . the properties were the properties were reassessed to a comparable market value that included the reassessed to a comparable market value that included the value of the value of the improvement . . . ”); Villemena v. City of Mount Vernon, 7 Misc. 3d improvement.”); Feldman v. Assessor of Bedford, 236 A.D.2d 399, 653 N.Y.S.2d 38 1020(A), 801 N.Y.S.2d 779 (Sup. Ct., Rockland Co. 2005) (no selective reassess- (2d Dep’t 1997) (“The petitioner also claims that the challenged assessment was ment found; new assessment ordered); Bock v. Assessor of Scarsdale, 11 Misc. 3d part of a systematic endeavor by the respondents to reassess only those prop- 1052(A) (Sup. Ct., Westchester Co. 2006) (assessor presented facially reasonable erties in the town that were sold”); DeLeonardis v. Assessor of Mount Vernon, 226 explanation for changing assessments on real property based upon the cost of A.D.2d 530, 641 N.Y.S.2d 83 (2d Dep’t 1996) (“utilizing the recent purchase improvements which appears to be fair and comprehensive; no selective price as a basis for determining the increase in assessed value of property on reassessment found); Teja v. Assessor of Greenburgh, No. 14628/03 (May 27, 2004) which improvements have been made pursuant to building permits, while (Rosato, J.) (“Petitioners’ argument, briefly stated, is that the only allowable similarly situated properties which have not been improved are not subject to increase in valuation above the assessment of June 1, 2001 could be one based reassessment, results in discriminatory treatment of the petitioner by imposing solely on the addition of the kitchen appliances, which cost $14,513.28. upon him a tax burden not imposed upon owners of similarly situated proper- Anything more than this they contend is a ‘welcome stranger’ increase based ty”); Feigert v. Assessor of Bedford, 204 A.D.2d 543, 614 N.Y.S.2d 200 (2d Dep’t on the purchase price of $1,175,000.00 paid in April 2002. (There was no town- 1994) (“The petitioners herein have offered substantial proof that the 1991 wide reassessment of all similarly situated properties.). This valuation tech- assessment of their property is based directly upon the resale of the property in nique is unconstitutional because it is a selective reassessment which denies 1983”); Schwaner v. Collins, 17 A.D.3d 1068, 794 N.Y.S.2d 233 (4th Dep’t 2005) equal protection guarantees”); Carter v. City of Mount Vernon, No. 19301/02 (“the petition sets forth specific examples of gross disparities in the assessed (Nov. 25, 2003) (Rosato, J.) (assessment increased 48.9% after sale based upon value of allegedly comparable property”); Adams v. Welch, 272 A.D.2d 642, 707 “‘certain improvements ‘having been made to the property, without proper N.Y.S.2d 691 (3d Dep’t 2000) (“respondent’s ‘selective reassessment‘ was not permits, by the prior owner’”; assessor failed to “even identify, or enumerate rationally based and therefore was improper”); Averbach v. Bd. of Assessors of just what specific renovations or improvements” were made; assessment held Delhi, 176 A.D.2d 1151, 575 N.Y.S.2d 964 (3d Dep’t 1991) (allegations that invalid); Young v. Town of Bedford, 9 Misc. 3d 1107(A), 808 N.Y.S.2d 921 (Sup. Ct., “assessments were made pursuant to an illegal ‘welcome stranger’ assessment Westchester Co. 2005) (“the prohibition against reassessment of improved procedure”); Gray v. Huonker, 305 A.D.2d 1081, 758 N.Y.S.2d 731 (4th Dep’t property ‘utilizing the recent purchase price as a basis for determining the 2003) (house selectively reassessed “that was not based on a policy ‘applied increase in assessed value of a property on which improvements have been evenhandedly to all similarly situated property within the [jurisdiction]’”); made’ (does not apply) to the initial assessment of newly created property on Markim v. Assessor of Orangetown, 6 Misc. 3d 1042(A), 800 N.Y.S.2d 349 (Sup. Ct., vacant, unimproved land”). Rockland Co. 2005) (selective reassessment found). 62. See, e.g., Nash v. Assessor of Southampton, 168 A.D.2d 102, 571 N.Y.S.2d 951 58. See ORPS Assessment Equity in New York: Results From the 2004 Market (2d Dep’t 1991) (“Whether the delay in the implementation of a comprehensive Value Survey,
28 | June 2006 | NYSBA Journal HELPFUL Member Discount NUMBERS
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*If no code is provided, when contacting companies always mention your NYSBA membership number. Call 518.487.5577/800.582.2452 if you need this information. The Whole Truth? The Problem With “Truth in Lending” By Gwen Seaquist and Alka Bramhandkar
ttorneys who represent clients in a typical real applies to any consumer credit transaction. Under Truth estate closing are confronted with numerous in Lending, borrowers must be provided with a “mean- Aforms. One that is particularly confusing and dif- ingful disclosure of credit terms so that consumers will be ficult to explain to clients is the Truth in Lending (TIL) able to compare more readily the various credit terms Disclosure Form. While it is intended to clarify for con- available to them.”2 As a result, creditors are required to sumers various numbers related to the actual cost of bor- clearly and conspicuously disclose certain key terms and rowing money, it often has the effect of bewildering them costs before consummating a credit transaction.3 instead. Unfortunately, the confusion is not unique to clients. We conducted a survey of attorneys, many of whom are engaged in active real estate practices, to assess their level GWEN SEAQUIST ([email protected]) is Professor and Chair of the Management Department and Coordinator of Legal Studies at Ithaca of comprehension of the TIL. Our data indicate that even College School of Business; she is also associated with the law firm of those attorneys who believe they understand the Annual Jonathan O. Albanese in Ithaca. She earned her undergraduate degree at Percentage Rates (APR) are, in fact, as confused as their Wells College and her law degree at the University of Mississippi. clients. This article explains how the APR and some of the other figures provided on the TIL form are actually calcu- ALKA BRAMHANDKAR, Ph.D. ([email protected]) is Associate lated. Professor of Finance at Ithaca College School of Business. He earned his Ph.D., M.A., and M.B.A. degrees from the State University of New York The Legal Basis of the “APR” at Binghamton, and a Bachelor of Commerce from the University of In 1968, Congress passed a host of consumer protection Bombay, India. laws including Truth in Lending Act,1 a federal law that
30 | June 2006 | NYSBA Journal The act provides for a Truth in Lending Disclosure closing. Now, if one takes this lesser amount of money form that appears, in part, as follows: over the same 30 years at the same rate of interest, then the amount it costs to borrow the money increases. This is ANNUAL FINANCE AMOUNT TOTAL OF PERCENTAGE CHARGE FINANCED PAYMENTS because the borrowers are now “borrowing” less money RATE The dollar The amount of The amount you over the same period of time. The APR shows the cost of The cost of your amount the credit provided will have paid after credit as a credit will cost to you or on you have made all borrowing the lesser amount of money. yearly rate. you. your behalf. payments as It is interesting to note the two different points at 5.07% $110,367.50 $256,683.10 scheduled. $367,050.00 which APR comes into play for the customers borrowing money from a bank. The first introduction to APR is when Here is a brief explanation of how these numbers are potential borrowers walk into Bank A and ask how much computed: it will cost to borrow $200,000. Truth in Lending requires • Annual Percentage Rate is the percentage a borrow- that they get the same answer at Banks A, B and C. If each er can use to comparison shop. We will discuss this of the banks subtracts the same closing costs from the calculation in the next section. loan amount to show the customers how much it will cost • Finance charge is equal to total payments minus the to borrow the money, then each bank is disclosing the amount financed. This is the total interest the bor- borrowing rate based upon an agreed rate, the APR. At rower would pay over the life of the loan. (An attor- this stage in the process, the purpose of the law is to pro- ney can explain to the client that if the borrower vide potential customers with consistent information. pays a little more than the monthly payment, sub- The problem with this concept is that the banks do not stantial savings can be generated.) consistently subtract the same closing costs when making • Amount financed is always less than the loan their calculation, thereby defeating the purpose of “com- amount. As discussed in the section on “APR and parison shopping” using the APR. Different Categories of Loan Related Costs,” banks Truth in Lending does not provide a complete list of deduct certain costs from the original loan amount what fees must be included in the APR calculation, but to calculate the amount financed. These costs reflect instead only provides a general overview. This means a combination of costs banks are legally required to that each lender has some latitude to decide which fees to reflect in the APR calculation, as well as other loan- include in the APR. The result is that on the same loan related costs that banks may choose to reflect in amount, different lenders can possibly calculate a differ- their APR figure. ent APR. • Total payments are calculated by multiplying the monthly payments by the number of months in the APR and Different Categories of term of the loan. Loan-Related Costs4 Most clients immediately notice that the “Annual APR could be used for comparison shopping only if Percentage Rate” does not match the interest rate on the every bank used the same costs to calculate the actual face of their note. Nor does the “Amount Financed” credit available. Pursuant to Truth in Lending, several match their loan amount. Why is the Annual Percentage loan-related fees and costs are divided into three major Rate different than the rate of interest? And why is the categories. The regulations allow some flexibility to lend- Amount Financed different from the amount borrowed? ing institutions to calculate the net amount disbursed In order to understand these apparent disparities in the (and therefore, the APR). The first category includes the numbers, we use some actual figures, presented in Tables following costs, which are usually reflected in the APR by 1 and 2. most lenders: • Discount and origination points; How Is APR Calculated? • Prepaid interest (lender can choose to include inter- To determine APR, one must first determine the amount est for anywhere from 1 to 30 days) financed. This amount is not necessarily the original loan • Private mortgage insurance; amount, but rather is the original loan amount minus • Document preparation fee; certain closing costs. In the example, shown in the above • Loan processing and underwriting fees. chart, the clients “borrowed” $260,000, the bank subtract- If one takes the original loan amount of $260,000 and ed two closing costs: the loan level price adjustment of deducts the total required fees of $3,316.90, the actual 0.875%, or $2,275, and interest on the loan (STI) until amount available at the closing is $256,683.10. This is the the start of the note in the amount of $1041.90. These amount financed/disbursed or the actual amount of cred- two “closing costs” are deducted by the bank from the it available to the client “at the table.” The monthly pay- original loan amount, making the amount financed ment of $2,039.17 is based on the full loan amount of $256,683.10. One will note that the amount financed is $260,000. When these monthly payments (in their present actually the amount the client has left to spend at the value terms) are related to the actual amount disbursed of
NYSBA Journal | June 2006 | 31 $256,683.10 (always lower than the amount on the note) The true cost (which is never disclosed by the lender) should one arrives at an APR of 5.07%. also incorporate all expenses paid to third parties. Because The second category of costs includes those costs that the lenders encourage borrowers to use the services approved bank has the option of including in its calculation of APR. by the lender, such as appraisal and title insurance, this APR The only cost in this category is the loan application fee. of 5.28% is the true effective cost to the borrower. Even if the closing attorney is able to explain how APR is calculated and how it can be used for comparison shop- If the borrower chooses to prepay the ping, it still may not be the actual rate at which the bor- loan, whether to refinance or as a rower would pay if the loan is prepaid before maturity. result of the due-on-sale clause, According to the terms of the note, there is no penalty for prepayment. The current law does not require the lending prior to maturity, the actual cost of institution to disclose to the borrower that their actual cost the loan will be higher than the APR. of the loan will be the same as the APR only if the loan is held to maturity. If the borrower chooses to prepay the loan, whether to refinance or as a result of the due-on-sale The last category refers to expenses that are necessary clause, prior to maturity, the actual cost of the loan will be to close the loan, but generally paid to third parties. These higher than the APR. The actual cost is negatively related are never included in the APR estimates and include: to the length of time for which the loan is held. A shorter title/abstract fees; escrow; attorney fees; notary fees; time period will lead to higher costs because the addition- home inspection; recording; transfer taxes; credit reports; al loan-related costs will be spread over fewer years. Table appraisals; and credit life insurance. Table 2 displays 3 shows the actual cost of the loan if the borrower choos- third-party fees associated with the loan example. es to sell the house after five years, triggering a “due on In the following discussion, we will explain how the sale” clause or decides to refinance to take advantage of a APR varies based on an individual lender’s interpretation lower interest rate. The percentage increase in APR ranges of the rules and intent of the Truth in Lending laws. from 0.06% to 0.27%. Thus, a borrower who is likely to As discussed above, the lender does have the option of prepay needs to base that decision on the actual cost. including or not including the loan application fee in its Based on the above discussion, a borrower should be calculations. In addition to this option, however, lenders made aware of the fact that the disclosed APR can be used are inconsistent in calculating the fees that they are for comparison shopping only if (1) every bank uniform- required to deduct in calculating APR. ly deducts the same set of costs, and (2) the loan is not For example, the legislation in its current form allows expected to be prepaid. the lending institutions to calculate prepaid interest based on one to 30 days. At the time of the loan application, the Variable Rate Mortgages (VRM) bank may not know if the loan is going to close on the If the mortgage involves a variable rate, greater caution first, 15th or 30th of the month, all dates that affect the pre- must be exercised. Lenders often offer a “teaser” – an paid interest calculation. Many banks calculate the pre- extremely low interest rate for the initial period, after paid interest based on the maximum number of days in which the interest rate will most likely increase based on the month. In our example, the APR of 5.07% is based on the market. Because the lender cannot and should not be interest for 30 days. But the bank also has the option of cal- allowed to speculate the direction of future interest rates, culating the APR using only one day of prepaid interest. the disclosed APR for a VRM is meaningless. The calcula- In that case, the same loan would reflect an APR of 5.01%. tions of APR for a VRM require the lender to consider (These calculations are summarized in Table 3.) Therefore, only the agreed-upon index at the time of origination if the borrower is not aware of how many days’ interest is plus the margin and assume that this rate would hold reflected in the APR, the borrower may end up making a over the term of the mortgage. poor choice based on the disclosure of APR. In addition, even if the closing attorney or borrower The impact of incorporating optional fees could also raises questions about the APR calculation, under many mislead the borrower when comparison shopping. Going circumstances the loan officer is unable to offer any spe- back to our previous example, suppose that the lender cific explanation. Most financial institutions use software charges a loan application fee of $450. The lender may in which the loan officer is only required to enter the choose to disclose an APR based on required and option- information pre-formatted into tables without necessarily al fees. The total bank costs on our $260,000 loan are understanding how the calculations are made. $3,766.90, which in turn, increase the APR to 5.10%. Furthermore, the APR could go up by almost 0.09% if Survey Results the financial institution includes charges that they are not During the period of February to April 2005, we distrib- legally required to incorporate in the APR calculation. uted a total of 37 surveys to practicing attorneys and pro-
32 | June 2006 | NYSBA Journal Table 1. Required Fees Table 3. Variations in APR as a Result of Fees (Fees that are always included in the APR calculation.) When calculation includes required fees only Discount and Origination Points $2,275.00 (with 30 days prepaid interest). 5.07% Prepaid Interest $1041.90 (30 days) Actual cost if the mortgage is paid off or Private Mortgage Insurance NA refinanced after 5 years. 5.20% Document Preparation Fee NA When calculation includes required fees only Total $3,316.90 (with 1 day prepaid interest). 5.01% Actual cost if the mortgage is paid off or Table 2. Third Party Costs refinanced after 5 years. 5.11% When calculation includes required and Title Insurance $1,142.55 optional fees. 5.10% Attorney Fee $625.00 Actual cost if the mortgage is paid off or Home Inspection Report $0 refinanced after 5 years. 5.25% Recording Fee $75.00 Transfer Tax $0 When calculation includes required and Credit Report $0 optional fees and other fees. 5.28% Actual cost if the mortgage is paid off or Appraisal Fees $300.00 refinanced after 5 years. 5.55% Abstract $200.00 Mortgage Cancellation Fee $75.00 Commitment Fee $565.00 Total $2,982.55 fessors of finance throughout New York State. We both borrowers and real estate attorneys, and this stems received responses from 19 attorneys and one out of from several causes: seven finance professors. The survey instrument con- 1. Flexible regulatory requirements and lenders’ inter- tained 13 questions related to APR calculations and cov- pretation of the data; ered a range of questions such as the specific costs incor- 2. Third-party charges a borrower is required to pay in porated into the APR calculation and the participants’ connection with the purchase of a home, whether or knowledge of and ability to explain to clients the rele- not a mortgage is executed; vance of APR to a real estate mortgage decision. 3. Subtle lender pressure on the borrower to use the Out of the 19 attorney respondents, 16 stated that they services offered by the lender (e.g., title search and are required to personally explain the documents to their appraisal); these services are often more expensive clients. Although all of them indicated that they are famil- compared to the going market rate; additionally, iar with the Truth in Lending laws, five claimed to have a these costs are not reflected in the APR calculation; high level of understanding. 4. The APR for mortgages that are not classified as Yet, concerning their ability to identify various cate- fixed-rate mortgages is meaningless; gories of costs associated with the APR, 50% stated they 5. Predicting the borrower’s future behavior in terms of were familiar with them but a majority of the practicing prepayment or the loan due to sale or refinancing. attorneys were unable to correctly pick out which costs To make Truth in Lending helpful, consideration are included in determining APR. should be given to modifying the law so as to make the With regard to the effect of prepayment of the loan on determination of APR more consistent. As one Web site the APR, only 12 selected the correct answer. Eight succinctly stated, “The problem is that the truth has gone respondents indicated that their clients never asked any out of the Truth in Lending Act.”5 The current process is questions about the APR in the closing. quite confusing to the attorneys involved in the closing, Based on the survey data, it is suggested that there is the borrower, and, surprisingly, to the lending industry. much room for improvement in Truth in Lending to Until the law is improved, closing attorneys should take make the disclosures more meaningful to borrowers. the time to better understand these mechanics and advise Practicing lawyers would also do well to review the their clients as best they can. ■ components of the APR in order to better explain them to clients. 1. Truth in Lending Act, Pub. L. No. 90-321, 82 Stat. 146. 2. R. Link, Annotation, What Constitutes Violation of Requirements of Truth in Lending Act (15 U.S.C.A. § 1601 et. seq.) Concerning Disclosure of Information in Conclusion Credit Transactions – Civil Cases, 113 A.L.R. Fed. 197 (1993–2004). We have attempted to determine whether borrowers can 3. Id. utilize the disclosed APR to comparison shop among 4. Various fees associated with the loan used in our example are summarized loans, and whether the APR represents the true cost of the in Tables 2 and 3. loan. We concluded that the APR can be misleading to 5.
NYSBA Journal | June 2006 | 33 JONATHAN A. DACHS, a member of the firm of Shayne, Dachs, Stanisci, Corker & Sauer, in Mineola, New York, is the author of “Uninsured and Underinsured Motorist Protection,” 4 New York Insurance Law, Chapter 51 (LexisNexis/Matthew Bender), and of a chapter on UM/UIM and SUM (Pre- and Post-Regulation 35-D), in Weitz on Automobile Litigation: The No-Fault Handbook (New York State Trial Lawyers Institute). A graduate of Columbia University, he received his law degree from New York University Law School.
2005 Update on Uninsured, Underinsured and Supplementary Uninsured Motorist Law – Part I By Jonathan A. Dachs
t is my distinct pleasure to report once again on devel- and relatives of either the named insured or spouse. opments in uninsured motorist (UM), underinsured The concept of residence has two components – physi- Imotorist (UIM), and supplementary uninsured cal presence and intent to remain. The issue of residen- motorist (SUM) law from the past calendar year. As has cy is often complicated by non-traditional living been the case in each of the past 12 years of my reports,1 arrangements, where the question arises as to whether 2005 was another busy and significant year in this ever- the claimant actually resided together with the policy- changing and highly complex area of the law. Indeed, holder. there were so many interesting and important decisions In Biundo v. New York Central Mutual,2 the court held in 2005 that it is necessary to present this summary in two that where the testimony at a framed issue hearing parts. This month’s installment addresses general issues demonstrated that the claimant and her husband contin- pertinent to all of these coverages and claims. In Part II, ued to reside with her parents until the extensive renova- which will appear in the next issue of the Journal, I will tions to their newly purchased residence were completed, address specific issues that affect these categories sepa- the determination that the claimant was a resident of her rately, and review several additional general issues as parents’ household on the date of the accident and, there- well. fore, an insured person under her parents’ SUM endorse- ment, was supported by a fair interpretation of the evi- Insured Persons – “Residents” dence and would not be disturbed. The claimant actually The definition of an “insured” under the UM and SUM resided in the insured household with some degree of endorsements includes a relative of the named insured, permanence and with the intention to remain for an and, while residents of the same household, the spouse indefinite period of time.
