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TSUFFOLK L AWYER THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION Vol. 28 No. 1 DEDICATED TO LEGAL EXCELLENCE SINCE 1908 website: www.scba.org November 2012 P h o t o c o

INSIDE… From Suffolk County to Scotland - u r t e s

November 2012 y o

FOCUS ON COMMERCIAL f Two Attorneys’ Whirlwind Adventure H o

ORPORATE AW n & C L . ______P r Point, Long Island and my father, a building u d e

By Hon. A. Gail Prudenti n

contractor, was closing on a house. Being t

Business arbitration a handicap? ...... 9 i Piercing the corporate veil ...... 8 I distinctly recall the moment when I real - somewhat inquisitive for a five year old, I Think before you cease and desist ..... 6 ized that I would become an attorney. I was happened to notice that my father was the a five year old girl growing up in Blue only person in the room not represented by Pro Bono requirements for law a lawyer, and it stuck with me. Neither at students ...... 3 that time, nor over the course of my subse -

Author’s Night at SCBA P quent 34 year career as a lawyer, including Judge Madeleine Fitzgibbon Retiring .7 h o

t 21 years as a judge, did I ever dream that I o b

y would witness the opening of a spectacular A r

t library at my alma mater, speak in a lecture S

h hall before hundreds of Scottish scholars Honorable A. Gail Prudenti and her hus - u l m and officials, and meet Her Majesty, the band, attorney Robert Cimino meeting the a n Queen of England, all in one week. Queen of England. Nevertheless, this is exactly what hap - my wonderful husband of 33 years and a pened during my recent whirlwind trip to fellow lawyer, Robert Cimino, was equally Scotland. Having attended law school at as excited to explore the infinite golfing Scotland’s University of Aberdeen, I was opportunities that Scotland has to offer. Vacation in Africa ...... 13 invited by its current Principal, Professor But this was not to be our only adventure Automated membership ID cards here .4 Ian Diamond, to attend the official opening on this trip. I was informed by the Former SCBA President (1983-86) of the University’s Sir Duncan Rice Library. Judiciary’s partners from the Center for Honorable Frederic Block, Senior US My tremendous excitement to return to Court Innovation that Scotland was in the District Judge of the Eastern District of NY, speaking about his book, Disrobed , at Scotland B the site of so many wonderful early stages of exploring problem-solving a recent Author’s Night at the SCBA. The memories for me B became utterly uncon - justice reform, and that Scottish judges principal sponsor for the evening was tainable once I learned that the library was (some of whom are called “sheriffs”), offi - Lamb & Barnosky, LLP. (See more photos to be opened by none other than Her cials and scholars were keenly interested in on page 16.) Majesty, the Queen of England. Meanwhile, (Continued on page 24) PRESIDENT’S MESSAGE Tribute to Levon Helm ...... 18 BAR EVENTS Book review – Disrobed ...... 12 Meet Your SCBA Colleague ...... 3 SCBA photo album ...... 16 ______Be a Pro Bono Legal Articles Academy Offering Securitized Mortgage American Perspectives ...... 23 Attorney for a Animal Law ...... 15 Foreclosures, Part one Bench Briefs ...... 4 November 19, 6 to 9 p.m. Consumer Bankruptcy ...... 19 Returning Vet $150 for two parts or $85 for one part ______Court Notes ...... 8 Bar Center By Arthur E. Shulman Arthur Shulman Education ...... 10 Learn new foreclosure strategies. Elder ...... 22 6 mcle for completion of 2 parts. I am happy to report that the Suffolk County Bar Association Is doing very Estate Planning ...... 10 Part two is January 14 Immigration ...... 23 well and that the enthusiasm and participation of our members in the many Land Title ...... 12 Bar Association functions is overwhelming. Pro Bono ...... 15. On September 20, I had the great pleasure of celebrating my birthday at the Bar Association along with my wife, Ruth, when we attended an SCBA- Academy Offering Real Estate (Lieb) ...... 18 sponsored author’s night at which time the Hon. Frederic Block, Senior Real Estate (Wallshein) ...... 20 Lawyers Helping Lawyers United States District Judge of the Eastern District of New York and a past November 16, 10 to 4 p.m. Technology ...... 5 president of the SCBA, spoke about his new book, Disrobed , an inside look A training program for all lawyers on helping Trusts and Estates (Cooper) ...... 19 at the life and work of a federal trial judge. Trusts and Estates (Harper) ...... 21 Judge Block’s comments about his book were riveting and extremely those suffering from addiction, depression and Vehicle and Traffic Law ...... 14 entertaining, especially his experiences concerning the many high profile other mental health issues. Views from the Bench ...... 4 cases in which he was involved in his early years as a young attorney in Bar Center ______Suffolk County and the issues he dealt with during his year as President of $60, 5 mcle Academy News ...... 32 the SCBA. I was all set to begin reading his book the next day, but my wife Among Us ...... 7 got to it first and enjoyed it immensely. All I heard for the next week while Book Review (McSweeney) ...... 22 she was reading the book was “Did you know this? or “Did you know that SCBA Holiday Party Calendar: Academy ...... 32 Judge Block was involved in this?” By the time she finished the book, I Friday, December 7, 4 to 7 p.m. Calendar: SCBA ...... 2 almost felt that I had already read the book. At the bar center. CLE offerings ...... 28-29 I’d like to offer my special thanks to the law firm of Lamb & Barnosky Freeze Frame ...... 17 (Continued on page 24)

COMFOMCEURSCOIAN L & CORPORATE LAW

SPECIAL EDITION 2 THE SUFFOLK LAWYER — NOVEMBER 2012 Suffolk County O“TheupurrposeMs andiobsjesctsifoor wn hich the Association is established shall be cul - tivating the science of jurisprudence, promoting reforms in the law, facilitating Bar Association the administration of justice, elevating the standard of integrity, honor and courtesy in the legal profession and cherishing the spirit of the members.” 560 Wheeler Road • Hauppauge NY 11788-4357 Phone (631) 234-5511 • Fax # (631) 234-5899 E-MAIL: [email protected] Join Our Leadership Board of Directors 2012-2013 The Nominating Committee of the Suffolk County Bar Association is seek - ing involved leaders interested in running for the following positions: presi - Arthur E. Shulman ...... President dent elect; first vice president; second vice president; treasurer; secretary; four Dennis R. Chase ...... President Elect (4) directors (terms expiring 2016) and three (3) members of the Nominating William T. Ferris III ...... First Vice President Committee (terms expiring 2016). The Nominating Committee is accepting Donna England ...... Second Vice President résumés from that interest in these leadership positions. Résumés may be sent John R. Calcagni ...... Treasurer to the Executive Director at the SCBA, marked for the Nominating Patricia M. Meisenheimer ...... Secretary Committee. Michael J. Miller ...... Director (2013) Hon. William B. Rebolini ...... Director (2013) The members of the Nominating Committee are: John L. Buonora, Ilene S. Wayne J. Schaefer ...... Director (2013) Cooper, Hon. John M. Czygier, Jr., Annamarie Donovan, Scott M. Karson, Thomas J. Stock ...... Director (2013) Hon. Peter H. Mayer, Matthew E. Pachman, Sheryl L. Randazzo and Ted M. Hon. Andrew A. Crecca ...... Director (2014) Rosenberg. Diane K. Farrell ...... Director (2014) -- LaCova Hon. John Kelly ...... Director (2014) William J. McDonald ...... Director (2014) Hon. James P. Flanagan ...... Director (2015) Allison C. Shields ...... Director (2015) Harry Tilis ...... Director (2015) Important Information from the Lawyers Committee on Alcohol & Drug Abuse: Glenn P. Warmuth ...... Director (2015) Ilene S. Cooper ...... Past President Director (2013) Thomas More Group Sheryl L. Randazzo ...... Past President Director (2013) Matthew E. Pachman ...... Past President Director (2013) Twelve-Step Meeting Sarah Jane LaCova ...... Executive Director Every Wednesday at 6 p.m., Parish Outreach House, Kings Road - Hauppauge All who are associated with the legal profession welcome. LAWYERS COMMITTEE HELP-LINE: 631-697-2499 All meetings are held at the Suffolk County Bar Association Bar Center, unless otherwise specified. SCBA Please be aware that dates, times and locations may be changed because of conditions beyond our control. Please check the SCBA website (scba.org) for any changes/additions or deletions which may occur. E For any questions call: 631-234-5511. H ar T SUFFOLK LAWYER OF ASSdOCIATION MEETINGS AND EVENTS LAURA LANE n Publisher e Editor-in-Chief al Long Islander Newspapers C DOROTHY PAINE CEPARANO in conjunction with November 2012 Academy News The Suffolk County Bar Association Leo K. Barnes, Jr. 5 Monday Executive Committee, 5:30 p.m., Board Room The Suffolk Lawyer is published monthly, except for the months of Maria Veronica Barducci July and August, by The Long Islander Newspapers under the auspices 7 Wednesday Appellate Practice Committee, 5:30 p.m., Board Room Eugene D. Berman of The Suffolk County Bar Association.© The Suffolk County Bar Military & Veterans Committee, 5:30 p.m., EBT Room Alison Arden Besunder Association, 2011. Material in this publication may not be stored or John L. Buonora reproduced in any form without the express written permission of The 9 Friday Labor & Employment Law Committee, Dennis R. Chase Suffolk County Bar Association. Advertising offices are located at The 8:00 a.m., Board Room Elaine Colavito Long Islander, LLC, 149 Main Street, Huntington, NY 11743, 631- 14 Wednesday Elder Law Committee, 12 noon-2 p.m., Great Hall Ilene S. Cooper 427-7000. James G. Fouassier Education Law Committee, 12:30 p.m., Board Room Justin Giordano Send letters and editorial copy to: Real Property Law Committee, 6:30 p.m., Board Room Robert M. Harper The Suffolk Lawyer 19 Monday Board of Directors Meeting, 5:30 p.m., Board Room David A. Mansfield Patrick McCormick 560 Wheeler Road, Hauppauge, NY 11788-4357 26 Monday Surrogate’s Court Committee Meeting, 6:00 p.m., Lance R. Pomerantz Fax: 631-234-5899 Board Room Craig D. Robins Website: www.scba.org 27 Tuesday Solo & Small Firm Practitioners Committee, 4:30 p.m.- Allison C. Shields E.Mail: [email protected] Frequent Contributors 6:00 p.m., Board Room or for Academy news: [email protected] 28 Wednesday Professional Ethics & Civility Committee, 6:00 p.m., The articles published herein are for informational purposes only. They do not reflect the opinion of The Suffolk County Board Room Bar Association nor does The Suffolk County Bar Association make any representation as to their accuracy. Advertising contained herein has not been reviewed or approved by The Suffolk County Bar Association. Advertising content does not reflect the opinion or views of The Suffolk County Bar Association. December 2012

3 Monday Executive Committee Meeting, 5:30 p.m., Board Room The Suffolk Lawyer 5 Wednesday Appellate Practice Committee, 5:30 p.m., Board Room USPS Number: 006-995) is published monthly except July and August by Long Islander, LLC, 149 Main Street, Huntington, NY 11743, under the auspices of the Suffolk County Bar Association. Entered 7 Friday SCBA Holiday Party, 4:00 p.m.-7:00 p.m., Great Hall as periodical class paid postage at the Post Office at Huntington, NY and additional mailing offices 12 Wednesday Elder Law Committee, 12 Noon-2 p.m., Great Hall under the Act of Congress. Postmaster send address changes to the Suffolk County Bar Association, Education Law Committee, 12:30 p.m., Board Room 560 Wheeler Road, Hauppauge, NY 11788-4357. 14 Friday Labor & Employment Law Committee, 8:00 a.m., Board Room 17 Monday Board of Directors Meeting, 5:30 p.m., Board Room To Advertise in 19 Wednesday Professional Ethics & Civility Committee, 6:00 p.m., The Suffolk L awyer Board Room Call Real Property Committee, 6:30 p.m., EBT Room (631) 427-7000 THE SUFFOLK LAWYER — NOVEMBER 2012 3 Pro Bono Requirements for Law Students Announced ______legal services pursuant to subdi - ations. In the case of the new Administration is still working on a title By John L. Buonora visions two and three of section pro bono rule that job will be for his new unpaid position . Czar, director, In last month’s Suffolk Lawyer article, 484 of the Judiciary Law… . filled by Lawrence Raful, pro - commissioner or similar terms might be a Touro, Turning Law Students into Lawyers, Section 484 of the Judiciary fessor and immediate past dean little too grandiose for Larry. Speaking of we discussed the numerous clinic and Law provides that only attor - of Touro Law Center. (For pur - titles, have you ever noticed that the externship programs available to students neys may practice law in New poses of this article let’s call longer more impressive sounding a title is at Touro Law Center and the provisions of York State with the exception him Dean Raful. I still refer to the less important the job. Sometimes the Court of Appeals/Board of Law Examiners (in pertinent part) of current law retired judges as Judge, but I most important person has the shortest Rule 520.3 that allow law students to earn students or graduated law stu - digress). Dean Raful’s general title, for instance, President. I’m reminded credits in clinic and externship programs to dents who can practice pursuant job description is to oversee the of the old TV sitcom Cheers when Woody be applied toward the 83 credits required to to a program approved by the implementation of the rule Boyd , the bartender played by Woody be eligible for the Bar examination. As we appellate division . It is the provi - John L. Buonora throughout the entire state. As Harrelson , wanted a raise from Sam discussed previously, clinics and extern - sions of Section 484 that allows students reported in a recent New York Law Journal Malone played by Ted Danson. Instead he ships allow students to experience the in clinics and externships to practice in the article he has been described by Paul was offered a promotion to something like everyday practice of law both in the courts courts or otherwise to represent clients or Lewis, Chief of Staff to First Deputy State Chief Deputy Assistant Bar Manager. Ego and in transactional situations. other parties in interest as well as allowing Administrative Judge Lawrence Marks as having triumphed over practicality, On the day the October issue of the graduated students who have not yet been the point person in dealing with law Woody accepted the new title without the Suffolk Lawyer went to press Court of admitted to practice under designated con - schools, law firms, legal service providers raise (But again, I digress). Appeals Chief Judge Jonathan Lippman ditions (e.g. Jr. Assistant District and others who have questions about the A large part of Larry’s job will be to announced Rule 520.16 , a new rule requir - Attorneys). new requirement. determine what type of work qualifies for ing law students to complete 50 hours of I recently met with Dean Raful in his pro bono treatment. pro bono service prior to their application The start up date modest office in a suite of faculty offices “Obviously, if you painted a house for for the New York State Bar Examination. The effective date of the new Section at Touro. On the floor leaning against the Habitats for Humanity that wouldn’t qual - These two developments , the availability 520.16 is presently scheduled for January wall were pictures and plaques yet to be ify, ” Larry said . “ It’s clearly not legal of clinics and externship programs and the 1, 2013. Present third year students are hung. On the table top amongst plenty of assistance as set forth in the Rule. ”Other impending requirements that law students exempted from the Rule. In other words , paperwork yet to be filed were the picture situations may be less clear. For instance, complete 50 hours of pro bono work as a those students eligible to take the bar hangers waiting to be used. Numerous would the hours spent in the courts and requirement to take the Bar examination , exam after January 1, 2014 will have to books and scholarly treatises on legal prosecutors’ offices that extern/law assis - are related and will be the subject of this comply. As I understand it, current first ethics and other subjects also were occu - tants in the Advanced Criminal discussion. and second year students will have a short - pying significant space as the Dean tried Prosecution Externship program spend Without getting too wonky let me say er period to satisfy the 50 hour require - to figure out a place to shelve them. qualify? Tentatively, I would say yes , that Rule 520.16 defines pro bono service ment than students entering law school Somewhere under the paperwork was a although they might not qualify for credit as supervised pre-admission law related after the effective date of the Rule. stapler that Larry, (oh well, let’s call him towards Touro’s pro bono requirements work for persons of limited means; not for Larry), handed me to staple the pages of a (More about that below). Formally what profit organizations; or individuals, The point person Nassau County Bar Association report on will or will not qualify has yet to be deter - groups or organizations seeking to secure The implementation of new legislation the new rule (More about that later). I have mined. Law schools will be reviewing or promote access to justice…. or administrative rules is often a work in always felt that the best doctors seemed to their programs to ensure that their pro - Pro bono service is further defined as progress even after the effective date. As have the most modest and unpretentious grams will satisfy the new rule. providing legal assistance in public ser - with most definitions set forth in a statute offices. I think the same may apply to law Presently at Touro a student is required to vice for a judicial, legislative, executive or or rule there would still be a need for inter - professors as well (But I digress) . complete 40 hours of pro bono work as a other governmental entity…; or providing preting their application in particular situ - As of this writing, the Office of Court (Continued on page 25)

Joseph Mauro is a consumer attorney focusing his practice on debt collection, harassment, and credit reporting. Groomed to go into law enforcement , he took a different path, but in some respects he is still carrying on the family tradition.

_M______e____e__ t Your SCleBad yoAu to whCat yoou doltlodeay?ague It sounds like unscrupulous debt collec - I found By Laura Lane that either the client or I on behalf of the tors can pack a mean arsenal. They client was working with debt collectors. threaten rape, violence, make sexual and Even though you aren’t a police officer And there was a lot going on that raised a racial comments, threaten to take people’s you are still a law enforcer of sorts. Yes serious suspicion with me that at least cars, houses and even threaten to have I did end up joining my relatives in a way. some of what they were doing was not people arrested. I run into many people I come from three generations of police legal. I realized they could be sued for that are very frightened and unfortunately officers and to some degree I see my job as what they were doing they don’t know what their rights are. law enforcement. I wound up in a prose - cutorial area of law. Debt collection Sounds like things can get a bit dicey. Has social media altered the playing harassment is a misdemeanor crime in Not many attorneys do this. I enjoy the cat field? I think the internet has helped and New York but police don’t have the funds and mouse aspect of it and it’s very inter - hurt consumers. Debt collectors use social to pursue it. The statute permits private esting. The laws are changing constantly media to gather information about con - attorney generals to enforce these laws in and it is a constant battle to keep up with sumers and use it against them. They call the justice system. the laws as well as the debt collectors the friends, relatives and co-workers and attempts to avoid the laws . tell them they are looking to collect a debt. You received a master’s degree before But on the other hand the internet has going to law school. What made you Do you enjoy reading detective novels helped consumers by educating them. decide to become a lawyer? Money was and thrillers? No. I’m a big reader but I They can find out that the person harass - one reason and independence. I’m proba - actually like humor. Some of my cases are ing them lives in another state. bly not cut out for a more structured regi - very contentious putting me in some ques - mented type of employment. I thought I’d tionable situations which are like detective You’ve appeared on Nightline and go into some sort of government job novels. There is a breed of debt collectors ABC’s 20/20. Why? I appear on these maybe ending up in the Attorney Generals who are an inch away from being felons. It shows because they educate the general joseph Mauro office but I decided to become an attorney is a rough world. But I want to make it public that this stuff is illegal. It shows instead. After law school I immediately clear that there are a lot of legitimate, well them that there is an avenue of relief programs in New York. It is a virtual uni - went into my own practice. I’ve always meaning debt collectors – attorney and and that you can’t take it on face value versity and you are learning from actual been on my own, never worked with a firm non-attorney. They practice professional - what someone is telling you over the practitioners. or a partner. ly. I’m talking about unscrupulous debt phone. collection. Besides the opportunity to take great How did you end up as a consumer When did you join the SCBA? I became CLE courses is there any other reason attorney? I worked as a matrimonial How busy are you with this type of law? a member in 1996. From the beginning I you’d recommend that someone join attorney for six to seven years which was There are tons of people in trouble. This got involved in the invaluable education the SCBA? Y ou gain access to other quite an introduction to the legal profes - field is important in the current economic that is offered at the Academy. You can professionals. Being a member will sion. You aren’t seeing people at their best state with so many people jobless and los - practice in any field you want after law ground you and just to reiterate once and you see a lot of heartache. ing their homes. A lawyer can turn the school but law school does not teach you again, the CLE programs are excellent. I pressure off from the debt collectors. the “how to,” it teaches you theoretical believe they should be a model for the How did being a matrimonial attorney There are a lot of victims. law. The SCBA has one of the best CLE entire country. 4 THE SUFFOLK LAWYER — NOVEMBER 2012 VIEW FROM THE BENCH Not so Obvious Mistakes in Criminal Trials – Closing Arguments Failure to object during summation found ineffective assistance of counsel ______ingful representation ,” not perfect unsuccessful, it will not fall to the timony was unreliable because he learned By Hon. Stephen L. Ukeiley lawyering. People v. Baldi , 54 level of ineffective assistance .” A of the details of the crime from reviewing Note: This is the second part of a two N.Y.2d 137, 147 (1981). Indeed, showing of prejudice, while sig - legal papers in defendant’s possession part series. the Court of Appeals has reasoned nificant, is not required to sustain rather than actual statements made to him that errors at trial are often over - the claim. See People v. Stultz , 2 in jail. Id . Defendant further claimed his In Part I, atypical errors during jury looked because “counsel’s efforts N.Y.3d 277, 284 (2004). 1 nieces fabricated the claims for fear of selection of a criminal case were dis - should not be second-guessed To use a sports analogy, the deci - their physically abusive mother who had cussed. This month’s issue focuses on with the clarity of hindsight.” See sion to allow the starting pitcher to stolen money from the defendant while errors during closing arguments. People v. Turner , 5 N.Y.3d 476, continue to pitch during the ninth incarcerated. Fisher , 18 N.Y.3d at 965. In what appears to be a case of first impres - 480 (2005). inning of a close game may be sec - sion, the Court of Appeals recently reversed a The court will vacate a convic - ond-guessed. However, except in Defense counsel has a duty to object conviction because defense counsel failed to tion for ineffective assistance of Stephen L. Ukeiley unusual situations, there is no way during closing argument object during the prosecutor’s summation. counsel where clearly inferior representation of determining whether the same result would It is well-established during summation See People v. Fisher , 18 N.Y.3d 964 (2012). results in a serious impairment to the defen - have occurred had a different course of action counsel may not stray from the evidence or The court concluded defense counsel’s inac - dant’s right to a fair trial. See generally been taken. While the topic may make great draw conclusions that may not reasonably tion “[d]eprived defendant of the right to People v. Benevento , 91 N.Y.2d 708, 712-13 debate on sports radio, no one truly knows be inferred from the admissible evidence. effective assistance of counsel”. Id . at 967. (1998). In other words, provided defense whether the proper decision was made. In addition, the prosecutor may not “[l]ead counsel’s conduct “[r]eflects a reasonable Similarly, in a courtroom there is no fea - the jury away from the issues by drawing Ineffective assistance of counsel and legitimate strategy under the circum - sible manner for assessing whether a par - irrelevant and inflammatory conclusions A criminal defendant is entitled to “mean - stances and evidence presented, even if ticular piece of evidence or which of the which have a decided tendency to prejudice hundreds, if not thousands, of decisions the jury against the defendant .” See People made by counsel during the course of a v. Ashwal , 39 N.Y.2d 105, 109-10 (1976). trial was decisive. While experts may pon - In Fisher , at the conclusion of the trial, SCBA Announces Automated Membership ID Cards tificate and opine with respect to strategies defense counsel gave an impassioned clos - After an idea came to the SCBA from smart phone, computer or Ipad. The ID most similarly situated attorneys may have ing argument. The prosecutor objected one of our members regarding the deliv - card’s embedded QR code carries the utilized, the reality is that only the jurors three times, only one of which was sus - ery of a member ID card by e-mail member’s ID number and name can be know why a certain verdict was reached. tained. The prosecutor followed with an rather than snail mail, Barry M. read by any QR code reader. It can even Perhaps an oversimplification, but this emotional argument of her own which Smolowitz, Esq. the SCBA’s Director of be read by a reader if the ID card is highlights the difficulty in applying an included several misstatements and inap - Technology ran with the idea and devel - merely displayed on the screen of the oped a system where our members can smart phone or Ipad, thereby eliminating objective standard to a subjective process. propriate comments. Defense counsel did now receive their ID card directly from the need to carry a printed card. The QR Thus, for good reason courts generally not make a single objection. the SCBA website member portal. The code will allow the SCBA and SAL to proceed cautiously when defense coun - The Court of Appeals noted the objec - newly designed card now includes the process various transactions in the sel’s trial strategy is questioned. tionable statements during the prosecutor’s member’s photo (if one is on file) as future, as well as track CLE attendance closing, including : encouraging inferences well as incorporating QR code technolo - in accordance with the NYS CLE People v. Fisher of guilt based on facts not in evidence; bol - gy. The new ID cards went live on requirements. The hope is that this new In Fisher , the defendant was sentenced stering the nieces’ testimony with the state - October 16, 2012. feature, once fully implemented, will to 20 years in prison following his convic - ment that they told the same story “over, Barry suggested that we move away expedite the signing in and out process tion for multiple sex offenses, including and over and over again” to police, social from the plastic ID card and instead of CLE programs, and eliminate the need the molestation of his two nieces. It is workers and doctors; suggesting the niece’s implement a newly designed Electronic for the submission of the attendance Membership ID Card. The SCBA quick - form. noteworthy that the prosecution did not subsequent misconduct constituted evi - ly realized that the new system saves the Any member wishing to obtain their introduce a physician’s report confirming dence of the crime; materially diminishing association the annual cost of producing ID card can do so by merely logging into the injuries at trial. In addition, the prose - the value of the consideration offered the and mailing an annual ID card or sticker. the SCBA website as a member where cution’s witnesses included a jailhouse jailhouse informant; and stating the “[d]ay The new method of delivery is simple they will now find a link in their member informant, a convicted murder, who was the voice of a child is not evidence is the and allows a member to print, save or profile allowing them to download their promised a favorable letter to the Parole day ...[the courtroom] should be locked for - transfer their current ID card to any membership card. Board in exchange for his testimony. ever .” Fisher , 18 N.Y.3d at 966-67. The defense claimed the informant’s tes - (Continued on page 30)

