The Journal of the Nassau County Bar Association February 2021 www.nassaubar.org Vol. 70, No. 6

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NCBA COMMITTEE The NCBA Dinner Gala, held our honorees deserve to be recognized MEETING CALENDAR Page 17 annually in May, is the largest social despite the circumstances. In light of this event of the Nassau County Bar decision, the Bar will move forward with Association. In spring 2020, the the creation of the Dinner Gala Journal, COVID-19 Pandemic forced the NCBA which highlights the accomplishments SAVE THE DATE to postpone the May 2020 Gala to of our honorees. The journal is an LAW DAY ensure the safety of all. The Gala was invaluable way to show support for the Advancing the Rule of Law Now rescheduled to Saturday, May 8, 2021 at honorees in a safe and contact-free way. the Long Island Marriott. Unfortunately, Due to the event’s delay, the NCBA will Thursday, April 29, 2021 due to the progression of COVID-19, Christopher T. McGrath Hector Herrera honor not only last year’s fi fty-, sixty-, See pg. 6 for details and concerns for the health and safety and seventy-year honorees, but this year’s of staff and guests, the NCBA has made at Sullivan, Papain, Block, McGrath, as well. the diffi cult decision to further postpone Coffi nas & Cannavo; President’s Within this issue, you will fi nd a the May Gala. The Bar will announce Award Recipient Hector Herrera, journal ad form listing ad options, WHAT’S INSIDE a new date for later in 2021 when it is NCBA Building Manager; and NCBA pricing, and the full names of all S.D.N.Y. Holds That Restaurants Are Not determined that it is safe for guests to Members who have been admitted to honorees. To purchase a journal ad, attend an in-person event. the New York Bar for fi fty, sixty, and forward the ad form to the NCBA Entitled to Insurance Coverage for Lost The honorees being recognized this seventy years for their years of service to Special Events Department at Revenues Due to COVID-19 pg. 3 year include 77th Distinguished Service the legal profession. [email protected] or contact Access to Justice: Past, Present, Medallion Honoree, Christopher T. Although the Coronavirus has (516) 747-4071. We hope you will join McGrath, NCBA Past President, Past hindered the NCBA from being able us in paying tribute to these deserving and Future pg. 5 Co-Chair of WE CARE, and Partner to hold large in-person gatherings, individuals. Review on Dog Bites in Light of Hewitt pg. 6 Housing Discrimination Issues Related Virtual Recognition Reception to Honor to COVID-19 pg. 7 Impact of Court of Appeals’ Holding in 2018-2019 Attorney Volunteers for Service Rodriguez v. City of New York pg. 8 Gale D. Berg A Suspension? A Toll? None of acknowledging volunteers from 2018- Channer, Nassau Suff olk Law Services, 2019 for their eff orts, commitment to and the Safe Center LI will host a virtual the Above? Scope of Executive Each year, hundreds of Nassau service, and the generous donation recognition event on March 3, 2021. County attorneys donate their time Order 202.8 pg. 9 of their time, NCBA Access to Justice All members are invited to attend and talent to aid Nassau residents who Committee Chairs Rosalia Baiamonte, to acknowledge these inspiring Lessons on Civility for Attorneys pg. 10 cannot otherwise aff ord adequate legal Kevin McDonough, Vice-Chair Sheryl professionals. Additional details to follow. School During a Pandemic: Legal assistance. In years past, the NCBA, the Counsel for Students pg. 11 Safe Center LI, and Nassau/Suff olk Law Services have honored those FROM THE BENCH: Conducting Trials volunteers at a cocktail reception held During the Pandemic—Who Is in at Domus. Law fi rms are recognized in Charge Here? pg. 14 three categories by size—including large, medium, and solo practitioners or small Reshaping the World: Abby Mann’s fi rms—and ranked by the total number Judgment at Nuremburg pg. 15 of combined pro bono service hours provided to the three organizations. The most recent event held in May 2018 recognized those who volunteered their time in 2017 to assist Nassau OF NOTE County residents with issues related to NCBA Member Benefit—I.D. Card Photo mortgage foreclosure, landlord/tenant, Obtain your photo for Secure Pass bankruptcy, wills, senior issues, and a Court ID cards host of other areas. Last year’s ceremony was postponed Only For New Applicants due to COVID-19 and scheduling Cost $10 issues. To avoid any further delays in

UPCOMING PUBLICATIONS CONFIDENTIAL HELP IS AVAILABLE TO LAWYERS AND JUDGES COMMITTEE MEETINGS alcohol or drug use, depression or other mental health problems Thursday, March 4, 2021 at 12:45 PM Call Lawyer Assistance Program Thursday, April 1, 2021 at 12: 45 PM (888)408-6222 2 February 2021 Nassau Lawyer 2020 Holiday Staff Fund A special thank you to the following individuals and firms for generously donating to the 2020 Holiday Staff Fund.

Aiello & DiFalco LLP Gassman Baiamonte Gruner, PC Maureen McLoughlin Bruce W. Albert The Genoa Family Jeff rey Moskovic DDS, JD Annabel Bazante Law, PLLC Gene Ginsberg Daniel Palmieri and MaryEllen O’Brien Michael J. Aronowsky John J. Giuff ré Paul J. Petras Hon. Leonard B. Austin Dorian R. Glover The Petrocelli Family Rosalia Baiamonte Alan Goldman, JD CPA John P. Reali, Esq. Bartol Law Firm, PC Douglas Good Susan Katz Richman Donna M. Brady Frank A. Gulotta Jr. Marc W. Roberts Esq. Roland P. Brint, Esq. Martha V. Haesloop Kenneth L. Robinson Lauren Bristol Hansen & Rosasco, LLP Daniel W. Russo Hon. Lisa A. Cairo Hon. Patricia A. Harrington Rebecca Sassouni Capell Barnett Matalon & Schoenfeld LLP Hoff man & Behar, PLLC Schlissel Ostrow Karabatos, PLLC Chris and Elisabetta Coschignano Hon. Steven M. Jaeger Lois Schwaeber Peter V. Christiansen, Esq. James P. Joseph Hon. Mavin E. Segal Collins Gann McCloskey & Barry PLLC Evelyn Kalenscher, Esq. Hon. Denise L. Sher Comerford & Dougherty, LLP Richard Kestenbaum, Kestenbaum & Mark LLP Ira S. Slavit Hon. William J. Corbett Hon. Susan T. Kluewer Robert A. Smith Brian J. Davis S. Robert Kroll Jeff rey E. Soukup Nicholas DeSibio John. F. Kuhn Sanford Strenger Daniel J. Dillon LaRusso Conway & Bartling Andrew M. Thaler Edward J. Donovan A. Thomas Levin Charlene J. Thompson Famighetti & Weinick PLLC Marilyn and Lou Levine Peter J. Tomao Samuel J. Ferrara Peter H. Levy Vishnick McGovern Milizio LLP Dana J. Finkelstein Scott Limmer Kathleen Wright Bernadette K. Ford, Chair, Civil Rights Committee Greg Lisi John M. Zenir, Esq. PC Franchina Law Group LLC Jay A. Marshall, Esq. George P. Frooks Kenneth L. Marten

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Nassau Lawyer February 2021 3 FOCUS: S.D.N.Y. Holds That Restaurants Are Not INSURANCE LAW Entitled to Insurance Coverage for Lost Revenues Due to COVID-19

coverage for the following reasons: (1) coverage” only applies if the “business denied to the restaurant. There are Sparks did not sustain any physical income coverage” applies. Moreover, no allegations that delivery workers, damage; (2) Sparks failed to satisfy any the “extra expense coverage” requires restaurant employees, or customers of the necessary prerequisites for “civil physical loss or damage to property, could not access the location. Rather, authority coverage;” and (3) certain which is not alleged in Sparks’ complaint. the governmental orders only limited the exclusions, including the virus exclusion, The court also rejected Sparks’ claim services to be provided by restaurants to precluded coverage under the Admiral for coverage under the “civil authority Michael C. Cannata and Frank Misiti take-out or delivery services, it did not policy. As a result of the disclaimer, coverage.” The court held that Sparks limit access to non-Sparks employees. n response to the COVID-19 Sparks commenced a declaratory failed to plead the required prerequisites Thus, Sparks failed to satisfy the second pandemic, the governor of New judgment action against Admiral seeking to coverage, namely, that: (1) there was prerequisite for coverage under “civil York—along with governors in payment for its losses under its insurance damage to property other than property Imany other states—issued governmental policy. Admiral then moved to dismiss owned by Sparks; and (2) an action See LOST REVENUES, Page 21 shutdown orders that targeted certain Sparks’ complaint. of civil authority prohibited access to Michael C. Cannata, a business activities, including restaurant Applying New York law to the Sparks’ premises. partner at Rivkin Radler, is interpretation of the Admiral policy, a seasoned litigator with services. Under these orders, restaurants First, the court determined that the extensive experience throughout New York were forced—for Judge John P. Cronan granted Admiral’s complaint failed to allege any specifi c litigating complex, motion to dismiss. The court concluded intellectual property, a period of time—to abandon indoor damage to property near Sparks. While insurance coverage dining and focus their eff orts on take- that with respect to the “business income the complaint vaguely refers to the fact and other commercial out and delivery services. As a result of coverage,” the loss must be caused by that closure orders aff ected businesses disputes in federal and direct physical loss of, or damage to, state courts throughout the loss of revenue from the inability to other than Sparks, without specifi c the country. off er dine-in services, many restaurants property at the premises. The court allegations of damage to property of a sought insurance coverage for their lost held that while there was a suspension neighboring property, the complaint fails Frank Misiti, a partner revenues under commercial property of certain services off ered by Sparks— at Rivkin Radler, is an to satisfy the fi rst prerequisite. experienced litigator insurance policies. namely, dine-in restaurant services— Second, even if property damage representing clients in In that connection, Sparks Streak the complaint failed to allege that any of had been alleged, the court held that intellectual property, Sparks’ property suff ered a physical loss complex insurance House (“Sparks”) commenced a the complaint did not allege that access coverage, commercial, purported class action lawsuit in the or was damaged. was ever denied to Sparks’ premises. and other business United States District Court for the In examining the policy, the court disputes in state The complaint did not allege, and and federal courts Southern District of New York against focused on the fact that in order to be the governmental orders make clear, throughout the country. its insurer Admiral Indemnity Company covered, Sparks’ suspension of operations that access was never completely (“Admiral”) entitled Michael Cetta, Inc. “must be caused by direct physical loss d/b/a Sparks Steak House on behalf of of or damage to property.” While these themselves and all others similarly situated, v. words were not defi ned in the policy, the Admiral Indemnity Company, 20 Civ. 4612. court concluded, nevertheless, that the In the lawsuit, Sparks seeks insurance words were not ambiguous. Rather, the coverage under an “all-risk” commercial court examined dictionary defi nitions property insurance policy for loss of to determine the plain and ordinary LOWER COST revenue as a result of New York’s meaning of these words. Based on those shutdown orders. defi nitions, the court found that the loss Sparks claimed entitlement to at issue must be physical and there must MEDIATION AND coverage under three diff erent parts of be “a negative alteration in the tangible its policy—that is, the “business income condition of property.” To that end, coverage,” “extra expense coverage,” the court held that losing the ability to ARBITRATION and “civil authority coverage” sections. use unaltered property did not change “Business income coverage” provides the physical condition of the property coverage for the actual loss of business and was not considered physical loss or income sustained by an insured due damage to property. Through the Nassau County Bar Association to the suspension of the insured’s The court also pointed to the fact operations. In order to trigger this that “business income coverage” runs Expeditious, time-saving, and cost-effective solutions coverage, the policy requires that the for the “period of restoration,” which is to resolve disputes that might otherwise be litigated suspension of the insured’s operations defi ned as the date when the property in court must be caused by “direct physical should be repaired, rebuilt, or replaced. loss of or damage to property at [the Thus, “the idea that the premises will be insured’s] premises.” “Extra expense ‘repaired, rebuilt or replaced’ suggests Available to the public as well as to all legal coverage” only applies if “business the occurrence of material harm that professionals income coverage” applies and includes then requires a physical fi x.” Here, coverage for costs associated with: (1) Sparks’ alleged loss of use requires no temporary relocation; or (2) minimizing physical repair or rebuilding to end the Reasonable fees that are less expensive than other the suspension of business operations. suspension of Sparks’ operations. The alternative dispute resolution providers Finally, “civil authority coverage” court’s analysis of the plain meaning of the policy is also supported by a review provides coverage when an insured Mediators and arbitrators are highly skilled attorneys suff ers damages because of physical of case law, not only in New York, but damage to an area surrounding the throughout the country, interpreting the admitted to the New York Bar for a minimum of 10 insured’s premises and the government “business income coverage” provision. years, as well as screened and approved by the NCBA prevents access to the insured’s premises The court further concluded that since Judiciary Committee. as a result of such physical damage. Sparks’ claim for coverage under the After being forced to cease indoor “business income coverage” provision For rules, applications, and additional information, dining activities, Sparks tendered its fails, Sparks’ claim for coverage under please call (516) 747-4126. claim for coverage to Admiral. Admiral the “extra expense coverage” must also responded to the tender by disclaiming fail. The court noted that “extra expense 4 February 2021 Nassau Lawyer Nassau Lawyer President’s Column The Official Publication of the Nassau County Bar Association 15th & West Streets, Mineola, N.Y. 11501 Black History Month celebrates the righteous leaders, courageous leaders, believe Phone (516)747-4070 • Fax (516)747-4147 achievements of African Americans and is a in civil rights human rights, equal rights, and www.nassaubar.org E-mail: [email protected] time to recognize their role in this nation. Dr. universal rights. Rulers destroy rights, feel Martin Luther King, Jr. once said, “I’ve been to threatened by human rights, feel threatened NCBA Officers President the mountaintop…I just want to do God’s will, by equal rights and civil rights.” and he’s allowed me to go up to the mountain. Dorian R. Glover, Esq. As a nation, as a community, as a Bar And I have looked over. And I’ve seen the President-Elect promised land.” Association, as a citizen, “When a word must Gregory S. Lisi, Esq. be spoken to further a good cause, and those What do you think Dr. King saw on the Vice President whom it behooves to speak remain silent, other side of the mountain? In the wake of Rosalia Baiamonte, Esq. the assault on the U.S. Capitol by violent anybody ought to raise his voice, and break ROM THE Treasurer protesters, we are all faced with the question of F a silence which may be fraught with evil. Sanford Strenger, Esq. how to courageously lead in times of danger PRESIDENT Many a time a few simple words have helped and diffi culty. further the welfare of a nation, no matter who Secretary During this Black History Month, let us Dorian R. Glover uttered them; the voice itself displaying its Daniel W. Russo, Esq. refl ect on a vision. “Every great dream begins latent powers, suffi ced to move the hearts of Executive Director with a dreamer, you have within you the men,” said Aretine scholar and poet Francesco Elizabeth Post strength, the patience, and the passion to reach for the stars Petrarch, author of Letters of Old Age. Editor-in-Chief to change the world,” said Harriet Tubman. “Democracy cannot fl ourish amid fear. Liberty cannot Christopher J. DelliCarpini, Esq. There is an internal and external fl ame in all of us. It is bloom amid hate. Justice cannot take root amid rage. In the light of truth leading the way to the promised land. It Copy Editor the chill climate in which we live, we must go against the Allison C. Shields, Esq. is incumbent on each of us individually to keep the light prevailing wind. We must dissent because America can do burning and to be leaders as described by Rev. Dr. Otis better, because America has no choice but to do better,” Editor/Production Manager Moss, Jr., Morehouse Class of 1956, at the Washington Ann Burkowsky said Supreme Court Justice Thurgood Marshall. National Cathedral Sunday morning service. Our mission remains unchanged—to inspire among all Photographer “We must know the eternal diff erence between a leader citizens respect for the law and the governing principles of Hector Herrera and a ruler. There is a phenomenal eternal diff erence our democracy, by personal and professional example and February 2021 between a righteous leader and an unrighteous ruler. by public education. This is our time to envision a dream Leaders are kind in word, deed, and action. Rulers are Rhoda Y. Andors, Esq. as professed by Harriet Tubman. To realize the dream of Rudy Carmenaty, Esq. dangerous and mean spirited. Rulers generally create Rev. Dr. Martin Luther King, Jr. when he went up to the a reign of error and that reign of error can lead to a Christopher J. DelliCarpini, Esq. mountain top and saw the promised land. To keep the reign of terror. Leaders are compassionate. Rulers are Andrea DiGregorio, Esq. internal and external fl ame, that light of truth, leading our fearful, insecure, and demeaning to others. Leaders are Jeff Morgenstern, Esq. way to the promised land. To be leaders and not rulers. To Focus Editors everlasting learners. Disciples of truth. Rulers think they Cynthia A. Augello, Esq. know everything. Rulers take credit for every success and be champions of civil rights, human rights, equal rights, Thomas McKevitt, Esq. blame others for every failure. Leaders lift others, build and universal rights, as Rev. Dr. Otis Moss, Jr. described. others, bless others, pray fervently for others. Rulers When a word must be spoken to further a good cause, raise your voice to help further the welfare of a nation, as Committee Members destroy others, tear down others, hate others. Leaders Christopher J. DelliCarpini, Esq., Co-Chair Francesco Petrarch penned. To dissent where necessary, love and embrace and protect children and rejoice in Andrea M. DiGregorio, Esq., Co-Chair their presence. Seeking the best for all of God’s children. because America has no choice but to do better, as stated by Rudy Carmenaty, Esq., Vice-Chair Rulers spend so much loving themselves and praising Thurgood Marshall. Finally, to remain true to the NCBA Rhoda Y. Andors, Esq. themselves and rewarding themselves they have very mission, by inspiring all citizens to have respect for the law Cynthia A. Augello, Esq. little time to lift, to serve, to care for others. Leaders, and the governing principles of democracy. Deborah S. Barcham, Esq. Hon. Robert G. Bogle Deanne Marie Caputo, Esq. Ellin Cowie, Esq. Nancy E. Gianakos, Esq. Adrienne Flipse Hausch, Esq. Jordan K. Hoffman, Esq. Janine Luckie, Esq. Michael J. Langer, Esq. Michael H. Masri, Esq. Thomas McKevitt, Esq. Daniel McLane, Esq. Jeff H. Morgenstern, Esq. Marian C. Rice, Esq. Daniel W. Russo, Esq. Allison C. Shields, Esq. Tammy Smiley, Esq. Ellen B. Tobin, Esq. Published by Long Island Business News (631)737-1700; Fax: (631)737-1890 Publisher Graphic Artist Joe Dowd Wendy Martin