34 | June 2006 | NYSBA Journal The “hot topic” in 2005 was In State Farm Mutual Automobile Ins. Co. v. Nater,3 the whether the UM/SUM insurer injured claimant was in the process of getting a divorce from the policyholder, but lived in a separate apartment must demonstrate prejudice before within the same jointly owned two-family home, at the it could assert and rely upon the time she was struck as a pedestrian by an uninsured defense of noncompliance with motorcycle. Despite the fact that they lived in separate parts of the house, they continued to share all household the notice provisions of its policy. expenses, just the way they had done when they still lived together in one of the two apartments. They contin- ued to share the use of the family car. After the accident, were not covered by an uninsured motorist policy. In this the husband/insured filed an insurance claim under his case, however, the court held that the insurer failed to policy on his wife’s behalf. Under these circumstances, demonstrate, prima facie, that the offending driver inten- the court held that tionally struck the claimant, insofar as it relied upon the details of their financial and living arrangements “mere hearsay” and “failed to submit admissible proof of during the pendency of the divorce proceeding sup- the incident’s intentional nature.” Thus, the court denied port the Supreme Court’s findings of fact that the the insurer’s motion for summary judgment declaring spouses continued to maintain a common household that the incident was not covered under the subject poli- and reasonably anticipated that [the claimant] would cy. Interestingly, the court also denied the claimant’s continue to be afforded coverage under the husband’s cross-motion for summary judgment for the opposite automobile insurance policy, particularly since they declaration, i.e., that the insurer was obligated to provide 4 still shared the use of the same car. coverage for the injuries sustained in the incident because Thus, the court affirmed the denial of the insurer’s peti- it, too, was not supported by admissible evidence. tion to stay arbitration. Although the claimant relied upon a police report to establish the accidental nature of the incident, there was “Accidents” no indication that the reporting officer witnessed the inci- By the express terms of the UM/SUM endorsements, cov- dent, or that eyewitnesses had a business duty to report erage is not operative unless damages are caused by an the facts to the officer. Thus, that portion of the report “accident.” The legislative intent behind the UM/SUM relied upon by the claimant constituted inadmissible statutes was to protect innocent victims of motor vehicle hearsay. accidents, and not to protect all victims of motor vehicles, In Allstate Ins. Co. v. Ganesh,10 the court noted that if regardless of how the vehicle may have been used as an the tortfeasor’s insurer lawfully disclaimed liability cov- instrument of injury.5 erage because the collision was intentional or connected In Allstate Ins. Co. v. Massre,6 the court granted the to fraudulent conduct and thus excluded from coverage, Petition to Stay Arbitration of an uninsured motorist then the same intentional or fraudulent conduct would claim based upon the determination that the collision was also void uninsured motorist benefits for the claimant intentional and the claimant’s injuries were, therefore, not under his own policy, even if he were an “innocent vic- the result of an accident. tim.” In this case, however, the court rejected the insurer’s In Eagle Ins. Co. v. Davis,7 the court observed that “[a] proof of an intentional, staged event as “vague, concluso- collision caused in the furtherance of an insurance fraud ry theories or speculation,” and thus granted the UM scheme is not a covered accident under a policy of insur- insurer’s petition to stay arbitration. ance.” In GEICO v. Robbins,8 the court held that there was ample evidence to support the hearing officer’s finding Claimant/Insured’s Duty to Provide that the “accident” was staged in perpetration of a fraud- Timely Notice of Claim ulent insurance scheme, and, therefore, not covered. UM, UIM and SUM endorsements require the claimant, In Davis, the court added that “[w]hen a petition rais- as a condition precedent to the right to apply for benefits, es an issue of fact as to whether the automobile collision to give timely notice to the insurer of an intention to make giving rise to the underlying request for arbitration was a claim. Although the mandatory UM endorsement deliberate or intentional, the issue of fraud is subsumed requires such notice to be given “within ninety days or as under the coverage issue. Evidence of such fraud should soon as practicable,” Regulation 35-D’s SUM endorse- be considered in determining the broader coverage issue” ment requires simply that notice be given “as soon as (citation omitted). practicable.” A failure to satisfy the notice requirement In State Farm Mutual Auto. Ins. Co. v. Langan,9 the court vitiates the policy. The “hot topic” in 2005 was whether observed that if the claimant’s injuries were the result of the UM/SUM insurer must demonstrate prejudice before an intentional assault (or an intentional homicide), then it could assert and rely upon the defense of noncompli- they were not the result of an accident and, therefore, ance with the notice provisions of its policy.
NYSBA Journal | June 2006 | 35 The Court of Appeals definitively spoke to the issue of In Brennan Bros. Co., Inc. v. Lumbermen’s Mutual the “no-prejudice” rule in two cases decided on the same Casualty Co.,14 a non-SUM case, the Appellate Division day in April 2005. In Argo Corp. v. Greater New York Mutual reiterated the general rule that 11 Ins. Co., the Court held that the general “no-prejudice” as a condition precedent to an insurer’s obligation to rule applicable to liability insurance policies was not defend or indemnify, the insured must provide notice abrogated by its earlier decision in Brandon v. Nationwide of any occurrence to the insurer within a reasonable Mutual Ins. Co.,12 in which it had held that the carrier period of time. Failure to comply with the notice must show prejudice before disclaiming based on late requirement vitiates coverage unless the insured had a notice of a lawsuit in the SUM context. The Court further reasonable belief of nonliabilty. The insured bears the held that Brandon should not be extended to cases where burden of proof of demonstrating that such belief was 15 the carrier received unreasonably late notice of the claim. reasonable. Insofar as the “rationale of the no-prejudice rule is clear- In Gallante Properties, Inc. v. State National Ins. Co.,16 ly applicable to a late notice of lawsuit under a liability the court noted that “lack of notice that an accident insurance policy,” the Court held that a primary (liability) occurred constitutes a legitimate excuse for failing to insurer need not demonstrate prejudice to disclaim cover- notify the carrier.” age based upon a late notice of lawsuit. The interpretation of the phrase “as soon as practica- However, in Rekemeyer v. State Farm Mutual Automobile ble” continued, as always, to be a topic of substantial liti- Ins. Co.,13 the Court held that the “no-prejudice” rule gation in 2005. should be relaxed in SUM cases and, thus, “where an In Rekemeyer v. State Farm Mutual Automobile Ins. Co.,17 insured previously gives timely notice of the accident, the the Appellate Division held that notice of an underin- [SUM] carrier must establish that it is prejudiced by a late sured motorist claim given after a delay of one year was notice of SUM claim before it may properly disclaim cov- untimely where the claimant commenced a lawsuit in erage.” April 1999 seeking $1 million in damages, which in and of The Court explained in Rekemeyer, that although the itself evidenced the perceived serious nature of her “no-prejudice” rule has sometimes been characterized injuries. The court noted that she had asserted as early as as the “traditional rule,” it is actually a limited excep- July 1999 that she was suffering from severe and perma- tion to two established contract principles: “(1) that nent injuries to her left arm and cervical spine, including ordinarily one seeking to escape the obligation to per- a herniated paracentral disc “causing severe neck, left form under a contract must demonstrate a material shoulder and arm pain with weakness and loss of mobil-
The interpretation of the phrase “as soon as practicable” continued, as always, to be a topic of substantial litigation in 2005. breach or prejudice; and (2) that a contractual duty ity,” and knew as early as September 1999 that the tortfea- [requiring strict compliance] ordinarily will not be con- sor’s policy provided less bodily injury coverage than her strued as a condition precedent absent clear language own policy; therefore, she knew that the tortfeasor was showing that the parties intended to make it a condi- “underinsured,” yet waited an additional six months tion” (citation omitted). The idea behind strict compli- before providing notice of intent to make an underin- ance with the notice provision in an insurance contract sured motorist claim. was to protect the carrier against fraud or collusion. In affirming that portion of the Appellate Division’s Under the circumstances of the Rekemeyer case, where order which held the SUM notice untimely, the Court of the plaintiff gave timely notice of the accident and Appeals noted: made a claim for no-fault benefits soon thereafter, the Although plaintiff had disabling injuries prior to the Court found that notice was sufficient to promote the accident that may have interfered with her assessment valid policy objective of curbing fraud or collusion. of the extent of new injuries, she stated in her bill of Under these circumstances, “application of a rule that particulars in the underlying personal injury action – contravenes general contract principles is not justified.” drafted eight months before plaintiff notified defen- The Court further concluded that the insurer should dant of her claim for SUM coverage – that she had suf- bear the burden of establishing prejudice “because it fered serious and permanent injuries as a result of the has the relevant information about its own claims-han- accident. The record thus belies any claim that she was 18 dling procedures and because the alternative approach unaware that her injuries were serious. would saddle the policyholder with the task of proving As noted above, the Court of Appeals then modified the a negative.” Appellate Division order by further holding that notwith-
36 | June 2006 | NYSBA Journal standing the untimeliness of the SUM notice, the insurer it does not serve to cut off the right of an injured was required to show prejudice resultant therefrom in claimant to make a claim as against the insurer. order to disclaim coverage. Insurance Law § 3420(a)(2) expressly permits an injured party to recover any unsatisfied judgment In Figueroa v. Utica National Ins. Group,19 the court held against an insured, directly from the insurer. Insurance that a delay of two months after claimants “should have Law § 3420(a)(3), in effect, requires insurance compa- realized that there was a reasonable possibility of their nies to accept notice claims from injured parties. As policy’s involvement when the insurance investigator was made clear more than 40 years ago, “[t]he statute visited their home to obtain a statement regarding the having granted the injured person an independent accident” was unreasonable as a matter of law. “A duty to right to give notice and to recover thereafter, he is not give an insurer notice arises ‘when, from the information to be charged vicariously with the insured’s delay.”25 available relative to the accident, an insured could glean “The injured person’s rights must be judged by the a reasonable possibility of their policy’s involvement.’”20 prospects for giving notice that were afforded to him, not In State Farm Mutual v. Kathehis,21 the court held that by those available to the insured. What is reasonably pos- the claimant’s failure to notify the SUM carrier of a poten- sible for the insured may not be reasonably possible for tial uninsured motorist claim for more than two years, the person he has injured. The passage of time does not of only because of a lack of a police report with the offend- itself make delay unreasonable.”26 “When the injured ing vehicle’s license number, represents a lack of dili- party has pursued his rights with as much diligence ‘as gence and “forecloses a finding that notice had been filed was reasonably possible’ the statute shifts the risk of the as soon as practicable.” As stated by the Appellate insured’s delay to the compensated risk-taker.”27 Thus, Division: “Respondent’s inability to discover the police the pertinent inquiry is whether the plaintiff pursued his report or otherwise learn the identity of the offending rights with as much diligence “as was reasonably possi- vehicle’s owner or driver ‘should have alerted him to the ble.”28 fact that he had a potential uninsured motorist claim’ In MTO Associates, Limited Partnership v. Republic much sooner than the two and a half years it took him to Franklin Ins. Co.,29 the court stated that give petitioner notice thereof.” [i]n general, an insurance broker is considered the On the other hand, in 426–428 West 46th Street Owners, agent of the insured, not the insurance company, and Inc. v. Greater New York Mutual Ins. Co.,22 the court found notice to the broker is not deemed notice to the insur- ance company. However, “a broker will be held to that there was uncontradicted evidence presented by the have acted as the insurer’s agent where there is some plaintiff that, although it knew on August 27, 2002, that evidence of ‘action on the insurer’s part, or facts from its tenant had been found lying incapacitated inside her which a general authority to represent the insurer may apartment, and was taken by ambulance to the hospital, be inferred.’”30 it lacked knowledge that she had sustained severe In AIU Ins. Co. v. Henry,31 the court held that the sub- injuries from falling down stairs inside her apartment. mission of an application for no-fault benefits does not The court also found that the tenant had given the plain- suffice to constitute notice of a claim for uninsured tiff no information that would have led it to believe that motorist benefits. she held it responsible for her injuries. The court thus In Banuchis v. GEICO,32 the court held that service held that the insurer failed to demonstrate that the plain- upon the insurer’s in-house legal staff of a letter notify- tiff’s delay in notifying the insurer of the incident until ing it of a potential excess coverage claim was sufficient June 18, 2003 (almost 10 months later), shortly after the to constitute notice of the claim. As noted by the court, tenant commenced a lawsuit against the plaintiff, was the attorneys that were served were employees of unreasonable as a matter of law. GEICO and handled many of the claims submitted to it. In New York Central Mutual Ins. Co. v. Davalos,23 the Moreover, GEICO’s policy failed to prescribe any spe- court held that a letter making a claim pursuant to an cific manner of notification of a claim or to designate a uninsured motorist endorsement, which was sent at a particular individual or department to which such time when, in fact, the tortfeasor’s vehicle was actually notice should be directed. Under the circumstances of insured, was premature and, thus, did not satisfy the this case, the court inferred a general authority on the notice requirement of the policy. Accordingly, where the part of the attorney-employee to receive notice on claimant then waited nearly two years to notify the SUM behalf of GEICO in the ordinary course of his or her carrier that the tortfeasor’s carrier had disclaimed cover- employment. age, this notice was deemed untimely and arbitration was permanently stayed. Discovery In Becker v. Colonial Cooperative Ins. Co.,24 the court The UM and SUM endorsements also contain provisions held that requiring, upon request, a statement under oath, exami- [w]hile an insured’s failure to provide notice may jus- nation under oath, physical examinations, authorizations tify a disclaimer vis-à-vis the insurer and the insured, and medical reports and records. The provision of each
NYSBA Journal | June 2006 | 37 type of discovery, if requested, is a condition precedent to In AIU Ins. Co. v. Orellana,40 the court held that the recovery. issue of whether there was physical contact between the In New York Central Mutual Fire Ins. Co. v. Caddigan,33 claimant’s vehicle and a hit-and-run vehicle related to the court reiterated the general rule that pre-arbitration whether a condition of the insurance contract was com- discovery must be timely requested or it will be preclud- plied with, and not whether the parties agreed to arbi- ed. trate and, therefore, had to be raised by petition to stay In Connecticut Indemnity Ins. Co. v. LaPerla,34 the court arbitration within the 20-day time limit prescribed by denied the insurer’s request for a stay of arbitration pend- CPLR 7503(c). ing discovery where the insurer “had ample time . . . The court noted in State Farm Mutual v. Kathehis41 within which to seek discovery of the respondent insured that when the 20th day after receipt of the Demand for as provided for in the insurance policy, and unjustifiably Arbitration is a Sunday (or Saturday or public holiday), failed to utilize that opportunity” to obtain the discovery according to General Construction Law § 25(a), the Petition it sought in its petition. to Stay Arbitration may be filed the next business day. In Gibson v. Encompass Ins. Co.,35 the court affirmed the In Allstate Ins. Co. v. Lichtenstein,42 the claimant/ denial of the insurer’s motion to strike the plaintiff’s insured served a notice of intent to arbitrate an underin- notice to produce the insurer’s file regarding plaintiff’s sured motorist claim based on an accident with an under- SUM claim, holding that “the sought-after disclosure was insured vehicle. The insurer did not seek a stay of arbitra- ‘material and necessary’ for the prosecution of plaintiff’s tion in response to that notice. Subsequently, the action,” and that the disclosure request was not “palpably claimant/insured served a demand for arbitration, which improper.” Moreover, the insurer failed to meet its bur- specified the nature of the dispute as a hit-and-run, i.e., an den of establishing that the file contained material that uninsured motorist claim. The insurer timely moved to was privileged or otherwise exempt from discovery. The stay arbitration within 20 days of receipt of this second court further allowed the plaintiff to take the deposition demand. The Supreme Court denied the petition on the of the insurer’s underinsurance claim representative, ground that it was not brought within 20 days of the first who possessed “material and necessary information notice of intent to arbitrate. On appeal, the Second regarding the claim.” Department noted that although the petition failed to establish that there were threshold issues concerning the Petitions to Stay Arbitration: claim for uninsured motorist benefits based on the Arbitration vs. Litigation alleged hit-and-run accident, such failure was excused by Under Regulation 35-D and its prescribed SUM endorse- the confusion created by the myriad descriptions of the ment, the insured has the choice of proceeding to court or nature of the claim for which arbitration was sought in to arbitration to resolve disputes in cases involving cover- the various notices served by the claimant/insured. age in excess of the statutory minimums of $25,000 per Moreover, the claimant/insured’s inaccurate specifi- person/$50,000 per accident. Cases involving 25/50 cov- cation of the basis for his demand for arbitration in the erage must be submitted to arbitration and cannot be liti- initial Notice of Intent made “it impossible [for the insur- gated in court. er] to determine if there [was] any basis to move to stay A recent example of an SUM lawsuit is Murray v. arbitration within the 20 day period” and, therefore, “did Hartford Ins. Co.36 In that case, the court considered the not serve to preclude [the insurer] from seeking a stay issue of whether the plaintiff sustained a “serious injury” more than 20 days after its receipt.” Accordingly, the as defined in the No-Fault Law37 – a condition precedent court held that the denial of the petition should have been to a valid UM/SUM claim – and rejected the claim on the without prejudice to renewal, upon papers addressing basis of a failure to meet the “serious injury” threshold. In any basis the insurer may have had for staying arbitration Smetanick v. Erie Ins. Group,38 an action to recover under- of what was then identified as an uninsured motorist insured motorist benefits, a jury verdict on damages in claim based on an alleged hit-and-run accident. favor of the plaintiff was upheld. Burden of Proof Filing and Service An insurer seeking to stay arbitration of an uninsured CPLR 7503(c) provides, in pertinent part, that “[a]n appli- motorist claim has the burden of establishing that the cation to stay arbitration must be made by the party offending vehicle was insured at the time of the accident. served within twenty days after service upon him of the Once a prima facie case of coverage is established, the bur- notice [of intention to arbitrate] or demand [for arbitra- den shifts to the opposing party to come forward with tion], or he shall be so precluded.” The 20-day time limit evidence to the contrary.43 is jurisdictional and, absent special circumstances, courts In New York Central Mutual Fire Ins. Co. v. Licata,44 the have no jurisdiction to consider an untimely applica- court reaffirmed that a prima facie showing of the exis- tion.39 tence of insurance coverage can be made by producing a
38 | June 2006 | NYSBA Journal police accident report containing an insurance code des- mium, and that the insurer’s proof that it received pay- ignation for an insurer, indicating coverage for the ment after its due date was not credible or compelling. alleged offending vehicle. The court noted in Allstate Ins. Co. v. Albino50 that In Allstate Ins. Co. v. Esposito,45 the court held that in where a case is tried without a jury, the appellate court’s the absence of any proof undermining the validity of the power to review the evidence is as broad as that of the other insurer’s disclaimer of coverage, the disclaimer is trial court, bearing in mind, of course, that effective and results in a valid SUM claim. due regard must be given to the discretion of the trial The court noted in Allstate Ins. Co. v. Reilly46 that a judge, who was in a position to assess the evidence “registration expansion search” would be sufficient to and the credibility of the witnesses. . . . The trial court’s rebut a showing of insurance coverage contained on a determination will generally not be disturbed on police accident report. Moreover, evidence that a simple appeal unless it is obvious that the conclusions could inquiry to the purported insurer for the tortfeasor elicit- not have been reached under any fair interpretation of ed a denial of coverage, would also be sufficient to rebut the evidence. the police accident report and force a framed issue hear- ing on the issue of coverage. The petitioning insurer, The court held that in the absence of bearing the burden of proof, then would be constrained any proof undermining the validity to join the purported insurer as a necessary party and prove that it insured the offending vehicle on the date of of the other insurer’s disclaimer of the accident. coverage, the disclaimer is effective In Highlands Ins. Co. v. Baez,47 the court held that the petitioner had made a prima facie showing of coverage on and results in a valid SUM claim. the offending vehicle with a Department of Motor Vehicles FS-25 form listing the respondent as the insurer. In this case, the court opined that the trial judge The respondent insurer attempted to rebut this showing “appeared to prejudge the case” before the petitioner had with the testimony of an employee to the effect that a com- the opportunity to adduce any evidence. The court also puter search of the insurer’s records, using the policy criticized “the impatient manner in which the court con- number and name of the owner listed on the police report, ducted the proceeding.” Thus, the court reversed the failed to turn up a policy insuring a person by that name decision below and remitted the matter for a new hearing and several variants thereof. The court held that “[t]his before a different judge. was less than the ‘exhaustive search’ required to shift the burden back to the petitioner to produce additional evi- Waiver of Right to Appeal dence of coverage.” Specifically, the court observed that In Basil Castrovinci Associates, Inc. v. District 65 Pension 51 [n]o reason appears why [respondent] did not also Plan, the court held, inter alia, that the plaintiffs waived search its records for the owner’s address and tele- their contentions in support of their appeal from the phone number, or the offending vehicle’s model type denial of their petition to stay arbitration “by participat- and license plate number, all information that was pro- ing in the arbitration process before filing a petition for vided in the police report and typically provided in a stay.” insurance applications and entered into [respondent’s] computer. Nor did [respondent] attempt to locate the Default – Limits of Coverage owner by telephone or letter or compel her appearance In Kleynshvag v. GAN Ins. Co.,52 the alleged insurer for the at the hearing (citations omitted). offending vehicle was joined as a party respondent to a The court held in AIU Ins. Co. v. Nunez48 that the peti- proceeding to stay arbitration of a claim for uninsured tioner made a prima facie showing of entitlement to a stay motorist benefits. The insurer did not appear in that pro- by submitting the police accident report and the DMV ceeding and, as a result, a judgment was entered in which registration record showing coverage for the offending the UM carrier’s petition was granted on the ground that vehicle with the respondent insurer. However, the court the tortfeasor’s insurer insured the offending vehicle. The held that the papers submitted in opposition raised issues finding of coverage was rendered on the insurer’s default of fact as to whether the subject collision was “deliberate in the stay proceeding. or intentional” and/or whether the claimants participat- Thereafter, the plaintiff commenced an action against ed in staging the collision and, thus, remitted the matter the tortfeasors. The defendants’ insurer refused to accept for a framed issue hearing on those issues. service of the summons and complaint, contending that it In Progressive Northwestern Ins. Co. v. Galluzzo,49 the did not insure the defendants. One of the defendants court held that the respondent insurer failed to demon- defaulted and, upon inquest, a judgment was entered strate, through credible evidence, that the policy it issued against him in the sum of $125,000. A copy of that judg- had been effectively canceled due to non-receipt of pre- ment with notice of entry was served upon the insurer.
NYSBA Journal | June 2006 | 39 Shortly thereafter, the plaintiff brought an action against The court concluded that the insurer had the burden of the insurer, pursuant to Insurance Law § 3420(a)(2), to proving the limit of the relevant coverage under its poli- recover the amount of the unsatisfied judgment. In its cy and rejected outright the insurer’s contention that answer to the complaint in that action, the insurer assert- since it did not issue a policy at all, any liability on its part ed as an affirmative defense that it did not issue a policy arose by operation of law and should be limited to the covering the subject accident. However, in motion statutory minimum in effect at the time of the accident. papers, the insurer conceded that its search of its records Since the insurer did not meet its burden of showing that was done by name, reverse name, and address, and that its liability should be limited to any amount less than the its records were not maintained in a fashion that would full amount of the plaintiff’s judgment, the court held allow a search by vehicle identification number (VIN) or that the insurer was liable for the full amount of the judg- state registration number. ment.
