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Queens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500 Vol. 72 / No. 5 / Febuary 2009 Criminal Law: Cases CPLR BY: ILENE J. REICHMAN, ESQ. on the guilt of the accused. By contrast, The Court held that the fingerprint report in Rawlins was “testimonial” since it During the past year, the New York Court of Appeals was inherently accusatory and offered to prove an essential Update addressed a variety of issues in the area of criminal law and element of the crimes charged. The error in Rawlins was procedure. This article will review and highlight several nevertheless found to be harmless beyond a reasonable cases that may be of interest to the criminal practitioner. doubt. In People v. Michael Rawlins, 10 N.Y. 3d 136 and a com- In People v. Donnie Simmons, 10 N.Y. 3d 946 (decided panion case, People v. Dwain Meekins, 10 N.Y. 3d 136 July 1, 2008), the defendant sought dismissal of an indict- 2009 (decided February 19, 2008), the Court decided to resolve ment on the grounds that his right to testify before the grand an issue of first impression: whether DNA and latent fin- jury had been violated. Simmons was held on bail following BY DAVID H. ROSEN, ESQ. gerprint comparison reports are “testimonial” statements his arraignment in the criminal court on a misdemeanor within the meaning of Crawford v. Washington, 541 U.S. charge where he was represented by an attorney from the Arbitration 36 (2004). In Rawlins, the defendant’s latent fingerprints misdemeanor panel of the Assigned Counsel Plan. At his It is basic to the deter- were lifted from six burglarized commercial establishments next court appearance, the prosecutor notified him and his mination of arbitration and compared by several different detectives, one of whom attorney of his intent to present the case to a grand jury. issues that whether a con- did not testify at trial. In Meekins, a DNA report was pre- However, his attorney failed to appear for the scheduled tract to arbitrate has in fact pared by multiple technicians at a private laboratory that the grand jury appearance and Simmons was not produced for been made is a matter to NYPD had outsourced the task of testing crime scene sam- that proceeding. In support of the motion to dismiss filed by be determined by the ples. None of the technicians testified at trial. However, a his new attorney, Simmons argued that his first attorney had court. Where the parties supervisor at the laboratory testified that she had reviewed constructively abandoned him at a critical stage of the pros- have agreed to arbitration, David H. Rosen, Esq. the technicians’ results. In each case, the prosecution intro- ecution. The Court of Appeals disagreed, holding that the and one party demands duced the reports prepared by the non-testifying witnesses failure of defense counsel to facilitate defendant’s testimo- arbitration of a dispute, the service of the demand as business records prepared and kept in the regular course ny before the grand jury did not amount to a denial of his triggers a short limitations period of twenty days, of business. On appeal, Rawlins and Meekins challenged the right to effective assistance of counsel since there was no during which the responding party must make admission of those reports as a violation of their Sixth showing that the outcome of the grand jury proceeding application to the court for a stay of arbitration or Amendment right of confrontation. The Court of Appeals would have been different if he had testified. be held to have waived any objection to the arbi- held that the DNA report in Meekins was not “testimonial” In People v. Jason Naradzay, N.Y.3d (decided tration based upon the demanding party’s lack of within the definition of Crawford because it shed no light ______Continued On Page 12 compliance, or time limitations or even that the dispute is within the arbitration agreement. An exception to this strict rule applies where the par- ties 2 never in fact agreed to arbitrate. In such a New Amendments to Section 3420 case, the Court of Appeals has previously held in Matter of Matarasso that the twenty-day limita- tions period does not apply.3 of the Insurance Law Relating to Late Notice In Matter of Fiveco, Inc. v Haber, the Court of Appeals considered whether the 4 Matarasso rule applies so as to allow a late petition to stay arbi- to Insurers and Disclaimers of Coverage tration, where the contract has expired. The Court found the Matarasso rule to be inapplicable, thus BY MARTIN SCHULMAN, ESQ.* to an insurer, even where such delays were inno- disallowing the late petition to stay arbitration cent or the result of honest misunderstandings on and directing the parties to arbitrate. On January 17, 2009 a change in the Insurance the part of the insured often resulted in a disclaimer The contract involved the installation and Law took effect that substantially benefits both by the insurer and its refusal to either defend or maintenance of music and game machines in insured and injured parties. As of that date amend- indemnify under an insurance policy. petitioner’s bar. The contract contained a broad ments to Section 3420 of the Law mandate that an A concise statement of the Court’s position was arbitration clause, and was to last for five years, insurer may not disclaim coverage based on “late given in 2005 by Judge Smith in Argo Corp. v. with a five-year extension if certain payments notice” unless it suffers material prejudice as a Greater N.Y. Mutual Insurance Co., 4 NY3d 332. were made by the respondent vendor to petition- result of the delay. In conjunction with the change, He wrote: er. A payment was made, but petitioner claimed Sec. 3001 of the CPLR was also amended to allow Martin Schulman, “A liability insurer, which has a duty to indemni- that it was not one which would trigger the five injured parties to maintain Declaratory Judgment Esq. fy and often also to defend, requires timely notice of year extension. Claiming that the contract had actions against an insurer on the issue of late notice. lawsuit in order to be able to take an active, early role expired, petitioner demanded that respondent in the litigation process and in any settlement discussions and remove the machines from its premises, which Background to set adequate reserves. Late notice of lawsuit in the liability the respondent did. Respondent then served a Prior to the change, signed into law by Governor Patterson insurance context is so likely to be prejudicial to these con- demand for arbitration, alleging that the payment in July, 2008, if an insured failed to notify its insurer of an cerns as to justify the application of the no-prejudice rule. did extend the contract for the additional five accident in a timely manner, the insurer was able to disclaim Argo's delay was unreasonable as a matter of law and thus, its years, and that petitioner had breached the con- coverage whether or not it was prejudiced by the delay. failure to timely notify GNY vitiates the contract. GNY was tract by demanding removal of the machines. New York was one of only a few states that adhered to the not required to show prejudice before declining coverage for More that three months later, petitioner com- “no prejudice” rule and it was rigidly enforced by the Court of late notice of lawsuit.” menced the proceeding pursuant to CPLR Article Appeals. Delays in giving notice of an accident or an injury ______Continued On Page 18 ______Continued On Page 14 photo by Robert Nieter INSIDE THIS ISSUE

New Amendments to Insurance Law .....1 Lippman Begins As New Chief Judge...... 4 CPLR Update ...... 1 Profile Of Judge Carmen Valasquez ...... 5 Criminal Law: Cases ...... 1 Culture Corner ...... 6 President’s Message ...... 3 Leonard Livote Helps Welcome Obama .9 Tribute To Hon. Thomas V. Polizzi ...... 3 Photo Corner: Foreclosure Seminar 10-11 Pretrial Advocacy Ethical Checklist...... 4 Court Notes ...... 12 2 THE QUEENS BAR BULLETIN – FEBRUARY 2009 THE DOCKET . . . Queens County Bar Association being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be held at the Bar 90-35 148th Street, Jamaica, New York 11435 • Tel 718-291-4500 • Fax 718-657-1789 Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will be made available to mem- bers via written notice and brochures. Questions? Please call (718) 291-4500. QUEENS COUNTY BAR ASSOCIATION PLEASE NOTE: The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Legal Education Provider in the State of New York. SCHOLARSHIP FUND 2009 SPRING CLE Seminar & Event Listing February 2009 Dear Members: Monday, February 23 Stated Meeting - Small Firm & Solo Practitioners Thursday, February 26 Psychological Issues Underlying Lawsuits (rescheduled The Queens County Bar Association’s Scholarship fund was created to offer finan- from Nov 08) cial assistance to law students who are residents of Queens County or attend law March 2009 school in Queens County. Wednesday, March 4 Court Evaluator Training The recipients of the QCBA Scholarship are carefully chosen based on academic Thursday, March 12 How to Obtain Court Appointments achievement, community service and financial need. Wednesday, March 18 CPLR & Evidence Update Your tax deductible donation will help to support and recognize those law students Monday, March 23 Past Presidents & Golden Jubilarians Night who provide community service to the residents of Queens County. It also enhances the good name of our Association. April 2009 As President of the Queens County Bar Association, I urge you to support this Wednesday, April 1 Equitable Distribution Update valuable community-based program. Thursday, April 2 Ethics Seminar Tuesday, April 7 Bankruptcy Seminar - TENTATIVE Monday, April 20 Judiciary Night Tuesday, April 21 Guardianship Annual Accounting - TENTATIVE Sincerely, Wednesday, April 22 Selection of a Jury Thursday, April 23 Basic Criminal Law Seminar – Part 1 STEVEN S. ORLOW Thursday, April 30 Basic Criminal Law Seminar – Part 2 President May 2009 Thursday, May 7 Annual Dinner & Installation of Officers CLE Dates to be Announced 2008-2009 Elder Law Real Property Law Juvenile Justice Law Surrogate’s Law Officers and Board of Managers Labor Law Taxation Law of the NEW MEMBERS Queens County Bar Association Rory Alarcon Damien Bosco John Paul Mixon STEVEN S. ORLOW - President Musa Ali Wynter Vincent Galindez Abel Luc Pierre Christopher Michael Alexander Hakopian Mark I. Schreck GUY R.VITACCO, JR. - President-Elect Arzberger Brendan Hennessey Tiberiu Weisz Cindy Helene Barrios Kimberley Anne Lazar Jean C. Wesh CHANWOO LEE - Vice President NECROLOGY JOSEPH JOHN RISI, JR. - Secretary RICHARD MICHAEL GUTIERREZ - Treasurer Vincent P. DiStephan

Class of 2009 Class of 2010 Class of 2011 Joseph F. DeFelice Gregory J. Brown David L. Cohen Directory Correction Gary Francis Miret Joseph Carola, III Paul E. Kerson Due to a technical glitch in the production of the 2009 Annual Directory to the George J. Nashak, Jr John Robert Dietz Timothy B. Rountree Queens County Bar Association, some addresses in the letters "D", "E" and "O" Jerome D. Patterson Mona Haas Zenith T. Taylor were misaligned from their corresponding names. Despite the efforts on part of the Nelson E. Timken James J. Wrynn publisher and the Bar Association, the error was not caught until after the book was printed and distributed. An insert will appear in the March edition that can be slipped into the existing Arthur N. Terranova . . . Executive Director directory, replacing the pages in question. We apologize for the error. QUEENS BAR BULLETIN

If you or someone you know is having EDITOR - LESLIE S. NIZIN a problem with alcohol, drugs or Associate Editors - Paul E. Kerson, Michael Goldsmith & Peter Carrozzo

gambling, we can help. Send letters and editorial copy to: Publisher: Queens Bar Bulletin, 90-35 148th Street, Long Islander Newspapers, LLC. Jamaica, New York 11435 To learn more, contact QCBA LAC for under the auspices of Queens County Bar Association. Editor’s Note: Articles appearing in the Queens Bar a confidential conversation. Queens Bar Bulletin is published Bulletin represent the views of the respective authors and do not necessarily carry the endorsement of the monthly from October to May. Association, the Board of Managers, or the Confidentiality is privileged and All rights reserved. Editorial Board of the Queens Bar Bulletin. Material in this publication may assured under Section 499 of the not be stored or reproduced in “Queens Bar Bulletin” Judiciary Laws as amended by any form without permission. (USPS Number: 0048-6302) is published monthly except ©2009 June, July, August and September by Long Islander Newspapers, LLC., 149 Main Street, Huntington, NY 11743, Chapter 327 of the laws of 1993. under the auspices of the Queens County Bar Association. The Queens County Bar Entered as periodical postage paid at the Post Office at Jamaica, Association, Advertising Offices, New York and additional mailing offices under the Act of Lawyers Assistance Committee Long Islander Newspapers, Congress. Postmaster send address changes to the Queens 149 Main Street, Huntington, County Bar Association, 90-35 148th Street, Jamaica, NY Confidential Helpline 718 307-7828 New York (631) 427-7000 11435. THE QUEENS BAR BULLETIN – FEBRUARY 2009 3

