NEW YORK STATE BAR ASSOCIATION JournalJournalMARCH/APRIL 2002 | VOL. 74 | NO. 3 STYLEBOOKSTYLEBOOK ALTERNATIVESALTERNATIVES
Inside Administrative Hearings Exculpatory Clauses Last Resort Estate Plans SLAPP Suits Real Property Section BOARD OF EDITORS C ONTENTS Howard F. Angione New Edition of State’s “Tanbook” Implements Extensive Editor-in-Chief Revisions in Quest for Greater Clarity Queens e-mail: [email protected] Gerald Lebovits 8 Rose Mary Bailly Albany Survey of Practice Before Administrative Law Judges Willard H. DaSilva Finds Counsel Are Often Poorly Prepared Garden City Beverly M. Poppell 20 Louis P. DiLorenzo Syracuse Use of Exculpatory Clauses is Subject to Wide Variety Philip H. Dixon of Definitions and Circumstances Albany Gwen Seaquist and Marlene Barken Judith S. Kaye 27 New York City Last Resort Estate Planning Finds Acceptance in John B. Nesbitt Lyons Statutes and Cases Relying on Substituted Judgment Eugene E. Peckham Kenneth P. Nolan 33 New York City Eugene E. Peckham Risk of SLAPP Sanction Appears Lower for Internet Binghamton Identity Actions in New York Than in California Sanford J. Schlesinger Elizabeth Troup Timkovich 40 New York City Richard N. Winfield Real Property Section New York City Focus On: Real Property Eugene C. Gerhart 46 Editor Emeritus Binghamton Enhanced Notice Requirements in Property Tax Daniel J. McMahon Foreclosure Cases Give Owners More Protection Managing Editor David C. Wilkes 48 Albany e-mail: [email protected] Philip C. Weis RPL Requires Disclosure Statement Associate Editor 52 Oceanside
EDITORIAL OFFICES EPARTMENTS One Elk Street D Albany, NY 12207 President’s Message ______5 New Members Welcomed ______59 (518) 463-3200 Point of View ______54 Index to Advertisers ______61 FAX (518) 463-8844 by Robert P. Borsody 2001-2002 Officers ______63 ADVERTISING REPRESENTATIVE Language Tips ______56 The Legal Writer ______64 Network Publications by Gertrude Block by Gerald Lebovits Sheri Fuller Classified Notices ______58 10155 York Road, Suite 205 Crestridge Corporate Center Hunt Valley, MD 21030 O N T HE C OVER (410) 628-5760 e-mail: [email protected] This month’s cover highlights the new Tanbook that the New York State court system has published, together with three other stylebooks that compete for the allegiance ON THE WORLD WIDE WEB: of law students, legal scholars and lawyers when they need to cite their sources. http://www.nysba.org Cover design by Lori Herzing.
The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all cita- tions and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2002 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, Sep- tember, October, November/December. Single copies $18. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. Journal | March/April 2002 3 ob negotiated the channel he “I thought they give you seven or had created through the tower- RESIDENT S ten years to pay that off.” Bing banks of snow, a six-foot P ’ “Yes,” Effie replied, “but starting evergreen slung over his shoulder. ESSAGE salary for an assistant state’s attorney He stamped the packed snow off his M is only $29,000 a year.” boots. “Help me get this set up, will Bob held his tongue. Three years ya, Effie?” earlier, he had gently suggested that The Gundersons, now celebrating Effie turn down her offer at Chicago their 40th year together, swiftly had and attend the University of North their tree standing perfectly upright Dakota Law School over in Grand in its usual location by the front win- Forks for one-fourth the cost. Effie dow. Even though Effie had been in had been accepted at the University Chicago attending law school for the of Chicago and insisted on attending. better part of the past 22 months, and “We could sell the farm and get a faced a series of final exams in early small place down in Williston.” Bob, January, she had come home for the like Effie, had lived in the small town holidays. of Winston, North Dakota, his whole “Bob?” life, and didn’t intend to end his days Bob had settled into his easy chair, in an apartment over the Rexall in where he glared at the steely gray bustling Williston. glow of the old Emerson. As usual, Effie pounced on Bob. “I’m not he pretended not to have heard his going to sell this farm. There have wife’s page. been Lundegaards living here since “BOB? I am addressing the liv- pioneer days, and I’m not going to be ing?” STEVEN C. KRANE the one to break the chain.” Effie “Yes, Effie.” Bob diverted his at- fully expected that the farm would tention from his daytime dramas. Gunderson, Esq. pass to their daughter, Jeanne, and “What did those bar fellows do son-in-law, Carl Rolvaag. “Besides, if now?” He knew that his wife, soon hoping to become a we sell this place we won’t get the full-fledged practicing lawyer, had not lost her passion government subsidy anymore, and then we’ll really be for the fine art of reading bar journals. in a pickle.” “It’s not the bar fellows, Bob, this time. This is about “This is a tough one. But you can’t be the only person my career.” in this position. What do other law students do when Bob’s ears perked up. “What about your career?” they want to take jobs