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Queens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500 Vol. 74 / No. 3 / December 2010 Impact of Two Court Unauthorized Insurance Decisions on Carriers In New York Parking Violations BY FRANCIS SCAHILL feasor to be without insurance coverage. This article Bureau explores the applicability of the New York State When a non-domiciliary comes into New York Insurance Law and New York State Insurance BY DENNIS BOSHNACK operating a vehicle registered and insured in a for- Regulations and the interplay of New York case law eign state, New York Insurance Law §5107 pro- with respect to unauthorized insurers. The following The New York City vides protection for New York residents injured in issues are addressed in this article: Parking Violations a motor vehicle accident with a non-domiciliary. 1.) A non-resident operating a vehicle insured by an Bureau reportedly adjudi- New York Insurance Law §5107 provides: unauthorized insurer and the applicability of the New cated over 3.2 million a.) “Every insurer authorized to transact or transact- York State Insurance Law threshold codified in parking tickets in fiscal ing business in this state, or controlling or con- §5102(d). year 2010, and about 2.8 million last year. trolled by or under common control by or with Francis Scahill 2.) A non-resident operating a vehicle insured by an such an insurer, which sells a policy providing unauthorized insurer with limits below the New York According to two recent motor vehicle liability insurance coverage or any similar cov- Statutory mandate of $25,000 per person/ $50,000 per occur- Supreme Court, New Dennis Boshnack erage in any state or Canadian province, shall include in each rence. York County, decisions-- such policy coverage to satisfy the financial security require- 3.) A non-resident operating a vehicle insured by an unautho- Matter of Meyers Van Lines Inc. v City of New ments of Article 6 or 8 of the Vehicle & Traffic Law and to rized insurer having limits at or above the mandatory statuto- York Dept. of Fin. Parking Violations Bur. (Nov provide for the payment of first party benefits pursuant to ry minimum. 10, 2009, Index No. 106783/2008) and Matter of Subsection (A) of §5103 of this article when a motor vehicle 4.) A New York resident operating a vehicle insured by an unau- Dong Sic Ko v City of New York Dept. of Fin. covered by such policy is used or operated in this state. thorized insurer having limits below the mandatory statutory Parking Violations Bur., 28 Misc 3d 603 (May b.) Every policy described in Subsection (A) hereof shall be con- minimum. 12, 2010)--PVB violated VTL 242, by making strued as having the coverage required by Subsection (A) of 5.) The relationship of MVAIC to a claim involving an unau- payment a prerequisite for taking an appeal, and §5103 of this article” 1 thorized insurer. 238 (2), by using mailing as process service. The This statute, commonly known as the New York “Deemer” 6.) A New York resident operating a vehicle insured by an unau- author handled both cases. This article focuses on Provision unequivocally applies to any policy of insurance thorized insurer having limits at or above the mandatory PVB’s nine-month failure to follow Meyers and underwritten by an authorized insurer in New York. In the mat- statute. on PVB’s continuing failure to follow Ko, and ter of Allstate Insurance Company v. Ramos the Appellate 7.) An action involving a “covered” individual v. a “non-cov- suggests PVB’s failure to follow them lacks Division, 1st Department in a unanimous decision, indicated, ered” individual. merit. “Consistent with New York public policy to protect the innocent 8.) Choice of law principals where the underlying policy limits victims of traffic accidents, personal protection insurance liabil- are at or greater than the New York statutory minimum. MEYERS ity coverage underwritten in a sister state by insurers authorized 9.) Subrogation of first-party benefits paid to a covered person v. PVB rule 19 Rules of the City of New York to do business in New York is required to conform to New York a non-covered person. (RCNY) 39-12 (b) (3) makes paying fines and minimal financial requirements and, if not, is deemed to do so”. Some 784 companies are listed by the New York Insurance penalties or posting a bond a prerequisite for tak- 2 Department as authorized to do business in New York. 7 §65- ing an administrative appeal. That rule states: 11 NYCRR §65.5 codifies the New York Rule with respect to 1.8( c) of the New York State Insurance Regulations also pro- “No appeal shall be permitted unless the fines the requirement that an out of state policy conform to the mini- vides “Any other unauthorized insurer may file with the and penalties assessed by the Hearing Examiner mum insurance requirements of New York. 3 The Court of Superintendent of Insurance a statement that its automobile are paid, or the respondent shall have posted a Appeals as early as 1974 in the action of Rosado v. Everready insurance policy sold in any other state or Canadian province cash or recognized surety company bond in the Insurance Company indicated, “It is the public policy of New will be deemed to satisfy the financial security requirements of full amount of the final determination appealed York to protect the innocent victims of traffic accidents”. 4 Article 6 or 8 of the New York Vehicle & Traffic Law and will from.” The Court discussed the legislative intent indicating that be deemed to provide for the payment of first-party benefits pur- The Rochester parking violations bureau had a “Motorists shall be financially able to respond in damages for suant to §5103 of the New York Insurance Law when the rule virtually identical to 19 RCNY 39-12 (b) (3). their negligent acts, so that innocent victims of motor vehicle insured motor vehicle is used to operated in this State”. 8 Ahl v Howard, 12 Misc 3d 870 (Sup Ct, Monroe accidents may be recompensed for the injury and financial loss What is the applicability of New York Law to a non-resident County 2006), held the Rochester parking viola- inflicted upon them”. 5 operating a vehicle in New York insured by an unauthorized tions bureau rule was unenforceable for being What happens to the victim of a traffic accident who is injured insurer. In American Millennium Insurance Company v. Castro 9 inconsistent with VTL 242. According to the in New York by a non-resident operating a vehicle insured by an Judge Louis B. York of Supreme Court, New York County was court, VTL 242 (3) provides the procedure to unauthorized insurance carrier who does not do business in New faced with a fact pattern which involved a New York resident as appeal and VTL 242 does not make payment of York? Vehicle & Traffic Law §318 Subsection 5(a) provides a passenger in a vehicle owned by a New Jersey corporation, either a fine or a bond a prerequisite for taking an “The Commissioner, upon receipt of evidence that a person operated by a New Jersey driver with a New Jersey license, reg- appeal. other than the owner of the vehicle, has operated upon the pub- istered to a New Jersey corporation. The vehicle was insured by In Meyers the second decretal paragraph of the lic highways of this state a motor vehicle not registered in the a New Jersey commercial policy issued by American Millennium judgment declares PVB rule 19 RCNY 39-12 (b) state, with knowledge of proof of financial security was not in Insurance Company who was not authorized to do business in (3) is unenforceable: effect with respect to such vehicle shall revoke the driver’s New York. The vehicle was subsequently involved in an accident “ADJUDGED AND DECLARED that license of such person, or if he is a non-resident, the non-resident in New York. Respondent’s rule, RCNY 39-12 (b) (3), which privileges of such person.” 6 For purposes of a coverage analysis the first inquiry by cover- requires payment of the fines in full prior to the The revocation of driving privileges to the non-resident is lit- age counsel or claims personnel is whether the insurance carrier taking of an appeal, is unenforceable inasmuch as ______tle comfort to the New York accident victim who finds the tort- Continued On Page 17 ______Continued On Page 8 INSIDE THIS ISSUE Unauthorized Insurance Carriers In NY .1 Video Conferencing...... 4 Impact of Two Court Decisions on Recent Decision Changing Law of Parking Violations Bureau ...... 1 Editor’s Message: Our QCBA Heritage ...2 Paternity by Estoppel ...... 5 President’s Message ...... 3 Marital Quiz ...... 8 Breakfast At Brandeis: Photo Corner ...... 10-11 Bagels and Latkes...... 3 Attorney Affirmation Required in Court Notes ...... 12 Residential Foreclosure Actions...... 3 Culture Corner ...... 13 2 THE QUEENS BAR BULLETIN – DECEMBER 2010

EDITOR’S MESSAGE Our QCBA Heritage By Paul E. Kerson mon culture, now sweeping the world. Five Borough and County “City of New In the 19th century, “Mayflower” ances- LeBaron Bradford Prince was born in York” we know today was not formed (or try was very respected by the voting popu- This past November 13, 2010, I had Flushing, Queens County, NY in 1840 malformed) until 1898. lation. L. Bradford Prince went to local occasion to be invited to celebrate our into the region’s most prominent and eco- On his mother’s side, L. Bradford Flushing schools, and graduated from the Queens County Bar Association (QCBA) nomically important family. His grandfa- Prince was descended from William Columbia Law School in 1866. He Heritage. The event was the solemn cere- ther, the First of Eight William Princes in Bradford, one of the first governors of the returned to Flushing to practice law. He mony at Flushing Cemetery of the rededi- genetic succession, came to Flushing in original 1620 colony of Plymouth, Mass., was active in politics, and was repeatedly cation of the headstone of Mary Prince 1737 and founded a tree nursery with his founded by one of the very first boatloads elected as Flushing’s New York State (1846-1925), the widow of our QCBA co- brother Robert. of immigrants who specifically came here Assembly Member five different times founder, Governor L. Bradford Prince. By 1840, the Prince family owned much to have “anchor babies”. Their primitive from 1871 to 1875. Therein lies a story of the intertwining of the land of Flushing, where they grew watercraft was called “The Mayflower”. ______Continued On Page 6 of the history of the QCBA and of the fruit trees for replanting in the fast grow- entire North American continent, the ing nearby cities of Brooklyn and New United States Government, and our com- York (read lower Manhattan). The United

THE DOCKET . . . being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be held at the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will be made available to members via written notice and brochures. Questions? Please call (718) 291-4500. PLEASE NOTE: The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Legal Education Provider in the State of New York. 2010 winter CLE Seminar & Event Listing December 2010 Wednesday, December 1 UM/SUM Update 2010 - Postponed Wednesday, December 8 Holiday Party at Floral Terrace Friday, December 24 Christmas Eve, Office Closed Friday, December 31 New Year’s Eve, Office Closed 2010-2011 January 2011 Officers and Board of Managers Monday, January 17 Martin Luther King, Jr.’s Birthday, Office Closed of the Monday, January 31 Stated Meeting Queens County Bar Association President - Chanwoo Lee February 2011 President-Elect - Richard Michael Gutierrez Tuesday, February 8 MHL Article 81/Guardianship Training for the Layman Tuesday, February 15 Farrell Fritz Seminar PC: Employment Law 2011 Vice President - Joseph John Risi, Jr. Wednesday, February 16 QVLP Foreclosure Training Secretary - Joseph Carola III -* Treasurer - Joseph F. DeFelice March 2011 Class of 2011 Class of 2012 Class of 2013 Wednesday, March 2 CPLR Update (Tentative) David L. Cohen Jennifer M. Gilroy Gregory J. Brown Wednesday, March 9 Immigration Seminar Paul E. Kerson Richard Harris Lazarus Tracy Catapano-Fox Wednesday, March 23 Basic Criminal Law - Pt 1 Zenith T. Taylor Gary Francis Miret Mona Haas Wednesday, March 30 Basic Criminal Law - Pt 2 Timothy B. Rountree Steven S. Orlow Gregory J. Newman April 2011 Clifford M. Welden James R. Pieret Guy R. Vitacco, Jr. Wednesday, April 6 Equitable Distribution Update Monday, April 11 Past Presidents, Golden Jubilarians & Judiciary Night Arthur N. Terranova . . . Executive Director Thursday, April 14 Civil Court Committee Seminar Friday, April 22 Good Friday, Office Closed QUEENS BAR BULLETIN Thursday, April 28 Membership/Young Lawyers/Mentoring Event EDITOR - Paul E. Kerson ([email protected]) May 2011 Richard Golden ([email protected]) Thursday, May 5 Annual Dinner & Installation of Officers Stephen David Fink ([email protected]) Gary DiLeonardo ([email protected]) Manuel Herman ([email protected]) CLE Dates to be Announced Bankruptcy Elder Publisher: Juvenile Justice Labor Send letters and editorial copy to: Lawyer’s Assistance Surrogate’s Court, Estates & Trusts Long Islander Newspapers, LLC. Queens Bar Bulletin, 90-35 148th Street, under the auspices of Queens Jamaica, New York 11435 County Bar Association. Editor’s Note: Articles appearing in the Queens Queens Bar Bulletin is Bar Bulletin represent the views of the respec- NEW MEMBERS published monthly from tive authors and do not necessarily carry the October to May. endorsement of the Association, the Board of Ala Amoachi Yakeina Fidelia Dixon Kelechi Onwuchekwa All rights reserved. Managers, or the Editorial Board of the Queens Irina Chikerinets Nicole Holler Constantina Material in this publication may Bar Bulletin. Min Chul Chang Angella Shaun Hull Papageorgiou not be stored or reproduced in Lillian Joy Costa Janice Sophia Jarrett Alexandra I. Pinilla “Queens Bar Bulletin” Paul Devlin Melissa D. Mohan Milana Sinaniyeva any form without permission. (USPS Number: 252-520) is published monthly except John M. Dickerson Carrie L. O’Connell Kim F. Trigoboff ©2010 June, July, August and September by Long Islander Monika Duszak Darya Y. Olshanetskaya Alissa L. Van Horn The Queens County Newspapers, LLC., 149 Main Street, Huntington, NY 11743, under the auspices of the Queens County Bar Bar Association. Association. Entered as periodical postage paid at the Post Advertising Offices: Office at Jamaica, New York and additional mailing NECROLOGY Long Islander Newspapers, offices under the Act of Congress. Postmaster send address changes to the Queens County Bar Association, 149 Main Street, Huntington, 90-35 148th Street, Jamaica, NY 11435. Abraham Hecht New York (631) 427-7000 THE QUEENS BAR BULLETIN – DECEMBER 2010 3

PRESIDENT’S MESSAGE Greetings! Like many people, I always feel both downturn has not spared the was: A basic CLE program on share your thoughts so that we can incorpo- hopeful and bittersweet at the holiday sea- Office of Court Administration different areas of practice. In rate them into our planning. The survey is son. and many senior court person- response to that request, David confidential and results will be compiled by On the one hand, the holidays are a nel are soon to retire. In addi- Adler, Chair of QCBA’s Trust Joanne O’Reilly of the ABA. If you have chance to celebrate, honor tradition and tion, the Honorable Robert and Estate Committee, organ- questions, please contact Joanne at oreil- give back to our community. In that spirit, Nahman, Surrogate of Queens ized a basic CLE program (Will [email protected]. on December 8th, QCBA joined with the County, is stepping down as a and Probate) at the Surrogate’s At this season and throughout the year, Queens County Women’s Bar Association, Surrogate from the bench due to Court on November 17, 2010 our Association’s growth is your growth. Brandeis Bar Association, Malcolm B. the mandatory age limit. We — and more than 100 attorneys Please become an active participant and ask Allen Black Bar Association, Latino will miss all of you and wish attended. your friends to join QCBA! Lawyers Association of Queens County, St. you the very best as you begin a Now, in preparation for our Finally, on behalf of the entire Queens th John’s Law School Alumni Association new and, we hope, exciting Chanwoo Lee January 10 strategic planning County Bar Association, I want to wish and Hellenic Lawyers Association for a chapter in your lives. meeting, QCBA and the each of you, your families and your loved very successful holiday party and annual Something that is likely to American Bar Association are ones the joys of this season. May you have toy drive at the Floral Terrace. become a new QCBA tradition is the mem- surveying all members about how we can a holiday and a new year filled with Peace, On the other hand, a new year always ber survey. Prior to becoming President, I better serve you during this challenging Health, Happiness and Success. brings change; and this year, that change had taken an informal survey, asking some time for legal practice. You’ve all received includes saying goodbye to many col- of our members how QCBA could better a request to fill out the survey by email or Chanwoo Lee, Esq. leagues from the courts. The economic meet their needs. One repeated response mail and I urge you to take a few minutes to President Bagels and Latkes Too! Revised Attorney Affirmation-Required in Residential Foreclosure Actions

In cases where the previous version of and a copy filed with the court, no the attorney affirmation has not yet been later than five business days before filed, plaintiff's counsel in residential the scheduled auction. Therefore, foreclosure actions involving one-to-four foreclosure referees would be family homes and condominiums are now advised to ask plaintiff’s counsel for required to file the revised affirmation as a copy of the completed affirmation follows: perhaps at the same time that a copy of the judgment of foreclosure is For new cases, the affirmation requested to be sent. must accompany the Request for Judicial Intervention In pending Counsel remain under a continuing cases, the affirmation must be sub- obligation to file an amended version of mitted with either the proposed order the affirmation if new facts emerge after of reference or the proposed judg- the initial filing. ment of foreclosure In cases where a In addition to the revised affirmation, foreclosure judgment has been counsel may also file a client affidavit. entered but the property has not yet Samples of these forms may be found at been sold at auction, the affirmation http://www.nycourts.gov/attorneys/fore- must be submitted to the referee, closures/Affirmation-Foreclosure.pdf

BY MARK WELIKY Wrynn is a longtime member of QCBA A Christmas Wish and previously had served on our Board of On the morning of December 1, 2010 Managers. BY JOSEPH F. DEFELICE the Queens County Bar Association was The Brandeis Association, the fraternal host to “Breakfast at Brandeis” and a spe- organization of Jewish judges and Good Morning on Christmas cial guest speaker. That speaker was lawyers, was established in 1969 with a Oh I wish you were here, James J. Wrynn the Superintendent of the stated purpose not only to encourage Yes boo I do miss you, New York State Insurance Department. friendship and culture among our mem- We would have some good cheer He began serving as Superintendent on bers, but to foster respect for law and legal August 20, 2009. Wrynn previously institutions, as well as vigorously assert- We could open the presents served as the Executive Director of the ing the interest in justice and fair play in and share a sweet kiss, New York State Insurance Fund and has the County of Queens and in the City and Yes, good morning on Christmas 25 years experience as a trial attorney State of New York. Newly inducted and a Happy New Year focusing in the areas of life, accident and President of the Brandeis Association, health insurance, property and casualty Lawrence M. Litwack and Brandeis I'd watch your eyes twinkle, insurance, general liability insurance, Chairperson, Supreme Court Justice and smile at you, insurance coverage disputes, professional Bernice D. Siegal provided breakfast fare yes, on the morning of Christmas, malpractice, and product liability. Wrynn including potato latkes and jelly donuts in I'd laugh with you too was a founding partner in the law firm of honor of the first night of Hanukah. There MacKay Wrynn & Brady, LLP, which was a great turnout for the event and atten- I'd stroke your long hair specializes in the area of civil litigation dees were provided with a great deal of and be happy with you, and appellate practice, with strong empha- information on all facets of insurance mat- yes, good morning on Christmas, sis on insurance law. Superintendent ters by Superintendent Wrynn. my sweet little boo