Since the insurer did not meet its burden of showing that its liability should be limited to any amount less than the full amount of the plaintiff’s judgment, the court held that the insurer was liable for the full amount of the judgment.
Five years after the initial order granting the petition In Allstate Ins. Co. v. Hayes,53 the court held that the to stay arbitration and finding coverage, the insurer affirmation of the defaulting respondent’s attorney, moved to vacate that order. That motion was denied. explaining his failure to appear on the fifth adjourned The Supreme Court then granted the plaintiff’s motion date of the hearing, after having appeared on the four for summary judgment and denied the insurer’s cross- previous dates, was sufficient to establish a reasonable motion for summary judgment, but held that the insur- excuse for the default. Insofar as counsel also made out a er’s liability was limited to $25,000, rather than the full meritorious claim, the default was vacated. $125,000 of the judgment. The Supreme Court explained that it was “constrained” by the earlier finding that Collateral Estoppel there was a policy applicable at the time of the accident, In Goepel v. City of New York,54 the court held that the indi- but that faced with the task of “ascertain[ing] the terms vidual defendant in the personal injury action, who of a policy which, in fact, does not appear to exist,” lim- brought a prior underinsured motorist arbitration pro- ited the insurer’s liability to the statutory minimum lim- ceeding and fully participated therein, was collaterally its set forth in Vehicle & Traffic Law § 311(4)(a), i.e., estopped from contesting liability in the action. However, $25,000. the court further held that because the defendant City of On appeal, the Appellate Division increased the New York, which was not a party to the defendant’s arbi- amount of the insurer’s liability to $125,000 – the full tration proceeding, had no knowledge of that proceeding amount of the underlying judgment against its and had no incentive (other than issue preclusion) to “insureds,” with interest and costs, totaling $162,252.50. become involved, it could not be collaterally estopped The court found that the plaintiff established the exis- from contesting the defendant’s liability merely because tence of a policy by showing that the insurer was made a the individual defendant was operating a City vehicle in party respondent to the proceeding to stay arbitration the course of his employment. “and knowingly chose not to participate therein.” Under The judicial hearing officer (JHO) in Melendez v. Budget the circumstances, the court held that the insurer was col- Rent-A-Car,55 ruling on the issue of whether the offending laterally estopped from litigating the issue of coverage, vehicle belonged to an unidentified, hit-and-run driver, even though that issue was initially determined on its credited the owner’s testimony that her license plate had default in the arbitration. been stolen, and that neither she nor her car had been With respect to the issue of damages, the court held involved in an accident. He denied the insurer’s petition that “[i]t was [the insurer’s] burden to prove any limita- to stay an uninsured motorist arbitration demanded by tion on the plaintiff’s right to recover” and that “having the victim of the accident allegedly involving that car. In ignored every step in the judicial processes leading to this the underlying lawsuit brought against the vehicle’s action, one which may have been unnecessary had [the owner, the owner sought to amend her answer to assert insurer] chosen to participate earlier, [the insurer] should the affirmative defense of collateral estoppel based upon not be heard to complain now that it is called upon to sat- the JHO’s determination that she had not been the offend- isfy a judgment that was entered following its calculated ing hit-and-run driver. She further argued that collateral decision to ignore earlier stages of the plaintiff’s claim.” estoppel precluded the plaintiff from re-litigating in the
40 | June 2006 | NYSBA Journal personal injury action the issue of the defendant’s non- the insurer promptly after the insured receives notice that a claim against them will in fact be made”). involvement in the accident and, therefore, sought sum- 16. 18 A.D.3d 498, 795 N.Y.S.2d 259 (2d Dep’t 2005). mary judgment dismissing the complaint against her. 17. 7 A.D.3d 955, 777 N.Y.S.2d 551 (3d Dep’t 2004), modified, 4 N.Y.3d 468, 796 The court first held that “the doctrine of collateral N.Y.S.2d 13 (2005). estoppel is applicable to give preclusive effect to a deter- 18. Rekemeyer, 4 N.Y.3d at 474. mination by a JHO at a framed issue hearing, pursuant to 19. 16 A.D.3d 616, 792 N.Y.S.2d 556 (2d Dep’t 2005). an Article 75 petition, denying a permanent stay of an 20. See also Gallante Props. v. Allcity Ins. Co., 24 A.D.3d 414, 805 N.Y.S.2d 113 (2d arbitration of an uninsured motorist claim.” The court Dep’t 2005) (five-year delay in providing notice after becoming aware of the then held that collateral estoppel barred the plaintiff from incident). litigating the tort action against the defendant because 21. 4 Misc. 3d 1012(A), 791 N.Y.S.2d 874 (Sup. Ct., Bronx Co. 2004), aff’d sub there was the requisite presence of identical and decisive nom. State Farm Mut. v. Katehis, 23 A.D.3d 224, 803 N.Y.S.2d 546 (1st Dep’t 2005). issues, and plaintiff had a full and fair opportunity to lit- 22. 23 A.D.3d 207, 804 N.Y.S.2d 61 (1st Dep’t 2005). igate at the prior hearing. The court rejected the con- 23. 9 Misc. 3d 1101(A), 806 N.Y.S.2d 446 (Sup. Ct., Kings Co. 2005). tention that the doctrine should not apply because the 24. 24 A.D.3d 702, 806 N.Y.S.2d 720 (2d Dep’t 2005). framed issue hearing related to a small claim in compari- 25. Id. at 704 (quoting Lauritano v. Am. Fid. Fire Ins. Co., 3 A.D.2d 564, 568, 162 N.Y.S.2d 553 (1st Dep’t 1957), aff’d, 4 N.Y.2d 1028, 177 N.Y.S.2d 530 (1958)). son to the claim raised in the personal injury action. 26. Lauritano, 3 A.D.2d at 568. Moreover, it was the plaintiff who voluntarily chose to 27. Id. seek redress for her injuries via a UM arbitration, despite 28. Id. See also Appel v. Allstate Ins. Co., 20 A.D.3d 367, 799 N.Y.S.2d 467 (1st the pending personal injury action in which a contrary Dep’t 2005). ■ position was being espoused. 29. 21 A.D.3d 1008, 801 N.Y.S.2d 412 (2d Dep’t 2005). 1. See Jonathan A. Dachs, 2004 Case Update: Uninsured, Underinsured, 30. Id. at 1008 (citations omitted). See also Warnock Capital Corp. v. Hermitage Ins. Supplementary Uninsured Motorist Law, Parts I and II, N.Y. St. B.J. (May 2005) p. Co., 21 A.D.3d 1091, 803 N.Y.S.2d 606 (2d Dep’t 2005) (apparent authority to 38, (June 2005) p. 24; 2003 Update on Issues Affecting Accidents Involving issue a binder); Travelers Ins. Co. v. Raulli & Sons, Inc., 21 A.D.3d 1299, 802 Uninsured and/or Underinsured Motorists, N.Y. St. B.J. (May 2004) p. 38; 2002 N.Y.S.2d 823 (4th Dep’t 2005). Update on Issues Affecting Accidents Involving Uninsured and/or Underinsured 31. 14 A.D.3d 506, 788 N.Y.S.2d 168 (2d Dep’t 2005). Motorists, N.Y. St. B.J. (June 2003) p. 32; A Review of Uninsured Motorist and 32. 14 A.D.3d 581, 789 N.Y.S.2d 221 (2d Dep’t 2005). Supplementary Uninsured Motorist Cases Decided in 2001, N.Y. St. B.J. (July/Aug. 2002) p. 20; Actions by Courts and Legislature in 2000 Addressed Issues Affecting 33. 15 A.D.3d 581, 790 N.Y.S.2d 211 (2d Dep’t 2005). Uninsured and Underinsured Drivers, N.Y. St. B.J. (Sept. 2001) p. 26; Summing Up 34. 21 A.D.3d 1262, 801 N.Y.S.2d 180 (4th Dep’t 2005). 1999 “SUM” Decisions: Courts Provide New Guidance on Coverage Issues for 35. 23 A.D.3d 1047, 804 N.Y.S.2d 226 (4th Dep’t 2005). Motorists, N.Y. St. B.J. (July/Aug. 2000) p. 18; Decisions in 1998 Clarified Issues Affecting Coverage for Uninsured and Underinsured Motorists, N.Y. St. B.J. 36. 23 A.D.3d 629, 804 N.Y.S.2d 416 (2d Dep’t 2005). (May/June 1999) p. 8; Legislative and Case Law Developments in UM/UIM/SUM 37. Ins. Law § 5102(d). Law – 1997, N.Y. St. B.J. (Sept./Oct. 1998) p. 46; Developments in Uninsured and 38. 16 A.D.3d 957, 792 N.Y.S.2d 223 (3d Dep’t 2005). Underinsured Motorist Coverage, N.Y. St. B.J. (Sept./Oct. 1997) p. 18; The Parts of the “SUM”: Uninsured and Underinsured Motorist Coverage in 1995, N.Y. St. 39. See Transp. Ins. Co. v. Desena, 17 A.D.3d 478, 792 N.Y.S.2d 334 (2d Dep’t B.J. (July/Aug. 1996) p. 42; Uninsured and Underinsured Motorist Cases in 1994, 2005). N.Y. St. B.J. (Nov. 1995) p. 24; Uninsured and Underinsured . . . But Not 40. 18 A.D.3d 652, 795 N.Y.S.2d 653 (2d Dep’t 2005). Underlitigated – 1993: An Important Year for UM/UIM Coverage, N.Y. St. B.J. 41. 4 Misc. 3d 1012(A), 791 N.Y.S.2d 874 (Sup. Ct., Bronx Co. 2004), aff’d sub. (Sept./Oct. 1994) p. 13. nom. State Farm Mut. v. Katehis, 23 A.D.3d 224, 803 N.Y.S.2d 546 (1st Dep’t 2005). 2. 14 A.D.3d 559, 789 N.Y.S.2d 195 (2d Dep’t 2005). 42. 24 A.D.3d 662, 806 N.Y.S.2d 697 (2d Dep’t 2005). 3. 22 A.D.3d 762, 804 N.Y.S.2d 379 (2d Dep’t 2005). 43. See N.Y. Cent. Mut. Fire Ins. Co. v. Licata, 24 A.D.3d 450, 807 N.Y.S.2d 380 (2d 4. Id. at 763 (citations omitted). Dep’t 2005); Allstate Ins. Co. v. Esposito, 15 A.D.3d 648, 791 N.Y.S.2d 125 (2d Dep’t 2005); Eagle Ins. Co. v. Rodriguez, 15 A.D.3d 399, 790 N.Y.S.2d 167 (2d 5. See McCarthy v. MVAIC, 16 A.D.2d 35, 224 N.Y.S.2d 909 (4th Dep’t 1962), Dep’t 2005). aff’d, 12 N.Y.2d 922, 238 N.Y.S.2d 101 (1963). 44. 24 A.D.3d 450, 807 N.Y.S.2d 380 (2d Dep’t 2005). 6. 14 A.D.3d 610, 789 N.Y.S.2d 206 (2d Dep’t 2005). 45. 15 A.D.3d 648, 791 N.Y.S.2d 125 (2d Dep’t 2005). 7. 22 A.D.3d 846, 847, 803 N.Y.S.2d 679 (2d Dep’t 2005). 46. 15 A.D.3d 191, 789 N.Y.S.2d 128 (1st Dep’t 2005). 8. 15 A.D.3d 484, 789 N.Y.S.2d 719 (2d Dep’t 2005). 47. 18 A.D.3d 238, 795 N.Y.S.2d 4 (1st Dep’t 2005). 9. 18 A.D.3d 860, 796 N.Y.S.2d 663 (2d Dep’t 2005). 48. 17 A.D.3d 668, 793 N.Y.S.2d 514 (2d Dep’t 2005). 10. N.Y.L.J., May 13, 2005, p. 20, col. 1 (Sup. Ct., Bronx Co. 2005). 49. 16 A.D.3d 692, 791 N.Y.S.2d 450 (2d Dep’t 2005). 11. 4 N.Y.3d 332, 794 N.Y.S.2d 704 (2005). See also Great Canal Realty Corp. v. Seneca Ins. Co., 13 A.D.3d 227, 787 N.Y.S.2d 22 (1st Dep’t 2004), rev’d, 5 N.Y.3d 50. 16 A.D.3d 682, 792 N.Y.S.2d 518 (2d Dep’t 2005). 742, 800 N.Y.S.2d 521 (2005); St. Charles Hosp. & Rehab. Ctr. v. Royal Globe Ins. Co. 51. 16 A.D.3d 493, 791 N.Y.S.2d 601 (2d Dep’t 2005). of Am., 18 A.D.3d 735, 795 N.Y.S.2d 343 (2d Dep’t 2005). 52. 13 A.D.3d 588, 789 N.Y.S.2d 160 (2d Dep’t 2004), aff’d as modified and 12. 97 N.Y.2d 491, 743 N.Y.S.2d 13 53 (2002). remanded, 21 A.D.3d 999, 801 N.Y.S.2d 383 (2d Dep’t 2005); see also N. Dachs & J. Dachs, The “Top 10” and the Insurance Case of the Year, N.Y.L.J., Jan. 10, 2006. 13. 4 N.Y.3d 468, 796 N.Y.S.2d 13 (2005). 53. 17 A.D.3d 669, 794 N.Y.S.2d 85 (2d Dep’t 2005). 14. 14 A.D.3d 525, 789 N.Y.S.2d 428 (2d Dep’t 2005). 15. Id. at 526 (citations omitted). See also DeFreitas v. TIG Ins. Co., 16 A.D.3d 451, 54. 23 A.D.3d 344, 804 N.Y.S.2d 95 (2d Dep't 2005). 791 N.Y.S.2d 626 (2d Dep’t 2005) (“Notice of the occurrence must be given to 55. 7 Misc. 3d 585, 794 N.Y.S.2d 830 (Sup. Ct., Bronx Co. 2005).
NYSBA Journal | June 2006 | 41 COUNTERPOINT BY MICHAEL J. HUTTER AND DAVID PAUL HOROWITZ
Pommells: The Facts, Nothing But the Facts
ecently, the Journal published test for courts deciding no-fault thresh- erage, from deceitful health care an article titled “Paradigm old issues. There is simply no basis in providers to insurance carriers. Shift in No-Fault ‘Serious the opinion for transforming one part However, we believe the Court’s R 1 Injury’ Litigation,” by Joseph D. of the Court’s precatory language into observation can only be viewed, at Nohavicka. The article took as its a mandate for all lower courts to fol- best, as dictum, i.e., language that is “a subject the Court of Appeals decision low, yet Mr. Nohavicka presents this as nonbinding, incidental opinion on a in Pommells v. Perez,2 and concluded a central holding of the Court’s deci- point of law given by a judge in the that, in the aftermath of Pommells, sion. course of a written opinion delivered “lower courts are charged with a new In fact, it is our belief that the in support of a judgment.”5 function in Insurance Law § 5102 Pommells decision simply elaborates So what did the Court say in litigation: weeding out fraudulent longstanding guidelines mandated by Pommells about fraud in the no-fault ‘serious injury’ cases that burden court the Court of Appeals, clarifying the world? It stated: dockets and impede the resolution of burdens on a plaintiff seeking to defeat No-Fault thus provides a compro- legitimate claims.”3 summary judgment where there is a mise: prompt payment for basic The article gave rise to a great deal gap or cessation of treatment or suffi- economic loss to injured persons of comment and criticism on a plain- cient proof in support of the motion regardless of fault, in exchange for tiffs’ Internet listserve, of which one of establishing a pre-existing condition as a limitation on litigation to cases this article’s authors is a member, and the cause of the plaintiff’s injuries. involving serious injury. Abuse sparked a number of thoughtful letters Pommells creates no duty on the part of nonetheless abounds. From 1992 to and e-mails to the editor of the Journal. the trial court to determine fraud in the 2000, reports of No-Fault fraud In response, and at the suggestion of context of a summary judgment rose more than 1700% and consti- the Journal’s Editor in Chief, we collab- motion. tuted 75% of all automobile fraud orated to write this article in rebuttal.4 Initially, we recognize that the reports received by the Insurance Our primary criticism of the article Court raised the presence of “fraud” in Department in 2000.6 is the blurring of the author’s obvious the no-fault world. Rightfully so. The This observation is not new. The defense-counsel- and insurer-oriented Court should be concerned about its presence of fraud was an element distaste for the No-Fault law with his presence in all aspects of no-fault cov- reviewed and commented upon by the analysis of the Pommells case, culminat- ing in a statement of law that is unsup- MICHAEL J. HUTTER is Professor of Law at Albany Law School. He also acts as Special Counsel to the ported by the decision. In taking lan- Albany law firm of Powers & Santola, LLP. He is a graduate of Brown University and Boston College guage from the introduction to the Law School. Presently, he serves as a Commissioner of the New York State Law Revision Commission Court’s opinion, referred to neither and as Chair of the Board of Directors of the Capital Defender Office. directly nor indirectly by the Court in its ultimate decisions on the three cases DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury litigator in New York before it, Mr. Nohavicka misleads the City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the Office of reader into believing that the Court of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer on the subject. Appeals has enunciated a new “fraud”
42 | June 2006 | NYSBA Journal COUNTERPOINT court in Medical Society of the State of We would add another abuse pres- tlement of the defendants to summary N.Y. v. Serio,7 in reviewing the ent in Pommells itself, namely the judgment in the cases before it. Superintendent of Insurance’s promul- bringing of threshold summary judg- In Pommells, the Court held that the gation of Regulation 68, and in State ment motions by defense counsel defendant established prima facie enti- Farm Mutual Automobile Insurance Co. v. which are not even supported by the tlement to summary judgment, shift- Mallela,8 in answering a certified ques- defense moving papers as they show ing the burden to the plaintiff to “pres- tion from the Second Circuit as to that in fact the plaintiff has sustained a ent objective medical proof of a serious whether insurance carriers could with- serious injury. injury causally related to the accident hold payment for medical services pro- Policy, societal, and legal issues per- in order to survive summary dis- vided by fraudulently incorporated meate the no-fault claims and litiga- missal. While the plaintiff submitted medical providers. So, is there docu- tion. However, after surveying the objective evidence regarding physical mented abuse in the no-fault world? three individual cases that were con- limitations, his history revealed two Absolutely. Do these observations rep- solidated before the Court of Appeals interrupting factors: cessation of treat- resent a “paradigm shift” or an attack in Pommells, together with the trilogy ment six months after the accident and on plaintiffs and their attorneys? of cases that were consolidated and a kidney condition.”13 While acknowl- Absolutely not. decided by the Court of Appeals in edging that cessation of treatment was Moreover, other aspects of no-fault Toure in 2002,10 Mr. Novahicka espous- not dispositive, “a plaintiff who termi- litigation are of concern to the Court. es a politically inspired course of nates therapeutic measures following As Pommells observes: action for New York courts to follow the accident, while claiming ‘serious There is, similarly, abuse of the No- rather than a meaningful analysis of injury,’ must offer some reasonable Fault Law in failing to separate the Court’s decision. explanation for having done so. Here, “serious injury” cases, which may proceed in court, from the moun- tains of other auto accident claims, which may not. That “basic eco- Do these observations represent a nomic loss” has remained capped at $50,000 since 1973 provides “paradigm shift” or an attack incentive to litigate. on plaintiffs and their attorneys? In the context of soft-tissue injuries involving complaints of pain that Absolutely not. may be difficult to observe or quantify, deciding what is a “seri- ous injury” can be particularly vex- So, what result did the Court of plaintiff provided no explanation ing. Additionally, whether there has been a “significant” limitation Appeals arrive at in the three cases whatever as to why he failed to pursue of use of a body function or system before it in Pommells? At the end of the any treatment for his injuries after the (the threshold statutory subcatego- day, in the Court of Appeals, the score initial six-month period, nor did his ry into which soft-tissue injury was plaintiffs one, defendants two. doctors.”14 The Court also found that claims commonly fall) can itself be Summary judgment had been ordered the plaintiff had failed to address the a complex, fact-laden determina- by the trial court in all three cases, and effect of his kidney problem on his tion. Many courts have approached affirmed by the appellate divisions in accident-related injuries, at least in injuries of this sort with a well- all three. Interestingly, two of the part due to a failure of proof in relying, deserved skepticism. Indeed, fail- cases,11 one of which was reversed by in part, on unsworn reports. This is one ure to grant summary judgment the Court of Appeals, were appealable of the two cases in which two even where the evidence justifies as of right, with two justices having Appellate Division justices had voted dismissal, burdens court dockets 12 and impedes the resolution of dissented in the Appellate Division. to reverse the trial court’s grant of legitimate claims. As a hint of the So, what criteria did the Court of summary judgment, and the opinion dimension of the situation, in less Appeals use to decide the three cases contains not a single reference to fraud, than three years, Toure v. Avis Rent before it in Pommells, all of which though the Court does mention that A Car Sys. (98 NY2d 345 [2002]) – involved herniations? Not by “weed- the plaintiff was referred to his treating addressing similar issues – already ing out fraudulent “serious injury” doctors by his attorney. has been cited more than 500 times cases that burden court dockets and In Brown, another case in which the in published decisions of our trial impede the resolution of legitimate plaintiff was referred to his treating and appellate courts (representing claims.” Instead, the Court utilized tra- physician by his lawyer, after being only a small portion of the trial ditional, tried-and-true methodology transported to the hospital by ambu- court activity).9 to decide, as a matter of law, the enti- lance and released, the defendant also
NYSBA Journal | June 2006 | 43 COUNTERPOINT established prima facie entitlement to appellate division, two justices dissent- by the appellate division and affirmed summary judgment. All three of the ing, affirmed, “holding that plaintiff by the Court of Appeals, again, with defendant’s doctors averred that “any failed to both furnish an adequate no mention of or allusion to fraud: limitations plaintiff suffered as a result explanation of the gap in treatment As in Pommells and Brown, defen- 15 of the accident were minor at best,” and address the suggested chronic disc dant’s submissions shifted to 17 and one of the three claimed that the condition.” plaintiff the burden of coming for- herniations were chronic and degener- In reversing, the Court of Appeals, ward with evidence indicating a ative in nature, i.e., not causally related again with no mention of or allusion to serious injury causally related to to the accident.16 Faced with this show- fraud, held: the accident. Unlike Brown, howev- ing: Neither of the dispositive grounds er, defendant presented evidence In opposition, plaintiff submitted in Pommells applies here. First, as to of a pre-existing degenerative the affirmation of his treating the so-called gap in treatment – the disc condition causing plaintiff’s physician, Dr. Melamed, opining two and one-half years when alleged injuries, and plaintiff failed that plaintiff suffered from “a plaintiff’s injuries received no out- to rebut that evidence sufficiently herniated disc, confirmed by MRI side attention – Dr. Melamed to raise an issue of fact. testing, at L5-S1 towards the right explained that, once he determined Dr. Orlandi, after physically centrally indenting the thecal sac; further medical therapy would “be examining plaintiff and reviewing bulging discs, also confirmed by only palliative in nature,” he termi- prior medical records, including MRI, at levels L3-L5; and acute nated treatment and instructed MRIs and x-rays, concluded that cervical sprain.” He added that plaintiff to continue exercises at the pain in areas identified as her- his April 22, 2002 examination home. A plaintiff need not incur niated by Dr. Miloradovich was revealed numerical deficiencies in the additional expense of consulta- caused by pre-existing and degen- plaintiff’s extension and flexion of tion, treatment or therapy, merely erative conditions. Even plaintiff’s the cervical and lumbar spine, and to establish the seriousness or original doctor, Dr. Miloradovich, he opined, with a reasonable causal relation of his injury. Unlike noted, in his final report, that degree of medical certainty, that Pommells, plaintiff’s cessation of plaintiff’s pain was related to a plaintiff’s “inability to move his treatment was explained sufficient- prior condition. spine (lower back and neck) to the ly to raise an issue of fact and sur- full range of what is normal [con- vive summary judgment. While plaintiff provided Dr. stituted a] definite severe and per- Lambrakis’s expert’s report of manent injury” that was causally Second, as to an alleged pre-exist- specific losses of range of motion related to the accident. Finally, ing condition, there is only Dr. in plaintiff’s spine, that plaintiff Dr. Melamed explained that “when Berkowitz’s conclusory notation, suffered serious and permanent it became clear, after extensive itself insufficient to establish that injuries which were causally relat- therapy in my office, that further plaintiff’s pain might be chronic ed to the accident, plaintiff did treatment and visits would be only and unrelated to the accident. As not refute defendant’s evidence of palliative in nature, upon dis- opposed to the undisputed proof a pre-existing degenerative condi- charge from this office, I instructed of plaintiff’s contemporaneous, tion. To the contrary, the [plaintiff] as to strengthening and causally relevant kidney condition Lambrakis report supplied by stabilizing home exercises, which in Pommells, here even two of plaintiff explained that the pain consisted of back and neck stretch- defendants’ other doctors acknowl- and loss of range of motion in the es and strengthening techniques.” cervical spine was entirely consis- edged that plaintiff’s (relatively Plaintiff’s own affidavit noted that tent with those formations identi- minor) injuries were caused by he continues to suffer “excruciat- fied by the MRI and set forth by the car accident. On this record, ing” pain in his neck and lower Drs. Miloradovich and Orlandi as plaintiff was not obliged to do back when he stands for more than related to a degenerative condi- 15 minutes, and can no longer lift more to overcome defendants’ tion. In this case, with persuasive heavy objects; experiences numb- summary judgment motions, and evidence that plaintiff’s alleged ness in his legs when he remains we therefore reverse the Appellate pain and injuries were related to a too long in the same position; and Division’s order and reinstate the pre-existing condition, plaintiff cannot continue his prior sports complaint.18 had the burden to come forward activities. with evidence addressing defen- Finally, in Carasco, where there is no dant’s claimed lack of causation. In The trial court granted summary mention of the plaintiff being referred the absence of any such evidence, judgment, holding that the plaintiff to any medical provider by his attor- we conclude – as did the trial court had failed to explain a two-and-one- neys, the defendant met its initial bur- and Appellate Division – that half year gap in treatment and for rely- den, and the trial court granted sum- defendant was entitled to summa- ing upon unsworn MRI reports. The mary judgment, affirmed unanimously ry dismissal of the complaint.19