BENCH BRIEFS ______§3126 awarding costs and fees to defendant’s attorney was Motion pursuant to CPLR §§510(1) and By Elaine Colavito the defendant for plaintiff’s fail - informed that plaintiff was ill and 511(a), transferring the venue of the Suffolk County Supreme Court ure to appear at deposition grant - would not be appearing for the action from Suffolk County to Nassau ed; court has the discretion to deposition. Defendant’s attorney County granted; it was undisputed that all Honorable Paul J. Baisley, Jr. impose a sanction of attorney’s placed a statement on the record parties resided in Nassau County and the Motion to vacate default judgment fees based upon a party’s failure noting plaintiff’s default in accident occurred in Nassau County . denied; proper remedy was to appeal . to appear for a deposition . appearing and reserving the defendant’s right to a continued In Veenu Puri v. Jessica Rae Solomon and In David J. Felix, M.D. and Claire M. In Karen Muno, as Executrix of deposition and to seek costs and Nancy H. Solomon, Index No.: 8245/12, Felix v. Thomas R. Stachecki General the Estate of Joseph Sopata, and expenses incurred in connection decided on June 15, 2012, the court granted Contracting, LLC, Thomas R. Stachecki, the Estate of Joseph Sopata v. J.P. with the aborted deposition. In defendants’ motion pursuant to CPLR Robin A. Blackley, The Corcoran Group, Morgan Chase and “John Doe” Elaine Colavito rendering its decision, the court §§510(1) and 511(a), transferring the venue Inc., Law Offices of Kovan & Krausz, 1-10 and “Jane Doe” 1-10, Index No.: noted that it was well established that the of the action from Suffolk County to Nassau Mordchai Krausz, Agawam Realty, Ltd., 42011/08, decided on August 15, 2012 the court had the discretion to impose a sanc - County on the basis that the venue selected Joan Robinson and Paul Robinson , Index court granted defendant, J.P. Morgan Chase tion of attorney’s fees based upon a party’s by the plaintiff was improper. The court No.: 31346/10, decided on August 15, Bank, N.A., s/h/a J.P. Morgan Chase’s failure to appear for a deposition. The court noted that the plaintiff commenced the 2012, the court denied defendants’ motion motion for an order pursuant to CPLR held that the defendant was entitled to instant action in Supreme Court, Suffolk for an order pursuant to CPLR §5015 §3126 awarding costs and fees resulting recover the following costs and expenses: County on March 15, 2012 to recover dam - vacating the default judgment granted from the continued deposition of plaintiff $150.00 charges by the court reporter for ages allegedly sustained in a motor vehicle against the movants on October 25, 2011. Karen Muno as Executrix of the Estate of the appearance; legal fees of $534.00 for accident which took place on June 17, 2011. In rendering its decision, the court noted Joseph Sopata to the extent that defendant one attorney to attend the deposition and Although the summons identified Suffolk that the submissions established that was awarded costs and fees totaling place the default statement on the record, as County as the place of trial, it did not spec - plaintiffs’ cross-motion for a default judg - $731.85. The court pointed out that the sub - well as the travel costs of $47.85 for one ify the basis of venue designated. It was ment was opposed by the moving defen - missions reflected that after numerous attorney. The court found that defendant’s undisputed that all parties resided in Nassau dants’ attorney of record. In light of the adjournments, the deposition of plaintiff submissions did not, however demonstrate County and the accident occurred in Nassau foregoing, the court found that defen - Karen Muno was commenced on its entitlement to recover for legal fees for County. As such, plaintiff’s designation of dants’ proper remedy , if they were November 4, 2011 but was adjourned after “preparation” for the deposition, which venue was improper. Since the plaintiff aggrieved by the default judgment entered two hours of testimony when plaintiff com - would have been required whether the selected the improper venue for the action in against , them was to appeal rather than plained of back pain and announced that she deposition proceeded on February 28 or on the first instance, she was deemed to have move to vacate. was unable to continue. The continued a later date, or for duplicative services per - forfeited her right to choose the place of deposition was scheduled for February 28, formed by two attorneys. venue and the defendants having followed Motion for an order pursuant to CPLR 2012, however shortly before 9:00 am (Continued on page 30) THE SUFFOLK LAWYER — NOVEMBER 2012 5 TECHNOLOGY Is Twitter for You? ______line.” Twitter defines the timeline “Improvement requires continuous tweets about the U.S. Supreme Court and if By Glenn P. Warmuth as “a long stream showing all effort” to his 5,194,848 followers. you search Twitter for #medicare you will There is little about Twitter that makes it Tweets from those you have cho - You should be mindful of the find tweets about Medicare. Clicking on a particularly useful to attorneys in general. sen to follow on Twitter.” many imposters on Twitter. It can hashtag in a tweet will bring up other Twitter isn’t likely to help you market your There are many ways to find be difficult to determine whether tweets which contain that hashtag. firm and Twitter is spotty as a source of users to follow. The easiest way the owner of a Twitter account is Inserting a hashtag into a tweet lets other information about developments in the law. to start is to use Twitter’s genuine because anyone can users know that the tweet is part of a par - Nevertheless, Twitter is a major force in the “search” feature which is found choose any unregistered user - ticular discussion and makes it more likely world of social media and attorneys should at the top of the user’s Twitter name. Twitter’s policy is to that the tweet will be read by an audience understand what it is, how it works and homepage. A search for “Bar revoke an imposter or squatter beyond the user ’s followers. what it can do. Association” yields a list of account only upon the showing Lady Gaga @ladygaga has 29,796,803 Twitter defines itself as “an information about 20 users including The of trademark infringement. This followers on Twitter and during the time I network made up of 140-character mes - American Bar Association Glenn P. Warmuth is often difficult to show and, as wrote this article she gained hundreds of sages called Tweets.” This is an accurate @ABAesq which has 12,103 fol - such, many imposter accounts thousands of additional followers as she but not very helpful definition. Let’s start lowers and The New York State Bar remain active. Twitter has implemented a tweeted photos of herself in her underwear. with the basics. You can post messages or Association @NYSBA which has 2,197 verification system by which certain users Attorneys will find it more difficult to build “tweets” and you can read tweets which followers. These organization tweet about are assigned a check mark located in a blue such a strong following. For attorneys , have been posted by others. That’s Twitter member benefits, law updates, etc. circle next to their username. The check using Twitter as a marketing tool requires in a nutshell. There are other things you can Another way of finding users to follow is mark means that Twitter has “verified” that frequently tweeting and commenting on do like tweeting pictures and sending pri - to read tweets and look for “mentions.” A a “legitimate source is authoring the other user’s tweets . This is a lot of work vate messages but posting short messages mention is the use of a user name within a account’s Tweets .” Twitter does not take and a heavy investment of time which may and reading short messages is the majority tweet. For example, if I were to tweet : “I requests for verification. Instead, it inde - be better spent on other types of marketing. of what you do with Twitter . am at the debate with @BarackObama and pendently identifies which “highly sought A search on Twitter for “Suffolk County In order to use Twitter , users need a @MittRomney” you could then click users” and “business partners” will be ver - Attorney” yields only three results. In con - Twitter account. The easiest way to get @BarackObama or @MittRomney where ified. @DalaiLama is a verified account so trast, a Google search for “Suffolk County started is to go to www.twitter.com. those usernames appear in my tweet. you can be sure that those tweets are from Attorney” yields 1,290,000 results includ - Creating an account is simple and requires Twitter then gives you the option to follow His Holiness. ing websites for most local firms. the creation of a username. Each username them. But beware, following these politi - Many Twitter users, like me, never tweet. Despite my views with respect to the use - is unique. Therefore, there can only be one cians will subject you to an endless barrage I only use Twitter to follow what other fulness of Twitter to attorneys I must empha - user with the username Glenn_Warmuth - of policy statements and donation requests . users are tweeting. I have no audience that sizes the importance of Twitter in general. that would be me. Choosing a good user - Twitter also recommends people you might I need to speak to on Twitter. I have no fol - Twitter has over 500,000,000 users and has name is important as it will be your first like to follow. Some recommendations are paid lowers. If I were to tweet, nobody would changed the way in which the world com - introduction to other users. There are many promotions for products or services such as receive it. For those who do wish to tweet, municates. Perhaps in time Twitter will articles online which give tips on picking a @brooksrunning, the Twitter account for there is a box on the user’s Twitter home - become a more useful tool for attorneys. good username. On Twitter the “at symbol ” Brooks Running Shoes. Brooks Running pays page with the words “Compose a New or “@” is added to the username to identi - Twitter to recommend @brooksrunning to Tweet...” The user types in their tweet and Note: Glenn P. Warmuth has been work - fy it as a username. So if I were to tell you users. Others are unsponsored recommenda - clicks the tweet button. It is that simple. ing at Stim & Warmuth, P.C. for over 2 5 my Twitter username I would say I am tions such as @DalaiLama, the Twitter account Users can use Twitter to exchange infor - years. He is a Director of the Suffolk County @Glenn_Warmuth. of the Dalai Lama . Twitter recommended mation and ideas about particular topics by Bar Association and an Officer of the Suffolk After creating an account , users can “fol - @DalaiLama to me based on a complex algo - inserting “hashtags ” into their tweets. A Academy of Law. He teaches a number of low” other Twitter users. The effect of fol - rithm which they use to determine who I may hashtag is a keyword with the hashtag sym - courses at Dowling College including lowing another user is that their future tweets be interested in . The Dalai Lama frequently bol “#” in front of it. For example, if you Entertainment & Media Law. He can be will instantly appear in the follower’s “time - tweets inspirational messages such as search Twitter for #scotus you will find contacted at [email protected] .

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The letter states: “I The 30-second clip received NPB’s way-too-serious reaction to the least one standard form in their protective was not thrilled when I saw that 600,000 views in just days and parody of their mark. arsenals against infringement: the “cease you plagiarized this expression was well on its way to receiving Finally, the Nestle matter should advise and desist” letter. For the novice business to support your campaign by even more attention, when the intellectual property attorneys to think owner or individual receiving such corre - using it on posters, your ad was abruptly pulled. carefully before sending out their cease spondence, this can be quite worrisome. Facebook page and as part of Apparently, all that good, free and desist letters, because the backlash of The reason is that such letters do not tend your stump speeches. ” publicity was not worth seeing such action could be much worse than the to merely state, “Knock it off, Buddy,” Another letter, written by the the iPad smashed to bits. Some infringement. Greenpeace posted a graphic they threaten litigation (usually of the fed - attorney for Jack Daniels call this decision by Apple one video on YouTube about how the food con - eral kind) and contain statutory citations, whiskey, was published on the Mona Conway of the biggest business blunders glomerate, Nestle produces palm oil in a which appear to be cryptically forceful. Web this month, touted as perhaps the nicest of 2010. way that negatively impacts an endangered And they surely are packed with a punch. cease and desist letter ever written. It offered Yet another consideration is whether the orangutan population. This is where the Many federal intellectual property statutes to pay the costs of replacing the infringing infringement is just too ridiculous to be battle began. In response, Nestle had the allow for coveted remedies material and thanked the taken seriously. Can sending a cease and video pulled for copyright issues. such as attorney’s fees, costs, infringer for being such a big desist letter be bad for business in addition Greenpeace then fired-up its resolve and treble and punitive damages. FOCUS ON fan of Jack Daniels whiskey, to being a tremendous waste of time and resources by using Facebook to get its Perhaps unlike your run-of- evidenced by the blatant rip-off legal fees? Here is a case in point. Not message across to the public. Nestle then the-mill cease and desist let - COMMERCIAL & of the bottle’s label style. long ago, attorneys for the National Pork made a slew of what it admits to be “rude” ter, the ones served to prevent CORPORATE LAW Another important consider - Board (NPB) sent a 12-page cease and remarks to its Facebook “fans,” which intellectual property infringe - ation for IP counsel is whether desist letter to ThinkGeek, Inc. for using resulted in an onslaught of bad press. In the ment are to be taken most seri - SPECIAL EDITION the infringement is actually a the slogan, “Unicorn – the new white end, Nestle changed its source of palm oil, ously. good thing for the intellectual meat” on its website, thinkgeek.com. The folding under the pressure of consumer Thanks to the ubiquitous mechanism of property holder. What if the infringer’s “infringer” launched the fake product on outrage, which would not have been so transparency which is the Internet, lawyers actions actually resulted in a benefit to the April Fools Day (as a joke, of course). The forceful had it not been for Nestle’s deter - should be mindful at the outset that their holder of some intellectual property right? NPB owns the mark “The Other White mination to fight for its intellectual proper - cease and desist correspondence may be Here is a case in point. A couple of years Meat.” ThinkGeek publically apologized, ty rights. newsworthy. Recently, Mitt Romney ago, Long Island Newsday created a clever albeit sarcastically, by responding, “It was received a cease and desist letter from the ad for the iPad, which, as luck would have, never our intention to cause a national cri - Note: Mona Conway practices business creator of the TV show Friday Night went “viral” on YouTube. The ad says that sis and misguide American citizens law and commercial litigation at the firm Lights in response to Romney’s Facebook Newsday’s iPad app is better than the regarding the differences between the pig Conway Business Law Group, P.C. in photos indicating the tagline: Clear Eyes. paper in all kinds of ways, except for one. and the unicorn.” It seems that the April Huntington. She is also Co-Chair of Full Hearts. Can’t Lose! Although not The video then depicts a man attempting Fools stunt ended up making fools of the SCBA’s Commercial and Corporate Law written by an attorney, the nature of the let - to swat a fly with the device (instead of a NPB when their letter became disclosed to Committee.

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LEGAL MEDIA PUBLISHING 149 MAIN STREET, HUNTINGTON, NY 11743 - 631-427-7000 THE SUFFOLK LAWYER — NOVEMBER 2012 7 SIDNEY SIBEN’S AMONG US Nathaniel Charles, born August Attorneys Leo K. Barnes Jr . Institutional Excellence .” On the Move… 19. Nathaniel weighed in at 7 lbs. and Matthew J. Barnes , found - Michael S. Brady has joined Riverside 11 oz., and is 18-l/2” tall. His ing members of the boutique com - Condolences…. 1031 LLC , overseeing operations for the mom Alexandra and dad Brian mercial litigation law firm Barnes 1031 Exchange Qualified Intermediary are very proud parents. & Barnes, P.C. in Melville, New To the families of long-time active company. As a Certified Exchange York, have been named to the members of the SCBA Adolph H. Siegel Specialist®, Michael will continue to help To the Honorable Randall T. 2012 Super Lawyers list for the and Sheldon D. Katz . clients navigate the treasury regulations Eng , upon his appointment as New York metropolitan area. Last governing tax deferred exchanges, and Presiding Justice of Appellate year, Leo and Matt were named to To C. Donald Shlimbaum and Lark through the company’s affiliate, Riverside Division, Second Judicial the Super Lawyers Rising Stars Shlimbaum on the passing of Donald’s Abstract, Michael will also be assisting Department by NY Governor list, which names the state’s top father, Charles W. Shlimbaum, we send Jacqueline Siben clients with title insurance matters. He Andrew Cuomo on October 1, up-and-coming attorneys. our deepest sympathy. can be reached at [email protected] , 2012. Justice Eng is a former prosecutor and toll free (855)268-6430. with appellate and administrative experi - Edward J. Nitkewicz , senior consul - To the family of SCBA member Fred ence will lead one of the busiest appellate tant at Sanders Sanders Block Woycik Garner , 94 , who passed away. Fred Rick Chalifoux has joined First courts in the nation. Viener & Grossman PC, was recognized joined our Bar Association in 1956 and Republic Trust Company as a Managing in the 2012 edition of NY Super Lawyers practiced law in Huntington for 55 years. Director and Senior Trust Officer, with To Dawn L. Hargraves , Esq., Attorney for his work representing personal injury offices located at 1461 Franklin Avenue, and Partner of Hagney, Quatela, Hargraves plaintiffs and cited for his work as a leader New Members… Garden City. He has recently been certi - & Mari, PLLC, who is being honored as a in the field of education law. fied as an Accredited Estate Planner 2011/2012 Professional Woman of the The Suffolk County Bar Association [AEP] by the National Association of Year in Law by National Association of Announcements, Achievements, extends a warm welcome to its newest Estate Planners and Councils (NAEPC), Professional Women. The prestigious dis - & Accolades… members: Chartrisse A. Adlam, Stephen which is a graduate level specialization in tinction is awarded by the 400,000-strong Albright, Amy F. Altman, Jeffrey V. estate planning. He can be reached at, membership of NAPW who join together James F. Gesualdi , a sole practitioner in Basso, Myra E. Berman, Joseph [email protected] . to develop innovative business and social Islip, whose practice concentrates on ani - Bestreich, Stephanie L. Bogart, Laura relationships . mal welfare (relating to zoos and aquari - Spencer Brennan, Alfred J. Camaiore, Ettore Simeone now has his law firm at ums), spoke at the Canadian Association of Sabato Caponi, Deborah A. Hagelin, the Suffolk Law Center, 228 East Main President Arthur E. Shulman, on behalf of Zoos and Aquariums’ 2012 Conference at John H. Hagelin, David S. Kritzer, John Street, Patchogue. the Officers and Directors wishes to con - the Delta Chelsea Hotel, Toronto, Ontario, H. Lynch, Stephanie Mazzotta, Peter L. gratulate SCBA staff members Mary Canada, on Wednesday, September 26, Rand, Drew W. Schirmer, Sarah M. Jeffrey Mongelli has joined Lamb & Shannon and Tina O’Connor Santiago on 2012. Gesualdi’s presentation, “Examining Sferrazza, Richard M. Sheridan, Sharon Barnosky, LLP as counsel. their 25th anniversary of service and dedi - the Real Sustainability Challenge for Zoos D. Simon and Kevin R. Toole. cation to our Bar Association. Through their and Aquariums” featured a discussion of long years of service they have worked with his project, “EXCELLENCE BEYOND The SCBA also welcomes its newest Congratulations… the utmost efficiency and dependability. We COMPLIANCE™: Making a Difference student members and wishes them success Congratulations to Suffolk Administrative are happy and proud to have this opportuni - in the Implementation, Administration and in their progress towards a career in the Judge C. Randall Hinrichs and Mrs. Laurie ty to honor Mary and Tina for their achieve - Enforcement of the Animal Welfare Act to Law: Sharon Abel, Arthur J. Burdette Hinrichs on the birth of their new grandson ments . Enhance Animal Welfare and Promote and John C. Mooney. District Court Supervising Judge Madeleine Fitzgibbon Retiring ______while never forgetting her role as a public expand her role as a judge. She was By Len Badia servant. In fact, when asked what she appointed as an Acting County Court would miss the most when she retires as the Judge and was assigned to one on the most In 1996 at the State of the World Forum Supervising Judge of the District Court of complex courtrooms in the District Court - Bella Abzug, the outspoken congress - Suffolk County in December, without hesi - Part D 35. There she heard felony and woman from New York’s nineteenth con - tation and with the smiling glint in her eyes misdemeanor cases in an environment that gressional district famously stated “Women that have calmed countless defendants who on a daily basis handles a large mix of will change the nature of Power; Power will stood before her, she remarked “the people .” both incarcerated and at-liberty defen - not change the nature of women .” Judge Fitzgibbon looked fondly back on dants. The courtroom can be a cacophony In 1996 when Congresswoman Abzug those days when she shared a suite with of motions and people and is certainly not made her statement Madeleine Fitzgibbon Judge Salvatore Alamia and her Law the realm of choice for the faint-hearted. had already been working as a District Secretary Terence Carroll. In her classic Judge Fitzgibbon loved it. Court Judge from Babylon. She had been unpretentious style she couldn’t help but She (as Judge Lozito does today) man - appointed to that position to replace Judge comment on Attorney Carroll’s skill at aged her courtroom with clarity and preci - Dounias in January 1994 and was elected to legal writing (something that every lawyer sion. It was not a surprise that in January of the position in November of that year. should envy). In those days the Cohalan 2000 she was appointed as the Supervising Already identified as a leader who was first Court Complex was new and she was Judge of the District Court. In the 12 years hired as a Hearing Examiner in the Family assigned to Part D 61 where she heard all that she has served in that capacity Judge Court’s Part 13 in 1993 Judge Fitzgibbon manner of misdemeanor complaints. Fitzgibbon has indeed changed the “Nature quickly stood out as a jurist that could man - After being elected again in 1997 Judge of Power .” During her 12 year tenure the age the challenges of a busy courtroom Fitzgibbon was again called upon to (Continued on page 27) Judge Madeleine Fitzbibbon 8 THE SUFFOLK LAWYER — NOVEMBER 2012

_P___i_e___r__c__i_n___ g the Corpoorf daointgebusiVnesseinitlhe corporate tion of liability, however, cannot engaged in acts amounting to an abuse or Theodore D. Sklar form, and that there must be a logically be predicated on the perversion of the corporate form, much less A Suffolk County case is rapidly becom - nexus between that conduct and mere fact that the sole sharehold - that the school district was harmed as a result ing one of the leading cases in the State of the wrong alleged to be have been er of a corporation also personal - of such actions.” East Hampton Union Free NewYork on the question of what a plaintiff suffered by the plaintiff. By reit - ly handled the corporation’s School Dist., 16 N.Y.3d at 776. To state a must plead to state a claim to pierce the cor - erating this rule, the Court of business or management. claim for piercing the corporate veil, a plain - porate veil and hold the owner of a corpora - Appeals reinforced the policy that In addition to sufficiently partic - tiff must allege that the actual abuse of the tion personally liable for corporate obliga - businesses can be incorporated in ularized allegations of abuse of corporate form “was a cause of their alleged tions. To the extent that case law had New York for the very purpose of the corporate form, the complaint damages.” Smith v. Delta Intl. Machinery blurred the pleading requirements for a enabling their owners to escape must allege a nexus between the Corp., 69 A.D.3d 840, 842 (2d Dept. 2010). claim seeking to pierce the corporate veil, personal liability, and that the cor - alleged abuse and some harm, the Court of Appeals and the Appellate porate form is not lightly to be dis - Theodore D. Sklar injury or wrong to the plaintiff. Note: Theodore D. Sklar is a partner with Division, Second Department, have spoken regarded. See Treeline Mineola, LLC v. Domination alone, without an additional Esseks, Hefter & Angel, LLP. He argued on that issue. Berg, 21 A.D.3d 1028, 1029 (2d Dept. showing that through such domination the East Hampton Union Free School District In East Hampton Union Free School 2005). The critical inquiry in a case where a defendant “misused the corporate form for its v. Sandpebble Builders, Inc. on behalf of District v. Sandpebble Builders, Inc., 16 plaintiff is seeking to impose personal liabil - personal ends so as to commit a fraud or the construction manager, Sandpebble N.Y.3d 775 (2011), the plaintiff school dis - ity on an owner is whether in respect to the wrongdoing or avoid any of its obligations,” Builders, Inc., in the Appellate Division trict tried to hold the owner of the district’s transaction at issue, the plaintiff has suffi - is insufficient to warrant piercing the corpo - and in the Court of Appeals. His legal construction management company person - ciently pleaded: (1) domination and control, rate veil. See TNS Holdings, Inc. v. MKI career encompasses 30 years of experi - ally liable for an alleged breach of contract. constituting an abuse of the corporate form; Securities Corp., 92 N.Y.2d 335, 339-340 ence as a civil litigator in the public and The Court of Appeals affirmed and (2) injury resulting from the (1998). The Court of Appeals reiterated that private sectors. Prior to joining Esseks, the Appellate Division, Second abuse. aspect of the pleading requirements by not - Hefter & Angel, LLP, Mr. Sklar was the Department’s ruling (66 FOCUS ON By emphasizing that ing that, “[the school district] failed to allege Deputy County Attorney of Suffolk A.D.3d 122) by holding that more than an allegation of any facts indicating that [the shareholder] County. mere allegations that a share - COMMERCIAL & domination and control is holder engaged in improper required, the Court of Appeals COURT NOTES acts, acted in bad faith and CORPORATE LAW has reaffirmed the principle of dominated and controlled the a shareholder’s limited liability SPECIAL EDITION ______view of the foregoing, the corporation are insufficient to and has cautioned plaintiffs By Ilene Sherwyn Cooper respondent’s resignation was state a claim seeking to hold against using insufficient alle - Attorney Resignations accepted and he was disbarred the shareholder personally liable. To state a gations that threaten shareholders with per - from the practice of law in the viable claim for piercing the corporate veil, sonal liability as leverage in litigation The following attorneys, who State of New York. the “plaintiff must allege facts that, if against the corporation. If conclusory alle - are in good standing, with no proved, indicate that the shareholder exer - gations of domination and control alone complaints or charges pending Leesa Shapiro: By affidavit, cised complete domination and control over were enough, without any corollary facts against them, have voluntarily respondent tendered her resig - the corporation and ‘abused the privilege of showing that there was also a perversion of resigned from the practice of nation, indicating that she was doing business in the corporate form to per - the privilege of doing business in the cor - law in the State of New York: aware that she is the subject of petrate a wrong or injustice.” porate form which injured the plaintiff, Nava Bar- Avraham an ongoing investigation by the The decision points out that a sharehold - then the sole officer and shareholder of Gene Marc Bauer Ilene S. Cooper Grievance Committee involving er’s complete domination and control of the every closely held and otherwise bona fide Cheryl Kuttenkuler Beece the failure to zealously advocate for corporation must also include acts that con - corporation would be unnecessarily Henry J. Florence clients in real estate transactions, engaged stitute an abuse or perversion of the privilege exposed to individual liability. The imposi - Laura Barasch Gitelson in conflicts of interest in those transac - Rhys W. Hefta tions, and drew a check on her attorney Michelle R. Holness trust account that was dishonored. Richard Stever O’Brien Respondent acknowledged her inability to Christopher Jon Ruckh successfully defend herself on the merits David Edward Wilson against any charges predicated upon her Barbara M. Wolvovitz misconduct under investigation. She stat - ed that her resignation was freely and vol - Attorney Resignations untary rendered, and acknowledged that it Granted/Disciplinary Proceeding was subject to an order directing that she Pending: make restitution and reimburse the Lawyers’ Fund for Client Protection. In Joseph J. Giordano III: By affidavit, view of the foregoing, the respondent’s respondent tendered his resignation, indi - resignation was accepted and she was dis - cating that he was aware that he is the sub - barred from the practice of law in the ject of an ongoing investigation by the State of New York. Grievance Committee involving the fail - ure to communicate with clients, failure to Attorneys Censured: timely refund unearned fees, and failure to cooperate with the Grievance Committee. Elliot F. Bloom: By decision and order of Respondent acknowledged his inability to the court, the Grievance Committee was successfully defend himself on the merits authorized to institute a disciplinary pro - against any charges predicated upon his ceeding against the respondent and the mat - misconduct under investigation. He stated ter was referred to a Special Referee. The that his resignation was freely and volun - referee sustained all five charges against the tary rendered, and acknowledged that it respondent, and the Grievance Committee was subject to an order directing that he moved to confirm. The respondent opposed make restitution and reimburse the the motion and cross-moved to disaffirm Lawyers’ Fund for Client Protection. In (Continued on page 27)

The Suffolk Lawyer wishes to thank Commercial and Corporate Law Special Section Editor Mona Conway for contributing

her time, effort and expertise to Mona Conway our November issue. THE SUFFOLK LAWYER — NOVEMBER 2012 9 Business Arbitration a New Handicapping? ______found allegations of bias “too tiality, a staple of arbitration in limited circumstances, those proceed - By J. Scott Colesanti remote and speculative to warrant procedure. To wit, a seismic ings cannot be closed to the public.” In President Obama, who, on at least one vacatur.” The court also found that shift in the traditional deference thus finding for the Delaware Coalition for occasion served as a securities arbitration the panel had “some reasonable accorded arbitrations may have Open Government, the court added that attorney himself, 1 came to high office pledg - basis for the actions it took,” and occurred in September when a “[p]ublic scrutiny discourages witness ing a level playing field for consumers. 2 That that the respondent firm had not federal judge in Pennsylvania perjury and promotes confidence in the pledge crystallized, in part, via a provision been denied a fair hearing. 9 ruled unconstitutional the arbi - integrity of the courts.” The defendants within the Dodd-Frank Reform Act of 2010, Of course, the specter of being tration program linked to the vowed an appeal, declaring that the deci - which empowered the Securities and unconscionable forever looms famed Delaware Court of sion places America at a “competitive dis - Exchange Commission to “prohibit or above cases stemming from arbi - Chancery. advantage in providing efficient ways for impose conditions or limitations” on manda - tration clauses. A June 2012 deci - Delaware’s statutory arbitra - business to resolve their disputes.” tory arbitration agreements. 3 sion in an antitrust J. Scott Colesanti tion program – like countless While the ruling, of course, holds mere - Such limitations have yet to arbitration reminded that arbi - arbitration protocols - keeps private plead - ly that one, relatively new trial alternative materialize. FOCUS ON trators may, on occasion, sim - ings and evidence. The judge nonetheless must be held to public access standards Nonetheless, the spirit of ply do the math to determine decried its closed-door nature. Equating inherent to conventional trials, it also may such reform may have spread, COMMERCIAL & that the arbitral forum pre - the two year old forum to a “non-jury” portend a larger skepticism. The Chancery as the last 12 months of pub - CORPORATE LAW cludes meaningful recovery civil trial before a Chancery Court judge, program had been openly touted to parties licly disclosed arbitration for a plaintiff class. 10 the jurist ruled that “[t]he First because of its confidentiality. 11 Other sim - decisions provide sufficient SPECIAL EDITION Looming anew is judicial Amendment protects a qualified right of ilarly marketed, consensual forums may warnings to proponents of skepticism of strict confiden - access to criminal and civil trials. Except (Continued on page 24) written agreements compelling arbitra - tion. Specifically, federal courts as of late have reaffirmed or announced new approaches in granting punitive damages, limiting review of panel decisions, and questioning the confidential nature of the proceedings themselves. A 1953 Supreme Court decision gave rise to the doctrine known as “manifest dis - regard of the law” 4 (“MDOL”). MDOL expands the four bases for vacatur found in the Federal Arbitration Act. 5 Over time, such expansion came to be viewed by some circuits as being too disruptive. A 2008 Supreme Court case raised, but did not answer the question of whether MDOL should survive. 6 Ensuing case law acknowledged the open question; aggriev - ed parties in the Second Circuit thus often attempt use of the doctrine. In 2009 and 2010, SDNY Judge Jed Rakoff issued colorful decisions attesting to arbitration (with its lax procedural requirements) as a “wondrous alternative to the rule of reason.” Nonetheless, in both cases, corporate appellants failed to unset - tle arbitral findings. In July 2012, the New York Court of Appeals upheld the latter of these decisions (thus confirming a judg - ment against a Goldman Sachs affiliate exceeding $20 million). The court took the occasion to restate the MDOL test for the Circuit: 1) The law allegedly disregarded must be “well defined, explicit, and clear - ly applicable,” and 2) The arbitrator(s) must be said to have known of the “clear - ly governing legal principle but decided to ignore it or pay no attention to it.” But the court stressed that the standard of review is “exceedingly difficult to satisfy.” 7 In January 2012, it was disclosed that a FINRA arbitration panel had , a month prior , taken the bold action of awarding punitive damages to a former securities broker. Claiming breach of contract, fraud, and negligent misrepresentation, the for - mer employee was accorded damages of $3.6 million upon a finding that an agent of the employer had “systematically blocked” part of the employee’s business. Commentators, while noting the rarity of punitive damages in FINRA arbitration awards, speculated that the arbitrators’ decision may have been based in part on findings of intentional wrongdoing, or the onset of the 2008 recession (therefore making it difficult for the claimant to pay back the underlying note in favor of his employer). 8 Eight months later, a separate federal court confirmed an award of $5 million in punitive damages in favor of two former brokers. In dismissing arguments that the panel had rendered unfair rulings and exceeded its authority, the U.S. District Court for the Southern District of Florida 10 THE SUFFOLK LAWYER — NOVEMBER 2012 ESTATE PLANNING Estate Planning for Zombies, Vampires, Werewolves, and Ghosts ______guessed that both could be cited when a person’s zombie was the grains, thus occupying the vampire By Alison Arden Besunder in a scholarly publication?), dispatched. Were this the rule, through the night and precluding other, Happy Halloween! By day, I help clients Chodorow examines the tax people might have incentives to less beneficial activities). Batman is also deal with not-so-happy life events: death, implications of being “undead” become zombies to delay the well off, owning a mansion, the bat dying, disability. By night ... well, I don’t and (potentially) returning to the application of the estate tax.” cave, and all the great toys at his dis - turn into a vampire, but I often use my few land of the living once succumb - posal. However, all evidence suggests spare moments scouring the Internet for ing to and recovering from a Love it. And here I thought I that he is not a vampire, just some guy bizarre estate-planning related issues. So, zombie virus. He notes that some was the only one entertaining who likes to dress up in tights and pre - for your ghoulish enjoyment, here’s a might seek or avoid zombie - such whack-a-doodle notions. tend to be bat-like. wacky look at how to plan for the most hood depending on their estate Could this become a not-so-far - mind-boggling of phantasmal situations: If planning objective: fetched future, however, if cryo - And here the voice of Sesame Street’s the only certainties in life are death and Alison Besunder genics take hold? Consider the Count died in 2012. I wonder if he got his taxes, how do you deal with those certain - “If people who become zombies are con - nuanced issues raised already by fertility full $5.12 million federal estate tax ties if (as a zombie) you are “undead ?“ sidered dead for federal estate and treatments and posthumous children, as exemption. ( Ah ah ah ah ). Now, before you put down your paper and income tax purposes, little will have well as the depository provisions that Stay tuned next month for some mind- commence an Article 81 proceeding, much changed. Becoming a zombie will be no deal with certain (ahem) “deposits” such blowing thoughts about the inheritance rights higher powers than me are actually contem - different than dying from pneumonia, as fertilized embryos or even cord blood and difficulties planning for posthumous plating this possibility. The Centers for aside from the part where you eat your left in storage centers. How should such children! Until then - Happy Halloween! Disease Control (CDC) published a friends and loved ones. However, other propert y be disposed? “Preparedness 101 for the ZombieApocalypse ,” outcomes are possible. For instance, if My favorite excerpt is the following: Note: Alison Arden Besunder is the prin - available at : http://blogs.cdc.gov/publichealth - someone who becomes a zombie is con - cipal of the Law Offices of Alison Arden matters/2011/05/preparedness-101-zombie- sidered not dead (as opposed to undead) Count Chocula has clearly made a Besunder P.C. in Manhattan and Brooklyn, apocalypse/ . for estate and income tax purposes, nei - killing on his cereal and rumor has it that where she focuses her practice on trusts And Arizona State University law school ther the estate tax nor the basis reset even the Count Who Counts is loaded. and estate planning for individuals and professor Adam Chodorow drives a wooden would be triggered. We would be in a While harnessed to the greater good of married couples, as well as trust and stake in the heart of (yawn) traditional estate situation similar to the one Congress teaching children to count, it turns out estate-related litigation such as contested planning for the living in Death, Taxes .... negotiated as part of the Bush tax cuts, that the Count’s OCD-like fascination probate and contested accountings in and Zombies , published in the May 2012 which relaxed the basis reset rules in with numbers turns out to be typical of Suffolk, Nassau, Kings, Queens and New issue of the Iowa Law Review (available for conjunction with eliminating the estate vampires. See BARBER, supra note 76, York counties. She also handles intellectu - download at http://papers.ssrn.com/sol3/pa- tax. This could turn out well for those at 49 (describing a tradition where peo - al property matters including trademark pers.cfm?abstract_id=2045255 ). intending to hold onto their property for ple placed bags of grain near a suspect - and copyright prosecution and infringe - Simultaneously citing the IRS Code and a long time. Alternately, both the estate ed vampire’s grave on the theory that the ment. Alison is also of counsel to Bracken Weekend at Bernie’s (who would have tax and basis reset could kick in only vampire would be compelled to count all Margolin Besunder LLP in Islandia.