If you or someone you know is having a problem with alcohol, drugs or gambling, we can help. To learn more, contact QCBA LAC for a confidential conversation. Confidentiality is privileged and assured under Section 499 of the Judiciary Laws as amended by Chapter 327 of the laws of 1993. Lawyers Assistance Committee Confidential Helpline 718 307-7828 4 THE QUEENS BAR BULLETIN – DECEMBER 2010 Video Conferencing BY KEVIN BEGLEY manner and, most importantly, there has The New York Center for been an increase in attorney-client con- The Queens Supreme Court introduced tacts. Neuropsychology the video conference initiative as a pilot The Queens Supreme Court’s video unit program, in January of 2004. Almost is located on the seventh floor of the & Forensic Behavioral Science immediately the program was a huge suc- Queens Criminal Court building, just cess. It was so well received that the initial down the hall from the law library. The users jokingly asked us not to advertise the court video equipment operates on secure program for fear it would falter from over- lines and no recordings are made of any Dr. N.G. Berrill, Director use or the paucity of available equipment. video conference sessions. Presently, the Their fears proved unfounded. As the video unit has at its command two court- number of users grew, both the Courts and room setups, five interview booths and the Department of Correction increased two mobile units. The mobile units afford the resources that were devoted to this us the added flexibility of setting up a project. That process continues today. As video court appearance in any courtroom [ Over 20 Years \ the program prospers and the demand for at anytime. The mobile units can also be video conferencing increases, we are con- used for attorney-client interviews, if the stantly evaluating the quality (and quanti- need for more interview booths arises. ty) of our equipment and seeking novel All requests for video appearances must ways to utilize it. be made to the video conference unit by Providing Consultation to Attorneys Currently, the Queens Video 3PM on the day prior to the scheduled ses- Conference program is designed to accom- sion. Requests can be made by filling out a & the Courts on Psycho-legal Matters modate attorney-client interviews, proba- written video request form. These forms tion interviews, service provider inter- are available in room 708 of the court- views and video court appearances. house or on-line on the Queens Supreme However, we are not limited to these cate- Court web page. The forms may be sub- gories. In the hope of expanding the video mitted in person, by fax or by email. Once • Criminal Cases: Competency Issues, Criminal program and making it the best that it can the request is submitted, the video confer- be, we are committed to scheduling almost ence unit will notify the Department of Responsibility, Extreme Emotional Disturbance, Risk any court related video session that the Correction to place the defendant on the current technology and our equipment will video conference recall sheet for the date Assessment, Sex Offender Workups & Dispositional permit, e.g., out of state requests, upstate requested. Video interviews are limited to prisoners, hospital arraignments etc. 30 minutes, unless additional time is Planning Since the inception of our video pro- requested on the interview request form. If gram, we have witnessed a number of the defendant is not fluent in English, it is striking advantages from utilizing video incumbent upon the person requesting the • Matrimonial & Family Court Cases: technology. Travel time for users has been interview to arrange for an interpreter to minimized; fewer inmates are transported be present. Custody/Visitation, Neglect/Abuse, Termination, to the courthouse; overcrowding in the For the most part, the greatest success of court pens has lessened; probation inter- the video program has been the video Delinquency, Family Violence, & Adoptions views are conducted in a more timely ______Continued On Page 18

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WWW.NYFORENSIC.COM THE QUEENS BAR BULLETIN – DECEMBER 2010 5 Penny D. Taylor V. Joseph Rose: A Recent Decision Changing the Law Of Paternity by Estoppel BY JOSEPH J. SAVINO AND JAMES L. HYER since the child’s birth, the Court of Child Support, and the parties obtained a Appeals asserted that the man had held Judgment of Divorce in August of 2004 On May 2, 2007, a decision was ren- himself out to be the child’s father by pro- that named the child as an issue of the mar- dered by Judge Ellen Gesmer of the Bronx viding the child with financial support, riage. After having no contact with the Supreme Court in Penny D. Taylor v. signing a sworn statement that he was the child since the Separation, Rosa filed a Joseph Rosa, No. 76026-04 (Bronx Sup. child’s father and authorizing the child’s Summons and Petition for Visitation in 2007), significantly changing the law of last name to be changed to his own, regu- December of 2004 and resumed visitation Paternity By Estoppel. larly communicating and visiting with the with the child. This noteworthy Decision came less child, and identifying the child as his own Due to the actions, words and deeds of than a year after the New York State Court in his life insurance policy. Although the the mother during the Visitation of Appeals, holding In the Matter of child in Shondel J., was only four or so Proceeding, Rosa questioned the paternity Shondel J. v. Mark D., 7 N.Y.3d 320, 853 years of age when the action was filed, the of the child and was compelled to seek a James L. Hyer Joseph J. Savino N.E.2d 610, 820 N.Y.S.2d 199, 2006 N.Y. Court of Appeals found that the man’s DNA Test. In February of 2005, Rosa Slop Op. 05238, that ruled in favor of actions caused the child to justifiably rely obtained results from a DNA Test reveal- under section 4404, citing Matter of Kim Paternity By Estoppel. Citing this legal that he was the father, and it was in the ing that he was not the biological father of F. v. Glenn W., 295 AD2d 995, 995, quot- doctrine, the Court of Appeals upheld the best interests of the child to prevent the the child. Although Rosa attempted to ing Catherine A. v. David B., 249 AD2d trial court and Appellate Division determi- father from denying paternity, thereby admit the DNA Test results at a Visitation 964, 964, 1v dismissed 92NY2d 919; See nation that a man was required to pay child requiring him to continue to pay child sup- Proceeding, he was advised that the Court Matter of Jennifer LL. v. Michael MM., support for a child that was not biological- port. did not have the Jurisdiction to hear the 289 AD2d 896, 897: Matter of Beaudoin v. ly his. Despite irrefutable DNA evidence In, Penny D. Taylor v. Joseph Rosa, the matter. In February of 2007, the subject Robert A., 199 AD2d 842, 844; Matter of that the man was not the biological father Bronx Supreme Court struck a blow to the child being now over four years of age, Rosa v. Diaz, 136 AD2d 512, 513-514, and of the child, the Court of Appeals rea- Court of Appeals decision in Shondel J., Rosa filed an Order to Show Cause with Matter of Jennifer W. v. Steven X., 268 soned: providing that the rule of Paternity By the Bronx Supreme Court requesting that AD2d 800, 801. In the alternative, the In this child support proceeding, Estoppel is not to be blindly applied in an Order be entered to, in part, modify the Memorandum argued that the Judgment we hold that a man who has mistak- every case, but only if doing so would parties Judgment of Divorce to remove should be modified due to fraud, misrepre- enly represented himself as a child’s truly be in the best interest of the child. any reference of the child, as Rosa’s child, sentation, or other misconduct of an father may be stopped from deny- Similar to the man in Shondel J., Rosa and removed any and all obligations of adverse party. Citing, Matter of Oneida ing paternity, and made to pay child took actions to assert himself as the father Rosa to pay child support. County Department of Social Services v. support, when the child justifiably of the child. In an effort to do the right The memorandum of Law submitted by Joseph C., 289 AD2d 1077, and 735 relied on the man’s representation thing, Rosa married the mother prior to the Rosa cited the New York State Civil NYS2d 854, NY Slip OP. 10677, Queal v. of paternity, to the child’s detri- child’s birth, in November of 2002, so that Practice Law and Rules (CPLR) §5015 Queal, 179 AD2d 1070. Further, the ment. We reach this conclusion the child would be an issue of the mar- (a)(2), (3), requesting that Rosa be provid- Memorandum sought to distinguish the based the best interests of the child riage, signed the child’s Birth Certificate, ed relief from the Judgment of Divorce on matter from Shondel J., offering that there as set forth by the legislature. provided financial support for the child, the grounds of; newly-discovered evi- was no significant parent/child relation- [Shondel J. v. Mark D., et al., and identified the child as his own. dence which if introduced at the trial, ship, limited contact between Rosa and the emphasis added] However, after only with the child and would probably have produced a different child, the child had never identified Rosa In Shondel J., while the man testified mother for a few months, the parties sepa- result and which could not have been dis- as it’s father, Rosa had not held the child that he had only seen the child four times rated in July of 2003. Rosa began to pay covered in time to move for a new trial ______Continued On Page 7 6 THE QUEENS BAR BULLETIN – DECEMBER 2010

also celebrated at TBS as a most unusual Our QCBA Heritage event for the time. ______So it was even more of a surprise when Continued From Page 2 Pat Farr asked your Editor to address the 1876 was one of L. Bradford Prince’s New Mexico Chapter of the DAR at the banner years. He was elected as Flushing’s Flushing Cemetery this past November 13, New York State Senator, and he co-found- 2010. She asked me to speak about the law- ed our QCBA, still vitally active 134 years suit I brought in 2002 on behalf of four later as perhaps Queens County’s leading Shinnecock Indians concerning adjacent civic group of any type, and publisher of the Martin’s Field, a public park. Queens Bar Bulletin you are now reading. And so I did. My long term client, On July 19, 1876, then-Senator Prince Mandingo Tshaka, is part African- met with James W. Covert, W.J. Garretson, American and part Shinnecock Indian. He George Van Siclen and H.W. Eastman at is a member of the historic Macedonia the Garden City Hotel to found the QCBA. A.M.E. Church of Flushing. We met on (Garden City and indeed, the whole of Community Board #11 Queens back in today’s Nassau County were part of Queens 1978. County in those days.) These were our first For decades, Mandingo had been trying (left to right) Anthony Wilkins, former Comptroller, Urban League; Gloria Parker, New five members, progenitors of the thousands to get the NYC Parks Dept. to recognize of lawyers whose careers have been graced Mexico Regent, Daughters of the American Revolution; Thelma Brown, St. George's Church; Jim Driscoll, Vice President, Queens Historical Society; and Paul Kerson, Editor, that Martin’s Field was not a public park at by QCBA membership since then. Queens Bar Bulletin, and Counsel, Queens Historical Society. all. It was and is the ancient burial ground Despite having grown up in Flushing and of his ancestors. In the 19th and early 20th played football in Kissena Park adjacent to living in New Mexico, and that they would the Prince Tour of Flushing, NY. For the centuries, Flushing Cemetery was reserved Flushing Cemetery, and been active in the be pleased to talk to me. sake of the True American History, I was for the top of society. African Americans QCBA since 1977, your Editor had no I was not then in the habit of spending happy to oblige. I took her to Prince Street and white people who died in epidemics knowledge of L. Bradford Prince until one time with Mayflower descendents, having to imagine the fruit orchards that were once were buried at Martin’s Field, the ancient day in July 1995. My wife Marleen and I spent much of my career to 1995 with there. We toured St. George’s Church, Shinnecock Indian burial ground across had taken our then school-age children on a Court-appointed clients in the holding pens where the Second William Prince was a 46th Avenue. road trip across the continent to show them of the Queens County Criminal Court and Vestryman in 1798. Finally, we went to the In 1938, in its infinite wisdom “the City our country. Queens County Supreme Court, Criminal Prince family plots at Flushing Cemetery. of New York” Parks Department paved After touring Elvis’s house in Memphis Term. I probably would have been more Mary Prince’s headstone was missing. over Martin’s Field with basketball courts and the Alamo in Texas, we drove into comfortable with Billy the Kid. Pat Farr was shocked by this, and vowed and swings and slides. Mandingo remained Santa Fe, New Mexico one hot July after- However, I am not one to forsake histor- to correct it. Sure enough, in October of this outraged. In 2002, I sued the NYC Parks noon. Marleen and our daughter Deborah ical duty. So back to New Mexico I went, in year, I received another telephone call from Commissioner on behalf of Mandingo and headed for the numerous American Indian the Summer of 1996, to interview and take Pat in New Mexico. She had arranged for three other Shinnecock and African- jewelry stores lining the Town Square. Our video and audio tapes of Governor Prince’s the New Mexico Chapter of the Daughters American descendants, claiming continuing son Ben and I headed for the New Mexico descendents. I spent time in the New of the American Revolution (DAR), to pur- civil rights violations. The “City” fought History Museum across the street. Mexico State Archives reading his corre- chase a new headstone for Mary Prince, the case on Statute of Limitations grounds. There, lo and behold, as we entered the spondence, and in the New Mexico State who died in 1925 in Santa Fe, NM. Her It was dismissed. But at the oral argument, Museum, was a large oil painting of a smil- Law Library reading his opinions as Chief body was taken back to Flushing, NY for Mandingo showed up in full Shinnecock ing bearded 19th century Leader of Society, Justice. Some of his letters concerned his burial in Flushing Cemetery, despite the regalia, including a coat of white feathers entitled as follows: “Governor L. Bradford real estate holdings in Flushing and Long fact that she had spent her adult life organ- and a headdress. See Tshaka v. Benepe, Prince of Flushing, L.I.” Island City, NY. izing New Mexico Society. 2003 WL 21243017 (EDNY 2003). I did a double-take. This is a disconnect. I expanded my 1995 Queens Bar Bulletin Pat told me that on November 13, the Law School teaches us that adverse US How did anyone from “Flushing, L.I.” article into a book, which I published in a Members of the New Mexico DAR chapter District Court decisions are appealed to the become Governor of New Mexico? I limited edition in 1996. Copies are on file in would be flying to New York to dedicate US Court of Appeals. But Martin’s Field inquired at the Museum. No one could the Long Island Room of the Queens Mary Prince’s new headstone. Would I was different. We took an appeal to City answer. Borough Public Library, the QCBA, the attend? Council Member John Liu, who arranged When I got back to the Holy Land Queens Historical Society, the Columbia First, I alerted Jim Driscoll, the past for the City Council to direct the recalci- (Queens County, NY), I commenced my University Columbiana Collection, the President (and now Vice President) of the trant Parks Department to tear out the bas- research in the Citadel (the Long Island UCLA Law Library and the Library of the Queens Historical Society (QHS), my pro ketball courts and swings and slides and Room of the Queens Borough Public Museum of New Mexico. bono client of 25 years. replace them with plantings appropriate for Library on Merrick Boulevard) and discov- The Seventh Bill Prince is today a mining QHS, funded by the City of New York, a cemetery. John Liu is today the City’s ered that Senator L. Bradford Prince lawyer in Utah. He was so taken with the was founded in 1968, and absorbed the Comptroller, and its first city-wide elected received a federal patronage appointment as biography of his Great-grandfather L. Flushing Historical Society, co-founded Asian-American official. Chief Justice of New Mexico Territory Bradford Prince that he came to Flushing, much earlier by, you guessed it, L. Bradford In 2006, Borough President Helen from President Rutherford B. Hayes in NY to see me in 1997. I took him to his Prince. When William Friedmann joined Marshall held a rededication ceremony at 1879, soon after founding the QCBA. ancestral lands on Prince Street, his adja- the Queens County Supreme Court in 1985, Martin’s Field. The Shinnecock Indians’ (Apparently, founding the QCBA was cent ancestral church, St. George’s, and to he turned the pro bono QHS Counsel’s job Spiritual Leader came in full regalia with the leading qualification to serve as Chief the Flushing Cemetery to see L. Bradford’s over to me, and I have so served ever since. incense, smoke, music and traditional Justice of a federal Territory in 1879. Note tombstone. I also took his cousin Gina of So, on November 13, 2010, Jim and I dance, to celebrate the memorial plaque and that the leading legal figure in 1879 in New Santa Fe on the same Flushing tour. joined 22 members of the New Mexico diorama arranged by Council Member Liu. Mexico was Billy the Kid. It turned out that Earlier this year, New Mexico Historia DAR at an Episcopal service at Flushing Martin’s Field is today known as “The Olde there were very few laws in New Mexico in Pat Farr read my biography of L. Bradford Cemetery to honor Mary Prince. Pat Farr Towne of Flushing Burial Ground” and is 1879, and Chief Justice Prince actually Prince in the Library of the New Mexico spoke, as did Gloria Parker, the State so marked. See www.bridgeandtunnelclub. founded and compiled Volume 1 of the History Museum. She was preparing the Regent of the New Mexico DAR. There com/bigmap/queens/flushing/martins- New Mexico Law Reports; and wrote biography of “Governor” Mary Prince, L. was a graveside service to show the new field/index.htm. Volume 2, which I actually later read in its Bradford’s wife. Mary Catharine Beardsley headstone. So on November 13, 2010, at the entirety 117 years later, but we are getting Prince came from a prominent family in Thelma Brown, a lay minister of St. gravesites of Governor Bradford and Mary ahead of our story.) Oswego, NY. Governor Prince’s first wife, George’s, gave a prayer. St. George’s Prince, this 1964 TBS Bar Mitzvah student Having served as the Moses of New Hattie E. Childs, died of food poisoning on Church on Main Street in Flushing dates told this story to the New Mexico chapter of Mexico, and compiled and wrote its first the New Mexico frontier in 1880. He from British colonial days, from the time of the DAR. I said our country has come a decisional law, Chief Justice Prince was returned to New York to remarry at Trinity the First William Prince’s tree nursery on long way. They were most appreciative. appointed Governor of New Mexico Church on Wall Street and Broadway, per- adjacent Prince Street. St. George’s com- You can’t make this stuff up. But I can safe- Territory in 1889, serving with distinction haps America’s leading church in the 19th menced holding a Chinese service in 1988 ly say that Bradford and Mary Prince would until 1893. Among other things, he founded century. and a Spanish service in 1993 in addition to have been as pleased as they could be - New Mexico‘s public schools, the “Governor” Mary led New Mexico soci- those in the English language. L. Bradford they, who with generosity of spirit, built a University of New Mexico, and the State‘s ety, such as it was. She was the hostess of Prince would be especially proud of this. Bureau of Immigration to populate New mental hospital. He persuaded the Federal all the political and commercial gatherings He founded a “Bureau of Immigration” to Mexico with all comers, who built its Government to set up a court system to set- held at the Governor’s Palace in Santa Fe. attract people to New Mexico Territory Society, Government, schools, courts, tle disputed land titles in the Territory, a This structure is perhaps the oldest public when he was Governor in 1889-1893. University and mental hospital. major continuing problem after the building in North America. It had been the Your Editor celebrated his Bar Mitzvah So thank you, Bradford and Mary Prince. Mexican War of 1845. (New Mexico did capital of Old Mexico before the Mexican at Temple Beth Sholom of Flushing (TBS) We of the year 2010 actually can’t thank not become a State until 1912). War. It was the capital building of New in 1964. It was cause for great celebration you enough. Beijing is for the Chinese. I researched Governor Prince’s biogra- Mexico until a new Capitol building was when TBS member Sidney Leviss was Paris is for the French. London is for the phy, and published it in our pages here back built in the 20th century. It is today the New elected to the Queens County Supreme British. But Queens County, New York and in 1995. I sent it to the New Mexico History Mexico History Museum, where your Court in 1971, and TBS member Seymour Santa Fe, New Mexico, well we are for Museum. The Director called me, and told Editor “discovered” Governor Prince “of Boyers joined him in 1974. When your everyone from everywhere, as that is how me that Governor Prince’s grandchildren Flushing, L.I.” Editor followed Governor Prince to the you willed it to be so long ago. and great-grandchildren were still alive, and So Pat Farr called me up and asked for Columbia Law School in 1972, this was THE QUEENS BAR BULLETIN – DECEMBER 2010 7

be modified pursuant to CPLR 5015 § Changing the (1)(2). Addressing Shondel J., the Court noted that the Plaintiff had not made a showing that it would be in the child’s best Law Of Paternity interests for Rosa to be stopped from deny- ing paternity and noted, “Moreover in light of the plaintiff’s failure to appear, the by Estoppel Court accepts as true defendant’s claim Continued From Page 5______that his ties with the child are not signifi- out to be his own or introduced the child to cant, and that the child would not be his family. In conclusion, the harmed by his denial of paternity.” Judge Memorandum offered that applying Gesmer then ordered that: 1) the Judgment Paternity By Estoppel would act against of Divorce of the parties be modified to the best interests of the child, and would provide that there are no children of the only serve to hinder any possibility of the marriage, to delete the provisions relating true father forming a relationship with the to the child, and to delete any provision child. Further supporting Rosa’s position, obligating the Defendant to pay child sup- the Memorandum asked the Supreme port arrears for the child which accrued Court to consider the language of Shondel after January 17, 2007, the date of service J., where the Court of Appeals itself indi- of the Order to Show Cause. cated that Paternity By Estoppel should The Decision in Penny D. Taylor v. not routinely be applied, “Situations may Joseph Rosa represents a landmark case in vary, and the question whether extinguish- the area of the law of paternity, as the ing the relationship and its attendant cir- Supreme Court has noted, for the first time cumstances will disserve the child is one since the Court of Appeals Decision in for the Family Court based on the facts of Shondel J., that Paternity By Estoppel each case.” should not be applied in all cases involv- The Decision held that the DNA Test ing a dispute over paternity where the constituted new evidence that warranted alleged father has had contacts with the modifying the Judgment of Divorce to child. delete provisions relating to the child, under CPLR 5015 § (a)(2). Citing, Attorneys Joseph J. Savino, Esq. and Barbara v. Michael I., 24 AD3d 451 [2d James L. Hyer, Esq. represented Joseph Dept. 2005], the Court found that the DNA Rosa, the Movant in Penny D. Taylor v. test provided the clear and convincing evi- Joseph Rosa, and are employed by the law dence necessary to overcome the presump- firm Faga Savino, LLP, where Joseph J. tion that the child, born in wedlock, was a Savino is a partner and James L. Hyers is child of Rosa and that the Judgment should of counsel.