44 | June 2006 | NYSBA Journal COUNTERPOINT LANGUAGE TIPS BY GERTRUDE BLOCK
In all the three cases reviewed by uestion: When I meet some- not mean “the very next.” The ambigu- the Court of Appeals, the ability of the one and say “next Friday,” I ity of next provides a lesson and a solu- parties to meet the burdens imposed Qmean not this coming Friday, tion: Avoid using next when there is any upon them by the law with competent, but the following Friday. Recently, I possibility of ambiguity. Instead, state admissible proof, was determinative. was surprised to discover that not the exact date you intend. In none of the cases was fraud a factor everyone understood next the way I After my column on next appeared mentioned by the Court, nor was fraud do; when the person I was talking to in a journal, someone sent me a copy of alluded to. mentioned the date she thought I had a “Miss Manners” column. A reader Does Pommells represent a “para- in mind, it was the very next Friday, had asked Miss Manners’ advice on digm shift” or an indictment of the not the Friday after that. Am I right or the same subject, causing an argument plaintiff’s bar? Not at all. Does it rec- is she? at the dinner table. The father insisted ognize that plaintiffs who are injured Answer: The problem is that the that a dinner invitation for “next” in automobile cases and present with word next has a built-in ambiguity. The Saturday meant “this coming Saturday,” disabling neck and back pain are enti- world seems to be divided between and other family members argued that tled to pursue their personal injury those who interpret next as you do, and it meant the Saturday after this one. claims? Absolutely, yes. Is it a valuable those who interpret it as your friend Miss Manners’ answer differed from guide to litigating summary judgment does. In fact, the question has come up mine, and was probably more sensible. motions involving the no-fault serious so often that some time ago I took an “Listen to your father,” she wrote, “for injury threshold? You bet. These obser- informal poll of my colleagues at the if you keep quibbling about words, no vations represent Pommells' true law college, and found that most of one will get fed.” enduring significance. ■ them consider that “next Friday” Question: Even in well-edited pub- means this coming Friday, not the lications, a usage has become popular, 1. N.Y. St. B.J. (Jan. 2006) p. 26. following Friday. whose name I do not know. It might be 2. 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2005). As lawyers tend to do, in response called “anomalous adverb.” It occurs 3. Nohavicka, supra note 1, at 28. to my question my colleagues asked in statements like, “As Patrick Henry 4. In the interest of full disclosure, Professor me a question: “How would I indicate famously said, ‘Give me liberty or give Michael Hutter is, outside of his academic duties, the immediately following Friday if me death.’” He may have said that special counsel to Powers & Santola, which repre- sents personal injury plaintiffs, and David Paul I were asked that question on a loudly or softly or defiantly, but he Horowitz, as readers of his “Burden of Proof” col- Thursday, the day before?” I would didn’t say it “famously.” The fame umn are well aware, represents personal injury say “tomorrow,” because next Friday came later. plaintiffs as well. implies not the Friday that imme diate- Answer: My thanks to Attorney 5. Bryan A. Garner, A Dictionary of Modern Legal Usage (2nd ed.). ly follows. David Lester, who is knowledgeable 6. Pommells, 4 N.Y.3d at 573 (citations omitted). “But suppose the conversation about and interested in language, for occurs on Saturday; then how would commenting about this usage. I don’t 7. 100 N.Y.2d 854, 768 N.Y.S.2d 423 (2003). you indicate the Friday of the following know its name either, but I call it 8. 4 N.Y.3d 313, 794 N.Y.S.2d 700 (2005). week?” Then I would say “next Friday,” “transferred modifier.” 9. Pommells, 4 N.Y.3d at 571–72 (emphasis in orig- inal). violating my own rule that next does CONTINUED ON PAGE 55 10. Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 746 N.Y.S.2d 865 (2002). 11. Pommells v. Perez and Brown v. Dunlap. 12. In the third case of the Pommells trio, Carasco v. Mendez, the Appellate Division unanimously affirmed the trial court’s grant of summary judg- ment. 13. Pommells, 4 N.Y.3d at 574. 14. Id. (citation omitted) 15. Id. 16. Id. 17. Id. 18. Id. 19. Id. at 580–81.
NYSBA Journal | June 2006 | 45 ANTYHING BUT LAW BY DAVID D. SIEGEL
PROFESSOR DAVID D. SIEGEL is a Distinguished Professor of Law at Albany Law School and the Editor of the New York State Law Digest. He is the author of Siegel’s New York Practice, 7th Edition; Commentaries on New York Civil Practice in McKinney’s Consolidated Laws and on federal civil prac- tice in the United States Code Annotated (U.S.C.A.); Conflict of Laws in the West Nutshell Series; and Siegel’s Practice Review, his monthly newsletter on practice that commenced publication in April of 1993.
My Life in Paper
t was a wintry day in 1962 at St. It was exciting. Arising on the another roller, this one to wring out the John’s Law School, where I had just appointed day after a fitful sleep, I liquid. The roller then fed them, semi- Ibegun teaching law. It took place in dressed as if going to the opera and dried, into my trembling hands. With Ms. Wiest’s office because it was she appeared in Ms. Wiest’s office with those same hands, I separated the two who controlled the copying machine. spare time – time that I used to further sheets, thrilled to see one of them She was the dean’s secretary, a catego- contemplate my new experience. emerge as a copy of my original. A bit ry of goddess at the time, and the The moment arrived, and Ms. Wiest cloudy, but legible. Still a little damp, copying machine – note the definite ushered me into the sacred chamber, however. I went through this process article – was in a little anteroom acces- where sat, on a table top, two pieces of with all four sheets. This made me a sible only through her office. Ms. equipment, side by side. These two Copier 2nd Class, but I learned to my Wiest was a lovely person, but as the were “the” copy machine. My first les- chagrin that the rank would not quali- sole custodian of the school’s sole son was to take a piece of special paper fy me for either a promotion or a raise. copying machine, she had a heavy and place it over the page I wanted Forewarned about the possible responsibility and had to be firm. copied, hold the two sheets together dampness when I first made my It was the first exam I had ever firmly at the edges, and feed them into appointment with Ms. Wiest, I had put given and it was important that I retain a heated roller that caused the impres- the radiator on in my little office, to a copy of it. Today one merely snaps a sion of the copied paper to be trans- which I repaired forthwith, placing my professorial finger in such need, and ferred onto the special paper. Not visi- treasured quartet strategically across doors open to arrays of spectacular bly, though, at least not yet. Visibility the warm panels of the heater. I waited machinery that can copy, turn over, was the magic contribution of the sec- for them to dry. copy again, collate, staple, and play ond machine. This one had a tray of On later copying occasions, I went “Dixie,” all at once. But not in 1962. liquid inside. Now I separated the two about other chores as I left the copies to One had to make an appointment to papers as they had emerged, cozy and dry, but on this occasion – my initiation use the machine. I did that, some three warm, from the first machine, and took into the copying world – I was in no or four days in advance. It was an the impressioned paper, separated it condition to do anything until the copies essay exam and took up only four from the original, and placed it over yet had been divested of all moisture. I was pages. Today, the copying would occur another piece of special paper, this one in fear of over-drying. Maybe even out- in about 30 seconds. For me in 1962, it a photographic overlay of some kind. right parching. I therefore stayed a took three-quarters of an hour. It Again I went through a tight grip- while to watch the copies dry, momen- entailed preliminary instruction in the ping procedure, again at the edges, and tarily forgetting the adage that a use of the copier and then the elaborate fed the two sheets into the liquid. As watched radiator never dries. Actually, process of making the four copies. they emerged they went through it took only five or ten minutes. Not
46 | June 2006 | NYSBA Journal bad for 1962. After my class on that book of several thousand pages or of tronic filing. I remarked to him, after day I went home and took a nice nap. an article of only a dozen or so, out of my recent sojourn into the electronic Jump now, not to the present – my hands until I had made a copy of it. world that one advantage was that it we’re not ready for that yet – but to This meant making the copies myself, would save paper. Tom scoffed. On the 1977, at Albany Law School, to which I rather than having one of my student contrary, he said, the electronic age has switched when my family and I moved assistants do it. I stood in line at the vastly increased the use of paper, upstate. I had just completed the man- Xerox machine, honoring the first- because so many electronic users want uscript of the first edition of my text- come, first-served rule, which made a hard copy of their work product as book on New York Practice. No comput- me defer even to those in line – includ- well and get it, neat and clean, with the ers yet, but the school did have a fine, ing students, an indignity that no mere push of a button. And a revised if primitive, Xerox machine that had no respectable faculty would tolerate today. copy with another push. Authors are liquid or rollers. We may have had two Copy in hand and stored away in usually willing to print out a whole such machines, possibly through an some sacred place, I now took the orig- document only for the sake of just a endowment, but the one that the facul- inal manuscript of my first edition few editings on just a few pages. ty and students were allowed to use home and prepared to send it to West. The printing of my first edition, by was in the library. This was in the spring of 1977. the way, involved a bevy of linotype A brief aside, but a necessary pre- The manuscript was some 4,000 setters with aprons on. Hot lead, they liminary in this saga: Al Alliegro, a vice doubled-spaced pages, and printed on called the process. More recently, of president at West Publishing and a the heavy paper that West wanted us course, everything is electronic, which friend of mine, told me a long time ago to use. It produced a pile almost two always makes the final product look about a prominent professor at a well- feet high, and a photograph of my good. known law school who brought the daughter Rachel, two-and-a-half years Unless you read it, of course, manuscript of his textbook to the office old at the time, sitting on top of it. It’s and find it eligible for a place on Mr. of his publisher’s president. (Let’s just quite a memory now. Tipsy’s carpet. ■ call the president Mr. Tipsy, and let it The next three editions of my book be known that the publisher wasn’t are a graphic progression through the West.) It was a Saturday afternoon. Mr. printing world. The second edition, in Tipsy had arranged to meet the profes- 1991, was still done on paper, but the Pro Bono sor there just to accept the manuscript, paper was thinner than before. (Not so which would not start bona fide pro- the author.) The paper on the third edi- Opportunities Guide cessing until the Monday following. tion, in 1999, was thinner still (but Saturday was golf day for Mr. Tipsy, so again, not so of the author, who seemed Now Online off he went to play. He had placed the to expand in inverse proportion to the big manuscript on the carpet at a cor- diminishing manuscript). I have pho- www.nysba.org/volunteer ner of his office. tographs of all three editions, with my If you’re as apprehensive as I was wife Rosemarie and our first daughter, Looking to volunteer? This easy-to-use guide will help you about what happened next, I won’t Sheela, also in the picture. find the right opportunity. keep you in suspense. You guessed it, The fourth edition, published just You can search by county, by subject area, the whole manuscript got thrown out. last year, in 2005, provides the ultimate and by population served. The janitor’s philosophy was that a contrast. I sent it to West in a small floor is a floor, carpeted or not, and 5x7” envelope. The whole of it, with things on the floor get thrown out. I substantially more material than the asked Al the inevitable question: earlier editions, fit onto two small “Zip Didn’t the professor make a copy? He Drive” disks. Actually, the third edition didn’t, said Al, adding with a twinkle, could have made almost equal use of “Dave, the company is still paying roy- the electronic age. The equipment was alties on that unpublished book.” The ready; the problem was that I wasn’t. janitor’s assumption that the manu- I still don’t even accept e-mail at script was garbage was premature, in school. I feel that if one is to be an old Questions about pro bono service? any event. Bench and bar might have codger, one must have something to Visit the Pro Bono Dept. Web site for more been able to reach that conclusion on codge about. information. www.nysba.org/probono their own. They never got the chance. An interesting note to end on: A (518) 487-5641 That story dove into my psyche and young colleague of mine, Tom Gleason, [email protected] retained a hallowed place: I never let is on the Advisory Committee on Civil an original manuscript, whether of a Practice, our specialist there on elec-
NYSBA Journal | June 2006 | 47 MEET YOUR NEW OFFICERS
President He is a Fellow of The New York Bar Foundation and the Mark H. Alcott American Bar Foundation. Mark H. Alcott, a senior litiga- Alcott plays an active role as a federal and state medi- tion partner at Paul Weiss Rifkind ator with the U.S. District Court for the Southern District Wharton & Garrison LLP in New of New York and the Commercial Division of the New York City, took office on June 1 as York Supreme Court. He lectures on litigation issues in president of the 72,000-member the U.S. and abroad, and is frequently invited to argue New York State Bar Association. model cases at legal meetings and conventions. The House of Delegates, the Association’s decision- and poli- President-Elect cy-making body, elected Alcott at Kathryn Grant Madigan the organization’s 129th annual meeting, held this past Kathryn Grant Madigan, a January in Manhattan. partner in the Binghamton law A resident of Larchmont, and an honors graduate of firm of Levene Gouldin & Thomp- Harvard College and Harvard Law School, Alcott has son, LLP, took office on June 1 as been widely recognized for excellence in business litiga- president-elect of the 72,000- tion. He has handled major cases in both federal and state member New York State Bar courts throughout the U.S. and abroad, including com- Association. The House of plex commercial actions, class actions, and international Delegates, the Association’s deci- arbitrations. sion- and policy-making body, Alcott served on the Association’s 26-member Executive elected Madigan at the organization’s 129th annual meet- Committee as a member-at-large and then as vice presi- ing, held this past January in Manhattan. As the current dent representing the First Judicial District (Manhattan), president-elect, Madigan chairs the House of Delegates positions he held from 1999 to 2005, before assuming the and co-chairs the President’s Committee on Access to office of president-elect. The committee oversees the Justice (formed to help ensure that civil legal representa- management and administration of the state bar under tion is available to the poor). In accordance with NYSBA policies determined by the House of Delegates. bylaws, she becomes president of the Association on In his many years of active membership in the June 1, 2007. Association, Alcott has held numerous leadership posi- Madigan graduated Phi Beta Kappa from the tions and launched a number of initiatives. He served as University of Colorado at Boulder, where she received the chair of the Association’s Commercial and Federal 1975 Pacesetter (Outstanding Senior) Award, and was Litigation Section. During his tenure as chair, section point guard for the Lady Buffs basketball team. She members worked on more than 100 projects through 44 earned her law degree from Albany Law School. committees and task forces. He established and led a She has held a number of leadership positions within section task force that proposed the creation of a statewide the Association, serving 12 years on the Executive commercial court, and then served on the committee Committee, as secretary, as vice president for the Sixth established by Chief Judge Judith S. Kaye that imple- Judicial District (Broome, Chemung, Chenango, mented that proposal. Cortland, Delaware, Madison, Otsego, Schuyler, Tioga Alcott chaired the Association’s Special Committee on and Tompkins Counties) and as a member-at-large. Administrative Adjudication, which, after an extensive, Chair of the Special Committee on Association year-long study, recommended major changes in the Publications, Madigan led the 2004 search for the new administrative rules and procedures used in five state editor-in-chief of the Journal, an Association publication. agencies (Motor Vehicles, Health, Family Assistance, She is the former chair of the Membership Committee Workers’ Compensation and Environmental Conservation). and the Elder Law Section, and chaired the section’s He also chaired the Special Committee on Continuing Litigation Task Force, which recommended the historic Legal Education. NYSBA v. Reno lawsuit. A member of the Special In addition to his state bar activities, Alcott is involved Committee on Balanced Lives in the Law, she spoke on in civic, philanthropic and other professional endeavors. the topic at the 2005 Young Lawyers Section Annual A past recipient of the American ORT Jurisprudence Meeting Program. Madigan also serves on the commit- Award, he is a Fellow of the American College of Trial tees on Bylaws, Diversity and Leadership Development, Lawyers, selected on the basis of intensive peer review, Membership, and the Special Committee on Fiduciary and served for two terms as chair of the Downstate New Appointments. York Committee of the College. Alcott also served four She served as founding chair of the Committee on years as chair of the College’s International Committee. Attorneys in Public Service. She was also a member of the
48 | June 2006 | NYSBA Journal Executive Council of the New York State Conference of the provision of legal services to the poor. He is a member Bar Leaders, Task Force on Solo and Small Firm of the Fifth Judicial District Pro Bono Committee. Practitioners, Committee on the Future of the Profession, In addition to his Association activities, Getnick is a and Nominating Committee. A long-term mentor for the member and past president of the Oneida County Bar Young Lawyers Section, Madigan has been a member of Association (OCBA) and an ex-officio member of the the House of Delegates for 19 years. She is a Life Fellow Onondaga County Bar Association. of The New York Bar Foundation and chair of the Sixth He is past chair of OCBA’s Liaison Committee to the District Fellows. NYSBA, the Domestic Relations Committee and the Madigan was the first woman and the youngest per- Private Attorney Involvement Committee. He is also a son to serve as president of the Broome County Bar member of the National Institute for Trial Advocacy and Association and remains an active member of its CLE the New York State Academy of Trial Lawyers. Committee. Under her leadership, the local bar twice In the community, Getnick is a member of the board of received NYSCBL’s Award of Merit. A noted lecturer in the American Heart Association Northeast Affiliate. He the field of estate planning and elder law, Madigan is a was the initial counsel and attorney who incorporated the member of the Administrative Board for the Offices of the Mohawk Valley Committee Against Child Abuse, Inc. Public Administrator, a Fellow of the American College of Getnick is past president and member of the board Trust and Estate Counsel, and a Fellow of the American of directors of the Legal Aid Society of Mid-New York. A Bar Foundation. She is also a member of the National past president of the New Hartford Central School Academy of Elder Law Attorneys. District Foundation, he was a trainer and speaker for the She is a recipient of the 2000 Kate Stoneman Award Mendez Anti-Drug Program for the New Hartford dis- given by Albany Law School and the 1987 NYSBA trict. Outstanding Young Lawyer Award, and is listed in He has also served as vice president of the YMCA of America’s Best Lawyers. Utica, chair of the United Way’s Committee for Fund Active in many community and civic organizations, Raising for Lawyers and Doctors, and a member of the Madigan is a trustee of the Binghamton University board of directors of Family Services of Greater Utica. Foundation and is a past chair of the Harpur Forum. She is a trustee and past chair of the United Health Services Treasurer Foundation. Madigan performs at the annual Broome James B. Ayers County Chamber of Commerce Dinner as a Live Wire Player, James B. Ayers, a partner in and is a past president of the Chamber’s Live Wire Club. the Albany law firm of Whiteman She has two sons, R. James “Jeb” Madigan, a graduate Osterman & Hanna, LLP, has of Lafayette College (Easton, Pa.), and Grant, a student at been re-elected treasurer of the St. Michael’s College at the University of Toronto (Canada). New York State Bar Association. A resident of Guilderland, Ayers Secretary received his undergraduate degree Michael E. Getnick from Colgate University and Michael E. Getnick, a partner earned his law degree from in Getnick Livingston Atkinson Columbia Law School. Gigliotti & Priore, LLP, of Utica, Ayers has served in the public sector as: confidential and of counsel to Getnick and law assistant to the state Supreme Court, Appellate Getnick of New York City, was Division; assistant counsel to Gov. Nelson A. Rockefeller; elected secretary of the New counsel, Temporary State Commission on Constitutional York State Bar Association. He Tax Limitations; and special counsel to the Deputy earned his undergraduate degree Majority Leader, New York State Senate. Prior to joining at Pennsylvania State University Whiteman, Osterman & Hanna, he was a partner in the and his law degree at Cornell University. Albany law firm of DeGraff, Foy, Holt-Harris, Kunz Getnick most recently was a vice president represent- & Devine. ing the Fifth Judicial District (Herkimer, Jefferson, Lewis, An active member of the Association, Ayers has Oneida, Onondaga and Oswego Counties). He is a mem- served as treasurer since 2002. He served as vice- ber of the House of Delegates, a Fellow of The New York president of the Third Judicial District (Albany, Bar Foundation, chair of the Committee on Court Opera- Columbia, Greene, Rensselaer, Schoharie, Sullivan and tions, and a member of the Membership Committee. Ulster Counties) from 1999–2002. In addition, Ayers Getnick is a past member of the Nominating chaired the Trusts and Estates Law Section and has been Committee. In 1988, he received the Association’s a member of its Executive Committee since 1984. He President’s Pro Bono Service Award for the Fifth Judicial is also a member of the Albany County and American District. The award recognizes those lawyers for out- standing contribution of time, resources, and expertise in CONTINUED ON PAGE 51