EDUCATION LAW UPDATE Antidiscrimination & Harassment in NYS Human Rights Law Not Applicable to Public School Districts ______districts engaged in an “unlawful Education. Additionally, the that permit such practices. By Candace J. Gomez discriminatory practice” under the recently enacted Dignity for All In 2006, the New York State Board of In North Syracuse Central School NYS Human Rights Law by per - Students Act addresses a myriad Regents promulgated a regulation prohibiting District v. New York State Division of mitting their harassment on the of harassment and discrimina - schools, including out-of-state day or residen - Human Rights , 19 N.Y.3d 481, 973 basis of race and/or disability. tion issues that arise within a tial schools, from using aversive interventions N.E.2d 162 (June 12, 2012) , the issue The court stated that the school context and its goals on NewYork students. In response to that reg - before the court was whether a public vicious attacks that these stu - comport with the goals of the ulation, a group of parents and legal guardians school district is an “education corpora - dents were subjected to were NYS Human Rights Law. of children with severe behavioral problems tion or association” as contemplated by deplorable, and the court’s hold - In Bryant v. New York State filed suit to challenge this ban. The severe Executive Law § 296 (4) (“NYS Human ing should not be interpreted as Education Department , 10- behavioral problems exhibited by these stu - Rights Law”). The Court of Appeals con - indifference to their plight, since 4029-CV, 2012 WL 3553361 (2d dents included aggressive and self-injurious cluded that it is not, and, therefore, the the merits of their underlying dis - Candace Gomez Cir. Aug. 20, 2012) , the U.S. behaviors such as head-banging, yanking out New York State Division of Human Rights crimination claims were not at issue upon Court of Appeals for the 2nd Circuit upheld their own teeth, attempting to stab them - (“SDHR ”) lacks jurisdiction to investigate this appeal. Furthermore, the court held a prohibition against the use of “aversive selves, and assaulting teachers. Plaintiff par - complaints against public school districts that this ruling does not leave public school interventions” such as manual and mechan - ents and guardians claimed that they tried a pursuant to that provision. students without remedy because, in addi - ical restraints, food-control programs, and number of other measures to treat and educate This case originates from complaints filed tion to potential remedies pursuant to fed - electric skin shocks. This prohibition their children, but those methods were unsuc - with the SDHR on behalf of public school eral law, public school students may file extends to New York students with disabil - cessful. In contrast to those unsuccessful students, claiming that their respective school complaints with the Commissioner of ities being served in out-of-state schools (Continued on page25) PROCESS SERVICE TIMELY • ACCURATE • COST EFFICIENT 631-225-4260

Mark M. Gallo Over 8,000 patents granted Retired Federal Officer Over 15,000 trademarks obtained or e-mail us at [email protected] Serving Suffolk, Nassau and New York State Over 45 years of experience www.patriotprocessserver.com THE SUFFOLK LAWYER — NOVEMBER 2012 11 12 THE SUFFOLK LAWYER — NOVEMBER 2012 BOOK REVIEW DISROBED ______formance breeds clientele. Three 1994, President Clinton, upon Judge Bock’s outline of the morass of By Joseph W. Ryan months after hanging out his the recommendation of the late federal discrimination and gun laws pro - shingle, Block brought, pro bono , U.S. Senator Daniel Patrick vides a superb, simple account of their In DISROBED: An Inside Look at the a federal lawsuit challenging the Moynihan, with prompt confir - vast breath and application in practice Life and Work of a Federal Trial Judge 1 constitutionality of the Suffolk mation by the Senate, appointed before the federal court. The book offers federal district judge and former SCBA Board of Supervisors as a viola - Judge Block to serve for life an insider view of the federal judge President Frederic Block has revealed tion of the “one-man, one-vote” tenure in the Eastern District of nomination process, the inner workings himself in an eye-opening account that is a principle espoused by the U.S. New York. The book received a of the EDNY courthouse, and the “must read” for every aspiring student, Supreme Court in a reapportion - resounding endorsement from Judge’s frank observations of lawyers practicing lawyer and member of the judi - ment case involving state legisla - President Clinton as a “com - trying cases before him, including his ciary. It is a non-fiction story of a bright tion. Six years later , after oral pelling introduction to the world personal reactions to the proceedings. solo practitioner who traversed the “coun - arguments before the U.S. Joseph W. Ryan of a federal judge.” All of this gives full meaning to the title try lawyer” practice in Suffolk County to Supreme Court and Second Circuit Court The book demonstrates the unique DISROBED . becoming a U.S. District Judge presiding of Appeals , he won the case which lead to influence Judge Block has brought to the Finally, the book demonstrates the wis - over the most challenging cases in the the establishment of Suffolk County Eastern District of New York. Not having dom of our Founding Fathers in creating a Brooklyn courthouse that took him as far Legislature. State Family Court Judges served as a former U.S. Attorney, nor as a constitutionally independent federal judi - away as Egypt. also won a pay raise as a result of engaging product of New York City law firms or ciary who serve for life without fear of How to tell a story in an entertaining fash - Fred Block for a lawsuit which challenged academia, the book illustrates how the improper influence. DISROBED fills that ion should come as no surprise based upon the disparity of higher wages paid to their Judge’s influence has brought a refreshing role as a rare, fearless and enjoyable the Judge’s life experience off the bench as colleagues sitting in the New York City prospective appreciated by his fellow account that shouldn’t be missed. the co-creator of the off-Broadway musical Family Court. judges. Judge Jack B. Weinstein adds in “Professionally Speaking .” In straightfor - Block tells the story of the political real - his Preface to the book: “I would be Note: Mr. Ryan serves as Chair of the ward simple language laced with humor, the ities of a Democrat lawyer aspiring to remiss were I not to point out how engag - SCBA Federal Court Committee, and is a book takes you through his career as a risk- become a judge in the Republican con - ing Fred is as a companion and colleague. former NCBA President. taking lawyer starting out as a Suffolk solo trolled Suffolk County with unvarnished His conversation is captivating: he has the practitioner with the anxieties of a silent frankness. Not until three decades later knack for preventing acrimony at confer - 1. Thompson Reuters WESTLAW and telephone. The book demonstrates how per - did the political scene change. And in ence: in tête-à-têtes, he is entrancing.” NACDL Press

LAND TITLE Don’t Delay, Plead Laches Today! ______property. In 1999, Carroll deeded challenge the title. However, then that I was not suggesting that position, By Lance R. Pomerantz the property to his niece and examination of the deed chain the Second Department has, in fact, just The defense of laches in land title dis - nephew. Carroll died in 2002. The would have revealed the gap in adopted that very position as the law. Stein putes has been looked upon with favor by niece and nephew mortgaged the record title from Beulah to v. Doukas, et al., 2012 NY Slip Op 06204 the Second Department in 2012. Let’s property to Delta Funding in 2003. Carroll, alerting the lender to the (2nd Dept., September 19, 2012). look at these cases and contrast them with In 2004, Rovina commenced an possibility that someone would In 2004, Doukas allegedly “wrongfully another from the not-too-distant past. action in Supreme Court to quiet challenge the title. While the manufactured” a deed for a shopping cen - “Laches is defined as ‘such neglect or title based on Beulah’s will. The decision appears to leave the niece ter from Claire Stein to Doukas’s compa - omission to assert a right as, taken in con - action was transferred to and nephew personally liable on ny, Telcor. In August, 2007, Telcor con - junction with the lapse of time, more or Surrogate’s Court for a determina - the note, as a practical matter it veyed the property to Jay Realty less great, and other circumstances caus - tion of the probate issues. results in a windfall for them at Enterprises, Inc. for $1,425,000. In 2008, ing prejudice to an adverse party, operates The Surrogate’s Court deter - Lance Pomerantz Rovina’s expense. Douglas Stein commenced this action to as a bar in a court of equity.’ The essential mined that the will was valid and, there - Laches requires both an unreasonable set aside both deeds. element of this equitable defense is delay fore, fee title had devolved to Rovina. The delay and knowledge that the opposing The court held that “Jay Realty demon - prejudicial to the opposing party.” Matter niece and nephew were without title. But, party has detrimentally changed his posi - strated its prima facie entitlement to judg - of Barabash , 31 NY2d 76 (1972) [internal the Surrogate’s Court also held that tion. The opinion, however, fails to men - ment as a matter of law by establishing citation omitted]. Rovina was guilty of laches in offering the tion any evidence indicating when Rovina that the doctrine of laches precluded the In Wilds v Heckstall, 93 AD3d 661 (2nd will for probate, and that the delay preju - obtained knowledge of the assertion of plaintiffs from asserting a claim against it” Dept., 2012), the borrowers’ fee title was diced the lender’s rights under the mort - title or the giving of the mortgage. because it demonstrated that, as of found to be invalid, but the mortgage gage. The Second Department panel When Wilds first came down, it was fea - February 2007, Douglas Stein knew of the given by the borrowers remained a valid agreed, stating that the delay “prejudiced tured in my “Constructive Notice ” existence of the deed to Telcor. “Further, lien on the property. the mortgagee, which did not know and newsletter. At the time, an esteemed mem - Jay Realty demonstrated that, despite that Beulah owned the property. She made a could not have known at the time that it ber of the New York land title bar had this knowledge, the plaintiffs took no action to will leaving the property to her sister, Rovina, took the mortgage on the property that the comment: “Lance, I hope you are not sug - assert their rights to the shopping center subject to a life estate in Beulah’s husband, plaintiff would challenge [the borrowers’] gesting that laches alone, without regard to property until they commenced this action Carroll. Beulah died in 1993 and, apparently, ownership interest.” the law as to adverse possession, should be in April 2008, more than one year later.” no proceeding was commenced concerning It may be precisely true that the lender a basis for barring someone from asserting That knowledge and delay, coupled with her estate. Carroll continued to live at the could not have known that the plaintiff would fee title.” While I assured counsel back (Continued on page 30)

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Reflections on a Family Vacation in Africa ______northern part of South Africa, in course!) the animals – close up Upon leaving South Africa, we entered By Scott M. Karson the vicinity of Kruger National and in the wild. We saw lions, Zimbabwe, the home of one of the world’s In last month’s issue of The Suffolk Park, where we hoped to see cheetahs, leopards, servals, ele - great natural wonders, Victoria Falls. As I Lawyer , I reported on the 134th Annual many more animals in their nat - phants, giraffes, zebras, croco - marveled at the beauty and power of the Meeting of the American Bar Association ural state. We stayed at two dif - diles, rhinos, hippos, water buf - cascading waters, I thought of the immor - in Chicago, Illinois, which I attended as ferent safari lodges, Kapama and falo, monkeys, baboons, ante - tal words of Henry Stanley who, in 1871, the Suffolk County Bar Association’s del - Ngala, for a total of seven nights. lope, gazelle, impalas, kudus, upon finally locating David Livingstone, egate from August 2 through 7, 2012. Although our lodgings were wildebeests, hyenas, mongoose, the first European to view the falls, Four days after my return from Chicago, quite luxurious, the food superb springbock, warthogs, eagles, uttered, “Dr. Livingstone, I presume?” my wife Joleen and I, along with our 11 and the service impeccable, our vultures, guinea fowl, ostriches In addition to the majestic falls, and a year old grandson Isaiah, embarked on stays were anything but relaxing. and all manner of colorful exot - cruise on the crocodile-filled Zambezi Scott M. Karson another trip. This time, the destination was At both lodges, the staff would ic birds. We became the envy of River, we took an excursion to Chobe southern Africa; specifically, South awaken us at 5:30 a .m. each morning. At the lodge when we spotted a pangolin, an National Park in Botswana, where wildlife Africa, Zimbabwe and Botswana. 6:00 a .m. we met our guide and tracker, extremely rare toothless armor-plated ant- abounded both around and in the Chobe After a seemingly interminable 16 hour and our fellow guests for a quick cup of eating mammal. River; in every direction, we saw literally flight from New York to Johannesburg, fol - coffee and then we were off on our spe - The balance of our visit to South Africa thousands of animals, including great lowed by another two hour connecting cially-designed open vehicle (which held included a return to Johannesburg and an herds of elephants, buffalo, giraffes, flight, we arrived in Cape Town, a coastal nine guests) for three hours of animal excursion to historic Soweto, the nearby antelopes and hippos. city near the southernmost point on the viewing (most of the animals are reputedly township which played a vital role in the One of the most memorable moments of African continent and the meeting place of more active during the early morning anti-apartheid movement. Remarkably, on our trip occurred when we left our bus to the Atlantic and Indian Oceans. Cape hours). It was generally quite cold as we one street in Soweto, Vilakazi Street, we go through customs at the Zimbabwe- Town is a city of great contrasts: we departed, and we were routinely provided saw the homes of two Nobel peace prize Botswana border. The driver inadvertent - observed clear evidence of poverty in some with hot water bottles and blankets. laureates, Nelson Mandela and ly left the bus door open, and a monkey of the townships we passed on our way However, as the sun rose, it warmed up Archbishop Desmond Tutu. We also visit - apparently wandered into the empty bus from the airport to the city, but the city quickly and actually went above 90 ed the site of one of the many tragic events and helped itself to some food belonging itself showed signs of significant affluence. degrees on several days (keep in mind that that led to the creation of modern South to one of our fellow travelers. We found Regrettably, it was still winter in the all temperatures were measured in centi - Africa: the 1976 Soweto Student Uprising, the monkey sitting on the road outside the Southern Hemisphere, and the weather in grade – not Fahrenheit – and distances in which 12 year old Hector Pieterson was bus enjoying a container of yogurt! Cape Town reflected that. It was, for the were measured in kilometers – not miles). shot and killed by police simply because We returned home after 16 days, with a most part, stormy, with rough seas, which Upon our return to the lodge following he – along with countless other students – crate of souvenirs, thousands of photos prevented us from taking the cable car to the morning drive, we would enjoy break - engaged in a protest demonstration against and memories that will surely last for a the top of Cape Town’s signature attraction, fast and, later in the day, lunch and high the apartheid regime. I explained to our lifetime. Table Mountain, and from taking the ferry tea. Then, at 4 p.m. we would embark on grandson that this event was not unlike to Robben Island, where former South another three hour drive to see more ani - some of the seminal events in our own Note: Scott M. Karson is a partner at African President Nelson Mandela spent 18 mals. About two hours in, we would stop nation’s struggle for civil rights, including Lamb & Barnosky, LLP . He is a former of his 27 years in prison. We did, however, for 15 minutes to watch the sunset while the 1963 bombing of the 16th Street President of the SCBA (2004-05) and cur - tour the Cape Peninsula and made it to the enjoying a glass of wine or cocktail (very Baptist Church in Birmingham, Alabama rently serves as a member of the NYSBA Cape of Good Hope, and saw our first civilized!). We would then return to the which caused the death of four young House of Delegates and the ABA House of African wildlife en route , including seals, lodge for dinner. girls, the 1963 assassination of Medgar Delegates. He is also Vice-Chair of the penguins, ostriches, impala and baboons. Of course, the highlight of all of this was Evers and the 1964 slaying of three civil Board of Directors of Nassau Suffolk Law The next phase of our journey was to the seeing and shooting (with cameras, of rights activists in Mississippi. Services Committee, Inc. 14 THE SUFFOLK LAWYER — NOVEMBER 2012 VEHICLE & TRAFFIC LAW EMINENT DOMAIN Relicensing of Multiple DWI

_O____f_f__e___n__d___e___r_ s ance, speeding, reckless driving By David A. Mansfield or a finding after a fatal accident Governor Andrew Cuomo fatal accident. The DMV announced in a press release on intends to restore a license to a September 25, 2012 the comple - client in this category with an tion of an ongoing review of additional period of a restricted Department of Motor Vehicles use license which would limit Rules and Regulations regard - your client’s driving to and from ing the relicensing of drivers work, school and medical visits . convicted of multiple alcohol But they will require an ignition offenses. interlock device installed on any EDWARD FLOWER The Department of Motor David A. Mansfield owned or operated vehicle for a Vehicles had frozen all applications for reli - period of five years for those drivers who censing for anyone convicted of three or are fortunate enough to be relicensed after HELPING YOUR CLIENTS MAXIMIZE JUST more alcohol or drug related driving offense. three or more alcohol and drug related dri - The regulations implemented as of Sept. ving offense . COMPENSATION FOR 50+ YEARS 28, 2012 require a lifetime review of a dri - The DMV is also moving to extend the ving record by the Department of Motor minimum §1192 related suspension or Vehicles of all drivers seeking to have a revocation period. The new regulations license or privilege reinstated after a revo - will provide that completion of the cation. It is not clear from the press release Driving Driver Program will not terminate FLOWER, MEDALIE & MARKOWITZ whether it applies to clients revoked for the revocation and entitle repeat offenders any reason or simply , repeated alcohol to have their full licenses restored. The related convictions. other impact it would have is on the Attorneys At Law The sum and substance is that five or defense practitioner, now at a disadvan - more alcohol related drug convictions in a tage in terms of lifetime driving records 24 East Main Street lifetime will result in a permanent license because access is limited. DWI convic - revocation. Three or more alcohol or drug tions are kept on the abstract for 10 years Suite 201 related convictions in the last 25 years except those involving personal injury plus at least one other serious driving accidents and fatal accidents . Convictions Bay Shore, New York 11706 offense in this period will result in a per - for other traffic offenses drop off the manent license revocation. record after about four years . P: 631-968-7600 A serious driving offense is defined as a The press release does not mention if fatal crash, a driving related penal law con - there will be regulations implemented F: 631-665-4283 viction, 20 or more points assessed for dri - regarding whether chemical test refusal ving for the past 25 years with two or more finding §1194 will also count toward the convictions each with five points or higher. classification of the driver for a permanent These are very low thresholds to meet. license revocation. The regulations once A client must therefore be advised that promulgated would most likely be found they are in jeopardy of permanent license in 15 NYCRR Part §136. I will include the or privilege revocation in the State of New exact citations for the regulations when York if they have three or more alcohol or available. drug related driving convictions . The press release can be found at : The Department of Motor Vehicles http://www.governor.ny.gov/press/092520 intends to tack on five years to the statuto - 12dwiregulations ry minimum revocation period if revoked This is sure to be a hot topic of discus - for an alcohol or drug related driving sion along with the coming changes at offense should your client have three or Suffolk TVB at the annual Vehicle and four alcohol convictions (but no other seri - Traffic Law update on November 7, 2012 ous driving offenses ) in the last 25 years. at 5 pm for the East End and November The Department of Motor Vehicles will 14, 2012 at 5:30 pm at the SCBA . add an additional two years if your client has three or more alcohol/drug related dri - Note: David Mansfield practices in ving convictions is revoked for another Islandia and is a frequent contributor to reason such as operating without insur - this publication. P

Honoring Justice Crecca at St. John’s Alumni Dinner h o t o b y A r t h u r S h u l m a n

Justice Andrew A. Crecca, a member of the SCBA Board of Director’s, was the honoree at the St. John’s Distinguished Alumni dinner held at the Irish Coffee Pub on Oct. 1. Dean Michael Simons, left, with President of St John’s School of Law Alumni Association, Suffolk County Chapter and SCBA President Elect Dennis Chase; award recipient Justice Andrew Crecca; and President of St. John School of Law Alumni Association, Alan Hodish. THE SUFFOLK LAWYER — NOVEMBER 2012 15 PRO BONO Pro Bono Attorney of the Month - Raymond Lang ______mental agencies and business enterprises to turn things around dramatically for the By Maria Dosso to meet the challenges faced in the eco - grateful client. This month Nassau Suffolk Law nomic downturn. Through this firm, he has Another client suffering from muscular Services honors Raymond Lang as Pro advised on foreclosure legislation at the sclerosis had reluctantly stayed in his Bono Attorney of the Month for his hours national and state levels . He has written house while the rest of his family , includ - of dedicated service to the Pro Bono “white papers ” on the subject and his expe - ing his three very young children , moved Foreclosure Settlement Project. rience in mortgage foreclosure continued to North Carolina where his wife had an Mr . Lang is a native Long Islander, grad - to grow through his advocacy in his law employment opportunity as a teacher. He uate from Fordham University and then practice. His familiarity with the banking stayed on Long Island because he was told received his law degree from New York industry , how banks are structured and that his mortgage lender would aggres - Law School in 1984. During his career, how they think , as well as his extensive sively pursue his family’s assets if he left Mr. Lang often found himself balancing knowledge of mortgage backed securities, his house which was in foreclosure. He his family life and formal education while have been valuable assets in his foreclo - was living a very lonely and unhappy life working in NewYork City, first in the com - sure defense practice. until Lang told him that he had been mis - puter field, then in the banking industry on He soon became involved with the informed and that nothing imminent was Wall Street where he practiced securities Suffolk County Bar Association as a way to going to happen. He advised the client to law and later managed several investment better network and get a grassroots per - reunite with his family and pursue a short firms and businesses . These experiences spective . After attending a foreclosure sem - sale instead. The client left in tears of grat - and skills have proven especially valuable inar sponsored by the Empire Justice itude and relief. in his current legal practice . Center, he was inspired to participate in the Mr. Lang’s personal life is also quite full. For Mr . Lang it has always been about SCBA’s Pro Bono Foreclosure Settlement His family is very important to him and he Raymond Lang networking and forging new connections . Project spearheaded by Barry Smolowitz. is very proud of his wife, daughter, two These days he uses his skills while focusing The Project , currently being administered “My pro bono activities related to settle - sons and grandson. He is active in sports, on saving homes and creating jobs. In addi - by Nassau Suffolk Law Services , is based ment conferences are the most rewarding coached CYO and has been a religious edu - tion to his work in foreclosure defense and on a web-based software program initiated work that I do, helping those who are bur - cation instructor for over 30 years. loan modifications, he serves as General by Smolowitz , where pro bono attorneys dened with the stresses of a losing home,” Mr. Lang’s philosophy is that if you give, Counsel to several small companies, includ - who are interested in volunteering at fore - said Lang. “We are all in this together and you receive much more in many ways. ing internet and retail businesses, who rely closure settlement conferences , can assign doing pro bono work is rewarding and Bringing faith, hope and positive energy to on his prior experience as a CEO, corporate themselves to a matter for a single appear - inspiring.” He observes that pro bono work people through service in his law practice counsel, and investment banker for advice ance or multiple appearances , at their has also helped to build his practice and has become his ministry. We are very fortu - on corporate governance, business develop - choosing. Lang has been a CLE presenter referrals, as he networks with other attor - nate and inspired to have such a generous ment, finance and management. Mr. Lang and loyal volunteer with the Project for sev - neys and continues to learn and grow. Mr. pro bono attorney working with the utilizes a cadre of outside resources and eral years devoting thousands of hours and Lang’s mentoring young people through the Foreclosure Settlement Project. Our con - experts to provide a holistic and team ori - seeing hundreds of clients. Project, such as the students at Touro Law gratulations go to Raymond Lang for this ented service to his clients. Notwithstanding his achievements on School, is also a rewarding part of his work. much deserved award. He prides his approach as being not trans - Wall Street and as an entrepreneur, “We need to help each other, educate each actional, but relationship -oriented . “I care Raymond believes that the most rewarding other, and empower each other,” he stated . Note: Maria Dosso, Esq. is the Director about my clients and seek to be their family work of his career has centered around his Mr. Lang shared two recent examples of of Communications and Volunteer lawyer or general counsel. Anyone I intro - participation in the Foreclosure Project. how he was able to make a difference Services at Nassau Suffolk Law Services. duce to a client must be good hearted,” He has derived a great deal of personal through his pro bono efforts. A senior citi - She has worked at Law Services for over Lang says. satisfaction from giving back to the com - zen whose house was in foreclosure had 25 years, first practicing in the areas of Raymond Lang’s work with Pro Bono munity by helping those truly in need to not taken Social Security because he was disability, consumer debt, public benefits started with a particular interest in the eco - navigate through the foreclosure settle - afraid his creditors would take his retire - and housing law. Currently she manages nomic crisis , analyzing the problem and ment process. Raymond brings a positive ment checks. Lang told him that the bene - the Legal Support Center for Advocates, a possible solutions in dealing with the huge approach to his clients in the Project and fit could not be garnished to satisfy his community education and advocates’ con - rise in mortgage foreclosures and unem - his dealmaker skill set has enabled him to credit card debt , and in fact that the Social sultation service, and coordinates the ployment . He founded Economic persuade banks to work out mortgage Security income could help to qualify him agency’s public relations initiatives and Recovery Advisors LLC, to advise govern - modifications in many cases. for a loan modification. This advice helped pro bono/volunteer projects.