Queens County Bar Association 90-35 148th Street, Jamaica, New York 11435 Tel 718-291-4500 • Fax 718-657-1789

NOTICE OF NOMINATING COMMITTEE MEETINGS: Please take notice that those members who wish to be considered for nomination as Officers or Members of the Board of Managers of the Queens County Bar Association should submit written requests and resumes highlighting your activi- ties in the Association prior to January 19, 2011. Tentative meetings pursuant to the by-laws have been scheduled by the Nominating Committee on January 26, 2011 and finally on February 2, 2011. Said meetings are scheduled for 5:00 P.M. in the Board of Managers Room - in the Headquarters Building, 90-35 148th Street, Jamaica, N.Y. At those meetings you may present the names of the persons whom you desire to have considered by the Nominating Committee for nomination to offices to be filled at the Annual Meeting. Hearings will be held at those times for that purpose pursuant to the by-laws.

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Dated: November 15, 2010 Jamaica, NY 8 THE QUEENS BAR BULLETIN – DECEMBER 2010 Marital Quiz Question #1 - Does the Family Court Act Question #4 - May the Family Question #6 - The parties’ stipu- Provide for an award of durational mainte- Court modify a maintenance pro- lation of settlement was incorpo- nance? vision in a separation agreement, rated, but did not merge the par- Your answer - if the parties were never ties’ judgment of divorce. May divorced? the court entertain a motion to Question #9 - Is the presumption that Your answer - modify the stipulation of settle- $25.00 per month child upport is the mini- ment? mum amount to be ordered by court under Your answer - §413(1)(g) of the New York Family Court Act irrebuttable? George J. Your answer - Nashak Jr. Question #2 - If the Supreme Court does not grant a divorce, may it award dura- tional maintenance? Question #5 - Would your answer to Your answer - Question 4 change, if the separation agree- ment provided that: “while this agreement will resolve these issues for the present time, the Wife shall not be foreclosed from Question #7 -May the court suspend child Question #10 - In a separation agreement seeking additional maintenance in negotia- support payments where the noncustodial the partied elected to apply the CSSA tions with the Husband, or failing such parent’s access to the child has been unjus- guidelines to their total combined negotiations, then filing in a court of tifiably frustrated by the custodial parent? incomes. Are they required to articulate appropriate jurisdiction for a modification Your answer - the reasons to justify their agreement in Question #3 - The Appellate Division of the present provisions concerning the this regard? Second Department has adopted a liberal payment of maintenance. Any application Your answer - policy with respect to vacating defaults in by the Wife shall be treated as a ‘de novo’ matrimonial actions. Is it still incumbent application to the court, since it is not pos- upon a defendant to demonstrate a reason- sible to set future maintenance at this time able excuse and the existence of a merito- because it is impossible to forecast the rious defense? Wife’s needs or the Husband’s Your answer - income/earning capacity?” Question #8 - If a judgment of divorce and Your answer - stipulation of settlement are silent as to sharing the cost of private secondary edu- *Editor’s Note: Mr. Nashak is a Past cation, should the court treat the applica- President of our Association and Vice- tion for the payer spouse to share said Chair of our Family Law Committee. He is costs as a modification or a de nova deter- a partner in the firm of Ramo Nashak & mination? Brown. Your answer - ANSWERS APPEAR ON PAGE 19

in the future but rather are self-executing board decision and have the summons dis- PVB has not failed to comply with Impact of Two and effective immediately upon promulga- missed for lack of personal jurisdiction. Meyers or Ko vis-a-vis the discrete sum- tion of the judgment; however, that lack of After Mr. Ko would not accept PVB’s monses involved in those cases. However, Court Decisions application is not free from doubt in the offer to settle his Article 78 by dismissing PVB did not apply Meyers and is not First Department. the summons and refunding the fine, Chief applying Ko to similar cases not having lit- KO ALJ Mary Gotsopoulis remanded the mat- igation. Until about Aug. 27, 2010, despite on Parking According to Ko, PVB mailed Mr. Ko a ter of Mr. Ko’s summons to ALJ Diane Ahl and Meyers, PVB continued to parking summons. The summons, by Pine, who dismissed the summons, stating enforce its pay-to-appeal rule, namely, 19 Violations Bureau “Drive Off” and similar language, indi- the dismissal was “in the interests of jus- RCNY 39-12 (b) (3), by denying appeals cates his vehicle drove off before the sum- tice in connection with Article 78 settle- to people convicted of parking or red-light Continued From Page 1______mons was served. Mr. Ko moved to dis- ment negotiations.” Then, alleging PVB camera violations who do not comply with it exceeds the requirements of VTL miss the summons for lack of personal had dismissed the summons and begun the that rule. 242(5).” jurisdiction. He denied he had been prop- process for reimbursement of the $115 fine PVB does not openly reject Ko; howev- PVB took an appeal from Meyers, with erly served under VTL 238 (2), in that the to Mr. Ko, PVB moved to dismiss Mr. er, on June 22, 2010, PVB’s Chief ALJ e- a notice of appeal dated November 19, summons had neither been handed to him, Ko’s Article 78 proceeding as moot. mailed PVB’s ALJs a memorandum to her 2009. On August 27, 2010, PVB withdrew nor placed on his car. Eventually, after denying that motion, from the Legal Affairs Division of the its appeal, and on or about that date ceased Administrative Law Judge Linda Hirsch Supreme Court vacated PVB’s dismissal NYC Department of Finance. That one- enforcing 19 RCNY 39-12 (b) (3). denied the motion upon a hearing, found of Mr. Ko’s summons, concluding the dis- page memorandum, which cites no author- CPLR 5519 (a) (1) imposes an automat- him guilty of the charged violation, and missal exceeded PVB’s statutory authori- ity, states: ic enforcement stay during a government fined him $115, which he later paid. The ty, was in violation of lawful procedure, “While the Ko decision may be relied appeal, but that stay will not apply to PVB appeals board affirmed ALJ Hirsch’s was arbitrary and capricious, and had no upon by other judges, it is not binding declaratory provisions of a judgment, decision. Mr. Ko brought an Article 78 factual basis. Among its findings concern- precedent unless and until an Appellate which do not direct performance of an act proceeding, seeking to annul the appeals ing statutory authority, the court stated (at Court rules similarly.” 607) the VTL did not “empower ALJ “[Where a summons contains ‘Drive [Gotsopoulis] to unilaterally remand a Off’ or similar language, dismissal for lack matter to ALJ Pine so that the PVB could of personal service may be appropriate] if dismiss the violation and render this the ALJ is persuaded by substantial evi- Article 78 proceeding moot.” dence that the motorist was not evading Supreme Court granted Mr. Ko’s peti- service. If, on the other hand, the ALJ is tion, dismissed the summons, and vacated persuaded that the motorist left the scene the fine, holding PVB lacked personal in order to avoid service of a summons, the jurisdiction over Mr. Ko. Ko, at 608-609, decision should reflect that finding and the states: basis for it. In such a case, it may be appro- “[N]o provision is made in the Vehicle priate for the ALJ to make a finding of and Traffic Law for service of a summons proper service or that the motorist is by mail. Moreover, no exception is includ- estopped from challenging the propriety of ed in VTL §238(2) for vehicle operators service. who ‘drive off’ before a summons may be “In the Ko case, no such record was completed and properly served. The developed regarding the circumstances of statute clearly provides that service may be the drive off.” completed only by one of two means—by The memorandum is saying that driving personal delivery or by affixing the sum- off to evade process may estop the mons to the car.” motorist from challenging the lack of The Ko decision was not appealed. process service. PVB does not mail park- PVB ______Continued On Page 9 THE QUEENS BAR BULLETIN – DECEMBER 2010 9

court will, in subsequent cases presenting Matter of Pickerell v Town of Huntington, model, and body type of the vehicle, or Impact of Two the same legal problem, generally be fol- 219 AD2d 24 (2d Dept 1996); Schwartz v indicate that that information was not lowed in the same court or in other courts New York City Housing Auth., 219 AD2d available (Matter of Ryder Truck Rental v of equal or lower rank. 47 (2d Dept 1996); State of New York v Parking Violations Bur. of Transp. Admin. Court Decisions PVB issues typically evade court Town of Haverstraw, 219 AD2d 64 (2d of City of N.Y., 62 NY2d 667 [1984]; review. Most PVB respondents, who Dept 1996); Ocasio v City of New York, Matter of Wheels, Inc. v Parking on Parking appear pro se, are unaware of those issues, 13 Misc 3d 161 (Sup Ct, Bx County 2006); Violations Bur. of Dept. of Transp. of City and the small sums in controversy in their McLaughlin v Hernandez, 4 Misc 3d 964, of N.Y., 80 NY2d 1014 [1992]; VTL 238 Violations Bureau individual cases (though huge cumulative- 969 n.3 (Sup Ct, NY County 2004). VTL [2], [2-a]). The statutory notices PVB ______ly) make suing PVB unaffordable or 238 (2) states: “A notice of violation shall mails (see VTL 235 [2] [a] [2], 241 [2]) do Continued From Page 8 impractical for them. For those who do be served personally upon the operator of not meet any of those summons require- ing summonses. PVB mails statutory pre- take PVB to court, PVB may be able to get a motor vehicle who is present at the time ments, except as to plate designation and judgment notices, which are not parking their cases dismissed as moot by dismiss- of service . . . [or] if the operator is not plate type. Ko at 609; see VTL 235 (2) (a) summonses, may be mailed only after ing tickets and refunding fines and penal- present, by affixing such notice to said (2), 241 (2). Ko at 604, 608. Ko, service of process has been completed and ties after the onset of litigation, without vehicle in a conspicuous place." Ko at 607. 2009 NYSlip Op 32804(U), n.2 & accom- the time for responding to the summons even paying court costs or disbursements Mar 26, 2009, Georges affirmation in sup- panying text; Verified Answer dated has expired, and do not purport to be sum- though court fees alone may far exceed the port of cross-motion to dismiss petition, at January 25, 2010, at ¶¶ 81, 92, 121. See monses. The Ko decision, before rejecting amount of the fines and penalties refunded ¶¶ 25, 27, 30. Does a tribunal prejudice the Feinstein v. Bergner, 48 NY2d 234 mailing as process service, stated PVB by PVB. When motorists do win Supreme administration of justice by dismissing a (1979); Spath v Zack, 36 AD3d 410 (1st mailed Mr. Ko a parking summons; how- Court decisions against PVB, PVB will parking violation to moot an Article 78 Dept 2007). Ko at 28 Misc 3d 608-609; ever, no summons was mailed. In the Ko comply with those decisions, but, as with proceeding against the tribunal? VTL 242, see VTL 235 (1), (2) (first paragraph), (2) case PVB claimed notices of the summons Meyers and Ko, may refuse to apply those which makes 19 RCNY 39-12 (b) (3) (a) (1), 238 (2). Cf. Feinstein 48 NY2d were mailed. The Ko record contained no decisions to similar cases not having liti- unenforceable (Meyers; see Ahl v 234, supra; Spath v Zack, 36 AD3d 410, evidence or claim an original or copy of gation. Howard, 12 Misc 3d 870, supra), applies supra; Guido v Kovachev, 125 AD2d 221 the summons was mailed. Dennis Boshnack is an attorney in New to parking violations and red-light camera (1st Dept 1986) (process service falling Even assuming PVB mails the motorist York. He is the attorney of record for the violations alike (VTL 235 [1], 242, 1111-a short of statutory requirements, notwith- a parking summons, the estoppel referred petitioners in the Meyers and Ko Article [h]; NYC Admin Code 19-210[f]). While standing that defendant knowingly avoid- to in the memorandum will not support 78 proceedings discussed in this article, no longer enforcing its pay-to-appeal rule, ed process while having duty to submit to refusing to follow Ko (service by mail not and is a former PVB Administrative Law PVB continues to inform the public, “You process service). Matter of Jason B. v permitted even in drive off cases), not Judge. The views in this article are his must pay the full amount imposed at the Novello, 12 NY3d 107, 113 (2009). See even if an ALJ finds the motorist drove off own. This article updates and expands his hearing before you will be allowed to Gramatan Home Invs. Corp. v. Lopez, 46 to evade process. There can be no such article published in the New York Law appeal the hearing decision” (NYC Dept NY2d 481, 486 (1979). See id. at 485. See estoppel without fraud or misrepresenta- Journal on September 1, 2010. See of Finance, Application for Appeal, at 2, Kaufman v. Lilly & Co., 65 NY2d 449, tion by defendant. Since under the applica- Mayor’s Management Report Fiscal 2010, available at http://www.nyc.gov/html/dof/ 455-456 (1985). See Gilberg v. Barbieri, ble statute process service may be accom- at 182 (September 2010). VTL 242 (3) html/pdf/adjudication/pvo-0100.pdf 53 NY2d 285, 291 (1981). See Parker v. plished only by personal delivery or by states: “A party aggrieved by the final [accessed Oct. 12, 2010]; see 19 RCNY Blauvelt Fire Co., 93 N.Y.2d 343 (1999). affixing the summons to the vehicle, driv- determination of a Hearing Examiner may 39-12 (b) (3); NYC Dept of Finance, See Samhammer v. Home Mut Ins., 120 ing off cannot mislead a process server obtain a review thereof by serving, either Appealing a Hearing Decision, AD2d 59, 64 (3d Dept 1986); Siegel, NY into reasonably believing the statute personally in writing or by certified or reg- http://www.nyc.gov/html/dof/html/park- Prac § 444, at 752 (4th Ed). But compare authorizes process service by mailing. istered mail, return receipt requested, upon ing/park_tickets_appeal.shtml [accessed Northern Oil Co. v Socony Mobile Oil Therefore, driving off to evade process the bureau, within thirty days of entry of Oct. 12, 2010]; id., Appeal a Red Light Co., 368 F.2d 384, 387-388 (2d Cir 1966) will not estop a motorist from denying such final determination, a notice of Camera Notice of Liability Hearing, (denying collateral-estoppel effect to order mailing is process service. “[I]t is the appeal setting forth the reasons why the http://www.nyc.gov/html/dof/html/park- still under appeal, where execution of that instinct of our jurisprudence to extend final determination should be reversed or ing/park_red_light_appeal.shtml order was automatically stayed by statute court principles to administrative or quasi- modified.” VTL 242 (5) states: “The serv- [accessed Oct. 12, 2010]; id., Red Light pending the time for filing and after filing judicial hearings insofar as they may be ice of a notice of appeal shall not stay the Violation Monitoring Program - Notice of the notice of appeal). Matter of Rivera v adapted to such procedures.” enforcement of a judgment upon the deter- Appeal, at 2, available at Trimarco, 36 NY 2d 747 (1975). But com- Meyers and Ko serve to collaterally mination appealed from unless the appel- http://www.nyc.gov/html/dof/html/pdf/red pare Matter of Jewish Home & Infirmary estop PVB, as well as those in privity with lant shall have posted a bond in the amount appel.pdf [accessed Oct. 12, 2010]). of Rochester v Commissioner of N.Y. PVB, from re-litigating the issues of fact of such determination, at the time of, or Memorandum from Beth Goldman, State Dept. of Health, 84 NY2d 252, 270 or law they necessarily decided against before the service of such notice of appeal General Counsel, and Ellen Young, (1994) (dissenting opinion) (CPLR 5519 PVB, even if the party invoking collateral unless the enforcement of such judgment Director, Parking Division, to Chief ALJ [a] [1] stay). People v Damiano, 87 NY2d estoppel were not a party in Meyers or Ko, shall have been stayed by the appeals Mary Gotsopoulis, dated June 22, 2010, 477, 489 (1996) (concurring opinion). Id. the tribunals or causes of action were dif- board.” VTL 242, which makes 19 RCNY re: Article 78 Decision by Justice Alice at 488-489. Id. at 488. State v ferent, or PVB’s appeal in Meyers were 39-12 (b) (3) unenforceable (Meyers; see Schlesinger-Ko Case. While the memoran- Mellenberger, 95 P.2d 709, 719-720 pending. Ahl v Howard, 12 Misc 3d 870, supra), dum may be suggesting otherwise, “the (Oregon 1939). Matter of Silverstein v With Meyers and Ko involving govern- applies to parking violations and red-light burden of proving jurisdiction is upon the Appeals Bd. of Parking Violations mental operations, “on the granting of any camera violations alike (VTL 235 [1], 242, party asserting it” (Green Point Sav. Bank Bur.,100 AD2d 778 (1st Dept 1984). But relief to the petitioners comparable relief 1111-a [h]; NYC Admin Code 19-210[f]). v. Taylor, 92 AD2d 910, 910 [2d Dept see Matter of Walker v New York City, would adequately flow to others similarly See All Am. Crane Serv. Inc. v Omran, M- 1983]). PVB mails the front of the sum- N.Y. L.J., Sep 24, 1996, at 22, col 4 (Sup situated under principles of stare decisis.” 3228, Index No. 108032/08, filed on June mons in response to a request for a sum- Ct, NY County 1996), affirmed, 262 Judges have an institutional obligation to 26, 2008 (1st Dept 2008) (discussed in mons copy. Ko at 609. For example, park- AD2d 151 (1st Dept 1999); Matter of respect stare decisis and abide by that doc- Siegel, McKinney's Cons Laws of NY, ing summons may be issued by only des- Heisler v Atlas, 69 Misc 2d 911, 912 (Sup trine. Stare decisis contributes practicality Book 7B, CPLR C5519:2, 2010 Pocket ignated officers (VTL 237 [9]), must be Ct, NY County1972). See generally to the decision-making process, stability to Part, at 177-178); Matter of Pokoik v sworn to or affirmed (VTL 237 [9]), and Matter of Melinda D. [Claudia F.], 31 the law, and legitimacy to decisions. It Department of Health Servs. of County of must identify the plate designation, plate AD3d 24 (2d Dept 2006) (exception to teaches that a point of law decided by a Suffolk, 220 AD2d 13 (2d Dept 1996); type, registration expiration date, make or mootness doctrine).