NYSBA Journal | June 2006 | 49 ATTORNEY PROFESSIONALISM FORUM
To the Forum: See NY Eth. Op. 721, 1999 WL 1756189 coverage, and shift recovery away I was retained by an insurance com- (NYSBA 1999) (“Despite the fact that an from the uncovered breach of contract pany to represent a professional who is insurance company has retained the claim. The insurance carrier had urged a defendant in a litigated matter. Given lawyer pursuant to its contractual duty defense counsel to oppose the summa- the nature of the allegations, the out- to defend the policyholder, the client is ry judgment motion, and disclaimed come of the case could have significant the policyholder, not the insurance com- when it was granted on default, citing implications for my client’s license to pany”); NY Eth. Op. 716, 1999 WL the insured’s duty to cooperate under practice her profession. Recently, the 221884 (NYSBA 1999) (lawyer’s primary the policy. insurance carrier directed me to make allegiance is to insured). The Appellate Division held that a settlement offer to the plaintiff. My The Lawyer’s Code of Professional the carrier still had a duty to pay on the client has objected because she is con- Responsibility (“Code”) provides that: negligence claim, and that the contrac- cerned that any settlement of the case “Unless authorized by law, a lawyer tor’s tactical default did not constitute could have long-term, adverse conse- shall not permit a person who recom- failure to cooperate. Because of the quences for her licensing status. It mends, employs, or pays the lawyer to conflict between the interests of the should be added that the particular render legal service for another to direct carrier and the policyholder, the latter policy she purchased requires her con- or regulate his or her professional judg- – and its attorney – acted properly in sent before I can offer or agree to any ment in rendering such legal services, or placing the contractor’s interests over settlement. to cause the lawyer to compromise the those of the carrier. The court reasoned I feel that I am being pulled in lawyer’s duty to maintain the confi- that counsel for the policyholder need opposite directions. While I believe dences and secrets of the client.” DR 5- not obtain the insurer’s consent before that the case is highly defensible, we all 107(B); 22 N.Y.C.R.R. § 1200.26(b). The pursuing a course of action beneficial know that there are no guarantees in Code’s Ethical Considerations urge a to the insured. It stated that requiring litigation. Moreover, while it is better lawyer paid by another to “exercise pro- the carrier’s consent “would effective- to settle the claim with insurance com- fessional judgment without regard to the ly enable the insurer to take control of pany money rather than asking my interest or motives of a third person,” the defense and subordinate the client to reach into her own pockets, I and to “constantly guard against erosion insured’s interests to its own. This believe that my client has a legitimate of professional freedom.” (EC 5-23.) The interest in keeping her record clean. Code further reminds lawyers that the The Attorney Professionalism Committee What should I do? client has the authority to make deci- invites our readers to send in comments Sincerely, sions regarding the outcome of the case, or alternate views to the responses Tugged in Two including, among other things, “whether printed below, as well as additional to accept a settlement offer.” (EC 7-7.) hypothetical fact patterns or scenarios to Dear Tugged: A dramatic illustration of the con- be considered for future columns. Send Much has been written about the flict between insured and insurer, and your comments or questions to: NYSBA, tripartite relationship between and defense counsel’s resolution of that One Elk Street, Albany, NY 12207, Attn: among the insurance company, the conflict in favor of the client, is Nelson Attorney Professionalism Forum, or by lawyer it retains, and the insured, and Electrical Contracting Corp. v. Transcon- e-mail to [email protected]. the ethical issues arising from these tinental Insurance Co., 231 A.D.2d 207, relationships. See, e.g., Eileen E. 660 N.Y.S.2d 220 (3d Dep’t 1997). This column is made possible through the Buholtz, Defense Counsel’s Duties and Nelson was a declaratory judgment efforts of the NYSBA’s Committee on Responsibilities to the Insurer and Insured, action brought by a contractor against Attorney Professionalism. Fact patterns, 29 NYSBA Torts, Ins. & Comp. L. its insurance carrier. names, characters and locations presented Section J. 9 (Winter 2000); Public Service The contractor was named in a per- in this column are fictitious, and any resem- Mutual Insurance Co. v. Goldfarb, 53 sonal injury action alleging causes of blance to actual events or to actual persons, N.Y.2d 392 (1981) (dentist accused of action for negligence, which was cov- living or dead, is entirely coincidental. These covered as well as uncovered claims ered by the policy, and breach of con- columns are intended to stimulate thought may choose un-conflicted counsel at tract, which was not. When faced with and discussion on the subject of attorney carrier’s expense); NY Eth. Op. 716, a summary judgment motion by professionalism. The views expressed are 1999 WL 221884 (NYSBA 1999). another party on the (covered) negli- those of the authors, and not those of the While the terms of the insurance pol- gence cause of action, defense counsel Attorney Professionalism Committee or icy may mean that the client has given for the contractor made a tactical deci- the NYSBA. They are not official opinions up some portion of her ability to make sion not to file any opposition, reason- on ethical or professional matters, nor decisions regarding the case, you still ing that the admission of negligence should they be cited as such. owe your primary duty of loyalty to her. would maximize the client’s insurance
50 | June 2006 | NYSBA Journal would not only defeat the purpose of QUESTION FOR THE Now, the General Counsel is afraid assigning independent counsel, it NEXT ATTORNEY that in view of her earlier refusal pro- would pose an ethical dilemma for the duction of the documents will be very insured’s attorney, who, being bound PROFESSIONALISM FORUM: embarrassing to her and her in-house to exercise professional judgment sole- colleagues. ly on behalf of the client . . . I am a first-year litigation associate I do not know how to handle this disregard[ing] the desires of others in a large law firm. Like other large situation. I want to act professionally, that might impair the lawyer’s free firms, mine litigates on behalf of and do not want to sweep ethics viola- judgment,’ cannot permit the insurer Fortune 500 companies and other very tions under the rug. However, I also do ‘to direct or regulate his or her profes- wealthy clients. not want to ruin my legal career by sional judgment in rendering such Yesterday something occurred that leaving my first job in acrimony, and legal services.’” 231 A.D.2d at 210 (cita- really made me uncomfortable. The be subject to the behind-the-scenes tions to the Code omitted). partner in charge of a hotly contested accusation that I am a “snitch.” Thus, even though the policyholder civil case, in which our firm represents What should I do? has a contractual obligation to cooper- a very profitable high-tech company, Sincerely, ate in the defense of the case, “these directed me to engage in “file cleans- Sweating It Out limitations cannot be construed so ing” so that certain electronic docu- broadly as to prohibit the insured’s ments in the client’s files will become OFFICERS counsel from making tactical deci- “lost” and untraceable. Apparently, the CONTINUED FROM PAGE 49 sions, such as those at issue here, purpose is to protect the client’s in- which are part of a reasonable litiga- house legal team; its General Counsel Bar Associations and a Fellow of the tion strategy intended to decrease the was responsible for retaining our firm American College of Trust and Estate likelihood of liability on the part of the to replace prior counsel in the case. Counsel. insured.” 231 A.D.2d at 210. Counsel’s Before our firm got involved, prior In addition to his professional tactical decision to default on the sum- counsel had convinced her not to pro- affiliations, Ayers has been active in mary judgment motion was according- duce those documents – which are various civic groups, including serv- ly held not to vitiate coverage. Thus, very damaging – based on a strained ing on the board of directors of the court approved the conduct of a interpretation of the opposing party’s the American Red Cross, Salvation defense attorney who reasonably document request. Last week, howev- Army, Historic Albany Foundation, resolved a conflict in favor of the client er, the Court issued an order which Kattskill Bay Association, and the and against the insurance carrier. removes the ambiguity upon which board of trustees of the Westminster Most insurance policies give the prior counsel had based its advice. Presbyterian Church. ■ insurance carrier the authority to settle cases in its discretion. However, the Code obligates an attorney to respect the wishes of the client. Fortunately for you, the potential conflict between the carrier and your client has been resolved because the policy provides for your client’s control. You have described a situation in which the client has a “consent policy” such that she has the right to veto the settlement. Under these circumstances, you should inform your client of the desires of the insurance carrier (see EC 5-21), give the client your independent professional advice – then follow the instructions of your client, not the insurance carrier. NY Eth. Op. 721, supra. The Forum, by Barry R. Temkin Fiedelman Garfinkel & Lesman New York, NY
NYSBA Journal | June 2006 | 51 THE LEGAL WRITER CONTINUED FROM PAGE 64 When writing a generic trial brief, case” or “counter-statement of the briefs comply with CPLR 5528 and 5529 or trial memorandum of law, your case”); (5) summary of argument when writing the questions involved.42 guide should be an appellate brief, (where you outline your facts and law CPLR 5528(a) provides that when with minor alterations. Place your or summarize your argument section, writing the “question involved,” each issue in the “Question Presented” sec- depending on the jurisdiction) (6) argu- question must be followed by the tion. Next, include a “Statement of ment; (7) conclusion; and (8) appendix. answer given by the court below. The Facts.” Following the statement of facts In the New York State court system, question involved may contain no should be your “Argument” section, write trial briefs (also called trial mem- names, dates, amounts, or particulars. together with point headings and sub- orandums of law or memos of points The First, Second, and Fourth point headings. State the relief you’re and authorities) as you would an Departments require a statement of the seeking at the beginning of your argu- appellate brief. nature of the case and facts.43 The Third ment section. Last, include a short In New York, the Appellate Terms of Department requires compliance with “Conclusion” section in which you the First and Second Departments have CPLR 5528.44 CPLR 5528(a)(3) provides again tell the court what relief you’re different rules. The Appellate Term28 for that a statement of the nature of the case seeking. This is the basic layout of your the First Department, aside from a page and of the facts will determine the ques- brief. These “rules” should serve as a limitation of 50 pages for the main brief, tions involved. Make sure you support guide, not as a complete reference for does not provide any rules for the form any references to pages in the appendix. brief writing. and content of briefs.29 The Appellate The First, Second, and Fourth When you have more than one Term for the Second Department, Departments also require an argument issue, number them and match them Second and Eleventh Judicial Districts, section.45 The Third Department pro- up with the numbered point headings requires that all briefs comply with vides that you comply with CPLR 5528 in your argument section, as if the CPLR 5528 (which pertains to the con- in this respect.46 CPLR 5528(a)(4) issues are the questions and the point tent of briefs and appendices) and requires that the argument section be headings are the answers. You can CPLR 5529 (which pertains to the form divided into points with distinct head- have more than one issue, but don’t of brief and appendices).30 The same ings. All four departments provide spe- resort to the kitchen-sink approach, rule applies for the Appellate Term for cific rules for the content and form of unless you’ve a got a death-penalty or the Second Department, Ninth and the appendix.47 similarly important case in which you Tenth Judicial Districts.31 New York’s rules don’t provide for must protect and preserve the record. In New York, the First,32 Second,33 a preliminary statement, but most Otherwise, choose between one and Third,34 and Fourth35 Departments lawyers write one and include it just four issues: “Restricting yourself to have specific and almost identical rules before or after the questions involved. four or fewer issues [is] called the for the content of an appellant’s brief. A preliminary statement expands on ‘courage of exclusion.’”27 Include more The Third Department’s rules are broad the questions involved, gives some than four issues and the reader will and general compared to the other procedural history, dates, names, lose focus. You’ll have diverted atten- departments. The Second and Third places, and particulars, and sums up tion from your crucial issues. When Departments provide that briefs must the argument to follow. choosing issues, be selective. comply with CPLR 5528 and 5529. All When writing a question presented four departments in New York require, in any of the Four Departments, there- Court Rules among other things, a table of con- fore, write it as the CPLR provides. Incorporate deep issues in your tents.36 Some of the departments specif- The New York Court of Appeals briefs, but not at the expense of break- ically require a table of authorities requires, among other things (1) a table ing court rules. Instead, take advantage (First37 and Fourth38), while other of contents; (2) a table of cases and of the rules to make the court want to departments briefly mention it in pass- authorities; and (3) an appendix.48 In rule for you. Many courts have intricate ing (Second39) or not at all (Third). All motions for permission to appeal in rules regulating the form and the sub- four departments require that briefs civil cases, the court requires a stance of briefs. Briefs usually contain contain “questions involved.” The (1) notice of motion; (2) statement of the following items: (1) table of con- First40 and Second41 Departments the procedural history; (3) jurisdiction- tents; (2) table of authorities (also specifically provide that the questions al statement; (4) statement of the known as “table of citations” or “table involved contain no names, dates, “questions presented” for review; of cases, statutes, and authorities”); amounts, or particulars. These depart- (5) disclosure statement; and (6) copies (3) issues presented (also known as ments require that the questions of all orders, opinions, or memoran- “questions presented,” “questions involved be followed immediately by dums from the court below. The ques- involved,” or “statement of issues to be the answer given by the court from tions presented must state why they decided”); (4) nature of the case and which the appeal is taken. The Third merit the court’s review: that the issues facts (also called a “statement of the and Fourth Departments require that are novel or of public importance, that
52 | June 2006 | NYSBA Journal they present a conflict with the court’s Districts of New York don’t give specif- of jurisdiction; (6) constitutional provi- prior decisions, or that they involve a ic rules about how issues should be sions, treaties, statutes, ordinances, conflict among the departments of the compiled or organized. But both the and regulations verbatim with cita- Appellate Division. You must identify Eastern and Southern Districts tell you tions; (7) statement of the case along the particular portions of the record to set forth in point headings your with the facts; (8) summary of the where the questions reviewed are “points and authorities.”50 In the argument; (9) argument; and (10) con- raised and preserved. Northern District, the only rules about clusion. How you frame the issue to Nowhere in the Court of Appeals’s memorandums of law tell you to have the Court suggests “the importance of rules does it state that the questions a table of contents and parallel cita- conveying this vital information to the presented be followed immediately by tions.51 In the Western District, the court at the very beginning of the the answer given by the court below. only limitation for a memorandum of brief.”57 Supreme Court requirements But briefs submitted to the Court of law is a 25-page limit.52 The district encourage lawyers to write a deep, Appeals have questions presented that courts’ rules in New York therefore persuasive question. are contemplated by the CPLR. Here’s allow lawyers to use deep issues exact- an example of a “question involved” ly as this column suggests. Organizing Deep Issues that the CPLR contemplates, taken ver- When submitting a brief to a federal Once you’ve narrowed down your batim from a famous prosecution brief court of appeals like the Second issues, address them logically. In briefs to the Court of Appeals: Circuit, for example, comply with Rule and inter- or intra-office memoran- May a police officer approach and 28 of the Federal Rules of Appellate dums, organize them as follows: question a man when, during a Procedure. Under thus rule, briefs • Discuss threshold issues before patrol at night in an area of should contain, among other things, you discuss the merits of the case. Manhattan in which numbers of the following items, in this order: A threshold issue is often a proce- burglaries have recently taken (1) corporate disclosure statement; dural issue, like whether the place, the officer observes that man (2) table of contents; (3) table of author- court has jurisdiction to consider walking at a fast pace, with a notice- ities; (4) jurisdictional statement; the merits. Sometimes a threshold able limp, covered with snow and (5) statement of the issues presented; issue is substantive, like a statute- carrying a television set in a pillow- (6) statement of the case; (7) summary of-limitations question. Threshold case thrown over his shoulder. of the argument; (8) argument; issues can be dispositive. Answer of the court below: No, tes- (9) short conclusion; and (10) certificate • Lead with your best issue. The timony and circumstances were of compliance.53 The brief must also best issue is the one on which the inadequate to provide the detective conform to the local rule of court. The reader is most likely to agree with with sufficient cause to approach Second Circuit requires that you follow you. Within your best issues, put and question the defendant.49 Rule 28 as well as Local Rule 28,54 essential things first. (This sug- For the most part, writing a deep issue which provides that briefs be free from gestion applies only to briefs, not in this manner under New York’s rules “burdensome, irrelevant, immaterial, office memorandums.) for the Appellate Term, Appellate and scandalous matter.”55 In your • Discuss large claims or issues Division, and Court of Appeals will be statement of the issues presented to the before you discuss less significant difficult because the question involved Second Circuit, use this column’s ones. cannot be detailed. It’s wise to frame deep-issue approach. • If all the claims are equally large, your issue so that the answer implied When submitting briefs to the discuss the claim that affects the is “yes,” but the answer to the question United States Supreme Court, “the litigation most. Thus, in a crimi- will depend on how the court below statement of the questions presented nal appeal in which a defendant ruled. As the above example shows, must precede all other matters, includ- seeks a new trial or, alternatively, however, by including concrete facts ing the table of contents.”56 The Court a reduced jail sentence, first dis- you can still tailor your deep issue to requires the following items in this cuss whether the appellate court conform to the CPLR and court rules. order immediately after the cover should grant a new trial. You can also include deep issues when page: (1) questions presented; (2) list of • Move logically through statutory writing the statement of the case. The all parties unless the caption contains or common-law tests. Often a facts you incorporate will help the all parties as well as an amended cor- case will depend on whether a lit- court determine the issues involved. porate disclosure statement; (3) table of igant satisfied a multi-factor test In the federal system, when writing contents and authorities; (4) citations enumerated in a statute or a semi- trial briefs, which the courts call mem- of the (un)official reports of the opin- nal case. Discuss the issue in the orandums of law, the Eastern, ions and orders entered by courts and sequence in which the statute or Northern, Southern, and Western administrative agencies; (5) statement case lays out the factors.