PRESIDENT’S MESSAGE

resents the vast majority of our extant by virtue of the such as these should be implemented but, if Changes Are Association’s members. This Castellano Commission implemented, what form should such approach anticipated changes in Report solicited by Chief implementation take place. Coming our court procedures, many of Judge Kay, include significant So this is an invitation to all our Queens which are now being contem- changes to preliminary confer- County Bar Association members. If ever Word is getting around that changes are plated. ences, (such as eliminating you wanted to express yourself regarding coming. Changes that will effect the way The truly crucial issue with many appearances), greater some court practice or procedure you found each of us practices in our courts. These which we are now faced is institutionalization of summa- annoying or unnecessary, or have a sugges- changes will affect our use of technology whether the changes we as prac- ry jury trials, greater unifica- tion which you think would make your life and our appearances in court. It will titioners contemplate will be tion of court rules, increased as a litigator easier, this is your opportunity undoubtedly impact the allocation of our either imposed upon us, perhaps access to court files on the to speak up. law office resources including personnel, in a form not of our choosing, or Steven Orlow internet, greater use of faxing It is our profession, it is our lives, so let’s finances and, perhaps most significantly, will we have the opportunity to (such as courts providing not yield the shape it will take to others. use of our time. influence the nature and extent copies of signed orders) and Becoming president, I committed doing of changes we believe would be most bene- the increased use of filing by electronic Stated Meeting what I could to alleviate the burdens on the ficial. means. Monday, February 23, 2009 small firm and solo practitioner which rep- Numerous recommendations, already It is not only whether or not suggestions Queens County Bar Association A Tribute to Hon. Thomas V. Polizzi BY: PETER LANE, ESQ.* on this Earth. He cared similar- the lawyers, always trying to ly for his friends, and he had a learn something and find a The loss of Hon. Thomas V. Polizzi on special place in his heart for solution. I have a note he December 20, 2008 after a battle with children. He kept a fresh jar of wrote me saying: “The most esophageal cancer is something no one lollipops for children; he loved frustrating part of being a could have imagined a short time ago. He them very much. He was a pas- good lawyer is putting up was a significant part of many people’s sionate man too, who loved his with those lawyers and judges lives in many varied ways. Since his pass- Faith, his Sicilian heritage, his who think they alone know ing people have talked about their thoughts friends and yes, the Law. the Law and there is nothing and memories of him. I’m told stories that to discuss, not realizing that convey the central theme that he was a The Law and Respect for the Law is flexible and not Peter Lane Esq. well-trusted, charitable and kindly inspir- Lawyers sacrosanct.” ing man, intellectually, emotionally and Judge Polizzi had a tremendous and His organized and flexible mind, togeth- otherwise; and a very good and loyal abiding respect for lawyers, and he er with his experience as a practicing attor- friend. He was all those things to me. His encouraged trial lawyers to be their best. ney, was enhanced by a considerable passing leaves an unsettled feeling, as if He felt badly whenever he heard that a knowledge of the Law. He could quickly suddenly there were several missing planks judge had yelled at or demeaned a lawyer. synthesize facts and issues and analyze underfoot on a pier way out on the water. He would talk about how those situations their relationship to the Law, and then con- However, unsettled feelings give way to could have been handled more tactfully. In vey his analysis clearly to trial attorneys, joyous thoughts when one turns the mind the afternoon, he would talk with his staff often with a disarming sense of humor. to memories of this good man. We all have about his handling of the lawyers and the This accounted for his exceptional ability our own moments and memories of Hon. issues, and question whether he handled to settle complex civil actions, for which Hon. Thomas V. Polizzi Thomas V. Polizzi, and from endlessly them carefully, thoughtfully and respect- the trial attorneys always seemed appre- varied vantage points. But like spectators fully enough. He was a Judge who cared ciative. be six paces away from him trying unsuc- in the same theater, we all saw essentially about his cases, and the lawyers who cessfully to get his attention on something the same fantastic show. Let me share appeared before him. This is how he Sense of Honor, Sense of Humor important. Since he appeared over- some memories of Hon. Thomas V. earned respect. Judge Polizzi was also the sort of man whelmed, I would walk into the next room Polizzi with you and give you a sense of His respect for lawyers was firmly who valued his independence and natural- and call him on the telephone. He was sure his character. grounded in his experience as a practicing ly maintained his integrity in his dealings to pick up that telephone…and I could get lawyer for over 20 years here in Queens, with people. He never forgot a debt, and his attention that way. We always had a Personal Life before becoming law secretary to Hon. would not let others take advantage of laugh about that. Hon. Thomas V. Polizzi, known as Lester Holtzman, Hon. Frank O’Connor, him, unless it was at the expense of humor. Judge Polizzi to the legal community, or and Hon. Joan-Marie Durante, and before In this way, he was very modest. Charitable Heart “Tom” to his many friends, was born to becoming a Supreme Court Justice. He He loved to tell jokes, and then blush. Judge Polizzi had a kind, generous and hard-working Sicilian immigrants here in knew how hard it was for neighborhood Corny jokes, religious jokes, risky jokes, charitable heart. His benevolent munifi- New York City and lived in an old-fash- lawyers to earn a living, particularly if jokes that would appear immoral at first, cence was apparent when he gave you his ioned railroad tenement housing most of they had a family to sustain. He was con- but with the wit and sarcasm he employed time, advice, knowledge and support. He his youth. He played stick-ball in the scientious about forging opportunity and so effortlessly, so brilliantly, they were listened to you, and it did not matter who streets, rode the subways, and obtained a experience for the greater community of nothing short of phenomenal. you were: a judge, an attorney, an intern, college education at City University of Queens lawyers, and his enduring relation- His delivery was interesting: I would or an old friend come to visit. I can’t tell New York. After graduating St. John’s ship with Queens lawyers is evidenced by describe it as laxly emotive, starting with you how many times friends would call Law School, he left New York City to his membership of over 50 years with the mirth or a chuckle, building with mimic and say “Peter, can I talk to Tom about serve in the United States Army during the Queens County Bar Association and his and gestures, and ending with a poignant something personal?” Do you remember Korean War, being stationed in Arkansas. roles as President of the Columbian guffaw as he, rosy-faced, gleaned a smile ‘Tom’ saying to you: “Here’s what you Upon his return he married his wife, Lawyers Association and President and in the warmth of his absurd or shameful th should do…”, or “I’ve got an idea….” Palma, with whom he spent his 50 wed- Judicial Moderator of the Catholic subject. Speech for Judge Polizzi was Once he received a call from a dying ding anniversary this past November. Tom Lawyers Guild. gracefully punctuated by gestures, pauses, man whose wedding plans were to be and Palma moved from Jackson Heights to On the subject of lawyers, he always and casual runs of his one hand to his tie or ruined by his imminent death. The groom Flushing where they raised two children, liked them to be well-organized and pre- his wrist, or both hands over the heart. He had been unsuccessful in finding someone Thomas and Carol; they have two surviv- pared. He had high standards for that, as he had the vocal style of a guy who had a lot to perform the marriage on an emergency ing grandchildren. himself was a well-organized and prepared to say, and his words kept coming and basis. Judge Polizzi made the necessary He matured into a man with an outsized man. He was not rigid or castigatory with coming. arrangements and was at the groom’s bed- character, a large and generous heart and lawyers when they were unprepared, and On the subject of talking, he was an side with the bride that evening to perform an active, vigorous mind that he put to use was always patient while guiding them excellent conversationalist. But did you the marriage. The man died the next day. with a wit and warmth that naturally through the trial process. His patience bore know he could carry on multiple conversa- Judge Polizzi told me with tears in his eyes attracted people toward him. He employed him a unique quality at being serendipi- tions at once? He’d have people in front of that “the groom and his bride were so his caring heart and working mind to faith- tous. Such a quality favors a prepared him, a staff member to the side of him, happy together.” fully care for other people around him mind that has the faculty to find facts and someone on the telephone, someone wait- A very obvious extension of his gen- throughout his life. He always put his fam- issues that are not looked for, and then to ing on the telephone…he loved that tele- erosity was his and Palma’s hospitality ily first, and if you knew him you knew he discover something new in the process. He phone. Sometimes while he was in the cherished his family more than anything would discuss the facts and the issues with midst of multiple conversations, I would ______Continued On Page 7 4 THE QUEENS BAR BULLETIN – FEBRUARY 2009 Judge Lippman Begins Service as New Chief Judge of the New York Court of Appeals BY SPIROS TSIMBINOS on the Appellate Division, he was a Judge not selected from the New York Appeals, were the leading candidates for Supreme Court Justice serving in Court of Appeals itself in more than 100 selection of Chief Judge. Evidently, On January 14, 2009, Governor Westchester County. years. because of the high quality of the candi- Paterson announced that he had selected Judge Lippman is a graduate of New Judge Lippman is well known for his dates who were presented to him, and the Jonathan Lippman as his nominee to be York University School of Law, and has administrative skills, and it was recently difficult decision which he had to make, Chief Judge of the New York Court of been a long time resident of New York reported, as he was concluding his two- Governor Paterson waited almost to the Appeals. In late January, the State Senate City. He is married with two children. He year tenure on the Appellate Division, that last day of the required time period to confirmed Judge Lippman’s nomination, was selected from a list of seven nominees the backlog of that Court had been dra- announce his selection. The choice of and he assumed his seat on the Court of presented to the Governor to fill the posi- matically decreased, and that cases were Judge Lippman was well received within Appeals during the month of February. tion recently vacated by Chief Judge being heard and decided in a more expe- the legal community and we are certain Judge Lippman has a long and distin- Judith Kaye, who retired on December 31, ditious manner. Governor Paterson, in that he will make an outstanding contribu- guished career of service within the judi- 2008. Judge Lippman has reached 64 making his selection of Judge Lippman, tion to the Court of Appeals and to the cial system. He served as Chief years of age and will be able to serve as praised the Judge’s qualifications and New York State Court System. Judge Administrative Judge of the New York Chief Judge of the New York Court of character, and stated that he would make Lippman is well known to our Bar Unified Court System for over 11 years, Appeals for a little more than six and a an outstanding Chief Judge of the Court. Association having appeared at many of and most recently was the Presiding half years, to wit, December 31, 2015, It had been widely reported that Judge our programs and functions. We congrat- Justice of the Appellate Division, First when he reaches the mandatory retirement Lippman and Judge Jones, who was ulate Judge Lippman on his appointment Department. Prior to his selection to serve age. Judge Lippman is the first Chief already sitting on the New York Court of and wish him all the very best. Pretrial Advocacy: An Ethical Checklist — Part I BY GERALD LEBOVITS AND JOSEPH CAPASSO four judicial departments of the Appellate dollars to which you seem to have a legal Division approved on December 16, 2008, claim, but which rightfully belongs, it Professionals use checklists to ensure and which will take effect on April 1, appears to me, as much to the woman and consistency and completeness in carrying 2009.3 her children as it does to you.”4 Lincoln out tasks. Checklists are useful memory continued: “You must remember that aides when multi-tasking under stress to A. Ethical Considerations During the some things legally right are not morally finish a project. Commercial airline pilots Initial Client Interview. right. We shall not take your case, but will use checklists during each phase of flight to Client interviews are an important first give you a little advice for which we will ensure that they configure the aircraft for step in pretrial litigation. During the inter- charge you nothing. You seem to be a engine start, taxi, and take-off. Pilots also view, information flows rapidly between sprightly, energetic man; we would advise rely on checklists so that they do not forget attorney and client. The attorney must you try your hand at making six hundred routine tasks like deploying the landing make quick decisions, ask follow-up ques- dollars in some other way.”5 Gerald Lebovits Joseph Capasso gear during an in-flight emergency. tions to elicit more facts, and be mindful of An attorney needs facts to make this ini- ethical norms. Robert Traver illustrated Checklists are equally useful in the legal numerous ethical situations that might tial moral decision. The attorney must this principle in Anatomy of a Murder.6 profession. The phases of pretrial litigation arise. With a checklist in hand, the prudent determine the best way to secure these The defense attorney lectured his prospec- include chaotic procedures that require attorney will avoid many hazardous ethi- facts from the client. Attorneys should tive client, Lieutenant Manion, on the legal expert multi-tasking. Using an ethical cal dilemmas. Initially, the attorney must learn the entire story, from the client and defenses to first-degree murder, trying to checklist will save the attorney from a decide whether representing the client is other sources, while allowing the client to obtain facts to support Manion’s only “gear-up” landing. morally correct. The attorney must then present the facts undisturbed. Attorneys plausible defense. The attorney reflected: This article sets forth an ethical check- guard against shaping the client’s factual who do not actively listen or who fail to “It had been obvious to me . . . that insan- list that highlights important provisions of narrative to fit a legal theory and helping facilitate full client communication risk ity was the best, if not the only, legal the Federal Rules of Civil Procedure the client commit illegal conduct. During embarking on litigation without all the rel- defense the man had. And here I had just (F.R.C.P.), the New York Civil Practice the initial interview or soon thereafter, the evant facts. Attorneys who knowingly slammed shut every other escape hatch . . Law and Rules (C.P.L.R.), the American attorney should define the scope of the ignore, or decide they do not want to . .”7 Bar Association (ABA) Model Rules of representation and fee arrangement. know, the facts place themselves in dan- The attorney told Manion that persons Professional Conduct, the 2009 New York gerous ethical situations. The next item on acquitted of murder due to insanity must Rules of Professional Conduct,1 and the Does the client have a legal and moral our ethical checklist, therefore, is to use spend time in a mental hospital. The law New York State Standards of Civility.2 right to the relief requested? care developing the facts underlying a required this to discourage phony pleas. In Attorneys must consider these provisions The first item on every ethical checklist case. explaining the law in a precise sequence, from the initial prospective-client inter- involves a threshold moral determination. the attorney led his client to the insanity view through the pleading, discovery, and Abraham Lincoln once told a prospective Do not mold the client’s factual narra- defense but stopped just short of asking motion stages of pretrial negotiation and client: “Yes, . . . we can doubtless gain tive to fit a legal theory. him whether he was insane when he com- litigation. All references in this article to your case for you; . . . we can distress a An attorney’s efforts to structure a mitted the murder. Instead, “[t]he lecture the New York Rules of Professional widowed mother and her six fatherless client’s version of the facts can cross the was about over. The rest was up to the stu- Conduct are to the new Rules, which the children and thereby get you six hundred line from poor interviewing to violating ______Continued On Page 13

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Velasquez Judge Velasquez is quite disarming. her community and the legal ner at Terrace at the Park to rival such a positive thing for a judge to have had Nothing about her is exactly what it appears profession, too numerous to our own. significant experience as a practicing attor- at first blush. When you sit down with the mention. She was personally On a more personal note, I am ney. She knows our problems; she was a Judge she is so relaxed, so charming and so recognized by El Diario, the aware of the many pro-bono rep- single practitioner who was obligated to unpretentious that you feel as though you Latin American Cultural resentations which she has taken appear in more than one courthouse on the are interviewing your next door neighbor, a Center, the Corona-Elmhurst on for members of her local com- same day, understands about difficult nice lady with children who is a stay at Center for Development to munity who were simply deserv- clients and scheduling conflicts which home Mom who bakes cookies. Nothing name just a few. She was per- ing folks with a legal problem but occur merely because you forgot to bring could be further from the fact. haps the president of Latino without the money to pay for a your diary with you to court. Her election to The Judge is an immigrant from Ecuador Lawyers who did the most to lawyer. Carmen Velasquez the Civil Court of Queens County is some- and, accordingly, speaks with a light launch that organization and to Hon. Carmen always seemed to find time for thing to be celebrated … a Judge who was Spanish accent. She looks you in the eye gain national recognition for it. Velasquez them. She has tried murder cases a real lawyer. Personally, I can’t wait for and responds fully and quite candidly to Latino Lawyers now has hun- and D.W.I.s, and everything in her to come over to Criminal Court… every question posited … but she is so dreds of members and hosts an annual din- between. From our own perspective, it is — STEPHEN J. SINGER down to earth that you are immediately placed in a relaxed mode yourself and what began as a ritualized journalistic interview process evolved into a wonderful conversa- tion with a friend. Her real story is the female equivalent of Horatio Alger (for you old timers who even know who Horatio Alger was). Coming from a home with very modest income, she had to fight prejudice at every level to achieve even a college education, let alone a legal one. Within her culture, women of her era were encouraged to become secre- taries or nurses, but certainly not to expend the years and money required to achieve a professional degree. However, her dreams of becoming a lawyer were strong enough to survive all attempts to deprecate that ambition. She graduated from Long Island City H.S., John Jay College of Criminal Justice and eventually attended and com- pleted her legal education at Temple Law School. And the Judge did it the “old fashioned” way, working her way through college and then obtaining a full scholarship for her legal degree as the result of high scholastic achievement and personal dedication to her professional goals. Of course, she did receive her Juris Doctor degree. Following graduation she gained employment as an Assistant District Attorney in the Bronx. After earning her foundation legal experi- ence there she became a Deputy Advocate, as it is called, with the Legal Affairs Division of the N.Y.C. Sanitation Department. In 1991 she left government service and entered private practice, taking on the heavy weight of a solo practice, which, as a single Mom, was no mean feat. She concentrated her practice in the fields of criminal defense, family law and immi- gration, doing what she knew best and help- ing her “constituents” at the same time. Worthy of note, this single parent with a developing solo law practice found the time to participate in meaningful professional endeavors that most of us don’t seem to manage to participate in. She was one of the founding members of the Latino Lawyers Association … the first bar association for attorneys of Hispanic descent in our county … and rose to the presidency of that organ- ization. Recognized both for her legal accomplishments and her efforts to assist the local Spanish community, she became the President of the Hispanic National Bar Association – New York Region, is the Chair of the Alumni Association of the Puerto Rican Legal Defense Fund, the Treasurer of the Queens Legal Services Corporation, a board member of the Latin American Cultural Center, the La Guardia Community College Foundation and served as a board member of our own Queens County Bar Association. Whew! And those are only a small portion of the associations she has participated in over the years. This legal dynamo has been the recipient of numerous awards for her contributions to 6 THE QUEENS BAR BULLETIN – FEBRUARY 2009 THE CULTURE CORNER