ANIMAL LAW “A Dog By Any Other Breed” Why breed specific laws are no doggone good ______media of a dog attacking a times, the breeds that typically such program shall be less stringent By Amy L. Chaitoff human, and that attack possibly fall victim to these breed dis - than this article, and no such pro - ending in a fatality. Typically criminatory laws are the breeds gram shall regulate such dogs in a For thousands of years humans have when such a tragic but rare commonly referred to as the manner that is specific as to breed. shared their homes and lives with the fam - event occurs, the media frenzy bully breeds and usually [Emphasis Added] ily dog. Historically, there has been no has a tremendous effect on the include , but are not limited to, other animal that has been more endearing public, especially the local com - the American Staffordshire For well over 100 years the law of the to the hearts of humans than the dog. munity where the incident Terriers or (commonly referred State of New York regarding injuries/dam - According to recent polls by the Human occurred. Many times this to as Pit Bulls), American ages caused by a domestic animal has been Society of the United States more than 78 intense reaction is followed by a Bulldogs, Rottweilers, that of strict liability, provided the owner percent of Americans own at least one need to blame someone or Dobermans, Mastiffs, and any - knows or should have known of the ani - dog. In fact, no other animal has been something, and a public outcry to Amy Chaitoff thing that remotely looks like it mal’s vicious propensities. Collier v. depended on more to be loyal to and pro - prevent the incident from ever happening has any mix or characteristics of any of Zambito, 1 N.Y.3d 444, 807 N.E.2d 254 tect its master’s property and life from again. In the old days it was getting a mob these breeds. (2004), See also, (Bard v. Jahnke, 6 N.Y.3d harm, even risking its own life for that of together with pitchforks and torches in Fortunately, New York is among the 592, 599, 815 N.Y.S.2d 16, 848 N.E.2d its human companion, than the family hand to round up the guilty party and dis - states that make it illegal for municipali - 463 (2006). The owner’s knowledge of a dog. Many of us grew up watching Lassie pense justice . Today’s favored method , ties to pass breed specific laws under known “vicious propensity” must be and Benji and stained the pages of Old although more civil, is just as mindless Agriculture and Markets Law Article 7, proven in order for a plaintiff to recover. Yeller and Where the Red Fern Grows with and mob mentality based - the use of leg - Section 107 (5) which states: An owner who has no prior knowledge of childhood tears. We cry because we islation, or more specifically “breed spe - such vicious propensity will not be held understand that almost instinctual bond cific legislation” or (“BSL”). § 107. Application. . . . liable even if the owner was in violation of that the majority of us have with dogs. Breed specific legislation is legislation a local law or ordinance at the time of the Many of us grieve as much for our pets as that targets and places restrictions and 5. Nothing contained in this article shall incident. Petrone v. Fernandez , 12 N.Y.3d we do our human family members, some conditions on the owning or keeping of a prevent a municipality from adopting its 546, 550, 910 N.E.2d 993, 996 (2009). more. Perhaps that is why it is so disturb - specific breed of dog or just plain outright own program for the control of danger - The intent of Agriculture and Markets ing when the public reads a story in the bans on a specific breed of dog. Many ous dogs; provided , however, that no (Continued on page 27) 16 THE SUFFOLK LAWYER — NOVEMBER 2012

Author’s Night at the SCBA - DISROBED P h o t o s b y A r t S h u l m a n a n d L a u r a L a n e THE SUFFOLK LAWYER — NOVEMBER 2012 17 FREEZE FRAME P h o t o s b y A r t Annual Lawyer Assistance S h u l m a n Foundation Golf Outing Founded in 1991 by a handful of lawyers including Judge Ira P. Block, its mission is to provide relief, aid and assistance to all members and former members of the Suffolk County Bar Association and other members of the legal profession who reside in Suffolk County. About five years ago, the golf outing was named in Judge Block’s memory. Mark Rudner, left, Judge John J. Toomey, Jr., Justice William J. Condon and Chris Olson.

SCBA Past President David Besso who coordinates the out - ing, left, SCBA President Art Shulman and District Administrative Judge C. Randall Hinrichs, who was the honoree of the evening.

Roger Stern, left, Christopher Olson, District Administrative Judge C. Randall Hinrichs, and Fred Eisenbud, left, SCBA Past Presidents Lynne Adair Frank S. Russell. Kramer, John Buonora, and George Roach. P h o t o b y A n n a m a r i e

Murphy D o n o v a Receives Rare n Military Honor A 510-foot Navy destroyer was recent - ly christened the USS Michael Murphy in honor of Lt. Michael P. Murphy, son of SCBA member Dan Murphy. Lt. Murphy was a Navy SEAL killed in Afghanistan and posthumously awarded the Medal of Honor. 18 THE SUFFOLK LAWYER — NOVEMBER 2012 MUSIC REVIEW

“This is one of the great pleasures of my life”

_L___o___v___e____F___ or Levon – APotteTr higrhiligbhteud atsehow Tfeatour - Levon Hehavlem said it best, Helm stood for By Dennis R. Chase ing rock n’ roll luminaries from many things: authenticity, dignity, Take a load off, Annie , rock, blues, soul and country like respect for history, dedication to Take a load for free , Garth Hudson of The Band, Roger musical craft and an old-fashioned Take a load off, Annie , Waters, My Morning Jacket, John Southern gentility that did not And (and) (and) you put the load right on me , Mayer, Joe Walsh, Dierks Bentley, always seem to fit the elbow-throw - (You put the load right on me) . Eric Church, Gregg Allman, Bruce ing arena of professional rock ’n’ Hornsby, Ray LaMontagne, John roll. His work with the Band helped Sometimes, you see what appears to be a Hiatt, Warren Haynes, Lucinda redefine the relationship between Levon Helm very clear path and are fairly certain of the Williams, Mavis Staples, Allen drummers and singers (Helm, one Following Waters’ triumphant production of direction in which you are headed . . . only Toussaint, Robert Randolph, John of the first notable singing drum - The Wall in Berlin in 1990 attracting over to experience divine intervention and realize Prine, Jorma Kaukonen, Marc Dennis R. Chase mers, was both) and his austere 350,00 0 fans, Waters met Helm for the first true inspiration. While the course change Cohn, Jakob Dylan, David groove made rock music safe for time. “This guy came over to me, and he may be unexpected, there are no regrets. Bromberg, and Mike Gordon. All performed storytelling. Many of the younger artists at the kind of chewed a little, like he did, and he This review was scheduled to chronicle with the house band, the Levon Helm Band benefit played their Band covers with rever - went, ‘Roger, I like your style, I want you to attendance at the opening night of the New renamed the Midnight Ramble Band and led ence and remarkable fidelity to the source have my hat,’” Waters said, speaking of York Philharmonic at Avery Fisher Hall in by Campbell . The concert, eventually to be material. Louisville roots-rockers My Morning Helm. “And he gave me his hat, and it’s been Lincoln Center . . . and, more importantly, released as a DVD, raised money to keep Jacket tackled “Ophelia” and “It Makes No my fishing hat ever since … and it will be meeting Itzhak Perlman in the green room fol - music going at Mr. Helm’s barn in Woodstock, Difference” with all the tones, cadences and with me to the day I die.” lowing his performance. Then, a friend men - N.Y. The barn is a recording studio and, since inflections taken straight from the versions in The culmination of the evening, after near - tioned this tribute show taking place two days 2005, the home of the Midnight Ramble, a the Band’s “Last Waltz.” ly three and a half hours of great music, was later at the Izod Center in Jersey for Levon concert series where the Levon Helm Band Country music superstar, Eric Church, an eight and a half minute version of Helm. Mark Lavon “Levon” Helm (May 26, had been joined, through the years, by most of CMA’s 2011 winner for Top New Solo Robertson’s The Weight, a song listed as num - 1940 – April 19, 2012) was an American rock the musicians at the concert. Vocalist and recipient of no less than five ber 41 in Rolling Stones 500 Greatest Songs multi-instrumentalist and actor who achieved Original Band member, Robbie Robertson , nominations in 2012 including Male of All Time. The stage was packed with well fame as the drummer and frequent lead and who had been feuding with Helm, reconciled Vocalist of the Year; Single of the Year - over 55 performers each having something backing vocalist for The Band . Helm suc - with Helm prior to Helm’s death; however, Springsteen Album of the Year - Chief ; Song special to offer . . . each alone and together cumbed to throat cancer in April of this year. Robertson was still conspicuously absent. of the Year – Springsteen ; and Music Video expressing their love for Levon. “This is one of the great pleasures of my Robertson’s music, however, was in full of the Year – Springsteen ; ripped through life ” were the immortal words first uttered swing. Although worn and weary and required spirited versions of Band deep cuts, A Train Note: Dennis R. Chase is the current by Neil Young just prior to his performance assistance getting on and off the stage, 75 year - Robbery and Get Up Jake . More sentimen - President-Elect of the Suffolk County Bar of Helpless during The Band’s last perfor - old keyboardist, Garth Hudson, the only other tally, Church spoke of his experience play - Association and the current President of the mance. That performance , filmed by Martin surviving member of The Band, still managed ing a Ramble, closing with the pervasive St. John’s University School of Law Alumni Scorsese, entitled The Last Waltz , closely to quite enthusiastically join his fellow per - theme throughout the evening, “I’ve been Association-Suffolk County Chapter. Mr. resembled tonight’s extravaganza . In a mag - formers for many of the tunes Robertson told that I march to the beat of a different Chase is the managing partner of The Chase nificent tribute to an unbelievably amazing wrote. Warren Haynes , best known for his drummer, and I do . . . Levon Helm.” Sensale Law Group, L.L.P. The firm, with and talented performer, these words were work as longtime guitarist with The Allman The Band singer and drummer’s daughter offices conveniently located throughout the echoed by Grace Potter , 36 years later, in a Brothers Band and as founding member of the received some of the biggest applause of the greater metropolitan area and Long Island, show stealing performance of the classic jam band Gov’t Mule , opened the evening night, according to the Poughkeepsie concentrates their practice in Workers = Dylan tune, I Shall Be Released . Larry with an especially stirring rendition of one of Journal . Amy Helm helped deliver two Compensation, Social Security Disability, Campbell, a singer and multi-instrumentalist The Band’s live staples , The Shape I’m In . songs, including ‘Wide River to Cross’ Short/Long Term Disability, Disability serving as the show ’s unofficial master of Gregg Allman joined Haynes for a bluesy, with Roger Waters of Pink Floyd. Waters Pension Claims, Accidental Death and ceremonies, was clearly moved by her per - organ heavy, moving version of one of The also performed ‘The Night They Drove Old Dismemberment, Unemployment Insurance formance just barely managing to choke out, Band’s covers, Long Black Veil . Dixie Down’ with My Morning Jacket. Later Benefits, Employer Services, and Retirement “how about that?” Tris McCall, from The Star Herald may he told the story of his favorite red hat. Disability Pensions. REAL ESTATE

_T___h__e____M____o_ rtgage Forgivineclundees sprsinciDpalefobrgtiveRnesselief Act ofm2ent0s, 0onl7y thEe dxebtpthiart eis snot Ddeutcy teo amdvibse eclirents3a1nd,the2p0ubl1ic 2 with By Andrew M. Lieb will result in income tax to the more than the cost of your main an understanding of the laws that will If you litigate foreclosures pay atten - debtor. Additionally, a deed- home plus improvements is impact their lives. Hopefully, The tion. Transactional attorneys take notice. in-lieu of foreclosure will also qualified principal residence Mortgage Forgiveness Debt Relief Act of Whether you are a generalist or focus your result in income tax to the indebtedness. Any debt secured 2007 will be extended. Yet, it’s imperative practice in debt relief it is your job to debtor where any underwater by your main home that you use for practitioners to begin advising clients know that an act with great implication to sums are released on the to refinance qualified principal and ancillary real estate service providers our region is expiring. While many have recourse note. residence indebtedness is treat - with whom we work that this act is set to commented that they have it on good However, The Mortgage ed as qualified principal resi - expire and that they must make informed authority that the Act will be extended and Forgiveness Debt Relief Act of dence indebtedness, but only up strategic decisions under this light. While logic dictates that it should, your author is 2007 avoided this income tax to the amount of the old mort - the Act existed, a short sale offered credit a realist and believes that until something outcome for many homeowners Andrew M. Lieb gage principal just before the score and esteem advantages over bank - happens, nothing has happened. So let’s in our county and throughout the United refinancing. Any additional debt you ruptcy coupled with the fact that the discuss what is without a doubt one of the States. According to the IRS, the Act incurred to substantially improve your debtor in a short sale would not be pre - Bush era’s most logical legislative accom - “allows taxpayers to exclude income from main home is also treated as qualified cluded from filing for bankruptcy for plishments and the implications of its the discharge of debt on their principal principal residence indebtedness.” eight years. Yet, with the Act expiring, it expiration. residence .” To obtain this relief, the tax - Lastly, the “maximum amount you can is submitted that a discharge of a Cancellation of debt income is reported payer was required to file Form 982 and treat as qualified principal residence Mortgage Note pursuant to a Chapter 7 on IRS Form 1099-C by the creditor for attach it to their federal income tax return. indebtedness is $2 million .” Bankruptcy is the best practice as each debtor for whom the creditor can - Pursuant to Form 982, a principal resi - opposed to obtaining debt forgiveness in a celed $600 or more of a debt owed. The dence is defined as follows: “your main During the previous five years it has short sale. Our advice to clients should relevant IRS publication on this topic is home, which is the home where you ordi - become commonly understood among all mirror this understanding as obtaining Publication 4681, entitled “Canceled narily live most of the time. You can have real estate industry professionals that short debt forgiveness in a short sale will cost Debts, Foreclosures, Repossessions, and only one main home at any one time .” sales on a primary residence will not result the homeowner thousands of dollars in Abandonments .” Therein, Canceled Moreover, the form caps the exclusion in income tax. Real estate brokers and taxes should the Act not be extended. Debts are explained as follows: “if a debt from taxable income as follows: salespersons preach this gospel when for which you are personally liable is making their short sale listing presenta - Note: Andrew M. Lieb is the Managing canceled or forgiven, other than as a gift “This indebtedness is a mortgage you tions. Attorneys support this understand - Attorney at Lieb at Law, P.C., a law firm or bequest, you must include the canceled took out to buy, build, or substantially ing when engaging in negotiations and/or with offices in Center Moriches and amount in your income .” Therefore, pur - improve your main home. It also must closing a short sale transaction. In fact, Manhasset. Mr. Lieb serves as Co-Chair suant to Publication 4681, a mortgage be secured by your main home. If the accountants ratify this understanding to the Real Property Committee of the modification that includes a principal amount of your original mortgage is when preparing tax returns. Our message Suffolk Bar Association and served as this reduction will result in income tax to the more than the cost of your main home must be changed. year’s Special Section Editor for Real debtor. Likewise, a short sale that plus the cost of any substantial improve - As attorneys we are charged with the Property in The Suffolk Lawyer. THE SUFFOLK LAWYER — NOVEMBER 2012 19 CONSUMER BANKRUPTCY Suspended Bankruptcy Attorney and Paralegal Punished Pair flaunted bankruptcy petition preparer statute ______filed. Judge Craig sanctioned September 28, 2012, in which other than an attorney or an employee of By Craig D. Robins him in a decision dated March she severely sanctioned the pair, an attorney, who prepares a bankruptcy Non-attorney bankruptcy petition pre - 22, 2012. In re: Clyde Flowers , and in doing so, discussed the court document for a fee. parers can get into a heap of trouble if they (01-12-40298-cec, Bankr. various statutory requirements Since BPPs are non-attorneys, they are do not accurately follow certain E.D.N.Y.) that bankruptcy petition prepar - not permitted to give legal advice and may Bankruptcy Code provisions designed to It seems that Mollo didn’t ers must adhere to. In re Edith only type documents and charge a reason - protect consumer debtors. This was evi - learn his lesson and immediate - L. Moore, et. al. , (12-41111- able fee for doing so. That means that dent in a case just decided by Judge Carla ly embarked upon a new scheme cec, Bankr. E.D.N.Y.). they cannot assist with determining what E. Craig, the Chief Bankruptcy Judge of to circumvent his suspension by A bankruptcy petition preparer assets are exempt or what exemptions the Eastern District of New York, sitting in having his paralegal, Anna (BPP) is essentially a non-attor - statutes to use, nor can they suggest what the Brooklyn Bankruptcy Court. Pevzner, continue to meet with ney who prepares bankruptcy chapter to file. They cannot offer advice To make matters more interesting, the debtors and prepare petitions. Craig D. Robins petition legal forms. Congress as to whether a debt is dischargeable or case also involves disgraced attorney, When the Office of the United States was so concerned about vulnerable whether a car loan should be reaffirmed. Peter J. Mollo, who was the subject of my Trustee learned about this conduct in four debtors who had been victimized by non- In addition, BPPs may not collect, column in May 2012. Despite having separate Chapter 7 consumer cases, it attorney petition preparers who rendered receive, or handle court filing fees in con - been suspended from practicing law earli - quickly brought proceedings against both bad legal advice and charged unreasonable nection with a bankruptcy case. That er this year, Mollo continued to represent of them seeking sanctions and disgorge - fees that in 1994 it implemented means that BPPs cannot file petitions with clients and tried to get away with it by ment of fees. Bankruptcy Code section 110 which is the bankruptcy court. BPPs may not us forging another attorney’s name on sever - After several evidentiary hearings, devoted to regulating their services. the word “legal” or any similar term in any al bankruptcy petitions which he then Judge Craig issued a 31-page decision on That section defines a BPP as a person, (Continued on page 30) TRUSTS AND ESTATES UPDATE ______only a finding of actual miscon - sufficient to warrant his removal promises. Indeed, the court indicated that By Ilene Sherwyn Cooper duct, as specified by the provi - as trustee on the basis of a con - there appeared to be a consistent misunder - Revocation of letters due to Status as sions of SCPA 707, would justify flict of interest. Accordingly, standing of the provisions of EPTL 5-4.6, as creditor denied the removal of a fiduciary or a summary judgment was denied. evidenced by compromise orders that are In a proceeding for revocation of letters refusal to issue a fiduciary letters. In re Estate of Hersh, NYLJ, facially and procedurally non-complaint of co-trusteeship issued to the decedent’s Within this context, the court June 18, 2012, at 26 (Sur. Ct. with the statute. To this extent, while the son, the petitioner, the decedent’s spouse, found that the petitioner had failed Queens County). court recognized the significant efforts of moved for summary judgment. to establish a basis for summary trial counsel in bringing a wrongful death The trust at issue was created pursuant to relief. Specifically, the court held Wrongful Death Compromise action to fruition, it also found that the safe - the terms of the decedent’s will for the ben - that the mere fact that the dece - Order held jurisdictionally guards and procedural prerequisites of the efit of his wife during her lifetime, and dent’s son had asserted claims defective statute were to be strictly adhered to by upon her death, his three children. Upon against the estate and was thereby Ilene S. Cooper In a proceeding for the practitioners seeking relief in the Supreme admission of the will to probate, letters of an estate creditor did not consti - allocation and distribution of the Court. In like manner, it is the duty of the trusteeship issued to the petitioner and the tute grounds for his removal as a matter of proceeds of a wrongful death action, the Surrogate’s Court to insure compliance with decedent’s children, who were the nomi - law. In fact, the court noted that the provi - Surrogate’s Court, Queens County, in In re the statute, especially when a person under a nated trustees there under. The assets of the sions of SCPA 1805 were designed to enable Stokes, scheduled a hearing on the grounds disability was interested in the proceeding. trust allegedly consisted, in part, of shares a fiduciary with a claim against an estate to that the order of compromise issued by the Based on the foregoing, specifically, the juris - of stock of two corporations, of which the serve by requiring that court approval be Supreme Court, purportedly pursuant to dictional deficiencies of the Supreme Court decedent’s son was also a shareholder. obtained for payment of such claim. EPTL 5-4.6, was not in compliance with action, the fact that a guardian ad litem had not These corporations were the subject of Further, the court opined that the counter - the statute. been appointed prior to entry of the Supreme two other related proceedings commenced claims asserted by the decedent’s son did not The court noted that the Supreme Court Court order, and that counsel in the Supreme by the petitioner; one for discovery pur - create a de facto conflict of interest with the order allowed the payment of attorney’s Court had appeared in the Surrogate’s Court as suant to SCPA 2103, and the second for trust since they were asserted against the fees and disbursements without requiring counsel for the fiduciary, the court directed that judicial dissolution of the entities. estate. To this extent, the court found it sig - that those funds remain in an interest-bear - counsel return all attorney ’s fees previously In opposition to the petition for his nificant that the decedent’s son was not a ing escrow account pending the filing of a paid and to deposit same in escrow, and that removal, the decedent’s son asserted eight fiduciary of the estate, and thus, was not in a petition for allocation and distribution. the petitioner amend her petition and account - counterclaims against the decedent’s estate position where he would be forced to make Additionally, the court found that one of ing to include all necessary parties. based upon breach of contract and unjust decisions regarding litigation strategy as a the distributees of the decedent was a per - In re Stokes, NYLJ, May 30, 2012, at p. enrichment. In support of her motion for fiduciary of the estate that would conflict son under a disability for whom a guardian 27 (Sur. Ct. Queens County). summary relief, the petitioner argued that by with the prosecution of his claims. The court ad litem should have been appointed. alleging these counterclaims, the respondent held the petitioner’s claims that the subject Further, the court determined that in the Note: Ilene Sherwyn Cooper is a partner placed himself in a conflict of interest with trust was impacted by these claims conclu - application before the Supreme Court, the with the law firm of Farrell Fritz, P.C. where the estate that required his disqualification sory and belied by the record, which petitioner had not served all the necessary she concentrates in the field of trusts and as trustee as a matter of law. revealed that the trust had already been parties interested in the decedent’s estate. estates. In addition, she is Chair of the New The court opined that a conflict of interest funded. As in the case of the estate, the court The court opined that the foregoing prob - York State Bar Association Trusts and in itself did not warrant removal of a fiducia - concluded that even if the claims of the lems and issues raised by the Supreme Court Estates Law Section, and a member of the ry. Indeed, given the great deference accord - decedent’s son were against assets purport - proceedings were not isolated incidents Board of Directors and a past-president of ed to the testator’s selection of a fiduciary, edly owned in part by the trust, it was not within the context of wrongful death com - the Suffolk County Bar Association. Choose To Be Happy! 20 THE SUFFOLK LAWYER — NOVEMBER 2012 He Wanted His Day in Court! ______a boon for the insurance compa - employed as a custodian, and $20,000. A judgment was then entered, the By Edwin Miller nies. That is where the matter the house he lived in was owned carrier paid the $20,000, and a partial satis - This is a true story. The names of the stood until shortly before trial. by his second wife . His person - faction of the judgment was given to them. three judges have been withheld out of al lawyer, with whom I had respect. The History of Plaintiffs gone to law school, called me Epilogue The plaintiffs were from and indicated that if a judgment A week or so after we gave the plaintiff a The Accident England. He was in the British was obtained for more than copy of the $55,000 judgment, I received a The plaintiff was a union carpenter. His Army and after his discharge they $20,000, his client would imme - call from a local collection lawyer whom I car was hit in the rear on Sunrise Highway married, had children, and then diately file for bankruptcy, knew well. He was all excited about collect - near Patchogue on June 30, 1973. He immigrated to the United States. which would eliminate the ing the excess $35,000. I asked him if his injured his neck and lower back and They were from a very poor sec - excess judgment debt. Despite “new” client had told him about the claimed that he could no longer work as a tion of East London. The family Edwin Miller all of this information, the plain - impending bankruptcy filing. Of course, he union carpenter. This accident occurred home of the plaintiff had been condemned, tiff still insisted on having his day in had not. Two days later, the bankruptcy prior to the enactment of the No-Fault demolished, and was now a parking lot! court! We placed the settlement offer on notice came in the mail. The collection Law in 1974 so there was no “threshold” They were like a couple from “Upstairs/ the record, and my advice to settle, just in lawyer then called me to tell me he wasn’t problem. His doctor confirmed his injuries Downstairs.” The wife always wore white case the verdict was less than $20,000! going to waste any more time on this matter. and disability as a carpenter. After a few gloves and a little hat with a flower. The plaintiff was technically within his years, he was able to perform light car - The Trial rights to insist on “his day in court,” but to pentry work. Because of the great calendar The Final Conference The trial judge also tried to reason with what end? delay which existed in Suffolk County this Shortly before trial, there was a final the plaintiff. He was the third judge who At another time, and in another place, case was not tried until 1979. attempt by a judge for settlement. Lo and did so. It didn’t matter he wanted his day in another Englishman had written, “What behold, after six years, the insurance carri - court! The case was tried, and all of the wit - fools these mortals be!” The Insurance Coverage er finally offered their policy limits, nesses testified, including the plaintiff’s The other driver had a $20,000 liability $20,000. Everybody thought there finally doctor. His wife also testified, with her Note: Edwin Miller has been practicing policy. The insurance company thought the was a settlement, including the judge. white gloves, as to loss of services. The law in Suffolk County for more than 50 years. plaintiff was a malingerer and only offered However, the plaintiff still wanted his day jury’s verdict was $55,000, $50,000 to He is a partner in the firm of Campbell & $3,000. Even if the jury gave us a verdict, in court! Both the judge and I explained to plaintiff and $5,000 to his wife. The plain - Miller, Esqs. at 94 Maple Avenue, Smithtown, there would be no interest on the verdict for him that this was the most he could possi - tiffs were ecstatic! I told them not to get too New York. He has a general practice with an the six years it took to get to trial. This was bly recover. The defendant was divorced, excited since they would only collect the emphasis on litigation.