NYSBA Journal | June 2006 | 53 • When the answer to one question 16. Posner, supra note 6, at 4. 43. 22 N.Y.C.R.R. §§ 600.10(d)(2)(iii) (1st Dep’t); 17. Id. 670.10.3(g)(2)(iv) (2d Dep’t); 1000.4(f)(6) (4th Dep’t). As depends on the answer to an ear- of January 18, 2006, for the Second Department, rely 18. Id. lier question, resolve the first either on 22 N.Y.C.R.R. § 670.10.3(g)(2)(iv) available on question first. The reader will 19. Id. Lexis, McKinney’s Rules of Court, or http://www. 20. Id. courts.state.ny.us/courts/ad2/pdf/rulesofproce- understand relationships more 21. Charles R. Calleros, Legal Method and Writing 432 dure.pdf. On Westlaw and the bound New York easily that way, and you’ll avoid (4th ed. 2002). Codes, Rules and Regulations, the rule is incorrectly cited as 670.10-c(g)(2)(iv). awkward cross-referencing. 22. See generally The Legal Writer, Legal-Writing Ethics Discussing issues in the order — Part I, 77 N.Y. St. B.J. 64 (Oct. 2005); The Legal Writer, 44. 22 N.Y.C.R.R. § 800.8(a). they arose facilitates understand- Legal-Writing Ethics — Part II, 77 N.Y. St. B.J. 64 45. 22 N.Y.C.R.R. §§ 600.10(d)(2)(iv) (1st Dep’t); (Nov./Dec. 2005). 670.10.3(g)(2)(v) (2d Dep’t); 800.8(a) (3d Dep’t); ing if the issues arose chronologi- 23. Calleros, supra note 21, at 432. 1000.4(f)(6) (4th Dep’t). As of January 18, 2006, for the Second Department, rely either on 22 NYCRR cally. Everything else being equal, 24. Adapted from Deep Issue, supra note 2, at 12. discuss issues by a hierarchy of 670.10.3(g)(2)(v) available on Lexis, McKinney’s Rules 25. Id. at 13. of Court, or http://www.courts.state.ny.us/courts authority: constitutional questions 26. Id. /ad2/pdf/rulesofprocedure.pdf. On Westlaw and the first, then statutory questions, 27. Henry Weihofen, Legal Writing Style 258 (2d ed. bound New York Codes, Rules and Regulations, the then common-law questions. 1980) (quoting John W. Davis). rule is incorrectly cited as 670.10-c(g)(2)(v). 28. See generally Gerald Lebovits & Deborah E. Fisher, 46. 22 N.Y.C.R.R. § 800.8(a). Conclusion Winning Residential Appeals: Perfecting, Briefing, and 47. 22 N.Y.C.R.R. §§ 600.10(c) (1st Dep’t); 670.10.2(c) Issue framing, among the most Orally Arguing Appeals in the Appellate Term and Beyond, (2d Dep’t) ; 800.8(b) (3d Dep’t); 1000.4(d) (4th Dep’t). important aspects of legal writing,58 is 1 Landlord-Tenant Prac. Rep. 7 (June 2000) (Part III of As of January 18, 2006, for the Second Department, rely the authors’ three-part article). among the most ignored. The lawyer either on 22 NYCRR 670.10.2(c) available on Lexis, 29. See 22 N.Y.C.R.R. § 640.5. McKinney’s Rules of Court, or http://www. who frames the issue well might be 30. 22 N.Y.C.R.R. § 731.2(a). courts.state.ny.us/courts/ad2/pdf/rulesofproce- 59 dure.pdf. On Westlaw and the bound New York the lawyer who wins. Lawyers often 31. 22 N.Y.C.R.R. § 732.2(a). Codes, Rules and Regulations, the rule is incorrectly focus on getting the law right rather 32. 22 N.Y.C.R.R. § 600.10(d)(2). cited as 670.10-b(c). 60 than writing well, but the two can’t 33. As of January 18, 2006, for the Second Department, 48. 22 N.Y.C.R.R. § 500.13(a). rely either on 22 N.Y.C.R.R. § 670.10.1(a) and be separated. Don’t lump all the criti- 49. Edward D. Re & Joseph R. Re, Brief Writing & 670.10.3(g)(2) available on Lexis, McKinney’s Rules of Oral Argument 249 (7th ed. 1993) (quoting People’s cal information in the middle of a doc- Court, or the Second Department’s rules 670.10.1(a) brief submitted to New York Court of Appeals in People ument, hoping that the reader will and 670.10.3(g)(2) available at http://www.courts.state. v. Moore, 47 N.Y.2d 911, 419 N.Y.S.2d 495, 393 N.E.2d ny.us/courts/ad2/pdf/rulesofprocedure.pdf. On find the issue underneath all the legal 489 (1979)). Westlaw and the bound New York Codes, Rules and words. Instead, make the reader’s job Regulations, the rules are incorrectly cited as 50. S.D.N.Y. L.R. 7.1; E.D.N.Y. L.R. 7.1. easy. Say something of substance at 670.10-a(a) and 670.10-c(g)(2). 51. N.D.N.Y. L.R. 7.1(a)(1); 12.1(a). the beginning and the end.61 Use the 34. 22 N.Y.C.R.R. § 800.8(a). 52. W.D.N.Y. L.R. 7.1(e). deep-issue method to create a picture 35. 22 N.Y.C.R.R. § 1000.4(f)(6). 53. See Fed. R. App. P. 28. for readers that’ll stand out in their 36. 22 N.Y.C.R.R. §§ 600.10(d)(2)(i) (1st Dep’t); 54. Id. 670.10.3(g)(2)(ii) (2d Dep’t); 800.8(a) (3d Dep’t); 55. Local Rule 28, available at http://www.ca2. mind — long after your brief or mem- 1000.4(f)(6) (4th Dep’t). As of January 18, 2006, for the ■ uscourts.gov. (Follow “Clerk’s Office” hyperlink; then orandum has been read. Second Department, rely either on 22 N.Y.C.R.R. § follow “Rules” hyperlink; then follow “Local Rule 28. 670.10.3(g)(2)(ii) available on Lexis, McKinney’s Rules Briefs”) (last visited Jan. 9, 2006). 1. Estate of Rogers v. Comm’r, 320 U.S. 410, 413 (1943). of Court, or http://www.courts.state.ny.us/courts/ 56. Re & Re, supra note 49, at 110; see also Rule 24 of the 2. Bryan A. Garner, The Deep Issue: A New Approach to ad2/pdf/rulesofprocedure.pdf. On Westlaw and the Supreme Court of the United States, available at Framing Legal Questions, 5 Scribes J. Legal Writing 1, 11 bound New York Codes, Rules and Regulations, the http://www.supremecourtus.gov/ctrules/rulesofthe- (1994) (hereinafter “Deep Issue”). rule is incorrectly cited as 670.10-c(g)(2)(ii). court.pdf) (last visited Jan. 9, 2006). 3. Id. 37. 22 N.Y.C.R.R. § 600.10(d)(2)(i). 57. Id. 4. Id. at 10. 38. 22 N.Y.C.R.R. § 1000.4(f)(6). 58. Deep Issue, supra note 2, at 2. 5. Id. 39. 22 N.Y.C.R.R. §§ 670.10.3(a)(3) and 670.10.3(b). As 59. Id. at 11. of January 18, 2006, for the Second Department, rely 6. Richard A. Posner, Convincing a Federal Court of 60. Wayne Schiess, The Five Principles of Legal Writing: either on 22 N.Y.C.R.R. § 670.10.3(a)(3) and 670.10.3(b) Appeals, 25 Litigation 3, 3 (Winter 1999); Marcia L. Any Lawyer Can Improve His or Her Writing — and available on Lexis, McKinney’s Rules of Court, or McCormick, Selecting and Framing the Issues on Appeal: Probably Needs To, 49 Prac. Law. 11, 12 (June 2003). A Powerful Persuasive Tool, 90 Ill. B.J. 203, 204 (Apr. http://www.courts.state.ny.us/courts/ad2/pdf/rules 61. Margaret Graham Tebo, Get It Write the First Time: 2002). ofprocedure.pdf. On Westlaw and the bound New York Codes, Rules and Regulations, the rules are incor- Organization, Attention to Detail Are the Keys to Effective 7. McCormick, supra note 6, at 204. rectly cited as 670.10-c(a)(3) and 670.10-c(b). Legal Writing, 43 A.B.A. J. 1 (Nov. 2002). 8. Posner, supra note 6, at 4. 40. 22 N.Y.C.R.R. § 600.10(d)(2)(ii). 9. Id. at 3. 41. 22 N.Y.C.R.R. § 670.10.3(g)(2)(iii). As of January 18, GERALD LEBOVITS is a judge of the New York City 10. Id. 2006, for the Second Department, rely either on 22 Civil Court, Housing Part, in Manhattan and an 11. Id. N.Y.C.R.R. § 670.10.3(g)(2)(iii) available on Lexis, adjunct professor at New York Law School. He 12. Id. McKinney’s Rules of Court, or http://www. thanks Brooklyn Law School student Anna courts.state.ny.us/courts/ad2/pdf/rulesofprocedure. 13. Deep Issue, supra note 2, at 14. pdf. On Westlaw and the bound New York Codes, Pechersky and court attorney Alexandra 14. Id. at 15. Rules and Regulations, the rule is incorrectly cited as Standish for assisting in researching this col- 15. Bryan A. Garner, Issue Framing: The Upshot of It All, 670.10-c(g)(2)(iii). umn. Judge Lebovits’s e-mail address is Trial, Apr. 4, 1997, at 74 (citing Karl L. Llewellyn, A 42. 22 N.Y.C.R.R. §§ 800.8(a) (3d Dep’t); 1000.4(f) (4th [email protected]. Lecture on Appellate Advocacy, 29 U. Chi. L. Rev. 627, 630 Dep’t). (1962)).
54 | June 2006 | NYSBA Journal LANGUAGE TIPS was quoted as saying, “The major issue out of theirs.” Apparently, however, CONTINUED FROM PAGE 45 is that many teens are unrealistic about none of these is a “problem.” Does lifestyle choice.” Issues equal problems. that make you feel better? ■ Remember when the word hopeful- In another news item, Florida envi- GERTRUDE BLOCK is lecturer emerita at the ly used to mean “I hope,” in statements ronmentalists discussed their fears University of Florida College of Law. She is the like, “I looked hopefully at the sky for that wildlife were rapidly losing their author of Effective Legal Writing (Foundation signs of rain”? Then some people habitats: “We have the gopher tortoise Press) and co-author of Judicial Opinion Writing began to use hopefully as a sentence issue, we have the panther issue down (American Bar Association). Her most recent modifier, to mean “it is to be hoped,” – south, the bald eagle nests – when book is Legal Writing Advice: Questions and causing considerable irritation among we build homes, we throw wildlife Answers (W. S. Hein & Co., 2004). people who cared about clarity. One reader reported that a friend had even posted above her front door a sign par- aphrasing Dante’s Inferno: “Abandon EDITOR’S MAILBOX hopefully all who enter here.” Supreme Court Justice Antonin Scalia also transferred a modifier, Re: The Deductible New York Creditors’ Claims, Redux when he said that his decision not to Estate Tax The February article entitled recuse himself from a case involving I read the excellent article appearing in “Creditors’ Claims – Do They Die With Vice President Dick Cheney was “the the February 2006 issue of the New the Debtor?” ventured beyond what proudest thing” he had done on the York State Bar Association Journal enti- happens at death to retirement plan Court. The “thing” was not proud; tled “The Deductible New York Estate benefits into what happens when the Justice Scalia was proud, but that’s not Tax.” I am surprised however, that the owner of retirement plan benefits with- what he said. You have probably trans- article did not include reference to the draws funds while still living. The oth- ferred modifiers: If you hit your thumb use of an additional Q-Tip trust equal erwise very useful article stated: “It is with your hammer instead of the nail in amount, with some refinements, to clear that once these funds [retirement you were aiming at, you may have the excess of the federal exemption plan funds] reach his hands [the mumbled something like, “That stupid over the state exemption. The Q-Tip owner’s], they are subject to attach- hammer!” (or words to that effect) to election would then be made for both ment by his creditors” citing Robbins v. avoid calling yourself “stupid.” Q-Tip trusts even though the Q-Tip DeBuono, 218 F.3d 197. While this election for the second trust is unneces- seems to be the opinion of the author Potpourri: sary to reduce the federal estate tax to and many other lawyers, I think Albert One optimistic feature about the news: zero. On the death of the surviving Feuer’s conclusions in his letter to the problems seem to be disappearing. spouse, the executor of that spouse’s Editor’s Mailbox in the May 2006 issue Unfortunately, however, problems are Will may request relief under Revenue of the Journal are closer to the truth. still with us; they are only absent from Procedure 2001-38 to exclude the trust Feuer argues that the withdrawn funds news items, in which the word issues – because the Q-Tip election for that trust are not subject to creditors’ claims for which used to mean “questions to be was unnecessary to reduce the federal various reasons with which I agree but solved” – now substitutes for “prob- estate tax to zero. There was an over- he did not mention CPLR 5205(d) lems.” utilization of the marital deduction. which specifically exempts payments Check your newspaper for problems. Assuming that such relief is grant- made from qualified plans from the You may find them missing. In a recent ed, New York State, pursuant to Tax claims of judgment creditors regard- interview, Lewis Mandell, a professor of Law § 961, should follow the federal less of whether or not they are needed finance and managerial economics at ruling and not include the additional for support. State University of New York at Buffalo Q-Tip trust as part of the surviving I think it is important for people to School of Management used the word spouse’s estate. This correspondence is know that in New York they can with- problem when he talked about high not intended or written to be used and draw funds from their 401(k)s or IRAs school seniors’ lack of understanding cannot be used by anyone for the pur- without worrying about creditors so about personal finances, but the jour- pose of avoiding tax penalties. This long, of course, as they draw on funds nalist who reported his speech wrote, notice is provided pursuant to U.S. which are properly segregated from “The problems teens are having now Treasury Regulations governing tax their other assets. with money could lead to even bigger practice. Sincerely, issues down the road.” And Pat Very truly yours, Edward V. Atnally Bolinski, executive director of Junior Edward Newman White Plains, NY Achievement for two Florida counties, Carle Place, NY
NYSBA Journal | June 2006 | 55 NEW MEMBERS WELCOMED
FIRST DISTRICT Michael A. Calandra Megan Elizabeth Staci Lynn Gruen Jae Yeon Kim Allison Francine Aaron Karina Y. Camacho Eiss-Proctor Robert Gruszecki Marianne M. Kim Zehra Jennifer Abdi Omolola R. Campbell Cara Snyder Elias Julia M. Guaragna Gian Simone King Emily Abrahams Andrez Carberry Mark Ellis Haini Guo Kassandra Angelina King Solomon Abuliak Brian Thomas Carney Alexa Lauren Englander John Pierre Guzman Eric Christopher Kirsch Edward Toll Ackerman Jason Paul Casero Katherine Brett Enright Christopher John Gwiazda Angela Kleine Joseph Ackerman Demian Michael Casey Claudette Zafra Espanol Paul Stuart Haberman David Lestin Kleinman Kerry Shannon Acocella Franco Castelli Villa Aron Joshua Estaver Daniel James Hall Jeremy Aaron Knapp Jonathan L. Adler Anthony Cecutti Michael Simon Estreicher Christopher S. Han Jared Mark Kneitel Andrew Michael Ahern Joong-sik Chae Michael Fainberg Susan K. Hanley James B. Kobak Zabrina B. Aleguire Peter Chae Noah Lindsey Falk Peter H. 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56 | June 2006 | NYSBA Journal Gabrielle Sean Marshall Jeffrey Carson Pulley Meredith Ann Simmons David Clarke Temes Jason Russell Wiener Daniel Patrick Martin Isabel B. Quintella Elizabeth Bryn Simson Joshua Micah Tenzer Lindsey L. Wiersma Edwina Frances Martin Rachel Lauren Quitkin Jaime Elyse Singer Thomas Green Terbell Trevor S. Wiessmann Tara Kathryn Martin Rajasimha Raghunath Romica Singh Emma Terrell Wade C. Wilkinson Alia E. Marwah Sean Domenic Ragusa Sylvana Sinha Myka Weiss Todman Cecilia Renee Williams Sarah Singleton McDonald Dilpreet K. Rai Meghan Elizabeth Skirving Ines Tofalo Helen Hilary Nichols Wilson Moira Elizabeth McDonough Magdalena I. Rams Adam Brian Sklar Nicholas Craig Tomlinson Jeffrey Lance Wilson James Vincent McGovern Adrienne S. Raps Anna Margaret Skotko Andrew Joshua Towbin Tammy Ann Wilson Daniel William Serge A. Ravitch Johnny George Skumpija Airi Tozaki Jonathan Richard Wise McLaughlin Lauren Ann Reaves Aaron Thomas Slavens Joanna L.W. Trachtenberg David Ian Wishengrad Ryan M. McNeil Jonathan Kent Regenstein Jarret Slepian Marina Carol Tsatalis Eric M. Wohl Nicholas Lloyd McQuaid Daniel Brett Rehns Victoria Marie Sloan Christina H. Tsesmelis Soo-ha Yang Carlo Bernard Meert Justin Michael Reich Matthew Richard Smalls Bettina M. Turck Ayala Esther Yasgur Christine Ann Meiers Adam Sezzen Reuben Alixandra Eleis Smith Giovanna Maria Joonkeun Yoo Graham William Meli Keri Ann Richardson Grasford Washington Smith Tuttolomondo Allison Young Margarita Melikjanian Joerg Peter Riegel Jennifer Suzanne Smith Erik R. Tuvey Patricia Young Noah P. Melnick Kelly Rae Riggle Leticia Victoria Jeffrey Unger Mashiho Yuasa James Ulrich Menz Brian Thomas Robb Smith-Evans Jonathan Daniel Uslaner Haim Zaltzman Benjamin Emlen Metz Limor Robinson Jennifer Erin Smolansky Hendrick Vandamme Jihong Zang Damon Perullo Meyer Nicholas J. 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Roth Elliott Zvi Stein Sarah Elaine Walcavich Gregory Olayinka Ajose Michele Coleen Carla Jane Rothenberg Kenneth Jay Steinberg Sheafe Benjamin Walker Anthony J. Auciello Moseley-Jones Justin Michael Rowe Michelle J. Stern Nicole B. Wallen Ashley Bree Black Keil Marbury Mueller Craig Evan Rubin Warren R. Stern Michael James Walsh Lauren D. Bosco Stevenson O. Munro Jamison A. Sadlon Erica J. Stien Samantha Yael Warshauer Danielle Therese Brogan Brenda Bindu Natarajan Matthew David Saldarelli Andreas Stier Andrew Seth Wasson Jesse D. Capell Mark T. Newman Silvia Salvadori Karen Elaine Stone Kyona Ann Watts Amy Yin-hui Chen Edwina May Ng Kurt M. Sanger Matthew Dean Stratton Gabriel Matthew Weaver Ernest Gainhong Chin Michael Ethan Nissim Aaron Isao Sato Kathryn Duffy Strom Brian P. Weinberg John Francis Coyle Sanam Nowrouzzadeh Derek John Schaffner Deena Ruth Sturm Daniel Seth Weinberger Craig Dietsch Contessa E. Nyree Eleanore M. 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Corash Renee Modry David Joseph Perkins Edward Shen Staten Island, NY Brooklyn, NY Lauren Cundick Petersen Marshall James Shepardson Spiro Alexander Phanos Edward David Sherwin Peter L. Curtis Martin C. Prinner Amanda Lois Phillips Vishal N. Sheth Williamsville, NY Poughkeepsie, NY Mark William Shiner Aviah Cohen Pierson Philip M. Damashek Barbara S. Reede Sean Christopher Pippen Faith Olivia Shippen Noemi C. Pizzini Bradford William Short New York, NY Forest Hills, NY Eileen Anne Pizzurro Bradley Steven Shron Lawrence T. De Angelis Matthew Wayne Rushing Sarah Lauren Plavner Kristine M. Shryock Brian Thomas Pleban Adam Michael Shulman New York, NY New York, NY David Charles Pollack Erin Marie Shute Dietrich Lamar Douglas Leonard J. Santisi Rachel Sharon Poplock Lisa B. Siegel Washington, DC San Diego, CA Jennifer Lynn Potter Chad Michael Silver Lisa Rudikoff Price Shari Lauren Silverman Robert J. Dryfoos Barry A. Tessler Thomas Russell Price Katie Deena Silvers New York, NY West Orange, NJ Keith Matthew Print Nicole Silvestri