BY HOWARD L. WIEDER Hotel, Buried Child, The Late tor of such talent, skill, and nur- honored to be a part of this experience with Henry Moss, States of Shock, a turing. such amazing talent, both on the stage and BLACK HISTORY MONTH is cele- Lie of the Mind, True West, and behind the scenes. Although the character of brated in the United States in February. a Workshop production of Half. GLORIA SAUVÉ, a member Priscilla in “THE BOOK OF There could not be a better time for the of Actors' Equity Association, LAMBERT” is a challenging character for world premiere of veteran African- CYNDY A. MARION’s started her Theater, Film and TV Sadrina, she has come to love living under American playwright LESLIE LEE’s new direction has received great career in Toronto Canada, and the A train 4+ days a week as you will see masterpiece drama “THE BOOK OF LAM- press acclaim, and her direction toured most of Canada. She has when you attend performances of LESLIE BERT,” to be presented at the prestigious of “THE BOOK OF LAM- performed nationally and inter- LEE’s play. The talented, beautiful, and and esteemed LA MAMA, EXPERIMEN- BERT” is gripping as she con- nationally. On Broadway, she graceful SADRINA JOHNSON’s most TAL THEATRE CLUB (“LA MAMA” tends with a setting of an aban- Howard L. Wieder appeared in "Comin Uptown." recent credits include being featured in the or “LA MAMA, E.T.C.”) at 74A, East 4th doned subway platform and sev- Off Broadway and Regional New Yorker magazine for her performance Street, in Manhattan’s East Village. eral “fight” sequences with stage guns that Theater credits for the accomplished and tal- in Southern Promises at Performance Space LESLIE LEE’S engaging and absorbing require ammunition. Her other directing ented GLORIA SAUVÉ include: “Having 122, making meringue cookies on the psychological drama, directed by CYNDY credits include: PB&J (NYC International Our Says” (as Bessie), “Ma Rainey’s Black HERE Arts Center stage in Life After Bush A. MARION, occurs on Friday, February Fringe Festival), La Turista and Red Cross Bottom,” “Big River,” “Not with A Bang,” as our new First Lady, and as Polly 13, 2009 and runs for twelve performances (Michael Chekhov Theatre Co.), Twister “Stuck,” “As The Crow Flies,” “We Are Peachum (among other characters) in The through March 1, 2009. with an Octopus and Arthur Murray Taught Your Sisters,” “Starmites,” “Savage Wilds,” Beggar’s Opera with Peculiar Works. Me Dancing in a Hurry (The Puerto Rican “Changes,” “Julius Caesar Set In Africa,” The Spring 2009 program of the 92ND Traveling Theatre), Fool for Love and Mud “The Medea,” “Jacques Brell Is Alive and JORESA BLOUNT, in “THE BOOK STREET Y is phenomenal. The MET (Brooklyn College), Last Train To Nibroc Well Living in Paris,” “Hair,” “Godspell,” OF LAMBERT,” plays the pregnant OPERA has tickets left for Cycle 1 of (American Theatre of Actors), 12 Angry and “Jesus Christ Superstar.” GLORIA Bonnie, who was disgraced at home and in Wagner’s RING, so please do not wait for Men and Fighting The Gorilla ( Riant SAUVÉ has appeared in principal roles in her hometown of Galveston, Texas as a the last minute to order your tickets, since Theatre), The Mandala (The White Heron numerous feature films, including “August prostitute and thief. Bonnie, facing her Cycles 2 and 3 are already sold out. Inc.), and many readings of new plays for The First,” “Lean On Me,” “Turk 182,” pregnancy, of a baby she yearns having, The White Horse Theater Company, La “The First Deadly Sin,” “The Guce Family,” realizes that she can make some important MaMa E.T.C., New Dramatists, The “Middle Age Crazy,” and “Find The Lady.” life choices. It is her struggle, and also Players, and PRTT. GLORIA SAUVÉ’s television credits reflected in the emotional climax between include: “Lipstick Jungle”, and several Lambert and Clancy that we ponder whether CYNDY A. MARION holds an M.F.A. episodes of “Law and Order,” “Now and we can ever be let go freely of past crippling in Directing from Brooklyn College and has Again,”, the Emmy-winning HBO Mini psychological shackles, and allowed a trained with The SITI Co., La MaMa Series “The Corner” [directed by Charles chance at psychological rebirth, just as Umbria, Fordham, T. Schreiber Studio, The Dutton], “Boycott,” “The David Letterman Bonnie literally gives birth. Born and raised Acting Studio Inc., and NYU. MS. MARI- Special,” “The Ellen Burstyn Show,” in North Carolina, JORESA BLOUNT ON is the 2001 recipient of the Brooklyn “Police Story,” “Another World,” and enjoyed acting in both high school and col- College Joel Zwick Scholarship in directing “Texas.” GLORIA SAUVÉ can also be lege. After graduating from the University and one of nytheatre.com's "People of The seen in numerous commercials and of North Carolina at Chapel Hill with a B.A. Year for 2007." CYNDY A. MARION is a Advertising Prints and heard in many radio in Performance Studies, Joresa studied at “THE BOOK OF LAMBERT” member of The Players and The Society of & TV voice-overs. William Esper and Ward Studio. JORESA Stage Directors & Choreographers. BLOUNT has been seen in Five Women The world premiere of “THE BOOK HEATHER MASSIE plays the recur- Wearing the Same Dress (Meredith), The OF LAMBERT” will have begun its Having been given the privilege of work- ring ghost of Virginia, whose memory Woolgatherer and the NY premiere of And momentous run by the time you read this ing under the direction of CYNDY A. haunts the title character Lambert. You will My Name Ain’t Peaches. paper. Performed on the stage of the pres- MARION, I now understand why so many leave the theater remembering her stunning tigious La Mama Experimental Theatre producers entrust their productions and performance in THE BOOK OF LAM- OMRAE SMITH is a versatile, beauti- Club in Manhattan’s East Village, “THE investments and playwrights their new BERT. HEATHER MASSIE portrayed ful, and talented actress who, in “THE BOOK OF LAMBERT” is by Obie-winner works to her professional directorial talents. Mina Loy in LESLIE LEE’S Mina at La BOOK OF LAMBERT” brings to the mem- and Tony-nominee playwright LESLIE A good director has the challenging role of: MaMa in 2007. HEATHER MASSIE’s ories of character Irish cop Michael LEE and is directed by CYNDY A. MAR- examining carefully the text of a play and immense talent and awesome beauty has Clancy’s repeated flashback memories of ION. “THE BOOK OF LAMBERT” fea- working with a playwright, in the case of a graced many stages in NYC, including The Miss Wambaugh, his African-American tures: CLINTON FAULKNER, JORE- world premiere of a play, as in “THE Lamb's Theatre, Theatre Row, Metropolitan first grade teacher. The beautiful and talent- SA BLOUNT, SADRINA JOHNSON, BOOK OF LAMBERT,” to work out Playhouse, and The New Acting Company. ed OMRAE SMITH graduated from The HEATHER MASSIE, GLORIA SAUVÉ, kinks in the text as the characters start to She also won the Jean Dalrymple Best School of Creative and Performing Arts in ARTHUR FRENCH, OMRAE D. take life from the printed page; co-coordi- Supporting Actress Award for The Queen’s Kentucky, where she majored in Theatre SMITH, and HOWARD L. WIEDER. nating and organizing a top-notch technical Knight. The beautiful HEATHER and minored in Ballet/Tap. She has per- crew; planning the blocking or staging of MASSIE is an actress of great accomplish- formed in several plays, including “Noises Performances run from February every scene of the play; entrusting and dele- ment. An entire column could be devoted to Off,” “Flyin' West” and the Trinidadian play, 13-March 1, 2009, at LA MAMA, gating to a carefully chosen and auditioned her works to date. Her regional theater work “The Ritual” to name a few. OMRAE EXPERIMENTAL THEATER CLUB, cast and crew to come up with interpreta- includes performances at: Mill Mountain SMITH has also been in several independ- First Floor Theater, 74A East 4th St. tions and solutions without micro-manag- Theatre, Allenberry Playhouse, Flat Rock ent films. This is her first experience with (between 2nd Ave. & Bowery), AS FOL- ing; and rehearsing, motivating, and chal- Playhouse, Phoenix Theatre, Arizona the prestigious LA MAMA, E.T.C. LOWS: Thurs.-Sat. at 7:30 P.M./Sun. at lenging a group of creative actors to give Jewish Theatre Company, Nearly Naked 2:00 P.M., with an additional performance: their finest performances without being bru- Theatre, Oklahoma Shakespearean Festival, ARTHUR FRENCH, who plays the Wed. Feb 18th at 7:30 P.M. There are 12 tal -- and to do all these tasks within the Southwest Shakespeare, Southern 60+-year-old, blind Otto in “THE BOOK performances for “THE BOOK OF LAM- framework of a rigorously enforced Actor’s Appalachian Repertory Theatre, California OF LAMBERT,” is well known to BERT”: Friday, Feb. 13, at 7:30 P.M.; Equity union schedule, applicable also to Theatre Center, and many others. Among Broadway theatergoers. In fact, while Saturday, Feb. 14, at 7:30 PM; Sunday, Actor’s Equity showcase productions, that HEATHER MASSIE’s favorite roles are: rehearsing for “THE BOOK OF LAM- Feb. 15, at 2:00 P.M.; Wednesday, Feb. permits rehearsals only for set times and Rosalind (As You Like It), Jill (Equus), Sorel BERT,” ARTHUR FRENCH was per- 18, at 7:30 P.M.; Thursday, Feb. 19, at hours. CYNDY A. MARION adroitly han- Bliss (Hay Fever), Rachel (Shmulnik's forming in “Medea.” MR. FRENCH is a 7:30 P.M.; Friday, Feb. 20, at 7:30 P.M.; dles each of the foregoing challenges. Waltz), Toby (Greyhounds), Johnny giant on Broadway, respected by actors, Saturday, Feb. 21, at 7:30 P.M.; Sunday, (Deadheading Roses), Carrie (Carousel), directors, and critics for the depth of his Feb. 22, at 2:00 P.M.; Thursday, Feb. 26, A recent rehearsal with CYNDY A. Cinderella (Into the Woods), and Eliza (My interpretations and the versatility of his at 7:30 P.M.; Friday, Feb. 27, at 7:30 MARION reminded me of the great craft of Fair Lady). HEATHER MASSIE, a mem- roles. ARTHUR FRENCH recently P.M.; Saturday, Feb. 28, at 7:30 P.M.; stage direction. Since my first scene in the ber of Actors' Equity Association, is also the appeared on Broadway in Dividing The and the closing matinee performance on play should tell the audience a lot about my Cultural Envoy to Zimbabwe for the 2008 Estate. His other Broadway credits include Sunday, March 1, at 2:00 P.M. character’s delusional mental state, at the Intwasa Arts Festival. Her recent films are: Ain't Supposed to Die a Natural Death. His rehearsal of that scene, MS. MARION Low Battery and Playing Doctor. acting roles and performances are numer- CYNDY A. MARION is the Director of politely and patiently asked to repeat my ous. Among his many Off-Broadway cred- THE BOOK OF LAMBERT. CYNDY A. first opening scene a dozen times until I SADRINA JOHNSON, also a member its are Two Trains Running, where MARION directed the world premiere of delivered the proper pacing of my conversa- of Actors' Equity Association, is tickled ARTHUR FRENCH won the Lucille LESLIE LEE’s MINA at LA MAMA, tion, tempo, and rhythm of the lines, and pink to have moved from the mountains of Lortel Award for Outstanding Featured E.T.C., in November, 2007. CYNDY A. careful, meticulous stage blocking. Without Virginia (Big Stone Gap) to New York. In Actor. Significantly, ARTHUR FRENCH MARION is the Producing Artistic any frustration, quite the contrary -- a ready “THE BOOK OF LAMBERT,” is a founding member of Negro Ensemble Director of The White Horse Theater willingness to submit to the process -- I SADRINA JOHNSON plays the character Company and received the highly regarded Company, [web site is www.whitehorsethe- repeated the scene, knowing that, by doing of Priscilla, an oversexed exotic dancer, Obie Award for Sustained Excellence of ater.com], for which she has directed: Small so, I was becoming a genuine actor, trying to who lives under the subways. After only two Performance. Craft Warnings, In the Bar of a Tokyo capture reality. I am lucky to have a direc- weeks, SADRINA JOHNSON feels ______Continued On Page 8 THE QUEENS BAR BULLETIN – FEBRUARY 2009 7 A Tribute to Hon. Thomas V. Polizzi Continued From Page 3 ______nourished with humility. He had a strong many years. I think he laughed at the folly Lord sent him another cross to bear, and he during the holidays. There was always an personality which accompanied his mild wrought by his seemly contradictions. The was particularly inspiring in his final days. oversized fruit basket arriving, a luncheon and forgiving nature. Although he truth about him, however, was simply that with friends, personalized Christmas had a progressive outlook on modern-life there was no contradiction: he valued Let Us Honor His Memory cards, and an impeccably wrapped present issues, it seemed he would have preferred meaningful and genuine relationships, he Perhaps the best way we can honor Hon. . . . invariably something thoughtful. His the good old days when life was hard in was reliable, trustworthy, loyal and honest Thomas V. Polizzi’s memory and regain generosity always seemed an expression the tenement, and where the family rallied to his friends, consistent and fair in the some of what we have lost is to practice of genuine respect and affection, a desire around each hard-earned meal. way he treated people, and his unique his virtues in our own lives—to emulate to make sure everyone was comfortable There were interesting differences at charisma attracted people toward him in a his charity, his love, his generosity, his and properly taken care of. work within the man that made you think. remarkable way. hospitality, his respect for others, his end- He was a cross between the Sicilian street- Nonetheless, even his choice of sports less good humor and his attitude to life— Care for the Sick boy from New York and the Army man teams would make you shake your head so as to create better and more interesting Judge Polizzi was perhaps at his best from Arkansas: enterprising but disci- and say: “Tom, what the heck?” He attend- lives for ourselves and others. To do so when he had someone to care for. If a fam- plined, vulnerable yet inventive and self- ed Mets games but talked mainly about the would be a meaningful celebration and ily member or friend was sick he suffered empowered, respectful of authority but Yankees with a fan’s knowledge. But did perpetuation of his life, and a way to pass with that person, and was there with all his always willing to question it. you know he was a die-hard Red Sox fan? on his spirit, his love of life. heart, his mind and his soul. He cared for Although a solid hard-working man who Yes! Not many knew this. Judge Polizzi There really is something to the saying people in their dying days, such as his admired achievement in an old-fashioned was a Ted Williams and a Jimmy Stewart that a man never dies until he is finally for- mother and his mother-in-law. He did sense, if he could bring Italian cooking sort of guy crossed with George Carlin all gotten. And judging from the huge circle everything possible for one grandchild along I could easily see him in the wild, wrapped up in the drama of a Marcello of friends he maintained, and from the whom was terribly sick, and he suffered open, old American West forging law and Mastroianni movie. endless stories and fond remembrances of with his family through the prolonged order out of the chaos that happens when him, it seems perhaps that we can derive tribulation and death of this beloved Law becomes a matter of personal asser- A Man of Faith some solace from the fact that Hon. grandson. He grieved with others when tion that shifts with the winds. Judge Polizzi was a practicing Catholic Thomas V. Polizzi is extremely well- they suffered losses, and was there with Judge Polizzi would keep you thinking who attended mass at St. Andrew Avellino remembered—which is to say that he will advice and direction. because of contrapositions he presented. parish in Flushing. He was a man of Faith, live on in our minds and hearts —and, On a lighter note, his staff would joke One moment you saw this rugged, extravert- and he displayed great Faith in his last inevitably, our own lives—for a very long with him that he was overly concerned ed man with machismo, and the next days. As a witness to his Faith, I suppose I time. May the Good Lord have mercy on about our own health. If one was home moment he could display a humorous smile, might describe it as the courage to have him now and forever. sick he would call every day with a sin- modest, absolutely diffident and humble. hope: the courage to hope that through suf- cere, if not earnest interest. But to all of us He may have appeared to you a contra- fering he would receive God’s mercy and *Peter Lane, Esq. it felt great to get those calls. diction with respect to his political ideas grace, and the courage to hope for an abid- January 15, 2009 and affiliations. Once, as his law secretary, ing love and for an everlasting peace in his Requiescat in pace. A Self-Effacing and Modest Man I remember getting a call from a reporter transition out of this world. He bore his To some extent, Judge Polizzi could be asking how he became a judge: “How suffering with great courage, and with a *About the Author: Peter Lane, Esq. is a self-effacing, and invite your laughter at could the Liberals and Conservatives mind that was as sharp as ever. Court Attorney/Referee in Queens him by presenting himself as something of endorse him, as well as the Democrats and With Faith, Judge Polizzi hoped for a Surrogate Court. He was Hon. Thomas V. an anachronism or a contradiction. Republicans?” Although as a rule I did not better tomorrow for his family and his Polizzi’s Law Secretary in Queens Supreme Although he was confident, talented and respond to such inquiries, this time I friends, and he eased the suffering in this Court. Their affiliation dates back to the decisive as a Supreme Court Justice, he paused and said with a lilt of naiveté: “He world that he and others experienced. His 1970’s, when Peter attended St. Andrew seemed without airs, flexible and well- was elected.” He laughed about this for Faith was an inspiration whenever the good Avellino School in Flushing, NY.

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E-mail: [email protected] 8 THE QUEENS BAR BULLETIN – FEBRUARY 2009 Culture Corner ______Continued From Page 6 youth service. The charity is recognized by for the famous Belgian violinist Eugène Elliott Carter & Heinz Holliger: A the IRS, and all contributions are tax- Ysaÿe in 1886. Musical Friendship. The 92ND STREET CLINTON FAULKNER is the star of deductible. The great work of this charity Y is joining many institutions in celebrating “THE BOOK OF LAMBERT.” Clinton that helps all people was featured by celebri- PINCHAS ZUKERMAN has been a Elliott Carter’s 100th birthday, but it is tak- Faulkner attended Howard University and ty actress OPRAH WINFREY on TV’s phenomenon for four decades. His musical ing a unique approach by focusing on the then later transferred to The American “OPRAH!” genius, prodigious technique, exceptional long-time friendship and musical rela- Academy of Dramatic Arts. Originally artistic standards and devotion to younger tionship between Carter and oboist/com- from Washington, D.C., CLINTON The inspiration behind this website is generations of musicians who are inspired poser Heinz Holliger. The program not FAULKNER performed with various dis- HALLIE KASSANDRA GEIER, an ener- by his magnetism has been applauded only celebrates Carter's 100th and tinguished theaters in the Washington, D.C., getic 11-year old who died in May 2004, worldwide. Equally respected as a violinist, Holliger's 70th birthdays, but allows these area, including the Arena Stage, Studio after being accidentally struck by an SUV, violist, conductor, pedagogue and chamber two musicians to come together for a Theater, and the Discovery Theater. Since while walking the family dog, near her musician, PINCHAS ZUKERMAN is a remarkable series highlighting their partner- being in New York City, CLINTON home in Sunnyside, Queens, New York master of our time. PINCHAS ZUKER- ship. Holliger is considered one of the FAULKNER has been cast in two one-man City. Characteristic of her beautiful soul, MAN turned 60 on July 16, 2008. He world’s foremost oboists, but he rarely per- shows, a sign of the immense talent and HALLIE, while lying in the street, before spends 10 weeks teaching in his role as forms in the U.S., making this celebration charisma of this dedicated actor. He per- expiring, asked whether her dog Cherry sur- Director of the Pinchas Zukerman all the more newsworthy. The April 22 formed Claude Brown’s autobiographical vived [she did]. Performance Program at the Manhattan schedule includes five Carter chamber “Manchild in the Promised Land,” regard- School of Music, and as Artistic Director of works along with Mozart's Adagio and ing the author’s tumultuous life, at the pres- HALLIE KASSANDRA GEIER was the National Arts Centre Summer Music Rondo for Harp, Flute, Oboe, Viola and tigious Abingdon Theater, directed by such a force of life-brimming with optimism Institute in Ottawa, which includes the Cello in C minor, K. 617 and Quartet for WYN HANDMAN. CLINTON and love that her parents, TED GEIER and Young Artist Programme, Conductor’s Oboe and Strings in F Major, K. 370. FAULKNER’s second one-man show was SOFIA LANDON GEIER, my director in Programme and Composer’s Programme. “Ride 'em Cowboy,” describing the lives of “Yellow Face,” and her sisters, MJ and Currently in his 10th season as Music Acclaimed cellist Steven Isserlis wraps black cowboys in the old west. His other NASI, wanted her ideas, enthusiasm, and Director of the National Arts Centre up his third season of family music concerts stage credits include playing the role of hope for peace to live on. They created the Orchestra, PINCHAS ZUKERMAN is for ages 6 and older at the 92nd Street Y on Edmund in Shakespeare’s "King Lear" -- LOVE, HALLIE FOUNDATION so that also Principal Guest Conductor of London’s Sunday, March 1, 2009. In the program good experience considering the amount of others could continue to spread HALLIE Royal Philharmonic Orchestra. Musical Dreamer: The Life and Music of works of the Bard that MR. FAULKNER’s GEIER's optimism through their good Schumann, Isserlis's irresistible wit, conta- character of Lambert quotes in “THE works. HALLIE GEIER loved expressing Acclaimed FRENCH PIANIST gious joy, and masterful artistry come BOOK OF LAMBERT” -- and the charac- her thoughts and ideas in creative ways. She HÉLÈNE GRIMAUD brings her talents to together in an hour-long musical exploration. ter of Lebonne in the Drilling Company's was passionate about everything she did and the 92nd Street Y for the third concert of the production of “Honor.” He has also per- was dedicated to making the world a better Masters of the Keyboard series on Chamber Music at the Y's third pro- formed in several independent films. There place. She saved money from her allowance Saturday, February 28, 2009. Known for gram of the season (Tuesday, March 3 can be little doubt that CLINTON to help children with HIV/AIDS in Africa - her original, passionate, risk-taking per- and Wednesday, March 4, 2009) brings FAULKNER is Hollywood and Broadway- - an issue she learned about in school. formances, Grimaud will present a recital of together a group of celebrated musicians and bound! HALLIE KASSANDRA GEIER best her riveting interpretations of selections personal friends: violinist Jaime Laredo, demonstrates the spirit of LESLIE LEE’s by Johann Sebastian Bach, Ludwig von violist Ida Kavafian, cellist Sharon As Lambert, CLINTON FAULKNER great new masterpiece, “THE BOOK OF Beethoven's Sonata No. 30 in E Major, Op. Robinson, double bassist Kurt Muroki, plays an ex-college Professor of English. LAMBERT,” of persons reaching out to 109, and three transcriptions of Bach com- flutist Tara Helen O’Connor, oboist Lambert’s recent experiences, especially a help other persons not of their race. positions by Ferruccio Busoni, Franz Ariana Ghez, clarinetist Alexander failed relationship has led him into this sub- HALLIE KASSANDRA GEIER's Liszt, and Sergei Rachmaninoff. The con- Fiterstein, horn player David Jolley, and terranean hole where he now lives and many writings (she left behind more than cert is inspired by her LATEST CD, bassoonist Frank Morelli. The ensemble where he now emerges as the respected 1,000 essays, poems, and stories) captured “HÉLÈNE GRIMAUD | BACH,” released will perform three serenades from central delusional leader of five other psychological her positive spirit, her hopes, and her in October 2008, on the prestigious yellow Europe, composed almost 50 years from misfits. Lambert, African-American, is dreams. She wrote of her love and empathy Deutsche Grammaphon label. each other: The earliest work, Ludwig von stunned and fed up by the persistent delu- for people, animals, and the natural world. Beethoven's sonorous Serenade in D sional behavior of another inhabitant of the Her notebooks overflow with drawings, Born in Aix en Provence, HÉLÈNE Major for Flute, Violin and Viola, Op. 25; abandoned subway station, Michael Clancy, poems, ideas, and dreams. Every page GRIMAUD was accepted into the Hungarian composer Ernö Dohnányi's played by me. Lambert decides to embark reveals a fertile mind and giving spirit that Conservatoire National Supérieur de Serenade in C Major for Violin, Viola and upon curing the delusional Irish-American was eager to engage the world around her. Musique in Paris at the age of thirteen. She Cello, Op. 10; and Chris Nex's reconstruc- cop, despite differences in their race, age, A simple inscription in her kindergarten began her international career in 1987 with tion of the original chamber version of and educational attainment. In the journey notebook became her call to action: "People, performances at MIDEM in Cannes, La Johannes Brahms's rarely-performed that ensues, Lambert and Clancy learn that be nice to each other. Love, Hallie." Please Roque d'Anthéron Piano Festival, and a Serenade No. 1 in D Major for Winds and they actually have a lot in common. As visit and consider giving generously to concert with the Orchestre de Paris at the Strings, Op. 11, composed in 1857–58. Lambert, CLINTON FAULKNER gives a www.lovehallie.org. invitation of Daniel Barenboim. Since then, Tickets may be purchased by calling memorable performance. His sweeping Grimaud has given numerous solo perform- 212.415.5500, visiting www.92Y.org/con- emotional power as the thoughtful, but dis- THE 92ND STREET Y PRESENTS ances and made frequent appearances with certs, or at the box office. The 92nd Street Y traught and delusional intellectual, immense many of the world’s most important orches- is located at 1395 Lexington Avenue at 92nd vocal range, crisp articulation, and com- The 92nd Street Y's Distinguished tras. At the French “Victoires de la Street. pelling portrayal will leave its marks on you. Artists in Recital series returns for another Musique” she was nominated Soloist of the MET OPERA’S RING CYCLE season on Thursday, February 26. The first Year in 2000, and in January 2002 she was I am delighted to be playing the char- concert welcomes violinist/violist PIN- appointed an Officier dans l'ordre des Arts et Don’t miss your final opportunity to see acter of delusional, Irish-American, for- CHAS ZUKERMAN, who is celebrating des Lettres by the French Ministère de la Otto Schenk’s landmark production of the mer cop Michael Clancy. I made my pro- his 60th birthday with an exciting, globe- Culture. She is one of the world’s greatest world’s greatest theatrical journey, Ring fessional acting debut last November as the trotting 2008–09 season. Zukerman, who pianists. Wagner’s cycle! Cycles 2 and 3 are diabolical New York Times award-winning regularly appears at the Y with his ensemble sold out, but tickets are still available for journalist "Name Withheld on Advice of of protégés, the Zukerman Chamber The Distinguished Artists in Recital Cycle 1; this Saturday matinee series, fea- Counsel,” actually based on Pulitzer Prize- Players, will present an evening of Mozart, series' second concert, Sunday, March 15, turing James Morris, Johan Botha, Waltraud winning journalist Jeff Gerth, in Tony-win- Shostakovich, Takemitsu, and Franck with features the renowned violinist NIKOLAJ Meier, and Christine Brewer, is conducted Performance dates ning David Henry Hwang's Yellow Face. his friend and musical colleague, ZNAIDER, pianist Saleem Abboud by James Levine. See . for Cycle 1: DAS RHEIN- The critically and commercially successful pianist/composer Marc Neikrug. The duo Ashkar, and other musicians. Born in March 28 -- GOLD -- revival of “Yellow Face,” at The Queens has been performing together regularly Denmark to Polish-Israeli parents, NIKO- (Saturday, 1:00 P.M.) April 11 DIE WALKÜRE Theatre in the Park was directed by since 1975, made numerous recordings, and LAJ ZNAIDER, one of my favorite violin- (Saturday, 12:00 P.M.) SIEGFRIED DRAMA DESK NOMINEE SOFIA has given performances in the world's great ists, has worked with many of the world's April 18 -- (Saturday, 12:00 -- GÖTTERDÄMMERUNG LANDON GEIER. concert halls. top ensembles and soloists, drawing on an P.M.) April 25 eclectic background and studies with (Saturday, 12:00 P.M.) LOVE, HALLIE FOUNDATION The program includes: Mozart's Sonata Russian pedagogue Boris Kushnir. Saleem HOWARD L. WIEDER is the writer of [www.lovehallie.org] for Violin and Piano in B-flat Major, K. Abboud Ashkar, a young Palestinian-Israeli both “THE CULTURE CORNER” and the 454; Shostakovich's final work, the Sonata pianist who made his New York debut at “BOOKS AT THE BAR” columns, appear- In the spirit of the life-affirming message for Viola and Piano, Op. 147; Carnegie Hall at age 22, frequently performs ing regularly in THE QUEENS BAR BUL- of LESLIE LEE’s beautiful play “THE Takemitsu's poetic From Far Beyond with major Israeli orchestras and world- LETIN, and is JUSTICE CHARLES J. BOOK OF LAMBERT,” I urge you to Chrysanthemums and November Fog for renown conductors. MARKEY’S Principal Law Clerk in IAS visit www.lovehallie.org to learn about the Violin and Piano; and Franck's enormous- Part 32 of Supreme Court, Civil Term, in inspiring work that the LOVE, HALLIE ly popular Sonata for Violin and Piano in The series' final concert, Wednesday, Long Island City, Queens County, New FOUNDATION does to engage children in A Major, composed as a wedding present April 22, is one of two concerts dedicated to York. THE QUEENS BAR BULLETIN – FEBRUARY 2009 9 Queens Native Joins Armed Forces Inaugural Committee