Diana C. Gianturco DUFFY & POSILLICO AGENCY INC. Court Bond Specialists ATTORNEY AT LAW WWW.DUFFYBONDS.COM

P.O. BOX 419 Administration • Appeal • Executor • Guardianship LONG BEACH, NY 11561 License & Permit • Conservator • Lost Instrument Tel: 888-805-8282 Stay • Mechanic’s Lien • Plaintiff & Defendant’s Bonds Fax: 516-706-1275 Serving Attorneys since 1975 Text: 321-480-1678 Complete Bonding Facilities APPEARANCES IN IMMEDIATE SERVICE! QUEENS COUNTY 1-800-841-8879 FAX: 516-741-6311 E-mail: [email protected] 1 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts) NYC Location: 108 Greenwich Street, New York, NY 10006 10 THE QUEENS BAR BULLETIN – DECEMBER 2010

PHOTO CORNER

Stated Meeting: Recent Significant Decisions from the Appellate Courts - October 26,2010

Alan Rothbard, Jim Kehoe, Rich Lazarus and Dom Addabbo Arthur Terranova, Hon. A. Gail Prudenti and Hon. Fred Santucci

Chanwoo Lee, President of QCBA, giving award to Hon. Fred Santucci for hisout- Dom Chiariello, Ted Gorycki and Bernie Ferrera standing service to the law.

George Nashak, Chanwoo Lee and Hugh Mo Hon. Bernice Siegal, Chanwoo Lee, Hon. A. Gail Prudenti, Hon. FredSantucci, Donna Furey, Todd Greenberg and Spiros Tsimbinos

Hon. Martin Ritholtz, Ed Rosenthal and Perry Hon. Randall T. Eng, Assoc. Justice of the Appellate Hon. Seymour Boyers, Hon. Norman George and Sklarin Division, 2ndDept. Hon. Harriet George

Photos by Walter Karling THE QUEENS BAR BULLETIN – DECEMBER 2010 11

PHOTO CORNER

Stated Meeting: Recent Significant Decisions from the Appellate Courts - October 26,2010

Hon. Sheri S. Roman, Assoc. Justice of the Appellate Division, 2ndDept. Ira Futterman, Hon. Bernice Siegal, Bernie Vishnick and Hon. AllenBeldock

Maria Alaimo, Jonathan Silver and Donna Furey Melissa Studin, Jill Stone, Hon. Bernice Siegal and Chanwoo Lee

Paul Shechtman speaking about criminal cases in the Remarks from Hon. Fred Santucci after receipt of Andrew Fine discussing recent developments in the NY Court of Appeals award. US Supreme Court

Spiros Tsimbinos, Moderator, discussing other perti- Wallace Leinheardt, Hon. Seymour Boyers and Hon. nent issues in theappellate courts. Morton Povman

Photos by Walter Karling 12 THE QUEENS BAR BULLETIN – DECEMBER 2010

COURT NOTES

The Following Attorneys Were On January 14, 2010, the Following a disciplinary hearing, the Disbarred By Order Of The Appellate respondent was sentenced, Ethan E. Ellner, a suspend- respondent was found guilty of engaging Division, Second Judicial Department: upon his plea of guilty to grand ed attorney (June 22, 2010) in conduct adversely reflecting on her fit- larceny in the second degree On December 1, 2009, the ness to practice law by converting funds Allan E. Binder, admitted as Allan Eli and grand larceny in the third respondent was convicted, and/or failing to safeguard funds entrusted Binder (May 4, 2010) degree, in the County Court, upon his plea of guilty in the to her as a fiduciary; engaging in conduct On January 29, 2009, the respondent Westchester County. As a County Court, Suffolk County, adversely reflecting on her fitness to prac- entered a plea of guilty in County Court, result of his felony conviction, of three counts of grand larce- tice law by converting funds and/or cap- Suffolk County, to receiving a bribe in the the respondent was automati- ncy in the second degree, a turing a legal fee from funds entrusted to third degree, a class C felony. He there- cally disbarred effective class C felony, and one count her as a fiduciary; failing to render an after failed to notify the Appellate January 14, 2010. of scheme to defraud in the appropriate accounting of funds held in Division of his conviction, as required by first degree, a class E felony. escrow; engaging in conduct prejudicial to Judiciary Law §90(4)(c). As a result of his Cesar G. Cardona, admitted Diana J. Szochet By virtue of his felony convic- the administration of justice and/or felony conviction, the respondent was as Cesar G. Cardona, Jr., a tion, the respondent ceased to adversely reflecting on her fitness as a automatically disbarred, effective January suspended attorney (May 18, 2010) be an attorney and counselor-at-law pur- lawyer by failing to cooperate with the 29, 2009. The respondent tendered a resignation suant to Judiciary Law §90(4)(a) as of lawful demands of the Grievance from the practice of law wherein he December 1, 2009. Committee; engaging in conduct involving Neda B. Imasuen, admitted as Neda acknowledged that he could not success- dishonesty, deceit, fraud or misrepresenta- Bernards Imasuen (May 11, 2010) fully defend himself on the merits against Neil W. Silberblatt, admitted as Neil tion by misrepresenting to the Grievance The respondent was disbarred, on pending charges alleging conversion of William Silverblatt (June 22, 2010) Committee that she did not receive a legal default, upon a finding that he was guilty funds entrusted to him as a fiduciary and On August 21, 2009, the respondent was fee for her representation in a legal matter; of a pattern and practice of failing to coop- failure to maintain required bookkeeping convicted, upon his plea of guilty in the engaging in an impermissible conflict of erate with the Grievance Committee and records. Supreme Court, Westchester County, of interest by acting as a real estate broker neglect of a legal matter entrusted to him. grand larceny in the third degree, a class D and lawyer in the same real estate transac- Russell G. Cheek, a suspended attorney felony, and filing a false personal tax tion; engaging in conduct that adversely Michael J. Kaper, admitted as Michael (June 8, 2010) return, a class E. felony. By virtue of his reflects on her fitness as a lawyer by fail- Jonathan Kaper, a suspended attorney On May 15, 2008, the Supreme Court of felony conviction, the respondent ceased ing to communicate with a client; and (May 11, 2010) New Jersey entered an order disbarring the to be an attorney and counselor-at-law pur- engaging in conduct prejudicial to the The respondent was disbarred, on respondent on consent. Upon the suant to Judiciary Law §90(4)(a) as of administration of justice by failing to time- default, upon a finding that he was guilty Grievance Committee’s application of August 21, 2009. ly re-register as an attorney with OCA. In of, inter alia, failing to re-register as an reciprocal discipline, pursuant to 22 determining an appropriate measure of attorney with the Office of Court NYCRR §691.3, the respondent was dis- Marc A. Zirogiannis, admitted as Marc discipline to impose, the Appellate Administration (OCA) for the biennial barred in New York. Allyn Zirogiannis (June 22, 2010) Division noted the respondent’s “apparent periods 1994 through 2008; failing to On November 24, 2009, the respondent disregard for deadlines and the discipli- cooperate with the Grievance Committee; Maureen Elizabeth Delgado, a sus- was convicted, upon his plea of guilty in nary process…” neglecting legal matters entrusted to him; pended attorney (June 8, 2010) the Supreme County, New York County, misrepresenting the status of a matter to a The respondent was disbarred, on to one count of grand larceny in the fourth Ira Samuel Schwartz, a suspended client; handling a legal matter without ade- default, upon a finding that she was guilty degree, a class E felony, and scheme to attorney (July 13, 2010) quate preparation; and failing to cooperate of failing to re-register as an attorney with defraud in the first degree, also a class E The respondent was disbarred, on with the Nassau County Fee Arbitration the Office of Court Administration (OCA) felony. By virtue of his felony conviction, default, upon a finding that he was guilty Committee in seeking to arbitrate fees with from 2001 through 2006, failing to coop- the respondent ceased to be an attorney of failing to cooperate with the Grievance three former clients. erate with the Grievance Committee in its and counselor-at-law pursuant to Judiciary Committee and failing to re-register as an investigation of the foregoing and failing Law §90(4)(a) as of November 24, 2009. attorney with OCA. Alain D. Kodsi, admitted as Alain to schedule a court-ordered examination to Damien Kodsi (May 11, 2010) determine if she was incapacitated due to Stephen T. Mitchell, admitted as Linda M. Dietriech, admitted as Linda On or about July 19, 2006, the respon- medical illness. Stephen Theodore Mitchell (July 6, Marie Dietrich (August 3, 2010) dent pleaded guilty in the United States 2010) The respondent tendered a resignation District Court, Southern District of New Raghubir K. Gupta (June 8, 2010) The respondent tendered a resignation wherein she acknowledged that she could York, to insider trading, a Federal felony. On April 7, 2008, the respondent was wherein he acknowledged that he could not successfully defend herself on the mer- He thereafter failed to report his convic- found guilty, after a jury trial in the United not successfully defend himself on the its against allegations that she, inter alia, tion to the Appellate Division, as required States District Court for the Southern merits against allegations that he, inter misappropriated and failed to account for by Judiciary Law §90(4)(c). Inasmuch as District of New York, of immigration alia, failed to satisfy lawful monetary funds entrusted to her as a fiduciary, and the Federal felony of insider trading would fraud. The Appellate Division found that judgments against him; committed escrow that she failed to cooperate with the lawful constitute a class E felony under New the Federal felony of immigration fraud violations; and engaged in other conduct demands of the Grievance Committee by York’s General Business Law, the respon- was essentially similar to the New York prejudicial to the administration of justice, failing to submit required bank and book- dent was automatically disbarred in New felony of offering a false instrument for which adversely reflects on his fitness to keeping records and submitting fabricated York as of the date of his Federal sentenc- filing in the first degree. Accordingly, the practice law. documents. ing, November 14, 2006. respondent was automatically disbarred pursuant to Judiciary Law §90(4)(a). Robert A. Rudolph, admitted as Robert Edwin Frederick (August 3, 2010) Brian Matthew Rosicky, a suspended Alvarez Rudolph (July 6, 2010) On October 13, 2006, the respondent attorney (May 11, 2010) William L. Netusil, a suspended attor- By order of the Supreme Court of pleaded guilty in the United States District The respondent was disbarred, on ney (June 8, 2010) Florida dated March 6, 2008, the respon- Court for the Eastern District of New York default, upon a finding that he was guilty The respondent was disbarred, on dent was disbarred, upon his default, from to making false statements for the purpose of failing to cooperate with the Grievance default, upon a finding that he was guilty the practice of law in that State. Upon the of obtaining a loan insured by the United Committee; failing to re-register as an of engaging in conduct prejudicial to the Grievance Committee’s application for States Department of Housing and Urban attorney with OCA for the biennial regis- administration of justice, which adversely reciprocal discipline pursuant to 22 Development (“HUD”), a federal felony. tration periods 2007-2008 and 2009-2010; reflects on his fitness as a lawyer, by fail- NYCRR 691.3, and following a “full hear- On May 29, 2009, he was sentenced to nei- misappropriating funds; failing to deliver ing to comply with the Grievance ing and review of the documentary evi- ther prison nor probation, and any fine was funds; failing to render a proper account- Committee’s legitimate demands in con- dence submitted by the Grievance waived, in recognition of his “extensive ing of funds; and failing to produce escrow nection with the investigation of four com- Committee,” the respondent was disbarred cooperation with the government.” records he was required to maintain. plaints of professional misconduct alleg- in New York. However, inasmuch as the federal felony ing, inter alia, that respondent accepted of making false statements for the purpose Thomas Edward Wynne, a suspended retainers in domestic relations matters and Kathleen Anne Scanlon (July 6, 2010) of obtaining a HUD-insured loan is attorney (May 11, 2010) thereafter had no further contact with the On October 8, 2009, the respondent was “essentially similar” to the New York The respondent was disbarred, on complainants. convicted, upon a plea of guilty in the felony of offering a false instrument for default, upon a finding that he was guilty Supreme Court, New York County, of filing in the first degree, the respondent of a pervasive pattern of failing to cooper- Eric G. Oster, a suspended attorney scheme to defraud in the first degree, a ceased to be an attorney and counselor-at- ate with the Grievance Committee’s inves- (June 15, 2010) class E felony. By virtue of her felony con- law pursuant to Judiciary Law §90(4)(a), tigation of multiple complaints involving The respondent was disbarred, on viction, the respondent ceased to be an effective May 29, 2009. dishonored checks and failing to release default, upon a finding that he was guilty attorney and counselor-at-law pursuant to funds held in connection with a real estate of failing to cooperate with the Grievance Judiciary Law §90(4)(a) as of October 8, Robert R. Groezinger, admitted as action and a foreclosure action. Committee and failing to re-register as an 2009. Robert Reinhard Groezinger (August attorney with the New York State Office 3, 2010) Nat J. Azznara, admitted as Nat John of Court Administration (OCA) for four Lisa L. Cox, a suspended attorney ______Azznara (May 18, 2010) consecutive registration periods. (July 13, 2010) Continued On Page 14 THE QUEENS BAR BULLETIN – DECEMBER 2010 13