Nassau Lawyer (USPS No. 007-505) is published month- ly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 and at additional entries. Contents Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association that are of substantive and procedural legal interest copyright ©2021. Postmaster: Send address changes to the Nassau County Bar Association, 15th and West Streets, to our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to Nassau Lawyer, Mineola, NY 11501. its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations, and quotations. Nassau Lawyer February 2021 5 FOCUS: Access to Justice: Past, Present, and Future LEGAL SERVICES

known. This broader title included In 2011, the National Association of were invited to Domus to meet with education about reduced fee services Bar Executives awarded the Lexis/Nexis volunteer attorneys, one-on-one, who as well as free consultation services Community and Education Outreach provided free legal guidance in a variety and better described the NCBAs Award to NCBAs Mortgage Foreclosure of legal areas, including real estate, commitment to broaden the menu of Pro Bono Project due to its unique one- matrimonial, immigration, bankruptcy, legal assistance to those in need. on-one consultation clinics. estate planning, elder care, health, small During four decades of evolution, On October 25, 2011, in celebration business, employment/labor, criminal, the Access to Justice Committee of the of national Pro Bono Week, NCBA and any other area which may be NCBA remains dedicated to improving together with Nassau/Suffolk Law requested prior to the event. Volunteer and increasing the availability of pro Services and The Safe Center of translators were available as well. bono and reduced fee legal services for Rosalia Baiamonte, Martha Krisel, Long Island held its first annual Open When the event was first established, Gale D. Berg, and Hon. Maxine S. Broderick lower-income and vulnerable persons in House under the leadership of Past it was known as “the free legal Pro Bono our community. President John McEntee and Gale D. FAIR (Free Assistance, Information e are approaching the Meeting the Changing Berg. At this event, Nassau residents and Referral).” It was then renamed fortieth anniversary since the Needs of Our Community See ACCESS, Page 22 formation in 1981 of the first Wcommittee of the Nassau County Bar From its inception, the Volunteer Rosalia Baiamonte is an Gale D. Berg is an Lawyers Project partnered with the attorney with Gassman Associate Magistrate Association to explore providing free Baiamonte Gruner, P.C. in in the Village of Baxter legal services for the public good. Nassau Academy of Law to offer CLEs, Garden City, representing Estates. She is also NCBA The pioneering work of the NCBA and mentoring and training programs, clients in matrimonial Director of Pro Bono which continue to be invaluable to its matters. She is also Attorney Affairs. Ms. Berg Bankruptcy Committee (then chaired by NCBA Vice President. can be reached at Andrew Thaler) and the Matrimonial success. More than twenty years ago, Ms. Baiamonte can be (516) 742-4070. reached at (516) 228-9181. Law Committee (then chaired by an Attorney of the Day program was Stephen Gassman)—the first groups established in Hempstead Landlord/ to recognize the need for and value of Tenant Court, where private law firms partner with law services staff to structured and organized public interest Martha Krisel is Executive Hon. Maxine S. Broderick represent the interests of low-income legal services—served as the backbone Director of the Nassau presides in Nassau tenants. Over the years, thousands of County Civil Service County District Court. She for the NCBAs pro bono project in the men, women, and children have been Commission. She is also is also a NCBA Director early days. a former NCBA President and Law Student Chair of provided assistance in court to prevent Likewise deserving of recognition and currently Chair the NCBA COVID-19 Task homelessness. This program continues of the NCBA COVID-19 Force. Judge Broderick is the late Hon. Arthur Spatt, then Committee. Ms. Krisel can can be reached at to the present day, where its need in the serving as the Administrative Judge be reached at (516) 493-4200. face of a financial crisis occasioned by (516) 572-1117. of Nassau County, who offered his a once-in-a-century global pandemic is strong support and encouragement ever more palpable. of the NCBAs efforts to promote the In 2008, NCBA became the first bar Volunteer Lawyers Project. Judge Spatt’s association in New York State to address transformative judicial imprimatur the looming mortgage foreclosure crisis. added the gravitas needed to recruit Volunteer attorneys provided one-on- volunteers to the fledgling project. one consultations at free monthly clinics LAW OFFICES OF RANDY C. BOTWINICK Commitment to held at Domus (the headquarters of our Formerly of Pazer, Epstein, Jaffe & Fein Pro Bono Legal Services association in Mineola) to any Nassau County homeowner facing foreclosure. CONCENTRATING IN PERSONAL INJURY Our first “Pro Bono Committee” In 2012, victims of Superstorm Sandy was established by Thomas Maligno, • Car Accidents• Slip & Falls• Maritime also attended the clinics and were who has been part of the organized pro • Wrongful Death • Defective Products provided free legal consultations on bono movement since 1978, when he Superstorm Sandy issues intertwined • Tire & Rollover Cases• Traumatic Brain Injury,�... � helped create the Pro Bono Project on with mortgage foreclosure, claims, • Construction Accidents Long Island. In 1989, he became the landlord/tenant, debt referral, consumer Now associated with Halpern, Santos and Pinkert, we have obtained Executive Director of Nassau Suffolk protection and bankruptcy. well over $100,000,000 in awards for our clients during the last three Law Services, one of the largest legal decades. This combination of attorneys will surely provide the quality In 2010, the New York State Office Co-Counsel and services program in the country. of Court Administration granted representation you seek for your Florida personal injury referrals. Participation Fees Paid Mr. Maligno’s commitment to and funding to the NCBA’s Foundation support of pro bono activities was so to expand its pro bono mortgage profound, that he successfully argued foreclosure efforts. Gale D. Berg, then a that a step in the leadership “ladder” NCBA Board Member and Past Chair toward becoming NCBA President of the Community Relations Public must include a one-year tenure as Chair Education Committee of the NCBA, of the NCBA Pro Bono Committee. was hired as the Director of Pro Bono In this way, each and every NCBA Attorney Affairs. Since 2011, as a result President will have served a pro bono of Ms. Berg’s exhaustive efforts and leadership role. For many years, this outreach to the members of NCBA privilege belonged to the Second Vice and the legal community, the number President. When that position was of active participating volunteers has eliminated, the role of Chair of the Pro substantially increased. Bono Committee was folded into the Following the initial grant, Ms. Berg JAY HALPERN responsibilities of the Vice President. RANDY C. BOTWINICK has continued to obtain grant funding in 34 Years Experience 39 Years Experience During Past President Martha Krisel’s amounts sufficient to expand and enable tenure on the Board of Directors and NCBA, through its Foundation, to assist 150 Alhambra Circle 2385 NW Executive Center Drive -- the Executive Committee, the NCBA no less than 16,900 residents since Suite 1100, Coral Gables, FL 33134 Suite 100, Boca Raton, FL 33431 expanded its pro bono activities and she inception. The NCBA Access to Justice P 305 895 5700 F 305 445 1169 P 561 995 5001 F 561 962 2710 successfully championed the renaming initiatives under Ms. Berg’s stewardship of the “Pro Bono Committee” to the have resulted in several awards and Toll Free: 1-877-FLA-ATTY (352-2889) more descriptive and inclusive “Access recognition, including the New York www.persona11niury1awyer.ws to Justice Committee,” as it is currently Law Journal’s Annual Pro Bono Award. From Orlando to M1am1 ... From Tampa to the Keys 6 February 2021 Nassau Lawyer FOCUS: Review on Dog Bites in Light of Hewitt PERSONAL INJURY Bard Standard liable unless he knew or should have the persons and property of others in a 11 Prior to 2006, dog bite injury victims known of the bull’s vicious or violent given situation.” in three of the four Appellate Division propensities. As the record below The Court of Appeals elaborated departments could pursue civil actions was devoid of any prior evidence that knowledge of vicious propensities against the dog’s owner sounding in of the bull injuring another person can be established not only by proof of strict liability (if the dog had exhibited or animal, or behaving in a hostile an owner’s notice of prior acts of the prior vicious propensities) and/or or threatening manner, summary domestic animal, but also by lesser proofs, general negligence for failing to exercise judgment in favor of Defendant including prior growling/snapping/ reasonable care in the training, restraint owner was affi rmed. Interestingly, baring teeth or evidence proving if and/ or keeping of the dog.5 But in 2006, the Court disregarded an affi davit of or how an animal was restrained.12 the Court of Appeals’ decision in Bard Plaintiff ’s expert opining that bulls Accordingly, defense counsel in dog David J. Barry v. Jahnke6 narrowed and cemented the are generally dangerous and vicious bite injury cases in Nassau County rule that a dog bite injury victim’s only animals, noting that “the particular Supreme Court have been very lthough the friendship between avenue of recovery against a dog’s type or breed of domestic animal humans and canines dates successful in motion practice seeking owner is a cause of action based on alone is insuffi cient to raise a question back at least 14,000 years,1 dismissal based on plaintiff s’ failure to strict liability. of fact as to vicious propensities.” Ait certainly seems as if the popularity raise triable issues of fact as to whether In Bard, Plaintiff was performing Further, the Court declined to adopt of dog ownership increases year after defendants knew or should have known repair work within an Ostego County the enhanced duty rule pertaining to of the vicious propensities of their year. According to a recent national domestic animals other than dogs or dairy farm when he was attacked dogs. Further, the Supreme Court has survey, over 63 million households in the cats, which extinguished Plaintiff ’s by a bull, causing him to sustain routinely ruled that New York does not United States harbor almost 90 million negligence claim.8 2 fractured ribs, a lacerated liver and an recognize a common-law negligence dogs. New York City alone is home to exacerbation of a prior cervical spine Plaintiff was granted leave to appeal, 3 cause of action for injuries caused by approximately 600,000 dogs. and the Court of Appeals made it crystal injury. Plaintiff subsequently brought a domestic animals.13 But unfortunately for us dog lovers, personal injury action in Ostego County clear moving forward, that when harm is man’s best friend is not always that— Supreme Court sounding in both caused by a domestic animal, its owner’s See DOG BITES, Page 24 approximately 4.5 million dog bites occur strict liability and negligence against, liability is determined solely on a theory 9 David J. Barry is a partner each year in the United States, with among others, Defendant bull owner. of strict liability. Reiterating its decision at the Mineola law fi rm of 800,000 of those bites requiring medical Upon a showing that he did not know in Collier v. Zambito,10 the Court held “that Collins Gann McCloskey treatment.4 As such, it should come as & Barry PLLC, where he Plaintiff would be at the farm that day, the owner of a domestic animal who focuses on plaintiff’s no surprise that plaintiff ’s personal injury the Supreme Court granted Defendant either knows or should have known of personal injury and practitioners are frequently fi elding dog owner’s motion for summary judgment that animal’s vicious propensities will be criminal defense litigation. 7 David also serves on the bite injury inquiries, and new dog bite dismissing the complaint. held liable for the harm the animal causes NCBA Board of Directors cases are constantly landing on the desks The Third Department affi rmed on as a result of those propensities. Vicious and as the Vice-Chair of the Plaintiff’s Personal of defense counsel from their insurance a diff erent basis however, concluding propensities include the propensity to do Injury Committee. carrier clients. Defendant owner could not be held any act that might endanger the safety of

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At this difficult time, the Nassau County Bar Association wants you to know we will do Thursday, April 29, 2021 what we can to help our members with their Additional details to follow. legal and business responsibilities. All NCBA, Court, and Nassau County updates regarding COVID-19 can be found on our website at www.nassaubar.org and our Facebook page. We are here if you need us. Nassau Lawyer February 2021 7 FOCUS: Housing Discrimination Issues Related to HOUSING LAW COVID-19

such person will be “regarded” as As well, African Americans, Latinos, people with COVID-19. Associational having a “disability.” Such a person and Orthodox Jews have incurred more discrimination is in violation of the would be covered by the Federal anti- cases of COVID-19 than persons of Federal Fair Housing Act.16 discrimination laws related to housing. other racial, religious or ethnic groups. The Federal Fair Housing Act Clearly, discrimination against African- Conclusion obviously covers landlords, cooperative Americans, Latinos and Orthodox While these issues will likely be and condominium boards that exclude Jews simply because those groups decided a case by case basis, the people with disabilities from housing have had more exposure to COVID- because of their disabilities.6 The laws 19 than others would violate the anti- guiding overall principle will most Robert L. Schonfeld also cover landlords, cooperative and discrimination laws.14 likely be whether a building-wide rule condominium boards that place diff erent A more interesting question is whether is necessary to protect residents and he recent surge in COVID- terms and conditions on people with a landlord who singles out individuals staff and is not based on speculation, 19 cases will likely result in a 7 corresponding surge in claims of disabilities. The question of whether from an area or zip codes that has assumptions, or unjustifi ed conclusions. diff erent terms and conditions placed experienced an infl ux of COVID-19 Thousing discrimination. While many of Courts, in all likelihood, will balance on people with COVID-19 violate the cases, rather than because of being these complaints will be fi led by people the safety of residents or staff while will anti-discrimination laws will likely be the part of a particular racial, ethnic or who have or have had COVID-19, not condoning factually unsupported subject of considerable litigation. religious group, is in violation of the there will also likely be claims asserted Housing rules relating to persons with anti-discrimination laws. The answer assumptions and conclusions. by Asian Americans blamed for the COVID-19 can generally be broken depends upon whether an area or zip pandemic, persons of particular racial, 1. 42 USC § 3604(f)(1). into two categories — (1) those that code has a particular identifi cation with ethnic or religious groups who live in 2. 42 USC § 12132. specifi cally aff ect people with COVID- a religious, ethnic, or racial group. 3. 42 USC § 3602(h)(1); 42 USC 12102(1)(A). areas which have an greater numbers of 19 such as required quarantining or If an area or zip code is associated 4. 24 CFR § 100.201; see Rodriguez v. Village Green COVID-19 cases, or perhaps physicians exclusion from public rooms and (2) with a particular group, exclusion Realty, 788 F.3d 31, 44 (2d Cir. 2015) (working and and other health care professionals who learning are major life activities). those that are disability neutral such of persons from that area or zip have treated persons with COVID-19. 5. 42 USC § 3602(h)(2), (3); 42 USC 12102(1)(B), (C). as the exclusion of all visitors from a code may have a disparate impact This article will explore legal issues 6. 42 USC § 3604(f)(1). building. The Fair Housing Act does not on those persons because of their 7. 42 USC § 3604(f)(2). related to persons discriminated against require a building to place its residents race, ethnicity, or national origin 8. 42 USC § 3604(f)(9) (building is not required to when obtaining housing because of or staff in danger. However, assumptions and may therefore violate the anti- allow threats to health and safety of residents and COVID-19. There are two general staff ). or fears about such persons cannot play discrimination laws.15 Discrimination principles that apply in housing 9. See, e.g., Human Resources Research Management Group, a role in a determination about housing. against a larger geographic area, such Inc. v. County of Suff olk, 687 F.Supp.2d 237 (E.D.N.Y. discrimination cases. They are (1) Therefore, if a person with COVID- as the entire city of New York City or anti-discrimination laws do not stop 2010) (county law regulating substance abuse houses 19 is found by medical evidence to be all of Nassau County, would be less found violative of the Federal Fair Housing Act a housing provider from protecting a risk to other persons in a building likely to be in violation of the anti- because it was based on unjustifi ed assumptions and the safety of residents and staff and if not quarantined or excluded from discrimination laws. stereotypes). (2) any exclusions or rules must be certain areas, the building will not run 10. 42 USC § 3604(f)(3)(B); see, e.g., Shapiro v. Cadman based on evidence and not stereotypes, Occupational Discrimination Towers, Inc., 51 F.3d 328 (2d Cir. 1995) (building had afoul of the Federal anti-discrimination to make an accommodation for parking space for assumptions or conclusions without an 8 laws. However, if a building bases its Finally, while it may seem implausible, resident with a disability). evidentiary basis. Those principles will policies on unjustifi ed assumptions or it is conceivable that persons such 11. Executive Law 292(21). be applied to the issues discussed. conclusions, it will be in violation of the as physicians and nurses who work 12. NCAC § 21-9.2(e). Is COVID-I9 a Disability Under Federal Fair Housing Act.9 at hospitals treating COVID-19 13. 42 USC § 3604(a) (national origin discrimination patients may be subjected to housing barred by the Fair Housing Act). Housing Discrimination Laws? Disability neutral policies must be 14. 42 USC § 3604(a); see, e.g., MHANY Management, considered on a case by case basis. If a discrimination solely because of their The Federal Fair Housing Act1 Inc. v. County of Nassau, 819 F.3d 581, 606–08 (2d Cir. person with COVID-19 needs visitors to contact with COVID-19 patients. With 2016) (law discriminating against persons because of and the Americans with Disabilities few exceptions, New York State law is their race or ethnicity violative of Fair Housing Act). 2 provide medical care or food and cannot Act (for public housing) bars housing leave their home, the building must simply not applicable. 15. Texas Department of Housing & Community Aff airs discrimination on the basis of a make a reasonable accommodation of Except in New York City, there is v. Inclusive Communities Project, Inc., 135 S.Ct. 2507 disability. The key question, though, no bar to occupational discrimination (2015); Tsombanidis v. West Haven Fire Department, 352 any “no-visitor” rules to allow that person F.3d 565, 575 (2d Cir. 2003). is whether COVID-19 is considered a 10 to have visitors. However, if a building under the anti-discrimination laws. 16. 42 USC § 3604(f)(1)(C). “disability” covered by these laws. There closes certain facilities to all residents Attorneys and actors have been has been no case law developed on this Robert L. Schonfeld is of and a person with a disability does not excluded from cooperative buildings. counsel to the law fi rm issue as of yet. demonstrate need on account of a Such exclusions, based on a person’s of Moritt Hock & Hamroff The fi rst element of the defi nition of occupation, does not violate the anti- LLP. He was formerly an disability, the building’s conduct will likely Assistant Attorney General “disability” in these laws states that a not violate the anti-discrimination laws. discrimination laws. in the New York State disability is a condition that substantially The New York State Human Rights However, an argument might Attorney General’s offi ce. limits a major life activity.3 These 11 He litigates cases under Law and the Nassau County Human be made that health care workers the Fair Housing Act functions are usually considered to be Rights Law12 have a somewhat excluded from housing are being and the Americans with ability to work, learn, eat, or partake diff erent defi nition of what constitutes excluded because of their association Disabilities Act on behalf 4 of housing providers. in daily living activities. Using the fi rst a “disability” under the Federal law, but with people with disabilities, namely element of the defi nition, it is not clear those defi nitions are not so drastically whether a person who has or has had diff erent that they would require a COVID-19 would qualify for coverage diff erent result. under the laws. Some people with COVID-19 have been asymptomatic National Origin Discrimination and and would not fall under the defi nition, Discrimination Based on Area Subscribe today while others have had lingering There has been considerable impairments and would be covered. anecdotal evidence that there has However, the defi nition of “disability” been discrimination against Asian also covers persons who are regarded Americans on the presumption that as being disabled or have a record or Asian Americans brought the pandemic history of disability.5 If a landlord to the United States. Clearly, any or a cooperative or condominium discrimination against Asian Americans board takes an action against a person in housing is barred by current anti- with COVID-19, it is likely that discrimination laws.13 8 February 2021 Nassau Lawyer FOCUS: Impact of Court of Appeals’ Holding in PERSONAL INJURY Rodriguez v. City of New York