like this and have lots of student loans to pay off?” “I have a serious problem, Bob, and I don’t know how to solve it.” Effie paused for a moment. “You’re right. I’m not alone. A lot of my classmates want to go into govern- “We’ve been through an awful lot together, Effie. I’m ment service or public interest law, and just can’t afford sure we can figure out what to do. What’s the problem?” it. And they’re not as well off as we are. We’ve got a Effie took a deep breath. “I’ve been offered that job I place to live rent-free, except for the taxes and upkeep.” interviewed for, working in the state’s attorney’s office “So how can they take the jobs they want?” down in Williston. I can be a prosecutor.” “They can’t. They go into private practice and try to “That’s not a problem, Effie. That’s great! That’s what save enough money to pay off their loans, and then you always wanted to do. Congratulations!” hope they can do what they wanted to in the first place.” “Save it, Bob. I don’t think I can take the job.” Effie was always the optimist, always with a “can “Why not?” do” attitude toward the problems of the world. But this “Well, you know how much three years cost me at time she was stumped. She explained to Bob that her the University of Chicago Law School.” salary wouldn’t cover her loan and transportation costs “I do.” Bob nodded. They owned the farm free and to Williston. This time, Bob played the optimist. “I can’t clear, and the subsidy he received from the government believe there isn’t an answer to this. Let’s check the In- paid their living expenses but not much more. ternet.” “It cost over $120,000, not counting travel to and from, and now I’ve got all that in student loan debt to Steven C. Krane can be reached at 1585 Broadway, New pay off.” York, N.Y. 10036
Journal | March/April 2002 5 PRESIDENT’S MESSAGE “You bet it is. Not everyone’s as lucky as we are. We Within moments Bob, who had spent many lonely haven’t been rich, but we’ve worked hard and have al- mornings and evenings (afternoons were occupied) ways been comfortable.” surfing the net while Effie was off at school, quickly Bob began to sing. “If I had a million dollars . . .” found the University of Chicago Law School Web site, “Don’t sing, Bob,” Effie said sharply. and was reading aloud the page entitled “Loan Defer- ment Forgiveness Program.” Effie would probably be el- The couple settled into their usual routine, Bob at the igible at least in part for interest-free loans from the TV and Effie at her desk, reading intently. school to help pay off her loans, and depending on how Later, the Gundersons sat down for dinner. Effie was long she stayed in public service, part or all of the loans no longer the gravely concerned law student she had could be forgiven. Effie seemed to breathe a sigh of re- been earlier in the day. “So I guess I’ll call the state at- lief. torney’s office and accept their offer. You know Bob, I al- It turned out that there were a fair number of law ways dreamed of being a prosecutor.” school loan deferment and forgiveness programs, about “And you’ll be a great one, Effie, I know that. But you 50 nationwide. Only a handful of states—five—had always know everything. If you knew all that about statewide programs for law students interested in pub- loan forgiveness programs, and all that stuff about lic service or public interest practice. what’s going on in New York, how come you didn’t “You know, Bob, I read that the New York State Bar know about the loan forgiveness program at school?” Association . . .” Effie slipped into her wry smile. “You caught me. I “Here we go.” knew all about it. I just wanted to see if you could find Effie barely missed a beat, “. . . is working on a it with all your Web surfing.” statewide student loan assistance program. They have a Bob swallowed his meat loaf and looked at Effie with Special Committee on Student Loan Assistance for the mock disapproval. “Love ya, Effie.” Public Interest, headed up by a fellow named Hank Greenberg from Albany. He was the general counsel of “Love ya, Bob.” the New York State Department of Health, so he knows first-hand how hard student loan debt burdens make it for recruiting young lawyers into government service. He was also a judicial law clerk and an assistant U.S. at- Informed torney, so he’s been a public service lawyer for most of his career. And the committee has members from law schools, legal aid offices, government law offices, bar Consumers Make associations, the judiciary and private practice. It’s re- ally quite a high-powered group.” Better Clients Effie continued. “They’re working on something Legal Ease Brochure Series From called the New York Loan Repayment Assistance Pilot The New York State Bar Association Program that will raise money from the big law firms and other contributors and distribute it to New York lawyers working in public interest or public service NEW YORK STATE BAR ASSOCIATION 13 titles on topics your clients jobs. It would work much the same as the school pro- Adoption need to know...written by experts gram, except that it would also help students in schools in New York from NYSBA’s Sections.