WASHINGTON -- Colonel Leonard Livote recently joined the Armed Forces Inaugural Committee, which is preparing to support the 56th Presidential Inauguration on Jan. 20, 2009. AFIC is a joint service committee charged with coordinating all military ceremonial support for the inaugural period. As a joint committee, it includes mem- bers from all branches of the armed forces of the United States, including Reserve and National Guard compo- nents. A 1971 graduate of Grover Cleveland High School in Ridgewood, New York, Colonel Livote is assigned to the special staff as the senior legal advisor. He is responsible for providing legal support to AFIC by coordinating all legal actions with Army General Counsel, the Office of the Judge Advocate General and the Office of the Staff Judge Advocate, Military District of Washington. Colonel Livote is a reserve member of the United States Army and has served for 24 years. “I am honored to represent the deployed members of the military and participate in this historic Presidential Inauguration,” said Colonel Livote. Colonel Livote lives in Douglaston in the borough of Queens in New York City. In his civilian career, he is a court attorney/referee in New York State Supreme Court, Queens County. He earned his Bachelor’s degree in 1975 at Queens College of the City University of New York, and his law degree at Western New England College in Springfield, Massachusetts. The U.S. Armed Forces have participated in the inaugu- Colonel Leonard Livote greeting President Barack Obama ration of the President of the United States since April 30, 1789, when members of the U.S. Army, local militia units and Revolutionary War veterans escorted George Airmen and Coast Guardsmen assigned to AFIC also pro- 5,000 service members have participated in the celebra- Washington to his first inauguration ceremony at Federal vide invaluable assistance to the Presidential Inaugural tion, both in view of the public and behind the scenes. Hall in New York City. Two hundred twenty years later, Committee, a not-for-profit, partisan organization repre- Colonel Livote’s role in the 56th Presidential Inaugural the participation of the armed forces continues to honor senting the President-Elect, and the Joint Congressional is like that of any other essential military mission during our commander in chief, recognize civilian control of the Committee on Inauguration Ceremonies. peace or war. Just as our military men and women are armed forces and celebrate democracy. The Secretary of Defense has authorized nearly 750 showing their commitment to this country while deployed Participation by the armed forces traditionally includes service members to be assigned to AFIC by Inauguration around the globe, participation of service members in this musical units, marching bands, color guards, salute bat- Day to coordinate Department of Defense support in and traditional event demonstrates our military’s support to teries and honor cordons. Soldiers, Marines, Sailors, around the District of Columbia. Historically, as many as the nation’s newly elected Commander-in-Chief. Printing for the Profession

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eveready specialty printing (718) 823-9250 10 THE QUEENS BAR BULLETIN – FEBRUARY 2009 Queens Bar Responds to Foreclosure Crisis BY MARK WELIKY* foreclosure settlement conference for borrowers with sub- evenings and Friday during the day. The result of this prime mortgages. However, most of these homeowners screening may be that the homeowner needs representation On December 15th over 250 attorneys attended a full day cannot afford to hire private counsel. Therefore, pro bono for a settlement conference. A QVLP volunteer lawyer will CLE seminar on foreclosure intervention at the Queens volunteers will represent many of these borrowers in the step in and provide free legal representation to the home- County Bar Association (QCBA). All of the attendees new foreclosure settlement conference process. It is hoped owner for the settlement conference. Volunteer lawyers were volunteering to provide pro bono assistance to home- that with legal representation that there will be a greater will also assist in reviewing proposed loan modifications owners facing foreclosure. The seminar was co-sponsored chance at arriving at a loan modification with the lender for these homeowners, assisting at the screening office and by the New York State Bar Association (NYSBA), the thus keeping people in their homes. providing information to homeowners at Queens Supreme Queens County Bar Association, the Brooklyn Bar Queens has been designated by the Office of Court Court in Jamaica. Association and the Empire Justice Center. QCBA Administration (OCA) as the pilot County for its foreclo- QVLP is funded in part by a grant from the IOLA Fund President Steven S. Orlow made welcoming remarks sure intervention initiative. QCBA’s pro bono program, the of the State of New York and is the recipient of a grant from thanking the lawyers for attending the seminar and volun- Queens Volunteer Lawyers Project (QVLP) is partnering the New York State Division of Housing and Community teering for this pro bono service. Gloria Herron-Arthur, with other legal service providers and OCA in the pilot pro- Renewal to help administer the foreclosure intervention Director of Pro Bono Affairs for the NYSBA also thanked gram. The Queens Foreclosure Pilot Screening Office, program. those attending and promised that her organization would staffed by the Legal Aid Society and Legal Services for the Pro bono volunteers are still needed for this foreclosure continue to give its full support in the continuing struggle Elderly, is consulting with Queens homeowners who are in intervention initiative. Free training is available. Those to keep New York residents from losing their homes. foreclosure or who are afraid that they soon will be. The interested in volunteering should contact QCBA/QVLP at New York State legislation which became effective screening office is at Queens Civil Court, 89-17 Sutphin (718) 291-4500, [email protected]. September 1, 2008 created a right to a court supervised Boulevard, Jamaica, Room 160 and is open Wednesday * Mark Weliky is QCBA Pro Bono Coordinator Queens Foreclosure Conference Project

Salvatore J. Acquista Regina Alberty M. Daniel Bach Andrew J. Jaloza Zhanna Kandel Jeeyoung Kim Marc C. Leavitt Thomas McCloskey Marc J. Monte Irene Nwanyanwu Dena Orenstein Sukhbir Singh Basilios Vassos

We applaud these attorneys who are providing pro bono representation for Queens homeowners facing foreclosure.* *as of 1/26/09

Attendees to the Foreclosure Seminar. THE QUEENS BAR BULLETIN – FEBRUARY 2009 11

PHOTO CORNER

Dealing With Residential Foreclosure Crisis Representing Homeowners In The Mandatory Settlement Conferences Monday, December 15, 2008.

More attendees to Foreclosure Seminar April Newbauer-Moderator Attorney-in-Charge, Legal Aid Society, Queens Civil Division

Hon. Augustus Agate, Supreme Court Justice, Queens County Jennifer Sinton, Staff Attorney - Foreclosure Prevention Project, South Brooklyn Legal Services

John G. Hall, Esq.-Law Firm of Hall & Hall, LLP, Staten Island Kirsten Keefe - Senior Staff Attorney, Empire Justice Center