summary judgment on liability or the risk, the plaintiff must prima facie establish Practice Pointers: Defendants date an appellate court reverses the that the defendant failed to satisfy its duty 7 Rodriguez’ holding benefits the denial of summary judgment. to make things as safe as they appear plaintiffs’ bar, but the basics of Thus, in evaluating case value and to be, that that the known risks of the defending a negligence action have not a reasonable settlement amount, both activity were concealed or unreasonably changed. Like any other case, plaintiff’s sides need to take into account that at enhanced, or that the conduct of others burden to establish a defendant’s alleged trial plaintiff’s comparative negligence was reckless or intentional. negligence and proximate causation is the only liability issue on the jury Practice Pointers: have not changed. The facts of each interrogatories, and having juries focus Ira S. Slavit, Matthew Lampert, and Melissa Plaintiffs case will always be significant. It is Manna on plaintiff’s conduct does not always benefit the plaintiff. Plaintiff’s counsel must be mindful critical to obtain detailed information about the accident and its location “To be entitled to partial summary judg- It does not appear that Rodriguez has or that all the stringent requirements that ment a plaintiff does not bear the double will re-open the door to a reexamination a proponent of summary judgment during depositions. Use of photographs, burden of establishing a prima facie case of pre-Rodriguez orders that followed must establish apply to plaintiff’s plans, and maps, if available, will help of defendant’s liability and the absence of then-existing precedent regarding summary judgment motions on liability. depict the area where the accident his or her own comparative fault.”1 plaintiff’s burden when moving for The moving papers must eliminate all took place and could impact plaintiff’s summary judgment on liability.8 issues of fact regarding the defendant’s version of the events. A question of fact ith that holding in Rodriguez As a caveat to plaintiff’s lawyers, negligence and that the negligence was a as to plaintiff’s credibility can result in v. City of New York almost interest does not begin to run upon proximate cause of plaintiff’s injuries. the denial of summary judgment and three years ago, the Court execution of a stipulation between The court should be reminded that be quick to highlight when plaintiff’s Wof Appeals changed the landscape in parties establishing the liability of one opposition relating to a damages issue, evidentiary submission presents personal injury litigation, no longer of them unless the stipulation explicitly rather than liability, will not defeat conflicting testimony, warranting a requiring plaintiffs to establish their provides for pre-judgment interest.9 the motion. For example, defendant’s denial of summary judgment.18 complete freedom from comparative argument that the chain plaintiff It is imperative to anticipate that Comparative Negligence negligence to obtain summary judgment tripped on was open and obvious was upon plaintiff’s summary judgment on the issue of liability. The Court’s After Rodriguez insufficient to defeat the motion as motion as to liability, plaintiff may also rationale, citing to the language and Where summary judgment on liability it was held the issue was relevant to move to dismiss defendant’s affirmative intent of CPLR 14-A, is essentially is granted post-Rodriguez, CPLR Article comparative fault.14 Opposition on the defense of comparative negligence. that comparative negligence relates to 14-A affirmative defenses of culpable ground that the motion is premature As indicated above, plaintiffs must damages, not liability. conduct such as comparative negligence will not prevail if the purportedly affirmatively seek this relief and must Impact of Rodriguez and assumption of risk pled in the outstanding discovery would potentially show that, as a matter of law, they were defendant’s answer remain intact. To lead solely to evidence of plaintiff’s free from negligence in the happening Pre-Rodriguez, a plaintiff seeking 15 obtain dismissal of those affirmative comparative fault. of the accident. summary judgment on the issue of defenses, plaintiff’s notice of motion must Perhaps the biggest pitfall for plaintiffs Here, not only must defendants liability was “required to establish that 10 explicitly include that request for relief. as movants is that in the quest to eliminate show a triable issue of fact to defeat the defendant was negligent, that the A plaintiff cannot properly request all genuine issues of fact, they fail to make summary judgment on liability, they negligence was a proximate cause of the dismissal of the affirmative defenses for sure none of the exhibits submitted with must also make such a showing as to plaintiff’s injuries, and that the plaintiff 11 the first time in reply papers. the motion raise an issue of fact. This will plaintiff’s negligence when opposing was free from comparative fault.”2 By Plaintiff must demonstrate the result in denial of the motion, regardless a motion to strike this affirmative virtue of Rodriguez, plaintiff has been absence of his or her comparative of the opposition’s sufficiency. relieved of the burden to prove freedom defense. The “existence of an open fault to obtain dismissal of culpable In Grant v. Carrasco, not only question as to a plaintiff’s comparative from negligence to obtain summary conduct affirmative defenses. In Poon did plaintiff submit evidence of a judgment on liability. v. Nisanov, the Second Department potentially nonnegligent explanation See RODRIGUEZ, Page 22 Post-Rodriguez, there has been an held that “[a]lthough a plaintiff need for striking plaintiff’s vehicle in the influx of plaintiffs’ summary judgment Ira S. Slavit is a partner not demonstrate the absence of his or rear, he also submitted an uncertified in Levine & Slavit, PC in motions and court decisions that cite her own comparative negligence to be copy of a police accident report which Mineola, representing to this significant holding. Plaintiffs entitled to partial summary judgment as stated,according to the defendant driver, plaintiffs in personal have relied on Rodriguez in obtaining injury matters. He is to a defendant’s liability … the issue of that plaintiff’s vehicle came to a sudden also the Chair of the summary judgment in motor vehicle, a plaintiff’s comparative negligence may stop even though the traffic light was NCBA Plaintiff’s Personal premises liability, Labor Law §§ 240(1), be decided in the context of a summary green. By submitting the report, the Injury Committee. Mr. Slavit can be reached 241(6) and 2003, negligent security judgment motion where … the plaintiff waived any objection to its at (516) 294-8282. cases,4 and General Obligations Law § plaintiff moved for summary judgment admissibility, notwithstanding that it 11-106 and General Municipal Law § dismissing a defendant’s affirmative contained self-serving statements not in 205-e causes of action involving injury defense of comparative negligence.12 admissible form.16 Matthew Lampert is to a police officer.5 Rodriguez does not ease a plaintiff’s Summary judgment was similarly a partner with Rivkin Radler LLP, defending As applied, arguing plaintiff’s burden on a summary judgment motion denied in Tejada v. Cedeno, where personal injury, comparative negligence is the only on liability if the defendant possesses a plaintiff’s motion papers included construction/labor law summary judgment motion defense claims, premises liability, “primary” assumption of risk defense. documents containing a version of the negligent supervision, Rodriguez eliminates. All other defenses Primary assumption of risk applies to accident indicating that the defendant and motor vehicle in defendant’s arsenal are available. In claims arising from sporting events, may not have been negligent.17 collision cases. He is also the Chair of the NCBA addition, to obtain summary judgment, sponsored athletic activities, or athletic It is imperative that plaintiffs’ Defendant’s Personal it remains plaintiff’s burden to establish, and recreational pursuits. Under this counsels carefully review all Injury Committee. Mr. prima facie, the defendant was negligent theory, a plaintiff who freely accepts a contemplated exhibits to make certain Lampert can be reached at (516) 357-3245. and the defendant’s negligence was a known risk commensurately negates any that, as helpful as they may appear to proximate cause of the alleged injuries.6 duty on the part of the defendant to be, nothing therein can be construed Melissa Manna is a 13 partner with Cullen Arguably, one of Rodriguez’ biggest safeguard plaintiff from the risk. to raise an issue of fact. Only proof Dykman in Garden City, impacts is an increase in the number Since no viable cause of action for needed to demonstrate prima facie in the firm’s General, of cases where settlement negotiations negligence exists where plaintiff has entitlement to summary judgment Tort and Insurance Litigation department. take place at earlier stages in the life of assumed a primary assumption of risk, should be submitted. An affidavit from She is also the Vice- the litigation as the threat of pre-verdict comparative negligence is an irrelevant the plaintiff may be the simplest way Chair of the NCBA Defendant’s Personal interest, generally at the statutory rate issue. Just as before Rodriguez, to obtain to get the necessary information to the Injury Committee. Ms. of 9% per annum, begins to run on the summary judgment on liability where a court even if the information is already Manna can be reached date of the court’s decision granting defendant alleges primary assumption of established elsewhere. at (516) 357-3753. Nassau Lawyer February 2021 9 FOCUS: A Suspension? A Toll? None of the Above? EXECUTIVE ORDERS Scope of Executive Order 202.8

Initial Commentary local law, ordinance, order, rule order purports to suspend laws that it Initial commentary presumed that EO or regulation suspended, and may does not even mention. 202.8 did as it purported, and tolled all include other terms and conditions. Decisions Applying EO 202.8 deadlines through the duration of the Elsewhere, however, Subsection 2 The good news for those who want period.4 The eff ect would be to add the imposes some conditions. Executive the tolling period is that virtually every tolling period (228 days, from March 20 orders can last no more than thirty days court to consider the matter thus to November 3, 2020) to any deadline (hence the continuing orders). They also far has held that the executive order that fell within it, or add to November 3 must be “in the interest of the health or welfare of the public” and “reasonably creates a lawful toll. The bad news is Christopher J. DelliCarpini the time remaining for any action when the tolling period started. necessary to aid the disaster eff ort.” And that none of these decisions has both n a series of executive orders during Just after the last executive order each executive order “shall provide for the authority and analysis that make for the current pandemic, Governor continuing the tolling period was signed, the minimum deviation…consistent enduring precedent. Cuomo tolled for over six months however, a contrary view appeared. with the goals of the disaster action The fi rst such decision, from Bronx Ievery statute of limitations, fi ling deemed necessary.” Supreme Court, off ered the lengthiest In the New York Law Journal, Justice deadlines, and all other time limits in Thomas F. Whelan of Supreme For our purposes, the most important analysis—and not much at that. In People New York civil and criminal procedure. Court, Suff olk County contended that condition comes in Subsection 2(c): ex rel. Hamilton v. Brann, the petitioner was Or did he? Executive Law § 29-a empowered [A]ny such suspension order in custody after arraignment, and moved 8 To answer this question once and the Governor only to “temporarily shall specify the statute, local law, via writ for his immediate release. He for all—if that is even possible—we suspend” legal time limits, rather than ordinance, order, rule or regulation argued that he was entitled to release must examine the executive orders, the rewrite them to create a tolling period.5 or part thereof to be suspended because he was not indicted within the law that authorizes them, and the few In support, he cited executive orders and the terms and conditions of the time limit set by CPL 180.80—which judicial decisions to have considered the issued after 9/11 and Superstorm Sandy suspension. See SUSPENSION, Page 23 matter. creating “grace periods” rather than On its face, EO 202.8 appears not tolls. If the deadlines that fell during the to meet this requirement. The rest Christopher J. DelliCarpini Executive Orders is an attorney with period were merely suspended, however, of the order specifi es each statute Sullivan Papain Block On March 7, 2020, the Governor then they ran only to November 4, 2020, being suspended, but the paragraph McGrath Coffi nas & signed Executive Order (“EO”) 202, the day after the suspension ended. of concern to us specifi es no statutes. Cannavo P.C. in Garden City, representing “Declaring a Disaster Emergency in A subsequent NYLJ column Rather it purports to toll “any 1 plaintiffs in personal the State of New York.” As authorized disputed Justice Whelan’s position, specifi c time limit…prescribed by the injury trial and appellate by Executive Law § 28, the Governor matters. He can be defending the interpretation of EO procedural laws of the state,” whatever reached at declared a disaster from the spread of 202.8 as a toll.6 Attorney Souren A. they may be. The qualifi er “including [email protected]. COVID-19. Under Executive Law 29-a, Israelyan argued that “There is no but not limited to” indicates that the he also suspended or modifi ed for thirty legal distinction between ‘suspension’ days several laws and regulations that and ‘tolling’ of a statute of limitation,” otherwise “would prevent, hinder, or based on state and federal decisions delay action necessary to cope with the that used the words interchangeably. disaster emergency or if necessary to He also cited amendments to Section assist or aid in coping with such disaster.” 29-a from the start of the pandemic, Tax Defense & Litigation The next step came on March 20, broadening the Governor’s authority to 2020, when the Governor signed suspend whole statutes, not just specifi c EO 202.8, “Continuing Temporary provisions. Israelyan concluded that Suspension and Modifi cation of Laws this interpretation of EO 202.8 also 2 Relating to the Disaster Emergency.” best fi t “the goals of the disaster action This order suspended a variety of necessary.” additional statutes, but led with a broad provision purporting to toll Executive Law § 29-a every court deadline: As quoted above, EO 202.8 In accordance with the directive expressly meant to toll, rather than of the Chief Judge of the State to merely suspend, court deadlines. limit court operations to essential The continuing orders confi rm matters during the pendency of the this, consistently referring to “The COVID-19 health crisis, any specifi c suspension in EO 202.8…that tolled time limit for the commencement, any specifi c time limit…prescribed by fi ling, or service of any legal action, the procedural laws of the state.”7 This notice, motion, or other process formulation also asserts the legal theory: Harold C. Seligman has been a member of the or proceeding, as prescribed by suspending the laws tolled the time United States Tax Court since 1987. the procedural laws of the state, limits that they imposed. He has represented individual and corporate clients including but not limited to the It also seems clear that Section 29-a in hundreds of tax cases, both large and small, criminal procedure law, the family authorizes the Governor to toll time over the past 30 years against the IRS and New York court act, the civil practice law and limits, rather than merely suspend them. State Department of Taxation and Finance. rules, the court of claims act, the In Subsection 1, the statute recognizes surrogate’s court procedure act, and almost no limits on the Governor’s the uniform court acts, or by any power, “Subject [only] to the state other statute, local law, ordinance, constitution, the federal constitution Long Tuminello, LLP order, rule, or regulation, or part and federal statutes and regulations.” 120 Fourth Avenue thereof, is hereby tolled from the Subsection 2(d) provides for powers so Bay Shore, New York 11706 date of this executive order until broad as to be virtually limitless: (631) 666-2500 April 19, 2020. [T]he order may provide for such Subsequent executive orders extended suspension only under particular www.longtuminellolaw.com this tolling period generally, but did lift circumstances, and may provide for it as to particular statutes along the way, the alteration or modifi cation of and ended it entirely as of November 3.3 the requirements of such statute, 10 February 2021 Nassau Lawyer FOCUS: Lessons on Civility for Attorneys PROFESSIONAL COURTESY

common sense, decency, practicality, do we, as reasonable, courteous in-person trial practice, where is the and manners dictate the extension of attorneys have? And when is the middle ground? Justice Sher off ered professional civility when appropriate. appropriate time to enlist either the that while both sides have a legitimate After all, we may need a favor someday. court or the grievance committee to basis to “dig in” on their respective These principles are not limited to address such behavior? positions, a legitimate medical concern the practice of law, by the way. The To help us tackle some of these should be respected. And to whatever idea of a Social Contract goes back to complex issues, the Nassau County extent plaintiff ’s counsel has a client Locke and Rousseau in the 17th and Bar Association Plaintiff ’s Personal relationship to maintain, Justice Sher 18th centuries. Should our collective Injury Committee and Defendant’s suggested bringing the client to court membership to the bar include a similar Personal Injury Committee, headed for a trial conference, to potentially by Ira S. Slavit and Matthew Lambert, Brian Gibbons implicit contract, and by extension, a hear from the judge. The prospect higher standard of civility? respectively, co-moderated a program of speaking with a judge in Supreme I want you to be nice…until it’s Having spoken with a number of bar on December 2, 2020, entitled, “Why Court may have more gravitas for the time to not be nice. members about this topic, it appears Civility in the Practice of Law Matters.” client, and lend credibility to plaintiff ’s that the vast majority of litigators and Our distinguished panel included Hon. counsel’s consent to an adjournment. —Road House (1989) trial attorneys, among both the plaintiff ’s Denise Sher, Supreme Court, Nassau Christopher McGrath and Jacqueline and defense bars, try to practice in a County, Hon. James P. McCormack, Bushwack discussed the nuanced topic utting aside that Road House Supreme Court, Nassau County, of professionalism and transparency was a blatant snub at the 1990 civil manner. But there are exceptions. We have all encountered attorneys who defense trial attorney Jacqueline during settlement negotiations. Academy Awards, this quote Bushwack of Rivkin Radler LLP, Whether we represent plaintiff s or Pfrom Dalton, the protagonist bouncer refuse to execute discovery stipulations or consent to adjournments, who plaintiff ’s trial attorney Christopher T. defendants in a personal injury context (with a Ph.D in Eastern Philosophy, McGrath, Esq. of Sullivan Papain Block (or, frankly, in any context) we have all by the way) at the Double Deuce Bar obstruct deposition questions, or engage McGrath Coffi nas & Cannavo P.C., and confronted situations where on the eve encapsulates how attorneys deal with in personal attacks in motion practice. criminal defense attorney and former of mediation, it has become abundantly adversaries: extending courtesies and And in terms of perhaps less intentional, grievance committee member Marc C. clear that the client’s expectations are acting professionally, until the adversary but equally unprofessional behavior, Gann of Collins, Gann, McCloskey & unreasonable, and that settlement forfeits that benefi t (i.e., until it’s time to virtually every female practitioner has Barry, PLLC. is highly unlikely. Even if no formal not be nice). been mistaken for a court reporter The general goal of the Zoom settlement discussions have taken place Litigation is, by nature, adversarial. at a deposition at least once, either presentation was to seek the guidance before mediation, the attorneys involved Unsurprisingly, then, some suggest that accidently, or as a tactical “mind game” of our panelists and draw on their often have informal discussions about no quarter be given to an adversary, by a counterpart. experience as members of the judiciary, the major issues of the case. To that end, because such a concession could benefi t When an adversary decides that “it’s grievance committee and both plaintiff ’s experienced attorneys likely have an idea the adversary, potentially to the client’s time to not be nice” with obstructive or and defense bar, to better deal with of what the outcome should be. detriment. That said, principles of unprofessional practice, what recourse adversaries who refuse to sign the What should we do if our client is “Social Contract,” in terms of their going to go against our advice, and take practice tactics and habits. an unrealistic position at mediation? FREE CONFIDENTIAL* To facilitate the panel discussion, we Christopher and Jacqueline agreed presented various hypothetical scenarios that transparency with opposing HELP IS AVAILABLE involving some unfortunately common counsel should be considered, where unprofessional situations, to prompt appropriate. No one likes surprises The NCBA Lawyer Assistance Program offers professional discussion among, and guidance from, at mediation. To whatever extent an the panelists. For example, Justice and peer support to lawyers, judges, law students, and their unrealistic position is going to make McCormack addressed personal settlement impossible at mediation, immediate family members who are struggling with: attacks by opposing counsel in motion a call to the adversary in advance of papers, of which the Court (and Justice mediation makes sense. Such a call Alcohol Drugs Gambling Mental Health Problems McCormack, specifi cally) strongly enables your adversary to manage his/ disapprove. If we encounter personally her client’s expectations, and avoid directed in an adversary’s papers, we (or at least mitigate) an embarrassing YOU ARE NOT ALONE should resist the urge to retaliate. The mediation experience. Court should recognize inappropriate Justice McCormack, Justice Sher, personal attacks for what they are, and and Marc Gann addressed the bounds responding in kind only hurts your of zealous advocacy during trial, and position going forward. particularly, during summations. They Jacqueline Bushwack discussed how all pointed out that fortunately, the to address sexist or obstructive behavior, Appellate Division has provided some specifi cally during a deposition. She guidance on this issue: where improper suggested making a clear record, remarks during summation cross a line, documenting the transgressions by the the court may order a new trial, if the adversary in a non-combative manner. remarks are “so prejudicial as to have That way, in the event the unprofessional caused a gross injustice, and where the behavior continues, to the point where comments are so pervasive, prejudicial, (888) 408-6222 you need to end the deposition, the or infl ammatory as to deprive a party record protects you, and your right to [email protected] continue the deposition at a later date See LESSONS, Page 22 is preserved. Justice Sher addressed the Brian Gibbons is a topic of consent adjournments of trial, if partner and defense trial The NCBA Lawyer Assistance Program is directed by Beth Eckhardt, PhD, and the Lawyer presented with either a family emergency, attorney at Wade Clark Assistance Committee is chaired by Jacqueline A. Cara, Esq. This program is supported by grants Mulcahy LLP, where he from the WE CARE Fund, a part of the Nassau Bar Foundation, the charitable arm of the Nassau or other exigent circumstance, such as County Bar Association, and NYS Office of Court Administration. works out of the New *Strict confidentiality protected by § 499 of the Judiciary Law. COVID-19. York City and Long Island offi ces. He can be For example, assuming COVID trial contacted at Nassau County Bar Association restrictions lift soon, and a plaintiff ’s [email protected]. ncba_lawyersassistance Lawyer Assistance Program counsel is eager to press trial to keep his client happy, but defense counsel has NASSAUBAR-LAP.ORG legitimate personal misgivings about Nassau Lawyer February 2021 11 FOCUS: School During a Pandemic: Legal Counsel LEGAL SERVICES for Students

McKinney-Vento Act,10 and contract activities—most especially sports to document the denial of FAPE or law, 11 still remain in eff ect, where teams, but also musical and vocal to tip the balance of equities in the applicable. Of course, student codes of performances—have been aff ected by student’s favor. Nine months into a conduct governing individual schools COVID protocols. Governor Cuomo’s pandemic that aff ects everyone is not, also remain in eff ect. Executive Orders are emerging on in and of itself, suffi cient to expect a While the COVID-19 pandemic has these.19 successful reimbursement claim.21 immeasurably upended lives, schools Public school family chooses remote Public school students suspended. and students must still operate within learning and moves to an out-of-district Student codes of conduct remain legal and regulatory policy frameworks. location to shelter and ‘zoom-in’ for syn- Rebecca Sassouni in eff ect while the lists of incidents Every New York State student from chronous and asynchronous learning. for which students are suspended has Many families of means chose to s a solo practitioner who kindergartner to age16 (and up to 21 grown, and have included: zoom- move to shelter away from COVID represents students in school in certain instances involving special bombing, refusal to mask, and refusal clusters, while other families suff ering settings, I am accustomed to education) is entitled to a free and to social distance. Meanwhile, so-called job loss, and familial and economic Aconsultations with frustrated students appropriate public education (“FAPE”) “zero tolerance” policies that aimed to hardships, also moved. In either case, and parents. My role is to listen, to which is akin to a tenured property keep school communities safe prior to 12 many are surprised to learn they cannot guide, and to off er insight on possible right, but also, concomitantly obligates COVID-19 are being used to suspend continue to receive education remotely legal recourse. The COVID-19 health students to compulsory attendance, students for safety and insubordination and to abide by codes of conduct.13 from the school district while out-of- infractions during remote learning. pandemic, and its economic and residence.20 political fallouts, continues to exacerbate Even—and perhaps especially—during Many students and families are surprised Public school family decides to enroll in pri- every aspect of schooling, whether a pandemic, schools are mandated that their school’s authority to suspend 14 vate school and seeks tuition reimbursement. remote or in-person, typical or classifi ed, reporters, and have “child fi nd” While parents and guardians have See STUDENTS, Page 21 public or private, kindergarten through obligation to notice abuse and neglect, the unilateral right to enroll students high school, college or graduate-level. and to request consent to evaluate Rebecca Sassouni, 15 in nonpublic schools, pandemic or PLLC serves as Co-Chair This is the second school year aff ected. students for special education needs. of the Education Law not, they may sometimes obtain Committee of the Legal Background Scenarios and Suggestions tuition reimbursement if they can NCBA. Sassouni is a Student will not wear a mask. demonstrate: a record of a denial of solo practitioner who Unlike many educators, students have counsels and represents Although most schools were in session no bargaining unit. Even under the best free and appropriate public education; students of all ages in since September, New York State did school settings. She may of circumstances before the pandemic, an appropriate alternative enrollment; not affi rmatively require masks until and that the balance of equities favors be reached via www. school personnel were frequently rebeccasassounilaw. November of 2020 for those “over age reimbursement. This typically takes a com, LinkedIn, or at overwhelmed, bureaucratically saddled 2 and medically able to tolerate.”16 period of time to demonstrate, whether [email protected]. with unfunded mandates, and working Students who have documented with more scarce resources. None of this conditions which preclude them from improved since COVID-19. Without covering their nose and/or mouth a union, and, with privacy protections have provided information to schools which also eff ectively sever students from requesting exemptions, per the NYS other similarly situated students,1 each order. However, even with the medical student’s matter can ultimately only be documentation, they are not entitled to addressed one at a time (or, potentially, be unmasked in-person. Rather, they are not at all). This article addresses an typically placed on remote learning. assortment of the most commonly raised fact patterns reaching my offi ce since the Public school families wish to switch from pandemic began. remote to in-person learning, or vice versa. After consultation, the student and After previously choosing one setting family may be re-routed to the school to for learning, the family concludes that strategize a workable solution, with legal the student would do better in the other representation a last resort. In other setting. While students in public school instances, legal recourse is necessary. are entitled to learning, they are not In any case, one cannot help but note entitled as of right to the placement the terrible irony that the pandemic of their choice. Schools have authority has made it more diffi cult than ever to assign placement, whether to a for students and parents to advocate particular class or building as prior to for themselves when they, too, are the pandemic, or in person, hybrid, or overwhelmed. No article can exhaust remote since the pandemic. Availability every individual fact pattern; consult of spots in a program is the prerogative an attorney as circumstances emerge. of school personnel. One hopes that by seeking appropriate Family wants to switch to homeschooling. 990 Stewart Avenue Garden City, New York Some erroneously confuse remote counsel fewer students will “fall through Great Location – Close vicinity to Parkways the cracks” as the pandemic eff ects wear learning and homeschooling. “Home on into a second school year. schooling” requires advanced notice, Offices for Rent - Full Floor - Northwest Corner - Separately Demised - Occupied It cannot be overstated that even giving of intent, following curricula, By a Prestigious Long Island Law Firm during the pandemic, and subject to obtaining materials, and oversight by the • 7 furnished offices - includes 2 corner offices - 6 window offices/1 small the Governor’s Emergency Executive school district. It is not synonymous with interior office and ample file space 2 remote learning and once the deadline Orders, the matrix of Education • 2 built-in spacious secretarial workstations Law, 3 the Federal Education Rights has passed it is not available.17 and Privacy Act (“FERPA”),4 the Every Public school students miss sports, drama, • 1 large furnished conference room surrounded by windows Student Succeeds Act (“ESSA”),5 the and extracurricular activities. This is a great opportunity for a professional organization. Move right in and be in Individuals with Disabilities Education Family demands more. Physical business in a building that is COVID-19 compliant, provides security, outdoor and 6 Act (“IDEA”), Section 504 of the education during the school day is still underground parking facility, and a cafeteria located in the lower level. Rehabilitation Act,7 New York State required by New York State.18 However, Human Rights Law,8 New York State many students and families have been Please call 516-741-6565, and speak with Pat Cairo. Dignity for All Students Act (“DASA”),9 disappointed that extracurricular 12 February 2021 Nassau Lawyer PPRROOGGRRAAMM CALENDAR Pre-registration is REQUIRED for all Academy programs. Go to nassaubar.org and click on CALENDAR OF EVENTS to register. CLE material, forms, and zoom link will be sent to pre-registered attendees 24 hours before program. All programs will be offered via ZOOM unless otherwise noted.