THE CULTURE CORNER

BY HOWARD L. WIEDER CANTORS HELFGOT AND Gabrielle Brechner. FARKAS, and standing to that WAKKA WAKKA PRO- SYMPHONY OF THE SOUL at the promotion, the concert would DUCTIONS, INC. PARK EAST SYNAGOGUE have been contained in proper (www.wakkawakka.org) is a proportions. group of theater artists On December 4, 2010, during the cele- Still, it was a wonderful (Gabrielle Brechner, Kirjan bration of Chanukah 2010, Manhattan’s evening. Credit for organizing Waage, and Gwendolyn prestigious PARK EAST SYNA- the impressive concert “SYM- Warnock) who share a common GOGUE, at 163 East 67th Street, present- PHONY OF THE SOUL” language in creation and ensem- ed a Jewish cantorial concert entitled goes to its excellent coordina- ble work. Their mission is to “SYMPHONY OF THE SOUL.” tor: CANTOR BENNY push the boundaries of the imag- Performing at the concert were the interna- ROGOSNITZKY. On the ination by creating works that tionally acclaimed YITZCHAK MEIR piano was CANTOR are bold, unique, and unpre- MUMMENSHANZ at NYU's SKIRBALL HELFGOT, the Chief Cantor of the syna- DANIEL GILDAR. MAES- dictable. CENTER gogue, and his special guest at this year’s TRO RUSSELL GER, a young, wonder- WAKKA WAKKA'S most recent work The magic and wonder of MUMMEN- concert - - SENIOR CANTOR SHIMON ful conductor who has a lot of energy and FABRIK: The Legend of M. Rabinowitz SCHANZ returns to New York City for FARKAS, of Australia’s Central whose huge talent is earning consistently a is about the life of Moritz Rabinowitz, an the first time since 2003 with a special Synagogue in Sydney, who once was the top reputation, conducted the choir. outspoken Polish-Jewish émigré to three-week holiday engagement in New cantor of a now-closed resort hotel in Norway, an entrepreneur who the Nazi's York City at The SKIRBALL CENTER upstate New York. Both Cantor Helfgot mistakenly dubbed "the leader of the FOR THE PERFORMING ARTS, and Cantor Farkas were excellent and in Jewish Resistance in Norway." FABRIK FROM DECEMBER 20, 2010 superb form. opened in January 2008 at Urban Stages THROUGH JANUARY 8, 2011. The PARK EAST SYNAGOGUE, at 163 Theatre. The New York Times called it a program showcases the incredible humor, th East 67 Street, is a noted synagogue, "powerfully affecting production that cap- versatility and pure imagination of the cel- whose spiritual leader since 1962 has been italizes on the range of the art form (pup- ebrated Swiss performance troupe in a Rabbi Arthur Schneier. The energetic petry) and takes it to impressive heights." dazzling spectacle the whole family will Rabbi Schneier, a Holocaust survivor, will FABRIK has toured extensively through- love. For nearly four decades, MUM- st be celebrating his 81 birthday in March, out festivals, theaters and universities in MENSCHANZ has captivated audiences 2011. Norway, the U.S. and the U.K. The pro- worldwide with its pioneering non-verbal My guest for the evening, AARON duction of FABRIK was nominated for a theatre of movement and transformation. MORRILL, ESQ., an attorney, Chief 2007-08 Drama Desk Award for "Unique In the surreal, comic, wordless universe of Executive Officer, and music producer, is Theatrical Experience" and was awarded a MUMMENSCHANZ, everyday objects the Chief Executive Officer of the bever- 2008 UNIMA Citation of Excellence. such as toilet paper, wires, tubes, and age company FIZZY LIZZY. Morrill A key to the success of FABRIK was boxes spring to life to become fantastical likened the voice of CHIEF CANTOR the artistry of former member and co- characters, and abstract forms and ordi- YITZCAK MEIR HELFGOT to that of founder of Wakka Wakka DAVID nary shapes interact in surprising ways to renowned tenor LUCIANO PAVAROT- ARKEMA. The actor, writer, and director reveal timeless truths about human con- TI. I have already praised YITZCAK ÉCOLE JACQUES LECOQ Actor DAVID ARKEMA studied at , nections and relationships. The troupe cre- MEIR HELFGOT’s beautiful operatic a distinguished international theater school ates a playful and uniquely memorable voice in prior columns covering the con- BABY UNIVERSE in Paris, France. Since leaving Wakka experience through an inventive use of cert, so it is great to hear an unbiased per- Wakka, DAVID ARKEMA continues to forms, shadow and light and creative spective that confirmed my observation. WAKKA WAKKA will present the do groundbreaking work in theater and manipulation of sculptural, expressive CHIEF CANTOR YITZCAK MEIR United States premiere of its latest original independent film. In 2010, DAVID masks. The result is a visually stunning HELFGOT performed liturgical pieces theater piece entitled "BABY UNIVERSE ARKEMA appeared in over 20 films, spectacle of family entertainment that that included Veyiten Lecha, Ad Heyna, (A Puppet Odyssey)," written and directed which have begun to win awards on the sparks the imagination and transcends cul- and Hamavdil. by Wakka Wakka members Kirjan Waage film festival circuit. DAVID ARKEMA’s tural barriers. CANTOR FARKAS also performed and Gwendolyn Warnock, featuring over recent work that just had a NY preview Founding artists BERNIE SCHÜRCH liturgical pieces, but also rendered a song 30 expressive hand-and-rod puppets creat- was the starring role in CERISE, an inde- and FLORIANA FRASSETTO are the tribute to Australia, and a beautiful rendi- ed by Mr. Waage. "BABY UNIVERSE," pendent dramatic comedy about a former featured performers on this tour, present- tion of A Yiddishe Mama, with Farkas’s at the Baruch Performing Arts Center, 55 spelling bee champion haunted by the ing some of the troupe’s timeless favorites wonderful mother sitting in the row in Lexington Avenue (enter on 25th Street word that took him down. More informa- and most beloved creations. They are front of me. She was visibly “shepping just east of Lexington), will run through tion on this exciting actor and director can joined by RAFFAELLA MATTIOLI nachas” - - Yiddish for a parental deriva- Saturday, January 8, 2011. be found at www.davidarkema.com. and PIETRO MONTANDON. MUM- tion of pride and joy from the achieve- BABY UNIVERSE tells a story chal- The complete schedule for "BABY UNI- MENSCHANZ has always had a powerful ments and blessings of her offspring. lenging to the widespread belief that only VERSE" (December 1, 2010 through connection with American audiences, and This wonderful concert was followed by God has had the ability to create life and January 8, 2011) will be: Wednesdays with New York theatergoers, in particu- a splendid dessert collation. If I have one the world as we know it. "BABY UNI- through Saturdays at 8:00 p.m., and lar,” said Schürch and Frassetto. “New suggestion: this year’s concert ran almost VERSE" takes place in a time where this Sundays at 2:00 and 7:00 p.m. There will York City has even more special meaning three hours, including a 15 minute inter- has happened. On the brink of their be four additional performances: for us, since it is here that we initially mission. It is hard to decide where to make destruction, the last inhabitants of a Tuesdays, December 21 and 28 at 8:00 enjoyed our first big breakthrough with a cuts in a program. Should it be twenty doomed "earth" furiously search for an p.m., and Friday and Saturday, January 7 long-running show on Broadway at the minutes devoted to hearing the children’s escape from the dying sun. In a race and 8 at 10 p.m. There will be no perform- Bijou Theatre.” singing that began the concert or a lengthy against the clock, scientist-generated baby ances on Fridays, Saturdays, Sundays, Co-presented by MUMMENSCHANZ by a dignitary, who may have felt obliged universes are being placed in the care of December 24, 25, 26, 31, and January 1 FOUNDATION and THE SKIRBALL to give lengthy remarks? I think so. The lonely spinsters in the hope that one might and 2. All preview ticket prices are $20.00. CENTER FOR THE PERFORMING advertisements for the concert promoted nurture to maturity a savior - - a baby uni- (The performance on Saturday, December ARTS, the three-week engagement is one verse capable of birthing a planet that can 4 at 8:00 p.m. is a benefit for the company of the highlights of the upcoming season, support the relocation of the entire popula- and is a higher priced ticket that includes a and the family-friendly entertainment will tion. party with the company following the per- be included in the theater’s popular Big The company of five puppeteers of formance). Beginning with the Opening Red Chair Family Series. Included among BABY UNIVERSE will be: Melissa Performance on Sunday, December 5 at the yuletide shows is a Christmas Eve Creighton, Andrew Manjuck, Peter Russo, 7:00 p.m. all tickets are $30.00, with matinee at 2:00 pm ET, and two specially Kirjan Waage, and Gwendolyn Warnock. $20.00 tickets for students and seniors. scheduled performances on New Year’s The set design will be by Wakka Wakka Tickets for all performances are available Eve, at 4:00 pm and 7:00 pm ET. The and Joy Wang, the costume and mask at 212-352-3101. artists will also participate in a series of design by Gwendolyn Warnock, the light- lively and informative “Talk Back” events ing design by Kate Leahy, the video WORLD-FAMOUS following select performances, to give design by Naho Taruishi, and the sound MUMMENSCHANZ TROUPE audiences a chance to interact with the leg- design by Brett Jarvis and Wakka Wakka. RETURNS TO NYC TO endary troupe and hear firsthand about the Directing consultants will be: Preben CAPTIVATE AUDIENCES techniques used to create its unique Faye-Schjøll and Daniel Goldstein. The Limited Engagement from December 20, artistry. BABY UNIVERSE 2010 – January 8, 201 Senior Cantor Shimon Farkas And Chief score for " " has been The 21 performances in Greenwich Cantor Yitzchak Meir Helfgot, Performing composed by Lars Petter Hagen. The cre- at Skirball Center for the Performing Village are also the centerpiece of a larger At The "Symphony Of The Soul" Concert ative producer and U.S. Executive Arts in Greenwich Village national tour spanning four months and Producer of BABY UNIVERSE is On Dec. 4, 2010" ______Continued On Page 16 14 THE QUEENS BAR BULLETIN – DECEMBER 2010

immediately threatening the public interest to maintain required bookkeeping entries a period of three years, and continuing Court Notes based, inter alia, on his failure to cooper- for seven years after the events those until further order of the Court. ate with the Grievance Committee. entries recorded; and engaging in conduct ______Continued From Page 12 reflecting adversely on his fitness as a Ronald E. Stoute, admitted as Ronald On July 14, 2009, the respondent plead- Sheldon Cowen (May 7, 2010) lawyer by violating his fiduciary obliga- Eton Stoute (June 8, 2010) ed guilty in the United States District On the Court’s own motion, the respon- tions and duties due to his inability to Following a disciplinary hearing, the Court for the Southern District of New dent was suspended from the practice of account for funds held in his attorney trust respondent was found guilty of converting York to the crime of possession of child law pursuant to 22 NYCRR 691.13(a) account. He was suspended from the prac- funds entrusted to him as a fiduciary, in pornography transported in interstate or until further order of the Court, based upon tice of law for a period of two years, com- connection with the practice of law. He foreign commerce, a class C felony. On a judicial declaration of his incapacity. mencing June 18, 2010, and continuing was suspended from the practice of law for December 21, 2009, he was sentenced to until further order of the Court. a period of two years, commencing imme- 57 months imprisonment, followed by five Robert V. Fonte (May 11, 2010) diately, and continuing until further order years of supervised release. Inasmuch as Following a disciplinary hearing, the Wynman Chang (June 3, 2010) of the Court. the crime to which the respondent pleaded respondent was found guilty of breaching The respondent was immediately sus- guilty is essentially similar, as per his allo- his fiduciary duty and failing to safeguard pended from the practice of law, pending Adam Keith Serper (June 15, 2010) cution, to the New York felony of possess- and ensure the transactional integrity of further proceedings, upon a finding that he By order of the Supreme Court of ing a sexual performance by a child, he funds entrusted to him, incident to his was guilty of professional misconduct Florida dated April 23, 2009, the respon- ceased to be an attorney and counselor-at- practice of law; failing to promptly pay or immediately threatening the public inter- dent was suspended from the practice of law pursuant to Judiciary Law §90(4)(a), deliver funds, which were placed in his est, by virtue of his persistent pattern of law in that State for 91 days, effective 30 effective December 21, 2009. possession by clients for disbursement to failure to cooperate with the Grievance days from the date of the order. By further third parties, to the clients or third parties Committee and other uncontroverted evi- order of the Supreme Court of Florida Janice L. Jessup, admitted as Janice entitled to receive them; failing to make dence of professional misconduct. dated May 1, 2009, the suspension in that Lorraine Jessup (August 3, 2010) reasonable efforts to adequately supervise State was made effective immediately in The respondent tendered a resignation the work of attorneys within his firm; Stephen E. Atkins, admitted as Stephen light of the respondent’s notification to the wherein she acknowledged that she could engaging in conduct prejudicial to the Edward Atkins (June 7, 2010) Court that he was no longer practicing law. not successfully defend herself on the mer- administration of justice by failing to time- The respondent was immediately sus- Upon the Grievance Committee’s applica- its against pending charges alleging that ly respond to the lawful demand for his pended from the practice of law, pending tion for reciprocal discipline pursuant to she, inter alia, made false statements of written response to one or more com- further proceedings, upon a finding that he 22 NYCRR 691.3, the respondent was sus- law or fact; engaged in conduct involving plaints of professional misconduct; and was guilty of professional misconduct pended from the practice of law in New dishonesty, deceit, fraud or misrepresenta- engaging in conduct adversely reflecting immediately threatening the public inter- York for a period of six months, com- tion; handled a legal matter without ade- on his fitness as a lawyer by reason of the est, based upon his failure to comply with mencing July 15, 2010, and continuing quate preparation; engaged in conduct foregoing. He was suspended from the the lawful demands of the Grievance until further order of the Court. adversely reflecting on her fitness as a practice of law for a period of three years, Committee and other uncontroverted evi- lawyer; engaged in an impermissible con- commencing June 10, 2010, and continu- dence of professional misconduct. Robert Tambini (June 29, 2010) flict of interest; and engaged in conduct ing until further order of the Court. Following a disciplinary hearing, the prejudicial to the administration of justice. Warren Scott Goodman, a suspended respondent was found guilty of forming a Mark E. Gold (May 11, 2010) attorney (June 8, 2010) partnership with a non-lawyer, which part- Timothy C. Quinn, a suspended attor- By order of the Supreme Court of New Following a disciplinary hearing, the nership engaged in activities consisting of ney (August 3, 2010) Jersey filed April 22, 2009, the respondent respondent was found guilty of neglecting the practice of law; engaging in conduct The respondent tendered a resignation was temporarily suspended from the prac- a legal matter entrusted to him by failing to that adversely reflects on his fitness to wherein he acknowledged that he could tice of law in that state based upon allega- properly commence an action; engaging in practice law by reason of the foregoing; not successfully defend himself on the tions of misappropriation of clients’ funds. conduct adversely reflecting on his fitness dividing legal fees with a non-lawyer; mis- merits against allegations concerning his Upon the Grievance Committee’s applica- as a lawyer by attempting to commence a appropriating funds on deposit in his attor- theft of funds from a former client, for tion for reciprocal discipline pursuant to “second” action, which was dismissed as ney trust account; engaging in conduct that which he has been charged criminally. 22 NYCRR §691.3, the respondent was time-barred, thereby misleading the client adversely reflects on his fitness to practice immediately suspended from the practice about the “first” action; engaging in con- law by reason of the foregoing; failing to Timothy J. Shea II, admitted as of law in New York until further order of duct adversely reflecting on his fitness as a exercise his supervisory responsibilities in Timothy Joseph Shea II (August 3, the Court. lawyer by failing to notify the client of the breach of his fiduciary duty by permitting 2010) dismissal of the “first” action; engaging in checks to be issued from his attorney trust By judgment of the Supreme Judicial Tara Anne Laudonio, admitted as Tara conduct prejudicial to the administration account on one or more occasions in which Court for Suffolk County in the A. Puterbaugh (May 11, 2010) of justice by making assertions to the there were excess disbursements by a non- Commonwealth of Massachusetts dated Following a disciplinary hearing, the Grievance Committee with reckless disre- lawyer using a signature stamp of the June 19, 2006, the respondent was dis- respondent was found guilty of breaching gard for the truth, thereby failing to coop- respondent’s signature; engaging in con- barred in that State. Upon the Grievance her fiduciary duty and failing to safeguard erate with the Committee’s lawful investi- duct that adversely reflects on his fitness to Committee’s application for reciprocal and ensure the transactional integrity of gation; engaging in conduct adversely practice law by reason of the foregoing; discipline pursuant to 22 NYCRR 691.3, funds entrusted to her, incident to her prac- reflecting on his fitness as a lawyer by rea- commingling personal/operating funds and following a hearing wherein the tice of law; failing to promptly pay or son of the foregoing; neglecting a legal with funds held in a fiduciary capacity in Grievance Committee and the respondent deliver funds, which were placed in her matter entrusted to him by commencing an his attorney trust account; breaching his entered into a stipulation of facts, which possession by clients for disbursement to action, which was dismissed, and failing to fiduciary duty by failing to promptly noti- essentially consisted of the record of the third parties, to the clients or third parties notify the client of the dismissal until such fy a client or third party of his receipt and Massachusetts proceeding, the respondent entitled to receive them; failing to make time as the appeal period had expired; possession of funds in which the client or was disbarred in New York. reasonable efforts to adequately supervise engaging in conduct adversely reflecting third party had an interest; engaging in the work of attorneys within her firm; on his fitness as a lawyer by neglecting to conduct that adversely reflects on his fit- The Following Attorneys Were engaging in conduct prejudicial to the inform a client of the January 2005 dis- ness to practice law by reason of the fore- Suspended By Order Of The Appellate administration of justice by failing to time- missal of his personal injury action until going; breaching his fiduciary duty by fail- Division, Second Judicial Department: ly respond to the lawful demand for her March 2006, after the period for appealing ing to promptly remit funds due to a client written response to one or more com- the dismissal had expired; engaging in or third party; engaging in conduct that Emanuel A. Towns, admitted as plaints of professional misconduct; and conduct adversely reflecting on his fitness adversely reflects on his fitness to practice Emanuel Alexander Towns (April 27, engaging in conduct adversely reflecting as a lawyer by failing to apprise the law by reason of the foregoing; failing to 2010) on her fitness as a lawyer by reason of the Grievance Committee of the foregoing; exercise his supervisory responsibilities in Following a disciplinary hearing, the foregoing. Based upon a finding that she engaging in conduct reflecting adversely breach of his fiduciary duty by permitting, respondent was found guilty of entering was less culpable than her partner Robert on his fitness as a lawyer by failing to with little direct supervision, the entry, into a fee agreement for, charging, or col- V. Fonte (supra), she was suspended from cooperate with the Committee’s inquiries; review and reconciliation of, information lecting illegal or excessive fees for servic- the practice of law for a period of six engaging in conduct reflecting adversely in records kept for his attorney trust es of both a legal and non-legal nature ren- months, commencing June 10, 2010, and on his fitness as a lawyer by misleading account by non-lawyers; engaging in con- dered on behalf of an 89-year-old alleged continuing until further order of the Court. the client, in March 2006, that he could duct that adversely reflects on his fitness to incapacitated person, and conduct reflect- recommence the lawsuit and that he practice law by reason of the foregoing; ing adversely on his fitness to practice law Anthony Chike Emengo (May 18, 2010) (respondent) would be willing to continue disbursing funds from his attorney trust as a result of the foregoing. He was sus- Following a disciplinary hearing, the pursuing the matter; engaging in conduct account by electronic transfer without hav- pended from the practice of law for a peri- respondent was found guilty of violating prejudicial to the administration of justice ing obtained the prior written approval of od of six months, commencing May 27, his fiduciary obligations by failing to by neglecting client matters; and conduct the party entitled to the proceeds; engaging 2010, and continuing until further order of maintain and preserve funds entrusted to adversely reflecting on his fitness as a in an impermissible conflict of interest by the Court. him, which belonged to another person; lawyer by misleading the Grievance representing lenders, either directly or engaging in conduct reflecting adversely Committee relative to a purportedly “valid through Expedient Settlement, in one or Ganiu Owolabi Ajose (May 3, 2010) on his fitness as an attorney by reason of and active” matter wherein the court file more real estate transactions wherein The respondent was immediately sus- the foregoing; commingling personal was, in fact, lost, and a motion to recon- Expedient Title, of which respondent is a pended from the practice of law, pending funds with funds belonging to another per- struct the file was required before the principal, received fees for title or abstract further proceedings, upon a finding that he son in his attorney trust account; failing to action could be restored. The respondent was guilty of professional misconduct adhere to his bookkeeping duties by failing was suspended from the practice of law for ______Continued On Page15 THE QUEENS BAR BULLETIN – DECEMBER 2010 15