Photos by Walter Karling 12 THE QUEENS BAR BULLETIN – FEBRUARY 2009

COURT NOTES

The Following Attorneys Were pleaded guilty in the County Michael George Feurtado professional misconduct immediately Disbarred By Order of the Appellate Court, Rockland County (November 25, 2008) threatening the public interest in that he, Division, Second Judicial Department: (Bartlett, J.) to rape in the third The respondent tendered a inter alia, failed to cooperate with the degree, a class E felony, and resignation wherein he Grievance Committee for the Tenth Anthony G. Young (October 28, 2008) criminal sexual act in the third acknowledged that he could Judicial District. The Grievance Committee for the 2nd degree, a class E felony. As a not successfully defend him- and 11th Judicial Districts received a con- result of her New York felony self on the merits against The Following Attorney Was sent order of disbarment from the Superior convictions, the respondent charges that he failed to ade- Suspended From The Practice Of Law Court of the State of North Carolina, Wake automatically ceased to be an quately supervise a paralegal By Order Of The Appellate Division, County, dated February 11, 2008, based attorney upon entry of a plea of formerly in his employ; failed Third Judicial Department: upon the respondent’s plea of guilty to guilty, pursuant to Judiciary to tender escrow funds to a conspiracy to commit mortgage fraud, in Law § 90 (4) (a). third party; and neglected an Louis B. Rosenthal (December 4, 2008) violation of 18 USC § 371, and mail fraud Diana J. Szochet estate. The respondent was charged with mis- and aiding and abetting, in violation of 18 Leroy Evans, admitted as conduct emanating from his service as USC §1341. Upon the Grievance Leroy Winston Evans (November 25, Scott S. Gale (November 25, 2008) counsel to the public administrator of Committee’s motion for reciprocal disci- 2008) The respondent tendered a resignation Kings County. Following issuance of an pline, pursuant to 22 NYCRR § 691.3, the On November 26, 2003, the respondent, wherein he acknowledged that he could order declaring that no factual issues exist- respondent was disbarred in New York. as Director of Foreign Students and the not successfully defend himself on the ed, and an opportunity for the respondent Designated School Official for Morris merits against charges that he failed to to be heard in mitigation, he was found Peter Scott Port (November 12, 2008) Brown College in Atlanta, Georgia, was safeguard escrow funds that he was hold- guilty of charging and collecting excessive On September 20, 2005, the respondent convicted, in the United States District ing incident to a real estate transaction. fees. He was suspended from the practice pleaded guilty in the United States District Court for the Northern District of Georgia, of law for a period of two years, effective Court for the District of New Jersey Atlanta Division, of conspiracy to obtain The Following Attorney Was Disbarred December 24, 2008. (Greenaway, J.), to violating 18 USC §§ fraudulent student visas and induce aliens By Order of the Appellate Division, 1001 and 1002. During the plea allocution, to unlawfully reside in the United States, Third Judicial Department: The Following Attorney Was Publicly the respondent admitted that between June in violation of 18 USC §§ 371 and Censured By Order Of The Appellate 23, 2000, and October 19, 2000, he owned 1546(a), and 8 USC § 1324(a)(1)(A)(iv) Michael H. Feinberg Division, Second Judicial Department: and operated Port Abstract Title Company and (a)(1)(B)(i); obtaining fraudulent stu- (December 4, 2008) in Garden City, and acted as closing agent dent visas, in violation of 18 USC § The respondent was charged with mis- Eric B. Chalif (November 12, 2008) for residential mortgages generated by the 1546(a); and inducing aliens to unlawfully conduct emanating from his service as The Grievance Committee for the Tenth Neighborhood Mortgage Bank for New reside in the United States, in violation of Kings County Surrogate. Previously, the Judicial District was notified that the Jersey Properties. During that time, the 8 USC §1324(a)(1)(A)(iv) and State Commission on Judicial Conduct Board of Bar Overseers of the Supreme respondent loaned money to Barry (a)(1)(B)(i). Inasmuch as the violation of issued a determination that the respondent Judicial Court of the Commonwealth of Fauntleroy, the owner and operator of 18 USC § 1546 is analogous to the New should be removed from the bench, which Massachusetts issued an order dated EON Real Estate Investment Company, York felony of offering a false instrument determination was accepted by the Court January 18, 2007, publicly reprimanding for the purchase of dilapidated homes to for filing in the first degree, the respondent of Appeals in 2005. Following issuance of the respondent for failing to promptly sell at a profit. At the respondent’s direc- automatically ceased to be an attorney an order declaring that no factual issues deliver funds to a third party to which the tion, employees of Port Abstract prepared upon his conviction. existed, and an opportunity for the respon- third party was entitled; failing to ade- HUD-1 Real Estate Settlement forms that dent to be heard in mitigation, he was quately supervise his staff such that he was contained materially false information, Floyd T. Ewing, admitted as Floyd found guilty of conduct prejudicial to the initially unaware of the receipt and deposit which were submitted to HUD with the Talmadge Ewing III (November 25, administration of justice, which reflected of an insurance check; and failing to main- intent to defraud. Inasmuch as the Federal 2008) adversely on his fitness as an attorney. tain proper conciliation reports. Upon the felony of making false statements to a The respondent tendered a resignation Grievance Committee’s motion for recip- Federal agency is essentially similar to the wherein he acknowledged that he could The Following Attorney Was rocal discipline pursuant to 22 NYCRR § New York State felony of offering a false not successfully defend himself on the Suspended From The Practice Of Law 691.3, the respondent was publicly cen- instrument for filing in the first degree, the merits against charges that he neglected By Order Of The Appellate Division, sured in New York. respondent automatically ceased to be an legal matters entrusted to him; failed to Second Judicial Department: attorney in New York upon his conviction. communicate with clients; failed to abide The Following Attorney Was Publicly by two orders issued by United States Michael J. Kaper, admitted as Michael Censured By Order Of The Appellate Beth Mansfield Modica, admitted as District Court Judge Dora Irizarry; and Jonathan Kaper (November 14, 2008) Division, Third Judicial Department: Beth Mansfield Gardner (November was found in civil contempt and sanc- The respondent was suspended from the 18, 2008) tioned. practice of law, pending further proceed- Steven H. Chepiga (December 4, 2008) On April 11, 2008, the respondent ings, upon a finding that he was guilty of ______Continued On Page 13 Criminal Law: Cases Continued From Page 1 ______with the “to-do” note detailing his plan for home. Following his conviction, Hunter ordered to be seated, defense counsel November 24, 2008), the defendant chal- the victim. The Court of Appeals rejected learned of the victim’s other accusation argued that he should be allowed two lenged his conviction for attempted mur- Naradzay’s argument that his conduct did and moved to vacate his conviction, argu- additional peremptory challenges since der and attempted burglary, arguing that not come dangerously near burglary and ing that the prosecution had violated its Criminal Procedure Law § 270.25 pro- his intent to commit those crimes was murder, holding that a rational jury could obligations under Brady v. Maryland, 373 vides that each party “must be allowed” equivocal and did not come dangerously have concluded that he crossed “the U.S. 83 (1963). The trial court granted an equal number of peremptory chal- near their commission in accordance with boundary where preparation ripens into Hunter’s motion but the Appellate lenges. The trial judge responded that Penal Law § 110.00. In an angry response punishable conduct” and that “there was Division reversed. In reversing the counsel had forfeited those two perempto- to the victim’s refusal to continue their no homicide here only because an obser- Appellate Division’s decision and order- ry challenges because “the law is that if friendship, Naradzay put together a “to- vant motorist made a 911 call and law ing a new trial, the Court of Appeals held you exercise the strikes [on a discrimina- do” list detailing a plan to break into her enforcement authorities responded that while the trial court could have tory basis] you forfeit those rights”. The home and shoot her and her husband. promptly, cornering defendant before he excluded evidence about the victim’s Appellate Division reversed Luciano’s Thereafter, he purchased a shotgun and could ... [perform] the next step on his ‘to- accusation against the other man, it also conviction and ordered a new trial on the borrowed a friend’s vehicle to drive to the do’ list”. had discretion to allow it. Under those cir- grounds that he had been denied his statu- victim’s home. On the night in question, cumstances, there was a reasonable prob- torily prescribed number of challenges. armed with the shotgun, he drove to the In People v. Burton Jeffrey Hunter, 11 ability that the withheld evidence would The Court of Appeals affirmed the community where the victim and her fam- N.Y. 3d 1 (decided June 12, 2008), the have added doubt to the jury’s view of the Appellate Division’s decision but for a ily resided. Unsure of the exact location of defendant was charged with rape and victim’s allegations and that Hunter could different reason. Holding that § 270.25 the victim’s house, Naradzay walked other related sex offenses. The victim therefore have been acquitted. predated Batson and therefore codified an around the vicinity but began thinking of claimed that after she accepted Hunter’s outdated theory of peremptory challenges, killing himself instead. When a neighbor invitation to watch a movie at his house, In People v. Ruben Luciano, 10 N.Y. 3d the Court of Appeals held that a trial judge spotted him scurrying down a driveway, he forcibly raped and sodomized her. At 499 (decided June 3, 2008), the trial judge does possess the discretion to order the pulling the shotgun from beneath his coat, trial, the prosecution presented evidence rejected two of the peremptory challenges forfeiture of peremptory challenges for a she called 911. As the police approached that the victim had made a prompt outcry to prospective jurors by defense counsel Batson violation. However, because the him, Naradzay pointed to where he had to her friend and friend’s mother. on the grounds that they were exercised in trial judge in Luciano was under the mis- left the shotgun, a spot about 20 feet away However, the prosecution did not reveal a discriminatory manner pursuant to the apprehension that the law required forfei- from the driveway to the victim’s home. that the victim had recently accused holding in Batson v. Kentucky, 476 U.S. ture, and failed to exercise the requisite The shotgun was then recovered along another man of raping her in that man’s 79 (1986). After the two jurors were discretion, reversible error had occurred. THE QUEENS BAR BULLETIN – FEBRUARY 2009 13 Pretrial Advocacy: An Ethical Checklist — Part I ______Continued From Page 4 objectives with vigor, zeal, and undivided to be provided cannot be determined at the A court that determines the reasonableness dent. The Lieutenant looked out the win- loyalty. The attorney must not, however, time of commencement of representation.” of a fee will give the benefit of the doubt dow . . . . I sat very still. Then he looked at advise or help a client commit a wrong. 10 The letter of engagement should include to the client because the attorney has the me. ‘Maybe,’ he said, ‘maybe I was insane Sometimes questions during client inter- an (1) explanation of the scope of the legal burden to prove the reasonableness of the . . . [w]hen I shot Barney Quill.’”8 views are not about past conduct but services to be provided; (2) explanation of fee. This story highlights how poor inter- instead about contemplated future actions. the attorney’s fees to be charged, expenses N.Y. Rule of Professional Conduct viewing techniques place attorneys in eth- The attorney should be cognizant of both and billing practices; and (3) where appli- 1.5(a) forbids attorneys from charging an ical quandaries. To avoid molding client the N.Y. Rules of Professional Conduct cable, shall provide that the client may illegal or excessive fee. The Rule outlines narratives to fit legal theories, attorneys and the ABA Model Rules of Professional have a right to arbitrate fee disputes under eight factors to determine whether a fee is should focus on active listening as an alter- Conduct. According to N.Y. Rule of 22 N.Y.C.R.R. Part 137.11 excessive. native to soliciting facts. Then the attorney Professional Conduct 1.16(c)(2), a lawyer There are four exceptions to these letter- Under 22 N.Y.C.R.R. Part 137, New may mold an available legal theory to fit may withdraw from representing a client of-engagement requirements: (1) represen- York attorneys must offer arbitration to the facts honestly relayed and earnestly who “has used the lawyer’s services to tation when the fee is expected to be less clients in most civil matters and submit to uncovered. perpetrate a crime or fraud.” Comment 2 than $3000; (2) representation when the fee arbitration or mediation if a client in a Through active listening the attorney to ABA Model Rule 1.16 adds that an attorney’s services are similar to those pre- civil matter requests it. Under Section hears the client’s message and sends it attorney must decline or withdraw from viously rendered to and paid for by the 137.1(a) and (b), the fee-arbitration pro- back in a reflective statement that mirrors representation if the client demands that client; (3) representation in domestic-rela- gram does not apply to representations what the attorney has heard. Active listen- the attorney engage in conduct that is ille- tions matters subject to 22 N.Y.C.R.R. begun before January 1, 2002, or to (1) ing provides nonjudgmental understanding gal or violates the Rules or other law. Part 1400; or (4) representation when the criminal matters; (2) fee disputes involv- and stimulates client participation in the Attorneys must be vigilant to detect ques- attorney is admitted to practice in another ing less than $1000 or more than $50,000, interview. Instead of simply repeating tions from clients covertly trying to gain jurisdiction and does not maintain an unless the arbitral body and the parties what the client just said, the attorney’s assistance in illegal conduct. office in New York state or when no mate- consent; (3) claims involving substantial response should be an affirmative effort to rial part of the services will be rendered in legal issues, including malpractice or mis- convey the essence of what the attorney Define the scope of the representation. New York.12 conduct; (4) claims for damages or relief just heard. The attorney’s response com- Taking time to define the representation other than adjusting a fee; (5) disputes municates the following to the client: is an important part of the initial client Communicate fee arrangements to the over a fee allowed by a statute, or rule, or “This is what I have heard you say.” This interview. The attorney should define the client. set by a court; (6) disputes in which no technique helps the client feel comfortable scope and objectives of the representation The final item on our initial client inter- legal services have been rendered for more and develops rapport. In building rapport, and, if necessary, limit the representation view checklist reminds attorneys to struc- than two years; (7) disputes with out-of- the attorney encourages the client to relate by agreement with the client. In New York, ture fee arrangements to avoid later ethical state attorneys who have no office in New the facts openly and fully and shelters the 22 N.Y.C.R.R. Part 1215 defines the questions. The nature and amount of an York or who did not render any material attorney from ethical improprieties during requirements for the written letter of attorney fee are subject to contractual portion of the services in New York; and the interview process.9 engagement. Attorneys “who undertake[] agreement between the attorney and the (8) disputes in which the person requesting to represent a client . . . shall provide to the client except when a statute or court order arbitration is neither the client nor the Be wary of client questions designed client a written letter of engagement before sets the fee. The attorney must bargain at client’s legal representative.13 covertly to seek the attorney’s assis- commencing the representation, or within a arm’s length with the client. The attorney tance in contemplated crime or fraud. reasonable time thereafter: (1) if otherwise must also protect against later claims of B. Ethical Considerations During the The attorney should pursue a client’s impractical; or (2) if the scope of services unethical conduct in establishing the fee. ______Continued On Page 17 Court Notes

Continued From Page 12______with the Grievance Committee with Disciplinary Rule 9-102(D) of the Failing to promptly pay funds to a third The respondent was charged with mis- Lawyer’s Code of Professional party to whom the funds were owed conduct emanating from his service as Counseling or assisting a client in con- Responsibility [22 NYCRR § 1200.46(d)] supervisor and then Chief Clerk of the duct that the lawyer knew to be illegal or Taking an excessive fee in connection King’s County Surrogate’s Court. fraudulent (i.e., engaging in a real estate Failing to withdraw fees from escrow with the representation of a client before Following issuance of an order declaring transaction with a “straw buyer”) and when earned; improper commingling; and the September 11th Victim Compensation that no factual issues existed, and an engaging in conduct that had the appear- failing to maintain proper bookkeeping Fund opportunity for the respondent to be heard ance of impropriety records in mitigation, he was found guilty of Neglecting an estate matter engaging in conduct prejudicial to the Failing to maintain appropriate book- Failing to withdraw fees from escrow administration of justice. keeping records; writing bulk checks for when earned; improper commingling; fail- Neglecting a legal matter and failing to fees without noting which client matters ing to maintain proper bookkeeping maintain contact with clients At The Last Two Meetings Of The the fees originated from; failing to adhere records; and failing to ensure that suffi- Grievance Committee For The Second to Court Rules regarding the filing of cient funds were available before issuing Neglecting a legal matter and improper- And Eleventh Judicial Districts, The Retainer and Closing statements with escrow checks ly withdrawing from representation Committee Voted To Sanction OCA; improperly depositing funds Attorneys For The Following Conduct: belonging to another attorney; and failing Failing to maintain accurate and con- Engaging in conduct that adversely to adequately supervise staff temporaneous bookkeeping records; reflects on fitness to practice by communi- Failing to timely register as an attorney improperly depositing a settlement check cating with a represented party on the sub- with the New York State Office of Court Drawing IOLA checks to pay client into a business account (rather than an ject of the representation Administration (OCA) (22) expenses and /or disburse fees before com- escrow account); failing to properly safe- mensurate deposits cleared; failing to ade- guard clients’ funds; and failing to ade- Engaging in an improper conflict of Representing the lender and purchaser quately supervise the work of associates quately supervise staff interest and lacking candor before the in a real estate transaction without inform- and non-lawyers; engaging in an imper- Grievance Committee ing them of the conflict; assisting the pur- missible conflict of interest by acting as an Commingling fiduciary funds with per- chaser in conduct the attorney knew to be attorney and real estate broker in the same sonal funds; causing a technical conver- Conducting improper advertising while illegal and fraudulent (i.e., facilitating the transaction; and making a cash withdrawal sion of fiduciary funds as a result of failing under suspension from the practice of law breach of a mortgage contract); failing to from an escrow account to maintain adequate bookkeeping advocate for either the lender or the pur- records; and improperly making ATM and Falsely acknowledging, and then filing, chaser, resulting in damage to both; Maintaining personal funds in an escrow cash withdrawals against personal funds depositing fiduciary funds into a business a deed when the person executing the doc- account; commingling personal funds with on deposit in an escrow account ument was not, in fact, before the attorney account; and failing to indicate on law firm funds held as a fiduciary, incident to the letterhead required information relative to practice of law; failing to maintain a con- Drawing an escrow check without ascer- Having been convicted of Driving deceased members of the firm temporaneous ledger of deposits into, and taining that sufficient funds were on While Intoxicated, a misdemeanor withdrawals from, escrow; making deposit, causing the check to be dishon- Handling a matter for which the attorney improper ATM withdrawals from an ored, and failing to maintain proper Diana J. Szochet, Assistant Counsel to lacked the requisite degree of competence; escrow account; and failing to file a escrow records the State of New York Grievance counseling or assisting a client in conduct Retainer and Closing Statement with OCA Committee for the Second and Eleventh that the attorney knew to be illegal or relative to a personal injury matter Inadvertently drawing checks against fraudulent (i.e. helping a client to conceal Judicial Districts and President of the the attorney’s IOLA account, rather than Brooklyn Bar Association, has compiled information from a lender); permitting a Technically converting client funds as his business account, and inadvertently person who recommended the attorney’s this edition of COURT NOTES. The mate- the result of an inadvertent overpayment to depositing business funds into his IOLA rial is reprinted with permission of the employment to influence his or her profes- another client and failing to maintain ade- account Brooklyn Bar Association. sional judgment; and failing to cooperate quate bookkeeping records in accordance 14 THE QUEENS BAR BULLETIN – FEBRUARY 2009 CPLR Update 2009 ______Continued From Page 1 Article 78 amended petition naming the missing par- The Court of Appeals reversed. It noted 75, to stay the arbitration. Petitioner’s Matter of Ellis v Mahon, Matter of ties as additional respondents. They of the factors stated above and stressed that claim was that the payment had not trig- Torrance v Stout, and Matter of Rutkunas course moved to dismiss on limitations where all three are present the presumption gered the five-month extension of the con- v Stout7 were all Article 78 proceedings to grounds, and the proceeding was properly of disqualification is irrebuttable. They tract, that the contract had therefore review penalties imposed on employees dismissed as against the original respon- were all present here. There was clearly an expired, and that there was therefore no for poor performance or misconduct. In dent for failure to join necessary parties. attorney-client relationship between Falk existing contract to arbitrate. In response, each, the Appellate Division found sub- Whether the court did, or should have and Lovett, during which they discussed respondent argued that the twenty-day stantial evidence to support the charges assessed the discretionary factors set forth disciplinary proceedings against limitations period barred petitioner’s against the employee, but found the penal- in Matter of Red Hook was not discussed Chittenden. Lovett conceded that he objections. The question of whether the ty imposed to be “so disproportionate to here. offered legal advice as to such proceed- contract had been extended was one for the the offense committed as to be shocking to ings, warning Falk to respect Chittenden’s arbitrator. Supreme Court granted the stay one’s sense of fairness,” remitting for Attorney and Client - Disqualification rights under the First Amendment. The of arbitration, finding the payment clearly imposition of lesser8 penalties. In each, the Disqualification of opposing counsel on request for advice as to discipline against was not one which extended the contract. Court of Appeals reversed on review of grounds of conflict of interest requires Chittenden was clearly within Falk’s offi- The Appellate Division modified and submissions, stressing that the Appellate consideration of three factors pursuant to cial duties, however much he may also denied the petition, finding the Matarasso Divisions have no discretionary authority the Disciplinary Rules: that there was a have desired it personally. Thus, the first exception to be inapplicable since the par- or interest of justice jurisdiction to review prior attorneyclient relationship; that the factor was present, that of an attorney- ties clearly had agreed to arbitrate. the penalties. matters in both representations are sub- client relationship between Falk and The Court of Appeals affirmed the What is to be done when an Article 78 stantially related; and the the present inter- Lovett, and Falk has standing to bring the Appellate Division. The Matarasso excep- petitioner fails to join a necessary party? If ests of both the past and present clients are action as a former client. tion to the twenty-day limitations period is there is no jurisdictional impediment, the materially adverse. Where all three13 fac- The other factors were also present. The intended to protect the party who never missing party can simply be joined in the tors are shown, disqualification is manda- advice given in the consultations between agreed to arbitrate from being bound to proceeding. Most of the time, however, tory. Falk and Lovett was substantially related arbitration by a failure to object to a due to the four month limitations period Falk v Chittenden, was a rather unusual to actually bringing the charges, and Falk demand within the short period. Here, it applicable to Article 78 proceedings, the declaratory judgment action to disquali- and Chittenden are clearly adverse in the could not be said that the parties never missing party has an unassailable defense. fy14 counsel in a disciplinary hearing disciplinary proceeding. agreed to arbitrate, since they clearly had Does that mean it is beyond the court’s against Chittenden, a Police Officer of the so agreed. Since petitioner’s argument was jurisdiction? City of Rye. It arose after the hearing offi- Calendar Practice limited to the claim that the contract con- Prior cases, simply assuming that the cer declared that he did not have authority Striking another blow against dilatory taining the arbitration agreement was no missing party was not subject to the to determine the disqualification issue and litigation practices, in Okun v Tanners15 longer viable, it was subject to the twenty- court’s jurisdiction, dismissed for want of recommended that it be determined by the the Court of Appeals refused to accept the day limitations period and was precluded an indispensable party. In Matter of Red Supreme Court. plaintiff’s excuse of law office failure for from arguing the point in court. The issue Hook/Gowanus9 Chamber of Commerce, The charges in the disciplinary proceed- missing four pretrial conferences, includ- was one for the arbitrator. the Court of Appeals made the same ing (alleging several acts of insubordina- ing one at which it was struck from the cal- In Matter of Henneberry v ING Capital assumption for the purposes of the10 tion) had been preferred against endar, and for failing to moving to restore Advisers, LLC, the Court of Appeals con- appeal, since the parties had not raised the Chittenden by the plaintiff Robert Falk. the case to the calendar for a year and a sidered 5 the relationship between an arbi- issue themselves. It explicitly left open the Prior to making the charges, Falk consult- half. As if to underscore that the point is no trator’s mere errors in the conduct of the question of whether or not the defense left ed with an attorney, Jonathan Lovett. After longer worthy of extended discussion, the arbitration, on the one hand, and miscon- the missing party beyond the court’s juris- the charges had been made, Chittenden Court acted on review of submissions. duct on the other. The issue before the diction. It went on to find that dismissal hired Lovett to represent him. This action The Appellate Division had affirmed the arbitrator in this case was whether or not was not necessarily the only possible was then instituted by Falk and the City of order of Supreme Court, denying defen- the petitioner employee had been terminat- result, noting that CPLR 1001(b) may Rye for a declaratory judgment that Lovett dant’s motion to dismiss, accepting the ed for cause. There was apparently some allow an action to proceed, even in the had a conflict of interest, which prevented excuses of law office failure, and restoring doubt as to whether the petitioner or 6 absence of a necessary party, if the statu- him from representing Chittenden, and the case to the calendar on condition that respondents employers bore the burden of tory discretionary factors are present. directing Chittenden to discontinue the plaintiff pay the defense attorney $250 for proof on the issue. Prior to the hearing, the Last year, in Romeo v. New York State representation by Lovett and his firm. each missed conference, $1,000 in all. arbitrator indicated that the respondents Dept. of Educ., the Third Department Plaintiffs claimed that after Chittenden There was a dissent, in which the point had the burden, by a fair preponderance of explicitly11 considered whether the lapse had made false complaints about Falk to was made that the excuse of law office the evidence. After respondents indicated of the limitations period against the absent the City Manager, Falk had consulted with failure – plaintiff’s counsel stated “It just their disagreement, the arbitrator decided party precludes the court's exercise of Lovett in person five times and by tele- fell through the cracks” – is not really an to hold the issue in abeyance until the actu- jurisdiction over it. The court found that phone and in writing numerous times, dis- excuse at all. Rather, it is an admission of al arbitration. All during the proceedings, jurisdiction over the missing party could cussing such matters as how Falk could fault. Law office failure is in general not the respondents reiterated their position indeed be obtained despite the limitations keep his job in the face of Falk’s com- an acceptable excuse for a failure to that the burden was on the petitioner. After defense, even though the defense might plaints and Chittenden’s insubordination. restore an action to the calendar within the taking 13 days of testimony, and after sub- eventually defeat the claim. Falk allegedly had shared official docu- year allowed under CPLR 3404. Here, the mission of briefs, the arbitrator finally The Appellate Division held that the ments with Lovett, including e-mails dissent viewed it as particularly vacuous, determined that the burden was on the concept of "jurisdiction" should not be showing Chittenden’s insubordination, since plaintiff did nothing to advance the petitioner after all, and by a fair prepon- loosely understood, and that the practical and private records kept by Falk concern- action after filing the note of issue, and derance standard. difficulty of the expiration of the limita- ing Chittenden, other police officers and only made the cross-motion to restore the The arbitrator ruled that the petitioner tions period, relied on by the prior cases, unnamed City officials. Lovett had case to the calendar after defendant moved had not carried this burden, and that the did not deprive the court of jurisdiction, advised Falk concerning the possibility of to dismiss for failure to restore it. termination had been for cause. The arbi- and should not stand in the way of the join- disciplinary charges against Chittenden, The dissent also made the point that dis- trator also noted that if the burden had der of the missing party. It reversed the and they had even discussed using Lovett missal under CPLR 3404 is automatic after been on the respondents, they would have judgment, joined the missing School as a prosecutor in the disciplinary proceed- a year, and thus the defendant’s motion carried it. District as a party, directed the service of ings. Lovett had not taken a fee for these was unnecessary and should have been Petitioner commence the proceeding to the petition on it, and remitted for further consultations. denied as moot. vacate the award, claiming that the arbitra- proceedings. Apparently, Lovett himself was not a tor was guilty of misconduct. Both This year, in Windy Ridge Farm v party to the declaratory judgment action. Collateral Estoppel/Res Judicata Supreme Court and the Appellate Division Assessor of the Town of Shandaken,12 the Chittenden moved for summary judg- The Court of Appeals held in Landau, disagreed, holding that the petitioner was Court of Appeals endorsed the holding in ment dismissing the declaratory judgment P.C. v LaRossa, Mitchell & Ross,16 that a on notice throughout the proceeding that Romeo. The Court was “unwilling to con- action, claiming a lack of capacity and determination that a corporate party lacks the issue of the burden of proof was unre- sider an expired statute ‘the equivalent’ of standing. Supreme Court granted the capacity to sue, leading to a dismissal solved. Petitioner was unable to point to a jurisdictional defect .” Moreover, the motion, on grounds of lack of ripeness and without prejudice, does not bar a subse- evidence she would have presented had Court held that where the missing neces- that it would result in an impermissible quent suit by the corporation’s successor she known the arbitrator was going to sary party is subject to the court’s jurisdic- advisory opinion. The Appellate Division under the doctrine of re judicata. This legal reverse his initial view. tion – notwithstanding the expired statute affirmed the result, but on the different malpractice claim was an outgrowth of an The Court of Appeals affirmed. At most, of limitations – CPLR 1001(b) requires ground that Falk and the City lacked stand- action against Morris J. Eisen, an attorney, the arbitrator committed a procedural error simply that the court should order him ing to seek disqualification. The City had and his firm, Eisen P,C., by the City of in initially allocating the burden of proof summoned. The discretionary factors con- no standing, since there was no allegation New York, for fraud in the conduct of cer- to the respondents, and eventually correct- sidered in Matter of Red Hook would not that Lovett had ever represented it. Falk tain personal injury actions. While the ed that error. That does not deny the peti- then be relevant, and the court would sim- lacked standing, since his consultations action was pending, Eisen was convicted tioner a fair arbitration, and did not “infect ply direct the joinder of the missing par- with Lovett had only been in a private on federal bribery, mail fraud and racket- the underlying proceeding with the taint of ties. capacity, and his appearance in the eering charges in connection with his rep- fraud.” As it turned out, that was unnecessary in declaratory judgment action was only in resentation of personal injury plaintiffs, this case, where the petitioner filed an his official capacity. ______Continued On Page15 THE QUEENS BAR BULLETIN – FEBRUARY 2009 15 CPLR Update 2009