February 3, 2021 February 25, 2021 Dean’s Hour: Spirit Which Prizes Liberty—Abraham Lincoln Dean’s Hour: Sponsored by NCBA Corporate Partner Champion Office Suites From Cocktails to COVID: DRAM Shop and Social Host Liability Laws 12:30-1:30PM Sponsored by NCBA Corporate Partner Champion Office Suites 1 credit in professional practice 12:00-1:00PM 1credit in professional practice Skills credits are available for newly admitted attorneys February 4, 2021 Recent Rules in Real Estate: An Update on Real Estate Law Trends since the Pandemic March 2, 2021 Sponsored by NCBA Corporate Partners Champion Office Suites and Business of Law Lecture Series Presents: Dean’s Hour: Why Attorneys Must Use Performance Data in the Practice Tradition Title Agency, Inc. of Law 5:30-8:30PM Sponsored by NCBA Corporate Partner Champion Office Suites 3 credits in professional practice 12:30-1:30PM Skills credit are available for newly admitted attorneys 1credit in professional practice Skills credits are available for newly admitted attorneys February 10, 2021 **Zoom networking will precede program from 12:00-12-30PM** Dean’s Hour: Running a Lean Practice in 2021 Sponsored by NCBA Corporate Partner Champion Office Suites March 3, 2021 12:15-1:15PM Dean’s Hour: Scholar, Soldier, Sage—Oliver Wendell Holmes, Jr. 1 credit in professional practice. Sponsored by NCBA Corporate Partner Champion Office Suites Skills credits are available for newly admitted attorneys 12:30-1:30PM 1credit in professional practice February 24, 2021 Dean’s Hour: March 5, 2021 Dean’s Hour: You Can Do That? The Power of PDFs Brave New World: Current Legal Issues Involving Artificial Intelligence Sponsored by NCBA Corporate Partner Champion Office Suites Sponsored by NCBA Corporate Partner Champion Office Suites 12:30-1:30PM 12:00-1:00PM 1 credit in professional practice. 1 credit in professional practice Skills credits are available for newly admitted attorneys Skills credits are available for newly admitted attorneys Nassau Lawyer February 2021 13 PROGRAMM CCAALLEENNDDAARR Pre-registration is REQUIRED for all Academy programs. Go to nassaubar.org and click on CALENDAR OF EVENTS to register. CLE material, forms, and zoom link will be sent to pre-registered attendees 24 hours before program. All programs will be offered via ZOOM unless otherwise noted.

February 3, 2021 February 25, 2021 Dean’s Hour: Spirit Which Prizes Liberty—Abraham Lincoln Dean’s Hour: Sponsored by NCBA Corporate Partner Champion Office Suites From Cocktails to COVID: DRAM Shop and Social Host Liability Laws 12:30-1:30PM Sponsored by NCBA Corporate Partner Champion Office Suites 1 credit in professional practice 12:00-1:00PM 1credit in professional practice Skills credits are available for newly admitted attorneys February 4, 2021 Recent Rules in Real Estate: An Update on Real Estate Law Trends since the Pandemic March 2, 2021 Sponsored by NCBA Corporate Partners Champion Office Suites and Business of Law Lecture Series Presents: Dean’s Hour: Why Attorneys Must Use Performance Data in the Practice Tradition Title Agency, Inc. of Law 5:30-8:30PM Sponsored by NCBA Corporate Partner Champion Office Suites 3 credits in professional practice 12:30-1:30PM Skills credit are available for newly admitted attorneys 1credit in professional practice Skills credits are available for newly admitted attorneys February 10, 2021 **Zoom networking will precede program from 12:00-12-30PM** Dean’s Hour: Running a Lean Practice in 2021 Sponsored by NCBA Corporate Partner Champion Office Suites March 3, 2021 12:15-1:15PM Dean’s Hour: Scholar, Soldier, Sage—Oliver Wendell Holmes, Jr. 1 credit in professional practice. Sponsored by NCBA Corporate Partner Champion Office Suites Skills credits are available for newly admitted attorneys 12:30-1:30PM 1credit in professional practice February 24, 2021 Dean’s Hour: March 5, 2021 Dean’s Hour: You Can Do That? The Power of PDFs Brave New World: Current Legal Issues Involving Artificial Intelligence Sponsored by NCBA Corporate Partner Champion Office Suites Sponsored by NCBA Corporate Partner Champion Office Suites 12:30-1:30PM 12:00-1:00PM 1 credit in professional practice. 1 credit in professional practice Skills credits are available for newly admitted attorneys Skills credits are available for newly admitted attorneys 14 February 2021 Nassau Lawyer FROM THE BENCH: Conducting Trials During the Pandemic: VIRTUAL COURT PRACTICE Who Is in Charge Here?

Second, CPLR § 3113(d), states, in the depositions to go forward over the conduct a cross-examination of relevant part in subsection (d), “the next two months by remote means. any witness virtually. The refusing parties may stipulate that a deposition Next, there was Bell v. Stoddart, attorney states, “It must be done may be taken by telephone or other from Bronx County.5 In this matter, in-person or my client will not be remote electronic means and that party Plaintiff moved for an order precluding getting a fair trial and I will not may participate electronically.” This latter Defendant from offering evidence at be able to carry out my duty to section is simply the only reference to any trial if Defendant did not appear for a represent my client to the best of electronic proceeding in the statute. deposition conducted by remote means. my ability.” The case law interpreting these Defendant’s counsel here advised that 3. Neither party wants to proceed Hon. Arthur M. Diamond statutes have long recognized that the his client was not “tech savvy,” that he in-person. One party requests ight months into the year of decision to allow a party or witness to lacked access to electronic means to an adjournment from the court the creation of the “virtual testify via video is within the trial court’s appear virtually, and that his attorney until such time as she is able to get 2 courtroom,” it appears to me discretion. Of course, it is presumed would not be able to adequately prepare vaccinated, and the other party does Ethat there is still much confusion about that a deposition will take place in him for the deposition. Based upon not oppose the application. a judge’s authority to “order” attorneys person and in the county where the these facts, Defendant argued that In my opinion, the precedent to do this or that virtually. We know action is located; thus, if a party seeks forcing an electronic deposition would mandating depositions to be held that if both attorneys are in agreement an alternative location, there must be create an undue burden on his client. remotely is not at all helpful when it on conducting a deposition, or a trial showing that appearing in the home The Court rejected this argument but comes to trials. First and foremost, 3 for that matter, virtually, the court will county would be an undue hardship. denied the preclusion motion anyway; as I read the CPLR, there is not any in all likelihood go along. But, where For example, a pre-pandemic scenario instead, it gave Defendant an additional authority that allows a judge to order the parties are not in agreement, what that I have dealt with several times ninety days to decide if he wanted the a refusing attorney to go to trial using remote technology. Yes, I do have the may a judge permissibly order? For the typically involves a party who is elderly, deposition to be conducted virtually discretion to conduct a trial as best reasons stated below, in my opinion: lives in Florida, has a heart condition, or in person, and then ordered the as I see fit, to make a record as to the not much. and has his or her attorney present a deposition to be conducted within thirty request for an adjournment, and to use In his recent New York Law Journal letter signed by a physician stating that days thereafter. the various sanctions against a party column,1 attorney Mark Berman raises his or her patient is too frail to fly from Of the final two unreported cases who says they cannot proceed, such the question of whether or not virtual Florida to New York. Even if opposed dealing with the issue of remote as defaulting him or her, striking of depositions can be compelled. I think by the adversary, I have ordered in such discovery, one arises from a case pleadings, and/or entering judgment to the problem is much more pervasive, a case the party participate in the trial— before my colleague Hon. James P. name a few options. But, none of the and without a clear controlling statute not simply a deposition—via electronic McCormack right here in Nassau reported decisions available in which or appellate court precedent, “judicial means, with certain conditions. County in case called MacDonald v. 6 a review is made of actions taken by discretion” will no doubt control. But what the pandemic has done Pantony. Following post-deposition a judge against a party who refuses As experienced trial attorneys may has taken what was a relatively rare paper discovery, Defendants sought an to proceed involves such applications attest, that may be a slippery slope. discovery issue and turned it into what additional deposition from Plaintiffs during a pandemic. The guidelines from This column will discuss a number of has become almost an everyday problem and, in granting the application, Justice the Office of Court Administration scenarios where judicial intervention is for lawyers and courts: how to apply McCormack directed sua sponte that on in-court operations are of no help warranted, but the authority to act is these statutes and cases to our world as depositions shall take place via Skype, either, as they do not give any authority circumspect. it exists today. As Mr. Berman points Zoom, or other electronic means unless to a judge, other than what is already I think we can all agree that the out, there have been four post-pandemic all parties and counsel agree to face-to- acceptable, to order trials to proceed conduct of a trial is generally held reported trial-level, unreported decisions face depositions with the appropriate under these conditions. to be within the sound exercise of that have involved the compelling of social distancing. Lastly, in a matter I submit to you that we may need new the discretion of the judge or justice virtual depositions. before a Family Court Referee from orders from the Executive Branch and presiding. When dealing with pretrial First, there was Johnson v. Time Warner New York County from October, an the Office of Court Administration, discovery, likewise, we should all agree Cable New York City, LLC, from New abuse proceeding was ordered to occur announcing clear and specific that there are two relevant sections of York County,4 in which Plaintiff sought virtually over objection.7 parameters of authority that trial the Civil Practice Law and Rules that to depose three non-party employees I would say that there is not anything judges shall have in controlling our trial may come into play when a judge is of a contractor of Defendant Time groundbreaking here, as the courts calendars. I hear often the Chief Judge asked to be involved in discovery disputes Warner. Acknowledging the dangers continue to use the “undue hardship” telling the world that our courts are open between the parties. First, CPLR § 3103, of in-person depositions during the test, balance the equities, and issue a for business and that civil and criminal entitled “Protective Orders,” contains the pandemic, Plaintiff sought to conduct decision. I do not have any doubt that jury trials have commenced and are following subdivision: the depositions virtually, whereas depositions will get done. The much proceeding, notwithstanding the latest (a) Prevention of Abuse. The Court Defendant’s counsel wanted to delay bigger question, in my opinion, is what pause on jury trials as of November 16. may at any time on its own initiative, the depositions until the pandemic happens after cases are certified, and thus While that may be true in principal, or on motion of any party or of any restrictions were lifted in the future. outside the broad discretion and beyond what is being left out of the message is person from whom or about whom Defendant’s counsel argued that he the reach of the discovery statutes and this reality: we are open for business, discovery is sought, make a protective did not feel comfortable participating in caselaw. I submit that there are at least so long as everyone involved wants order denying, limiting, conditioning, a video deposition and Defendant Time three hypothetical scenarios a Judge to proceed and has agreed on how or regulating the use of any Warner would be prejudiced if it were should be prepared for when a civil case to conduct the trial. I submit that disclosure device. Such order shall the number of cases where everyone not allowed to sit with their client during is assigned for trial: involved wishes to proceed despite the be designed to prevent unreasonable the deposition. Additionally, Defendant 1. One party agrees to come in, pick unusual circumstances we find ourselves annoyance, expense, embarrassment, Time Warner argued that, in view of a jury, and is ready to go. The other in is rather small and shrinking. The disadvantage, or other prejudice to the fact that courts were likely to be party objects for various pandemic- any person or the courts. closed for many more months to come, related reasons, stating, “Your See TRIALS, Page 24 even if the case were put on the trial honor, I am over sixty years old, Hon. Arthur M. Diamond For Information on is a Nassau County calendar sooner rather than later, it was have asthma, and have an elderly Supreme Court LAWYERS’ unclear as to when jury trials would be parent that lives with us and is Judge in Mineola. He held; therefore, there was no exigency extremely high risk. I can’t expose welcomes questions AA MEETINGS concerning evidence in forcing these depositions under these myself to an in-person trial. There and trial practice and Call circumstances. Nevertheless, the Court is just too much unknown about can be contacted at was unwilling to wait until the “old what could happen.” [email protected]. (516) 512-2618 normal” returned to the practice of law 2. Both parties agree to an in-person in New York City and instead ordered trial, but one party refuses to Nassau Lawyer February 2021 15 FILM REVIEW Reshaping the World: Abby Mann’s Judgment at Nuremburg

as they assume the responsibilities of Garland, and a young William Shatner. German judges and Hayworth, who global leadership But at the heart of Kramer’s fi lm is the sits as part of a tribunal, is the story’s Judgment at Nuremberg began as a live performance of Spencer Tracy, who protagonist. television drama. It was produced by portrays Judge Dan Hayworth. Hayworth is a judge’s judge, a man Herbert Brodkin and directed by George Kramer and Tracy collaborated on who embodies fairness and character. Roy Hill, airing on CBS’s Playhouse 90 four fi lms, including the fi nal three fi lms Refl ecting the tenor of the times, he on April 16, 1959. The program starred of Tracy’s long career. Unfortunately a describes himself as a Republican who Claude Rains as Judge Hayworth, Paul dimly remembered fi gure now, Tracy admired Franklin Roosevelt. The fi lm Henried as Janning, Melvyn Douglas was at the time the dean of American portrays Hayworth’s sincere attempt to Rudy Carmenaty as the prosecutor, Colonel Lawson, and actors. Both Tracy and Maximillian understand what led to the coming of Maximillian Schell as Hans Rolfe, the Schell would be nominated for Best Hitler in Germany. A few years ago I retired to a Germans’ defense counsel. Schell would Actor at the Academy Awards that year. In dramatic contrast to Hayworth room on Fifty-eighth Street in reprise his role in the 1961 fi lm.2 When Schell won, he thanked “that great is Ernst Janning (Lancaster), a New York and I retired with some The teleplay is available on YouTube old man.”4 distinguished, learned jurist who in the legal records of the Third Reich. and is well worth watching. The A truly gifted performer, Tracy name of self-deluded patriotism sells And I went there because I believe television version runs a third of the personifi ed on screen the decency and his soul to the Third Reich. Unlike his a writer worth his salt at all has length of the motion picture (sans integrity that represented the best that fellow defendants who are a motley commercials) and lacks the production our country has to off er. Perhaps U.S. assortment of hacks and sadists, Janning an obligation not only to enter- values of Stanley Kramer’s movie. Yet Supreme Court Justice William O. knew better but said nothing. That is tain, but to comment on the world this compact rendition of Judgment at Douglas most succinctly described what See JUDGMENT, Page 23 which he lives, not only comment, Nuremberg is in some ways superior, Spencer Tracy meant to his audience: but maybe have a shot at reshap- exploring the same themes and I never knew anyone more American than he. Rudy Carmenaty serves performed by an inspired cast. I realize the label “American” means various as a Bureau Chief in the ing that world.1 Offi ce of the Nassau Brigadier General Telford Taylor, things, even a “vigilante” to some. But County Attorney, is –Abby Mann, on receiving the Academy Award the Director of Legal for Judgment at Nuremberg who served as the Chief Counsel for Spencer was the opposite. He was Thoreau, the Prosecution at the United States 5 Services for the Nassau Emerson, Frost. County Department bby Mann’s Judgment at Nuremberg Nuremberg Military Tribunals (1946- Traditionally, legal fi lms are told of Social Services, and depicts the prosecution of four 1949) and was a technical advisor to the Language Access through the eyes of the lawyers. In most Coordinator for the German judges charged with the production, introduces the program movies, judges often sit on the bench Nassau County Executive. Aproviding the jurisdictional framework adding an air of authenticity. In keeping He is also Vice-Chair of stone-faced until they deliver a verdict. with the crass, commercial nature of the NCBA Publications for the crimes against humanity In contrast, Judgment at Nuremberg is a Committee and Diversity committed by the Third Reich. 1950’s television, the program’s alternate story about judges. The defendants are and Inclusion Committee. Addressing the issue of Germany’s war sponsor was “your Gas Company”. guilt, the drama ultimately speaks to the Hill brilliantly intercuts within the shortcomings inherent in the modern Playhouse 90 telecast documentary fi lm nation state. footage, some of which was taken by LAW YOU SHOULD KNOW The story, which never descends into the Nazi fi lm maker Leni Riefenstahl.3 On 90.3 FM WHPC abstraction, operates on many levels. This innovation not only enables the Hosted by Kenneth J. Landau, Esq. During the course of the drama, it actors and technicians to transcend the Celebrating 30 Years! limitations necessitated by live television, remains clear nevertheless that it is For Voicestream or PODCAST go to www.NCCradio.org the rule of law that is actually on trial. but it also gives a depth to the narrative Accused alongside the four defendants by blending it with scenes of actual is the very notion that a supposedly German propaganda. Wednesday, February 17, 2021 civilized people could descend to such It was also the fi rst time that fi lms Divorce During COVID-19 unspeakable barbarism and do so under taken by the U.S. Army Signal Corps at 3:00 PM the cloak of legality. during the liberation of Buchenwald The very soil which once produced were aired on American television. These Wednesday, February 24, 2021 Kant, Goethe, and Bach, has now images, along with the accompanying Secrets of Success for Lawyers Before and After COVID-19 spawned the monstrosity that narration, gives the audience a graphic at 3:00 PM is Adolph Hitler. Germany also depiction of the horrors that the Nazi generated countless, faceless men visited upon their victims. Wednesday, March 3, 2021 who carried out the horrifi c orders of The Playhouse 90 telecast is a tour- Tips for Parents During and After a Divorce their superiors without compulsion. de-force off ering a neatly distilled, at 3:00 PM In the case of the accused, they are unfl inching version of Mann’s story. men of varying ability who gave these Two years later Judgment at Nuremberg travesties legal sanction. was adapted for the cinema by RECENT PODCASTS INCLUDE As fascinating as this underlying director- producer Stanley Kramer. How to Declutter Your Home or Office premise is, the matter is further The script is fl eshed out, characters are Do's and Don'ts for Zoom compounded, and the tension added, and the fi lm’s exteriors were Escaping From the Law to a More Enjoyable Career accentuated, by the author putting actually shot in Nuremberg. Introduction to Mediation Skills the actions of American offi cials, both Kramer was a Hollywood maverick military and civilian, under scrutiny. responsible for such fi lms as High Noon, GUESTS WANTED The United States does not emerge The Defi ant Ones, and later Guess Who Is Contact us at [email protected] if you would like to discuss an unscathed in Judgment at Nuremberg. Coming to Dinner. Ever willing to tackle interesting/important aspect of the law. Mann’s story takes an uncomfortable social issues on the screen with conviction look at U.S. foreign and military policy. and passion, he spent his career defying CLE OFFERED The Germans are not being tried in a the old adage that if you want to send a *You can earn CLE by listening to broadcast, podcast (or purchasing CDs) vacuum. Rather, they stand accused message call Western Union. of these shows. Check with the Nassau Academy of Law for details. in the shadow of the emerging Cold Kramer mounted a spectacular Visit www.nassaubar.org or call (516) 747-4464. War, after the leveling of Hiroshima production whose cast included Burt and Nagasaki, and in light of the Lancaster, Richard Widmark, Marlene ambivalence felt by the American people Dietrich, Montgomery Clift, Judy NCBA CORPORATE PARTNERS 2020-2021 Nassau County Bar Association Corporate Partners are committed to providing Members with the professional products and services they need to succeed.