NEW YORK STATE BAR ASSOCIATIO Put them to work for that don’t have repayment assistance programs of their ith N Published in cooperation w ent the New York City Departm for the Aging your firm. own.” Rights of “I guess that’s good even for students in schools that Residential Owners and do have assistance programs,” Bob observed, “since Tenants For more information, call they don’t guarantee that they’ll have enough money to go around.” 800-582-2452 or “That’s right, Bob. Maybe programs like this will 518-463-3724 even help solve the problem that we have nationally Mention Code MK067 with inadequate legal services for the poor. Did you ® know that nearly 40 million Americans live below the poverty level? And that over 80 percent of their civil legal needs are not being met?” “I didn’t, Effie. That’s pretty serious.”
6 Journal | March/April 2002 New Edition of State’s “Tanbook” Implements Extensive Revisions In Quest for Greater Clarity
BY GERALD LEBOVITS
uestion: What’s tan and black and should be the Appellate Division) for book publication (Judiciary read all over? Answer: The Official Edition New Law §§ 431-432; 22 NYCRR part 7300) and online publi- QYork Law Reports Style Manual 2002, effective cation (
8 Journal | March/April 2002 All legal writers should care about citing and cita- But if you practice in or work for the New York State tions. Citations explain, justify, and persuade—or not, as court system, then you live and die by the Tanbook. the case may be. Citations contain the information nec- The Tanbook? It wasn’t always tan. When it came out essary to find and read the material. And good citing in 1956, it was dark blue. It turned dark green in 1959. It impresses readers. Citing is like bread at a restaurant. It was tan in 1963 but light blue in 1969 and stayed that won’t make the meal. But you’ll know whether the meal way in 1974, only to become yellow in 1977. It was light will be good by the bread you’re served. green with a red panel in 1981, 1983, and 1985. Like a There are nearly as many citation formats as there are chameleon, it changed to tan in 1987 and remained so in varieties of bread at restaurants. If you’re a sentient 1992, 1996, 1997, and 1998. It’s tan again in 2002. lawyer under 120 years old, you’ve heard of the Blue- The Tanbook is New York’s Official Style Manual. It’s book, established in 1926, which over the years has been New York’s version of the California Style Manual. The olive green, brown, white, and light blue. In its current LRB wrote it to guide New York judges and their staffs 2000 edition, it’s royal blue. (See The Bluebook: A Uni- in drafting judicial opinions. It dictates the style the LRB form System of Citation [Columbia L Rev Assn. et al. uses to edit opinions for publication in the Official Re- eds, 17th ed 2000]; Bluebook Home Page
Journal | March/April 2002 9 Many trial judges in New York don’t cite according to • That is the law. (United States v Gridley, 725 F Supp the Tanbook, although all appellate judges do. Many 398 [ND Ind 1989].) Or New York trial judges and their law clerks have never • That is the law, according to United States v Gridley even heard of the Tanbook. (725 F Supp 398, 402-403 [US Dist Ct, ND Ind]). Or Some who are aware of the Tanbook dislike it. It’s got • That is the law, according to United States v Gridley parentheticals and brackets, it’s not keen on periods or (725 F Supp 398, 402-403 [ND Ind]). Or apostrophes, and it leaves a good deal to the writer’s • That is the law, according to United States v Gridley discretion. It doesn’t impress law-review types, who as- (725 F Supp 398). Or sume that those who cite according to the Tanbook • That is the law, according to United States v Gridley didn’t make law review and thus weren’t inculcated in (725 F Supp 398, 398-399 [ND Ind 1989, Sharp, Ch. J.], the Bluebook. Until the 2002 