jury verdict in the United States District based upon her conviction in County Sanction Attorneys For The Following Court Notes Court for the Eastern District of New Court, Nassau County, of a serious crime, Conduct: York, of one count of conspiracy to com- to wit, petit larceny, a class A misde- ______Continued From Page 14 mit visa fraud and three counts of visa meanor; engaging in conduct that adverse- Failing to timely re-register with the services, without obtaining the consent of fraud emanating from his scheme to file ly reflects on her fitness as a lawyer by New York State Office of Court the lenders after full disclosure of his mul- immigration documents that contained reason of the foregoing; and engaging in Administration (5) tiple interests in the transaction(s); accept- false statements of material fact and that conduct prejudicial to the administration ing a financial benefit from one other than failed to contain any reasonable basis in of justice by failing to file a record of her Failing to carry out a contract of a client in relation to his representation or law or fact. On the Appellate Division’s conviction with the Appellate Division employment and failing to maintain ade- employment by the client; engaging in an own motion, the respondent was immedi- within 30 days after her conviction, as quate communication with a client impermissible conflict of interest by repre- ately suspended from the practice of law as required by Judiciary Law §90(4)(c). senting both the borrower and the lender, a result of the jury verdict finding him Neglecting a legal matter and failing to in one or more real estate transactions, guilty of a serious crime, and continuing Barr B. Musof, admitted as Barr maintain adequate communication with without obtaining the consent of either until further order of the Court, pursuant to Benjamin Musof (July 13, 2010) the client after full disclosure; and engaging in con- Judiciary Law §90(4)(f). Following a disciplinary hearing, the duct that adversely reflects on his fitness to respondent was found guilty of engaging Neglecting a legal matter; failing to practice law by reason of the foregoing. George J. Faeth (July 27, 2010) in illegal conduct that adversely reflects on supervise the work of an attorney to whom He was suspended from the practice of law The respondent was immediately sus- his honesty, trustworthiness or fitness as a the matter was assigned; and failing to for a period of three years, commencing pended from the practice of law pending lawyer based upon his conviction in maintain adequate communication with a July 29, 2010, and continuing until further further proceedings upon a finding that he Supreme Court, Nassau County, of operat- client order of the Court. was guilty of professional misconduct ing a motor vehicle while under the influ- immediately threatening the public interest ence of alcohol, an unclassified misde- Neglecting a legal matter; failing to ade- Phillip D. Miller, admitted as Phillip based on his failure to cooperate with the meanor, and reckless endangerment in the quately supervise the employee to whom Douglas Miller (July 6, 2010) Grievance Committee and other uncontro- second degree, a class A misdemeanor, the attorney delegated responsibility for Following a disciplinary hearing, the verted evidence of professional miscon- and engaging in conduct that adversely obtaining required information; and failing respondent was found guilty of engaging duct. reflects on his fitness as a lawyer by reason to provide a client in a domestic relations in conduct prejudicial to the administra- of the foregoing. matter with a written retainer agreement tion of justice by failing to maintain and Anthony C. Casamassima, admitted as and/or monthly billing statements preserve funds entrusted to him in escrow Anthony Christopher Casamassimia Adam Lawrence Gross, admitted as pursuant to an order of the United States (August 2, 2010) Adam Gross (August 3, 2010) Neglecting legal matters and failing to Bankruptcy Court for the Eastern District The respondent was immediately sus- By order of the Supreme Court of Ohio act with reasonable diligence and prompt- of New York; failing to maintain and pre- pended from the practice of law pending dated January 9, 2009, the respondent was ness in representing clients serve funds entrusted to him as a fiduciary further proceedings upon a finding that he immediately suspended from the practice by reason of the foregoing; engaging in was guilty of professional misconduct of law in that State until such time as the Failing to provide a client with a retain- conduct prejudicial to the administration immediately threatening the public interest Court issued an order reinstating him. The er agreement addressing the scope of legal of justice by withdrawing legal fees from based on his failure to cooperate with the suspension was based on the respondent’s services to be provided, an explanation of his attorney trust account without Grievance Committee and other uncontro- non-compliance with the attorney registra- the fees to be charged and/or the client’s Bankruptcy Court authorization; misap- verted evidence of professional miscon- tion and continuing legal education right to invoke fee arbitration propriating client funds by reason of the duct. requirements of that State. Upon the foregoing; and engaging in conduct that Grievance Committee’s application for Misrepresenting pertinent facts to a adversely reflects on his fitness to practice Yohan Park, a suspended attorney reciprocal discipline pursuant to 22 court law in that he obtained from his client a (August 3, 2010) NYCRR 691.3, the respondent was pub- durable irrevocable power of attorney, Following a disciplinary hearing, the licly censured in New York. Putting a case into suit without with coupled with an interest. In determining an respondent was found guilty of converting meeting, or discussing the matter, with the appropriate measure of discipline to escrow funds entrusted to him as a fiduci- The Following Suspended Or client(s) and obtaining the information to impose, the Court noted that the respon- ary, incident to his practice of law; Disbarred Attorneys Were Reinstated prepare the subject complaint from an dent’s conduct substantially benefitted his improperly commingling funds entrusted As Attorneys And Counselors-At-Law adversarial party client and brought in $3 million to the to him as a fiduciary, incident to his prac- By Order Of The Appellate Division, bankruptcy estate. Nonetheless, the Court tice of law, with his personal funds; and Second Judicial Department: Representing a client without paying found that the respondent’s serious failing to maintain required records for his appropriate attention to the legal work breaches of his fiduciary obligations could attorney escrow account. He was suspend- Aida Kuperman-Umansky, admitted as and/or adequately preparing, as well as not be “excused” or “overlooked.” Under ed from the practice of law for a period of Aida Kuperman, a disbarred attorney failing to exert best efforts to ensure that the totality of the circumstances, the two years, commencing immediately and (June 15, 2010) the client’s decisions were “informed” respondent was suspended from the prac- continuing until further order of the Court. tice of law for a period of six months, com- Peter Francis Martin, a suspended attor- Failing to promptly refund an unearned mencing August 6, 2010, and continuing David Craig Weiss (August 3, 2010) ney fee; failing to abide by the terms of the fee until further order of the Court. Following a disciplinary hearing, the (June 15, 2010) arbitration process; and failing to comply respondent was found guilty of converting with an award and judgment issued and/or Stephen J. Caputo (July 21, 2010) client funds and/or breaching his fiduciary J. Kevin Meneilly, admitted as James entered in Small Claims Court On January 4, 2010, the respondent duty by failing to preserve client funds Kevin Meneilly, a disbarred attorney pleaded guilty, in the United States entrusted to him, and engaging in conduct (June 15, 2010) Failing to maintain required bookkeep- District Court for the Southern District of adversely reflecting on his fitness to prac- ing records; failing to identify a fiduciary New York, to one count of conspiracy to tice law by reason of the foregoing. He Amanda Reid, a disbarred attorney account as an IOLA, escrow, trust or spe- commit bank fraud and five counts of wire was suspended from the practice of law for (June 15, 2010) cial account, as required; and failing to fraud. As a result of his plea of guilty to a a period of two years, commencing timely cooperate with the Grievance serious crime, the Appellate Division September 2, 2010, and continuing until Eric Carlson, admitted as Eric Russell Committee immediately suspended the respondent on further order of the Court. Carlson, voluntary resignor its own motion, pursuant to Judiciary Law (June 22, 2010) Sharing fees with a non-attorney and §90(4)(f), pending his sentencing by the The Following Attorneys Were Publicly improperly engaging in multidisciplinary District Court and continuing until further Censured By Order Of The Appellate Tomas Greenberger, a suspended attor- practice with said non-attorney order of the Appellate Division. Division, Second Judicial Department: ney (June 22, 2010) This edition of COURT NOTES was Stuart N. Kingoff, admitted as Stuart Robert John Demers, Jr., (June 8, compiled by Diana J. Szochet, Assistant Neal Kingoff (July 21, 2010) 2010) Ben Kinzler, a suspended attorney Counsel to the Grievance Committee The respondent was immediately sus- On November 18, 2008, the Supreme (July 6, 2010) for the Second, Eleventh and Thirteenth pended from the practice of law pending Court of the State of New Jersey Judicial Districts and Past President of further proceedings upon a finding that he Disciplinary Review Board issued a repri- At Two Recent Meetings Of The the Brooklyn Bar Association. The was guilty of professional misconduct mand to the respondent. Upon the Grievance Committee For The Second, material contained herein is reprinted immediately threatening the public interest Grievance Committee’s application for Eleventh And Thirteenth Judicial with permission of the Brooklyn Bar based on his failure to cooperate with the reciprocal discipline, pursuant to 22 Districts, The Committee Voted To Association. Grievance Committee, substantial admis- NYCRR §691.3, the respondent was pub- sions under oath that he committed acts of licly censured in New York. professional misconduct, and other uncon- Advertise To 27000 Lawyers troverted evidence of professional miscon- Morgan D. Bottehsazan, admitted as in Queens, Kings, New York, Nassau & Suffolk Counties duct. Mojgan Bottehsazan (June 22, 2010) Following a disciplinary hearing, the Thomas W. Archer, admitted as respondent was found guilty of engaging Call 866-867-9121 Thomas Wesley Archer (July 27, 2010) in illegal conduct that reflects on her hon- The respondent was found guilty, upon a esty, trustworthiness or fitness as a lawyer 16 THE QUEENS BAR BULLETIN – DECEMBER 2010

LaGuardia Place (at Washington Square), Simpson is engaging. GABRIEL toric Met premiere. Culture Corner it provides a large-scale, professional per- BERRY’s costume design is spectacular. When DEBORAH VOIGT first per- formance space for university productions As I mentioned in my review of Office formed the challenging role of saloon Continued From Page 13 ______and events and live professional perform- Hours, also recently directed by JIM owner Minnie last summer at San staged in cities from coast to coast this fall ances from around the world. The 860-seat SIMPSON at THE FLEA [see my CUL- Francisco Opera, the Associated Press and winter, with a program showcasing theater opened in October 2003 and hosts TURE CORNER column in the found the role “ideally suited to Voigt’s some of MUMMENSCHANZ’s most the only major university-based profes- November, 2010 issue], JIM SIMPSON strengths – large, gleaming high notes and imaginative and humorous characters from sional multi-arts presenting program in smartly knows how to deploy his collabo- a stage presence that radiates an endearing over the years. Manhattan. rative team of exceptionally gifted cast and charm,” while the San Francisco Chronicle TICKETS & SHOW INFO: Tickets crew. said her “theatrical vibrancy and consider- range from $45-75. (Recommended for all BRIAN DYKSTRA’S HO! The acting was terrific: ALLISON able personal charm” made it “no stretch ages. Performance Length: 70-80 minutes BUCK brought a genial charm and engag- to imagine an entire troop of miners eating with no intermission.) To order tickets Go buy tickets for BRIAN DYK- ing sincerity as the transplanted out of her hand.” MARCELLO GIOR- online, go to skirballcenter.nyu.edu (type STRA’S HO! running until December 19, Midwesterner brought to New York City DANI, who will be singing Dick Johnson in the code “FAMILY” for a special dis- 2010, at THE DRILLING THEATER to pursue an acting career, but who has hit for the first time in his career, has sung th count) or visit http://mummenschanz COMPANY on West 78 street in roadblocks despite her talent and persist- many Puccini roles at the Met, including NYC.com. Call or visit the box office: Manhattan’s Upper West Side. BRIAN ence. MICHAEL MICALIZZI was win- leading roles in La Bohème, Madama 212.352.3101 or 866.811.4111 (weekdays, DYKSTRA is an accomplished raconteur some and appealing as a writer fired on Butterfly, Manon Lescaut, Turandot, and 9am-9pm;_Saturday and Sunday, 10 am - who presents 2 pieces of stories, with Christmas Eve, who resists going on a tour Tosca. 6pm); NYU Ticket Central box office, amazing rhymes, that he wrote in this of the windows with Charmian, Ms. MAESTRO NICOLA LUISOTTI located in the lobby of 566 LaGuardia excellent one-man show. In his first story, Buck’s character, but eventually suc- made his Met debut conducting Puccini’s Place, at Washington Square South (Tues- HO! - - the title of the entire show - - imag- cumbs. With the impressive talent of the Tosca in 2006. ELISABETE MATOS Sat. 12-6 pm, and two hours prior to show ine a trademark infringement action BATS, one cannot find a bad performance. will make her Met debut as Minnie on time). brought by Santa Claus’s well-heeled law BETSY LIPPITT, CHRISTIAN ADAM December 22, and CARL TANNER will RESOURCES & PRESS MATERI- firm against the Green Giant - - you know, JACOBS, TURNA METE, HOLLY make his Met debut as Dick Johnson on ALS: To download high-resolution pro- of the well-known canned vegetable fame. CHOU, JACK CORCORAN, JOHN December 27. duction images, please register at the offi- The story is hilarious and was very well RUSSO, and RAUL SIGMUND JULIA The December 10, 1910 world premiere cial website: http://www.mummen- told by BRIAN DYKSTRA who deftly were all great. I urge you to buy tickets of the opera earned nineteen curtain calls schanz.com. For information about the conquered and swatted occasional techni- now! I guarantee you will love this out- for Puccini, stage director David Belasco, current tour and other source materials, cal glitches that occurred on the show’s standingly performed and excellently stars Emmy Destinn and Enrico Caruso, visit http://www.facebook.com/mummen- opening night. directed show of a wonderful new play! and conductor Arturo Toscanini. A review schanz To view performance videos, go to The second part of the show was in the New York Herald suggests that the http://youtube.com/MummenschanzTour BRIAN DYKSTRA reciting his composi- CARMEN at the METROPOLITAN evening was a triumph for all involved: Engage with the troupe on twitter at tion of “Sammy,” concerning the plight of OPERA “The event had been looked forward to as http://twitter.com/mummenschanzUS a magnificent Vermont tree that is brought socially one of the most brilliant in the his- PERFORMANCE SCHEDULE: Dec. with other trees for Christmas sale. Sadly, A new production of CARMEN, a sta- tory of the house, and the result justified 20 – 7:00 pm, Dec. 21 - 7:00 pm, Dec. 22 this beautiful tree gets overlooked and not ple of the opera repertory, has been play- expectation. Miss Destinn in the title - 2:00 pm* and 7:00 pm, Dec. 23 - 8:00 purchased for a variety of reasons, and ing to packed audiences at the rolesang as she never had here before, pm, Dec. 24 - 2:00 pm,* Dec. 26 - 2:00 BRIAN DYKSTRA brings a great vulner- Metropolitan Opera. CARMEN continues particularly in the second act, when her pm* and 7:00 pm, Dec. 28 - 8:00 pm, Dec. ability in his touching recitation. its run to the end of January, 2011. I urge vocal art was taxed to the utmost. Mr. 29 - 8:00 pm, Dec. 30 - 8:00 pm, Dec. 31 - One piece of advice for improvement on you to buy tickets at www.metopera.org. Caruso, as Dick Johnson, had one of the 4:00 pm and 7:00 pm, Jan. 2 - 2:00 pm* this excellent show would be to add some Composer Georges Bizet died after the best roles that has ever fallen to his lot. Mr. Jan. 4 - 8:00 pm, Jan. 5 - 8:00 pm, Jan. 6 - background to his presentation, whether it opening of CARMEN as a brokenhearted Toscanini seemed to have poured all his 8:00 pm, Jan. 7 - 7:00 pm* and 10:00 pm, be slides, puppets, or some other visual in man, believing his opera was a failure. artistic self into the conducting. Seldom Jan. 8 - 2:00 pm* and 7:00 pm. *Meet the the background. BRIAN DYKSTRA Today, CARMEN is probably the most has such teamwork among great artists artists of Mummenschanz at Post-show chose a well-decorated Christmas living beloved operas, with arias that are the been seen and heard. In a word, it was the Talkbacks room as the set for both pieces, but the pro- most easily recognized and loved even by kind of premiere of which older Europe ABOUT MUMMENSCHANZ gram could have been enhanced by slides those individuals who are not afficionados would have been very proud and of which FOUNDATION: Currently in its fourth or visuals in the background. BRIAN of operas. New York would have been envious.” decade of existence, MUMMENSCHANZ DYKSTRA is a fascinating raconteur and The opera has been revived at the Met Mask Theater remains one of the most suc- author, and I encourage you to see the METROPOLITAN OPERA: ten times. Destinn and Caruso repeated cessful theater groups in the world. show, directed by MARGARETT LA FANCIULLA del WEST their successful performances in the opera Formed in 1972 by Swiss artists Bernie PERRY [2 “T”s, not a typo], before it for three consecutive seasons following Schürch and Andres Bossard with Swiss- closes on December 19. The Met Presents 100th Anniversary the premiere. Maria Jeritza took on the American artist Floriana Frassetto, the pio- Revival of Puccini’s LA FANCIULLA role of Minnie in 1929 and 1930 revivals. neering performance troupe created a non- LOOKING AT CHRISTMAS AT THE DEL WEST. DEBORAH VOIGT sings A new production starring Leontyne Price verbal theatrical language that transcended FLEA the title role for the first time at the Met; and Richard Tucker opened the 1961 sea- the traditional barriers of nationality and MARCELLO GIORDANI makes his son, with Dorothy Kirsten and Franco culture. The group had its breakthrough THE FLEA THEATER, at 41 White role debut as Dick Johnson. NICOLA Corelli assuming the lead roles in 1965. during an extended Broadway run at the Street, right by the courts in lower LUISOTTI conducts the first Met Renata Tebaldi, who had recorded the role, Bijou Theatre in New York City from Manhattan, has a wonderful resident the- Fanciulla revival since 1993. but never performed it on stage, sang her 1977-1980. Never before and or since has ater company of exceptionally talented Puccini’s LA FANCIULLA DEL first Minnie at the Met in a popular 1970 a show without words or music succeeded actors, called “THE BATS.” The presen- WEST will return to the Met stage on revival. Del Monaco’s production pre- on Broadway for three consecutive years. tation of LOOKING AT CHRISTMAS December 6 for a series of performances miered in 1991 with Plácido Domingo as Since then, the group has toured continu- was worthy of the great tradition of THE commemorating the 100th anniversary of Dick Johnson. ously around the globe, performing in FLEA. Written by STEVEN BANKS, the opera’s 1910 world premiere at the LA FANCIULLA DEL WEST will be renowned festivals and theaters world- LOOKING AT CHRISTMAS is a heart- Met. DEBORAH VOIGT will sing the experienced by millions of people around wide. Following the death in 1992 of warming and funny romantic comedy that title role of Minnie for the first time at the the world this season in movie theaters, on founding member Andres Bossard, origi- centers on two persons, a young man and a Met, with MARCELLO GIORDANI in the radio and on the internet, through dis- nal artists Floriana Frassetto and Bernie young woman, meeting at the Christmas his role debut as Dick Johnson and Lucio tribution platforms the Met has established Schürch went on to establish the MUM- windows at Bloomingdale’s Department Gallo as the villainous Jack Rance. San with various media partners. The January MENSCHANZ FOUNDATION in 1998 store. Their attraction leads them to decide Francisco Opera Music Director NICOLA 8, 2011 matinee of LA FANCIULLA with the help of long-time friend and sup- to tour other Christmas display store win- LUISOTTI will conduct his first Met per- DEL WEST will be transmitted to more porter Hans Jörg Tobler, a non-profit dows of other department stores - - and formances of the work, which the compos- than 1,500 movie theaters in more than 40 organization that aims to promote the art that running around has to be done, at least er told The New York Times in 1910 he countries globally as part of The Met: Live and expression of nonverbal theater. Since once, by every New Yorker, even the most considered “the best of [his] operas.” in HD series. The opening performance on 2000, MUMMENSCHANZ has grown to jaded! GIANCARLO DEL MONACO returns December 6 was broadcast live on a company of five, with original cast mem- STEVEN BANKS is a distinguished to direct the revival of his 1991 produc- Metropolitan Opera Radio on SIRIUS bers Schürch and Frassetto now joined by head writer of the Emmy-nominated tion. channel 78 and AM channel 79, as will the featured performers Pietro Montandon and “SPONGEBOB SQUAREPANTS.” The LA FANCIULLA DEL WEST’S 1910 performances on December 14, December Raffaella Mattioli and technical director brilliance of Steven Banks’ play, in addi- debut was the first ever world premiere 22, 2010, and those on January 3, and Jan Maria Lukas. For more information, tion to the easy dialogue, is the altering of presented by the Met. In a Gold Rush min- January 8, 2011. The January 8 matinee at visit www.Mummenschanz.com. scenes between those of the young couple ing camp, tough frontier woman Minnie 1:00 p.m. will be broadcast live over the THE SKIRBALL CENTER FOR commenting on the mannequins and those has her sights set on the mysterious Dick Toll Brothers Metropolitan Opera THE PERFORMING ARTS, NEW of the mannequins in the window who Johnson, and nothing - - not horses, hang- International Radio Network. YORK UNIVERSITY, is the premiere comment on the young couple. BANKS’ men, or a high stakes poker game - - can venue for the presentation of cultural and play is witty and riveting. JIM keep her from true love. The performance METROPOLITAN OPERA: performing arts events at NYU and in SIMPSON’s direction brings beautiful on Friday, December 10 will commemo- PELLÉAS ET MÉLLISANDE lower Manhattan. Located at 566 life to Banks’ script. The direction by Jim rate the exact centennial of the opera’s his- ______Continued On Page 18 THE QUEENS BAR BULLETIN – DECEMBER 2010 17