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CIVIL RIGHTS DIVERSITY & INCLUSTION SURROGATE’S COURT ESTATES & IMMIGRATION LAW Bernadette K. Ford Hon. Maxine Broderick TRUSTS George A. Terezakis NCBA Committee Tuesday, February 9 Tuesday, February 16 Brian P. Corrigan Thursday, February 25 Meeting Calendar 12:30 p.m. 6:00 p.m. Tuesday, February 23 5:30 p.m. LABOR & EMPLOYMENT LAW APPELLATE PRACTICE 5:30 p.m. IN-HOUSE COUNSEL February 4, 2021 - Matthew B. Weinick Jackie L. Gross BUSINESS LAW, TAX & ACCOUNTING Tagiana Souza-Tortorella March 4, 2021 Tuesday, February 9 Thursday, February 18 Jennifer L. Koo/Scott L. Kestenbaum Thursday, February 25 Please Note: Committee Meetings are for NCBA 12:30 p.m. 12:30 p.m. Wednesday, February 24 5:00 p.m. Members. Dates and times are subject to 8:30 a.m. change. ASSOCIATION MEMBERSHIP CONSTRUCTION LAW MEDICAL-LEGAL Check www.nassaubar.org Michael DiFalco Raymond A. Castronovo GENERAL, SOLO AND SMALL LAW Mary Anne Wallling/Susan W. information. for updated Wednesday, February 10 Monday, February 22 PRACTICE MANAGEMENT Darlington 12:30 p.m 12:30 p.m. Scott J. Limmer Friday, Febrary 26 MATRIMONIAL LAW CRIMINAL COURT LAW & PROCEDURE Wednesday, February 24 12:30 p.m. Samuel J. Ferrara Dana L. Grossblatt 12:30 p.m. REAL PROPERTY COMMUNITY RELATIONS & PUBLIC ELDER LAW SOCIAL SERVICES HEALTH Alan J. Schwartz EDUCATION Wednesday, February 10 Monday, February 22 5:30 p.m. 12:30 p.m. ADVOCACY Wednesday, March 3 Joshua D. Brookstein Katie A. Barbieri/Patrica A. Craig ENVIRONMENTAL LAW DISTRICT COURT 12:30 p.m. Thursday, February 4 Wednesday, February 24 12:45 p.m. Nicholas C. Rigano Roberta D. Scoll/S. Robert Kroll COMMUNITY RELATIONS & PUBLIC 5:30 p.m. EDUCATION PUBLICATIONS Thursday, February 11 Tuesday, February 23 12:00 p.m. 12:30 p.m. ANIMAL LAW Joshua D. Brookstein Christopher J. DelliCarpini/Andrea Kristi L. DiPaolo M. DiGregorio ALTERNATIVE DISPUTE RESOLUTION PLAINTIFF’S PERSONAL INJURY Thursday, March 4 Marilyn K. Genoa/Jess A. Bunshaft Ira S. Slavit Wednesday, February 24 12:45 p.m. Thursday, February 4 6:00 p.m. 12:45 p.m. Tuesday, February 16 Tuesday, February 23 PUBLICATIONS 12:30 p.m. 12:30 p.m. EDUCATION LAW Christopher J. DelliCarpini/Andrea FAMILY COURT LAW & PROCEDURE John P. Sheahan/Rebecca Sassouni M. DiGregorio Susan G. Mintz WOMEN IN THE LAW Edith Reinhardt Thursday, February 25 Thursday, March 4 Monday, February 8 12:30 p.m. 12:45 p.m. 12:45 p.m. Tuesday, February 23 5:30 p.m.

services to a low-income client can mean the diff erence PRO BONO ATTORNEY OF THE MONTH between their ability to pay next month’s rent or putting food on the table.” Papandrew is very honored to share her profession with her daughter, Cassandra, with whom she graduated law school, and who is now an Assistant District Attorney. By Gail Broder Katz She is also fi ercely proud of her son, Paul, a Second Lieutenant in the United States Marine Corps. In her spare time, she enjoys running, walking on the beach with her English Mastiff , Zoe, reading and spending time with family and friends. She looks forward to spending time Catherine Papandrew with her new granddaughter, Charlotte Rita. In recognition of her dedication to Nassau County Nassau Suff olk Law Services Volunteer Lawyers Project time to assisting the underserved. She has represented citizens in need, the Volunteer Lawyers Project, along with (VLP), along with the Nassau County Bar Association, are clients in 17A guardianship proceedings, matrimonial the Nassau County Bar Association, are pleased to honor privileged to recognize Catherine Papandrew as the most matters, and drafted advance directives. Of vital Catherine Papandrew as our latest Pro Bono Attorney of recent Pro Bono Attorney of the Month. This month’s importance during the pandemic has been her pro bono the Month. award honors a lawyer who has demonstrated great assistance to low- income clients to execute wills, powers The Volunteer Lawyers Project is a joint eff ort of passion and dedication by providing full pro bono legal of attorney, and health care proxies. These crucial Nassau Suff olk Law Services and the Nassau County Bar representation to the community through her volunteer services empower vulnerable individuals with the ability Association, who, for many years, have joined resources work with the VLP, especially during the COVID-19 to choose who will make decisions for them, and who toward the goal of providing free legal assistance to crisis. Papandrew is an Associate with the law fi rm of will care for their children in the event of their demise. Nassau County residents who are dealing with economic Peknic, Peknic & Schaefer of Long Beach, and practices in Having advance directives in place can also avoid the hardship. Nassau Suff olk Law Services is a nonprofi t the areas of insurance defense, personal injury, wills and necessity of a costly guardianship proceeding down the civil legal services agency, receiving federal, state, and estate planning, matrimonial law, and general litigation. road. Most importantly, advance directives give these local funding to provide free legal assistance to Long Papandrew fi rst volunteered for Nassau Suff olk Law challenged clients the dignity of self-determination, Islanders, primarily in the areas of benefi ts advocacy, Services in 2013 while still a law student. Representing peace of mind, and a sense of control. homelessness prevention (foreclosure and eviction clients pursuant to a student practice order under The marriage of extensive social work skills to her legal defense), access to health care, and services to special the supervision of Roberta Scoll, she provided legal degree has, in Papandrew’s opinion, perfectly positioned populations such as domestic violence victims, disabled, representation for low-income persons facing eviction her to be a better advocate for those having trouble and adult home residents. The provision of free services in landlord-tenant court. What is even more impressive navigating the legal system. But any attorney, regardless of is prioritized based on fi nancial need and funding is is that she embarked on her legal studies as a “second experience level, can use their skills to help a client access often inadequate in these areas. Furthermore, there is act” after raising two children and enjoying a long and the legal system and obtain a benefi t that can change these no funding for the general provision of matrimonial, fulfi lling career in social work. Keenly aware of the persons’ lives. She encourages other attorneys to join her guardianship or bankruptcy representation, therefore “justice gap” in the underserved population, Papandrew in her eff ort: the demand for pro bono assistance is the greatest has melded the skills she gained in the two professions to Everyone deserves the right to legal representation in these areas. If you would like to volunteer, please address this need. under any circumstances. There is nothing more contact Susan Biller at (516) 292-8100, ext. 3136. A cum laude graduate of Pace University School of gratifying than helping someone without means gain Law in 2016, Papandrew is admitted to the New York access to the legal system. My advocacy can give We WeLCOMe THe FOLLOWING and North Carolina Bars, as well as the Federal Courts comfort, peace of mind and dignity to this population NeW MeMBerS for the Eastern and Southern Districts of New York. She of clients, which is especially important during these previously earned bachelor’s and master’s degrees in uncertain times. Helping someone to direct their own Attorneys Students Social Work from Adelphi University, and a master’s in aff airs is a transformative experience for both of us and Joyce M. Corsello Yelda Bader Kevin Joyce Public Administration from NYU. After graduation and the heartfelt thanks received in return is immeasurable. Issac Cwibeker Donald T. Kiley, Jr. Lawrence Michael Marino admission to the Bar, she worked for the New York City Susan Biller, Pro Bono Coordinator of the Volunteer Daniel Morote Law Department, where she gained valuable litigation Lawyer’s Project, states: “We are grateful to Cathy for her Joshua Krakow Colin Morrissey Jessica Senzer experience. enthusiasm and commitment. She truly understood the Throughout her years of practice, Papandrew has legal need in the community, and how greater access to In Memoriam Hon. Elaine Jackson Stack been committed to donating a signifi cant amount of her the legal system can help an individual. Providing legal 18 February 2021 Nassau Lawyer We Care We Acknowledge, with Thanks, Contributions to the WE CARE Fund DONOR IN HONOR OF IN HONOR OF THE WE CARE FUND John P. Whiteman becoming partner in the Harvey B. Levinson, former Chairman of Alan B. 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In January, Ronald Fatoullah Security Act & Second Parent of Ronald Fatoullah & Associates Adoptions.” Partner Avrohom presented “Legal and Financial Gefen of the fi rm’s Employment Planning for Long Term Care” for Law, Commercial Litigation, and NCBA the 4th Annual Case Management Alternative Dispute Resolution and Transitions of Care Conference Practices was interviewed on the held by the American Case Jim Bohannon Show on January 12, Sustaining Members Managers Association. Fatoullah discussing the Capitol Hill violence. also participated in a panel Partner Joseph Trotti, head of 2 0 2 0 - 2 0 2 1 discussion for the ORION Resource the fi rm’s Family & Matrimonial Group with other Nassau County Law Practice and member of attorneys regarding the newest the LGBTQ Representation; updates in elder law for 2021. Surrogacy, Adoption, and Assisted The NCBA is grateful for these individuals who Marian C. Rice Reproduction; and COVID-19 Steven E. Pegalis, Founder of Legal Assistance Practices, led strongly value the NCBA's mission and its Pegalis Law Group announces that a CLE webinar at St. John’s Law School on the fi rm has been named by U.S News & World © January 27, titled “Family Law Front Lines: contributions to the legal profession. Report and Best Lawyers to the 2021 “Best Law Latest Developments and Personal Tips.” Firms” list in two categories: Personal Injury Partner Constantina Papageorgiou of the Litigation and Plaintiff s Medical Malpractice. fi rm’s Wills, Trusts, and Estates and Elder Law Erica Lucille Alter Hon. Richard S. Kestenbaum Karen Tenenbaum was recently featured on Practices led a Medicaid & Estate Planning Passage to Profi t—The Inventor Show on iHeart webinar on January 7 as the fi rst of a year- Margaret Alter Hon. Susan T. Kluewer Radio, where she discussed her Walter the Walt long series in collaboration with Parker Jewish Mark E. Alter Martha Krisel education initiative to teach kids about money. Institute for Health Care and Rehabilitation. Vanessa P. Anagnostou Donald F. Leistman Papageorgiou was also named a “Hellenic Super In addition, Tenenbaum was recently selected Michael J. Antongiovanni David I. Levine as a LIBN Business Hall of Fame honoree and Lawyer” by the National Herald (Periodiko), featured Rosalia Baiamonte Marilyn M. Levine was invited to speak at the NYSSCPA, Nassau in a special edition on February 12. Ernest T. Bartol Peter H. Levy Chapter Virtual All Day Tax Conference on Jeff rey D. Forchelli and John V. Terrana, David M. Lira NYS Tax Collection issues. Karen along with Co-Managing Partners of Forchelli Deegan Howard Benjamin members of her fi rm’s legal team recently Terrana LLP warmly congratulate Gerard R. Jack A. Bennardo Gregory S. Lisi presented at the 18th annual NCCPAP Luckman, a Partner and Chair of the fi rm’s Hon. Maxine S. Broderick Hon. Roy S. Mahon Accounting & Tax Symposium on resolving IRS Bankruptcy & Corporate Restructuring practice Neil R. Cahn Mili Makhijani tax issues and the implications of COVID-19 on group, on his appointment to the Institute of Jeffrey L. Catterson Peter J. Mancuso N.Y.S. residency matters. She was also named to Management Accountants’ (IMA)—Long Island Michael A. Markowitz the 2020 New York Metro Super Lawyers list. Chapter’s Board of Directors. His one-year term Alan W. Clark Hon. Leonard S. Clark Tomasina Cuda Mastroianni Marc L. Hamroff , managing partner of began on January 12, 2021. John P. McEntee Moritt Hock & Hamroff has announced a Christopher J. Chimeri, Founding Hon. Lance D. Clarke number of promotions within the fi rm including Partner of Quatela Chimeri (QC), with offi ces Richard D. Collins Christopher T. McGrath Jill T. Braunstein, formerly counsel of the in Hauppauge and Garden City, welcomes Michael J. Comerford Anthony J. Montiglio fi rm, elevation to partner and the promotion of Michele R. Messina to the fi rm, merging her Hon. Eileen Catherine Daly Michael Mosscrop Christine H. Price, formerly an associate of banking and real estate law practice with QC. Hon. Joseph A. DeMaro Teresa Ombres the fi rm, to the position of counsel. Michael H. Sahn, Managing Member of Michael DiFalco Hon. Michael L. Orenstein Russell Marnell of the Marnell Law Group, Sahn Ward PLLC is proud to announce that Laura M. Dilimetin Lisa M. Petrocelli P.C., a Long Island law fi rm that concentrates John L. Parker has joined the fi rm as its newest John P. DiMascio Jr. Christian Aaron Pickney its practice in matrimonial and family law, has Partner. He will lead the Firm’s Environmental, Milan Rada announced that David N. Schneider has joined Energy and Resources Practice Group. Janet Nina Esagoff the fi rm as an Associate. Howard S. Fensterman Michael E. Ratner Marc W. Roberts Joseph Milizio, managing partner of The In Brief column is compiled by Marian C. Rice, a Jordan Fensterman partner at the Garden City law fi rm L’Abbate Balkan Vishnick McGovern Milizio LLP, is pleased to Samuel J. Ferrara Jamie A. Rosen Colavita & Contini, LLP, where she chairs the Attorney Leonard M. Rosenberg announce that partner Andrew Kimler, head Professional Liability Practice Group. In addition to Ellen L. Flowers of the fi rm’s Employment Law, Commercial representing attorneys for 35 years, Ms. Rice is a Past Thomas J. Foley Daniel W. Russo Litigation, and Alternative Dispute Resolution President of NCBA. Lawrence R. Gaissert Jerome A. Scharoff Practices and key member of the LGBTQ Marc C. Gann Stephen W. Schlissel Representation Practice, has been appointed Please email your submissions to to the Advisory Council of the Eastern District [email protected] with subject line: Eugene S. Ginsberg Hon. Denise L. Sher of New York Alternative Dispute Resolution IN BRIEF Frank Giorgio, Jr. Hon. Peter B. Skelos Program (EDNY ADR). Milizio, who also leads John J. Giuffre Ira S. Slavit the fi rm’s Business and Transactional Law; The Nassau Lawyer welcomes submissions Dorian R. Glover Wiliam J.A. Sparks Exit Planning for Business Owners; LGBTQ to the IN BRIEF column announcing news, Alan B. Goldman Jill C. Stone Representation; and Surrogacy, Adoption, events, and recent accomplishments Sanford Strenger and Assisted Reproduction Practices, was of its current members. Due to space Stephen F. Gordon limitations, submissions may be edited for Hon. Frank A. Gulotta Terrence L. Tarver featured in the National LGBT Chamber of length and content. Commerce New York (nglccNY) news blog on Mary Elizabeth Heiskell Thomas A. Toscano December 18. He is a founding member of the PLEASE NOTE: All submissions to the IN Alan B. Hodish Craig J. Tortora Long Island Chapter. Milizio co-led an NCBA BRIEF column must be made as WORD Carol M. Hoffman Danielle M. Visvader DOCUMENTS. CLE webinar on January 13, titled “Dean’s Hon. Joy M. Watson Hour: Understanding the New Child-Parent Warren S. Hoffman James P. Joseph David Paul Weiss CONNECT WITH THE NCBA ON SOCIAL MEDIA! To become a Sustaining Member, please contact Nassau County Bar Association the Membership Office at (516) 747-4070.

@nassaucountybar_association 20 February 2021 Nassau Lawyer Nassau County Bar Association and Suffolk County Bar Association Joint Meeting Tuesday, January 12, 2021 Nassau Lawyer February 2021 21 Students ... Continued From Page 11 reaches to off -campus, home-based, behavior and devices.22 Private school students suspended. Just as public school students may be suspended for the incidents listed above, so, too, can private school students. Where public school students at least have a due process right to schooling, nonpublic students do not. Rather, private school students only have resort to tuition contracts and parental leverage for readmission. College and graduate level students suspended. Many college and graduate level clients are in for especially rude awakenings when they are suspended. Accused of infractions, whether of COVID protocols, academic integrity violations, or others, they typically face a tribunal without permission to have legal counsel present. They stand to Students who were not previously classi- investigating instances of alleged in school. I am gratifi ed by my work lose academic credits, use of campus fied whose learning struggles became more bullying and harassment. Although representing individual students in my apparent during the pandemic. facilities, and participation in school- DASA does not create a private cause practice because I remain convinced that Many students who were “getting by” based organizations, and their academic of action, schools are meant to provide society has an interest in enabling more are no longer able to do so, especially an equitable learning environment in records may be tainted. These are students full access to education to learn with family support also withering which they reduce students’ personal fi nancially and emotionally costly and, and thrive. also, potentially damaging to future under the weight of the pandemic. characteristics as predictors of academic Many students present with severe employment and educational prospects. outcomes. Personal characteristics 1. FERPA Family Educational Rights and Privacy Absent a showing that the student is emotional and mental health issues covered by DASA include race, color, Act 20 U.S.C. § 1232g; 34 CFR Part 99 the victim of discrimination, counsel such as depression, anxiety, and drug weight, national origin, ethnic group, 2. https://bit.ly/2XwChf4 4 3. https://www.nysenate.gov/legislation/laws/EDN must rehabilitate the student’s character dependencies, which can impede religion, religious practice, disability, sex, learning. The duty of schools to identify 4. Id. profi le to negotiate these situations. sexual orientation, and gender identity 5. https://www.ed.gov/essa under “childfi nd” during the pandemic and expression. Although well-meaning, 6. https://sites.ed.gov/idea/ Students who were already classified still applies. Whether schools meet this with special education needs prior to the DASA does not allow a personal cause 7. https://bit.ly/3i5tbQ38 https://on.ny.gov/39lIakI pandemic who experience more difficulty obligation in the aggregate is a subject of action or recovery. The NYS Human 8. https://dhr.ny.gov/education-jurisdiction with pandemic learning, whether hybrid, of controversy. Nevertheless, parents and Rights Law was updated in 2019 to 9. https://bit.ly/35wkhFT students can self-refer for evaluations 27 10. https://bit.ly/2Llifl q11 https://bit.ly/2LowJkj in-person, or remote. include public schools. It is diffi cult 11. https://bit.ly/39xLp8Z I remain astonished at how many and possible classifi cation for special to prevail in any human rights violation 12. https://bit.ly/3qcvLGwand families who contact my offi ce do not learning needs, including for Emotional case, as the standard of proof required 13. https://bit.ly/2LJXxLv14 know what their child is classifi ed for, or Disturbance to get therapeutic and other by the elements includes a showing 14. https://bit.ly/38FzCWU 25 what their child’s IEP goals are.23 An supports in place. that: the school has substantial control 15. https://sites.ed.gov/idea/regs/b/b/300.111 16. https://on.ny.gov/3qo2CIN IEP is akin to an enforceable contract. Student a victim of bullying. over the environment; the student 17. https://bit.ly/2XyJR8Q It can be re-negotiated, but one must Cyber and in-person bullying and experienced severe discriminatory 18. https://bit.ly/3oF6Yuk know its terms. Often the classifi cation harassment were a scourge before the harassment; the school had actual notice; 19. https://nwsdy.li/35uFa4g itself needs to be re-evaluated, with the pandemic and have not abated since. All and the school exhibited deliberate 20. https://bit.ly/2LHI1A4 annual goals and student placement indiff erence. Even though this standard 21. Burlington School Comm. v. Dep’t. of Educ., 471 U.S. students are entitled to learn in a safe 359 (1985) and Florence County School District Four v. revised to follow. Families need to environment. Yet, since the COVID- is diffi cult to meet, and one hopes Carter, 510 U.S. 7 (1993) know the terms, and keep track of the 19 pandemic and the toxic political that instances of actual deliberate 22. https://bit.ly/3buoXQt goals and the related services (such as divisiveness surrounding it, upticks in indiff erence are rare, cases of bullying 23. Id. speech, occupational, physical, vision, incidents of anti-Asian, anti-immigrant, must still be reported and investigated. 24. Mrs. C. v. Wheaton, 916 F.2d 69 (2d. Cir.1990) As stated above, individual students do 25. Emotional Disturbance is one of thirteen and cognitive therapies) therein. Some anti-Semitic, anti-LBGTQ, and anti- classifi cations for special education under the IDEA. OPINION not have the benefi t of a union, and can GUEST VIEW may also avail themselves of claims for disabled bullying and harassment have 26. DASA https://bit.ly/38FzCWUNEWSMAKERS compensatory education, whereby they been widely reported. In particular, be at a disadvantage when issues arise 27. NYS Human Rights Law https://dhr.ny.gov/law