Tanbook, New York’s way affd 909 F2d 1486 [7th Cir 1990], cert denied 499 US 951 of citing was so archaic that it didn’t pay to learn the for- [1991]). mulas. Below are four 2002 Tanbook statutory-citation op- Below are some 2002 Tanbook case-citation options tions, from section 3.1 (b) (2). The first two are citations for New York case law, adapted from section 1.2 (c) (2). in parentheses. The second two are citations in running The first 8 of the 12 examples are citations in parenthe- text. ses. The last four are citations in running text. The rule • That is the law (Town Law § 199 [1], [3]). Or on including, in brackets, optional case-citation infor- • That is the law. (Town Law § 199 [1], [3].) Or mation like the deciding forum, judge, and date (section • That is the law, according to Town Law § 199 (1), (3). 2.2 [a] [1] [g]) hasn’t changed from the old to the new Or Tanbook. But, according to the 2002 Tanbook’s Preface, • That is the law, according to subdivisions (1) and (3) “[t]he rule * * * * has been restated to make clear that of Town Law § 199. such information may be included when desired.” As non-standard as the Tanbook is, however, it’s a • That is the law (People v Moran, 91 NY2d 1010). Or great deal better for New York authorities than the Blue- • That is the law (see People v Moran, 91 NY2d 1010). Or book or ALWD. • That is the law. (People v Moran, 91 NY2d 1010.) Or • That is the law. (See People v Moran, 91 NY2d 1010.) Or Bluebook v Tanbook • That is the law (People v Moran, 91 NY2d 1010 [1998]). The Bluebook is confusing and unhelpful—doubtless Or about many things, say those with the Bluebook blues. • That is the law. (People v Moran, 91 NY2d 1010 [1998].) (See e.g. Maureen B. Collins, Legal Communication, Or Bluebook Blues: Changes in the Seventeenth Edition, 88 Ill BJ 663 [Nov. 2000]; A. Darby Dickerson, An Un-Uniform • That is the law (People v Moran, 246 AD2d 607, 607- System of Citation: Surviving with the New Bluebook (In- 608, lv denied 91 NY2d 1010). Or cluding Compendia of State and Federal Court Rules Con- • That is the law. (People v Moran, 246 AD2d 607, 607- cerning Citation Form), 26 Stetson L Rev 53 [1996].) The 608 [2d Dept 1998, mem], lv denied 91 NY2d 1010 [1998].) Bluebook is especially unhelpful when it comes to New Or York citations. • That is the law, according to People v Moran (91 NY2d One can study the Bluebook for years—as many law 1010). Or students do—before realizing that it distinguishes be- • That is the law, according to People v Moran (91 NY2d tween citing New York cases in general and citing them 1010 [1998]). Or for New York courts. In the Bluebook’s most recent edi- • That is the law, according to People v Moran (246 tion, the seventeenth, we’re told in the section on New AD2d 607, lv denied 91 NY2d 1010). Or York materials (T.1) (pages 217–218) to cite current • That is the law, according to People v Moran (246 Court of Appeals opinions only to West Group’s unoffi- AD2d 607 [2d Dept 1998, mem], lv denied 91 NY2d 1010 cial NE and NYS2d reporters, not to NY2d. Then we’re [1998]). told to cite current Appellate Division cases to the unof- Below are six 2002 Tanbook case-citation options for ficial NYS2d, not to AD2d, and to cite current opinions federal case law, adapted from section 2.2 (b) (2). The from courts lower than the Appellate Division to first two are citations in parentheses. The last four are ci- NYS2d, not to Misc 2d. This advice violates several New tations in running text. The Tanbook lets the writer alter York rules. (See CPLR 5529 [e] [requiring that “New this citation in at least a dozen other ways to add op- York decisions * * * be cited from the official reports, if tional information. any”]; Rules of Ct of Appeals [22 NYCRR] §§ 500.1 [a], • That is the law (United States v Gridley, 725 F Supp 500.5 [d] [3], 510.1 [a]; Rules of App Div, 1st Dept [22 398). Or CONTINUED ON PAGE 12