Continued From Page 14______limitations period is six years. The 90 years, was that the limitations period judicata is generally applicable to adminis- and was disbarred on January 23, 1992. Surrogate directed an accounting, which begins to run upon the ending of the trust trative determinations rendered in admin- The City obtained partial summary the plaintiff provided. The beneficiary relationship.19 The Surrogate, as noted, istrative tribunals employing procedures judgment in its actions on February 24, objected to the accounting. Plaintiff held that the period could not begin until a substantially similar to those in a court of 1995. After seeking and failing to obtain retained new counsel, which moved to dis- reasonable time had passed after the plain- law. Petitioner was correct in his assertion renewal and reargument of the City’s miss the objections, raising the limitations tiff’s resignation as trustee, in which the that both determinations arose out of the motion, Eisen and Eisen, P.C. commenced issue for the first time. The Surrogate beneficiary could have commenced the same incident, but that does not necessari- this action against its attorneys, claiming denied the motion on two grounds. The accounting proceeding. The Court viewed ly mean that further disciplinary proceed- malpractice in the opposition to the City’s first was that the six-year limitations peri- this as creating an unnecessary problem of ings are foreclosed. The doctrine of res motion. By pre-answer motion, defendants od did not begin to run until a reasonable deciding what a reasonable period was. judicata should be applied to administra- moved to dismiss the malpractice action time had passed after plaintiff’s resigna- The Court noted that the beneficiary did tive determinations in a manner consistent on the grounds of lack of capacity, since tion in which the plaintiff might have ren- not, in fact, have to wait to see if the plain- with the functions of the agency, the Eisen as a disbarred attorney could not sue dered a voluntary accounting. The tiff was going to render a voluntary necessities of the particular case, and the on behalf of the P.C., on collateral estop- Surrogate reasoned that a proceeding to accounting, but could have sought the nature of the power being exercised. pel grounds since the alleged damages compel an accounting could not have been compulsory accounting the day after plain- The Court recognized that DOCS has were due to the federal convictions, and brought during that reasonable period. The tiff’s resignation. 20 legitimate interests, both security and lack of capacity in the P.C., since it had accounting proceeding was in fact com- Defendant argued that the statute of lim- rehabilitative, in seeing that disciplinary been dissolved for failure to pay franchise menced six years, seven months and nine- itations should not have begun to run until determinations are made promptly. It taxes. Supreme Court granted the motion, teen days after the resignation, so that the trustee is asked to account and fails to therefore had to act swiftly to discipline finding lack of capacity both as to Eisen plaintiff would have had to have shown do so. This would have rendered the the petitioner and separate him from the and Eisen, P.C. An attempt to add the that seven months and nineteen days was a accounting proceeding clearly timely, general population. When, after a criminal Landau, P.C., as the successor firm to reasonable period before the proceeding since no demand had been made for the investigation, an inmate such as petitioner Eisen, P.C., was unsuccessful. could be dismissed as untimely, and had accounting for years after plaintiff’s resig- is found guilty, DOCS should have the dis- The dismissal of the complaint had orig- not done so. The second ground for denial nation. The Court here rejected that view, cretion to seek to modify that penalty inally been “with prejudice,” but on the of the motion was that it had been asserted since it would leave the limitations period based on the conviction, as is expressly defendants’ motion this was changed to too late and had therefore been waived. open without end if the former trustee was contemplated by the rule under the rule “without prejudice.” On appeal, the Appellate Division never asked to give an accounting. relating to Penal Law violations. “To con- This action was then commenced by affirmed the Surrogate on the waiver Seeing no reason to depart from the clude otherwise would impede DOCS's Landau, P.C., as successor to Eisen, P.C., ground only, existing rule, and finding that it has the ability to promote prison safety and have and Eisen, asserting essentially identical finding it unnecessary to discuss virtues of simplicity in concept and appli- the perverse effect of encouraging DOCS causes of action as the original complaint. whether the limitations period had in fact cation, and that it gives interested parties hearing officers to impose more stringent Defendants moved to dismiss, and the expired. Plaintiff then commenced this six full years in which to proceed, the disciplinary penalties initially, before any motion was granted on res judicata action against her former counsel, assert- Court held that the limitations period in the criminal investigation and proceedings are grounds. A motion for reargument was ing that the defendant’s negligence had led underlying accounting proceeding was six concluded.” granted, but the court adhered to its origi- to the failure to assert the limitations years from the plaintiff’s resignation and nal determination and dismissed. The defense timely. Defendant moved to dis- the appointment of a successor. Had it Commencement of Action Appellate Division affirmed. miss, on the grounds that the Surrogate been asserted in the accounting proceed- In Jones v Bill,24 the Court of Appeals The Court of Appeals reversed. The had ruled that the limitations period in the ing, plaintiff would have been entitled to a settled a transitional issue under the feder- doctrine of res judicata requires a valid accounting proceeding had not expired, dismissal. This legal malpractice action al Graves amendment, which abrogated final judgment. Here, there was never a and that she was bound by that holding. was therefore allowed to proceed. On July New York’s vicarious liability statute in final adjudication of the merits of the orig- Supreme Court agreed with the defendant 17, 2003, the petitioner in Josey v. Goord, automobile cases, insofar as it pertains to inal legal malpractice action. That action and dismissed, but the Appellate Division an inmate, stabbed another inmate in 21 the commercial vehicle lessors. The question was dismissed “without prejudice,” which reversed, on the grounds that the alterna- chest with a metal shank, killing him. The was: If the date of original commencement by its terms is not a final determination. tive grounds stated by the Surrogate, not fight was witnessed by over 300 other pris- of the action pre-dates the effective date of The only matters litigated in the original having been ruled on by the Appellate oners. The Department of Correctional the Graves amendment, but the lessor is action was the capacity of Eisen, P.C., Division, should not be given collateral Services commenced a disciplinary hear- not added to the action until after the effec- Landau, P.C., and Eisen to assert their estoppel effect. The Appellate Division ing against petitioner three days later, at tive date, is the action barred against the malpractice claims. The merits of the also held that the limitations argument which a hearing officer found him guilty lessor or not? The Court concluded that the claims were not litigated. would have had merit, since it held that the of various violations and imposed a penal- action was not barred, reversing Supreme The Court concluded: “We remain period began to run on upon plaintiff’s res- ty of 24 months in the Special Housing Court and the Appellate Division. mindful that if applied too rigidly, res judi- ignation as trustee and the appointment of Unit. A second misbehavior report, based The procedural situation was simple. cata has the potential to work considerable the successor. on the same incident, was made in There was a two-car automobile accident injustice. "In properly seeking to deny a As to the collateral estoppel issue, the September, 2003. After this hearing, peti- on July 7, 2005, between Jones and Bill. litigant 'two days in court', courts must be Court of Appeals began with the familiar tioner was assessed a penalty of 120 Jones commenced this action against Bill careful not to deprive him of one" (Matter statement that the determination of an months in the Special Housing Unit,22 but on August 8, 2005, alleging that Bill was of Reilly v Reid, 45 NY2d 24, 28 [1978]). issue in a prior action is given preclusive the penalty was reduced to 60 months on the owner and operator of his vehicle. Landau, P.C. has yet to have its day in effect in the present action if it was neces- administrative review.23 Petitioner com- Bill’s answer denied ownership, naming court to litigate the merits of its legal mal- sarily determined in the prior action and if menced an Article 78 proceeding, claim- DCFS Trust as the owner. On November practice claim against defendants and the party precluded had a full and fair ing that the second hearing was barred by 1, 2005, Jones filed an amended summons therefore we find that res judicata is not opportunity to contest it. The Court noted res judicata. While the Article 78 was and complaint naming DCFS as a defen- applicable to plaintiff in this case.” the position of the Restatement that when pending, DOCS reversed the determina- dant. The Graves Amendment became When a determination rests on two inde- a decision rests on two grounds, either of tion, on the grounds that the incident had effective on August 10, 2005. By its terms, pendent grounds, either of which would which could support it independently, nei- been considered in the first hearing. the Amendment prohibits imposition of have been sufficient, and an appellate ther is entitled to preclusive effect.18 This Petitioner then withdrew the Article 78 vicarious liability on commercial vehicle court bases its affirmance on one but case, however, presents the added circum- petition. lessors, applying “to any action com- makes no ruling as to the other, is the stance that the plaintiff challenged the In August of 2004, petitioner pled guilty menced on or after the date of enactment unaddressed ground entitled to collateral Surrogate’s ruling as to the limitations in Dutchess County Court to second- of this section.” estoppel effect? The Court of Appeals said issue on appeal, but that the Appellate degree manslaughter arising out of the Both Supreme Court and the Second in Tydings v Greenfield, Stein & Senior, Division declined to address it, finding the same incident, and was sentenced as a sec- Department viewed the interposition of the LLP,17 that it is not. It also considered the waiver issue determinative. ond felony offender. DOCS thereupon claim against DCFS as the functional question of when the limitations period on Federal courts have held that where an commenced a third disciplinary proceed- equivalent of the commencement of the a compulsory accounting begins to run. appellate court affirms on one ground and ing, this time based on a rule which allows action as against it, and therefore barred by This was a legal malpractice case, in does not address the other, there is no col- it to discipline an inmate convicted of a the Graves Amendment. which the defendant firm had represented lateral estoppel as to the ground that was Penal Law violation. After this hearing, The Court of Appeals first noted that as the plaintiff in an accounting proceeding in not addressed. The Court adopted that rule petitioner was again found guilty, and a a straightforward exercise in statutory Surrogate’s Court. Plaintiff had been a as New York’s. penalty of an additional 72 months in SHU interpretation, the standard of review was trustee of a grantor trust, and had resigned The Court then was required to address was imposed. That determination was consideration de novo. The action was on January 1, 1997. She had been succeed- the limitations issue, since plaintiff would affirmed on administrative appeal. “commenced” when the plaintiff filed the ed by a new trustee on the same day. As of still have no case against the former attor- Petitioner then commenced this second original summons and complaint. That is August 20, 2003, she had still not rendered neys if the limitations issue would have Article 78 proceeding, again asserting that the date referenced by the Amendment, any accounting. On that day, a proceeding been unavailing anyway. The parties it is barred by the doctrine of res judicata and in the Court’s view was the only rele- was commenced by the beneficiary of the agreed that the applicable period is six arising from the initial hearing. Both vant date. The concept of “interposition” trust to compel her to make an accounting. years, under CPLR 213(1), since no other Supreme Court and the Appellate Division of a claim refers to the statute of limita- The defendants failed to assert a limita- limitations period is provided by law. The found res judicata inapplicable to these tions, which is not relevant to the Graves tions defense, even though the applicable question was when the period began to facts. The Court of Appeals agreed, and ______run. Existing law, dating back more than affirmed the dismissal of the petition. Res Continued On Page 16 16 THE QUEENS BAR BULLETIN – FEBRUARY 2009 CPLR Update 2009 Continued From Page 15 ______Also, the declaratory judgment action Supreme Court decided that the evidence of that further money judgment, and the Amendment. Even where it is relevant, as must be brought as a separate action, not did not support the Referee’s recommen- motion was granted by order entered in CPLR 203, the CPLR differentiates as an additional claim within the personal dations, and granted the cross-motion to October 17, 2000, directing the settlement between “interposition of a claim” and injury action. Since the only issue is time- vacate the report. The Appellate Division of a judgment in the amount of “commencement of an action.” Elsewhere ly notice to the insured, there are really no found that the evidence was in accord with $984,401.17. The order also provided that in the CPLR, as in CPLR 305(a) [supple- common issues of law or fact between the Supreme Court’s determination, and execution of the judgment could be stayed mental summons] and 1003 [addition of two actions. Another proviso is that the affirmed. There was a twojudge dissent, pending resolution of a foreclosure action parties], the language of the statute clearly action is proper only where neither the which agreed with the Referee’s factual on the mortgage. Pursuant to 22 NYCRR § indicates that interposition of the claim insured nor the insurer have themselves findings. 202.48, orders or judgments directed to be and joinder of the new parties occurs with- instituted declaratory judgment actions In the Court of Appeals, the plaintiff submitted or settled must be submitted in the context of an already existing action. within 30 days of the disclaimer. argued that Supreme Court could not dis- within 60 days of the decision. The rule The language of the Graves Amendment affirm the Referee’s factual findings, so further provides that failure to submit the does not lead to a different result, since Differentiated Case Management long as there was support for them in the order or judgment constitutes an abandon- New York’s commencement-by-filing As part of an act addressing the mort- record, and that by appointing a Referee to ment of the motion or action except upon regime is based on the Federal model, with gage foreclosure crisis on a number of supervise disclosure the court necessarily “good cause shown.” which Congress was certainly familiar. fronts,28 a new CPLR Rule 3408 has been waived its discretion and limited its review Plaintiff delayed for four and half years, It bears noting that the Court here came added. As the legislative memorandum of the Referee’s determinations. The Court until May 2, 2005, to submit the judgment to the same conclusion as the Fourth states, it “require[s] a court, in a residential of Appeals rejected those arguments. for settlement. The foreclosure action had Department in Williams v White and foreclosure action involving a subprime or The trial court has broad discretion to been resolved in August, 2003, and the Leuchner v. Cavanaugh25, thus resolving a a non-traditional home loan made between supervise disclosure, which extends to the amount due was only $750,000. Defendant split between the Second and Fourth January 1, 2003 and September 1, 2008, to decision to confirm a Referee’s report, so opposed, on the grounds of untimeliness, Departments, albeit without mentioning schedule a settlement conference within long as the report has support in the and that the plaintiff had not shown good the Fourth Department cases. 60 days of when the proof of service of the record. Supreme Court’s decision to sub- cause for the delay. The trial court signed complaint is filed with the county clerk's stitute its own findings for those of the the judgment, and the defendant appealed. Declaratory Judgments office. The plaintiff, or a representative Referee had support in the record, and was The majority held that the directive of the CPLR 3001 has been amended to allow with authority to settle the matter, must within its discretion. Uniform Rule must be complied with, and for a direct declaratory judgment action by appear at the conference. The court may In a footnote, the Court noted that there a failure to timely submit a judgment could a claimant in a personal injury or wrongful allow the plaintiff's representative to had not really been a need for the Referee not be justified either by the merit of the death action against an insurer of a defen- appear via phone or video-conference. If to render a report subject to confirmation. motion or the lack of prejudice to the dant, to determine the issue of coverage the homeowner appears and is not repre- Where the reference is pursuant to CPLR defendant. That the parties were engaged where the insurer has disclaimed due to sented by counsel, he or she would be 3104 (“Supervision of Disclosure”), the in a considerable amount of other litigation lack of timely notice.26 Previously, the deemed to have made a motion to proceed Referee renders an order, not a report. Any was something the dissent was willing to claimant could not bring such an action as a "poor person" under CPLR § 1101, party or witness can apply for review of consider, but did not constitute good cause until he had first obtained a judgment and the judge may relieve the defendant of the Referee’s order, by motion to the court to the majority. The actual foreclosure liti- against the insured, which had then gone certain procedural court requirements and in which the action is pending, within five gation was the only part of the parties’ unsatisfied for at least 30 days. appoint counsel under CPLR § 1102(a). days after the order is made. As the Court legal battles the majority was willing to The amendment was prompted by the Section 3-a of the bill allows those home- noted in the footnote, “Bottom line, where consider, and that had ended a year and 2004 decision of the Court of Appeals in owners against whom a foreclosure action the reference is made under CPLR 3104, nine months before plaintiff got around to Lang v Hanover Ins. Co.,27 which held has already been commenced to also par- there is no requirement that the referee's submitting the judgment. The majority that an injured plaintiff has no right to ticipate in a settlement conference. order be confirmed by the court in the held that in enforcing the rule strictly in bring a declaratory judgment action absence of a request for review by a this manner, it was implementing the new against the tortfeasor’s insurer prior to Disclosure party.” attitude towards time limits announced by obtaining a judgment against the tortfea- Where the parties have attempted medi- the Court of Appeals in Brill v City of New sor. The judgment was held to be a statu- ation of their dispute, unsuccessfully, does Judgments and Orders York, Miceli v State Farm, and Andrea v tory condition precedent to such an action, any privilege attach to their communica- Last year’s Appellate Division opinion Arnone, Hedin, Casker, Kennedy & pursuant to Insurance Law § 3420. At tions and transactions with the mediator? in Farkas v Farkas31 could be regarded as Drake.33 The failure here was essentially a common law, there was no right of action The issue was raised here by the mediator, a leading invitation to a legal malpractice law office failure, and in the majority’s by the injured person against the tortfea- in Hauzinger v Hauzinger,29 but not lawsuit. Even though the Court of Appeals view, the Court of Appeals cases have sor’s insurer. The statutory right codified resolved since the parties had waived any has reversed,32 it has done so in a manner removed law office failures as “good in Ins. Law § 3420 is intended to remedy confidentiality attaching to them by a which leaves the Appellate Division’s cause.” In the majority’s view, the provi- that inequity, but has as a condition prece- signed waiver. Any privilege which might rationale at least arguably intact, and so sions of CPLR 2005, which hold that the dent the requirements that the injured per- otherwise exist had therefore been waived great care should be taken in the timely courts are not precluded from recognizing son obtain a judgment, serve the insurer and it was therefore proper to order disclo- submission of orders and judgments. law office failure as an excuse, is restrict- with a copy of the judgment, and give the sure of the details of the mediation. The The issues before the court were: what ed to the specific applications listed there- insurer 30 days in which to pay. The intent Court did not reach the issue of whether a happens when a party delays in submitting in, namely extensions of time to appear or of this condition is to place the injured per- “mediation confidentiality privilege” in a judgment, without good cause? What plead under CPLR 3012, and to motions son in the same position as a solvent fact exists under CPLR 3101(b). Those constitutes “good cause?” The Appellate for relief from a judgment or order under insured who has paid the judgment and Certain Underwriters at Lloyds, London v Division, First Department, held that the CPLR 5015. seeks indemnification under the insurance Occidental Gems, Inc., ___ NY3d ___, time frames for submission of judgments, The two-judge dissent, while agreeing contract. ___ NYS2d ___, 2008 NY Slip Op 09248 set forth in the Uniform Rules for the Trial that “good cause” is not shown here mere- The prior CPLR 3001, which authorizes [2008] This case clarifies certain proce- Courts, are to be enforced, that the late ly by the merit of the underlying applica- declaratory judgment actions, does not dural issues concerning the supervision of submission of a judgment requires a show- tion and lack of prejudice to the adversary, create standing where none otherwise disclosure by referees. Pursuant to CPLR ing of more than mere law office failure, was unwilling to adopt the strict attitude of exists, and so the injured plaintiff could 3104, a court has discretion to appoint a and that in the absence of good cause the the majority. In particular, the dissent not utilize it to circumvent the condition referee to supervise disclosure, on motion relief to which the dilatory party was oth- pointed out that the Brill and Miceli deci- precedent of the Insurance Law. The of any party or witness, or on its own ini- erwise entitled is to be regarded as aban- sions simply ruled out late summary judg- amendment specifically grants standing tiative without notice. The statute specifies doned. The defendant husband in this case, ment motions: the would-be movant was where the disclaimer is due to lack of time- that the referee may be a judicial hearing whom the Appellate Division opinion not ultimately deprived of his day in court. ly notice. officer or any named attorney to whom the describes as “indisputably” a “bad guy,” Here, the effect of a strict construction was Several points need to be made. First, parties may stipulate, but it is common for thereby avoided a judgment against him to deprive the plaintiff wife of an “enor- the new right to institute the declaratory the court to appoint a referee on its own and in favor of his wife of $750,000 mous money judgment granted. . .against judgment action is limited to disclaimers staff. That30 is apparently what happened This was a bitterly contested divorce an opponent who had thrown every possi- for lack of timely notice. As to any other here. Plaintiffs moved for an order of action, which was sixteen years old when ble obstacle in her path”. grounds for disclaimer, the claimant still preclusion, which was referred to the it reached the Appellate Division. The cen- In reversing, the Court of Appeals did must first obtain a judgment. The limita- Special Referee. The referee, rather than tral fact involved here was that the hus- not address the Appellate Division’s appli- tion is not explicitly stated in the amended make an order determining the motion, the band had taken out a home equity line of cation of Brill and its progeny to Rule language of CPLR 3001, but that language Referee issued a report, with recommenda- credit on the marital residence, and a deci- 202.48. Rather, it held the rule inapplica- references Insurance Law § 3420(b)(6), tions. (The recommendation was that the sion after trial in 1996 directed him to ble under the facts. The plaintiff wife was which is explicitly limited that way. That defendant was required to produce a repay the balance. If he did not do so, the entitled to the money judgment as a result provision requires personal and property Belgian resident for deposition in New judgment directed the entry of a further of the original 1966 decision, which insurance policies to contain a provision York, and to produce certain documents.) money judgment for the amount due, with- specifically directed the entry of a money allowing the insured to bring a direct She directed that the report was to be out further order. This was followed by a judgment “without further order.” Thus, declaratory judgment action against the approved and confirmed, by application to divorce judgment entered in 1996 and a no settlement was required and Rule insurer, if the denial of coverage is due to the court pursuant to CPLR 4403. Plaintiff 1999 amended divorce judgment. When 202.48 was inapplicable34. The point was a claimed failure to give timely notice to moved to confirm the report, and the the husband failed to satisfy the home reiterated in the 1996 judgment and again the insurer. defendant cross-moved to vacate it. equity loan, the wife moved for the entry ______Continued On Page 19 THE QUEENS BAR BULLETIN – FEBRUARY 2009 17 Pretrial Advocacy: An Ethical Checklist — Part I