with customized financial solu branch’s operational proficiency tions. She has 25 years of banking Harrisburg-based Pennsyl family law experience. She has a vania Public Utility Commis DAIRY GODMOTHERS and mentor her financial center and financial services experience bachelor’s degree from the Col Kuhn sion named team. Most recently, she was a cor and was a financial adviser with lege of William and Mary and a of Philadelphia and Dauphin County grew by 8,997 people. Charleston, West Virginia (-1.6 percent); and 1,661 (or 52.9 percent) lost popula on one or two acres and not pelletizing. porate social responsibility super Smoker Wealth Management. - Amy S. Goldman law degree from Dickinson School Hrivnak - Pine Bluff, Arkansas. (-1.5 percent); PHOTO/THOMAS A. BARSTOW “The vast majority of local hops are visor and head teller II with First She has bachelor’s and master’s of Law. tion. Though there has been more growth - members of of the Cumberland Pennsylvania County - Farmington, New Mexico (-1.5 percent); Specialty cheese biz taps into local dairies National Bank. She has a bach degrees from Ashford University. - What’s happening nationally? than decline overall, the numbers indicate brewed in late summer or early fall for FOOD BUSINESS Telecommunications Relay SerMatthew wet-hop beers,” he said. “That has been elor’s degree from York College. - Laura J. Melfi The census data confirmed that coun- Danville, Illinois (-1.2 percent); and vice Advisory Board. Goldman Susquehanna Township-based that this can easily shift year over year. Hills Farm in Chester County. - vice president and cash manage Mette Evans & Woodside named ties with the largest numeric growth are Watertown-Fort Drum, New York (-1.2 can re-claim sessions missed due to the many students are bullied for their By Stacy Wescoe the big limitation.” has been a public member of the A deeper dive into the census data “We’ve recently advanced Krieger was named senior - BridgeTower Media The Millworks and other breweries said ment officer with Mid Penn’s First Matthew D. Co our operator training and Jones pitched the idea of using the CSA Lower Allen Township-based board. She is a speech-language located in the south and the west. In percent). The population decreases were Lancaster-based RGS Associ Members 1st Federal Credit - Priority Bank division. She will be ble reveals several demographic changes certification program and format to develop a new way of selling craft they would like to buy more local hops ates named pathologist, has conducted - a sharehold fact, Texas claimed four out of the top primarily due to negative net domestic Fauth Union named based in Chester County and con er. He represents - impacting commercial real estate develop Stefanie Angstadt started making cheese cheese to cheese fans. That led Jones, Ang- Craft-beer boom spurs local hops farmersyear round, especially pelletized hops, to ect landscape architect. He has trainings on the importance of are currently engaged with insurance com 10 spots. Looking at population growth migration. a pilot program assessing Jake Krieger Alma Jimenez tribute to deposit growth through - - ment: household formations, aging baby - efficienciesas a hobby for the soon use afterof graduating from col- stadt and Miller in 2016 to create the Collec- support farmers. a bachelor’s degree from Temple telecommunications for those “I think brewers absolutely want to use branch manager business development activities. panies, fraternal by metropolitan area, Dallas-Fort North Dakota was home to the fastest- lege in 2008. tive Creamery CSA, based out of Angstadt’s University. - with disabilities and has been boomers, growing millennials, women drones for 3D modeling of By Jason Scott proj of the location She will also generate fee income benefit societies, - Worth-Arlington, Texas had the largest growing county. Among counties with a [email protected] it,” Musselman said, noting the differencesnamed a computer aided drafting - involved with the administra After a few years she knew it was some- Oley creamery, with Jones as the operations Matthew Fauth inside the Gi through cash management prod - insurance pro Mike in the workforce and migration toward Flahive said. The company now does work in smell and taste between East and Westand design designer. He also is a tion of Pennsylvania’s telecom numeric growth, with a gain of 131,767 population of 20,000 or more, Williams thing she wanted to do full time. manager and Angstadt and Miller as the two ant Foods store ucts and services, and expand and ducers and third- Kushner the South. Today’s demographic changes for a number of different clients, including Pennsylvania leads the nation in craft- - Coast hops. sergeant in the National Guard. He munications device distribution people, or 1.8 percent in 2018. Second County, North Dakota, claimed the top construction companies, utilities and gov She opened Valley Milkhouse in a former primary cheese makers. on East Market - retain customer relationships. She party administra - - was present challenges for commercial real The opportunities for creating new jobs But Musselman said he expectshas local an associate degree from York program. Hrivnak will represent ernment agencies. dairy farm in Oley in 2014 and began to “We thought between the three of us, we beer production. Street, York. She has 43 years of financial services tors in insurance regulatory, trans was Phoenix-Mesa-Scottsdale, Arizona, spot as the fastest-growing by percent- personal characteristics. The Dignity But while more beer is being brewed in hops would cost more than thoseTechnical from Institute. the PUC’s Bureau of Consum - estate developers, but they also offer lu pandemic or otherwise. Compensatory experience. and businesses are vast, said Albert R. manufacture and sell her cheeses profes- could pool our resources and move beyond was a branch - actional andnoting litigation- is matters.thatCoble the counties have main- which had an increase of 96,268 people, age. This county’s population rose by 5.9 Sarvis, an assistant professor of geospatial er Services on the board. He - crative opportunities to firms creatively places like Carlisle, Harrisburg and York, larger West Coast suppliers, given the manager for PNC Bank. tained the same order of ranking based technology at Harrisburg University of Sci sionally. farmers markets,” Angstadt said. is manager of compliance and or 2.0 percent. The cause of growth in percent between 2017 and 2018 (from ence and Technology. HU has adapted its brewers here must rely on some key in lower hop volumes at local farms.Upper Nev Dublin Township, Mont Jimenez CONSTRUCTION MARKETING adapting to new demands. Not a dairy farmer, herself, she partnered According to Jones, the trio didn’t invent competition in the bureau’s pol upon population for eight-plus years. For these areas is migration, both domestic 33,395 to 35,350 people). The rapid geospatial programs to include the use of gredients that often travel long distances. - ertheless, he said he wouldgomery still buy County-based local McMahon - • drones and has sponsored summer camps with other small Berks County dairies to buy the idea of a cheese-based CSA. But, she Manheim Township-based Lancaster-based Wohlsen Lancaster-based Godfrey - One is hops, which are not widely Associates Inc. named icy division. - example, in 2010 the counties in order of and international, as well as natural growth Williams County experienced was for students in high school and middle hops for special PA Preferred brews, i.e., Ambassador Advisors LLC named Construction Co. named named Mike Kushner is the owner of Omni Realty school to encourage interest in the technol fresh warm milk “straight from the udder.” said, “A cheese CSA is still pretty unique.” pher K. Bauer smallest population to largest were Cum- increase. In Dallas, it was natural in- due mainly to net domestic migration of - grown in Pennsylvania, or on the East - beers made with Pennsylvania-produced Christopher R. Maza ciate creativeLuke director. Weidner He will Group, a real estate firm in Harrisburg. He can ogy, SarvisOthers said. pointed out that drones have been Her cheeses — mostly a mix of softer and Jones said it also makes sense. general manager of the Camp Hill - project Coast in general. agricultural commodities, like hops or Coolidge manager and es Harrisburg-based State Civil oversee message unificationberland, andDauphin, York and Lancaster. crease that served as the largest source 1,471 people in 2018. The county also ex- be reached through www.omnirealtygroup. 26 office. He has morean associate.than 20 years He is Service Commission named - used in the film and television industries, as aged styles — were a hit. “You can get subscriptions for anything In fact, most hops come from Washing Christo investment of timator. He was an asso David Heath, director of the PA Drone Association, prepares to make remarks at Drone Advocacy Day June 11 in Harrisburg. Heath and other grain. Manuel brand consisten This is the same ranking we see in 2018, of population growth. For Phoenix it was perienced growth between 2017 and 2018 com� well as in surveying rail lines and in police chief resa Osborne supporters hope to encourage state leaders to support the growing drone industry. “We make everything by hand. It’s very today — dog products, beauty products — of project management and trans - ficer. He leads and emergency applications, such as river Victor Shaffer and Andrew Lyons start project engineer. - cy and align cre - ton, Oregon and Idaho, which account for portation engineering experience County a commissioner. She was training and certification program and are rescues. One story told during the June 11 good cheese so there is a demand,” Angstadt why not cheese?” she said. the wealth man - He has a bache ative resources - - the majority of the country’s hop produc ed growing an acre of hops outside of of Lackawanna for All Students Act requires New currently engaged with a pilot program as event was how cattle had ruined a portion of - and has helped municipalities agement depart lor’s degree from secretary of the Pennsylvania De education claims are an equitable said. a farmer’s crops. A drone was able to assess Mechanicsburg last year. Their company, Te with project and - sessing efficiencies for the use of drones for - tion. Washington alone has about 40,000 partment of Aging. - the total damage, which helped justify the ders recently purchased equipment that through their responsibilities as ment and works - Millersville Uni - 3D modeling of stockpiles, excavations and In fact, demand often outpaced her sup- A profitable boost From left, Sue Miller, Stefanie Angstadt and Alex Jones brought together their collective acres of hops. Mike and Sharon Reifsnyder stand in the hop yard of their West Pennsboro Township called Lion Bines Hop Farm, is expected to account needs to roadway slide areas,” she said in a written insuranceThen claim. there are the spin-off businesses. will allow them to pelletize dried hops local project sponsors on state - PHOTO/MARKELL DELOATCH with various oth - versity. ensure efficien response to questions. ply. Nonetheless, she struggled with the lo- The Collective Creamery is now heading talents to form the Collective Creamery CSA in 2016. PHOTO/SUBMITTED Two Cumberland County hop farmers farm. They began growing the crop in 2017 in a bid to make locally grown hops more produce a partial harvest of hops this year GUEST VIEW - — meaning to grind them into powder and federally funded projects. He HEALTH CARE Ryan Boswell is the Philadelphia-based - er departments. - cy. Most recent - gistics of getting the cheese she was making into its third year. And while it is still just available. and a full harvest next year. FlyingSeveral into new attendees roles at the June 11 event sales manager for PhaseOne Industrial, DRONE are hoping to claim a piece of that market - also serves municipalities’ day- - continued from page and press them into small pellets. Pellet He is a chartered financial- analyst York-based Wagman Construc East Pennsboro Township- ly, he was the - a camera companyto based the inpeople Colorado. who wanted it. a small part of each of the cheesemakers’ Brewing Co. in Douglasville and Covered and inspire other Pennsylvania farmers to to-day traffic consulting needs. PhaseOne cameras can be outfitted on will offer $82.1 billion in economic benefits “You can get subscriptions But Reifsnyder, who retired in 2011 ized hops have a longer shelf life and are charterholder. tion Inc. named Maza based Geisinger Holy Spirit day passes, Pennsylvania seems to be falling said they think state leaders will be sup andcreate 100,000 new jobs in the United Coolidge design manager - - various drones toWhile do a variety around of work forStates80 alone percent by 2025. The association’sAccording goalof the to association, the drones cheese business, it is an important one. Bridge Farmstand in Oley — and at one consider cultivating the crop for breweries He is a professional engineer and further behind in developing a domestic portive of ideas to expand drone programs tois encourage state leaders to support what many brewers rely on throughout tor of business development for named governments, quarry operatorsthe development and of a drone utility industry – or from the U.S. Navy after 22 years of service, for Artisanal Brewing Ventures. both within state agencies and with com unmanned aircraft systems, asthey are for anything today — dog Retirement plans should be piece of M&A puzzle For now, the association isn’t asking - she makesmore formally known is – becausesold other states wholesale to markets and By eliminating the middleman, the chee- location in the Lehigh Valley — Bonn Place in Pennsylvania. professional traffic operations Maryland. He will Joe Corson of GeisingerDr. Ho Ming Jang companies,already areamong doing so. others, Boswell said. the year. Weidner mercial applications once they understand “It’s a niche thing. Not too many peo took a chance on hops after experiment Manheim Township-based Weidner has a bachelor’s degree the potential.Tasks such as bridge inspections or aerial millionto pay for a 50-mile unmanned air semakers get more of the profit. Brewing Co. in Bethlehem. Other pickup The farm’s hop yard could yield about engineer. expand the firm’s ly Spirit Primary 2018 was a banner year for mergers So, if you’re planning a merger or acqui- restriction before being able to join the includes confirming past operational and Pennsylvania’s leaders for much – except corridorbetween Syracuse and Rome, the products, beauty products RKL Wealth Management LLC - For example, New York is putting up $30 direc from Penn State. association said. Other states have become ing with grapes and asparagus on his to be aware of what is going on and to offer federal test sites for the drone industry, a member - while others have been joining regional Angstadt said her profit margin is gener- locations are in the Chester County and ple do it,” said Michael Reifsnyder, who - participation in - Care. He will see - and acquisitions. Global M&A activity was sition, consider the retirement plans now buyer’s 401(k) plan, losing out on a full procedural compliance, making sure all surveys that once took weeks to conduct 5,000 or 6,000 pounds of hops this year. named support as ideas develop, several people partnerships to develop initiatives. As each Carlisle-area farm, dubbed GEMS Farm. day passes, Pennsylvania seems to be falling — why not cheese?” oppor tunities adult patients said. One goal is to create a working group can now be done in a day or so, Day said. further behind in developing domestic a ally about 15 percent to 20 percent on the Philadelphia areas. planted 3,400 hop plants on his 15-acre - GEMS expects to pelletize the majority Swatara Township-based Skelly senior wealth William M. Onorato the second highest on record, with deals to avoid a headache later on. year of tax-efficient savings and employer plan documents are up-to-date, and con remedy designed to make classifi ed York public schools to have policies in drone industry, observers said. NONPROFITS within the state aviation caucus – a legis Farmers, utilities and others have seen how 1 He also saw success at nearby hop yard and Loy named Pennsylvania’s leaders for much –except West Pennsboro Township property in strategist. He will and enhance and specialize drones can reduce the costs of projectsto and be aware of what is going on and to offer roughly $150,000 in gross sales she has in a By having a wider client base, the chee- of its hops this year after selling almost totaling $2.72 trillion. Looking ahead, 76 If the transaction is a stock acquisi- contributions. firming general compatibility between the lative group – to develop a roadmap that For now, the association isn’t asking - support as ideas develop, several people — Alex Jones, Collective Creamery CSA Sunny Brae Farms and thought his farm marketing spe Philadelphia-based Pennsyl inspections. They also havesaid. One goalweighed is to create a working the group li 2017. - advise high-net- client relation in geriatric care. would “identify funding opportunities to within the state aviation caucus – a legis year. That makes it a challenge to maintain semakers also are able to offer more variety. all of its harvest last fall to local breweries percent of top executives at U.S. compa- tion – where the buyer takes full owner- The main advantages of termination plans. Examples include reviewing non lative group – to develop a roadmap that go premium vanians for Modern Courts named ability risks and realized they are better off support critical drone infrastructure,” the would “identify funding opportunities to A big reason for the lack of new hop farm could provide complementary varieties of cialist. She will be LeShelle Smith worth families a ships throughout He was a clinical support critical drone infrastructure,” Governments, the however, seem to have a The association isn’t asking for new regu association said in ausing fact sheet. drones. a capital-intensive operation. Anywhere Angstadt and Miller rotate between six But they are on the lookout for more pickup making wet-hopped beers — also known retired nies expect to close more ship of the selling company – the buyer are that employees can be integrated into discrimination testing results from recent association said in a fact sheet. fresh local hops to small breweries. responsible for - Maryland. He has - assistant profes lations, pointing out that drones are regulat ers is difficulty in getting started and com - on multigenera ed by the Federal Aviation Administration, Lawrence F. The association isn’t asking for new regu she can improve the profit margin is a boost. varieties of cheese, including Angstadt’s locations along their current route and for He and his wife, Sharon, along with as fresh-hop beers that use hops fresh off deals this year than last, then assumes all of the seller’s liabilities, the buyer’s plan with one benefit structure years, the seller’s fiduciary oversight prac lations, pointing out that drones are regulat orFAA, which controls U.S. airspaces and higher hurdle to overcome when liability graphics coordi 30 years of con sor of medicine Judge alreadyrequires commercial drone opera peting with larger established operations. tional planning, ed by the Federal Aviation Administration, tors to get a license. concernsSeveral are raised, experts Day noted said. the concerns can Profits on the CSA vary from month to Witchgrass, her version of a French Valen- pockets of cheese lovers who may want to the vine. nation, including Stengel - and a majority predict including its retirement plan. The buyer for all; there is only one plan to maintain; tices, administrative operations such as for action on the state level. In October “These local houses are up against com their two teenage daughters, maintain legacy planning, - struction industry experience. He in the division of geriatric- medi or FAA, which controls U.S. airspaces and 2018, Pennsylvania lawmakers passed Act Wet-hop batches of beer can use five Butthat doesn’t mean there is no room member.He a board is 78, which limits the ability of municipali be eased once the options are carefully month, but she said they tend to average at cay cheese, and Miller’s Clipper, an aged get in on their offerings. Corson already requires commercial droneties opera to regulate unmanned aircraft unless the hop yard, which is entering its second preparation of - business succes has a bachelor’s degree- from the cine at the University of PennsylJang these deals will be larger, has three options for how to handle the and the risk of any liability transfer into distributions, payroll and loan processes, 24 authorized by the statute. panies that can reach a better economy tors to Butget athat license. doesn’t mean there is no room weighed. For example, the risks to survey a to 10 times as many hops as pelletized a shareholder ordinances that can interfere with commer the higher end of her overall profits. raw-milk cheese. They also reach out to “We have to be lean and use the resources brochures, charts sion and estate University of Baltimore. vania’s Perelman School of Medi according to a report acquired company’s retirement plan. It the buyer’s existing plan is avoided. The and fulfillment of government reporting cial operators, said David Day, executive utility line traditionally would involve work year of harvest. GEMS currently grows five vice president at Keystone Aerial Surveys Local jurisdictions often move to pass of scale, plus have quality control proce batches. with Manheim basedin Philadelphia. That makes educa ers using ladder trucks to examine high- The current CSA package from the Col- other cheesemakers in other regions, hop- we have,” Jones said. and exhibit ma cine. He has a medical degree tion critical, he added. for action on the state level. In October varieties of hops on 3.25 acres, but the plan planning. He has 25- years of es downside is that the employee accounts requirements. dures and logistics plans that have been Local brewers say they are eager to buy Township-based from Axios. These compa- can either maintain its own plan and the 2018, Pennsylvania lawmakers passed Act ing to include their specialty craft cheeses One secondary benefit to the women’s is to eventually grow to seven acres, plant terials. She will tate planning and wealth strategy EDUCATION from Drexel University College students whole. eff ect for taking reports and promptly 78, which limits the ability of municipali in place for decades,” said Brandalynn more local ingredients, including hops, ties to regulate unmanned aircraft unless a wider variety of hops and reach more authorizedLocal by jurisdictions the statute. often move to pass Armstrong, co-owner of Zeroday Brewing in Harrisburg. “It makes it harder for the ordinances that can interfere with commer “Expansion is on our radar,” he said. cial operators, said David Day, executive vice president at Keystone Aerial Surveys