NYSBA Journal | June 2006 | 57 Raymond Elvis Gazer Justin Cory Levin Michael R. Nolan EIGHTH DISTRICT Courtney Lee Greenway Melanie Alison Geneve William Tyrone Little Anthony Thomas Kyle Ryan Andrews Quinn Jeff Goland Tara Marguerite Lupoli Panebianco Erik George Barrios Brendan James Rich Gene Goldberger Gordon William Lyon Alisha M. Pieraccini Laurie Marie Beckerink Lindsay Ashburn Roseler William J. Golding Vincent Paul Mackowski Suzanne B. Pierce Ericka N. Bennett Erald Sakiku Abraham A. Greene Keeley Ann Maloney Robert Dana Poyer Anshuman Bhargava Melissa Sanchez Michael Leland Haber Kyle Rose McCauley John J. Raspante Meredith Lowe Bolton Jennifer Renee Scharf Naftali Tzvi Halpern Matthew J. Meyer Robert Stephen Rosenholm Jason Breen Danielle E. Shainbrown Mc Carthy Aralt Hawkins Erin Mitchell Kurt D. Schultz Allen Seth Brenner Thomas David Singer Meredith Stacy Heller Noelle M. Pecora Kristen Ellen Smith Christian Marie Brockway Kelly John Smith William Henig Melissa Marie Porco Neil J. Smith Sara Marie Bulson Megan A. Stoner Joshua D. Hoffman Barbara Augustine Prois John W. Spring Elisha J. Burkart Scott Richard Stopa Emily S. Kane James J. Radez Craig Trainor Robin E. Catalano John Anthony Terzulli Anthony Laurence Katchen Wendy Helen Reeder Matthew John Melissa Ann Cavagnaro Kristin A. Tisci Nayoung Kim Lisa P. Reid Vanbeveren Madeline Michelle Phyllis Marie Todoro Steven J. Kim Ricja Danielle Rice Richard T. Ward Chiampou Jennifer Marie Turkovich Joshua O. Korode Dana L. Salazar William Burns Yeomans Kyle Michael Costello Meredith Anne Vacca Nicole Lee Krysinski Grayden Paul Schafer David C. Crowther Radhika Varavenkataraman John J. Lanigan Edward R. Schwartz SIXTH DISTRICT Megan Alyssa Culliton Kendra Schamel Vergason Lauren N. Mallin Patrick Lawrence Sheldon Christopher C. Ahn Carrie Q. Curvin Regina Maria Vilani Matthew Masone Thomas William Simcoe Bryan Elliot Balaci Treneeka Cusack Faye Anne Vitagliano Gabriel F. McKeen Carrie C.B. Smith Daniel Joseph Cain Tamara Anne Daniels Kristen M. Walder Myles Phillip McKenna Judy Swierczewski Catherine E. Cronin Brad J. Davidzik Amanda M. Warner Gary Melamed Alison Marie Thorne Yanci Herboldt Nicholas Benjamin Davis Lucy Weaver Ben-Zion Miller Thais Marie Triehy Seth T. Hiland Heather Ann Decastro John James Westman Luanne Melissa Muller Brendan J. Tully Monette Miriam Jafri Catherine Bridget Michael H. White Lisa C. Neunder Erin Patricia Vestal Eric V. Jervis Dempsey Andy On-tik Wong Wesley Michael O’Brien Allen J. Vickey Micah Avi Kwasnik Joseph Nicholas Endres Amanda Rose Nma Viva Obioha Theresa A. Wakefield Ying Li Timmon Michael Favaro Wyzykiewicz Eunyung Theresa Oh Campbell H. Wallace Holly Mosher Betsy Finnerty Laura E. Yusick Shomari T. Owens Michael P. Weinstein Emily Claire Paavola Michael John Flanagan Neil Pasmanik Brendan Robert Wolf Mary Louise Russell Heidi Lynn Forman NINTH DISTRICT Christopher Brian Paton Raymond Scott Wolfe Hilary Elizabeth Wild Rosemary Tessa Sheila Sullivan Joseph Michael Penko Diana Yang Garlapow Abbruzzese Adam D. Pittsburg SEVENTH DISTRICT Bethany J. Gilbert Todd Stuart Alper Vanessa M. Richards FOURTH DISTRICT Christopher A. Andreucci Aaron Frederick Glazer Lorenzo L. Angelino Joanna M. Roberson Emilee B. Davenport Cristina Andrea Bahr Melinda Lea Grabowski Jacob Aronauer Stephanie Leah Rosenfeld Heather Anne Dona Timothy Donald Boldt Christopher Michael Grant Jamila Beckford Keith Robert Martin Roussel William C. Firth Erika Catherine Browne Garrett Grieser Cheryl Kuttenkuler Beece Gandhar Sudhir Savur Christine A. Ingraham Lafleur Camille Browne Steven Harrison Grocott Richard Jason Bettan Julia Marie Schneider Alyssa Kahn Kevin Edward Brzezinski Joseph Maron Hanna Diana Bunin Robert B. Schoenfeld David Craig Klingebiel Adam M. Clark Katy M. Hedges Danielle Rene Compere Seung-shik Shin Peter John Legere Dafina O. Cobbinah Timothy Robert Hedges Todd Joseph Desimone Mehreen Siddiqi Glenn Brody Liebert Brian Patrick Comerford Julia Marcelle Hilliker Jessica Marie Dovico Jeffrey M. Silber Jamie Lisagor John Michael Cordon Scott Patrick Horton Adam William Downs Danielle E. Sucher Erin Michele Reese Brian C. Decarolis Max Brian Humann Caroline Sarina Downs Lynne Naavah Sztulwark Eric C. Schwenker Matthew Robert Dunham Giuseppe Antonio Ippolito Liam P. Duffett Kesha L. Tanabe John Michael Tully Danielle H. Evirgen Jamie Lynn Jasinski Lynn Marie Dukette Gena B. Usenheimer Mikhail Dzhasimovich Michelle Lynn Fagan Kimberly Ann Jetty Robert Andrew Ernst Yael Goldie Utt Usubyan Christopher J. Ferratella Amanda Ruth Jordan Jill Fink Faber Joel Waldman Kimberly Yvette Fleming Anne E. Joynt Darren Harrel Fairlie Paul Lawrence Weiner FIFTH DISTRICT Kelly Ann Gilman Sean Padraic Kelley Matthew M. Ferguson Sharon L. Weiss Paul James Avery Sharon Lynn Higginbotham Thomas L. Kennedy Tim B. Fitzgerald Martin Wolf Jason B. Bailey Heather L. Holloway Joshua Korman Jeremy L. Greenstein Lori A. Zalner Zachary Robert Benjamin Eleanor M. Hynes Kenneth R. Kraus Carlos Eduardo Gutierrez Christopher R. Bray Katharine R. Knauf Brian David Lagenfeld Kenneth K. Haldenstein THIRD DISTRICT Christopher James Cali Jared L. Kronenberg Margo Mercedes Amee C. Hamburger John Perry Adams Thomas C. Cambier Jacob L. Lee Lagueras Seth M. Hopson Monica M. Agosto Thomas A. Carnrike Bonnie Jean Lepold Matthew Allen Lazroe Lorien Louise House John Douglas Bannister Chelsey Ann Cole Jason P. Livingston Jennifer Lynn Leonardi David Scott Johnson Danielle M. Barone Alicia Anne D’addario Meghan Marie Lynch Ryan James Lucinski James Kelley Melissa L. Byrne Heather Michelle Destefano Sara Holderle Marangola Daniel Theodore Lukasik James Fitzhugh Kelley Douglas Cherno Michele DeTraglia Monica C. McCullough Danielle Phyllis Maibohm Jeffrey Alan Kerman Michael C. Clarke Casey John Dickinson Marisa Jean Miller Molly Lauren Mallia Hyeju Julia Kim Jennifer Rebecca Darling Melissa J. Dujnic Mary Elissa Mogavero Bradley Dean Marble William Joseph Kistner Christian Dominique Kenneth B. Ehresman Kerry Margaret Morris William Preston Marshall Lauren Nicole Kosiba Defrancqueville Gregory P. Ewing Michael J. Mule James Leonard Mashlonik Colleen Marie Kramer Laura Greco Danielle N. Falk Monica R. O’Brien Shannon S. McGrath Kevin M. Lazan Caroline Guresz Suzanne E. Familo Karen Marie Phillips Sean C. McPhee Elaine Ming Lin Christopher Holt Horan Joseph Anthony Juidiciani Zachary James Pike Lillian Medina-Zelazny Adrienne Lotto Elizabeth Anne Ingold Jonathan Rand Karp Kevin M. Purcell Tara Anne Midlik Keith J. Madden Aron Zwi Karabel Leon Ronald Koziol Scott R. Simpson Erin Marie Milovich Keith John Martell Meghan R. Keenholts Richard Eric David M. Tang Joseph D. Morath Lucas Keith Middlebrook Frederick C. Kelly Kwasniewski Daniel George Tkachyk Laura Anne Myers William Onofry Timothy Marden Kerr John Martin Lichtenthal Daniel Paul Tobin Lynnette Nogueras-Trummer Michael S. Pascazi Brett Michael Knowles Todd Lawrence Livingston Jason Roger Tones Carolyn Marie Nugent Richard V. Polhemus Robert Jeffrey Lalley Jennifer Nadeau Mayott Alyssa Mary Truelove Karema Tiffany Page Elizabeth Kelly Quinn Jacob F. Lamme Jennifer Elizabeth Mays Jennifer Linn Wright Scott Michael Pechaitis Mary Therese Rizzo Danielle R. Lange Justin M. Nackley Arjay G. Yao Andrea Marie Pratt Heather A. Ryan Kareen Vahe Zeitounzian
58 | June 2006 | NYSBA Journal Jordan Todd Schiller Brette A. Haefeli Elizabeth Kim Weilhoefer Dawn Elizabeth Guglielmo Se Hyuck Choi Ron G. Schonberger Darryl Hartley Hall Lee-David Weiner Justin Lucas Haines Patrick Mbonu Chukwu Michael Jon Schwarz John Halverson John Patrick Whiteman Jennifer Leigh Hard Marcello Antonio Cirigliano Alexander Sediva Jarah Shaun Hardis Lisa Nicole Widen Lisa Beth Hirsch Emily Brooke Cohen Joseph J. Seperac Jason A. Harrington Alicia Mary Wilson Cynthia Isales Debra Rose Coletti Amanda Lee Sinrod David B. Harrow Paul Jarred Winterstein Rhana Ishimoto Paul Joseph Concannon Elliot Daniel Steinmetz Susan B. Heckman Arthur Kenneth Womble Ellen Ruth Magid Samuel Scott Cornish Gregg Anthony Tatarka Mala Ann Herman David Zivan Brian Christopher Mardon Michael Richard Cummins Jeffrey Wilson Thomas Christopher F. Holbrook Kofi Oduro Mensah Jonathan Watson Cuneo Christopher S. Tramaglini Melissa Lauren Holtzer ELEVENTH DISTRICT Renee Montminy Paul Andrew Czech Cynthia Lyn Trillo Robert Eugene Hornberger Mary-Katherine Philip Joseph Oliveri Guiseppe D’amata Joanna Valletta Jason Yin-zen Hsi Ammendolea Tamra Dawn Parson Jason Anthony D’amico Daniel Gerard Walsh Stacy A. Huber Ann R. Ascher Camiel S. Richards Sarah Patricia Daly Jack Arthur Wilson Monica Petrovic Janairo Christopher Edward Barnett Joan Helen Robinson Jens Christian Dammann Christine Sharon Yee Joshua R. Kahn Felice Bajoras Barry Natasha Marie Turner Anand Damodaran Joseph D. Zargari Donald V. Kane Tamara Bedic Kayonia L. Whetstone Alecia C. Daniel Kevin P. Zebrowski Suzanne B. Kaplan Dustin Craig Blumenthal Carrie E. Wood Mark Andre Dann Randi Blair Kramer Bradley Harrison Chain Heather Jo Darling TENTH DISTRICT John Lehr Arthur J. Chen OUT OF STATE Catherine Davila Justin Scott Adkins Brad Sean Levin Eun Jung Chin William Richard Abelmann Edwin Valte De La Rosa Guy Michael Allen Candice Brook Lieberman Linda M. Chorzewski Alan Abergel Michel D. Debolt Alissa Amato Michele Marie LoFaso Parth Natwarlal Chowlera Tam M. Abitante Heleen I.M. Deconinck Kathryn Nicole Andreolli Andrea Doreen Loguidice Stephen C. Dachtera Leena Abraham John Dayton Dello-iacono Douglas W. Atkins Faye Lowinger Jonathan A. Darche Shuichiro Adachi Carol Lynn Demarco Nicole Danielle Barbella Timothy M. Loyal Doreen Dufficy Morolayo Olayinka Margaret Leora Denton Ananya Barman Nico Di Lullo Deborah M. Egel Ajagunna Anish Rohit Desai Brian L. Battisti Janine Tara Lynam Arianna Francesca Faucetta Artemis V. Akchoti Swati Sudhir Desai Wesley Eugene Bauman Dana J. Lyons John Gizunterman Benjamin Brian William Douglas Deveau Erica Beth Bekoff William G. Macholz Atief Heermance Allensworth Dennis Joseph Dobbels Joshua Matthew Bengis Fotina Mamos Manuela Hernandez Adam Ahmad Allouba Thomas Robert Dominczyk Myra Haskell Berman Harvey Manes Jeffry Aaron Hodges Elizabeth A. Almeter Janilia Dominique Meredith A. Bettenhauser Janine Nicole Marchese Lena Holubnyczyj Robert Earl Ammons Erin Devlin Doran Alyson Joy Birdie Corinne Danielle McBride Kevin J. Hotter Gi-in An Charles Raymond Dougherty Gary F. Borrelli Kelly Ann McMahon Brian Patrick Hutchinson Yasmin Arefin Luc McCarthy Dowling Steven Andrew Botnick Elizabeth Lynne Miller Allison Patricia Jordan Haroutyun Asatrian Evan Robert Drachman Alla Brodsky Marcia Soraya Miller Beatriz Claudia Kim Elizabeth Mara Bakalar Jared Eric Drill Daniel A. Brown Khadija Ann Misuraca Pilsoo Kim Amy Renee Bales Lisa Marie Dudzinski Denny Adam Brown Michael Murphy Yat Fai Lau James Harrison Banks Joseph Gerard Duffy Erin Burkavage Michael Joseph Murphy Jihee Lee Mariano Banos Diane Baird Duhaime Amanda Burke Robert J. Newman Joshua Lee Gaetano Barrila Edward M. Dulatt Scott Edward Buszko Eric S. Orenstein Miali Albert Makelele Yacine Barry Christopher James Dunne Kristin L. Caballero Brian C. Pascale Gabrielle R. Mallol Lindi Ladon Beaudreault Dana Severud Durrett Bridget Elizabeth Cacace Brian E. Pasquarelli Anthony Philip Mascolo Clare Justine Benson Jonathan Samuel Edelman Diana Jackelyn Cally Marion Catherine Perry Robert E. Miller Anna Berent Heather M. Ellis Gabriella Marie Campiglia Cora-ann Victoria Pestaina Katanya Moore Claudio B. Bergamasco Sheridan Leigh England Jonathan David Canter Kristen E. Petersen Suzanne D. O’Hare Andrew Richard Bernstein Christian Errico Roberto Cervoni Allison Shawn Poler Richard T. O’Brien Carl T. Berry Oscar R. Estrada Joseph J. Chiantella Robert C. Polizzo Crystal N. Parham Ari Lobovits Bessendorf Corinne M. Etienne Peter Yusung Choi Kyle P. Poppe Anurag Parkash Archena Bhalla Xiaojuan Fan Nick Philip Christopher Joy S. Porecha Angelo Roberto Picerno Abby Suzanne Bowker Remy Joseph Farag Ricky Waikee Chu Jamie Lee Principe Teri Ann M. Puliafico John William Branch Melissa A. Fedders Donna Ann Civitello Maureen Quinn Yadira A. Ramos Jennifer Lynn Breen Gillian Ruth Feiner Avinoam Cohen Lee A. Reynolds Alison D. Reisner Kelley Elaine Brennan Walter Levi Fields Erika L. Colavito Christina Marie Roberts Jacqueline Rizk Daniel Scott Brill Emma Nilufar Filstrup Brian Vincent Connor Alison Rohme Patrick Ryan Antoine Brocas Ricardo Patrick Fischer Richard John Corbi Justin M. Roper Michael A. Santucci Erinna Delle Brodsky Robert Michael Fitzgerald Richard Corrado Danielle Rose Roschnotti Heather Joy Saslovsky Talja Talyana Bromberg Olga Elizabeth Flores Van James Croteau Randi Beth Rosenstein Gretchen Ott Schneidau Heather Leigh Brown De Sande Stephen Samuel Czuchman Michael Jared Rosenthal Jooho Seong Jason T. Brown Edward William Floyd Daniele D. De Voe Megan C. Ryan Svetlana Steele-Baird Eli Benjamin Bruch Shalisha Carriene Francis Justin Joseph D’elia Christine Scharf Christopher R. Travis Jason Anthony Buchsbaum Jack Nowell Frost Michael Leon Douglas Robert Shaw Chunyu Jean Wang Elizabeth Dillon Buckley Cecily Fuhr DellaUniversita Robert P. Sheridan John David Gower Waszak Nora Mary Buckley Allison Fulton Annmarie Francesca Peggy Shvarts Levi Ian Woodward Scott D. Bullock Joseph Joshua Gallitano Deprimo Danette L. Slevinski Xiaoxue Wu Kate Burnell David Antonio Garcia Michael L. Diamond Jennifer Sommer Andrew J. You ng Herbert Buzanich Danielle Harlene Garten William Edward Donohue Alessandra G. Souza Milton Yu Victoria A. Cabalar Manu Gayatrinath Brian Raymond Duggan Erin Alanna Stanton Marina Zapantis Bertha-lucia Camargo Caroline Genevois Scott Thomas Dwyer Alycia Katherine Stevenson Quantang Zhong Marianna Cardona-Diaz Regina Renee Gerrick Bernard Feigen Kira J. Storz Michael Edwin Carrer Deniza Gitlin Gertsberg Zara Gail Friedman Aneta Sudol TWELFTH DISTRICT Lucia Elizabeth Casale June E. Gilson Lauren Dina Fuhrman Ian Bradley Tarasuk Imran Shams Ahmed Joseph Juco Centeno Jason Keane Givens Michael Patrick Gallagher Gregory Aris Tsonis Phan Thi Alvarado Gowrisankar Challagundla Suwebat Ade Yemi Giwa Jacqueline D. Ganz Christopher Turk Rebecca Jayne Ballas Deshonda Charles-Tackett William Denham Goddard Joanna Gasowski Marc B. Underberg Stacy Lauren Bieder Bertie Helen Cheng Elizabeth Sara Goldberg Stephanie Dale Goldsmith Elizabeth Ann Rita L. Bieniewicz Joel Ira Cherwin Ilene Merry Goldberg Sharyn Heather Goldstein Vasseur-Browne Kristin Ann Bruan Michael James Chin Kimberly Rose Goldberg Thomas William Gould Danielle M. Visvader Joseph Daniel Davidson Sin-chang Chiu Deborah Goldfarb Tracey Pamela Greco Jeremy Walsh Jacqueline Marie Devore Yen-Lin Agnes Chiu Charles Maxwell Goldschmid
NYSBA Journal | June 2006 | 59 Eric Craig Goldstein Brandon Michael Kirsch Maria McElhinney Lauren Reid Randell Felicia Jamal Munion Cordelia Gollnisch-Flourens Karen Jill Kirshenbaum Sean B. McNamara Sarah Gerber Rapawy Taghizadeh Stephanie A. Gonye Atsuko Sese Kitamura William Joseph McPartland Beeri Raz Alison Geck-chin Tan Allan H. Gordon Jeffrey Robert Kivetz Shannon M. McQueeney James Joseph Reardon Seow Ling Tan Jay Rodney Grant Chad Lee Klasna Maeve Anne Meaney Aoife Reid Daisuke Tatsuno Inna Gretchka Lars Eric Knudson Alan Victor Meehan Jared A. Resnick Lawrence Bruce William Emma Grewal Necip Kagan Kocaoglu David Meller Sarah Hoe Reynolds Taylor Jessica Guarducci Leslie Anne Koch Aditya Jai Menon William Andrew Riback Christina Theresa Aryeh Guttenberg Thomas Ford Koelbl Valarie Merrick Ick-kyun Ro Tellado-Winston Paul A. Hale Michael Kohler Jordan Koel Merson Michael Dean Robb Brian John Testa Casey Wilton Halladay Takeshi Komatsu Lori K. Mihalich Melanie Christina Robinson Emily Elizabeth Thacher- Takehisa Hamada Magdalena Dorota Jessica Miles Neil Steven Rockind Renshaw Mohamed Hamra-krouha Komorowicz Monica Mercedes Millan Eli John Rogers Daniela Elisabeth Thurnherr Thekla Christina Sau John Bade Koss Andrea Barbara Miller Craig A. Rosen Cyndee Todgham Cherniak Hung Hansen-young Orestis N. Kotopoulos Douglas Lee Miller Andrew Bryan Rosenstein Sylvia Todorova Tonova Joseph William Harazmus Marta Natasza Anie Min Nicole Rothe Lauren Tort Jay Marc Harris Kozlowska Nehal Modi Claudio Godinez Epaminontas E. Triantafilou Alexis Defreese Hedman Frank Mays Kreis Shahrzad Molavi Roumain Ochoa Kiyoshi Tsujimoto Jared Ian Heller Christopher E. Kunkel Tanya Jenifer Monestier William Bennett Rubens Alexei Victor Tsybine Lisa M. Herb Leonid Kushnir Lynne Marie Montgomery John Francis Russell Tara M. Ulezalka Jose Emmanuel Galicia Vladislav Kushnir David Andrew Montminy Patrick Joseph Ryan Ithti Toy Ulit Hernandez Fiana Rose Kwasnik Takatoshi Monya Christy Linn Saalfeld Jonathan Charles Ulrich Todd Leighton Hinds Sohyon Kwon Herbert Paul Moore Heidi Saas Nancy Gretchen Ulrich Keisuke Hino Marek Lesniewski Laas Mathias Moschel Yeugenia K. Samardin Melissa Hilary Van Der Timothy Michael Horsting Mark Edward Lacis Thomas Bernabe Mulhern Ali Rezza Sarafzadeh Merwe Yi Hou Ricky Rakesh Lakhiani Ryan Patrick Mulvaney Khorassani Michael James Van Riper Marc-andre Houle Marc Jay Lane Andrew Neil Munro Frank Michael Scaduto Elodie Vandenhende Patrick Joseph Houlihan Xanthe M. Larsen Earl Dana Munroe Dana K. Scalere Julianne N. Vardan Jennifer Hower Benjamin Adam Lasky Mark Thomas Murray Noah Justin Schafler Jeffrey Paul Vardaro Eric Adam Huang Frank J. Lattuca Bibi Bahizi Musafiri Naama Schain Lori Ann Vella Xiao Yu Huang Veronique Daniele Laughlin Meredith Wyn Nachman Jason Brian Schatz Pankaj Venugopal Selena Hung Kelley William Lavery Christine Naglieri Alfred Crew Schielke Anthony M. Verna Yitzhak E. Hussein Hugh Roland Law Kyoung-ah Grace Nam Michael David Schimek Christopher Michael Irene Njeri Ibongo Richard Roland Le Brun Sanjay A. Narayan David Grant Schlesinger Viapiano Junko Ishitani Dana Matthew Ledger Brian Anthony Nath Daniel Jacob Schneider Anna Kristina Vikse Joanne Kristene Martin Scott David Levensten David Matthew Nelson Mirco Schneider-Schieren Svetlana Borisovna Isidro Daniel Harry Leventhal Indira Nelson Ekaterina Schoenefeld Vinogradova Ken Itabashi Shiri Levi Lehoa Nguyen Jonathan David Schwartz Nicole V. Vitrano Natacha Ivacheff-Kolb Alexander Owen Levine Robert Nida Gigi Mei Lan Scoles Agata Joanna Waclawick Deepa Vasudeva Iyer Jordana Marie Levine Lisa Bench Nieuwveld Ari Joshua Scott Sandra Augustine Walker Kristi Ellen Jacques Julien Andre Marc Levis Donall Gerard O’Carroll Melinda Scott Jialin Wang Dennis D. James Yuliya Levitan Mark Robert O’Siochain Richard Sanders Scott Zhenya Wang Young Jin Jang Adam Levitin Nancy Morrison O’Connor Michael Seth Andrew John Warner Erin Kitchen Jaskot Adam Jeremiah Levitin Timothy Patrick O’Grady Edward Michael Sheehan Yoko Watanabe Ingrid D. Johnson Robert J. Lewis Kuriko Okita Kitty Shen Kevin Welsh Romulus Antilleus Johnson Nicholas John Lezak Tobey Kearns Oliver Steven Eric Siesser Christopher Andrew Werner Candi Rebekah Jones Liv Michelle Liabraaten