Continued From Page 13 ______lying an allegation or factual contention, ceeding. An attorney is subject to disci- Pleading Stage of Litigation. the matter may be pleaded anyway if it is pline for taking a frivolous position on an 1 The New York Code of Professional The Preamble to the ABA Model Rules “specifically so identified” and is “likely issue. The Rule provides that “[a] lawyer Responsibility, which will remain in effect through March 31, 2009, consists of three separate but related of Professional Conduct recognizes the to have evidentiary support after a reason- shall not bring or defend a proceeding, or parts: Cannons, Ethical Considerations, and attorney’s obligation to protect and pursue able opportunity for further investigation assert or controvert an issue therein, unless Disciplinary Rules. The Rules of Professional a client’s legitimate interests within the or discovery.”21 there is a basis in law and fact for doing so Conduct, effective April 1, 2009, is a model rules- bounds of the law while maintaining a Rule 11(b)(4) is the counterpart provi- that is not frivolous.”28 The Rule excludes based code of conduct governing lawyers. For two discussions of the 2009 Rules written by the Second civil, courteous, and professional attitude sion that gives an answering party initial from the definition of frivolous arguments and Fourth Departments’ presiding justices, see A. toward all. Attorneys must ensure that freedom in constructing the answer. The a “good faith argument for an extension, Gail Prudenti, New Conduct Rules Set to Take Effect: their devotion to the client does not con- Rule 11 duty continues, however, because modification, or reversal of existing Adoption Brings Many Benefits, N.Y. L.J., Jan. 26, flict with duties to other parties, other “[t]olerance of factual contentions in ini- law.”27 2009, at 11, col. 1; Henry J. Scudder, New Conduct counsel, the courts, and the administration tial pleadings by plaintiffs or defendants Similar to Rule 11, Comment 2 to ABA Rules Set to Take Effect: State Bar Efforts Were Crucial, N.Y. L.J., Jan. 26, 2009, at 11, col. 3. of justice. when specifically identified as made on Model Rule 3.1 notes that filing an action 2 The New York State Unified Court System information and belief does not relieve the or defense is not frivolous merely if the adopted the Standards of Civility on January 1, 1998. Attorneys must sign all papers filed litigants from the obligation to conduct an facts have not first been fully substantiated The Standards apply to lawyers, judges, and court with the court. appropriate investigation into the facts that or if the attorney will develop evidence personnel. The Standards’ goal is to orient the bar and bench to observe courtesies that enhance the C.P.L.R. 2101(d) requires that “[e]ach is reasonable under the circumstances . . . through discovery. Attorneys are required, quality of professionalism in the legal profession. 22 paper served or filed shall be indorsed with .” If, after a reasonable opportunity for however, to “inform themselves about the The Standards are aspirational: They are not enforce- the name, address and telephone number further investigation or discovery, the facts of their clients’ cases and the appli- able by sanction or disciplinary action, and they do of the attorney for the party serving or fil- party does not find evidentiary support, the cable law and determine that they can not modify or supplement the N.Y. Rules of ing the paper . . . .” Similarly, F.R.C.P. party has a duty not to persist with the con- make good faith arguments in support of Professional Conduct. For a discussion of the 28 Standards of Civility, see Gerald Lebovits, Rule 11(a) and 22 N.Y.C.R.R. Part 130- tention. Even if the offending document their clients’ positions.” Conduct is not Professionalism in the Legal Profession, 5 Richmond 1.1a require that at least one attorney of need not be amended or withdrawn, it vio- frivolous just because the attorney County B. Ass’n J., Summer 2006, at 8, available at record or, if unrepresented by counsel, the lates Rule 11 to premise advocacy on a believes that the client’s position will fail. http://papers.ssrn.com/sol3/papers.cfm?abstract_id= party sign every pleading, motion, and court document that, despite a reasonable Conduct is frivolous, rather, “if the lawyer 1299739. The New York State Unified Court System Standards of Civility are available at other paper. opportunity for investigation or discovery, is unable either to make a good faith argu- http://www.nycourts.gov/jipl/standardsofcivility.pdf. By presenting a signed paper to the has no evidentiary support. ment on the merits of the action taken or to 3 The new N.Y. Rules of Professional Conduct are court, an attorney or unrepresented party C.P.L.R. 3013 mandates that “[s]tate- support the action taken by a good faith available at http://www.nycourts.gov/rules/jointap- “certifies that to the best of the person’s ments in a pleading . . . be sufficiently par- argument for an extension, modification or pellate/NY%20Rules%20of%20Prof%20Conduct.pd knowledge . . . formed after an inquiry rea- ticular to give the court and parties notice reversal of existing law.”29 f. 14 4 Abraham Lincoln, quoted in 2 William H. sonable under the circumstances” the of the transactions, occurrences, or series Attorneys should be cognizant of 22 Herndon & Jesse W. Weik, Herndon’s Lincoln 345- document “is not being presented for any of transactions or occurrences, intended to N.Y.C.R.R. Part 130-1.1. Conduct is friv- 46 n.* (1889). improper purpose, such as to harass.” 15 be proved and the material elements of olous if “it is completely without merit in 5 Id. Additionally, “the claims, defenses, and each cause of action or defense.” To be suf- law and cannot be supported by a reason- 6 Robert Traver, Anatomy of a Murder 46 (1958). Robert Traver was the pen name of John D. Voelker, other legal contentions therein are war- ficiently particular, statements in pleadings able argument for an extension, modifica- a Michigan Supreme Court associate justice. 30 ranted by existing law or by a nonfrivolous must be factual. To meet this requirement, tion or reversal of existing law.” 7 Id. argument for extending, modifying, or attorneys must perform research before fil- Conduct is also frivolous when “undertak- 8 Id. reversing existing law or for establishing ing any paper with a court. Title 22 en primarily to delay or prolong the reso- 9 R. Lawrence Dessem, Pretrial Litigation: Law, new law . . . .”16 The certification also N.Y.C.R.R. Part 130-1.1a(b) also imposes lution of the litigation, or to harass or mali- Policy and Practice 26 (4th ed. 2007). 10 22 N.Y.C.R.R. 1215.1(a)(1)-(2). attests that allegations and other factual the requirement that the attorney or party ciously injure another” or if the attorney or 11 22 N.Y.C.R.R. 1215.1(b)(1)-(3). contentions have evidentiary support or, if certify having performed “an inquiry rea- client asserts “material factual statements 12 22 N.Y.C.R.R. 1215.2(a)-(d). specifically identified, will likely have evi- sonable under the circumstances.” that are false.”31 13 22 N.Y.C.R.R. 137.1(a)-(b). dentiary support after a reasonable oppor- C.P.L.R 3025(a) allows a party to 14 Fed. R. Civ. P. 11(b). 15 Fed. R. Civ. P. 11(b)(1). tunity for further investigation or discov- amend a pleading one time “without leave This article continues with Part II in the 16 Fed. R. Civ. P. 11(b)(2). 17 ery. The certification, moreover, means of court within twenty days after its serv- March 2009 issue of the Queens Bar 17 Fed. R. Civ. P. 11(b)(3). that “the denials of factual contentions are ice, or at any time before the period for Bulletin. 18 Fed. R. Civ. P. 11(b)(4). warranted on the evidence or, if specifical- responding to it expires, or within twenty 19 22 N.Y.C.R.R. 130-1.1(a) provides that a court ly so identified, are reasonably based on days after service of a pleading responding Gerald Lebovits is a judge of the New may award to any party or attorney in any civil 18 action, except if prohibited by law, costs to reimburse belief or a lack of information or belief.” to it.” C.P.L.R. 3020(a)-(c) describe sce- York City Civil Court, Housing Part, in expenses and reasonable attorney fees resulting from narios when the attorney must verify the Manhattan and an adjunct professor at St. frivolous conduct. A court may also impose financial Attorneys must conduct a factual inves- pleading.23 John’s University School of Law in sanctions on any party or attorney in a civil action tigation and legal research before tak- C.P.L.R. 3101(h) describes the attor- Queens, New York, where he teaches trial who engages in frivolous conduct in addition to or instead of awarding costs. ing positions in court documents. ney’s continuing duty to amend papers and appellate advocacy. Joseph Capasso, 20 Advisory Committee Note to 1993 Amendment 24 F.R.C.P Rule 11 and C.P.L.R. 3013 after their initial submission to the court. J.D. (expected 2009), St. John’s University to Rule 11, 146 F.R.D. 401, 585 (1993). require attorneys to perform a factual School of Law. Mr. Capasso, who gradu- 21 Fed. R. Civ. P. 11(b)(3). investigation and legal research before fil- Attorneys must anticipate Rule 11 chal- ated from the U.S. Air Force Academy in 22 Advisory Committee Note, supra note 20, at ing court documents and forbid filing doc- lenges. 1996 and served as a U.S. Air Force pilot 585-86. 23 See, e.g., C.P.L.R. 3020(a) (“A verification is a uments for improper purposes. Sanctions Prudent attorneys should take precau- for 10 years, won first-place honors in the statement under oath that the pleading is true to the under Federal Rule 11(c) and 22 tions to prevent Rule 11 litigation. For 2007 St. John’s Tinnelly Moot Court knowledge of the deponent . . . .”) N.Y.C.R.R. Part 130-1.1(a) add teeth to example, attorneys should memorialize Competition and in the 2008 St. John’s 24 See infra Part C.2. this mandate.19 pre-filing inquiries to anticipate a Rule 11 Reardon Moot Court Competition and was 25 Dessem, supra note 9, at 171. 26 22 N.Y.C.R.R. 1200, R. 3.1(a). Presenting a paper in federal court trig- motion. This paperwork will support a a member of the St. John’s team that 27 22 N.Y.C.R.R. 1200, R. 3.1(b)(1). gers F.R.C.P. Rule 11(b). Presenting defense during Rule 11 litigation and offer received the 2008 Best Brief Award at the 28 Model Rules of Prof’l Conduct R. 3.1 cmt. 2. includes signing, filing, submitting, or additional documentation for client billing. National Moot Court Competition New 29 Id. York City Regional Rounds. 30 22 N.Y.C.R.R. 130-1.1(c)(1). later advocating a particular court paper. Attorneys should always examine relevant 31 The Judicial Conference of the United documentary evidence and talk to poten- 22 N.Y.C.R.R. 130-1.1(c)(2). States Advisory Committee on Civil Rules tial witnesses rather than rely on their explained in its note to the 1993 amend- clients’ representations concerning impor- ment to Rule 11 that “a litigant’s obliga- tant matters. If any question arises about Lawyers Assistance Committee the propriety of a filing, the attorney tions with respect to the contents of [court] The Queens County Bar Association (QCBA) provides free confidential assis- papers are not measured solely as of the should mentally compose a Rule 11 affi- time they are filed with or submitted to the davit outlining the support for the action. tance to attorneys, judges, law students and their families struggling with alcohol court, but include reaffirming to the court An attorney’s inability to explain conduct and substance abuse, depression, stress, burnout, career concerns and other issues and advocating positions contained in suggests that the contemplated action is that affect quality of life, personally and/or professionally. those pleadings and motions after learning questionable under Rule 11.25 Attorneys, QCBA Lawyers Assistance Committee (LAC) offers consultation, assessment, 20 that they cease to have merit.” The attor- moreover, should counsel clients about the counseling, intervention, education, referral and peer support. ney’s duty of candor to the tribunal is a attorney’s ethical duty under Rule 11. All communication with QCBA LAC staff and volunteers are completely confi- continuing duty. The attorney must ensure that all papers filed with the court comply Attorneys must offer only meritorious dential. Confidentiality is privileged and assured under Section 499 of the with Rule 11(b) throughout the litigation. claims and contentions. Judiciary laws as amended by the Chapter 327 of the laws of 1993. F.R.C.P. Rule 11 recognizes that there N.Y. Rule of Professional Conduct 3.1 If you or someone you know is having a problem, we can help. To learn more, might be uncertainty at the outset of the buttresses Federal Rule 11’s ethical duty. contact QCBA LAC for a confidential conversation. action about the particular facts. Rule This New York Rule subjects attorneys to 11(b)(3) provides that if a party or attorney discipline for bringing a frivolous action or Lawyers Assistance Committee is not, when a paper is filed or submitted, proceeding or for asserting a frivolous certain about the evidentiary basis under- position while defending an action or pro- Confidential Helpline 718-307-7828 18 THE QUEENS BAR BULLETIN – FEBRUARY 2009 New Amendments to Section 3420 Continued From Page 1 ______reiterated its lame duck position that an an action to clarify an insurer’s obliga- The Court had an opportunity to re-eval- insurer’s disclaimer of coverage was rea- Effect of the New Law: tions after a disclaimer, it was obligated to uate its position in Great Canal Realty v. sonable even though the delayed notice The amendments to Sec. 3420 make a pay its own legal fees whether or not it Seneca Insurance Co., 5 NY 3d 742, later was based on the insured’s mistake or a sweeping change to New York’s “no prej- was successful. Judge Fuchsberg stated the same year. The case involved a delay misunderstanding of their obligations udice” rule. Nevertheless the practitioner that, of four months in the notification of the under an insurance policy. should be aware of a number of ambigui- “It is the rule that such a recovery may insurer where the insured believed that an ties in the amendments. not be had in an affirmative action brought injury would be covered by Worker’s The Amendments to Section 3420: The statute offers no definition of the by an insured to settle its rights but only Compensation. The Appellate Division, The new law affects all insurance poli- word “material” and no hint of what when he has been cast in a defensive pos- First Department had affirmed the denial cies “issued or delivered” after January would impair an insurer’s ability to inves- ture by the legal steps an insurer takes in of the insurer’s motion for summary judg- 17, 2009. Its provisions do not apply to tigate or defend a claim. Presumably this an effort to free itself from its policy.” ment, finding that there was an issue of policies that are already in effect or are difficulty will be dealt with on a case by The clear implication is that an insurer fact on the issue of promptness of notice. renewed before that date. Some of the case basis and resolution would be left for will only be required to pay legal fees to In a long and eloquent decision it recog- important changes are: judicial determination. an insured when it is the one who institut- nized the “the inequities inherent in grant- • A claim by the insured, an injured party There is also a potential difficulty con- ed the law suit and it is unsuccessful in an ing insurers the benefit of a conclusive or any other claimant will not be invali- cerning the burden of proof “if the notice attempt to avoid the obligation to defend presumption of prejudice” and concluded dated by failure to give notice within a was provided more than two years after or indemnify a policyholder. that there was “no reason to extend the prescribed time unless the insurer has the time required under the policy” (new The Court of Appeals only seems will- "no-prejudice" exception to allow insurers been prejudiced. section 3420(c) (2) (A). Most insurance ing to assess legal fees for actions to disclaim coverage on the basis of late • If an insurer disclaims liability due to policies provide that notice must be given required to determine the rights of the par- notice of claim where "lateness" is an late notice in a claim arising out of “as soon as reasonably practicable”, a ties where there is a statutory basis to do arbitrary temporal standard applied to a death or personal injury the injured per- phrase that is in itself ambiguous. Adding so. (Cf. Fresh Meadows Medical lapse between occurrence and notice, and son or other claimant may maintain an the elusive concept of giving notice “after Associates b. Liberty Mutual Insurance where contractual rights favor just one action directly against the insurer on the the time required” merely adds uncertain- Co., 49 N.Y. 3d 93 (1979) where the party, the insurer.” issue of the insurer’s refusal to provide ty to ambiguity. Courts will now have to Court allowed attorneys fees, as well as The Court of Appeals curtly rejected the coverage. determine the time frame which would additional fees incurred to collect the ini- Appellate Division’s point of view. In a • If late notice is provided within two have been considered “reasonably practi- tial fee, in a no fault action based on the terse three paragraph memorandum citing years of the time required under an cable” then add two years to determine a provisions of section 675 of the Insurance Argo, it stated that the “insured's failure to insurance policy the burden of proof is transition point for the allocation of bur- Law). satisfy the notice requirement constitutes on the insurer to show that it was preju- den of proof. Finally they will have to There is no such statutory basis in "a failure to comply with a condition diced. If notice is provided after two determine whether the delay caused Section 3420 and there is no reason to precedent which, as a matter of law, viti- years the burden is on the insured, “material prejudice”. believe that the legislature is likely to ates the contract". injured party or claimant to show that make any amendments to allow legal fees the insurer was not prejudiced by the Who pays for the judicial determina- to an insured or injured party. Where an Legislative Action late notice. tion of the rights of the parties? insured or a third party is forced to insti- Subsequently, legislative efforts to • If prior to notice the insured’s liability Because of such ambiguities it is tute an action to compel defense or indem- eliminate harsh effects of the law grew has been determined by a court or by implicit that declaratory judgment actions nification they must be ready to bear the and resulted in the passage of a bill in binding arbitration, or if the insured has will be required to resolve issues that arise costs. 2007 eliminating the “no prejudice” rule. settled a claim, there is an irrefutable subsequent to “late notice” disclaimers. The bill was promptly vetoed by then presumption of prejudice to the insurer. While the amendments substantially cur- Conclusion Governor Spitzer. He stated that it had • The insurer’s rights shall only be tail the insurer’s ability to use technical The amendments to Section 3420 are been adopted too quickly and without suf- deemed prejudiced where late notice notice irregularities to avoid their obliga- substantial and take the law of this State ficient input from those insurers and busi- materially impairs its ability to investi- tion to defend and indemnify, the insurer into the 21st Century, aligning it with the ness groups that might be affected by it. gate or defend the claim. has no incentive to volunteer coverage accepted position of the vast majority of The legislature, unhappy with the veto, In addition, the insurer must, upon where there is a question of whether or not jurisdictions. More importantly, it elimi- quickly drafted new legislation. It amend- request by an injured person who has filed the notice was given “as soon as is rea- nates the situation where an insurer, after ed Sec. 3420 and inserted the new provi- a claim, confirm that the insured had a sonably practicable”. The insured, or accepting policy premiums, avoids its sions which prevent disclaimers by insur- valid insurance policy in effect on the date interested third parties, will be forced to obligations to defend and indemnify based ers unless they can show “material preju- of the occurrence as well as provide its institute actions to compel coverage. on a relatively minor or innocent violation dice” from a delay. The amendments were limits of liability. While in some cases the cost of such an of the terms of coverage by the insured. signed into law in July, 2008. These changes do not apply to “claims action might be insignificant to a litigant, Ironically, subsequently, after the made” policies where the insurance policy in many cases it will amount to a substan- *Editor’s Note: Martin Schulman is an Governor’s signature, but before the provides that the claim must be made dur- tial burden on an individual policy holder attorney who has been engaged in the changes went into effect, the issue again ing the policy period, a renewal period, or where coverage has been denied. practice of law in Woodside for over came before the Court of Appeals. In an extended reporting period. This exclu- In Mighty Midgets Inc. v. Centennial twenty five years. In addition to a corpo- Briggs Avenue LLC v. Insurance sion is particularly important to lawyers Insurance Co. , 47 N.Y.3d 12 (1979), the rate and real estate practice he serves as Corporation of Hanover, 11 N.Y. 3d 377, and other professionals who traditionally Court of Appeals held that where an a No Fault Arbitrator under the auspices decided in November, 2008, the Court purchase such “claims made” policies. insured, rather than the insurer, instituted of the American Arbitration Association. Advertise To 27000 Lawyers in Queens, Kings, New York, Nassau & Suffolk Counties Call 866-867-9121 THE QUEENS BAR BULLETIN – FEBRUARY 2009 19