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LIBN.COM VOLUME 67 NUMBER 4 ■ LIBN.COM Part of the network JANUARY 24 30, 2020 ■ 200 • Unlimited downloads with New York law and decisions from • PDFs and spreadsheets Lost Revenues ... GROWTH MODE As healthcare and technology grow, so do the • Book of Lists PLUS professional service firms that support them. ›› Page 4 Continued From Page 3 the majority of courts throughout the LIBN • Unpublished data & + • Custom data searches *Please note: the Data portion of the premium FOCUS//REAL ESTATE REAL ESTATE THE WHITEBOARD country, requiring direct physical loss of, FRESH IDEAS DEVELOPER GUEST VIEW FOR REDESIGNING SEEKING subscription is non-refundable. SMALLER OFFICES OK FOR $35M MIXED USE PROJECT authority.” Since there was no coverage or damage to, property at the premises OPINION OPINION GUEST VIEW OPINION DAIRY GODMOTHERS PRINT & DIGITAL DATA SUBSCRIPTION+ provided under the policy at issue, in order to trigger coverage under a ECONOMIC DEVELOPMENT As a premium subscriber,GUEST VIEW gain total database access with unlimited downloads. the court noted it was unnecessary commercial property policy. Even though GUEST VIEW to determine the applicability of any the eff ects of COVID-19 have been SUBSCRIBE TODAY! potential exclusion. CALL 877-615-9536 OR VISIT year. It is my hope that the House Republican Caucus, along with the Pennsylvania Medical ters than they do at general hospitals. Medic Society and other medical-service advocates, aid [email protected] face 50 percent lower costs and tion andThis innovation ASC tax wouldin health be acare. blow By to tyingcompeti will prove once more that this tax would be patients with commercial insurance plans the invisible hand of the free market in health detrimental to Pennsylvania surgery patients. pay as low as 25 percent the costs of a hospi care with burdensome taxes, we get less devastating on certain businesses, and ees. Those who are engaged at work will go the extra mile and demonstrate increased able toFirst, afford this state-of-the-art tax would cause equipment. ASCs to be un In addition to saving patients money, these productivity, which shows up in a compa with large amounts of information.Such equipment People allows them to have higher practitioners also save Medicare $2.3 billion cost theAnother state Medicaid tax on these system, ASCs it would may even not only GUEST VIEW • Talk about the rewards – not only for a year on just the 120 most-common proce ny’s profitability, turnover numbers, safety their personal lives, but rewards of the digest details in small chunks,productivity so consider and healthier patients, but under dures that Medicare patients receive, accord incidents and quality. program. What’s in it for them can be a an ongoing campaign to share bits and ingAlready to UC Berkeley. a Print &House DigitalI andurge Senate my colleagues to vote against in the Pennsylvania this proposal Subscriber? Call to upgrade - NOW! powerful motivator to expand participa Communication is key for an employee pieces of information, or a web page to and I urge Gov. Wolf to visit an ASC like West The court dismissed the lawsuit health and wellness program and for a tion. That participation, in turn, can build view the full information when employees in 2015,UC Pennsylvania Berkeley noted ASCs in a saved recent Medicare study that Shore Endoscopy in Cumberland County to TO THE EDITOR business overall. Looking to a professional a team atmosphere and lead to higher are interested and have time. $32.6 million on cataract procedures, $1.3 learn about the progress that is being made by restriction before being able to join the includes confirming past operational and In 2016, as fate would have it, an old once-a-month pickup of two pounds and in the CSAcommunicator to give customers for ideas more and bestoptions. practices engagement. million on upper GI procedures and $6.9 mil these entrepreneurial physicians and nurses. - If there’s one constant in health direct loans to businesses, with volume rising The investments typically will flow through 2018 was a banner year for mergers So, if you’re planning a merger or acqui- • Have a sense of humor when commu - care, it’s change. UPMC’s invest will help streamline communications sur lion on cystoscopy procedures. and acquisitions. Global M&A activity was sition, consider the retirement plans now buyer’s 401(k) plan, losing out on a full procedural compliance, making sure all friend of Angstadt’s, Alex Jones, a prominent four varieties of cheese for four months For example, Miller is currently work - nicating. Loosening up a formal approach ment in southcentral Pennsylvania from about $10 million to $30 million in the what are known as qualified opportunity funds. • Consider health and wellness ambas my district,As I meet such with as those physicians at West and Shore patients En in organizer of commu- to $280 for a twice- ing withrounding a sheep such farmera program to andblend lead sheepto more sadors. Peer-to-peer communication is can go a long way to creating engagement has brought positive change to past three years. the second highest on record, with deals to avoid a headache later on. year of tax-efficient savings and employer plan documents are up-to-date, and con- were toIf thebe enacted,Wolf administration’s the Pennsylvania tax proposal Am - doscopy, I have been amazed at the benefits Community First has been working to develop engaged, healthier employees. powerful and partnering with passionate with the communication and getting on a hands-on workshop for growing veg our region, including new, highly The nonprofit also has opened new loan offic nity-supported agri- monthly pickup and cow milk together to make a creamy - bulatory Surgery Association, along with a of their innovative approach. , Suzanne Fischer-Huettner - totaling $2.72 trillion. Looking ahead, 76 If the transaction is a stock acquisi- contributions. firming general compatibility between the team members to communicate can re - board with the program. etables or herbs. At GRIT, team members such funds, which could work in combination federal allocation, the organization’s eighth. in particular the restaurant industry, culture programs in of one-and-a-half Camembert-styleWhat can you cheese.do? coalition of state medical societies, warn that specialized services, thousands of percent of top executives at U.S. compa- tion – where the buyer takes full owner- The main advantages of termination plans. Examples include reviewing non- move the paternalistic factor. es in Allentown and Philadelphia where it would • Make it a two-way conversation. Ask in the wellness program are walkingup to 25 miles percent of these centers may need only minorWe all if can it happens relate to to the someone phrase, else.”“Surgery is new providers and leading-edge with other state and federal incentives. The previous seven allocations have helped the Greater Philadel- pounds and three Ultimately, their goal is to turn cheese employees what program components like to add more people to expand lending. Among the most notable of those is the nies expect to close more ship of the selling company – the buyer are that employees can be integrated into discrimination testing results from recent • Connect the dots for employees to the (via a step tracker) to earn a freeto closeairplane – pushing thousands of patients into - technology to treat the most fund 38 developments in the state, including phia area, had just varieties of cheese lovers into die-hard cheese fans. bigger corporate picture. Participation in they’d like to see. Find out what might mo costly general hospitals and forcing centers to Nobody wants to be told they need surgery “We expect to go deeper into markets we are - deals this year than last, then assumes all of the seller’s liabilities, the buyer’s plan with one benefit structure years, the seller’s fiduciary oversight prac- - ticket to anywhere in the world. The more - and they especially do not want an unpleas advanced diseases.Copyright However, 2019 byeven BridgeTower Media. All rights reserved. the Hamilton Health Center in Harrisburg, - wellness programs has the potential to de - tivate them to participate. Ask for ideas on withdraw from Medicaid. ant surgery experience. left a job with a CSA. for four months. “We want to cultivate the cheese culture creative and out-of-the-box the program, positive change canVolume cause 35, confu Number 23. Reproduction or use, without permission, in,” Betancourt said. and a majority predict including its retirement plan. The buyer for all; there is only one plan to maintain; tices, administrative operations such as crease company health benefit costs over communicating the details to staff. - - Lancaster’s Keppel Building and the renova brought by Sparks with prejudice, In a typical CSA, CSA packages gen- in this area like it is in Europe. We don’t want when paired with easy ways to participate, sion. I’d like to take a momentof editorial to or graphic content in any manner, including electronic But depth, he said, requires a bigger team. these deals will be larger, has three options for how to handle the and the risk of any liability transfer into distributions, payroll and loan processes, vaniansThanks have beento ASCs, given thousands a convenient of Pennsyl and year — likely mixed-use, commercial and tion of Gettysburg’s Schmucker Hall. all, which in turn could make a difference the more people will want to take part. clarify a question involvingreproduction, health is prohibited. For licensing, reprints, e-prints and a group of farmers erally run from five people to see cheese as a guilty pleasure, but - • Use social channels to help spread quality outpatient experience with positive - community service projects — with a focus on In the meantime, officials are narrowing according to a report acquired company’s retirement plan. It the buyer’s existing plan is avoided. The and fulfillment of government reporting in employees’ premium or out-of-pocket the word. Whether its an internal social insurance plans accepted at UPMCplaques, email [email protected]. Authorization to - That starts at the executive level. connect with a group to six months. The as a food you eat every day,” Angstadt said. • Stay diverse with your communica outcomes and speedy recovery in the comfort photocopy articles for internal corporate or instructional use may In addition to adding new execs, the non - from Axios. These compa- can either maintain its own plan and the downside is that the employee accounts requirements. health care costs. tool such as Slack or Yammer or a closed tions focus. If there is a large subset of - Pinnacle. - those that exceed $5 million. down mixed-use and commercial projects of their own homes. A double tax on these be obtained from the Copyright Clearance Center at 978-750-8400. - Developers often have to spend more of consumers who current package is “This is a way to grow the cheese community. group on Facebook or LinkedIn, encour staff who bike to work, that’s great, but if - across the state that could receive the tax nies, and others around seller’s plan separately, terminate the become immediately accessible. So, if not Many companies partner with an out- - centers would not only be devastating to the CENTRAL PENN BUSINESS JOURNAL (ISSN1058-3599) is pub want to buy fresh, shortened since the “People don’t see fine cheese as a neces- premium for the milk,” she said. age employees to share pictures of their - that’s all communications are about, the many hardworking physicians in our com outpatientUPMC clinics Pinnacle continue hospitals to and lished weekly except for the first week of July, the last full week of money to buy and fix up vacant and blighted credits. Part of that selection process could the globe, turn to M&A seller’s plan, or merge the seller’s plan rolled over into an IRA or other retirement side consultant to conduct a thorough healthy choices and/or program partici local produce. They current CSA season sity,” added Jones. “When they go to the gro- Her sources include Spring Creek Farm- in company risks losing support from other monwealth but their patients as well. accept most major insurance November and the last full week of December by BridgeTower Me properties than they can expect to get back include working with Lancaster-based deals- to increase market John into its own plan. plan, employees could squander retire- benefit plan review and help determine - pation. Build a little competition between Tax credit plan sell shares of their fu- has already begun. cery store they feel they have to get produce Wernersville, an organic dairy farm. parts of the employee base. The same goes plans, including Aetna, Capital Blue dia, 1500 Paxton St., Harrisburg, PA 17104-2633. The periodical post - in rental rates once construction is complet company segments and offer content our commonwealth,For the sake of theI hope health my andcolleagues wellness in of - After being shut out in the last fund Community First Fund, which did not receiveshare and improve their Jeffrey If the buyer decides to maintain both ment assets and face penalty taxes for the best option. When experts are engaged without direct physical damage to the for any topic: if it’s strictly about one thing, age is paid at Harrisburg, PA and at additional mailing offices. POST - - Cross, Highmark and UPMC Health ture crop to the con- Customers pick and bread … we want them to think of fine Greg Stricker, a partner in Spring Creek,meant to engage the group – ask ques - Harrisburg listen to our physicians and their MASTER: Electronic ACS Service requested. Send address changes ed. The New Markets program takes private tax credits this year but has its own backlogbusiness models. plans, the newly acquired employees can early distribution. from the start, they can help ensure the the business might lose the interest of its Plan for all services. Changes in the ing round in 2017, Central Pennsylvania will sumers, who then Honey-Bell is a brie-style cheese made by up their orders at cheese like that, not as a luxury.” said he pays special attention to the milktions, he post a quiz or host a ‘meet this goal’ patients and reject this tax. - to: Subscription Services, PO Box 1051, Williamsport PA 17703-9940 equity from investors, usually banks, and of projects. Throughout the M&A either be offered the same benefits they The final option – merging the seller’s transition is smooth and employees have whole audience. relationship between Highmark Central Penn Business Journal cannot be responsible for the receive a share of 2018 tax credits under a pick up weekly or Stefanie Angstadt in her Oley creamery. participating loca- Miller sees the craft cheese industry produces for Angstadt. challenge. - - turns that money into gap financing to help The two midstate nonprofits have part - specifi cally noting that allowing leave to State Rep. Greg Rothman (R) represents the 87th and UPMC in the greater process, executives are hyper-focused had previously, or a new formula for their and buyer’s plans – requires that both a clear understanding of the benefits with Internal communications centered around return of unsolicited material with or without the inclusion of a new round of funding from a federal program PHOTO/SUBMITTED House District, which is in Cumberland County. developers offset some of the construction monthly boxes of the tions. Most are busi- growing in much the same way the craft beer “I always try to make the highest-quality health and wellness can make or break pro Pittsburgh and Erie areas will not stamped, self-addressed return envelope. Information in this publi nered on tax-credit projects in the past,on company synergies and big-picture employer benefits. Maintaining both plans plans be the same type and have a similar their new employer. - designed to support large urban redevelop farmers’ latest crops, nesses that focus on industry has developed and grown, with milk, but we try to concentrate on making a gram participation. Get together with HR, affect the relationship between cation is gathered from sources considered to be reliable, but the ac costs and keep rents in line with what a local including the redevelopment of the formergoals. As a result, one very important fac- can provide employees continuity of ben- plan design. This option can be efficient An organization’s retirement plan leadership and a few employees to brain curacy and completeness of the information cannot be guaranteed. ment projects: the New Markets Tax Credit. real estate market can support. sharing both the risk and the rewards of the local craft foods and products like farm those in the industry working cooperatively milk that is higher in protein and butter fat UPMC Pinnacle and Highmark. The U.S. Treasury Department last month Bulova building in Lancaster. Commonwealthtor often goes overlooked – the employer’s efits with no impact to the buyer’s retire- and cost-effective – one benefit structure, should be a consideration from the early storm the best ways to get the message out. No information expressed herein constitutes a solicitation for the The investors receive tax credits in return, farmers’ season and giving those farmers a stands or craft brewers, which support “buy instead of competitively to boost the entire to make her cheeses,” Stricker said. - Cornerstone poured $10 million in taxretirement cred plans. There are many details ment plan. However, operating multiple one plan to operate – and it also avoids the stages of an M&A. Though the evaluation • - to careWe for lookall of forward our patients to continuing in awarded $55 million in tax credits to the more reliable source of income. local” efforts. industry by sharing tips and efforts. Stricker said the extra money a cheese- Julie Lando is the owner and president of GRIT which count against their federal income its into the project, while Community First Pennsylvania Housing Finance Agency’s - to consider when acquiring a company. plans can be burdensome and expensive, negatives of plan termination. process can be lengthy, it’s better to an- “My job was to buy products from dozens Having a variety of pickup locations in “It’s the whole ‘a rising tide raises all maker like Angstadt is willing to pay repre- Marketing Group, a marketing and communica 2019 and beyond. To learn more taxes. added another $8 million. about full, in-network access to Commonwealth Cornerstone Group, based in Investors can receive credits totaling 39 Folmer said project announcementsUnderstanding could the seller’s retirement plan and nondiscrimination testing is needed if The risk associated with merging are the ticipate issues that could arise, instead of of local farmers,” Jones said. the region helps the Collective’s members ships’ kind of thing,” she said. “We all benefit sents a needed boost for small farms like his. tions firm with offices in York and Lancaster. - • UPMC doctors and hospitals, call Harrisburg. and how it will fit within the current ben- employees are receiving different benefit unknown factors of the seller’s plan. Has it realizing them in the midst of the merger from a stronger cheese industry.” “It’s a huge benefit to us when a local percent of their investment. They can use the come this fall. premises there is no coverage under a She was looking to take her CSA skills spread their cheese sales farther than they - our toll-free help line at 1-833- - Commonwealth Cornerstone’s executive efit structure is vital to success. packages. always operated in compliance with all the when it might be too late. credits over seven years as such: 5 percent and use them in a new way. She thought of could on their own. Jones said the trio is focused on being a business like that uses our product,” he said. 879-5013 or visit UPMC.com/ - amend the complaint would be futile. director Charlotte Folmer said the funding per year for the first three years and 6 per If retirement plans are not considered If the buyer is going to terminate the complex rules associated with retirement • Angstadt and another cheesemaker she had Subscriptions can be picked up in two regional leader in the craft cheese industry. “It’s essential to find someone making a Choice2019. will help the nonprofit tackle a hefty pipeline- cent for the next four years. upfront, executives may learn that the ac- seller’s plan, this decision should be made plans? If not, the buyer’s plan would be at John Jeffrey is a consulting actuary, specializing < met in her old job: Sue Miller of Birchrun Berks County locations — Hidden River They aren’t planning any major expansion. higher-end product to compete.” of projects seeking funding. Folmer said it will be several weeks until quired company has an underfunded pen- and the process initiated before the com- risk. in retirement plan consulting and post-employ- - www.libn.com “We have over 40 projects requesting Philip W. Guarneschelli, The Central Penn Business Journal will cor Commonwealth Cornerstone receives its sion plan – which can be a deal breaker panies merge. If the acquired company’s Before deciding how to handle the sell- ment health care benefits, for Conrad Siegel, President and CEO rect or clarify mistakes made in the publica over $700 million,” she said, noting that the – or that the seller’s 401(k) plan does not 401(k) is terminated after the transaction, er’s retirement plan, the buyer will need which is based in Susquehanna Township, tion. If you have a question, please call the UPMC Pinnacle requests come from across the common meet compliance standards. the seller’s employees will face a one-year to perform exhaustive due diligence. This Dauphin County. wealth. Folmer said she hopes the tax credits will The decision in this matter is consistent commercial property policy. be able to support about seven projects this 22 February 2021 Nassau Lawyer

on his labor law claims where the ladder Since the recalcitrant worker/sole A.D.3d 54, 57–58 (2d Dept. 2007). Rodriguez ... 8. Rodriguez v. Coca-Cola Refreshments USA, Inc., 61 Continued From Page 8 he used kicked out from under him. In proximate cause defenses are all-or- Misc.3d 789 (Sup.Ct., Queens Co. 2018). opposition, the defendant relied on its nothing defenses which, if successful, 9. Mahoney v. Brockbank, 142 A.D.3d 200, 205 (2d contention that plaintiff was the sole bar recovery, they can be viewed as Dept. 2016). fault [does] not bar summary judgment 10. Castillo v. Slupecki, 63 Misc.3d 325 (Sup.Ct., Bronx in favor of plaintiff on the issue of proximate cause of the accident, but the liability, not damages issues. Accordingly, Co. 2019). defendant’s liability.”19 court held the defendant “failed to raise they present questions of fact that even 11. Edwards v. Gorman, 162 A.D.3d 1480, 1481 (4th Dept. 2018). In the context of a labor law case, a triable issue of fact with respect to that post-Rodriguez should defeat a motion for 12. Hai Ying Xiao v. Martinez, 185 A.D.3d 1014, 1014– a defendant who establishes plaintiff issue (see generally Rodriguez v City of New partial summary judgment on liability. 15 (2d Dept. 2020); see also Flores v. Rubenstein, 175 York, 31 N.Y.3d 312, 324-325 [2018]).” A.D.3d 1490, 1491 (2d Dept. 2019); Poon v. Nisanov, was a recalcitrant worker or the sole 1. Rodriguez v. City of New York, 31 N.Y.3d 312 (2018). 162 A.D.3d 804, 808 (2d Dept. 2018). proximate cause of the accident would The Fourth Department’s citation to 2. Castillo v. Slupecki, 63 Misc.3d 325, 327 (Sup.Ct., 13. Custodi v. Town of Amherst, 20 NY3d 83, 87 (2012); be entitled to dismissal of the labor Rodriguez is unclear. Is the Court implying Bronx Co. 2019). Morgan v. State, 90 N.Y.2d 471, 485 (1997). 3. Ortega v. R.C. Diocese of Brooklyn, 178 A.D.3d 940 14. Derix v. Port Auth. of New York & New Jersey, 162 law claim, thus defeating plaintiff’s that had the defendant raised an issue (2d Dept. 2019); Quizhpi v. South Queens Boys & Girls A.D.3d 522 (1st Dept. 2018); Mallory v. City of New summary judgment motion. However, of fact as to sole proximate cause, then Club, Inc., 166 A.D.3d 683 (2d Dept. 2018); Rodriguez York, 69 Misc.3d 640, 643 (Sup.Ct., N.Y. Co. 2020). plaintiff’s motion would have been v. Sea Crest Constr. Corp., 64 Misc.3d 1214(A) (Sup.Ct., 15. Francois v. Tang, 171 A.D.3d 1139 (2d Dept. 2019). when a defendant cannot make such Queens Co. 2019). 16. 165 A.D.3d 631, 632 (2d Dept. 2018). a showing, but raises a question of denied? The “see generally” citation 4. Davis v. Commack Hotel, LLC, 174 A.D.3d 501, 504 17. 173 A.D.3d 808, 809 (2d Dept. 2019). fact on the issue, it would seem, even to Rodriguez (with no other comment) (2d Dept. 2019). 18 See Sanders v. Sangemino, 185 A.D.3d 617 (2d Dept. 5. Cioffi v. S.M. Foods, Inc., 178 A.D.3d 1006 (2d Dept. 2020) (summary judgment denied where parties’ post-Rodriguez, that plaintiff’s summary is perplexing. It could also mean that 2019). deposition testimony conflicted as to how accident judgment motion should be denied. even had the defendant established a 6. Sanders v. Sangemino, 185 A.D.3d 617, 618 (2d Dept. occurred). In Allington v. Templeton Foundation,20 question of fact on this issue, it would be 2020), lv to appeal dismissed, 35 N.Y.3d 1110 (2020). 19 Koyl v. Gaudiuso, 2019 NY Slip Op 33939(U), 2019 7. CPLR 5002, 5004; Rohring v. City of Niagara Falls, WL 8690151 (Sup.Ct., Nassau Co. 2019). plaintiff obtained summary judgment irrelevant based on Rodriguez. 84 N.Y.2d 60, 68 (1994); Van Nostrand v. Froehlich, 44 20 Allington v. Templeton Foundation, 167 A.D.3d 1437 (4th Dept. 2018).