10 Journal | March/April 2002 CONTINUED FROM PAGE 10 Compare the Tanbook’s simplicity and accuracy with NYCRR] § 600.10 [a] [11]; Rules of App Div, 4th Dept [22 the Bluebook’s version of citing the New York Law Jour- NYCRR] § 1000.4 [f] [7].) nal. Bluebook rule 10.1 (page 56) tells us to cite the Law Journal as follows, with a space between N.Y. and L.J.: Hidden at rule 10.3.1 (a) (page 62) and Practitioners’ Charlesworth v. Mack, N.Y. L.J., Dec. 5, 1990, at 1 (D. Notes rule P.3 (page 14) is the Bluebook’s directive for Mass. Dec. 4, 1990). This made-up citation is obviously those who write briefs to New York State courts. The made up. The Law Journal does not print federal opin- Bluebook tells New York practitioners to cite thus, with ions from Massachusetts, and because the Law Journal parallel pinpoint (jump) citations: People v. Taylor, 73 does not give decision dates, New York State law clerks N.Y.2d 683, 690, 541 N.E.2d 386, 389, 543 N.Y.S.2d 357, suffer regular telephone calls from Bluebookers asking 360 (1989). This directive is directionless. New York for needless decision dates for opinions published in the judges, citing according to the Tanbook (section 2.2 [2] Law Journal. But it gets worse. Bluebook rule 16.5 (page [a]), will not use an unofficial reporter if an Official Re- 120), contradicting earlier advice (and its rule about cap- ports citation is available. Most New York State judges italizing the preposition “to” in a title), tells readers to aren’t even given West Group’s unofficial reporters. Tax- cite the Law Journal as follows: New York County Lawyers payers don’t pay for them. But all judges of courts of Association: Edwin M. Otterbourg To Represent the Associa- record in New York get the Official Reports. (Judiciary tion in House of Delegates of American Bar Association, 124 Law § 434 [6].) N.Y. L.J. 1221 (1950). The Bluebook’s obscure, consecu- Giving parallel New York citations serves only to tively paginated NYLJ citation is nearly impossible to help adversaries find your citations more easily—a pro- find. fessional courtesy, but ethically unnecessary—and bill The Bluebook can make a New Yorker blue in the clients for needless research. (See e.g. Disenhouse Assoc. v face. Rule 10.4 (b) (page 66) provides as follows: “Do not Mazzaferro, 135 Misc 2d 1135, 1137 n * [Civ Ct, NY indicate the department or district in citing decisions of County 1987, Friedman, J.] [urging attorneys to cite the intermediate state courts unless that information is of Official Reports in their papers and briefs to trial particular relevance.” This is the Bluebook’s example: courts], citing CPLR 5529 [e].) Giving parallel citations Schiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. 1944). The for New York cases will not help a New York State court. only problem with this guidance on New York law is Besides, it’s a principle of honesty in citing that writ- that it’s all wrong. First, it’s always relevant for legal ers use what they cite and cite what they use. (See e.g. writers to denote the “department or district.” Indeed, Paul Axel-Lute, Legal Citation Form: Theory and Practice, the rebellion against rule 10.4 (b) is the reason St. John’s 75 Law Lib J 148, 149 [1982].) Differences sometimes ap- compiled its New York Rules of Citation. According to pear between the authoritative Official Reports and the page 9 of the Rules of Citation, “Contrary to rule 10.4(b) unofficial reports because court-annexed editors like of The Bluebook: A Uniform System of Citation (17th ed. New York’s LRB often edit slip opinions after slip opin- 2000), it is the policy of the St. John’s Law Review to give ions are published unofficially. Sometimes private pub- as complete information as possible when citing New lishers conform to the final, official source; sometimes York authority.” Second, the