REAL ESTATE

_W_____h___a__t__ _i__s__ _M_____o__ rtgage OSncee itc isu creratiedt iit czananott aicocepnt a nyF newaillo? an/asset from being “clawed back” by a estate is hundreds of years old. Its primary By Charles Wallshein assets into the pool. The assets must be bankruptcy trustee in the event of the insol - function was and is to prevent parties from Before you can understand securitiza - specifically identified and vested in the vency and bankruptcy of the originator or unlawfully claiming rights in real property tion fail you have to understand the basic trust within a statutory time frame. seller. The last purchaser of the assets (the they do not have. Title law also establish - principles of securitization. Second, the trust must take good title to trust) has to be “bankruptcy remote .” A es an order of priorities between and A mortgage securitization is where a the assets (mortgages and notes) deposited string of bona fide purchasers of the loans among competing interests in real estate. group of several thousand mortgages, into the trust. is necessary to accomplish this. Foreclosure is the equitable remedy pur - commercial or residential, are pooled into Third, the assets in the trust must be The PSA is therefore very specific as to sued against the defaulted borrower by the a security known as a Mortgage Backed insulated from creditors. The trust assets the method and manner by which the trust lawful owner of a promissory note secured Security (MBS). The MBS is sold as a cannot be reached by creditors in the event accepts assets and as to the manner and by a mortgage or deed of trust. security and is usually listed on the Over the seller/originator of the loans that con - method of asset delivery. The architects of Foreclosure allows the promisee/lender the Counter market as a “pink slip.” These stitute the corpus of the trust files for the RMBS transaction drafted PSAs such to elect to take the secured property from securities are likewise registered with the bankruptcy. This is called “bankruptcy that the document created a transactional the promissory. The mortgage note and the Securities and Exchange Commission. remoteness .” model wherein the IRC’s requirement of mortgage lien merge into the judgment of The basic economic principles of the In order for the RMBS transaction to the static corpus was satisfied, and bank - foreclosure, the property is sold at public secondary mortgage market apply to MBS meet all three criteria a trust has to be cre - ruptcy trustees were deterred from reach - auction and all junior interests are cut-off. transactions. The MBS investors known as ated. The trust creation document is often ing trust assets. It follows that the enforcing party must trust-certificate-holders pay the originator referred to as a Pooling and Servicing These were probably the primary con - have an interest in the promissory note and of the mortgage pool also known as the Agreement or PSA. The PSA is the docu - siderations in devising the manner and that party [claiming that interest] be iden - “seller” a premium for the present value of ment that governs all trust activities. method of transferring legal title to the tified with notice to the world to be a law - the future cash flow from the mortgage Breaches of the agreement that violate the note and security instruments along the ful plaintiff in a foreclosure action. pool. This is commonly known as the “dis - above criteria could result in the exclusion chain of entities to effectuate lawful and These principles are receiving a lot of count .” The seller’s profit comes from the of assets from the pool and/or the loss of enforceable title to the loan in the trust. It attention lately in the courts for two rea - “spread .” The investor’s benefit is receiv - the pool’s tax-free-pass-through status. is important to understand the scope of the sons. First, foreclosure defendants are ing stable cash flow from an investment Both or either of these results would number of document transfers necessary raising “standing” defenses against plain - grade security. 1 diminish the pool’s value and hence the considering over 7 trillion dollars of these tiffs. Second, investor certificate-holders However, RMBS (Residential Mortgage value of the trust certificates to the detri - securities were created during the peak are suing trustees for their failure to ensure Backed Securities) transactions are differ - ment of the certificate holders. years of the bubble. Of secondary consid - that the trust took good title to loans in the ent from traditional loan sale transactions The PSA is a contract between all par - eration was enforcement by the trustee of trust. These cases are called “put-backs .” in one remarkable way. RMBS transac - ticipants in the RMBS transaction where - the note and security instrument in equity “Put-Back” litigation is just what it sounds tions are designed in such that they are in complex contractual interrelationships against defaulted borrowers (foreclosure). like. Certificate holder-investors are trying subject to income-tax taxation at the are created between and among the parties It has become very clear that the docu - to force the loans to be “put-back” to the investor level only. The millions of dollars that originate and transfer assets to the ment transfer process among all RMBS originator-sellers and have their invest - of income generated by the thousands of trust, the entity that manages the assets in participants is rife with omissions such ment refunded. mortgages in the mortgage pool annually the trust, the entity that holds the assets that the trusts’ title to the underlying loans It is safe to say that many RMBS are taxed at the investor-certificate-holder and the investors in the trust. is in question. Real estate loans generally investors’ certificates are worth consider - level only. To accomplish this , the mort - The entity that eventually “owns” the consist of two documents, a promissory ably less now than when they were pur - gage pool has to be set up as a Real Estate loans is the trust. The entity that manages note and a mortgage. Different bodies of chased. 3 The real estate bubble caused the Mortgage Investment Conduit or the assets in the trust is the “trustee .” The law control the transfer of the note and the riskier tranche certificate holders to be “REMIC .” 2 If the mortgage pool is not set entity that deposits the loans into the trust mortgage. As a general rule 49 states have severely impaired with respect to the like - up as a REMIC then the income from the by transferring the loans to the trustee is adopted the amended 2001 versions of lihood of performance and recapture of pool could and would be taxed twice by the the “depositor .” The entity that transfers Article 9 provisions of the Uniform principal. In many cases the certificate- IRS (and the states), once at the pool level the loans to the depositor is the “seller .” Commercial Code. On the other hand each holders of lower tranche certificates have and then again at the certificate-holder The entity that transfers the loans to the state has its own rules governing the trans - been effectively wiped out. These level. It is therefore crucial that the REMIC seller is the “originator .” The entity that fer of the security instruments (mort - investors are suing trustees for failing to rules governing RMBS trust construction creates the trust is the “sponsor .” gages). Real estate law governs how mort - create the trusts properly. Investors are are followed to the letter of the law. The casual observer asks why loans have gage instruments must be recorded such also suing the originators and sellers for To achieve REMIC status the RMBS to go from the originator to the seller to the that they may be lawfully enforced in fore - failing to adhere to their “representations must meet three specific criteria. First, the depositor to the trustee. These multiple closure. and warranties.” RMBS mortgage pool must be static. steps have to be taken to insulate the Our system of titled ownership to real “Representations and warranties” are (Continued on page 26) THE SUFFOLK LAWYER — NOVEMBER 2012 21 TRUSTS AND ESTATES Standing of “Potential Heirs” to The New York Center for Sue for their Parents’ Assets Neuropsychology ______v. David , the plaintiff com - & Forensic Behavioral Science By Robert M. Harper menced an action to impose a Oftentimes estate litigation constructive trust on real prop - arises when parents favor one or erty that her mother transferred more of their children over others to her brother. 2 Among other in their estate plans. Fortunately, things, the plaintiff alleged that Dr. N.G. Berrill, Director at least for the parents, they do her brother had fraudulently not have to deal with the issues induced their elderly mother to involved in the litigation, as they convey the properly to him by are deceased by the time that it telling the mother that the deed arises. As the Second she signed only permitted him Department’s decision in Robert M. Harper to manage the property while Over 25 Years Sharrow v. Sheridan demon - she was out-of-state. The defen - [ \ strates, however, disfavored children do not dant moved to dismiss, arguing – with his always wait for their parents to pass before mother’s support – that the plaintiff lacked commencing litigation concerning the par - standing to seek a constructive trust. ents’ assets. Indeed, some disfavored chil - Although the Supreme Court denied the Providing Consultation to Attorneys dren have gone so far as to sue their parents defendant’s motion, the First Department and siblings as “potential heirs” of the par - reversed. The Appellate Division reasoned & the Courts on Psycho-legal Matters ents’ estates. This article explains why that the plaintiff was not a party to her such a strategy will prove unsuccessful. mother’s conveyance of the property and In Sharrow , the plaintiff commenced an could not void it simply because she con - action against his mother and his sister, sidered herself to be an heir of her living seeking to impose a constructive trust on mother’s estate. In short, the plaintiff’s • Criminal Cases: Competency Issues, Criminal certain assets that the mother transferred to self-serving description of herself as a the sister. 1 The plaintiff alleged that a con - potential heir of her mother’s estate did not Responsibility, Extreme Emotional Disturbance, Risk structive trust was warranted because the cloak her with standing to sue or exercise sister exercised duress and undue influence rights on her mother’s behalf. Assessment, Sex Offender Workups & Dispositional on the ailing mother in pressuring her to There are several lessons to take away from transfer the assets to the sister. When the Sharrow and Schneider , the most obvious of Planning mother and sister moved to dismiss the which is for children to respect the wishes of plaintiff’s complaint, the plaintiff asserted their parents as those wishes relate to the par - that he had standing to seek a constructive ents’ assets during life. Putting the obvious trust over the assets formerly belonging to aside, however, disfavored children and their • Matrimonial & Family Court Cases: his mother as a “potential heir” of her attorneys should take note of the well-rea - estate. soned legal principle that, as “potential heirs” Custody/Visitation, Neglect/Abuse, Termination, The Supreme Court granted the defen - of their parents’ estates, they lack standing to dants’ motions to dismiss and the Appellate take legal action concerning their parents’ Delinquency, Family Violence, & Adoptions Division affirmed. In affirming, the assets. During their lives, the assets belong to Second Department found that the plaintiff the parents and are subject to the parents’ lacked standing to seek to impose a con - absolute right to dispose of their property as structive trust on the assets that his mother they wish. • Civil Cases: transferred to his sister. As the court Competency Issues, Head Trauma, explained, for as long as she was alive, the Note: Robert M. Harper is an associate at mother had “the absolute right to change Farrell Fritz, P.C., concentrating in trusts and Sexual Harassment, Discrimination, Immigration, her intentions regarding the distribution of estates litigation. In addition to his work at her assets.” Accordingly, the court con - Farrell Fritz, Mr. Harper is a Special & Post-Traumatic Stress Disorders cluded that the plaintiff’s interest as a Professor of Law at the Maurice A. Deanne “potential heir” of his mother’s estate was a School of Law, an officer of the Suffolk “potential, speculative interest” that did not Academy of Law, and a member of the New vest him with standing to prosecute a con - York State Bar Association’s House of structive trust claim concerning his moth - Delegates. er’s former assets. Of course, Sharrow is not the only case 1. Sharrow v. Sheridan , 91 A.D.3d 940 (2d Comprehensive Diagnostic & in which a child sought to void an inter Dep’t 2012). vivos transfer made by a parent as a poten - 2. Schneider v. David , 169 A.D.2d 506 (1st Treatment Services tial heir of the parent’s estate. In Schneider Dep’t 1991). Remembering Two Supportive Members of our Bar Association Adolph Siegel and Sheldon D. Katz will be missed Adolph Siegel, Esq., formerly of East Islip, son-in-law, Michelle and Joe Bodnar of MAIN OFFICE passed away on Oct. 2. Dolf’s practice Sarasota, Fl., son and daughter-in-law, Bill and focused on real estate, construction and zoning Susan Siegel of Hampton Bays, NY and 26 Court Street, Suite 1711, Brooklyn, NY 11242 matters. He represented some of the largest granddaughters Jennifer and Sharon Siegel, developers, land title insurance companies, and grandson Jared Bodnar. 718-237-2127 local small businesses, as well as families and We also lost an avid tennis player who he quickly became one of the most respected chaired the Annual Outing Tennis Tournament attorneys on Long Island. for many years, Sheldon D. Katz, Esq., a He was a member of the Suffolk County member of the SCBA since 1959. Up until the LONG ISLAND OFFICE Bar Association for more than 50 years and he time of his passing in early October, Shelly served as a member of the Board of Directors, was a District Court Small Claims Arbitrator; 45 North Station Plaza, Suite 404, Great Neck, NY 11021 chaired the Real Property Committee and the he participated in the Maritime & Recreational 516-504-0018 LIBOR task force. Dolf successfully argued Boating Law, Creditor’s Rights, District cases before the New York State Supreme Court, and legislative Review Committees. He Court, New York State Appellate Division, lectured for the Academy of Law and took Second Judicial Department as well as the pleasure in all of the things he endeavored to MANHATTAN New York State Court of Appeals. One of his do. His son, Gary said his father’s passions greatest accomplishments was drafting an act and interests included stamp collecting, coins, 139 Manhattan Avenue, New York, NY 10025 to amend the Real Property Law in New York antiques, art, boats and boating, tennis, skiing, State which was signed into law by then magic, travel debate, learning, education, reli - 212-280-3706 Governor Mario Cuomo in 1991. gion, philosophy, comedy, public service, a Dolf was an avid golfer and participated in fondness for Shakespeare, love of theater, our Annual Outing for years. He also enjoyed books, bridge, friends and family. To his wife WWW.NYFORENSIC.COM playing tennis and bridge with his beloved of 55 years, Audrey and daughters Vicki and wife Beverly, who passed away a few months Lori, his son Gary and his grandchildren we [email protected] before him. He is survived by his daughter and offer our heartfelt sympathy. 22 THE SUFFOLK LAWYER — NOVEMBER 2012 BOOK REVIEW P h o t o

c r e d i t :

_T___r__a__c___k___ _w____a___s__ _P___r__o___l__o__g_ ue S astic, youthful, white hair notwithstanding— locked in memory as life’s highlight, Zamperini h o r t By William E. McSweeney and Ryan Bergen who recalled Owens’s brilliant performance in would lead a long life that unceasingly gained in e l l

Berlin in 1936. That witness to Owens’s perfor - greatness. M

“Survival, it is called. Often it is accidental, c S sometimes it is engineered by creatures or mance was Louie Zamperini, who had himself ______w e e

been a teammate of Owens on the United States Unbroken: A World War II Story of Survival, n

forces that we have no conception of, always it e y is temporary.” Track Team, and , though he wouldn’t get to Resilience, and Redemption . Wallace Stegner, “Crossing To Safety” stand victorious on the tripartite podium , had By Laura Hillenbrand spun his final lap in the 5000-meter event in an With photographs. In Seabiscuit: An American Legend , Laura astounding 56 seconds. His finishing kick was 473 pp., Random House, New York Hillenbrand celebrated a fleet-footed so remarkable that its performer was brought to ISBN 978-1-4000-6416-8 quadruped. In Unbroken: A World War II Story The Fuhrer’s box. “Ah,” said Hitler, “you’re the ______of Survival, Resilience, And Redemption , she boy with the fast finish.” celebrates a fleet-footed biped, Louie Yet, for Zamperini, his speed of foot as a 19- Born to immigrant parents on January 26, year-old Olympian would serve merely as pro - 1917 in Olean, New York, Louie was brought Zamperini. Casting a critical eye on each other’s work, logue. Unlike Irwin Shaw’s protagonist in The to Torrance, California when he was but two, Is this an unfamiliar name? Those of you who Fowler’s Modern English Usage sits on Eighty-Yard Run , whose brush with greatness lay this as a curative measure; their son having watched the recent PBS biography of Olympian grandfather’s knee, keeping both writers long behind him, his sole college touchdown in suffered a bout of childhood pneumonia, his Jesse Owens were likely impressed by a white- grammatical and George Orwell peers over an unnoted intramural scrimmage , having been parents were advised that the California haired talking head—a man animated, enthusi - the shoulders of grandfather and grandson, warmth would be good for the boy. And more keeping both honest. than good for him it was , after a shaky start. ELDER LAW His very early years saw him as a petty thief, of its catch is inferior. ever-outrunning the neighborhood cop; his Inferior characterizes the great majority of childhood stories usually ended with “…and the guards at Omori. With few exceptions, then I ran like mad.” Little surprise then, that they were lazy, undisciplined, their cowardice Managed Medicaid at Torrance High School , his pre-teen misde - proven by their sadistic treatment of the help - meanors behind him , he began setting scholas - less; these men were guards precisely because Advocating for Seniors & the Disabled at Home tic records in the mile. they were adjudged by superiors as being unfit ______Upon graduation, Louie cleared the Olympic as warriors. They were so volatile, so easily By Melissa Negrin-Wiener, and Diana Choy Shan trials held on Randall’s Island, New York, and inflamed, so quick to violence, that their pris - It is no secret that the Medicaid budget in at 19 years was the youngest distance runner , oners, among themselves, designated them by our state (and country, for that matter) is a large essentially a “boy,” as Hitler would note , ever to the use of superficially innocuous nicknames, percentage of the annual budget. To that end, it make the Olympic team. In Berlin, his eighth- uncharged with any negative value; had the is no surprise that New York State is working place finish while yet a teenager seemingly prisoners been overheard using nicknames hard to reduce Medicaid expenditures each assured him of a berth on the 1940 team. laden with hate, they would summarily have year. However, we have to ask ourselves, at Now in college, wearing a singlet that bore been taught respect by means of anything what cost to our seniors and the disabled ? the words “University of Southern California,” available to the guards—fists, kendo sticks, It is imperative that attorneys understand Zamperini steadily approached the four-minute baseball bats. the issues and the tools available to fight mile (once running the distance in 4:08.3 ), and The most feared of these guards was “The unfair reductions of services on the backs of anticipated competing in the 1940 Olympics, to Bird,” a man whose nickname was conspirato - our elderly and disabled neighbors. Melissa Negrin-Wiener Diana Choy Shan be held in Tokyo, when the world erupted in rially understood by the prisoners to connote a Currently in New York City and coming soon to As to individuals already receiving warfare. He was thus to be foreclosed from bird of prey—a predator ever-ready to swoop Nassau and Suffolk Counties, all individuals Community Medicaid/Home Care who have Olympic glory, but, typical of his generation , he down and ravage the defenseless. His conduct receiving Community Medicaid with Home Care been advised of a reduction in hours, again, didn’t whine at his loss; he understood that mil - toward his prisoners was marked by the con - services will have to choose a Managed Medicaid remedies are available . A reduction in hours lions of people were being cheated of things far stant infliction of gratuitous assaults; the plan to service their care. The Managed Medicaid can be challenged via a Fair Hearing, which is more precious than participation in sports. imposition of degrading drills, including push- plan provides a case manager to each individual a review of the DSS action by an Which isn’t to discount the value Zamperini ups over excrement pits; the supervision of who will assist in determining that person’s needs. Administrative Law Judge and ultimately, a gained by his exertions in track; indeed, it could forced labor in the advancement of Japan’s As Managed Medicaid is rolled out throughout the decision by the New York State Department of be argued that, by dint of track, he had early war effort, violations of Geneva protocols. boroughs, Community Medi-caid/Home Care Health. Attorneys and families need to know learned to “run through the pain.” This lasting “This isn’t Geneva!” recipients have begun receiving notices from the that, while their challenge is pending, they physical stoicism and a salutary psychological The Bird would scream at protesting offi - Medicaid agency that their home care hours are have the right to “Aid Continuing” which component, the latter fortune-sent, “engineered cers, his screams invariably accompanied by being reduced purportedly because, upon review of means that the individual receiving benefits by creatures or forces that we have no concep - attacks on the protesters, leaving them con - their case, their needs can be met with fewer hours. must continue to receive the same level of care tion of,” as novelist Wallace Stegner well puts cussed and broken-boned. Individuals receiving 12x2 split-shift care (two until a determination is made as to the pro - it—both elements fused within him, wired his Who was The Bird? Who was this savage? home health aides working 12 hours each) are hav - posed reduction in hours. As the Fair Hearing system with an obdurate optimism. No matter This savage, Mutsuhiro Watanabe, was reared ing their hours reduced to 24 hour sleep in services process can be quite lengthy, it is critical that Fate’s vagaries, Zamperini was, simply stated, in a privileged household, his family made (an aide is present in the home around the clock but a recipient’s level of care be maintained while unbreakable. wealthy due to real estate holdings. He held a can only provide up to 13 hours of care). Other the matter winds it way through the system. This would be proven in the years to come. degree from Tokyo’s prestigious Waseda recipients are finding their hours reduced and new As to the new Managed Medicaid plans In early 1941 he volunteered for the Army Air University, where he had majored in French lit - applicants for home health care are being autho - being rolled out, attorneys should know that Corps, and was commissioned as a lieutenant. erature; so much for “good” breeding and rized initially for far fewer hours than in the past . not all plans are created equally. Generally, Serving as a bombardier, he was among the higher learning as conferrers of civility. At all When attorneys hear of such cases they must each Managed Medicaid plan has a different crew of the “Green Hornet,” a B-24 Liberator events, by pedigree and education, then, he felt be aware that there are avenues to pursue to reimbursement rate, meaning that certain which, on a rescue mission, itself crashed into entitled to a commission. Military superiors challenge these limitations and/or reductions plans with higher reimbursement rates can the Pacific, the result of an inexperienced co- thought otherwise. He attained only the rank of in hours of care. By way of background, when provide greater services, in some cases . For pilot’s error. Three men survived, Zamperini corporal, and this rejection, according to a Community Medicaid/Home Care applica - example, some Managed Medicaid plans are among them. For 47 days they drifted in their Hillenbrand, “…derailed him, leaving him tion is submitted, the initial review is of the able to provide applicants with 12x2 split- rubber life raft across the Pacific living on rain - feeling disgraced, infuriated…Those who applicant’s finances. The local Department of shift care even under the Managed Medicaid water and what fish they could catch; their knew him would say that every part of his Social Services (“DSS”) reviews the applica - model. It is important to investigate these sleep regularly broken by terrifying vibrations, mind gathered around this blazing humiliation, tion to ensure that the individual is below the options as switching from one Managed triggered by sharks that passed under the raft, and every subsequent action was informed by allowable resource and income levels. Medicaid plan to another is much simpler and their dorsal fins rubbing against its hull. it. This defining event would have tragic con - Once there is a financial approval, DSS less costly than pursuing an increase in ser - When they finally raised an island, the men sequences for hundreds of men.” must then assess the applicant’s medical need. vices via a Fair Hearing. were joyful but it was fleeting. A Japanese After serving briefly with a regiment of the The agency does this by reviewing medical In these days of tight budgets and escalating patrol boat cut across their bow, guns were Imperial Guards—his superiors soon wanting records and sending a DSS nurse into the costs, it is easy to focus on the numbers and pointed at them, and they were taken ashore to to rid the guards of an unstable and venomous home to evaluate the individual for an appro - forget about the human face of this debate. Kwajalein Island. Soon thereafter, they were soldier or perhaps to put his volatility to use priate level of care . At this stage of the However, at issue are real people – the elderly, transported to a POW camp at Omori, which transferred him to the military’s most igno - process, attorneys should advise families of the disabled – whose quality of life is at risk. sat on an artificial island in Tokyo Bay. There, minious station for NCOs, a POW camp. the right to have a qualified advocate, such as Take the case of Mary Smith (not her real all that Zamperini had previously suffered At Omori, his depredations intensified in a nurse, social worker or geriatric profession - name), for whom our office provided legal ser - would, in retrospect, collectively seem but a direct proportion to allied victories. When our al, present at this assessment to appropriately vices on a pro bono basis. Mary is 35 and lives mild precursor, now that he was in the hands B-29s began bombing Tokyo, unopposed, communicate health care needs, assistance in the Bronx with her young children. She suf - of the camp’s guards. panic set in among the guards, humor set in requirements with activities of daily living and fers from Spinal Muscular Atrophy, a progres - These guards were not to be confused with among the POWs, some of whom , those generally speak in terms the agency evaluator sive disease with no known treatment. Mary is Japanese warriors. The ideal Japanese soldier strong enough to speak , expressed it vocally: will understand . Of necessity, there are now a wheelchair bound and only has limited use of was informed by Bushido , the way of the war - “You must be sober,” The Bird exhorted the myriad of professionals available who will not her right arm, which she can raise to a 45 rior. He maintained a code of conduct formu - exhausted. “You must be sincere! You must work only help prepare applicants and their families degree angle. She does not have the ability to lated by the Samurai of feudal Japan, a code for earnest! You must obey! I have spoken.” for this assessment but who will attend the use any of her other extremities whatsoever. that emphasized loyalty, courage, plain living, “Who the hell is Ernest?” muttered a POW. assessment and interact with the DSS Mary survives in the community with the assis - and a preference for suicide (hara-kiri) over But humor had little to do with captivity. To nurse/evaluator. People with knowledge of the tance of a home health aid and relies on church dishonor. Such was the ideal soldier, the select the contrary, Hillenbrand depicts so vividly assessment process and the Medicaid program volunteers to help her with her own children. one. But total mobilization tramples selectivi - the brutal treatment of the POWs that the read - are the key to helping ensure that the applicant Mary requires care and assistance with ty; over-inclusiveness necessarily inheres in er comes close to co-opting the sufferer. If the gets the highest level of care possible. (Continued on page 26) conscription. When the net is cast wide, some (Continued on page 26) THE SUFFOLK LAWYER — NOVEMBER 2012 23 IMMIGRATION

_W____a___n___t_e__ d! An Ethicarelsp ecMting daivenrsitdy aand tdieffe:re ncCes ultural Coa dmiscrimpinaetiotne bonrn cof efea r , idnis - L•a Cuw lturally and Linguistically Appro-pri - By Roy Aranda in a continuous process of self- trust, and aversion of Hispanics . ate Services (CLAS) mandates are This is part one of a two part series. assessment and reflection on one’s Touro Law Center Associate Dean Federal requirements for all agencies personal and organizational percep - for Academic Affairs Deborah Waire that receive Federal funds. CLAS stan - According to the 2010 Census, 50.5 million tions of the dynamics of culture.” 3 Post notes an emerging consensus dards are geared to make the practices of people or 16 percent of the population are of As noted by the American that “cultural competence is a skill health care providers more culturally Hispanic or Latino origin. In addition, there are Psychological Association, multi - and ethical obligation of practition - and linguistically accessible. There are 3.7 million residents in the Commonwealth of culturalism is broadly defined to ers .” 5 And she describes pluralistic 14 standards organized by themes: Puerto Rico. Hispanics are the fastest growing encompass “race, ethnicity, lan - ignorance as erroneous beliefs held Culturally Competent Care; Language minority group. The U.S. Census Bureau pro - guage, sexual orientation, gender, by one group about others. Access Services; and Organizational jects that by July 1, 2050, the Hispanic popula - disability, class status, education, The duty to become culturally Supports for Cultural Competence .6 tion will be 132.8 million, constituting 30 per - religious/spiritual orientation, and competent rests with the attorney, cent of the nation’s population .1 other cultural dimensions.” 4 Roy Aranda not the client. Failing to don the • International Human Rights provide a multi - Census data reveal that California, New Becoming culturally sensitive and lens of cultural competence can tude of fundamental human rights and free - York, and New Jersey have the highest for - competent is a tall order. The consequences of strain or damage the attorney-client relation - doms. The International Covenant on eign-born proportions in their total popula - not evolving into culturally competent attor - ship and affect the outcome of a case. Economic, Social and Cultural Rights was tions. Over 1 in 4 residents of California and neys and shedding stereotypes, however, There are models drawing from legal ratified by 132 states including the United over 1 in 5 in New York and New Jersey leaves in its wake a trail of disservice to a size - mandates and the ethical standards of other States as of September 30, 1995. 7 This gold were foreign-born. able population of Hispanic consumers in New professions that pertain to cultural and diver - standard calls for becoming aware of, appre - The implications for the practice of law in York and consumers of other ethnic back - sity-based competence . They are: ciating, and understanding the culture of dif - New York, in light of this large influx of grounds, many of whom navigate turbulent ferent people we come in contact with pro - immigrants that must consider how to legal waters with little if any assistance and are • New Jersey enacted a law in 2005 that fessionally to safeguard their cultural rights. accommodate effectively the needs of the underrepresented and misunderstood. requires doctors to take cultural compe - more than 1 in 5 residents who are foreign- Several potential errors may arise. These are tency training to obtain a medical • The United Nations approved the born, poses a challenge that is nothing short driven largely by a lack of awareness of cus - license or renew their licenses. S118- Declaration on the Rights of Indigenous of formidable. toms, behaviors, verbal and non-verbal com - 2011 in N.Y. requires cultural awareness Peoples on September 13, 2007. 8 In his According to the Office of Minority munication, and several other factors particu - and competence training for all medical treatise, The Rights of Indians and Health, culture refers to “integrated patterns lar to a given culture. professionals as part of their licensing Tribes, Fourth Edition , Stephen L. Pevar of human behavior that include the language, Further contaminating the field are perva - requirements. Similar legislation has reports that according to the 2010 thoughts, communications, actions, customs, sive stereotypes. For Latinos, for instance, all been proposed or enacted in other states. Census the total population of Indians beliefs, values, and institutions of racial, eth - Hispanics are the same, less educated, less The trend in the medical profession is and Alaska Natives is approximately 5.3 nic, religious, or social groups.” And compe - intelligent, less productive, more violent, more for physicians to recognize language million. 9 He notes frequent victimiza - tence “implies having the capacity to function criminal, and less worthy of services because and cultural differences in their patients. tion of Indians stemming from racial effectively as an individual and an organiza - they are “illegals.” The latter may extend to the stereotyping and calls for increased edu - tion within the context of the cultural beliefs, offspring of immigrant parents as seen in ref - • New York State’s Office of Mental cation, dialogue, and heightened sensi - behaviors, and needs presented by consumers erences to “anchor babies” and efforts to pro - Health (OMH) Cultural Competence tivity to combat stereotyping. and their communities.” 2 mulgate the passage of Anchor Baby bills. Strategic Plan proposes to promote cul - Psychologists are required to abide by the Oregon has a codified statute in which cul - Also worth noting are the consequences of tural and linguistic competence in the 2010 Amendments of the Ethical Principles of tural competence means “accepting and racial profiling and Hispanophobia defined as services provided by that OMH . (Continued on page 31) AMERICAN PERSPECTIVES

_J__u___s__t_i__c__e___ _A__ bove the Lvotiang woverwhelmingly in favor of Attorney General Holder consti - above the mandates of the law. By Justin A. Giordano the contempt resolution. tutes the first sitting member of a There was also second vote held by the Attorney General Eric Holder was held in Holder thus became the first sit - president’s cabinet to be held in House of Representatives pursuant to this contempt of Congress on June 28, 2012. This ting member of a president’s cabinet contempt. In other words those in matter. In fact the House passed a “civil con - was the culmination of a lengthy investigation to be held in contempt of Congress. similar positions from the afore - tempt” resolution by 258 to 95. However as in by the U.S. House of Representatives’ This is not to say that other high- mentioned group were no longer the case of the “contempt of Congress” reso - Committee on Oversight and Government powered office holders and officials officially part of their respective lution, that too has limited practical implica - Reform into the “Operation Fast and Furious” haven’t also been held in contempt administrations, meaning that they tions. This civil contempt motion allows the gun tracking debacle conducted under the pre - of Congress. In fact the list is rela - had either resigned, retired or been House to proceed in asking the courts to force sumed directives of the Justice Department’s tively extensive and over the past dismissed. General Holder to release the documents at Bureau of Alcohol, Tobacco, Firearms and three decades includes former Bush The Speaker of the House of issue. However judges seldom rule to inter - Explosives. The agency had engaged in a White House Counsel Harriet Representatives, John Boehner, vene in cases where the president has already practice known as “gun-walking ,“ where low- Miers, Chief of Staff Josh Bolten and Justin A. Giordano said: “I don’t take this matter light - invoked executive privilege and that is exact - level smugglers were allowed to traffic Deputy Chief of Staff Karl Rove. These ly. I hoped it would never come to this – but ly what the president has done. The latter weapons with the expectation that this would emanated from disputes over documents and no justice department is above the law and the leads to another question, if as the president lead to the capture of bigger fish down the testimony related to the investigation into the constitution.” has claimed he has not seen the contents of line. In essence and in brief, about 1,400 of firing of U.S. attorneys. This sounds like lofty language and obvi - the documents in dispute why is he invoking the 2,000 guns involved went missing. The Clinton White House saw several of its ously given the competitive and at times out - executive privilege? That may be the subject Ultimately two guns were found at the scene officials held in contempt by congress, right adversarial political climate, there is no for a lengthier discussion but it was worth of the killing of Brian Terry, a US border including White House Counsel Jack Quinn, doubt that a political underpinning is integral noting given that it bears relevance to the dis - agent. as a consequence of the “Travelgate” investi - to that statement. Nevertheless the statement pute that led to the contempt resolutions. The committee on Oversight and gation of the firings of White House travel strictly taken at face value is absolutely on The Constitution may seem a bit inconve - Government Reform chaired by representa - office employees. Former Clinton Attorney target in that no individual or agency or nient in a situation such as this but in fact tive Darryl Issa (R-CA) had sought on fre - General Janet Reno was held in contempt for agency head should be above the constitution. the intent of the U.S. Constitution was not quent occasions to have Eric Holder and the failing to turn over documents involved in the In a case such as this where one of the two to have anyone be above the law because of Justice Department that he heads turn over investigation of whether the Justice chambers of Congress has clearly expressed who they were or how high a position they the full array of documents that the commit - Department failed to investigate or prosecute its conclusion that an individual has violated held, nor did it intend the law to be skirted tee hoped would shed light on the policy, cases involving Democratic donors. Former the law, that individual should at the very around or bend to meet the requirements of decisions, and the events that ultimately led Clinton White House Associate Counsel least step down from his post. This is particu - a given party in power. A prosecutor that to the death of Terry. In the course of the William H. Kennedy III was also found in larly true when that individual’s position rep - will not prosecute a duly referred case by debate that led to the contempt vote, contempt during the investigation of the resents the highest legal enforcement office in Congress is exactly what the framers did not Republican representatives who spoke and Whitewater scandal. the nation. want to occur. It was what the nascent questioned Holder repeatedly referred to President Reagan’s Attorney General The normal course of events following a nation was trying to escape, namely what Brian Terry’s family wishes seeking the truth William French Smith was held in contempt contempt of congress resolution is to hand was prevalent in the European nations of surrounding the death of their loved one. for refusing to produce documents on an over the case for prosecution to the U.S. that time where no prosecutorial actions The Oversight and Government Reform investigation of General Dynamics Corp, District Attorney for the District of Columbia would ever be pursued against the monarch, committee recommended that Holder be held while Energy Secretary Charles W. Duncan and that office who is required to prosecute the no matter how meritorious. Let us hope that in contempt of Congress by a vote of 23 to 17 suffered the same fate for refusing to turn case against the Attorney General. The reality this does not set a precedent that will be on June 20, 2012 clearing the way for a vote over documents when Congress was conduct - in this however has been that since the U .S. emulated on a consistent basis in times to by the full House of Representatives. The ing an investigation of the imposition of a attorney for the District of Columbia is an offi - come. If that were to transpire the nation vote by the full House resulted in a tally of petroleum import fee. cial within Holder’s Department of Justice, the would be embarking on a slow, slippery 255 to 67 in support of holding the attorney The above list is certainly not all inclusive U.S. District Attorney simply decided not to slope to making a mockery of our constitu - general in contempt. The vast majority of the but it serves to point out that “contempt of proceed with a case against his own employer tional legal system and all it stands for. Democratic Party representatives walked out Congress” has been utilized by congresses in and political ally. A case of crass or raw poli - of the chamber in protest prior to the vote the past and from majorities on both sides of tics at its worst, making the pursuit of justice a Note: Justin A. Giordano is a Professor of being taken. However 17 Democratic repre - the political isle. The difference however bears travesty and a victim of a partisan prosecutor Business & Law at SUNY Empire State sentatives joined their Republican colleagues underscoring and that is that as stated earlier, that places loyalty to its political benefactor College and an attorney in Huntington . 24 THE SUFFOLK LAWYER — NOVEMBER 2012