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Continued From Page 16 ______Church to make pay for certain engineering analysis ulation, therefore, it was correct. Supreme Court 18. Restatement [Second] of Judgments § 27, in the decision on the 2000 motion. There and other fees relating to the subdivision application, erred, however, when it went beyond the terms of the Comment i and ordered it to pay the 2005 and any future county, stipulation to find the Church in breach of the con- 19. Spallholz v Sheldon, 216 NY 205, 209 [1915] was thus no time limit on the entry of the town and school taxes, and awarded money for tract of sale. While it was proper to impose liability (Cardozo, J.) money judgment, and no need for the 2000 missed payments and back property taxes. for taxes during the existence of the contract, the 20. SCPA§ 2205(1)(a) motion for leave to enter the money judg- The Appellate Division affirmed, describing the order imposed liability after termination of the con- 21. Josey v. Goord, 9 N.Y.3d 386, 849 N.Y.S.2d ment. That Supreme Court had “unac- Levys’ cross-motion as being, in effect, tract. Any claim for breach of contract would have to 497 [2007] one for summary judgment. It held that Supreme be pursued by way of plenary action. The Court 22. Remarkably, there is no disciplinary rule countably” added a direction to “settle Court had jurisdiction to enforce the stipulation, remitted the action to Supreme Court. which specifically prohibits homicide, and neither the judgment” as a money judgment the wife which the Church had signed. The Levys were not, it 6. The difference in severance pay between a dis- misbehavior report nor the hearing officer’s determi- was entitled to without a further order did held, required to enforce the settlement by separate missal for cause or without was over $2 million. nation indicated that the other inmate had died. not change the result. plenary action. 7. Matter of Ellis v Mahon, 11 N.Y.3d 754, ___ 23. The misbehavior report and determination this With the result reached by the Appellate The Court of Appeals reversed. It held, first, that NYS2d ___, 2008 NY Slip Op 06737 [2008]; Matter time did mention the death of the other inmate. the Appellate Division’s description of the Levys’ of Torrance v Stout, 9 N.Y.3d 1022, 852 N.Y.S.2d 8 24. Jones v Bill, 10 N.Y.3d 550, 860 N.Y.S.2d 769 Division having been reversed, but its cross-motion had been erroneous. The Levys could [2008]; Matter of Rutkunas v Stout, 8 N.Y.3d 897, [2008] rationale not having been addressed, it not have been awarded summary judgment since no 834 N.Y.S.2d 73 [2007] 25. Williams v White, 40 A.D.3d 110, 832 remains an open question whether or not party had asked for that relief and, in any event, the 8. Ellis v. Mahon, 49 A.D.3d 538, 540 [2008] N.Y.S.2d 713 [4th Dept., 2007]; Leuchner v. Rule 202.48 will remain subject to the Church had not joined issue in the case. CPLR 3212 9. See, e.g., Matter of Freed v NYS Racing and Cavanaugh, 42 A.D.3d 893, 837 N.Y.S.2d 887 specifies that any party may move for summary judg- Wagering Bd., 9 A.D.3d 808; 780 N.Y.S.2d 673 [3rd [2007] strict construction of time limits set forth ment, but only after joinder of issue. Dept., 2004] and Matter of Haddad v City of Hudson, 26. L. 2008, ch. 388 § 1, effective January 17, in the original Farkas decision. The pru- Where, then, was Supreme Court’s authority to 6 A.D.3d 1018; 775 N.Y.S.2d 613 [3rd Dept., 2004]; 2009 dent approach is to assume that it will be, award any relief? The Court noted, pointedly, that see also Matter of Emmett v Town of Edmeston, 2 27. Lang v Hanover Ins. Co., 3 N.Y.3d 350, 787 and to take great care to submit or settle Supreme Court had never claimed to have granted N.Y.3d 817; 781 N.Y.S.2d 260 [2004]. The Court of N.Y.S.2d 211 [2004] orders and judgments in a timely fashion. summary judgment, but had simply awarded sweep- Appeals in Matter of Red Hook/Gowanus Chamber 28. L. 2008, ch. 472 ing relief “without any citation to legal authority, of Commerce [see next note] listed many more such 29. Hauzinger v Hauzinger, 10 N.Y.3d 923, 862 It must not be assumed that the court will statutory or otherwise”. The Court held that Supreme cases. N.Y.S.2d 456 [2008] excuse late submissions merely because Court did have inherent jurisdiction to enforce stipu- 10. Matter of Red Hook/Gowanus Chamber of 30. The court may not appoint a private attorney to there has been no change in circumstances lations entered into in the course of litigation, citing Commerce v. New York City Bd. of Stds. & Appeals, supervise disclosure and be compensated by the par- or prejudice to the adversary. Teitelbaum Holdings v Gold, 48 NY2d 51 [1979]. 5 N.Y.3d 452, 805 NYS2d 525 [2005] ties, absent their consent (Surgical Design Corp. v. Even under Teitelbaum, however, Supreme Court 11. Romeo v. New York State Dept. of Educ., 41 Correa, 309 A.D.2d 800, 765 N.Y.S.2d 521 [2 Dept. had gone too far. Even though the original litigation A.D.3d 1102, 839 N.Y.S.2d 297 [3rd Dept., 2007] 2003]. 1. David H. Rosen is a Court Attorney/Referee in between White House and the Levys concerned only 12. Windy Ridge Farm v Assessor of the Town of 31. Farkas v Farkas, 40 AD3d 207, 835 NYS2d the Supreme Court, Queens County. The views and the allocation of property taxes and not the contract Shandaken, 11 N.Y.3d 725, ___ NYS2d ___ [2008] 118 [1st Dept., 2007] analyses presented here are his own and do not nec- between the Levys and the Church, the Church had 13. DR 5-108(A); Jamaica Pub. Serv. Co. v AIU 32. Farkas v Farkas, 11 N.Y.3d 300, ___ NYS2d essarily represent those of the Court or of any indi- expressly made itself a party to the litigation by the Ins. Co., 92 NY2d 631 [1998] ___ [2008] vidual Justice. terms of the stipulation of settlement. It had appeared 14. Falk v Chittenden, 11 N.Y.3d 73, 862 33. Brill v City of New York, 2 NY3d 648 [2004]; 2. CPLR 7503(c)3. Matter of Matarasso at all proceedings involving the stipulation. Pursuant N.Y.S.2d 839 [2008] Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 (Continental Cas. Co.), 56 NY2d 264 (1982) to Teitelbaum, therefore, the Church could be consid- 15. Okun v Tanners, 11 N.Y.3d 762, 867 N.Y.S.2d [2004]; Andrea v Arnone, Hedin, Casker, Kennedy & 4. Matter of Fiveco, Inc. v Haber, 11 N.Y.3d 140, ered as a party to the action for all matters directly 25 [2008] Drake, 5 NY3d 514, 521 [2005] 863 N.Y.S.2d 391 [2008] involving the stipulation, and enforcement of the stip- 16. Landau, P.C. v LaRossa, Mitchell & Ross, 11 34. The Court cited Funk v. Barry, 89 N.Y.2d 364, 5. Matter of Henneberry v ING Capital Advisers, ulation against it without a plenary action was not a N.Y.3d 8, 862 N.Y.S.2d 316 [2008] 653 N.Y.S.2d 247 [1996] as establishing that the rule LLC, 10 N.Y.3d 278, 857 N.Y.S.2d 3 [2008] and violation of due process. To the extent that Supreme 17. Tydings v Greenfield, Stein & Senior, LLP, 11 is invoked only where there is an explicit direction to proof of payment of engineering costs, ordered the Court’s order directly enforced the terms of the stip- N.Y.3d 195, ___ NYS2d ___ [2008] submit or settle an order or judgment. 20 THE QUEENS BAR BULLETIN – FEBRUARY 2009 Picture yourself in front of 27,000 New York lawyers.

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