Lessons ... trail (transcripts, letters, motion papers, Continued From Page 10 etc.) should reflect who is being nice, and who is not. Bringing an adversary’s of a fair trial.”1 There is a litany of case conduct to the attention of the judge law on this topic, but in general, zealous may seem like a painful exercise. But advocacy can remain professional again, we turn to the sage words of by focusing on the substance of the Dalton: “Pain don’t hurt.” evidence, and refraining from personal The scenarios discussed, fortunately, comments on counsel or the witnesses. do not apply to the vast majority of An overriding theme of the practitioners in our profession. But when presentation, in terms of dealing with a we do encounter uncivil conduct, our discourteous, unprofessional adversary, panel’s insight on how to address such was simple: Be the Adult in the Room. behavior should be heeded by attorneys Unprofessional behavior, whether on both sides of the aisle. intentional, tactical, or simply because your adversary is naturally unethical, records and refraining from similar the point where the court or grievance 1. See Kleiber v Fichtel, 172 A.D.3d 1048, 1052 (2d should be combatted by making clear attacks. If and when conduct gets to committee must be enlisted, the paper Dept. 2019).

Access ... on ways we can still come together. continue to have a positive impact. Collaborative Effort Continued From Page 5 Rather than cancel the October Since its inception last Spring by Over the course of four decades, the Open House, the Access to Justice then President Richard D. Collins, NCBA Access to Justice Committee Committee, Co-Chaired by NCBA Vice then President-Elect Dorian R. Glover, has had a profound impact on the lives “Free Legal Information Day,” until President Rosalia Baiamonte and Kevin and Past President Martha Krisel, the of the economically disadvantaged eventually it became known as NCBA McDonough and with Sheryl Channer NCBA COVID-19 Community Task residents of Nassau County by helping Access to Justice “Open House.” as Vice Chair, were determined to find a Force has assisted Nassau County to maximize the quantity and quality Regardless of its name, it has become creative solution through technological residents and small business owners in of pro bono assistance available to an an enormous success. In 2016, due to bridges to continue the critical pro bono addressing free of charge the unique otherwise underserved community. the large response from the public, it work. As a result, the event was held legal challenges ushered in by the None of this would have been possible was increased to twice a year under the virtually, with all services being provided pandemic. Approximately fifty NCBA without the strong relationships forged leadership of Past President Steven G. through email or telephone. This virtual volunteer attorneys, many of whom Leventhal and Gale D. Berg: once in Open House drew over 138 Nassau worked closely with law students from by the NCBA with its collaborative June, and again during Pro Bono Week and Suffolk County residents, thereby Hofstra, St. John’s and Touro as part of partners: The Nassau County Coalition in late October. NCBA was further strengthening NCBA’s resolve and the Task Force initiative, have provided Against Domestic Violence, Nassau aided in these efforts by the Nassau commitment to provide much-need legal approximately 500 hours of limited Suffolk Law Services, The Safe Center County Supreme Court through its assistance to those in need despite the scope pro bono representation under of Long Island, Legal Aid Society of representatives, who joined us during obstacles we faced. the dedication and guidance of NCBA Nassau County, the Assigned Counsel these events to provide the public with NCBA is grateful to the Supreme Director Hon. Maxine S. Broderick. Defender Plan, Hofstra, St. John’s, and important information available through Court personnel who recorded their Many of the inquiries posed Touro Law Schools, and the Nassau the court system. public service announcement for this by community members through County government and court system, with whom the NCBA Access to Justice Persevering Through the Pandemic virtual event, as well as the ongoing [email protected], raise encouragement and support provided questions regarding unemployment Committee has coordinated legal The Open House continued to be by the Nassau County Administrative benefits, navigating housing court, services for the community to strengthen held twice each year until October, Judge, Hon. Norman St. George. This and enforcing Family Court orders. the core of volunteer attorneys through 2019. Unfortunately, the event slated for remarkable service to the community However, as vaccines are made available education and professional development. June 2020 had to be canceled during was made possible by the dedication and to the public, the Task Force anticipates Through 2021 and beyond, NCBA the shutdown period occasioned by the professionalism of the sixty to eighty an influx of inquiries concerning leadership and volunteer attorneys stand pandemic. Despite the fact that our volunteer attorneys who participated mandatory vaccinations, transportation, ready to assist future lawyers in developing historical and traditional means of pro in each Open House, together with the travel restrictions, and related privacy skills through practical experience, to bono work became exceedingly difficult, collaboration of our Access to Justice concerns. As an additional resource, provide opportunities for substantial and the need for such services during partners, the Nassau Suffolk Law Services NCBA staff, with law student assistance, meaningful interaction with clients, and these extraordinary times nevertheless and The Safe Center of Long Island. This have created helpful FAQs and posted more importantly, to continue to serve grew exponentially. When in-person kind of creative response can empower updates to the COVID-19 web page at the interests of our community through consultation was not feasible, we focused other pro bono and volunteer teams to www.nassaubar.org. greater access to justice. Nassau Lawyer February 2021 23 Suspension ... defendant objected.13 He argued that led to months of litigation over that process or proceeding.” The complexity Continued From Page 9 the time for restoring the case had lapsed question—and the answer may change of New York law is no excuse for and EO 202.8 did not suspend CPL over the course of the pandemic. When ignoring its directives, however—nor is 170.55. The court agreed, finding that in-person court operations in New the enormity of the pandemic. statute, he argued, was not suspended EO 202.8 had suspended CPL 170.55 York City ceased again this fall, did With the benefit of hindsight, it is clear by EO 202.8. The court disagreed, earlier in the pandemic, but no longer. EO 202.8 again suspend CPL 170.55? that a few more hours spent drafting EO asserting that simply describing the The court acknowledged the earlier And did it do so statewide, or only 202.8 would have spared us months of suspended statutes was preferable to decisions, but held: “what was ‘specific in counties with more limited court rewriting that order through litigation. enumerating them: in March 2020 was not ‘specific’ in July, operations? How much more limited In fact, we could begin drafting a This Court does not find that the let alone today.”14 Accordingly, “the must court operations get to trigger the comprehensive list of such laws now, in Governor needed to be so specific. executive orders, starting with EO 202.8, suspensions, and of which statutes? preparation for the next time we face a The language of this order sweeps up were reasonable under the circumstances Within EO 202.8’s ambiguity, however, once-in-a-lifetime disaster. every procedural time limit imposed during the onset of the pandemic,” but lies opportunity for argument. Counsel in the Criminal Procedure Law and 1. 9 NYCRR § 8.202. not once the courts resumed normal whose clients would benefit from the 2. 9 NYCRR § 8.202.8. The eighty-second such 15 packages them in a broad order that operations. The court also recognized tolling period can argue that Section order was signed December 13, 2020. 9 is easy for a court to interpret. the problems presented by EO 202.8’s 29-a empowers the Governor to toll 3. 9 NYCRR §§ 8.202.14, 8.202.28, 8.202.38, In People ex rel. Mulry v. Franchi, the 8.202.48, 8.202.55, 8.202.60, 8.202.67. failure to specify the laws suspended: time limits, and that EO 202.8 satisfies 4. Thomas A. Moore & Matthew Gaier, Medical Second Department without comment This uncertainty also runs the risk Subsection 2(c) by describing the laws Malpractice, Toll on Statute of Limitations During the accepted this reasoning, at least as to that the Governor’s orders will be that it suspends. Those who would COVID-19 Emergency, NYLJ (June 1, 2020); Patrick M. CPL 180.80.10 Hamilton was relied upon Connors, New York Practice, The COVID-19 Toll: Time inconsistently applied—a prospect oppose the toll can press Justice Whelan’s Periods And the Courts During Pandemic, NYLJ (July 17, in two later lower-court decisions, one that the legislature undoubtedly argument that Section 29-a only permits 2020). of them as to the Family Court Act— suspension, or argue that the executive 5. Thomas F. Whelan, Executive Orders: A Suspension, sought to avoid by requiring that the Not a Toll of the SOL, NYLJ (Oct. 6, 2020). with language so similar that it appears executive orders retain a degree of order is completely invalid in this regard 6. Souren A. Israelyan, The Governor Had Authority To to have been cut-and-pasted from one specificity. Indeed, it is not hard to because it specifies no laws. And either Toll the Statute of Limitations, NYLJ (Oct. 19, 2020). to the other.11 Recent decisions simply side might find it convenient to argue that 7. E.g., 9 NYCRR § 8.202.67. imagine disagreements among courts 8. 67 Misc.3d 1205(A) (Sup.Ct., Bronx Co. 2020). assert that EO 202.8 tolled any and all as to which statutes are covered by circumstances changed at some point 9. Id. at *2. 12 time limits in New York law. the executive orders, and which are during the tolling period to place some 10. 182 A.D.3d 562 (2d Dept. 2020). A contrary decision from Cohoes City 11. See People ex rel. Nevins v. Brann, 67 Misc.3d 638, not —with the result being that some time limit in or out of the order’s ambit. 647 (Sup.Ct., Queens Co. 2020); Matter of M.R., 69 Court in October 2020, however, both laws would be suspended in one In fairness to the Governor, the Misc.3d 368, 374–75 (Family Ct., Kings Co. 2020). explains and exemplifies the problems jurisdiction, but not in another.16 most erudite scholar would be hard- 12. E.g., Morse v. LoveLive TV US, Inc., 69 Misc.3d with EO 202.8. In People v. Zeolli, the pressed to list each and every one of 1224(A) (Sup.Ct., N.Y. Co. 2020); 464 Gateway LLC Conclusion v. Wright, 69 Misc.3d 1212(A) (Sup.Ct., Queens Co. defendant’s case had been adjourned “the procedural laws of the state” that 2020); in contemplation of dismissal under Act in haste, repent at leisure. prescribes a “specific time limit for the 13. 69 Misc.3d 927 (Cohoes City Ct. 2020). 14. Id. CPL 170.55, but when the state moved An executive order that does not commencement, filing, or service of any 15. Id. at 936. to restore the case to the calendar the specify the laws that it suspends has legal action, notice, motion, or other 16. Id. at 933.

Judgment ... upheld a Virginia sterilization statute prison terms. Yet by the film’s end, the Continued From Page 15 proclaiming that “three generations of audience is informed that of ninety- imbeciles are enough.”7 Linking Holmes, nine defendants convicted at Nuremberg the most respected of American judges, none is still serving his original sentence. until his attorney Hans Rolfe vigorously to the forced sterilization of so-called If there is any victory, any sense of cross examines a witness triggering undesirables, the very issue Janning and affirmation. to be derived from Judgment Janning to confess his guilt. the others were charged with, hits too at Nuremberg it is essentially a moral one. Hayworth recognizes the tragic close to home. It comes when Hayworth/Tracy renders element in Janning’s story. When last Rolfe’s defense, which is motivated by his decision from the bench. It serves as they meet in Janning’s jail cell following his desire for a renewed Germany, does more than a dramatic denouement; it is 1965, the broadcast was interrupted for the trial, Janning ardently professes that not permit the victors to feel superior. a clarion call for justice in furtherance of a special report from Selma, Alabama.9 he had no idea that things would turn Another recurring theme is the need our common humanity: out as they did. Judge Hayworth passes The image of civil rights demonstrators, to show leniency toward the Germans, A decision must be made in the life of every including the late John Lewis, being judgment a second time by declaring: in spite of their crimes, due of the nation at the very moment when the grasp of the beaten bloody on the Edmund Pettis “Herr Janning, it ‘came to that’ the first time exigencies of the Cold War. Pressure enemy is at its throat. Then, it seems that the Bridge was reminiscent of the horrors you sentenced to death a man you knew to be is exerted on Hayworth to go easy on only way to survive is to use the means of the innocent.”6 Janning and the rest. enemy, to rest survival upon what is expedient, carried out by the Germans. Rolfe, as portrayed by Schell, is a After all the Americans will need the to look the other way. Well, the answer to that is The connection made by a national brilliant characterization. He has to Germans to confront the Russians. In ‘survival as what’? A country isn’t a rock. It’s television audience between the movie defend the indefensible and he does so effect, the entire apparatus of the U.S. not an extension of one’s self. It’s what it stands and news from Selma generated wide- with considerable skill and an instinct for Government (as represented by senators, for. It’s what it stands for when standing for spread support for Dr. Martin Luther the jugular that in effect puts the entire diplomats, generals) are now focused on something is the most difficult! Before the people King’s efforts. Many said quite movingly: world on trial. Citing the Nazi-Soviet the new conflict, not the last war. One of the world, let it now be noted that here, in Pack of 1939, the words of Winston “I was watching Judgment at Nuremberg and I of the defendants even cites the danger our decision, this is what we stand for: Justice, 10 Churchill, the dropping of the atomic just couldn’t stay away. I had to come.” Such posed to the West by the “Bolsheviks” truth, and the value of a single human being.8 bomb on Japan, Rolfe convincingly is the power of Mann’s story and why upon being sentenced. Judgment at Nuremberg raises many makes the case that there is plenty of it continues to this day to “have a shot at Therein lies the true genius of questions. What role should the guilt to go around. reshaping the world.” Mann’s storytelling. It would have been law play when it is in conflict with Most telling of all, Rolfe cites Oliver very easy to present one- dimensional national priorities and/or international 1. Mason Wiley and Damien Bona, Inside Oscar, (1st Wendell Holmes’ opinion in Buck v Bell. characterizations of evil Germans and circumstances? How can the victors Ed. 1986) p. 339. A twisted paean to eugenics, this was a virtuous Americans. Mann forgoes all justify placing the vanquished on trial 2. Werner Klemperer (one of the German judges,) disgraceful decision in which Holmes later starred in Hogan’s Heroes; Torben Meyer and that, sensing that the desire for justice is when their own hands are not entirely Otto Waldis also appear in both versions. perpetually in conflict with the need for clean? Does the need for survival 3. Andrew Horton, The Films of George Roy Hill (1st safety and security. The law, much less circumvent the carrying out of justice? ed. 1984) p. 28. human nature, is never so simple nor so Are individuals personally responsible 4. Wiley and Bona, supra. 5. William O. Douglas, Introduction to The Films of clear cut. That is what lies at the crux of either for the crimes of their government Spencer Tracy (1st ed. 1968) p. 11. Judgment at Nuremberg. or for failing to resist unlawful state 6. Abby Mann, Judgment at Nuremberg, in Best American The trial ends when Hayworth action? Sixty years after the film’s Screenplays 2, (1st ed. 1990) p. 340. manages to convince a fellow judge premiere these questions remain relevant 7. 274 U.S. 200 (1927). to convict the defendants; the third as well as salient. 8. Mann, supra, p. 335. 9. Mark Grimsley, Battle Films: Judgment at Nuremberg judge rules in favor of acquittal. All of One final point, when the film version (April 2018) at www.historynet.com. the defendants are sentenced to long debuted on ABC television on March 7, 10. Id. 24 February 2021 Nassau Lawyer Dog Bites ... propensities, and upon Plaintiff ’s “veterinary clinics are uniquely well- the Hewitt decision, practitioners should Continued From Page 6 cross-motion on the negligence claim, equipped to anticipate and guard against be mindful and thoroughly investigate Defendant argued the dog’s discharge the risk of aggressive animal behavior any negligence claim that may exist did not deviate from the accepted that may occur in their practices— New Twist in Hewitt against certain non-owners. standard of care from doing the an environment over which they have With all of the twists and turns 2020 same. The Supreme Court granted substantial control, and which potentially 1. t.ly/iDim. 18 presented to the profession, the same Defendant’s motion, reasoning its may be designed to mitigate risk.” 2. t.ly/YvPh. may be said of the Court of Appeals liability was contingent upon it having 3. t.ly/rnWq. What Now? 4. t.ly/NBfY. recent decision in Hewitt v. Palmer notice of vicious propensities in the 5. t.ly/dyHM. 14 As I mention at the outset to virtually Veterinary Clinic. In Hewitt, Defendant same manner as that of an owner. The 6. 6 N.Y.3d 292 (2006). every potential dog bite injury client, veterinary clinic treated a patron’s Third Department affi rmed on the same 7. Id. at 594-96. representing a Plaintiff in a New York dog for a paw injury. When returning grounds.16 8. Id. at 596. dog bite case presents unique challenges the dog to the patron/owner in the On appeal, Plaintiff argued the Bard 9. Id. at 599. that personal injury practitioners in other 10. 1 N.Y.3d 444 (2004). reception area, the dog seemingly rule does not and should not apply to jurisdictions generally do not face.19 As 11. Id. at 596-97. observed Plaintiff ’s cat, slipped out of Defendant, a non-owner veterinary such, the prudent plaintiff ’s attorney must 12. Id. her collar and grabbed Plaintiff from 13. See Curbelo v. Walker, 81 A.D.3d 772, 773-74 (2d clinic. Agreeing with Plaintiff , the Court explore all avenues with the potential behind by her ponytail, allegedly causing Dept. 2011) (affi rming J. Phelan);see also Claps v. of Appeals modifi ed the order of the client on how to withstand an eventual injuries. Plaintiff subsequently brought Appellate Division, concluding that the Animal Haven, Inc., 34 A.D.3d 715 (2d Dept. 2006) summary judgment motion by the dog’s (affi rming J. Winslow); Palumbo v. Nikirk, 59 A.D.3d an action in Clinton County Supreme non-owner Defendant did not need owner citing the Bard standard. 691 (2d Dept. 2009) (affi rming J. Iannacci); Frank v. Court against, among others, Defendant the protection aff orded by the vicious Whether it be through the potential Eaton, 54 A.D.3d 895 (2d Dept. 2008) (affi rming J. veterinary clinic, alleging it knew the dog propensities notice requirement, and client’s own testimony, affi davits of Parga); Christian v. Petco Animal Supplies Stores, Inc., 54 A.D.3d 707 (2d Dept. 2008) (affi rming J. Galasso); had vicious propensities, and failed to that the absence of such notice did not prior victims of the same dog, materials exercise due care by bringing an agitated Galgano v. Town of North Hempstead, 41 A.D.3d 536 require a dismissal of Plaintiff ’s claim. obtained through FOIL requests or (2d Dept. 2007) (affi rming J. Galasso); Drakes v. and distressed dog into the waiting area Further, the Court held a negligence otherwise, it is imperative to thoroughly Bakshi, 175 A.D.3d 465 (2d Dept. 2019) (affi rming J. that was improperly restrained with a claim may lie against Defendant because investigate these cases so as to build a Cozzens). loose collar.15 questions of fact existed as to whether suffi cient factual record of admissible 14. 35 N.Y.3d 541 (2020). Defendant moved for summary Plaintiff ’s injury was foreseeable and evidence to oppose summary judgment 15. Id. at *1. 16. Id. at *2. judgment dismissing Plaintiff ’s whether Defendant took reasonable on the issue of whether or not the owner 17. Id. at *2–3. complaint, asserting it had no prior steps to discharge its duty of care to knew or should have known of the dog’s 18. Id. at *2. knowledge of the dog’s vicious Plaintiff 17. The Court reasoned that vicious propensities. Especially in light of 19. See n.5, supra.

to do anything in the way of trials and 1. Berman, Mark A. “Remote Depositions in State 4. Index No. 155531/2017 (Sup. Ct., N.Y. Co. May Trials ... Court: Can they be Compelled?,” New York Law 28, 2020). hearings. Until we have the requisite Continued From Page 14 Journal (Nov. 3, 2020). 5. Index No. 028136/2019 (Sup. Ct., Bronx Co. June authority, I see backlogs being created 2. American Bank Note v. Daniele, 81 A.D.3d 500 (1st 24, 2020). reality on the ground is that we are where there were none and trial-ready Dept. 2011). 6. MacDonald and Clinton v. Pantony et al, Index No. 3. Rodriguez v. Infi nity Insurance Company, 283 A.D.2d 612715/2017 (Sup. Ct., Nassau Co. May 28, 2020). working without a viable set of rules or cases getting older by the day. The time 969 (4th Dept. 2001); Farrakhan v. NYP Holdings, 226 7. Matter of Haydee F. v. ACS-NY, Index No. G-15246- guidelines and no one is being ordered to act is now. A.D.2d 133 (1st Dept. 1996). 19 (Fam Ct., N.Y. Co. Oct. 28, 2020). LAWYER TO LAWYER APPEALS AND COMPLEX LITIGATION APPELLATE COUNSEL CONSTRUCTION LAW

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