President’s Message (Continued from page 1) Two Attorneys’ Whirlwind Tour (Continued from page 1) who underwrote the cost of the author’s Violence at Captain Bill’s Restaurant, hearing about, and learning from, New in Scotland. As I explained the intricacies night for the SCBA. The job done by Scott honoring two SCBA members, Pat Manzo York’s experience with problem-solving of our court system and administration, Karson, another Past President of our Bar and Gayle Rosenblum. courts. I was therefore asked to give and outlined our various types of problem- Association, in introducing Judge Block On October 18, it was my special plea - remarks and participate in an open discus - solving courts before a crowd of over 200 was outstanding. sure to preside at the SCBA’s Annual sion and debate about this innovative topic Scottish judges, government officials and It was particularly rewarding to read Judiciary Night at Lombardi’s on the Bay in at the University of Strathclyde Law professors, I felt tremendous pride in our about the very moving ceremony conducted Patchogue. I want to personally thank all of School in Glasgow. Soon our itinerary was court system’s extraordinary accomplish - by the Navy when the destroyer USS the members of our judiciary who attended planned and everything was booked (at ments. In less than 20 years, our problem- Michael Murphy was commissioned in this event, especially Suffolk County’s own, our own expense), and before we knew it, solving courts have gone from hopeful New York in October. As most of us know, A. Gail Prudenti, the Chief Administrative Robert and I were heading out on one of experiments to mainstream models with Navy Seal Michael Murphy, the son of Judge of the State of New York. I also want the most amazing trips of our lives. far-reaching impacts from reducing crime Daniel Murphy, one of our members, was to thank each and every one of our members The adventure began in Aberdeen, where and aiding victims to promoting public killed in Afghanistan in 2005, and was who took time out of their busy schedules despite torrential rain and wind, I managed confidence in our justice system. And awarded the Medal of Honor posthumously and joined me in honoring our fabulous to look presentable (and even donned a despite a demanding workload and recent in 2007. I am sure that Michael’s parents, judiciary. This was one of the highlights of hat!) for the Queen’s visit. I was awestruck fiscal challenges, our incredibly dedicated Maureen and Daniel Murphy, were very my presidency so far; and by the sheer magnificence of the and talented judges and court staff proud to participate in the commissioning On October 24, I had the honor of join - University’s Sir Duncan Rice Library B throughout the state have demonstrated the of the vessel named in their son’s honor. ing with the Women’s Bar Association at a designed by Danish architects, it was con - strength and resilience of our system, and I am asking all of our members to con - reception to welcome and honor Touro ceived to mark the ice and light of the north, continue to ensure that the highest quality sider joining in a program that is currently Dean Patricia E. Salkin at the Hamlet and its stark style and sweeping staircases of justice is delivered to each and every lit - being run at the SCBA whereby we have a Windwatch Golf and Country Club in were somewhat reminiscent of the igant who enters our courts. panel of volunteer attorneys offering their Hauppauge. As usual, the Women’s Bar Guggenheim. My amazement at the library It has been an unbelievably rewarding services to our veterans returning from Iraq Association knows how to throw a suc - soon gave way to sheer excitement as the experience to work in our court system for and Afghanistan on a pro bono basis in cessful party. Queen arrived. I watched intently as her car the vast majority of my career. I am such matters as custody, visitation, child As to the various SCBA projects that I pulled up, and saw her small, but impecca - extremely grateful to Governor George support, landlord-tenant disputes and many have discussed in my prior columns, be bly dressed, figure emerge. Unhindered by Pataki for appointing me as the Presiding other difficult areas our veterans face after advised: the refurbishing of the Central the rain, she proceeded on her mission with Justice of the Appellate Division for the returning home. A few years ago, the Islip attorney’s lounge and locating addi - the grace and poise possessed only by one Second Judicial Department, where I SCBA offered a free CLE program to those tional space for attorney conference who has attended countless banquets, open - served for nearly a decade, and to Chief of our members who were willing to take rooms at the Central Islip courthouse are ings and galas. Wearing a classic suit with Judge Jonathan Lippman, for my present on pro bono cases representing these veter - in final stages of approval; as of my writ - turquoise embellishments and a matching opportunity to serve as the Chief ans in need. Jane LaCova, the SCBA ing this article, I have no news to report hat, the Queen proceeded to greet the eager - Administrative Judge of New York, to rep - Executive Director, receives numerous about the 18B program except hopefully ly-awaiting guests. resent our exceptional court system, and to telephone calls each week from our veter - that no news about the program running Before I knew it, I was before Her share our remarkable and inspiring story ans and the panel of volunteer attorneys is out of funding is good news for our 18B Majesty, who kindly extended her hand to with people throughout the world. severely short-handed to deal with the ever attorneys. The SCBA task force led by 1st me. I was introduced by the Dean as a dis - The incredible opportunities Robert and increasing caseload. Vice President Bill Ferris is staying on top tinguished alumnus from the States, the I had on this trip, along with the many To encourage your participation in this of this subject which has caused great current Chief Administrative Judge of the other opportunities both of us have been program, the SCBA is planning to offer a concern to our members in the past. New York State Court System. Though fortunate enough to have had throughout free three-credit CLE seminar dealing Congratulations to the Hon. Joan my precise memories of our brief our careers, would not have been remotely with assisting our returning veterans and I Genchi of the Family Court and the Hon. encounter were clouded by excitement possible without the support of our fantas - request that all of our members consider Madeline Fitzgibbons of the District and a sort of out-of-body sensation, it was tic families, friends and colleagues - attending this seminar and joining our vet - Court on their recently-announced and a truly unforgettable moment. Here was a including, of course, County Executive eran’s panel. Having personally taken on a well-deserved retirement from the bench girl from suburban middle-class roots, Robert Gaffney, whose appointment of number of these cases, I can tell you that at the end of this year. I am looking for - whose parents worked tirelessly to ensure Robert led him to become the longest- it is a rewarding experience and the ward to attending their upcoming retire - that she received an education, and her serving County Attorney in Suffolk’s his - returning veterans are very appreciative of ment parties scheduled for later this husband, who stocked shelves to put him - tory, and Robert’s current colleagues at our efforts. month. Their dedication and love for their self through law school, face to face with Lewis Johs Avallone Aviles, LLP. We will In October I attended numerous func - jobs is well known to the members of our the Queen of England. In that moment, I forever be thankful to each and every one tions on behalf of the SCBA and wish to Bar Association. was struck by just how far we had come - of them. My husband and I ended our congratulate the recipients of the many I especially wish to thank the Hon. two lawyers from Suffolk County who whirlwind adventure overwhelmed with awards and honors bestowed that Judge C. Randall Hinrichs, our District had met in the Suffolk County’s feelings of gratitude and pride - grateful to includes : Administrative Judge, who continues to Surrogates Court, where I began my have been offered this once-in-a-lifetime On October 1, the St. John’s work closely with our Bar Association in career as an intake clerk. Even more so, I opportunity and teeming with pride to be a Distinguished Alumni Dinner at the Irish addressing the every day problems faced was struck by the thought of how being a part of our distinguished legal community. Coffee Pub honored the Hon. Andrew A. by our members in the practice of law. part of our legal profession can open Of course, our greatest honor has been to Crecca, a member of the SCBA Board of His dedication and constant offers to countless doors to truly amazing opportu - serve the people of Suffolk County and the Directors. Although I am not a St. John’s assist our Bar Association is deeply appre - nities, and how you never really know State of New York. alumnus, I was impressed by the cama - ciated by me and our Board of Directors, where a law degree might take you. raderie shown by those St. John’s alumni; as well as all of our members. Our next stop was Glasgow, where I had Note: Honorable A. Gail Prudenti is the On October 4, my wife and I along with Happy Thanksgiving to all of you and the wonderful privilege of sharing New Chief Administrative Judge of the New Jane LaCova and her husband, Joey, thor - to all of the members of the Armed Forces York’s tremendous successes with prob - York State Unified Court System and a oughly enjoyed ourselves at the wherever they may be serving. lem-solving courts with our counterparts member of the SCBA. Nassau/Suffolk Law Services fund raising function held at the Carltun in Eisenhower Park; On October 11, Jane LaCova and I were Business Arbitration (Continued from page 9) at the Academic Convocation to install Patricia E. Salkin as the 5 Dean of the one day soon find themselves subject to an ing alternative dispute resolution. 7. Goldman Sachs Execution & Clearing, Touro College Jacob D. Fuchsberg Law accessibility inquiry. L.P. v. The Official Unsecured Creditors’ Center which was held at the Federal The odds of Constitutional challenges Note: Scott Colesanti an Associate Committee of Bayou Group, LLC , 2012 U.S. Courthouse in Central Islip. I had previ - to the conduct of arbitrations would Professor at Hofstra Law School, where he App. LEXIS 13531 (2d Cir. July 3, 2012). ously met personally with Dean Salkin at seem to increase as corporations seek to has taught Securities Regulation since 2002. 8. See FINRA Arbitration Panel Awards the SCBA and I look forward to continu - steer more lawsuits into the forum. He is a member of the SCBA Commercial Former Deutche Bank Employee $3.6M , 44 ing the close relationship between the Concurrently, the chances of punitive and Corporate Law Committee . SRLR 60 (Jan. 9, 2012). SCBA and Touro; damages being awarded seem a bit more 9. See Court OKs $10.2M Award to Former On October 12, my wife and I attended likely as the mere size of awards ratch - 1. See Baravati v. Josephthal, Lyon & Ross, Merrill Advisers , 44 SRLR 1775 (Sept. 24, the annual Hispanic Society Gala which ets upward. And on notions of fairness Incorporated , 28 F.3d 704 (7th Cir. 1994). 2012). was held at the Watermill Inn in and openness, the courts in 2012 con - 2. See generally http://whitehouse.gov/wall - 10. See Jessica Halloway , Judge Cote Hauppauge. As usual , everyone in atten - tributed new focus, no doubt altering the streetreform . Invalidates Mandatory Arbitration Clause in dance had a great time and as also is the risk-reward for such substitutes for jury 3. See Jay Eng, Two Years & Still Waiting …, eBooks Antitrust Case (June 28, 2012 ), case each year, the music and dancing was trials. Overall, while handicapping http://securitiesattorneys.us (July 16, 2012). http://sdnyblog.com . lively and enjoyable; chances in arbitration remains a difficult 4. Wilko v. Swan, 346 U.S. 427 (1953). 11. See, e.g., Steven M. Davidoff, The Life On October 17, Jane LaCova and I business, some noteworthy decisions 5. 9 U.S.C. §10 (West 2006). and Death of Delaware’s Arbitration attended a fund raiser for the Suffolk from the last year hint at a possible new 6. Hall Street Associates, L.L.C. v. Mattel, Experiment , New York Times (Aug. 31, County Coalition Against Domestic set of odds for corporate litigants weigh - Inc ., 552 U.S. 576 (2008). 2012). THE SUFFOLK LAWYER —NOVEMBER 2012 25

Pro Bono Requirements for Students (Continued from page 3) condition of graduation so that perhaps a landlord tenant matter, or a criminal defen - are the following: service for law students is a harbinger to Touro student would need to acquire only ten dant who cannot afford a lawyer, the rule the mandating of pro bono for admitted additional pro bono hours to satisfy the rule. allows the student to get credit for working • that the addition of large numbers of attorneys, a proposal that has been stri - in a public agency such as a District students and the strain on agencies to dently opposed by organized bar associa - The impact of the pro bono require - Attorney’s Office or in the court system. provide adequate supervision will neg - tions for many years. ment on law schools Historically, many years ago, Touro insti - atively impact the quality of service; My thanks to Larry Raful, Tom Maligno Touro is one of only two law schools in tuted the pro bono requirement to help • that if pro bono service is to be man - and Lewis Silverman, Director of New York State that require students to address what it saw as a crisis in delivering dated, the requirement should not fall Externships, Family Law Clinic and complete a pro bono program as a gradua - legal services to those who could not obtain on future law school graduates ; Associate Professor of Clinical Law for tion requirement, the other school being them on their own, whether due to indi - • that students from out of state law their input and assistance in the prepara - Columbia. I am told that nationwide there gence, disability or otherwise. For that rea - schools may be at a disadvantage as tion of this article are only approximately 25 or so law son, the term public interest is used at there is doubt as to their ability to ini - Because there are several weeks schools with a pro bono requirement for Touro to denote work done on behalf of the tiate programs ; between when articles are submitted to graduation. Tom Maligno, the Executive poor, disadvantaged, etc. The term public The Suffolk Lawyer and when the paper is Director of the Public Advocacy Center service is used to include work done for It may be that the law schools will distributed to our membership by the time and Director of Public Interest at Touro public agencies described above. Presently, undertake the responsibility of placing you read this new developments may have Law Center , advised me that all of the 40 Touro’s mandatory pro bono requirement their students in situations to earn their occurred, so stay tuned. hours pro bono requirements would satis - can only be satisfied by work done in the hours. Touro already does that through its fy 40 hours under the new rule. Doing the public interest. Whether that will change in clinics and public advocacy programs. Note: John L. Buonora is a past president math, one can see that in Touro’s case, the response to the new rule is yet to be deter - Placing students in private law firms may of the Suffolk County Bar Association and the school would need to add only 10 hours of mined as will how Touro will add 10 hours be problematic due to the time needed to Suffolk County Criminal Bar Association. He pro bono work requirements to satisfy the of pro bono work to its curriculum and train which would likely count towards the is a former Chief Assistant District Attorney new rule. Schools that do not have major what type of programs they will be. 50 hours. By the time a student is trained and is an Adjunct Professor of Law at Touro pro bono programs in place, whether he or she will likely leave, meaning there Law Center where he teaches the Advanced mandatory or not, will have some work to Some concerns expressed would be minimal benefit to the law firm. Criminal Externship Program. John is a do to be in compliance with the new rule. There have been some concerns and There is the additional difficulty in super - member of the Independent Judicial Election The new rule is pretty broad in allowing reservations expressed by some members of vising the student especially among small Qualification Commission for the Tenth the pro bono requirement to be satisfied in the bar, as exemplified by The Pro Bono law firms that predominate Long Island. Judicial District. He also sits on the many ways. In addition to what has long Admission Task Force Report recently Lawyers still have to earn a living. Executive Committee of the Alexander been considered pro bono work such as released by the Nassau County Bar There is also the fear from many mem - Hamilton Inn of Court. representing an indigent person, say in a Association. Among the concerns expressed bers of the bar that mandating pro bono

Bench Briefs (Continued from page 4) the correct procedural sequence and select - Honorable Peter H. Mayer In Francine Nachtigall v. ECA of zoning and land use planning; real estate ed a proper venue, was entitled to their Construction, Inc., E.C.A. & Sons law and transactions; civil litigation; munici - requested relief. Article 78 proceeding converted into a Construction & Services, Inc., Nicholas pal law and legislative practice; environmental declaratory judgment action; undisputed that Arthur Varlotta, R.A., and The Town of Islip, law; corporate/business law and commercial Honorable Arthur G. Pitts the petitioners and their mother, the insured Index No.: 17298/10, decided on April 12, transactions; telecommunications law; labor were not members or employees; the grave - 2012, plaintiff’s motion for an order pur - and employment law; real estate tax certiorari Affidavit submitted in support of defen - man of petitioner’s claim was a breach of the suant to CPLR §3215 for a default judg - and condemnation; and estate planning and dants’ contention that records sought were insurance contract between the parties . ment against defendants ECA Construction, administration. Ms. Colavito concentrates her destroyed due to flooding and no longer Inc., and E.C.A. & Sons Construction & practice in matrimonial and family law, civil existed was woefully in adequate; defen - In Application of Thomas Kirkchhoff and Services, Inc. was denied without prejudice. litigation and immigration matters. dant to provide an affidavit specifying in Kevin Kirchhoff, on behalf of Eileen In denying the motion, the court noted that detail, when the corporate defendant was Kirchhoff under durable power of attorney v. a party seeking a judgment on default was dissolved, where the corporate records Narragansett Bay Insurance Company, required to submit proof of the service of were stored, when the flooding occurred Index No.: 27593/11, decided on November the summons and complaint, proof of the and what, if anything was recovered after 23, 2011, the court converted the article 78 facts constituting the claim, and proof of the Human Rights Law the flood . proceeding into a declaratory judgment default in answering or appearing. In addi - Not Applicable action, with the order to show cause deemed tion, when service of the summons and (Continued from page 10) In Louis Boisignano v. Sunrise Leasing, a summons, the petition deemed a com - complaint had been made pursuant to Inc., “John Doe,” being the fictitious and plaint, issue deemed joined by the answer Business Corporation Law §306, a default methods, plaintiffs claimed that aversive unknown operator of Sunrise Leasing, with counterclaims previously served, and judgment may not be granted against a non- interventions have helped many students to Inc.’s commercial vehicle and Curtis petitioners’ reply to counterclaims deemed appearing corporation without proof of participate in activities with peers and helped Patterson, Index No.: 28414/10, decided on served. In rendering its decision, the court compliance with the additional service some to attend college, join the armed forces, August 30, 2012, the curt found that the noted that the proceeding was not cogniz - requirements of CPLR §3215(g)(4)(i). obtain employment and go on extended fam - affidavit submitted in support of defen - able under article 78. CPLR §7802(a) pro - Pursuant to CPLR §3215(g)(4)(i), a second ily visits. dants’ contention that records sought were vides a method of relief against a “body or copy of the summons in the action must be The plaintiffs contended that the ban destroyed due to flooding and no longer officer” including “every court, tribunal, mailed to the named defendant corporation against aversive interventions violates the existed was woefully in adequate. The board, corporation, officer or other person, at its last known address at least 20 days Individuals with Disabilities Education court noted that on or about September 16, or aggregation of persons, whose action may before the entry of judgment along with a Act (“IDEA”) by preventing their children 2011, the plaintiff served a post-EBT be affected by a proceeding under this arti - notice that service was being made or had from receiving truly individualized educa - notice for discovery and inspection for cer - cle.” The court further noted that generally, been made pursuant to BCL §306. Here, the tional programs. Plaintiffs also claimed tain documents and records of the corpo - courts have extended article 78 relief against court found that plaintiff only submitted that the State’s prohibition violates the rate defendant. In response to said demand, private corporations in rare instances to affidavits demonstrating that service was children’s constitutional rights and the plaintiff was provided with an affidavit, those petitioners who were members or made pursuant to BCL §306. Thus, absent Rehabilitation Act of 1973 because the which indicated that Sunrise Leasing employees of the respective respondents proof that she complied with CPLR prohibition is arbitrary and oppressive. ceased operation and its records were kept only. Here, the court stated that it was undis - §3215(g)(4)(i), plaintiff failed to demon - The Second Circuit affirmed the dismissal in storage and were destroyed due to flood - puted that the petitioners and their mother, strate her entitlement to a default judgment of the plaintiffs’ claims and concluded that ing and no longer existed. The court found the insured were not members or employees. against the ECA defendants. New York’s law represents a considered that the affidavit was woefully inadequate In addition, the court said that it was clear judgment by the State of New York regard - and as such, the defendant was directed to that article 78 relief was inappropriate as the Please send future decisions to appear in ing the education and safety of its children provide the plaintiff and co-defendant with - graveman of petitioner’s claim was a breach “Decisions of Interest” column to Elaine M. that is consistent with federal education pol - in 30 days of the order with Notice of of the insurance contract between the par - Colavito at [email protected]. There is icy and the United States Constitution. Entry, an affidavit specifying in detail, ties. Since this matter was in essence, an no guarantee that decisions received will be when the corporate defendant was dis - action for declaratory judgment, it was not published. Submissions are limited to deci - Note: Candace J. Gomez is an attorney solved, where the corporate records were authorized under article 78 and was convert - sions from Suffolk County trial courts. with the law firm of Lamb & Barnosky, stored, when the flooding occurred and ed into a plenary action. Submissions are accepted on a continual basis. LLP in Melville. She practices in the areas what, if anything was recovered after the of education law and civil litigation. Ms. flood. Upon receipt of said affidavit, plain - Motion for default judgment denied with - Note: Elaine Colavito graduated from Touro Gomez is a member of the Suffolk County tiff and the co-defendant were granted out prejudice; absent proof that she com - Law Center in 2007 in the top 6 percent of her Bar Association and also serves as a leave, if warranted, to move to strike the plied with CPLR §3215(g)(4)(i), plaintiff class. She is an associate at Sahn Ward member of the New York State Bar defendant’s answer on the grounds of spo - failed to demonstrate her entitlement to a Coschignano & Baker, PLLC in Uniondale, a Association President’s Committee on liation of evidence. default judgment . full service law firm concentrating in the areas Access to Justice. 26 THE SUFFOLK LAWYER —NOVEMBER 2012

What is Mortgage Securitization Fail (Continued from page 20) those warranties contained in the PSA ageable foreclosure caseload. Most judges instances these abuses are documented Business Law Section, and the Suffolk and made by the originator and/or seller that the are confronted with a real dilemma. On one and admitted to in pleadings. It is impossi - Nassau Bar Associations . loans in the pool are as they are represent - hand they have to deny the plaintiff’s relief ble to ignore these facts, sworn to under ed in terms of borrower credit quality, loan because that entity is not the real party in oath, and made part of the record in hun - 1. This essay deals with the Residential to value ratio and other aspects of the loans interest given they do not own the loan. On dreds if not thousands of foreclosure and Mortgage Backed Security (RMBS). in the pool that determine investment grade the other hand, borrowers are being derivative action cases. 2. REMICS are distinguished from Fannie rating and ultimately the RMBS’s yield. allowed to remain in their homes without Provided with the complete document Mae, Freddie Mac and Ginnie Mae RMBS. The certificate-holders have two main making payments. At all times during the transfer file, the practitioner who is famil - In FNMA, FHLMC & GNMA , RMBS the claims against the trustees. First, there are litigation a recorded mortgage exists on the iar with securitized mortgage transactions tranche structure is different and that Fannie numerous “derivative actions” by certifi - home. It is often impossible to determine can spot flawed and unlawful document and Freddie are government sponsored enti - cate-holders against trustees. In these who or what entity is the proper party that transfers in a matter of moments. Robo- ties (GSEs). However, to a large degree the actions the investors claim that the trustees can lawfully enforce the mortgage. signed mortgage documents are just the same principles of document transfer rules failed to enforce the representations and There is no question that the borrowers tip of the iceberg. There is a string of apply. warranties provisions for the mortgage pool. executed a valid note at closing. What hap - review-level decisions in New York that 3. In a private-label RMBS, certificate-hold - Second, investors are claiming remuner - pened to the note and the associated secu - identify deficiencies in the chain of con - ers purchase “tranched” certificates. The dif - ation on the basis that the trust never took rity instrument thereafter is another matter tractual and statutory authority that render ferent tranches represent a certain interest- lawful title to the mortgage or the note entirely. Due to the complex nature of the these document transfers unlawful. 4 Other yield and risk rating. The lower yielding and/or both. If the trust does not have law - RMBS transaction foreclosure some plain - jurisdictions have identified these exact tranches contain less risk and conversely the ful title to the loan then the trust does not tiffs have engaged in conduct that is tanta - issues and ruled accordingly. 5 Many higher yield tranches contain more risk. The have the right to collect loan payments mount to criminal fraud. Loan documents instances where plaintiffs have been order of the risk and yield tranches is from borrowers. It also does not have the transfers did not conform to state laws or caught red-handed never make it to the referred to as the “waterfall”. right to foreclose in the event of borrower the rules for transfer set forth in the docu - review level. These cases are usually set - 4. The “party who claims to be the agent of default. ment transfer sections of the trust’s PSAs. tled to reduce the lender’s exposure . another bears the burden of proving the In summary , there are really two main These deficiencies are unfixable in that fix - The solution to this problem lies within agency relationship by a preponderance of promises made by the trustee to the ing these deficiencies in a lawful manner the judiciary. Both practitioners and the the evidence” ; HSBC Bank USA, N.A. v investors; the loans in the trust are com - would render a worse result. Reversing an judiciary should understand that securiti - Yeasmin , 27 Misc 3d 1227[A], 2010 NY Slip pletely insulated from outside creditors, RMBS transaction so that the lawful zation fail is a tool to be used to force set - Op 50927[U] [2010]; HSBC Bank USA, N.A. and, the trust has lawful title to the loans “owner” of the loan was the entity entitled tlement. Foreclosure plaintiffs and defen - v Vasquez , 24 Misc 3d 1239[A], 2009 NY in the trust. If either of these covenants is to enforce is nearly impossible considering dants are in stalemate. Courts must force Slip Op 51814[U] [2009]; Bank of N.Y. v broken the RMBS transaction fails. A the ramifications of taking the loan out of lenders to re-make their loans with terms Trezza , 14 Misc 3d 1201[A], 2006 NY Slip securitization failure results in the destruc - the mortgage backed security. that are consistent with today’s interest Op 52367[U] [2006]; LaSalle Bank Natl. tion of the trust’s value, irretrievable loss - Faced with this no-win situation , fore - rates and real estate values. Likewise, bor - Assn. v Lamy , 12 Misc 3d {86 AD3d at 282} es to the RMBS investors and litigation closure plaintiffs have essentially crafted rowers are going to have to make pay - 1191[A], 2006 NY Slip Op 51534[U] that lasts for years. the necessary loan transfer documents ments on these court-ordered modified [2006]. Plaintiff’s attempt to foreclose upon Securitization failure is also unfixable. after the fact to recreate a lawful chain of mortgages to remain in their home. The a mortgage in which he had no legal or equi - An RMBS trust is either lawfully created possession of the note and lawful chain of current course is unsustainable. table interest was without foundation in law or it is not. A vast majority of these trusts title to the mortgage. To be kind it can be or fact, and the IAS court’s dismissal of the were improperly created in that they did said that plaintiffs have “finessed” evi - Note: Charles Wallshein is a member of foreclosure action pursuant to CPLR not take lawful title to the loans that form dence to support their claim to lawful the law firm Macco & Stern LLP in 3211(a)(1) was, accordingly, appropriate the corpus of the trust. The trusts are now ownership of their loans. Hundreds of Melville. His practice areas focus solely (see, Kluge v. Fugazy , 145 A.D.2d 537, 536 subject to collateral attack by investors at depositions have been taken of mortgage on real property and foreclosure defense N.Y.S.2d 92). the trust level and again by borrowers who industry participants where they admit litigation. Charles has an extensive back - 5. Bain v. Metropolitan Mortgage , Washing claim that the trust has no legal authority that their processes and procedures in ground in commercial and residential ton State Supreme Court (August 2012), to collect payment or enforce the loan. foreclosure include the fabrication of structured finance. He is a member of the U.S. Bank v. Ibanez , Supreme Judicial Court The courts are dealing with an unman - mortgage transfer documents. In some New York Bar, New York State Bar Massachusetts, 2011.