serious injury under New York no-fault law. ject to the financial responsibility law or the Canadian law. The Court held an exception Unauthorized The Appellate Division indicated the claimant compulsory insurance laws of another state existed under Canadian law where the acci- was not required to prove a serious injury prior because of the ownership, maintenance or use dent happened outside the Province of Insurance Carriers to recovery as New York Insurance Law of your insured car in that state, we will inter- Quebec. The plaintiff was allowed to bring an §3420(f)(1) did not apply. This holding has not pret this policy to provide any broader cover- action in tort in New York which occurred In New York been overruled by the New York Court of age provided by those laws”. In this proceed- outside the province. ______Appeals Decision in 2007 in Rafellini v. State ing the out of state insurance clause was suffi- In the United States Automobile Continued From Page 1 Farm Mutual Automobile Insurance Company cient to impose New York minimum insurance Association v. Melendez 20 the First transacts business in New York. New York 12 as the Rafellini Court dealt with a SUM requirements to the unauthorized foreign Department was faced with an issue involving Insurance Law §1101 sets forth with speci- claim by a “covered” person. The plaintiff in insurer. a motor vehicle accident in New York with a ficity what constitutes doing an insurance Rafellini was reimbursed for basic economic In Midwest Mutual Insurance Company v. vehicle insured out of state by an unauthorized business in New York. This statute provides a loss through his no-fault carrier. Pisani 18 the Appellate Division First insurer. The issue in this proceeding involved pertinent part In Woodbine v. We Try Harder, Inc., the Department was faced with a Pennsylvania the applicability of New York law and a.) In this article: (1) “Insurance Contract” – Trial Court in Queens County (Judge Nat insurance policy issued to a Pennsylvania res- whether the unauthorized insurer would be Means any agreement or other transaction Hentel) found where a plaintiff did not receive ident containing only bodily injury and prop- compelled to arbitrate an uninsured motorist whereby one party, the “insurer”, is obligat- no-fault coverage the defendant could not use erty damage coverage. No uninsured motorist claim in New York. The Appellate Division, ed to confer benefit of pecuniary value the serious injury threshold as a bar to recov- coverage was provided as part of the policy First Department held under Connecticut law upon another party, the “insured” or “bene- ery. The Court held the claimant cannot be issued to a Pennsylvania resident. Here the the arbitration of an uninsured motorist claim ficiary”, dependent upon the happening of a prevented from recovering basic economic Court construed the Pennsylvania policy to is permissible only if both sides agree to arbi- fortuitous event in which the insured or loss which would ordinarily be a bar to recov- provide uninsured motorist coverage for trate. Here the limits provided by the unautho- beneficiary has, or is expected to have at the ery if the threshold law was applied. The injuries the insured sustained when he was rized Connecticut insurer were at or above the time of such happening a material interest defendant could not use the statutorily created struck by an unknown motor vehicle in New New York statutory minimum requirements which will be adversely affected by the definition of serious injury under Insurance York. The Appellate Court indicated “A for no-fault, bodily injury and uninsured happening of such event. Law §5102(d) of the New York Insurance motor vehicle insured under an out of state motorist coverage. The Court in United b.) (1) Except as provided in paragraph 2, 3 or Law where the plaintiff did not benefit from policy that contains liability coverage falls Service Automobile Association (supra) 3-A of this subsection, any of the following its provisions. The defendant could not use the under the scope of Insurance Law §5107 and issued a permanent stay of arbitration holding acts in this state, effected by mail from out- benefits of the serious injury threshold as both must be construed to contain uninsured the New York State Deemer Statute, side the state or otherwise, by any person, a shield and a sword. The plaintiff was not motorist benefits”. In this proceeding the Insurance Law §5107, does not apply and the firm, association, corporation or joint-stock recovering New York benefits and the defen- Appellate Court abrogated the contract right parties could not be compelled to arbitrate company shall constitute doing an insur- dant sought to use that as a shield to deny pay- of a citizen of another state to construe that where the law of the sister state (Connecticut), ance business in this state and shall consti- ment of basic economic loss. The defendant policy as containing New York UM coverage which is the situs of the contract, does not call tute doing business in the state within the also sought to use the New York threshold as under the New York Deemer Statute. for arbitration unless both sides agree. A sim- meaning of §302 of the Civil Practice Law a sword to deny claimant’s his rights under The import of all of the cases discussed ilar holding occurred in State Farm v. and Rules: common law and basic negligent principals. above indicates that a non-resident of New Torcivia in the Second Department. 21 In this c.) Making, or proposing to make, as insurer, The plaintiff in Woodbine (supra) was there- York injured in a New York motor vehicle action, State Farm issued a policy in South any insurance contract, including either fore entitled to recover from the first dollar of accident by an unauthorized insurer with lim- Carolina to a South Carolina resident involved issuance or delivery of a policy or contract basic economic loss. 13 its below the minimum requirements is not in an accident in New York. When faced with of issuance to a resident of this state or to What happens to the non-resident who subject to the New York Deemer Statute and the uninsured motorist arbitration demand, the any firm, association or corporation author- comes into New York insured with an unau- is not required to prove a serious injury under Court held “There is no requirement under ized to do business herein, or solicitation of thorized insurance carrier with liability insur- the New York threshold law. New York no-fault statutes and regulations applications for any such policy or con- ance limits below the mandatory statutory If a non-resident is injured in New York that mandates arbitration, where, as here, a tracts; limits of New York Law ($25,000 per per- through the operation of a vehicle insured by policy issued out of state meets the minimum d.) Making, or proposing to make as warran- son/$50,000 per occurrence) 14 an unauthorized insurer having limits at or requirements of Insurance Law §5107”. 22 tor, guarantor In Property & Casualty Insurance above the mandatory statute a conflict of law The issue then arises as to whether an or surety, any contract of warranty, guarantee Company v. Clark 15 the Court was faced would arise where the out of state policy has injured party in New York, with a claim or suretyship as a vocation and not as mere- with a fact pattern including a motor vehicle limits at or above the New York statutory against a motor vehicle owner or operator ly incidental to any other legitimate busi- owned by a Pennsylvania resident, registered minimum regardless of the unauthorized sta- insured by an unauthorized insurer, having ness or activity of the warrantor, guarantor in Pennsylvania, and insured by a tus of the out of state insurance carrier. The limits below the mandatory statute in New or surety; Pennsylvania insurer which was not author- New York Deemer Statute, Insurance Law York, can file a claim with the Motor Vehicle e.) Collecting any premium, membership fee, ized to do business in New York. The insur- §5107, applies to authorized insurers doing Accident Indemnification Corporation. The assessment or other consideration for any ance carrier denied coverage in this proceed- business in New York. A New York Court Motor Vehicle Accident Indemnification policy or contract of insurance; ing due to an exclusion in the policy whereby would resolve a choice of law issue by using Corporation (MVAIC) is a creature of statute f.) Doing any king of business, including a the sibling of the insured was not covered a “center of gravity” or “grouping of contacts” created by the Legislature in New York on reinsurance business, specifically recog- under the Pennsylvania policy. This claim approach. The New York Court would also January 1, 1957 to cover accidents involving nized as constituting a doing of an insur- involved an uninsured motorist arbitration and look to the place of the contract negotiations certain categories of vehicles and to compen- ance business within the meaning of this 10 concerned the interplay of competing statutes and performance, the location and the subject sate innocent victims of motor vehicle acci- chapter; in New York. Under Vehicle & Traffic Law matter of the contract and the domicile of its dents. Examples of coverage under MVAIC Judge York was satisfied that American §388 “Every owner of a vehicle used to oper- contracting parties. Assuming for purposes of include: Millennium Insurance Company did not do ated in this state is liable for injuries from neg- this hypothetical that the non-resident insured • Unidentified hit and run any of the activities listed above as defined as ligence in the permissive use of such vehicle”. by the unauthorized insurer with limits above • Uninsured New York vehicle the operation of an insurance business in New 16 The Court was faced with the State of New the New York statutory minimum was sued in • Stolen vehicle York. Therefore, the Court found Insurance York Public Policy to protect innocent victims New York for an accident that occurred in • Uninsured out of state vehicle Law §5107 did not apply and American of car accidents. However, the issue arose as New York. New York Courts have a keen • Insured vehicle where insurance has been Millennium Insurance Company was not to the applicability of New York rules to an interest in protecting citizens of this state. deemed inapplicable to an accident required to provide New York minimum unauthorized insurer. The insurance carrier in However, that interest is not adversely affect- • An unregistered vehicle insurance requirements with respect to this this proceeding did not do business in New ed in this fact scenario where the unauthorized In order to submit a claim to MVAIC, the accident. York and presumably did not benefit from insurer has coverage greater or equal to the claimant must be a qualified person as defined What then happens to the bodily injury New York business dealings, i.e., additional New York minimum requirements. Assuming by Article 52 of the insurance law. 23 A qual- claim of that passenger who fails to obtain premiums required for mandatory PIP and no-fault coverage is provided similar to New ified person is a resident of New York or a res- New York no-fault benefits when a suit is UM losses. The Court in Property & Casualty York the New York threshold of serious ident of another state having a substantially filled in New York versus the adverse vehicle Insurance Company of Hartford v. Clark injury would apply to the non-resident suing similar program for residents injured in that owner and operator? Assuming for purposes of (supra) indicated this claim presented a valid in New York for a New York accident. state. An example is a pedestrian who does not this discussion that when suit is filed in New uninsured motorist demand and did not apply In Engel v. Clapper 19 the Appellate own a vehicle or qualify as an insured under a York by a New Jersey resident against a New New York law to an unauthorized foreign Division, Third Department was faced with a policy covering a resident relative. Persons York resident for a tortuous act committed in insurer. claim by a Quebec resident passenger, with other applicable insurance cannot seek New York the New York resident defendant In General Accident Insurance Company v. involved an accident in New York, who filed compensation from MVAIC. MVAIC, as the does not remove the case to Federal Court Tran 17 the Appellate Division Second suit in New York to recover for personal insurer of last resort, would not be required to based on the diversity jurisdiction of the Department was faced with an insurance cov- injuries. The Court found no conflict with the provide coverage to a New York resident Federal Court. If the matter proceeds in New erage issue involving a New York resident laws of Quebec as far as no-fault benefits injured in a motor vehicle accident insured by York State Court, the question arises as to the injured in a motor vehicle accident in New were concerned. The coverage under the an unauthorized insurance carrier having lim- applicability of the New York threshold law York. The tortfeasor was a Florida resident Quebec policy was at or above the New York its below the mandatory statute. The claimant codified in New York Insurance Law operating a vehicle registered in Florida with statutory minimum. Here the unauthorized would either be limited in recovery to the lim- §5102(d). In Scotland v. Allstate Insurance 11 an insurance carrier which was unauthorized insurer involved did not do business in New its of the unauthorized insurance carrier, or Company The Appellate Division Second to do business in New York. The liability pol- York and had no New York contacts. The required to seek SUM coverage from his own Department was faced with a Virginia auto- icy limits of the offending vehicle were below Court was faced with the question as to the carrier or that of a resident relative. mobile liability insurance policy with no pro- the New York statutory minimum. The key applicability of Quebec law where a party A New York resident operating a vehicle vision for no-fault benefits. An uninsured determination in this proceeding was “the out injured in an accident is barred from recovery insured by an unauthorized insurer with limits motorist claim was filed versus Allstate in of state insurance clause” which was part of against a third-party if they received no-fault at or above the New York mandatory mini- New York and the question presented was the policy. The policy had a specific provision benefits. In this proceeding a New York mum would be subject to the same rules as a whether the claimant was required to prove a indicating, “If an insured person becomes sub- action was not dismissed on the basis of ______Continued On Page 19 18 THE QUEENS BAR BULLETIN – DECEMBER 2010

Staatsoper, Théâtre des Champs-Élysées, WAVE FESTIVAL.” RAOUL played to part of the Mark Morris Dance Group’s Culture Corner and in concert in Amsterdam, will be her packed audiences at BAM during 30th Anniversary Season. “Morris” chore- first at the Met. When STÉPHANE November, 2010. I know: I saw how the ography is formally dazzling, uproariously Continued From Page 16 ______DEGOUT sang PELLÉAS in Brussels, last Saturday evening show was held up so funny,” raves the San Francisco Chronicle. Bloomberg praised him for a “fervent, pas- that the efficient BAM ushers could fill It is this mix of playfulness and exquisite SIMON RATTLE, Artistic Director of sionate” performance featuring an “ample, every possible seat in the house with per- dance combined with the greatest respect the Berlin Philharmonic, will make his virile voice.” GERALD FINLEY’S past sons waiting on a long line trying to get in. for E.T.A. Hoffman’s original story and Metropolitan Opera debut December 17, Met roles include J. Robert Oppenheimer, The show is staged by Compagnie du Pyotr Ilyich Tchaikovsky’s iconic score 2010, leading a revival of Debussy’s the title character in the Met premiere of Hanneton, but is essentially a one man that has resulted in this family friendly PELLÉAS ET MÉLLISANDE. The cast John Adams’s Doctor Atomic, which was show of JAMES THIERREE, the gifted favorite winning Ovation TV’s Battle of the will feature Czech mezzo-soprano MAG- transmitted worldwide through The Met: grandson of immortal actor and clown Nutcrackers contest for three years running. DALENA KOENÁ as MÉLLISANDE Live in HD. FELICITY PALMER’S CHARLIE CHAPLIN. JAMES THIER- Morris updates the classic holiday tale by and French baritone STÉPHANE recent Met appearances include the REE has great energy and creativity. He is setting it in the swinging 1960/70s, com- DEGOUT as PELLÉAS. GERALD FIN- Marquise of Berkenfield in the new produc- a clown, actor, acrobat, and trapeze artist, plete with go-go boots, G.I. Joe soldiers, LEY will sing the role of PELLÉAS’s tion premiere of La Fille du Régiment, the and all of his skills are needed to play this dancing Barbie dolls, and inspired gender- jealous brother Golaud, FELICITY Countess in The Queen of Spades, and physically demanding role. The role is of bending casting. THE HARD NUT takes PALMER will sing the role of his mother Klytämnestra in Elektra. WILLARD pure physicality. There are no words in the its title from the slightly sinister plot of The Geneviéve, and WILLARD WHITE will WHITE is the only cast member to have piece, although occasional sounds. Nutcracker and the Mouse King, complete the cast as the aged monarch sung in PELLÉAS ET MÉLLISANDE JAMES THIERREE shows the isola- Hoffman’s story-within-a-story wherein an Arkel. All five singers are making their Met previously at the Met. He made his Met tion of the title character toward the outside evil Rat Queen disfigures Princess Pirlipat role debuts. debut as Golaud in a 2000 revival of the world and aided by wonderful, imaginative and offers an impossible challenge: the girl Debussy’s opera, based on the late work, conducted by James Levine. props created by VICTORIA THIER- will regain her beauty if a young man can 19th-century symbolist play by Maurice Jonathan Miller’s production features set REE, the mother of the show’s star. Among crack the “hard nut” with his teeth. Maeterlinck, is the quintessential design by John Conklin, costume design by the props were a gigantic floating elephant, Drosselmeier, the kind family friend, Impressionistic opera, with a richly orches- Clare Mitchell, and lighting design by a depressed jellyfish, a large asthmatic fish, searches the world over but finds the hidden trated score colorfully evoking the moods Duane Schuler. and a fossilized bird. nut back at home 15 years later, just when a of the mysterious drama on stage. Jonathan PELLÉAS ET MÉLLISANDE will be While I admired JAMES THIERREE’s suitor who is up to the challenge finally Miller’s production, which premiered at the experienced by millions of people around energy, the quality that made his grandfa- emerges. Met in 1995, is “a masterpiece of under- the world this season on the radio and on ther a cinematic legend and a comedic MARK MORRIS was born in 1956 in statement, and yet it reflects the tiniest the internet, through distribution platforms genius was his ability, even without words, Seattle, Washington. He formed the shifts of texture, urgency, and emotion in the Met has established with various media to evoke emotion, as in Chaplin’s portrayal MARK MORRIS DANCE GROUP Debussy's meticulous handiwork” partners. The December 17, 2010 opening of the tramp, even with a walk done with [“MMDG”] in 1980 and has since created (Financial Times). SIMON RATTLE, the performance will be broadcast live on the back to the camera. more than 120 works for the company. internationally acclaimed conductor who in Metropolitan Opera Radio on SIRIUS JAMES THIERREE has those qualities From 1988 to 1991, he was director of the opinion of one Guardian reporter “has channel 78 and AM channel 79, as will the well within him, but they did not emerge. dance while MMDG was the national com- made a greater impact on the arts world- performances on December 23, December The part that engaged me was JAMES pany of Belgium at the Théâtre Royal de la wide than any other living Brit,” recently 29, 2010, and January 1, 2011. The THIERREE as Raoul tapping his foot and Monnaie in Brussels. In 1990, he founded conducted PELLÉAS ET MÉLLISANDE December 17, 2010 performance will also eventually moving to a phonograph playing the White Oak Dance Project with Mikhail with the Berlin Philharmonic; according to be available via internet streaming at the “I Whistle a Happy Tune” from The King Baryshnikov. Morris is also a ballet chore- Opera News, he “guided his singers gently Met’s web site www.metopera.org. The and I, or his sticking his head into the long ographer having created seven works for through the tangled Impressionistic forest January 1, 2011, 12:00 noon matinee will ear of the ancient phonograph when the the San Francisco Ballet since 1994 and of the score[and] made it pulsate with be broadcast live over the Toll needle got stuck. In both scenes, JAMES received commissions from many others. drama and urgency.” Brothers-Metropolitan Opera International THIERREE was expressing a human emo- MARK MORRIS has worked extensively MAGDALENA KOENÁ has been Radio Network. tion of happiness to the beat of the music in opera, directing and choreographing pro- heard at the Met as Cherubino in Le Nozze and exasperation at a technical glitch. What ductions for The Metropolitan Opera, New di Figaro, Dorabella in Cosí fan tutte, RAOUL at BAM made Chaplin great was his understanding York City Opera, Gotham Chamber Opera, Idamante in Idomeneo, and Varvara in and feeling of human emotions and vulner- English National Opera, and the Royal Janáèek’s Kát’a Kabanová. Her perform- “RAOUL” was having its first American abilities. I urge JAMES THIERREE to Opera, Covent Garden. Morris was named a ances of MÉLLISANDE, a role she has performances at the BROOKLYN ACAD- focus on those traits in a future production. fellow of the MacArthur Foundation in performed to acclaim at the Deutsche EMY OF MUSIC’S [“BAM”] “NEXT I hope he returns to the USA, but in a pro- 1991. For more information, visit duction that also allows him to have a voice www.mmdg.org. and to portray human emotions in his char- Even for Queens residents, transportation an adjourned date. If the attorney con- acterizations. to BAM is easy: Video Conferencing sents to the video appearance in his/her A great contrast can be made in BRIAN Subway: 2, 3, 4, 5, Q, B to Atlantic affirmation and if the request is submit- DYKSTRA’s HO! [reviewed above] and Avenue; D, N, R to Pacific Street; G to Continued From Page 4 ______ted timely, the defendant can be placed JAMES THIERREE’s RAOUL. Fulton Street; C to Lafayette Avenue interviews. In a little more than three on the video calendar and spared the BRIAN DYKSTRA’s show relied on all Train: Long Island Railroad to Flatbush years, the video conference unit has enter- ordeal of being transported to court need- words to convey the meaning, and BRIAN Avenue tained more than 6,000 requests for video lessly. Upstate prisoners who need to DYKSTRA’s unbelievable and gifted Bus: B25, B26, B41, B45, B52, B63, B67 interviews. Two thirds of those requests vacate misdemeanor warrants are also recitation style. It could have benefited all stop within three blocks of BAM have come from probation officers. The ideal candidates for video court appear- from physicality or some screens and slides Car: Commercial parking lots are located remainder were scheduled by attorneys ances. Finally, defendants who are being in the background to provide variation. adjacent to BAM who practice in Queens. Currently we considered for inpatient programs, where JAMES THIERREE, in contrast, relied For ticket and BAM bus information, call average 3000 interview requests per year. the bed is not available on the adjourned on physicality and pops, with no language. BAM Ticket Services at 718.636.4100, or We expect this number to peak at 4000 date, are also appropriate for video court He would have benefited by some language visit www.BAM.org. requests in 2007. appearances. or words, or something that would have The one area of disappointment for the The video unit is also exploring the conveyed the sadness, emotions, and JOHN GABRIEL BORKMAN at BAM video conference unit has been the video feasibility of using video technology for immense hurdles and challenges faced by court appearances. These appearances are hospital arraignments. Due to the delicate his character. HENRIK IBSEN is probably my governed by section 182 of the Criminal nature of the hospital setting, this goal is The amazing scenography in RAOUL favorite playwright, so I am delighted to Procedure Law and by Part 106 of the more difficult to attain. Currently, only was provided by JAMES THIERREE. share with you that BAM will present a Rules of the Court. By statute, video Bellevue Hospital has agreed to partici- production of Ibsen’s classic JOHN court appearances are not authorized for pate in a video pilot program with the THE HARD NUT at BAM GABRIEL BORKMAN at BAM in hearings, trials, certain pleas and certain Courts, but we hope to have more city January, 2011. The production stars ALAN sentences. In addition, the court must hospitals on board by the end of the year. Mark Morris Dance Group’s joyous holi- RICKMAN. I expect the show will be obtain the consent of the defendant in When the notion of using videoconfer- day classic, THE HARD NUT is now run- eventually sold out, so please do yourselves order to proceed by video. The latter encing in our daily lives was first intro- ning at BAM’s HOWARD GILMAN a favor and avoid being shut out: For ticket restriction has been the main obstacle to duced to us at the 1964 Worlds Fair and OPERA HOUSE at 30 Lafayette Avenue, information, call BAM Ticket Services at the success of video court appearance then later in the Disney theme parks, it in downtown Brooklyn until December 19, 718.636.4100, or visit www.BAM.org. program. Even so, there are several situa- piqued our interest, but no one truly 2010. I urge you to buy tickets. tions where video court appearances believed that we would see this futuristic Performances are on: Dec 10, 11 & 15–18 HOWARD L. WIEDER is the writer of would be ideal. Most obvious are the vision in our lifetime. Well, video con- at 7:30pm, and on Dec 12 & 19 at 3pm. both "THE CULTURE CORNER" and instances where attorneys intend to sub- ferencing is now a reality and the Queens Tickets range in price from: $25, 45, 60, the "BOOKS AT THE BAR" columns, mit an affirmation of actual engagement. Supreme Court is taking every step possi- and 70. The show is appropriate for ages 4 appearing regularly in THE QUEENS When this situation occurs it is often an ble to keep abreast of the advances in this & up. BAR BULLETIN, and is JUSTICE abysmal waste of time and resources to field and to address the ever increasing THE HARD NUT, a hilarious yet rever- CHARLES J. MARKEY’S PRINCIPAL have Correction bring an inmate into demand by court users to avail them- ent holiday rendition of The Nutcracker, LAW CLERK in Supreme Court, Queens court simply to advise the defendant of selves of this cutting-edge technology. returns to BAM after an eight year absence, County, Long Island City, New York. THE QUEENS BAR BULLETIN – DECEMBER 2010 19