Tinuola Laide Olorunwunmi Stefan David James Sikorski Robert Charles Whitaker Katherine Amelotte Jones Adam Lichtenstein Philip Stewart Olsen Richard Joseph Simeone Joseph John Whitney Tobin Augustin Joseph Yi-hsuan Lin Mary Elizabeth O’Neill Jerry L. Sims Lisa Robin Wichter Juhee Jun Frederick Allen Link Wendi E. Opper Shanna Patrice Singh Joshua Aaron William Anne-Laure Jung Jessica L. Lipson Gary William Orloff Adam Christopher Siple Dolger Ramsey Behjat Jurdi Cheng Liu Junichiro Otani Premila Sivalingam John Sievert Williams Erin Robin Kahn Hui Liu James Curtis Owen Richard J. Slavens Jennifer Beth Wisnia Nehal H. Kamani Duane L. Loft Anna Paglia Christopher Alexander Debra Amy Wolf Ian Robert Kaminski Marinus Aarnout Loubert Ryan Lee Palmer Smith Billy Yan Shun Wong Monica Nicole Kamison Scott Loughlin Doinita Panainte Edward Howard Smith Lena Lay Yen Wong Zachery Kamylcowski Michael Kevin Lucas Pushpa Kantilal Pandya Paul March Smith Daniel Joseph Woods Hiroko Kaneko James C. Luh Kristen Alison Papathomas Robert Thomas Smith William A. Wright Young Goo Kang Hui Lui Steven Nicholas Papera Steven Louis Smith Qinghua Xu Bankim Krishan Kapur Richard A. Luthmann Stephen Scott Parel Renee Judith Sobel Rana R. Yates Musta Ruby Karimakwenda Jarrod Dorsey Lynn Joo Young Park Dita Sole Angela A. Yeboah Patrick Norman Karsnitz Kataryna Lyson Katherine Dunn Parsons Kenneth John Soriero Stacy E. Yeung Fumiaki Kashimori Tarek Farouk Maassarani David Abraham Paterson Remi Lee Spencer Dina Jie Yin Robert C. Kaufman Patricia Madrazo Cordero Gauri Paul Dileep Sargur Srihari Jamie Allison Yonks Ruth Aideen Kavanagh Helgi Laura Maki Lauren Leslie Peacock Matthew Christian Justina Monique Tara Michael Keegan Kushal Kiran Malhotra Nicole Shanti Percel Stecher Young Christopher James Kenny Stacy M. Manobianca Janine Lilliane Peress Samuel Steinberg Kwan Sik Yu Rebecca Catherine Kiley Sandra March Jean-Francois Peyronnard Daniel Darren Stern Jared S. Zaben Cali Yong Backe Kim James Marshall Thomas M. Polseno Erica Steinacker Stoecker Adrian Yaroslaw Do Hyeong Kim Florian Wolfgang Marxer Stoyan D. Popov Daniel Gabor Straub Zachariasewycz Jong Bong Kim John P. Marzolla Keenan R. Popwell Katherine Stroebl Jonathan Michael Zagha Ki Young Kim Michael Coyn Mateer Laura Lee Prather Wei-mu Su Cherilyn Marie Zavatsky Kie Yoon Kim Kristin Alexis Luisa Mateo Paul Garrett Prissel Laurie Ann Sullivan Michael Nicholas Zeleznock Michael Kim Marina Matousekova Rohit Punj Kevin Richard Sutherland Terra-Lynn Zentara Sang Woo Kim Taku Matsumoto Ying Qian Lola Mercedes Swaby Haiting Zhang Seo Bum Kim Janice Elaine May Lexer Indra Quamie Christopher Garrett Swart Pingping Zhang So Yun Kim Shellon Oneka Mayers Kristen Robyn Ragosta Anne G. Sweeny Jie Zhu Christopher John Kimball Regina Mary McCaghy Jennifer Lee Raisor Leah Michelle Szumach Elizabeth Ann Ziegler Stuart Tyler Kirkby Thomas David McConnell Priyamvada Ramamurthy Christine Lisa Zurich
60 | June 2006 | NYSBA Journal HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION
EXECUTIVE FINANCE 2006-2007 OFFICERS Patricia K. Bucklin Kristin M. O’Brien, Director John R. Horan, President Executive Director [email protected] 825 Third Avenue, New York, NY 10022 [email protected] Cynthia Gaynor, Controller M. Catherine Richardson John A. Williamson, Jr. [email protected] Vice President and Chair of The Fellows Associate Executive Director LEGAL AND GOVERNMENTAL AFFAIRS One Lincoln Center, Syracuse, NY 13202 [email protected] Kathleen R. Mulligan-Baxter, Senior Director Patricia K. Bucklin, Secretary ADMINISTRATIVE SERVICES, MEETINGS [email protected] One Elk Street, Albany, NY 12207 AND MEDIA RELATIONS COUNSEL’S OFFICE Hon. Randolph F. Treece, Treasurer 445 Broadway, Albany, NY 12207 ADMINISTRATIVE SERVICES GOVERNMENTAL RELATIONS Sebrina Barrett, Director Glenn Lefebvre, Director DIRECTORS [email protected] [email protected] James B. Ayers, Albany The New York Bar Foundation Ronald F. Kennedy, Associate Director Jonathan G. Blattmachr, New York Rosanne M. Van Heertum [email protected] Cristine Cioffi, Niskayuna Director of Development LAWYER ASSISTANCE PROGRAM Charles E. Dorkey, III, New York [email protected] Patricia F. Spataro, Director Emily F. Franchina, Garden City Law, Youth and Citizenship Program [email protected] John H. Gross, Hauppauge Eileen Gerrish, Director Robert L. Haig, New York LAWYER REFERRAL AND [email protected] Paul Michael Hassett, Buffalo INFORMATION SERVICE Frank M. Headley, Jr., Scarsdale Rebecca Varno, Program Manager Audrey Osterlitz, Coordinator Barry M. Kamins, Brooklyn [email protected] [email protected] John J. Kenney, New York MEDIA SERVICES AND PUBLIC AFFAIRS PRO BONO AFFAIRS Henry L. King, New York Andrew Rush, Director Cynthia Feathers, Director Steven C. Krane, New York [email protected] [email protected] Glenn Lau-Kee, White Plains Frank J. Ciervo, Associate Director Bernice K. Leber, New York [email protected] MARKETING AND A. Thomas Levin, Mineola Patricia Sears Doherty, Sr. Writer INFORMATION SERVICES Kay Crawford Murray, New York [email protected] Richard J. Martin, Senior Director Carla M. Palumbo, Rochester Monica Finch, Editor, State Bar News [email protected] Sharon M. Porcellio, Buffalo Richard Raysman, New York [email protected] DESKTOP PUBLISHING Thomas O. Rice, Garden City BAR SERVICES MARKETING Sanford J. Schlesinger, New York Bradley G. Carr, Director MIS Lorraine Power Tharp, Albany [email protected] Justin L. Vigdor, Rochester John M. Nicoletta, Director Lucia B. Whisenand, Syracuse MEETINGS [email protected] Kathleen M. Heider, Director Jeffrey Ordon, Network Support Specialist [email protected] EX OFFICIO [email protected] Vice Chair of The Fellows CONTINUING LEGAL EDUCATION Sonja Tompkins, Records Supervisor Susan B. Lindenauer, New York Terry J. Brooks, Senior Director [email protected] [email protected] Gregory A. Vincent, Database Administrator Debra York, Registrar [email protected] [email protected] Paul Wos, Data Systems and JOURNAL BOARD Telecommunications Manager, ROGRAMS CLE P [email protected] MEMBERS EMERITI Jean E. Nelson II, Associate Director [email protected] WEB SITE As a tribute to their outstanding service to Leslie A. Fattorusso, Staff Attorney Barbara Beauchamp, Editor our Journal, we list here the names of each [email protected] [email protected] living editor emeritus of our Journal’s Board. Katherine Suchocki, Staff Attorney MEMBERSHIP SERVICES HOWARD ANGIONE [email protected] Patricia K. Wood, Senior Director Immediate Past Editor-in-Chief Cheryl L. Wallingford, Program Manager [email protected] RICHARD J. BARTLETT [email protected] Megan O’Toole, Membership Services Manager COLEMAN BURKE CLE PUBLICATIONS [email protected] JOHN C. CLARK, III Daniel J. McMahon, Director CHIEF SECTION LIAISON ANGELO T. COMETA [email protected] Lisa J. Bataille ROGER C. CRAMTON Marsha Hordines, Research Attorney [email protected] MARYANN SACCOMANDO FREEDMAN [email protected] EMLYN I. GRIFFITH Patricia B. Stockli, Research Attorney PRINT AND FACILITIES OPERATIONS H. GLEN HALL [email protected] Roger E. Buchanan, Senior Director PAUL S. HOFFMAN Mark Wilson, Publication Manager [email protected] CHARLES F. KRAUSE [email protected] BUILDING MAINTENANCE PHILIP H. MAGNER, JR. WALLACE J. MCDONALD AW RACTICE ANAGEMENT L P M GRAPHICS J. EDWARD MEYER, III Pamela McDevitt, Director KENNETH P. N OLAN [email protected] PRINT SHOP Matthew Burkhard, Production Manager ALBERT M. ROSENBLATT FINANCE AND HUMAN RESOURCES [email protected] SANFORD J. SCHLESINGER Paula M. Doyle, Senior Director ROBERT J. SMITH [email protected] LAWRENCE E. WALSH
62 | June 2006 | NYSBA Journal 2006-2007 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES
MARK H. ALCOTT FIRST DISTRICT THIRD DISTRICT Kelly, Michael T. President † Alcott, Mark H. Ayers, James B. Lamantia, Stephen R. Alden, Steven M. Carlucci, James A. McCarthy, Jeremiah J. New York Badway, Ernest Edward Cloonan, William N. McCarthy, Joseph V. Barson, Alan D. Copps, Anne Reynolds Meyer, Harry G. KATHRYN GRANT MADIGAN Bienstock, Peter Davidoff, Michael O’Donnell, Thomas M. President-Elect Brett, Barry J. Dixon, Philip H. Peradotto, Hon. Erin M. Binghamton Brown, Geraldine Reed Doyle, Hon. Cathryn M. Porcellio, Sharon M. † Campos Galvan, Manuel Farley, Susan E. Shaw, James M. Chambers, Hon. Cheryl E. Fernandez, Hermes Young, Oliver C. JAMES B. AYERS Cheng, Pui Chi Gold, Majer H. NINTH DISTRICT Treasurer Chin, Sylvia Fung Greenberg, Henry M. Berman, Henry S. Albany Christian, Catherine A. Higgins, John Eric Campanaro, Patricia L. * Cometa, Angelo T. Kelly, Matthew J. Casey, Bridget M. MICHAEL E. GETNICK Davis, Tracee E. Kinum, John B. Enea, Anthony J. Secretary Dimon, Samuel J. Kretser, Hon. Rachel Gordon Oliver, Arlene Antoinette Dominguez, Ivan J. Martinelli, Patricia Gouz, Ronnie P. Utica Eppler, Klaus Meislahn, Harry P. Kranis, Michael D. Ferrara, Lucas A. Miranda, David P. Lagonia, Salvatore A. A. VINCENT BUZARD Fish, Daniel G. Moy, Lillian M. Lau-Kee, Glenn Immediate Past President Flood, Marilyn J. Netter, Miriam M. Markhoff, Michael S. Rochester * Forger, Alexander D. Perino, Justina Cintron Marwell, John S. Frank, Paul M. Potter, James T. Medican, William A. Fries, Richard S. Privitera, John J. Miklitsch, Catherine M. VICE-PRESIDENTS * Gillespie, S. Hazard Sandner, James R. * Miller, Henry G. Grays, Taa R. Schofield, Robert T., IV Milligram, Steven I. Gredd, Helen A. †* Tharp, Lorraine Power Murray, Conal E. FIRST DISTRICT Green, Prof. Bruce A. Thornton, Timothy B. †* Ostertag, Robert L. Gregory, Prof. John D. * Yanas, John J. Ramsey, Hon. B. Harold Bernice K. Leber, New York Gross, Marjorie E. FOURTH DISTRICT Seiden, Hon. Adam Susan B. Lindenauer, New York Haig, Robert L. Breedlove, Brian H. †* Standard, Kenneth G. Hariton, David P. Burke, J. David Tyre, Margaret H. SECOND DISTRICT Harris, Joel B. Caffry, John W. Wallach, Sherry Levin Hayden, Hon. Douglas J. Barry Kamins, Brooklyn Coffey, Peter V. Welby, Thomas H. Hoffman, Stephen D. Cullum, James E. Wilson, Leroy, Jr. Hollyer, A. Rene Zeltner, Peter P. THIRD DISTRICT Ferradino, Stephanie W. Horan, John R. Haelen, Joanne B. Jackson, Damian S. TENTH DISTRICT Hon. Rachel Kretser, Albany McAuliffe, J. Gerard, Jr. Asarch, Hon. Joel K. Katter, Ronald J. Pelagalli, Paul Kiernan, Peter J. * Bracken, John P. FOURTH DISTRICT Sterrett, Grace Buonora, John L. * King, Henry L. Tishler, Nicholas E. Nicholas E. Tishler, Niskayuna Kobak, James B., Jr. Clarke, Lance D. Kougasian, Peter M. FIFTH DISTRICT Cooper, Ilene S. FIFTH DISTRICT †* Krane, Steven C. Carmen, Peter D. D’Angelo, Frank G. Lansner, David J. Fennell, Timothy J. Duffy, James P., III David M. Hayes, Manlius Leber, Bernice K. Gall, Erin P. Elder-Howell, Andrea M. Lesk, Ann B. Getnick, Michael E. England, Donna Marie SIXTH DISTRICT Levinsohn, Robert J. Girouard, Theresa M. Giorgio, Frank, Jr. James C. Gacioch, Binghamton Lieberman, Ellen Greeley, Kristin B. Glanzer, Mona N. Lindenauer, Susan B. Hayes, David M. Kossove, Scott E. Julian, Hon. Robert F. †* Levin, A. Thomas SEVENTH DISTRICT * MacCrate, Robert Martin, Edwina Frances Mitchell, Richard C. Levy, Peter H. C. Bruce Lawrence, Rochester McShea, Sarah Diane Pellow, David M. Makofsky, Ellen G. McQueary Smith, Prof. Beverly Priore, Nicholas S. Margolin, Linda U. EIGHTH DISTRICT Milito, Christopher Scott * Richardson, M. Catherine Mihalick, Andrew J. Miller, Michael Rivera, Ramon E. Millman, Bruce R. Sharon Stern Gerstman, Buffalo Millett, Eileen D. Weinstein, Ellen Stempler * Pruzansky, Joshua M. Minkowitz, Martin Quinlan, Robert F. NINTH DISTRICT SIXTH DISTRICT * Rice, Thomas O. Moreland, Thomas H. Campanella, Ottavio Nathanson, Eugene Santemma, Jon N. Henry S. Berman, White Plains Cummings, Patricia A. Shulman, Arthur E. Nathanson, Malvina Egan, Shirley K. Opotowsky, Barbara Berger Smolowitz, Barry M. TENTH DISTRICT Gacioch, James C. Sperendi, Michael F. * Patterson, Hon. Robert P., Jr. Gorgos, Mark S. Hon. Joel K. Asarch, Hempstead Paul, Gerald G. Stempel, Vincent F., Jr. Madigan, Kathryn Grant Tell, M. David Reed, Thomas A. May, Michael R. ELEVENTH DISTRICT Richman, Steven H. Thompson, Charlene R. Sheehan, Dennis P. Tully, Rosemarie Rifkin, Richard Smyk, Stephen D. Seymour W. James, Jr., Kew Gardens Runes, Richard N. Walsh, Owen B. EVENTH ISTRICT Safer, Jay G. S D ELEVENTH DISTRICT WELFTH ISTRICT T D Schultz, Kenneth A. Barney, Brian J. Cohen, David L. Lawrence R. Bailey, New York * Seymour, Whitney North, Jr. Buholtz, Eileen E. Dietz, John R. Sherman, Carol R. * Buzard, A. Vincent Goldblum, A. Paul Sherwin, Peter J.W. Castellano, June M. James, Seymour W., Jr. Sherwood, O. Peter Doyle, Hon. John D. Lomuscio, Catherine MEMBERS-AT-LARGE OF THE Silkenat, James R. Grossman, James S. Nashak, George J., Jr. EXECUTIVE COMMITTEE Sonberg, Hon. Michael R. Harren, Michael T. Rosenthal, Edward H. Spitzmueller, Janiece Brown Lawrence, C. Bruce Walsh, Jean T. Vincent E. Doyle, III Stenson, Lisa M. Lightsey, Mary W. Wimpfheimer, Steven Wachtler, Lauren J. McCarthy, Mathew K. David L. Edmunds, Jr. Walsh, Susan J. †* Moore, James C. TWELFTH DISTRICT Timothy J. Fennell Warner, Rita Wasserstein * Palermo, Anthony R. Bailey, Lawrence R., Jr. Williams, Bryan R. Reynolds, J. Thomas Chavez, Daniel M. Glenn Lau-Kee Younger, Stephen P. Schraver, David M. Kessler, Muriel S. Millon, Steven E. David P. Miranda Schultz, Jill K. SECOND DISTRICT Smith, Thomas G. †* Pfeifer, Maxwell S. David M. Schraver Branda, Rose Ann C. * Vigdor, Justin L. Sands, Jonathan D. Castillo, Nelson A. * Witmer, G. Robert, Jr. Schwartz, Roy J. Peter J.W. Sherwin Cohn, Steven D. Stansel, Lynn DiGiovanna, Lawrence F. EIGHTH DISTRICT Lauren J. Wachtler OUT-OF-STATE Golinski, Paul A. Brady, Thomas C. * Fales, Haliburton, II Kamins, Barry Doyle, Vincent E., III Krooks, Howard S. Longo, Mark A. Edmunds, David L., Jr. Peskoe, Michael P. Slavin, Barton L. * Freedman, Maryann Saccomando Ravin, Richard L. Sunshine, Hon. Nancy T. Gerstman, Sharon Stern * Walsh, Lawrence E. Szochet, Diana J. †* Hassett, Paul Michael
† Delegate to American Bar Association House of Delegates * Past President
NYSBA Journal | June 2006 | 63 THE LEGAL WRITER BY GERALD LEBOVITS
You Think You Have Issues? The Art of Framing Issues in Legal Writing — Part II
ast month the Legal Writer offered imagination,14 as explained in Part I of be dismissed, given that the car some suggestions on writing this column. Frame your issue in a way was used when she bought it?24 [55 Ldeep issues. We continue. that “not only will help you capture the words] Court but which will stick your capture At 10:30 one morning last fall, Writing Deep Issues in a Brief into the Court’s head so that it can’t Father Michael Heaven was on his The outcome of a case rests on how forget it.”15 If you do all that, you’ve way to buy groceries for his parish the court approaches the issues pre- made the court’s job easy, and that’ll when his car collided with sented. Framing the right issue and the increase your odds of winning. Beelzebub Bumper’s car. The right answer go hand-in-hand. As The majority of the briefs you’ll Salvation Church, which owned Justice Felix Frankfurter explained, write won’t have dispositive prece- Heaven’s car, required its priests to “the right answer usually depends on dents. So don’t “ru[b] the judges’ noses buy groceries as part of their putting the right question.”1 In a brief, in the precedents.”16 Convince the priestly functions. Was Heaven the frame the deep issue so that if your court that your position “is the more Church’s agent at the time of the question is accepted or answered in reasonable one in light of all relevant accident? If so, should the Church your favor, the case will turn your circumstances.”17 Use case law, “not as be liable for damages?25 [66 words] way.2 The persuasive deep issue can a club with which to beat your oppo- Shabby Steel manufactured and have only one answer.3 Express the nent to death, but as a source of poli- sold to Dumdum Designers a issue fairly to support your theory of cies to guide decision.”18 Use case law widget designed for a trolley sys- the case.4 Find the premises that’ll to show that your position doesn’t vio- tem. With Shabby Steel’s knowl- make the court reach your conclusion.5 late settled law.19 Don’t argue that the edge and approval, Dumdum Spoon-feed your readers the issues to result for which you’re advocating is Designers acquired the widget and get the answer you want.6 The way “already ‘in’ the law”20 when there’s added a new motor and cable, and you frame the issue “is the spoon you no dispositive precedent. integrated the widget into its will use to feed” the reader.7 When phrasing a persuasive deep defectively designed dumbwaiter When writing a brief, put yourself in issue, don’t state a false issue.21 Never system. The dumbwaiter injured the court’s shoes.8 The court has neither invent or skew facts or leave out any Red Burns. Is Shabby Steel liable the time nor the specialization to know determinative facts — those facts on for Burns’s injuries?26 [55 words] everything about your case. Make your which a case turns — even if they hurt brief “completely self-contained, intel- you.22 From beginning to end, “you lectually as well as physically.”9 must maintain credibility and must Spoon-feed your issues Explain the problem in the case and fairly link the statement of the issue to to your readers to get argue the law.10 Tell the court the fac- your genuine argument on appeal.”23 tors that’ll affect the parties and the Here are some examples of persua- the answer you want. public.11 Include the relevant part of a sive deep issues. statute, contract, regulation, or any New York prohibits a person from These examples of persuasive deep other document, if your case rests on suing for breach of an implied issues present the legal controversy, interpreting them.12 A judge will warranty when that person know- introduce the relevant facts, and sug- always ask, “What question am I sup- ingly purchased used goods. Sue gest an answer of yes. The reader posed to answer in this case?”13 State Second-Hand bought a 1985 understands the events and will be the answer to the question and how the Lemon convertible with 12,000 receptive to your arguments and court can, and why it should, rule for miles on the odometer. Should analysis. you. Give the court the issues in your Second-Hand’s claim for breach of case up front to capture the judicial implied warranty against Lemon CONTINUED ON PAGE 52
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