Managed Medicaid (Continued from page 22) Track Was Prologue (Continued from page 22) everything – from feeding to grooming to toi - powerless. We often hear the very realistic reader isn’t the principal, he nonetheless nesses, a project which showcased an old man as leting to transferring. She requires a lift in fear that challenging a reduction in hours will becomes a minor stockholder in the outrage, in a physical exemplar to young men. In his 80s and order to use the bathroom, a process which force the recipient into a nursing home . the wish for revenge. For long years this wish 90s he taught them to skateboard, to ski, to rap - alone takes 30 minutes. She cannot feed her - In Mary’s case, we fought the battle. A Fair governed a repatriated Zamperini’s waking pel down sheer cliff faces. self or even drink. Someone must prop her up Hearing was requested with Aid Continuing hours . His sleep was typically induced by On 22 January 1998, at the Tokyo Winter and assist her with eating and drinking in and Mary was able to keep her split-shift care alcohol and fraught with nightmares, in one of Olympics, Zamperini ran with the Olympic order to avoid aspiration pneumonia, a deadly in place while the matter was pending . We did which he was strangling “The Bird,” his fin - torch held aloft. En route to the stadium, condition. Her condition causes her to choke extensive research on the new programs and gertips penetrating improbably soft flesh; “All he could see, in every direction, were smil - when eating and drinking and she is unable to new agencies providing care under the new when he awoke to screams, he saw his weep - ing Japanese faces…civilians snapping pho - cough due to a loss of muscle control. As Managed Medicaid model. We learned that, as ing wife, her neck speckled with angry red tographs, clapping, waving, cheering Louie on, such, an aid must manually manipulate her different agencies have different reimburse - dots, incipient bruises. and 120 Japanese soldiers, formed into two diaphragm to force her body to cough so that ment rates, certain agencies can provide high - His oppressor had his own nightmares. With columns, parting to let him pass. Louie ran she does not choke to death. As she is entirely er levels of care than others. We were able, the bombing of Hiroshima, “The Bird” took through the place where cages once held him, immobile, Mary must be turned every hour to without even attending a Fair Hearing, to flight. He abandoned his post, shed his uniform, where a black-eyed man had crawled inside avoid bed sores and to relieve the severe pain transfer Mary’s case to a more appropriate and, quite literally, headed for the hills. The post - him. But the cages were long gone, and so was she suffers from being in one place too long. Managed Care provider and keep her with her war manhunt for him as a war criminal meant “The Bird.” There was no trace of them here Mary has received 12x2 split-shift care split -shift care. Mary was able to remain at that he was always looking over his shoulder, among the voices, the falling snow, and the old seven days per week from the Medicaid pro - home with her young children and the care she that is to say, always looking backward. and joyful man, running.” gram for the past 17 years. Despite her exten - so desperately needs. For Zamperini, his post-war life ultimately sive needs and deteriorating condition, the Forcing individuals into skilled nursing facil - was one of looking forward, a true survival. So ends an outstanding book , one which can Medicaid Managed Care plan determined that ities is not only against public policy but is a Touched by the words of evangelist Billy still be savored by its subject. As of this writ - she no longer needed this level of care and great injustice to those elderly and disabled Graham , “God says, ‘If you suffer, I’ll give ing, a 95-year-old Louie Zamperini remains sought to reduce her hours to 24 hour sleep in individuals whose only wish is to remain at you the grace to go forward ,’” Zamperini youthful, vigorous, and, as ever, unbroken. services, effectively cutting her care back to a home. In reality, although reducing Home Care became a student of the Bible, and was driven maximum of 13 hours per day. The notice hours for those in need of the care may lower by its admonitions, most significantly by that Note: William E. McSweeney, a member of provided to Mary stated the grounds as fol - New York State’s Medicaid budget , forcing peo - one set forth in Romans 12:19: “Vengeance is the SCBA, lives in Sayville. Fifty pounds ago, he lows: “You can be more appropriately and ple into skilled nursing facilities will ultimately mine; I will repay, saith the Lord.” Zamperini was a member of the Sewanhaka High School cost-effectively served through sleep in ser - – and dramatically - increase Medicaid costs. forswore alcohol, and came to understand the two-mile relay team that won its event in the vices because your nighttime needs including need to forswear vengeance, whose paradox, South Shore Athletic League Championships of toileting and transfer are infrequent and pre - Note: Melissa Negrin-Wiener is a partner states Hillenbrand, 1957. A higher moment in his life occurred with dictable. Thus, continuous 24-hour personal and Diana Choy Shan an associate in the Elder “…is that it makes men dependent upon those the birth of his grandson, Ryan Bergen. care services are not medically necessary to Law firm Genser Dubow Genser & Cona, LLP, who have harmed them…In seeking ‘The maintain you healthy and safe within the located in Melville. They practice exclusively in Bird’s death to free himself, Louie had Note: Ryan Bergen, a 10 th grader in high community [sic] .” the field of Elder Law, including asset protec - chained himself, once again, to his tyrant.” school, is a starter on the Varsity Wrestling Team. Mary is one of hundreds of individuals who tion planning, Medicaid planning, representa - In 2011 he placed third in his weight division in have received such a notice from the Medicaid tion at Fair Hearings and Article 78 proceed - Finally unchained, Zamperini made a lasting The Suffolk County Wrestling Championships. An agency advising of a reduction in hours. Many ings, estate planning, trust and estate adminis - success of his marriage to Cynthia Applewhite , essay he submitted in his Honors English Class, people will not fight these reductions as they tration, guardianships and estate litigation. For he begat two children, Cissy and Luke, who grew entitled “The 1936 Nazi Olympics ,” an essay do not know what options are available to further information, phone (631) 390- 5000 or to adore him , founded the nonprofit Victory Boys marked by clear thinking and excellent writing , them or they simply feel overwhelmed and visit www.genserlaw.com . Camp, a project supported by a number of busi - kick-started this joint review. THE SUFFOLK LAWYER —NOVEMBER 2012 27

A Dog By Any Other Breed (Continued from page15) Law Article 7, Section 107 (5), to avoid §57-13. (C)defines American Staffordshire than examining the real factors surround - substantively and procedurally defective. regulating dogs in accordance specifically terriers or pit bulls as vicious and includes ing a specific incident; looking at the actu - Well, then again, maybe a pit bull is like by their breed is echoed by New York State any dogs wholly or partly of the breeds al behavior of the individual dog (and hard-core pornography and the legislature case law, which provides that there is no known as American Staffordshire terrier, attempting to possibly rehabilitate the dog just knows it when they see it! judicial notice of viciousness based on American pit bull terrier, bull terrier and with proper training); and fails to punish Rather than instituting breed specific laws breed or the alleged vicious nature or Staffordshire bull terrier. the inaction or irresponsibility of the that are neither constitutional nor effective, vicious propensities of pit bulls terriers. The Village of Larchmont, Chapter 97, “individual” owner and thus control and the better way to control dangerous dogs Carter v. Metro N. Associates , 255 A.D.2d Article IV Section 97-21, goes even fur - reduce the possibility of future incidents. and hold irresponsible owners accountable, 251, 680 N.Y.S.2d 239 (1998). A dog’s ther and places a complete ban on pit bulls Another problem with attempting to is through New York’s already existing breed can be considered as a factor, but is other than those already owned at the time place restrictions on a particular breed of Dangerous Dog Law under the Agriculture only one factor among many. Mulhern v. of the passing of the law. For those unfor - dog, for instance the so called pit bull , is and Markets Law §123. The State Chai Mgmt., 309 A.D.2d 995, 996, 765 tunate residents that dare to keep their that there is no breed designation or AKC Dangerous Dog Law looks at cases on an N.Y.S.2d 694 (2003). Knowledge of beloved companion (although it may have acknowledged breed known as the pit bull. individual basis, is not breed specific, and vicious propensities may be established by never harmed a fly), the owner is subject The term or classification known as pit adequately provides protection for human, evidence of prior acts of a similar kind of to a myriad of requirements that range bull is a general classification of similar domesticated and companion animal vic - which the owner had notice. Benoit v. Troy from the ridiculous to the outright bizarre, types of breeds of dogs that include sever - tims. It also provides safeguards to protect & Lansingburgh R.R. Co. , 154 N.Y. 223, including but not limited to, being al different types of terriers, including the the human defendant’s due process rights 225, 48 N.E. 524 (1897). Evidence that required to obtain a $500,000.00 liability most well known American Staffordshire and in turn the accused animal. Agriculture the dog has been known to growl, snap or policy; to lock the animal up in a pen Terrier, the Bull Terrier, and the and Markets Law §123 also provides judges bare its teeth may also considered by the when outside; post a sign warning the pub - Staffordshire Pit Bull Terrier. If there is with sufficient alternatives to permanent court. Collier v. Zambito, 1 N.Y.3d 444, lic of the presence of the dog; muzzle the no AKC recognized breed known as ‘pit confinement or as a last resort euthaniza - 446-47, 807 N.E.2d 254, 256 (2004), See dog when off its property; (and my all bull ’ than laws that attempt to regulate tion. The law also lists instances where a also, Bard v. Jahnke , 6 N.Y.3d 592, 597, time favorite) a person controlling or them are meaningless. dog shall not be declared dangerous if the 815 N.Y.S.2d 16, 848 N.E.2d 463 (2006). walking a pit bull terrier shall not relin - Even veterinarians and other experts dog’s conduct was justified. See, Also of relevance to the court in determin - quish physical control of the leash and have difficulty determining whether a par - Agriculture & Markets Law §123 (4). ing if the owner had knowledge of the shall have in his possession at all times an ticular dog belongs to a particular breed Other effective methods of controlling dan - dog’s vicious propensities, and which may implement designed for and capable of and experts can even disagree among them - gerous dogs, are through the establishment give rise to such an inference, is whether or prying open the animal’s jaws. [Emphasis selves. One method of trying to determine and enforcement of local leash laws, and not the owner chose to restrain the dog, the added] Violators are subject to 6 months a dog’s breed is by subjecting the dog to a more importantly, educating the public. manner in which the dog was restrained, jail time or 1,000 fine or both. You really DNA test, which currently can be in the The bottom line is that breed specific and whether the dog was kept as a guard cannot make this stuff up! form of a cheek swab test or a blood test. laws are not only unfair to both innocent dog. Hahnke v. Friederich , 140 N.Y. 224, There are numerous reasons why breed These tests can be costly and time consum - well behaved dogs and the people who love 226, 35 N.E. 487 (1893), Collier v. specific laws do not work and actually ing, but more importantly, the accuracy them, but more importantly, they are com - Zambito, 1 N.Y.3d 444, 446-47, 807 wind up hurting animals, the people who among different test manufacturers can pletely ineffective at reducing the number of N.E.2d 254, 256 (2004), See also, Bard v. love them, and our society at large. A few vary, and not all tests test for the same num - dog attacks. The reality is that any dog can Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d reasons are as follows; breed specific laws ber of breeds. The only accurate way to choose to inflict injury at any time regard - 16, 848 N.E.2d 463 (2006). discriminate indiscriminately. In other determine a dog’s breed is to examine its less of its breed, taking into consideration Unfortunately, this has not stopped some words, they punish the good along with heredity. This is extremely time consum - the number of interactions that humans have New York Municipalities from drafting and the bad without any basis or distinction. ing, and is impossible if the entire breeding with dogs of all types of breeds, on a daily even passing “breed specific laws” when no Dogs that have always been devoted com - line is not known. basis, all across the nation, it is a testament one is watching or when the attorney draft - panion animals, and may have never hurt Breed specific laws which target indi - to the overwhelmingly good nature of the ing the proposed law and even more so the anyone, as well as their responsible law viduals that own a specific breed of dog family dog, and the special bond that dogs residents effected by the proposed law are abiding owners, are punished as severely and automatically deem a dog vicious or have with their human companions, that unaware of Agriculture and Markets Law as dogs that have been allowed to become dangerous simply based on its breed, with - they choose not to. Article 7, Section 107 (5) . For example, vicious and their negligent irresponsible out any type of hearing, rob individuals of right here on Long Island, The Village of owners. Breed specific laws punish entire their due process rights. Moreover, as Note: Amy Chaitoff is a solo practition - Hempstead Code Chapter 57, Article III, breeds of dogs and their owners, rather visually based breed identification is vir - er with a practice in Bayport who focuses tually impossible, especially in determin - on representing individuals, organiza - ing if a mixed breed dog has one of the tions, municipalities, and businesses with outlawed breeds within its mixture, any animal related legal issues. She is Chair Judge Fitzgibbons Retiring (Continued from page 7) visually based determination of breed of the New York State Bar Association’s judge has performed not as a supervisor She sadly remarked that the constraints of made by an animal control officer, or other Committee on Animals and the Law and overseeing subordinates but as a team government office and the limits to address municipal agent enforcing a breed specif - co-founder and past co-chair of the member addressing issues and filling voids inefficiencies that are part of “the system .” ic law automatically becomes vague and Suffolk County Bar Association’s Animal as the arise. On a typical day in the morn - She made it very clear that the District subjective, leading to arbitrary and dis - Law Committee. Ms. Chaitoff has written ing she may hear “Kendra” hearings and in Court does not exist in a vacuum (some - criminatory enforcement. Thus all breed numerous articles as well as lectured the afternoon arraignments, always using thing that all of us who work here are specific laws that use visual identification extensively on animal related legal issues. her versatility like a utility infielder, apply - reminded of on a daily basis) and that the as a method of determining breed and She can be reached at: (631) 265-0155 or ing her skills where they are needed the coordination between the courts, police, enforcing the law, are by their very nature, [email protected] . most at any particular time. She has con - probation and sheriff’s department is a tinuously sought to make our system more monumental task. She lamented about the approachable, always with her eye on the constant difficulty in finding adequate needs of “the people .” funding for Legal Aid and in her classic Court Notes (Continued from page 8) Having had the pleasure of working for style empathized with the disadvantaged in her since 1998 I can recall many times, our midst and our inability to “do more .” the report. The charges against the respon - the Grievance Committee to impose reci - often in our Drug Court, where she would When Judge Fitzgibbon retires at the dent alleged, inter alia , that he falsely nota - procal discipline. By order of the Supreme put her hand to her head and plead with the end of the year I will hold many personal rized documents and submitting them or Court of the State of New Jersey, the defendants to “THINK .” memories of her- the time that she helped causing them to be submitted to the Nassau respondent was temporarily suspended Many did. me find a supply of clothing for released County Court and Nassau County Clerk. from the practice of law in that state until When we spoke, Judge Fitzgibbon prisoners in the Winter; being called to her Based on the record, the court granted the further order of the court. A notice was remarked how, when she graduated with office to explain the lack of prisoner pro - Grievance Committee’s motion. In assess - served on the respondent giving him the her Baccalaureate degree in education duction on a particular day or just the reg - ing the appropriate measure of discipline, opportunity to file a verified defense to the from St. John’s University and landed her ular inquiry about the health and welfare the court noted the respondent’s prior disci - suspension, within a time certain. The first job as a first grade teacher in of our officers in my command. plinary history consisting of two letters of respondent failed to do so. Accordingly, Hauppauge that she never dreamed of the Upon retirement Judge Fitzgibbon will admonition and three letters of caution. the motion by the Grievance Committee life that would be laid out before her. I hang up her robe but will not end her com - However, the respondent also submitted was granted, and the respondent was sus - suppose we could say that her influence on mitment to public service. She plans on numerous letters reflecting on his good pended from the practice of law in the the District Court all began in 1978 when working with her parish church and to contin - work in the community, and a certificate for State of New York. she spoke with her husband Jerry ue her activities with ZONTA, an organiza - a course entitled “Business Skills for attor - Fitzgibbon, a sergeant in the Suffolk tion addressing women’s and children’s neys.” Accordingly, under the totality of cir - Note: Ilene Sherwyn Cooper is a partner County Police Department, about return - issues. She has been active in the organization cumstances, the respondent was censured with the law firm of Farrell Fritz, P.C. ing to St. John’s to attend Law School. She since 1983. She will spend more time with for his misconduct. where she concentrates in the field of trusts entered the accelerated program and was her husband Henry (Hank) Dolny and her and estates. In addition, she is past presi - granted her Juris Doctor Degree in 1982. nine grand children (plus one on the way). Attorneys Suspended: dent of the Suffolk County Bar Association I had to ask the judge what she found Farewell Judge Fitzgibbon, we will all miss and a member of the Advisory Committee most challenging as Supervising Judge. you and wish you a long and healthy retirement. Christopher P. Hummel: Application by of the Suffolk Academy of Law. 28 THE SUFFOLK LAWYER —DECEMBER 2009 SUFFOLK ACADEMY OF LAW OF THE SUFFOLK COUNTY BAR ASSOCIATION 560 WHEELER ROAD, HAUPPAUGE, NY 11788 • (631) 234-5588

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The Suffolk Academy of Law, the educational arm of the Suffolk N.B. - As per NYS CLE Board regulation, you must attend a CLE pro - apply the tuition differential you paid to your SCBA membership County Bar Association, provides a comprehensive curriculum of gram or a specific section of a longer program in its entirety to dues. continuing legal education courses. Programs listed in this issue will receive credit. Americans with Disabilities Act: If you plan to attend a program and be presented during November 2012. need assistance related to a disability provided for under the ADA,, OCA’s MCLE requirements. please let us know. REAL TIME WEBCASTS: Many programs are available as both in- Disclaimer: Speakers and topics are subject to change without person seminars and as real-time webcasts. To determine if a pro- NOTES: notice. The Suffolk Academy of Law is not liable for errors or omis - gram will be webcast, please check the calendar on the SCBA web- Program Locations: Most, but not all, programs are held at the sions in this publicity information. site (www.scba.org ). SCBA Center; be sure to check listings for locations and times. Tax-Deductible Support for CLE: Tuition does not fully support the RECORDINGS: Most programs are recorded and are available, Tuition & Registration: Tuition prices listed in the registration form Academy’s educational program. As a 501©)(3) organization, the after the fact, as on-line video replays and as DVD or audio CD are for discounted pre-registration. At-door registrations entail high- Academy can accept your tax deductible donation. Please take a recordings. er fees. You may pre-register for classes by returning the registra - moment, when registering, to add a contribution to your tuition pay - tion coupon with your payment. ment. ACCREDITATION FOR MCLE: Refunds: Refund requests must be received 48 hours in advance. Financial Aid: For information on needs-based scholarships, pay - The Suffolk Academy of Law has been certified by the New York Non SCBA Member Attorneys: Tuition prices are discounted for ment plans, or volunteer service in lieu of tuition, please call the State Continuing Legal Education Board as an accredited provider SCBA members. If you attend a course at non-member rates and Academy at 631-233-5588. of continuing legal education in the State of New York. Thus, join the Suffolk County Bar Association within 30 days, you may INQUIRIES: 631-234-5588. Academy courses are presumptively approved as meeting the

Presented in Conjunction with the SCBA Immigration Law UPDATES SEMINARS Committee & the Long Island Hispanic Bar Association HELPING OUR IMMIGRANT YOUTH: ANNUAL DMV UPDATE DACA; Views from the Bench on Wednesday, November 7, 2012 – on the East End Evening Seminar Wednesday, November 14, 2012 – at the SCBA Center CHOOSING A TRUSTEE & Guardianship & Special Immigrant RELATED TOPICS Juvenile Status This program is a must-attend for all attorneys who represent Thursday, November 1,2012 Thursday, November 8, 2012 motorists on issues related to license revocations and suspen - sions and similar matters. This program will explore two important areas of law related to Presenter: David Mansfield This program will provide attorneys with valuable strategies for immigrant youth: Deferred Action for Childhood Arrival (DACA), East End counseling families on managing and sustaining monetary and which aims to benefit many young immigrants brought to the Time: Location: other potential estate assets. Topics include: 5:00–7:30 p.m. (Sign-in from 4:30 p.m.) Seasons United States as children; and the Special Immigrant Juvenile Refreshments: • How to Choose a Trustee (potential candidates; trustee quali - of Southampton Light supper (SIJ) program, which helps immigrant children who have been SCBA Center ties; trust objectives, etc.) • Fiduciary Liability (Prudent Investor Act; standards of conduct; abused, abandoned or neglected by one or both parents to Time: 6:00–8:30 p.m. (Sign-in from 5:30 p.m.) Location: SCBA investment strategies, etc.) obtain legal permanent residence. After this seminar, you will: Center Refreshments: Light supper • Family & Wealth Sustainability (wealth trends; defining wealth; • Be able to determine if a young immigrant qualifies for DACA MCLE: 2.5 hours (professional practice) family dynamics; children and philanthropy, etc.) and submit an application for DACA to USCIS with required evi - Charles J. Ogeka, Esq. dence Presented in Conjunction with the SCBA Presenters: (Ogeka Associates, LLC) ; Kevin H. Rogers (BNY Mellon Wealth Management) David J. • Have the information you need to submit a petition for District Court Committee DePinto, Esq. (Of Counsel–Lazer Aptheker Rosella & Yedid, PC) Guardianship for Immigrant Youth and bring a Motion for “Special LANDLORD-TENANT PRACTICE Coordinator: Eileen Coen Cacioppo, Esq. (Academy Curriculum Findings” in Family Court UPDATE Co-Chair) • Know the requirements to submit the SIJ application and take Appreciation for Underwriting Support: BNY Mellon Wealth steps to help the immigrant juvenile to receive legal permanent Tuesday, November 13, 2012 Management (Daniel Shaughnessy, Senior Director) residence Time: 6:00–9:00 p.m. (Sign-in from 5:30) Location: SCBA Center Presenters: Victoria Campos, Esq. (Huntington Station and Bay Recent changes in landlord-tenant law and their impact on mat - Refreshments: Light supper Shore; Chair–SCBA Immigration Law Committee) ; Chartrisse ters involving both residential and commercial properties will be MCLE: 3 credits (2.5 professional practice; 0.5 ethics) Adlam, Esq. (Hempstead; Former Chief Counsel for DHS); Hon. covered. Hon. Stephen Ukeiley generously donated copies of his John Kelly (Suffolk County Family Court); book, The Bench Guide to Landlord & Tenant Disputes in New Lunch ‘n Learn Coordinator: Aniella Russo, Esq. (Afran & Russo, PC) York, to the Academy, a 501c-3 organization; the book may be Time: 12:30–2:10 p.m. (Sign-in from noon) Location: SCBA purchased from the Academy at the discounted price of $25 for EXPLORING LITIGATION SOLUTIONS Center Refreshments: Lunch as long as the supply lasts. Purchasers may have their copies Friday, November 2, 2012 MCLE: 2 credits (professional practice) signed by Judge Ukeiley prior to the program. Presenters: Hon. Stephen Ukeiley (Suffolk District Court); Hon. This low-cost ($10) or FREE (without credit) lunch program will Half Day Seminar Scott Fairgrieve (Nassau District Court); Victor Ambrose, Esq. show you how to use Westlaw Litigator Tools to build your case. Presented in Conjunction with the New York State Bar (Nassau-Suffolk Law Services); Warren Berger, Esq.; Marissa You will learn to organize, analyze, store, communicate, and col - Association’s Lawyer Assistance Program Luchs Kindler, Esq. (Nassau-Suffolk Law Services); Michael laborate on the law, information, and documents generated by a McCarthy, Esq.; Patrick McCormick, Esq. (Campolo, Middleton & typical case. The program is taught by two attorneys from LAWYERS HELPING LAWYERS: McCormick, LLP); Deputy Sheriff Sargent David Sheehan Thomson Reuters, who are certified CLE instructors and will Volunteer Training (Suffolk County Sheriff’s Dept.) share valuable tips and tricks. Friday, November 16,2012 Coordinator: Hon. Stephen Ukeiley (Academy Advisory Presenters: Greg MacFarlane, Esq. and Alison Brady, Esq. (Certified CLE Instructors–Thomson Reuters) Committee) Developed for ALL lawyers, this program will provide vital infor - Time: Location: Coordinator: Marc Savoy, Esq. 6:00 – 9:00 p.m. SCBA Center – Hauppaugel mation on how to recognize problems and help themselves, col - Refreshments: Light supper leagues, family members, and clients who may be suffering from MCLE: 3 Hours Lunch ‘n Learn (professional practice) addiction, depression, or other mental health issues. Participants E-Discovery: RECENT DEVELOPMENTS will learn about the challenges facing the profession today, life ANNUAL FAMILY COURT UPDATE IN LAW & TECHNOLOGY RELATED TO changing skills, and how to intervene and support those in need. Part One: Wednesday, November 28, 2012 PREDICTIVE CODING Ethical implications surrounding the duty to report will also be Part Two: Wednesday, December 5, 2012 discussed. Topics include: Monday, November 5, 2012 • Dealing with Stress through Meditation (Maureen Kessler, Esq.) All the latest developments affecting Family Court practice will be • Necessary Skill Set: Getting to the Real Issues & Providing covered by an expert faculty in this two-part presentation. Predictive coding takes electronic-discovery to a new level. It is a Effective Assistance (Patricia Spataro–Director, NYSBA Lawyer Coordinators: Hon. John Kelly; Hon. Isabel Buse; Hon. John method whereby a human identifies whether or not a random Assistance Program; Henry Kruman, Esq.–Chair, NYSBA Lawyer Raimondi selection of documents are responsive to an e-discovery Assistance Committee) Time: 6:00 – 9:00 p.m. Location: SCBA Center – Hauppaugel demand; the computer program then takes these responses, • Gambling: Chasing Losses (Peter Schweitzer, Case Manager; Refreshments: Light supper “learns” what to search, and gives each document a “relevance Rep of SCBA Lawyer’s Assistance Committee) MCLE: 6 Hours (4 professional practice; 2 ethics) score.” The end result is the identification of the documents that • Vicarious Trauma and Burnout in the Legal Profession (Patricia need to be produced. This seminar will shed light on the use of Spataro) predictive coding, which has been adopted as an acceptable • Depression & Suicide: Prevention, Intervention & Treatment ANNUAL REAL PROPERTY UPDATE method of obtaining ESI (electronically stored information), and (Stephanie Arcella–Development Consultant, David Nee Thursday, November 29, 2012 examine the ground-breaking decision by Judge Peck in Monique Foundation; Rosemarie Bruno, Esq.–NYSBA & SCBA Lawyer Da Silva Moore v. Publicis Groupe. Assistance Committees) This is a must-attend program for lawyers who handle residential Presenters: Experts from DOAR Litigation Consulting • Substance Abuse & Addiction: Prevention, Intervention & or commercial real estate transactions, landlord-tenant disputes, Glenn P. Warmuth, Esq. (Stim & Warmuth, PC) Treatment (Ellen Travis–Director, NYC Bar Association’s Lawyer zoning and land-use matters, and the like. Coordinator: Glenn P. Warmuth, Esq. (Academy Officer) Assistance Program; Arthur Olmstead, Esq.–NYSBA & SCBA Presenter: Scott E. Mollen, Esq. (Herrick, Feinstein, LLP – NYC) Appreciation for Underwriting Support: Doar Litigation Consulting Lawyer Assistance Committees) Coordinator: Gerard McCreight, Esq. (Academy Officer) Time: 12:30–2:10 p.m. (Sign-in from noon) Location: SCBA • Ethical Considerations, including the Responsibility to Intervene Time: 6:00 – 9:00 p.m. Location: SCBA Center – Hauppaugel Center Refreshments: Lunch (Deborah Scalise, Esq.) Refreshments: Light supper MCLE: 2 credits (professional practice) Coordinator: Sheryl Randazzo, Esq. (Past SCBA President) MCLE: 3 Hours ( professional practice) Time: 10:00 a.m.–4:00 p.m. (Sign-in from 9:30 a.m.) Location: Lunch ‘n Learn SCBA Center Refreshments: Continental Breakfast and Lunch THE SUFFOLK LAWYER — NOVEMBER 2012 29 SUFFOLK ACADEMY OF LAW OF THE SUFFOLK COUNTY BAR ASSOCIATION 560 WHEELER ROAD, HAUPPAUGE, NY 11788 • (631) 234-5588

MCLE: 5 credits (3 law practice management; 2 ethics) • Personal liability of fiduciary for tax debts • Discussion and demonstration of a lay witness in a personal • Much more. . . . injury case Presenter: Seymour Goldberg, CPA, MBA, JD (Goldberg & • Discussion and demonstration of an expert in a medical mal - Six Hour CLE Presented in Two-Parts Goldberg, PC) practice case WHO’S BEHIND THE CURTAIN? – Coordinator: Eileen Coen Cacioppo, Esq. (Curriculum Co-Chair) • Use of video depositions Time: 9:00–11:45 a.m. (Sign-in from 5:30 a.m.) Location: SCBA • How the rules of civility apply Advanced Standing Issues in Center Refreshments: Light breakfast • Determining the questions to be asked at a deposition Securitized Mortgage Foreclosure MCLE: 3 credits (professional practice) • Initial and follow-up questions Monday, November 19,2012, and • The role of relevance and hearsay at a deposition • Objecting at a deposition Monday, January 14, 2013 Afternoon Seminar • When to call the judge EFFECTIVE DEPOSITIONS • Much more.... Recent discoveries regarding the foreclosure process indicate Faculty: Hon. Thomas Whelan (Supreme Court) ; A. Craig severe abuses of the legal system and the land record recording Friday, November 30, 2012 Purcell, Esq. (Glynn, Mercep & Purcell, LLP) ; Daniel Tambasco, system. This course will provide a theoretical and practical under - The deposition is an important component of civil litigation and Esq. (Russo, Apoznanski & Tambasco) ; Guido Gabriele, Esq. standing of the RMBS (Residential Mortgage Backed Security) often evolves into a key evidentiary document. This program, pre - (Geisler & Gabriele) ; W. Russell Corker, Esq. (Huntington) transaction and explain the contractual interrelationships sented by a highly skilled faculty, will utilize both lectures and Coordinator: Patricia M. Meisenheimer (Past Academy Dean) between and among the parties to the transaction. The course demonstrations to impart strategies for deposing witnesses (lay Time: 1:00–4:30 p.m. (Sign-in from 12:30 p.m.) Location: SCBA will also explain how and why the RMBS transaction calls plain - and expert), for gaining the information you need, and for using Center Refreshments: Lunch tiff’s standing into question in RMBS foreclosures. The complexi - a deposition at trial. Topics will include: MCLE: 4 credits (3 skills; 1 ethics) ty of the RMBS transaction is created by the confluence of secu - rities law, tax law, bankruptcy law, real property law, contract law, agency law, and trust law such that the party claiming an interest in a loan’s cash flow may have no legal standing to enforce the promissory note contract in a foreclosure against the person who actually borrowed the money. Topics include: • A Brief Introduction to Structured Finance • What Is a Securitized Mortgage Transaction? • Document Flow in a REMIC ((Real Estate Mortgage Investment Conduit) Transaction • Document Flow in a GSE (Government Sponsored Entity) Transaction • The Polling and Servicing Agreement • Recordable & Possessory Interests in the Loan • Statutory and Case Law Requirements for Foreclosing a Mortgage in New York Faculty: Hon. Jeffrey Arlen Spinner (Suffolk) ; Hon. Dana Winslow (Nassau) ; Hon. Arthur Schack (Kings) ; Hon. Peter Mayer (Suffolk) ;Charles Wallshein, Esq. (Macco & Stern) Coordinator: Richard Stern, Esq. (Macco & Stern) Appreciation for Underwriting Support: Title Resources Guaranty Company Time: 6:00–9:00 p.m. (Sign-in from 5:30 a.m.) each evening Location: SCBA Center Refreshments: Light supper MCLE: 6 credits (4 professional practice; 2 ethics)