for basic economic loss between covered persons when the Unauthorized Insurance personal injuries arose out of the use of operation of a motor SERVICE DIRECTORY Carriers In New York vehicle in New York State only. In General Accident Insurance Company v. Roberts 27 the LAWYER TO LAWYER OFFICE FOR RENT ______insurance carrier sought to subrogate and enforce a lien pursuant Continued From Page 17 Wall Street Office non-resident. The Deemer Statute, Insurance Law §5107, to Insurance Law §5104(b). The insurance carrier in General SECURITIES Accident v. Roberts (supra) was not precluded from enforcing the Starting at: $79/month would not apply as the unauthorized insurer had limits at or LAW • Mail & Parcel greater than the New York minimum. New York rules includ- lien created statutorily under Insurance Law §5104(b) where the John E. Lawlor, Esq. Receiving Services ing Insurance Law §5102(d) would apply as a New York res- injured party was involved in an accident with a farm tractor, not • Phone Answering in Your Name Securities (212) Exchange ident is receiving similar benefits as they would with a New covered by motor vehicle liability insurance. Arbitration / Litigation; • Full Floor Corporate Setting w/ York authorized insurer, therefore, New York rules would Choice of law principals involving vehicles which enter Well Appointed Reception Area FINRA Arbitrations; • Conf. rooms (hrly rental) apply. New York and cause injury which are insured with an unau- Federal and State • Furn. Offices (full/part time) In New York “A covered person” is precluded from suing thorized insurance carrier create vexing questions for the trial Securities Matters at 110 Wall St., 11th Floor another “covered person” in negligence for basic economic Court to determine in coverage disputes. In New York, a Jurist (516) 248-7700 (800) 205-7685 loss equal to the amount he or she receives in first party bene- will use the “center of gravity” or “grouping of contacts” 129 Third Street Serving The Legal Profession For Over 25 Years fits. 24 A covered person may always sue to recover econom- approach in resolving a choice of law issue. The Court will Mineola, NY 11501 www.yourwallstreetoffice.com ic loss in excess of $50,000. In the case of the “covered per- usually apply the law of the jurisdiction with the most signifi- johnelawlor.com [email protected] son” suing a “non-covered person” the covered person’s indi- cant contacts, that is the most significant relationship to the vidual right of action is not precluded by the no-fault statute. parties or to the transaction. In AIU Insurance Company v. Avis 28 HOME HEALTHCARE The insured is permitted to sue for damages, including all Rent A Car, the Second Department was asked to determine items of basic economic loss as defined by the no-fault statute the rights and liabilities of the insurance carrier and the rental Better Helpers, Inc. without the requirement of showing a serious injury. An insur- car company (pre-Graves Amendment) involving a New York A New York State License Homecare Agency that provides ance carrier may only exclude from coverage certain cate- accident. A New York resident was driving an Avis Rent A Home Health Aides, Personal Care Aides, Elderly Care gories of loss including the following: Car involved in a motor vehicle accident in Staten Island. The (24 hours/7 days per week). vehicle had been rented in North Carolina by a North Carolina 1.) Intentional act Registered and Licensed Practical Nurses. 2.) Injuries which occurred while the claimant was driving resident and was registered in that state. The Avis rental agree- Private pay and private insurance accepted. while intoxicated ment signed in North Carolina included a provision to the Better Helpers, Inc. provides services in New York, 3.) Injuries which occurred while the claimant was committing effect that the statutory minimum liability coverage provided Bronx, Kings, Queens, and Richmond counties. an act which would constitute a felony to the driver was excess to any liability coverage available to 4.) Injuries occurred while the claimant was drag racing the driver from any other source. This provision was enforce- We are located at 401 Broadway, Suite 2001, N.Y.C. 10013 5.) Injuries occurred while the claimant was repairing an auto- able in North Carolina. Applying the grouping of contact Please contact Sharon @ 212-431-8016 or email [email protected]. mobile in the course of his employment analysis to this conflict of law issue the Court upheld North New York Insurance Law §5104(b) provides in pertinent Carolina law and indicated that the rental liability coverage part “In any action by or on behalf of a covered person versus was in conformity with the contract. New York’s interest in FOOTNOTES a non-covered person, where damage from personal injuries insuring an injured party’s recourse to a financially responsible 1 McKinney’s Consolidated Laws of New York, Chapter 28 Article 51, vehicle owner was not affected by the Court’s analysis. In §5107 arising out of the use of a motor vehicle may be recovered, an nd st insurer which has paid out or is liable for first party benefits most instances, New York Courts will not abrogate the laws of 2 234 AD2 41, 650 NYS 2d 210 (1 Dept. 1996) a sister state unless displacing that law would advance public 3 11NYCRR §65.5 (a)(b) has a lien against any recovery to the extent of benefits paid or 4 34NY 2nd 43; 312 N.E. 153(1974) payable by it to the covered person. No such action may be policy or relevant substantive law of New York. Unless some 5 Supra @ P. 48 compromised by the covered person except with the written public policy can be cited in a center of gravity or more sig- 6 McKinney’s Vehicle & Traffic Law §318(5) consent of the insurer, or with the approval of the Court or nificant contacts analysis, the law of the place of the contract 7 New York Insurance Department WebSite HTTP://www.ins.state.ny.us1 where the amount of such settlement exceeds $50,000”. 25 In will be applied. 8 11 NYCRR §65-1.8( c) 26 9 109733/04 Federal Insurance Company v. Bodsky a New York resi- As with any insurance coverage analysis question the issue 10 McKinney’s Consolidated Laws: New York Insurance Law §1101 dent passenger was injured in a motor vehicle accident in of an unauthorized insurance carrier in New York is a fact 11 35 AD 3rd 584, 27NYS 2nd 809(Appellate Div. 2nd Dept.) 2006 driven analysis which requires a case by case approach. While 9 NY3rd 196 878 N.E. 583(2007) Pennsylvania. The car was driven by a New York resident who nd nd rented the vehicle from the defendant National Car Rental. the New York Deemer Statute provides maximum protection 12 4 Misc. 2 573; 477 NYS 2 969 (1984) to New York residents it does not cover every situation involv- McKinney’s Consolidated Laws of New York Vehicle & Traffic Law Federal Insurance Company as the subrogee of the injured pas- §345(3) 7 Misc. 3rd 358; 793 NYS 2nd 863 (Kings County 2005) senger commenced an action against the operator and National ing motor vehicle accidents in New York. The insurance cov- McKinney’s Consolidated Laws of New York Vehicle & Traffic Law §388 Car Rental to recover payments made to the injured passenger erage practitioner is therefore cautioned to conduct a complete 246 AD82nd 543; 667 NYS 2nd 417 (Appellate Div., 2nd Dept. 1998) 250 factual analysis of the business dealings of the unauthorized AD82nd 512; 673 NYS 2nd 126 (1st Dept. 1998) for basic economic loss and optional basic economical loss. rd nd rd insurer before a determination can be made as to the applica- 14 AD83 855; 788 NYS2 683 (3 Dept. 2005) The defendant car rental agency contended the insurance car- 27 AD83rd 296; 811 NYS2nd 641 (1st Dept. 2006) rier was not entitled to recover for basic economic loss and bility of the New York Deemer Statute and choice of law 277 AD2nd 321; 715 NYS 2nd 75 (2nd Dept. 2000) optional basic economic loss because both the driver and pas- issues are considered. Supra @ p.321 McKinney’s Consolidated Laws of New York Insurance Law senger were New York residents, the car was rented in New Article 52 McKinney’s Consolidated Laws of New York Insurance Law §5104(b) Insurance Law §5104(b) York and the car and its occupants were returning to New Francis J. Scahill is a long time member of the Queens nd nd nd County Bar Association and a partner of the law firm Picciano 267 AD82 295; 700 NYS 2 57 (2 Dept. 1999) York. The Appellate Division, Second Department rejected 266 AD2nd 791; 699 NYS 2nd 158 (3rd Dept. 1999) this contention as Insurance Law §5104(a) precludes recovery & Scahill in Westbury, NY. 289 AD2nd 346; 739 NYS2nd 82 (2nd Dept. 2000)

if the parties were never divorced? Your answer - No must bring a plenary action. ordered by court under §413(1)(g) of the New Marital Quiz Your answer - No, unless the petitioner is likely Reiter v. Reiter 39 A.D. 3d 616; 835 N.Y.S.2d York Family Court Act irrebuttable? to become in need of public assistance or care. 240 (2nd Dept. 2008). Your answer - No, 42 U.S.C.S. §667 mandates ANSWERS TO MARITAL QUIZ Matter of Johna M.S. v. Russell E.S. 10 N.Y.3d a rebuttable presumption in all cases. Clancey v. ON PAGE 8 364; 889 N.E.2d 471; 859 N.Y.S. 2d 594 (Ct of Question #7 -May the court suspend child sup- Moody 83 N.Y.2d 65, 607 N.Y.S.2d 906 (Ct. of Appeals 2008). port payments where the noncustodial parent’s Appeals, 1993). Question #1 - Does the Family Court Act access to the child has been unjustifiably frustrat- Provide for an award of durational maintenance? Question #5 - Would your answer to Question ed by the custodial parent? Question #10 - In a separation agreement the par- Your answer - No, Levy v. Levy 2009 NY Slip 4 change, if the separation agreement provided Your answer - Yes, where the custodial parent’s tied elected to apply the CSSA guidelines to their Op 06809 (2nd Dept.). that: “while this agreement will resolve these actions rise to the level of deliberate frustration or total combined incomes. Are they required to issues for the present time, the Wife shall not be active interference with the noncustodial parent’s articulate the reasons to justify their agreement in Question #2 - If the Supreme Court does not foreclosed from seeking additional mainte- visitation rights. Matter of Thompson v. this regard? grant a divorce, may it award durational mainte- nance in negotiations with the Husband, or fail- Thompson 2010 NY Slip Op 08120 (2nd Dept.). Your answer - No, Chalk v. Chalk 2010 Slip Op nance? ing such negotiations, then filing in a court of 05501 (2nd Dept.). Your answer - No, Levy v. Levy 2009 NY Slip appropriate jurisdiction for a modification of Question #8 - If a judgment of divorce and stip- Op 06809 (2nd Department). If the action for the present provisions concerning the payment ulation of settlement are silent as to sharing the CORRECTION: In the Marital Quiz which divorce is dismissed, there is no longer a matri- of maintenance. Any application by the Wife cost of private secondary education, should the appeared in the October 2010 issue of the Queens monial action pending and the defendant’s appli- shall be treated as a ‘de novo’ application to the court treat the application for the payer spouse to Bar Bulletin, I cited an Appellate Division, cation for maintenance is properly viewed as one court, since it is not possible to set future main- share said costs as a modification or a de nova Second Department case, Matter of Jewett v. for spousal support under Family Court Act §412 tenance at this time because it is impossible to determination? Monfoletto 2010 NY Slip Op 02953. This case rather than under the provisions of DRL §236(B). forecast the Wife’s needs or the Husband’s Your answer - De novo, the standard to be used stood for the proposition that it is necessary to income/earning capacity?” is found in the CSSA, pursuant to which a court demonstrate an unanticipated and unreasonable Question #3 - The Appellate Division Second Your answer - No, the Family Court is a court of may award educational expenses, if it determines change of circumstances in order to obtain an Department has adopted a liberal policy with limited jurisdiction that cannot exercise powers that a private school education is appropriate for increase in child support, when modifying a sep- respect to vacating defaults in matrimonial beyond those granted to it by stature. Matter of the child, “having regard for the circumstances of aration or settlement agreement which was incor- actions. Is it still incumbent upon a defendant to Johna M.S. v. Russell E.S. 10 N.Y. 3d 364; 889 the case and of the respective parties and in the porated, but not merged, into a judgment of demonstrate a reasonable excuse and the exis- N.E.2d 471; 859 N.Y.S.2d 594 (Ct. of Appeals best interest of the child, as justice requires.” In divorce. After that case was decided and after I tence of a meritorious defense? 2008). the Matter of Laura Durso v. Gerald Durso, 68 wrote the Marital Quiz the law changed. DRL Your answer - Yes, Cuzzo v. Cuzzo, 2009 NY A.D. 3d 1107; 893 N.Y.S.2d 81 (2nd Dept. §236B(9)(b) and FCA§451 have been amended Slip Op (2nd Dept.). Question #6 - The parties’ stipulation of settle- 2009). to a “substantial change of circumstances.” The ment was incorporated, but did not merge the par- amendment only pertains to stipulations settle- Question #4 - May the Family Court modify a ties’ judgment of divorce. May the court entertain Question #9 - Is the presumption that $25.00 per ment agreements executed after the effective date maintenance provision in a separation agreement, a motion to modify the stipulation of settlement? month child upport is the minimum amount to be of the bill, October 13, 2010. 20 THE QUEENS BAR BULLETIN – DECEMBER 2010 Picture yourself in front of 27,000 New York lawyers.

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LEGAL MEDIA PUBLISHING - A DIVISION OF LONG ISLANDER NEWSPAPERS - 149 MAIN STREET, HUNTINGTON, NY 11743 P 631.427.7000 - F 631.427.5820