Evening Seminar at the Nassau Bar Presented with the Nassau Academy and the Bankruptcy Law Section of the Federal Bar Association THE NATIONAL MORTGAGE SETTLE - MENT AND BANKRUPTCY Wednesday, November 28, 2012

This program will address the $25 Billion National Mortgage Settlement, the largest joint federal and state civil settlement ever. The settlement, which makes available monetary and other types of relief for borrowers, involved the United States Department of Justice, various federal agencies, the attorneys general of 49 states, and the nation’s five largest banking institu - tions. You will learn about: • the relief available to borrowers in a bankruptcy proceeding • the continuing obligations and servicing requirements that this settlement imposes on mortgage service providers Presenters: Kenneth M. Abell (United States Attorney’s Office) ; Guy A. Van Baalen, Esq. (Assistant U.S. Trustee for the Northern District of New York) ; Christine H. Black, Esq. (Assistant U.S. Trustee for the Eastern District of New York) ; Tracy Hope Davis, Esq. (United States Trustee, Region 2) ; Burton T. Ryan (United States Attorney’s Office) Moderator: Hon. Alan S. Trust (United States Bankruptcy Judge, Eastern District of New York) Suffolk Liaison: Richard Stern, Esq. (Past Academy Dean) Time: 6:00–8:00 p.m. (Sign-in from 5:30 a.m.) Location: Nassau Bar (15 th & West Streets–Mineola) MCLE: 2 credits (professional practice)

Morning Seminar IRA GUIDE TO IRS AUDIT ISSUES Friday, November 30, 2012

This program will address mistakes made by IRA account hold - ers from an IRS compliance point of view. Noncompliance comes primarily from taxpayers who make excess contributions to IRA accounts and from those who fail to receive timely required min - imum distributions. The IRS plans to expand its examination pro - gram involving IRA account holders, and a violation of the rules can result in significant tax sanctions and penalties. Program top - ics include: • Excess contributions to IRAs • Excess contribution penalties • Required minimum distribution penalties • Statute of limitations on IRA penalties • IRA trust issues • Waiver of required minimum distribution penalties 30 THE SUFFOLK LAWYER — NOVEMBER 2012

Views from the Bench (Continued from page 4) Plead Laches (Continued from page 12) The Court concluded after its review of er that “ I’m not a child molester ” when he Jay Realty’s expenditure of funds to long the plaintiff waited to sue? By the the record that there was no reasonable or was not accused of being such at the time. acquire the property gave rise to an equi - court’s reasoning, even the day after the strategic basis for defense counsel to The impact of Fisher remains to be table estoppel against Stein. sale would have been too late. refrain from objecting to these “[h]ighly determined. However, the strategy of not While Jay Realty prevailed on its laches In 2010, the Second Department was prejudicial instances of prosecutorial abuse .” objecting during summation – whether claim, the Appellate Division panel also held called upon to decide whether a seven-year As a result, the court reversed the conviction due to possible retribution or fear of that Stein had adequately “raised a triable delay before bringing suit was sufficient to on the grounds of ineffective assistance of offending the trier of fact – may result in issue of fact as to whether the deed transfer - support a laches defense. Bank of America, counsel and ordered a new trial. Id . at 967. an ineffective assistance of counsel claim. ring the shopping center property from N.A. v 414 Midland Ave. Assoc., LLC , 78 Perhaps defense counsel will be com - Claire Stein to Telcor was forged.” The net AD3d 746 (2nd Dept., 2010). The Dissent – failing to object did not pelled to object even where he or she may result is that while the deed to the alleged One tenant-in-common had delivered a rise to the level of ineffective assistance otherwise not be so inclined. Regardless, forger may ultimately be overturned, the deed that purported to convey the entire of counsel the alternative is a result that neither the alleged forger’s purchaser can keep the prop - property to a third party buyer in 1996. In a scathing dissent, Justice Smith prosecutor nor defense counsel desires. erty, to the detriment of the record owner! i The buyer also borrowed over $1,000,000 highlighted the absence of any case law Among other cases cited by the court secured by mortgages on the property. supporting the court’s ruling. He further Note: The Honorable Stephen L. Ukeiley (including the Wilds case) is Kraker v. Roll , The other tenant in common became aware stated that although it may have been is a Suffolk County District Court Judge. 100 A.D. 2d 424 (2nd Dept., 1984). Kraker , of the deed in 2001, but failed to bring an error to not object to the prosecutor’s mis - Judge Ukeiley is also an adjunct professor however, had held that “where title by action to quiet title until 2008. statements, he speculated counsel might at the New York Institute of Technology, a adverse possession has not been made out, The buyer and the lender asserted, inter have intentionally done so due to the min - member of the Board of Directors of the the true owner’s inequitable conduct must alia , the affirmative defense of laches. The imal resistance he received during his Suffolk County Women’s Bar Association, essentially amount to a fraud to result in a court declined to recognize the defense, closing. He further opined it was feasible and a member of the Executive Committee deprivation of legal title. [T]here must be stating that delay in addressing a known defense counsel may have believed the of the Alexander Hamilton American Inn of shown ... either actual fraud, or fault or neg - defect in title does not, by itself, give rise jury would have had a negative view to Court. He is also a frequent lecturer and ligence, equivalent to fraud on his part, in to laches. It requires “inexcusable delay” any such interruption. author of numerous legal publications, concealing his title, or that he was silent coupled with knowledge that “the oppos - Although both the majority and dissent including The Bench Guide to Landlord & when the circumstances would impel an ing party has changed his position to his speculated as to the thought processes of Tenant Disputes in New York © (available honest man to speak....” The Doukas Court irreversible detriment.” defense counsel, the record revealed to the public). In January 2013, Judge does not state that the plaintiff’s behavior The court noted that the buyer and defense counsel “excoriated” the victims’ Ukeiley will be joining the faculty at the was fraudulent, negligent or dishonest, or lender “made no allegation” that the owner mother and jailhouse informant during his Touro College Jacob D. Fuchsberg Law when in the course of events he was both 1) knew of the sale and 2) did nothing closing and forewarned the jurors that the Center as an adjunct professor. “impelled to speak.” The change of posi - to prevent it. Hence, their defense of lach - prosecutor might resort to “theatrics” and tion prejudicial to Jay Realty that formed es was dismissed. attempt to “play on your sympathies of * The information contained herein is the basis of the estoppel was held to be the At a minimum, it is difficult to reconcile these poor little kids .” Id ., at 969-70. for informational and educational pur - consideration paid for the deed, but there is the holdings in Wilds and Doukas with Counsel further reminded jurors to base poses only. This column should in no way nothing in the decision to indicate that Stein Bank of America . Nevertheless, if you are their verdict on the facts and the evidence, be construed as the solicitation or offer - knew of the impending sale to Jay Realty defending an RPAPL Article 15 action in and not what the prosecutor says or does. ing of legal or other professional advice. and failed to take action to prevent it. the Second Department, consider whether Justice Smith concluded the decision to If you require legal or other expert advice, In addition, the court’s allusion to delay laches might be a viable defense to plead. not object may have been “the right one ,” you should consult with an attorney of more than one year in bringing suit con - and, if it was a mistake, it did not come and/or other professional. flates two different concerns. Although Note: Lance R. Pomerantz is a sole close to the level of ineffective assistance Stein had waited more than a year to sue practitioner who provides representation, of counsel. Specifically, he deemed it rea - 1. Unlike the New York standard, the federal Telcor, his claim against Telcor was expert testimony, consultation and sonable to “sit quietly and appear uncon - standard for an ineffective assistance of allowed to proceed. His suit as against Jay research in land title disputes. He is also cerned when the prosecutor did what he counsel claim requires a showing of preju - Realty was commenced only a little more the publisher of the widely-read land title had told the jury she would do .” Id . at 970. dice; to wit, that defense counsel failed to than seven months after the deed to Jay newsletter Constructive Notice. For more He further noted other factors may have render reasonably competent assistance and Realty was recorded. Yet, that delay was information, visit www.LandTitleLaw.com. resulted in the conviction including the there is a reasonable probability that but for sufficient to invoke laches. In any case, testimony of the victims, their older broth - defense counsel’s inadequate representation, since the payment for the Jay Realty deed 1. There is abiding precedent stating that er and their mother and the damaging tes - the outcome of the trial would have been dif - itself was determined to be the only a forged deed is void, but the Doukas opin - timony that the defendant responded to an ferent. See Strickland v. Washington , 466 change of position by which Jay Realty ion does not address the implicit contra - innocuous statement by the victims’ moth - U.S. 668 (1984). was “prejudiced,” should it matter how diction it creates with those cases.

Consumer Bankruptcy (Continued from page 19) advertising. This is to prevent them from also requires the court to triple the fines and Peyzner were not credible witness - $45,000 as provided by the statute. misleading the public into thinking that if the BPP failed to disclose his or her es and concluded that Pevzner repeated - Hopefully, this deceitful duo has finally they are authorized to practice or render identity. As you will see, it was this pro - ly violated a number of subsections of learned their lesson. legal advice. vision that really socked Mollo and the statute and that they both engaged in As with many things, consumers get If a BPP prepares a petition, the BPP Pevzner big time. the unauthorized practice of law. The what they pay for. A BPP cannot give must sign it (there is a special area of the After Mollo was sanctioned in March, judge pointed out that Mollo continued legal advice and at most, can only act as a petition form devoted to this) and print his potential clients were still contacting him to hold himself out as a bankruptcy data entry clerk. There are no require - or her name, address and Social Security from his advertising, which he failed to attorney, despite his suspension, and ments that a BPP take any courses or be number. The BPP must also disclose, discontinue. Rather than turn them away, despite his representations to the court certified. Yet, bankruptcy is a highly com - under penalty of perjury, any fee or com - he had Pevzner, his paralegal of six years, in the earlier case. plex area of the law. There are many hor - pensation received for preparing the docu - meet with them, and in some instances, he It was clear to Judge Craig that Peyzner ror stories about consumers who lost valu - ments, and the BPP is obligated to file a met with the clients as well. She then pre - was the BPP, as she prepared the petitions. able assets, believing that they were declaration attesting to this within ten pared the bankruptcy petitions and ren - However, the judge applied an unusual exempt, because a bankruptcy petition days of the filing of the petition. dered legal advice in doing so. She had theory and held that Mollo was vicarious - preparer drafted the petition. Code section 110 also provides for the the debtors sign a retainer agreement ly liable for Peyzner’s violations. The The Office of the U.S. Trustee takes assessment of various penalties for BPPs which contained the name of a different judge rejected Peyzner’s claim that she BPP improprieties very seriously. Last who act negligently or with intentional attorney who did not have anything to do was a volunteer; instead concluding that year they brought 504 actions against disregard for the Bankruptcy Code and with these cases. she continued to be a compensated BPPs across the country. Rules, or if the BPP commits any fraud, or At the hearing, Pevzner admitted that employee under Mollo’s direction. Thus, unfair or deceptive act. In such instances she prepared the petitions and claimed that the court found that Mollo also violated Note: Craig D. Robins, a regular columnist, is a the court can award actual damages, and she was not an employee of Mollo and the same provisions of section 110 under Long Island bankruptcy lawyer who has represent - the greater of $2,000 or twice the amount worked strictly as a “volunteer” for him the doctrine of vicarious liability. ed thousands of consumer and business clients dur - paid to the BPP and reasonable attorney’s without salary. Pevzner testified that she As for punishment, Judge Craig direct - ing the past twenty years. He has offices in Coram, fees and costs. was familiar with Bankruptcy Code sec - ed both of them to disgorge all fees Mastic, West Babylon, Patchogue, Commack, In addition, each failure to comply tion 110. Although Code section 110 received ($3,100), and in addition, fined Woodbury and Valley Stream. (516) 496-0800. He with a particular subsection of the required the BPP to sign the petition and them jointly and severally $15,000. can be reached at [email protected]. statute, such as failing to sign the peti - provide a declaration as to legal fees, she However, it did not stop there. Because Please visit his Bankruptcy Website: tion, include the Social Security number, did not do that either, claiming that this Peyzner failed to disclose on the petitions www.BankruptcyCanHelp.com and his Bankruptcy disclose the fee, etc., is punishable by a was an “honest mistake.” that she was the BPP, Judge Craig stated Blog: www.LongIslandBankruptcy-Blog.com. fine of not more than $500. The statute Judge Craig stated that both Mollo that she was required to triple the fine to THE SUFFOLK LAWYER — NOVEMBER 2012 31 to place your ad call LEGAL SERVICE DIRECT ORY 631-427-7000 EMPLOYMENT SERVICES REAL ESTATE ATTORNEY WANTED MARKET LOSSES OFFICE FOR RENT Do you have a client with Wall Street Office Assistant Suffolk STOCK MARKET LOSSES Virtual & Real County Attorney due to negligent financial advice, Two Free Months FREE at 110 Wall Street* Suburban Municipality seeks Assistant County misrepresentation, variable annuities, Mail Receiving & Live Phone Answering Attorney; extensive civil litigation experience unsuitable investments, churning, etc. with Personalized, Exclusive (212) # required (at least 5 years), state and/or federal W. ALEXANDER MELBARDIS , M.B.A., J.D. 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OFFICE SPACE INVESTIGATIONS Statement of Ownership, Management, and Circulation (All Periodicals Publications Except Requester Publications) 1. Publication Title The Suffolk Lawyer. 2. Publication No. 006-995 . Filing Date 10/1/12 . 4. Issue Executive - Professional Offices Frequency monthly-except July & Aug . 5. No. of Issues Published Annually 10 . 6. Annual Subscription Price Part of Dues . 7. Complete Hauppauge, New York Mailing Address of Known Office of Publication (Not printer) (Street, city, county, state, and ZIP+4 560 Wheeler Road, Hauppauge NY 11788. Interior/Windowed Offices Available Contact Person: Peter Sloggatt Telephone 631-427-7000 . 8. Complete Interior Office - $1,000 per month Mailing Address of Headquarters or General Business Offices of the Exterior Window Office - $1,250 per month Publisher (Not printer) 560 Wheeler Road, Hauppauge NY 11788 9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Workstation $250 per month Managing Editor (Do not leave blank) Publisher (Name and complete Internet, Phone, Copy, Fax and Utility Packages mailing address) Long Islander LLC 149 Main St. Huntington N.Y. 11743. Available Editor (Name and complete mailing address) Laura Lane 560 Wheeler Road, Hauppauge NY 11788. Managing Editor (Name and complete mailing address) Peter Sloggatt 149 Main St. Huntington N.Y. 11743 10. Call 631-858-5800 X 6 Owner (Do not leave blank. If the publication is owned by a corporation, [email protected] give the name and address of the corporation immediately followed by the names and addresses of all stockholders owning or holding 1 percent or more of the total amount of stock. If not owned by a corporation, give the names and addresses of the individual owners. If owned by a part - nership or other unincorporated firm, give its name and address, as well (Continued from page 23) as those of each individual owner. If the publication is published by a non - Cultural Competence In Law profit organization, give its name and address.) Full Name Suffolk County Psychologists and Code of Conduct . of Ethics on behalf of their clients Long Island Hispanic Bar Association Bar Association Complete Mailing Address 560 Wheeler Road, These standards are mandatory and pro - including understanding the nature of and is on the Editorial Board of Noticias, Hauppauge NY 11788. 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount vide for minimal competencies. The social diversity and not practicing, con - the official publication of the Hispanic of Bonds, Mortgages or Other Securities. If none, check box. None Full Specialty Guidelines for Forensic Psy- doning, facilitating, or collaborating National Bar Association. Dr. Aranda is a Name Complete Mailing Address None. 12. Tax Status (For completion chology released on August 3, 2011, on with any form of discrimination on the psychologist who holds a law degree and by nonprofit organizations authorized to mail at nonprofit rates) (Check the other hand, delineate a broad spec - basis of race, ethnicity, national origin, has a forensic psychology practice with one) The purpose, function, and nonprofit status of this organization and trum of ambitious guidelines for psychol - color, sex, sexual orientation, gender offices in Long Island and Queens. the exempt status for federal income tax purposes: x Has Not Changed ogists who perform work in forensic con - identity or expression, age, marital sta - During Preceding 12 Months Has Changed During Preceding 12 Months (Publisher must submit explanation of change with this statement.) 13. texts. These principles and guidelines as tus, political belief, religion, immigra - 1. Hispanic Heritage Month 2011: Sept. Publication Title The Suffolk Lawyer 14. Issue Date for Circulation Data a whole carve out basic ethical bound - tion status, or mental or physical dis - 15 - Oct. 15 , CB11-FF.18 Aug. 26, 2011 Below Oct 2012. 15. Extent and Nature of Circulation. Average No. aries that psychologists are expected not ability. 2. What is Cultural Competency? , U.S. Copies Each Issue During Preceding 12 Months. No. Copies of Single to cross. These revisions are in keeping with Department of Health and Human Issue Published Nearest to Filing Date. a. Total Number of Copies (Net There also are well-defined cultural the primary mission of enhancing Services, Office of Minority Health, press run) 3,476, 3,629 . b. Paid Circulation (By Mail and Outside the and diversity-based components. human well being, recognizing the needs October 19, 2005. Mail) (1) Mail Outside-County Paid Subscriptions Stated on PS Form 3541. (Include paid distribution above nominal rate, advertiser’s proof Psychologist must, for instance, be of vulnerable people, and being sensi - 3. ORS § 418.975 . copies, and exchange copies) 543, 552 (2) Mailed In-County Paid familiar with cultural differences and tive to cultural and ethnic diversity that 4. Guidelines on Multicultural Education, Subscriptions Stated on Form 3541 (Include paid distribution above nom - be aware of nuances stemming from appears in the Preamble of the NASW Research, Practice, and Organizational inal rate, advertiser’s proof copies, and exchange copies) 2,583, 2,627 age, gender, gender identity, race, eth - Code of Ethics . Change for Psychologists , APA, 2002. (3) Paid Distribution Outside the Mails Including Sales Through Dealers nicity, culture, national origin, reli - Several other mental health care profes - 5. Deborah Waire Post, Cross-Cultural and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution gion, sexual orientation, disability, sions also emphasize the need to under - Readings of Intent: Form, Fiction, and Outside USPS® 0 0 (4) Paid Distribution by Other Classes of Mail Reasonable Expectations , 1 Wake Through the USPS (e.g. First-Class Mail®) 0 0 c. Total Paid Distribution language, and socioeconomic status. stand the diverse cultural backgrounds of (Sum of 15b (1), (2), (3), and (4)) 3151, 3216 . d. Free or Nominal Rate They must employ culturally sensitive the clients they serve. To name a few: Forest L. Rev. Online 94 (2011). Distribution (By Mail and Outside the Mail) (1) Free or Nominal Rate and valid methods in their assessments American Psychiatric Association; 6. National Standards on Culturally Outside-County Copies Included on PS Form 3541 0 0 (2) Free or and be aware of their own limitations. American Counseling Association; and Linguistically Appropriate Services Nominal Rate In-County Copies Included on PS Form 3541 0 0 (3) The Guidelines on Multicultural American Association of Marriage and (CLAS) in Health Care , Final Report , Free or Nominal Rate Copies Mailed at Other Classes Through the Education, Research, Practice, and Family Therapy; and American U.S. Department of Health and Human USPS (e.g. First-Class Mail) 0, 0. (4) Free or Nominal Rate Distribution Organizational Change for Psychologists Association of Pastoral Counselors. The Services, Office of Minority Health, Outside the Mail (Carriers or Other means) 350, 350 e. Total Free or March 2001. Nominal Rate Distribution (Sum of 15d (1), (2), (3) and (4) 400, 400 f. also are not mandatory. Like the Specialty Ethical Codes of these associations are Total Distribution (Sum of 15c and 15e) 3,526, 3,579 . g. Copies not Guidelines for Forensic Psychology , these accessible on the Internet. 7. The International Bill of Human Distributed (See Instructions to Publishers #4 (page #3)) 50, 50 h. Total may be viewed as ambitious. They may be The DSM-IV-TR is the “bible” relied on Rights, Fact Sheet No. 2 (Rev. 1) , (Sum of 15f and g) 3,576, 3,629. i. Percent Paid (15c divided by 15f looked upon as a work -in -progress that by mental health practitioners in the U.S. United Nations, Geneva, June 1996. times 100) 89.93% 88.83 % j. 16. Publication of Statement of will evolve over time. Cultural compe - in educational, clinical, and forensic set - 8. Resolution adopted by the General Ownership x If the publication is a general publication, publication of Assembly, 107th plenary meeting, this statement is required. Will be printed in the November 2012 issue tence, in this vein, is a lifelong process of tings. Several places pertain to race, cul - self-search, education, and practice. ture, and gender and the manual furnishes September 13, 2007. of this publication. Publication not required. 17. Signature and Title of 9. Stephen L. Pevar, The Rights of Code of Ethics of the National Editor, Publisher, Business Manager, or Owner Peter Sloggatt, 149 The an outline for cultural formulation Indians and Tribes, Fourth Edition , Main St., Huntington, N.Y. 11743 Date 10/1/ 10. certify that all informa - Association of Social Workers (NASW) designed to assist the clinician in systemat - tion furnished on this form is true and complete. I understand that any - Oxford University Press, 2012. similarly emphasizes cultural compe - ically evaluating and reporting the impact 10. Diagnostic and Statistical manual one who furnishes false or misleading information on this form or who tence. The 2008 NASW Delegate 10 omits material or information requested on the form may be subject to of the individual’s cultural context. of Mental Disorders, 4th Edition, Text criminal sanctions (including fines and imprisonment) and/or civil sanc - Assembly approved several cultural and Revision , American Psychiatric tions (including civil penalties). diversity-related revisions to the Code Note: Roy Aranda is Secretary of the Association, 2000 28 THE SUFFOLK LAWYER — NOVEMBER 2012

CLE Course Listings ACADEMY OF LAW NEWS on pages 28-29

What Will You Gain from Internet CLE? \ Besides strategic information taught by Internet connection. And if you are inter - select “On-Line Video Replays and Live downloading of course materials, and skilled presenters, the main thing is time. rupted, you have 60 days to log back in Webcasts,” and peruse the available receipt of your MCLE certificate. And if And what lawyer doesn’t need more of and complete the program. And that sure - offerings. – as occasionally happens – the course that? ly equates to more time for other things – Both video replays and live webcasts also includes a tangible hand-out that When you take a CLE course on-line – like leisure or billable hours. have advantages. Webcasts allow you to cannot be accessed on-line (a published either a live webcast or a video replay – The Academy offers scores of pro - email questions to the presenters – and book, for example), the Academy mails it there is no need to travel. You can stay put grams on line. To see what is available, receive an answer – in real time. And to you within a few days. wherever you are: home, office, or any - go to the SCBA website ( www.scba.org), while you have to take a webcast at a Under the OCA rules, attorneys admit - where you have a computer with an click “MCLE” from the left-hand menu, specified time, if you do not finish it ted more than two years may fulfill their you can access the program again in its MCLE requirements in non-traditional archived version. (In fact, if you regis - formats, including on-line CLE. If you ter for a webcast and don’t take it at all, fall into that category, we urge you to try you will have access to the video the Academy’s on-line seminars, one of ACADEMY replay.) If, on the other hand, you want the largest such collections anywhere. to consider various treatments of a Bill Gates said, “The Internet is becom - ar given topic, you might want to opt for ing the town square for the global village lendof Meetings & Seminars on-line replays. Some of the best pro - of tomorrow.” For many a busy lawyer, Ca grams the Academy has presented in the tomorrow has come. While there may be last few years – all conveniently listed nothing better than joining colleagues for Note: Programs, meetings, and events at the Suffolk County Bar Center (560 Wheeler Road, Hauppauge) unless otherwise indicated. Dates, times, and topics may be changed because of under practice areas and all available CLE at the actual, “brick and mortar” conditions beyond our control CLE programs involve tuition fees; see the CLE Centerfold for 24-7 – are available as video replays. SCBA Center, sometimes it is just too course descriptions and registration details. For information, call 631-234-5588. You can even sample a replay before hard to do that. The Internet provides deciding to make a purchase. access to the virtual “town square” of NOVEMBER When you take an on-line CLE course shared expertise and ongoing profession - of either kind, virtually everything is done al enlightenment. 1 Thursday Choosing a Trustee; Fiduciary Liability; Family & Wealth on-line: registration, tuition payment, – Dorothy Ceparano Sustainability. 6:00–9:00 p.m. Light supper from 5:30. 2 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m. Breakfast buffet. All SCBA members welcome. 2 Friday Litigation Solutions: Thomson Reuters Presentation. SCBA NmeEmbEersD wh oF aLre OadmRittIeDd in A uCpdLateE; p rCivacRy iEssuDes IaTnd Spr?obate law; 12:30–1:30 p.m. Lunch from noon. Florida may borrow the Florida Bar’s mediation of probate disputes; and ethical 5 Monday E-Disclosure: Recent Developments in Law & Technology “2012 Survey of Florida Law” audio rules for drafting attorneys. Related to Predictive Coding. 12:30–2:10 p.m. Lunch from compact disk set through the Academy. To borrow the CDs, call the Academy at noon. The disks provide twelve hours of gener - 631-234-5588. The recordings will be 7 Wednesday DMV Update– East End Presentation . (David Mansfield, al CLER credit, including four hours of loaned out on a first-come, first served Presenter). 5:00–7:30 p.m. at The Seasons in Southampton. ethics. basis. A waiting list will be established, Light supper from 4:30 p.m. This year’s disks cover malpractice and members are asked to return the disks 8 Thursday Immigration Law: Deferred Action & Special Juvenile avoidance; a public records and Sunshine promptly so that others who need them Cases. 12:30–2:10 p.m. Lunch from noon. (Note change from Law overview, ethics and technology; eth - may be accommodated. There is no evening to lunch program.) ical advertising; Social Security benefits; charge to borrow the Florida recordings, 13 Tuesday Landlord-Tenant Update (with book sighing). 6:00–9:00 Bert Harris issues and property rights but a refundable fee may be charged at the p.m. Light supper from 5:30. cases; presenting evidence from an iPad; Academy’s discretion. 14 Wednesday DMV Update– SCBA Center Presentation. (David Mansfield, hearsay; wills, trusts and estates case law DPC Presenter) 6:00–8:30 p.m. Light supper from 5:30. 15 Thursday Academy Curriculum Planning Meeting. 5:00 p.m. All SCBA members welcome. 16 Friday Lawyers Helping Lawyers. 10:00 a.m.–4:00 p.m. 19 Monday Advanced Standing Issues in Securitized Mortgage Foreclosures. Part I 6:00–9:00 p.m. Light supper from 5:30. (Part II on January 14) 28 Wednesday The National Mortgage Settlement & Bankruptcy . 6:00–8:00 p.m. at the Nassau County Bar Association (Mineola). Sign-in from 5:30 p.m. 28 Wednesday Annual Family Court Update (Part I). 6:00–9:00 p.m. Light supper from 5:30. 29 Thursday Annual Real Property Update (Scott Mollen, Presenter). 6:00–9:00 p.m. Light supper from 5:30. 30 Friday IRA Guide to IRS Audit Issues. 9:00–11:45 a.m. Breakfast from 8:30 a.m. 30 Friday Effective Depositions. 1:00 p.m.–4:30 p.m. Lunch from 12:30 More than 120 attorneys turned out for the Academy’s October 11 program on p.m. (Note change of date. Also, change of time from full- to Commercial Litigation in New York State Courts. A prestigious panel of four half-day program.) judges and sixteen experienced litigators disseminated advice for all the stages of lit - igation, from case evaluation through appellate advocacy. As a bonus, the attendees DECEMBER received a six-volume commercial litigation treatise published by Thomson Reuters. The program is now available on-line as a video replay or for purchase as a DVD. 3 Monday Annual School Law Conference. 9:00 a.m.–3:00 p.m. Hyatt Regency Wind Watch Hotel. Continental breakfast; lunch buf - fet. 4 Tuesday Asset Purchase Agreements. Noon–3:00 p.m. Lunch from ACADEMY OF LAW OFFICERS 11:30 a.m. 5 Wednesday Annual Family Court Update (Part II). 6:00–9:00 p.m. Light DEAN Executive Director Hon. John Kelly Dorothy Paine Ceparano supper from 5:30 6 Thursday Appealing Health Care & Long-Term Disability Insurance Robin S. Abramowitz Jeanette Grabie Hon. Thomas F. Whelan Denials. 12:30–2:10 p.m. Lunch from noon. Brian Duggan Scott Lockwood Sima Asad Ali 7 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m. Gerard J. McCreight Lita Smith-Mines Brette A. Haefeli Breakfast buffet. All SCBA members welcome. Daniel J. Tambasco William J. McDonald Robert M. Harper Sean E. Campbell Harry Tillis Jennifer A. Mendelsohn Check On-Line Calendar ( www.scba.org ) for additions, deletions and changes. Amy Lynn Chaitoff Peter C. Walsh Marianne S. Rantala Hon. James P. Flanagan Glenn P. Warmuth