cited Schiffman case isn’t they don’t, especially for lower-court opinions. Writers from an intermediate state court. The Bluebook’s Schiff- who give parallel citations but take their quotations man citation is from a court of first instance: Supreme from the unofficial reports may misquote. That’s an- Court, Special Term, New York County. And third, an other reason to cite only the Official Reports in New intermediate court really did decide Schiffman. York, a Tanbook directive the Bluebook contradicts. The Appellate Division, First Department, a New York intermediate court, affirmed in Schiffman, the The Tanbook gives correct, straightforward, easy-to- Court of Appeals reversed, and the United States follow advice. Telling the reader at section 7.1 (b) that Supreme Court denied certiorari. The Bluebook should “the full names of authors is optional,” the Tanbook ex- therefore have given a rather different citation, consis- plains how to cite New York Law Journal articles in a ci- tent with its own Practitioners’ Notes and accurate legal tation in parentheses: (Spencer, Court of Appeals Caseload research: In re Schiffman v. Corsi, 182 Misc. 498, 50 Shifts, NYLJ, May 2, 1991, at 1, col 3). At section 2.2 (a) N.Y.S.2d 897 (Sup. Ct. N.Y. County), aff’d mem. sub (2) (c), the Tanbook tells you how to cite Law Journal nom. In re Schiffman v. Murphy, 268 App. Div. 765, 50 opinions in parentheses: (Tryon v Westermann, NYLJ, N.Y.S.2d 132 (1st Dep’t 1944), rev’d sub nom. Schiffman Oct. 6, 2000, at 30, col 5 [Sup Ct, Nassau County, Austin, v. Corsi, 294 N.Y. 305, 62 N.E. 81, cert. denied, 326 U.S. J.]). On the other hand, the Bluebook is internally incon- 744 (1945). Of all the examples the Bluebook could have sistent and wrong when it comes to citing New York au- picked, it picked one that has quite the intermediate thorities. CONTINUED ON PAGE 14
12 Journal | March/April 2002 CONTINUED FROM PAGE 12 view articles. ALWD’s New York errata sheets, accessi- ble at
14 Journal | March/April 2002 “Inc.” after “Co.” The Tanbook would cite the case as (Appendix 1) (page 361): N.Y. Misc. 2d, as in 60 N.Y. follows in running text: Kozemko v Griffith Oil Co., Inc. Misc. 2d 60. Follow that advice and you’ll be labeled a (256 AD2d 1199 [4th Dept 1998, mem]). novice who doesn’t realize that New York judges know The next example from ALWD (rule 12.6 [e]) (page that the Miscellaneous Reports contain cases from New 76) is a parallel citation: People v. Hackett, 228 A.D.2d 377, York only. ALWD gives you good advice if you’re from 646 N.Y.S.2d 89 (1st Dept. 1996). The Tanbook would Rome, Italy, but poor advice if you’re from Rome, New make the running-text citation more simple: People v York. Hackett (228 AD2d 377 [1st Dept 1996]). Except in general terms in Appendix 1 (page 361), The last example from ALWD (rule 12.11 [b]) (page moreover, ALWD doesn’t tell you how to cite a New 84) reverts to the unofficial reporter only: Harrison v. York statute. That’s a good thing, for ALWD’s advice in Alago, 608 N.Y.S.2d 118 (App. Div. 2d Dept. 1993) Appendix 1 mirrors the Bluebook’s turgid advice (T.1) (mem.). ALWD’s citation will raise a New York judge’s (pages 219–221). The Tanbook’s simple CPL 10.20 cita- eyebrows because it fails to include the official citation tion becomes, in both the Bluebook and ALWD, a com- and because it presumes that the judge doesn’t know plex N.Y. Crim. Proc. Law § 10.20 (McKinney 1992 & Int. that the Second Department is part of the Appellate Di- Supp. 2001-2002) or equally complex citations from vision. ALWD’s citation also contradicts ALWD rule Consolidated Laws Service or Gould’s New York Con- 12.2 (o) (pages 65–66), which tells you to include “In re” solidated Laws Annotated. in a case name and to replace “Matter of” with “In re.” The one time ALWD gives a specific example of a Harrison is an “In re.” The Tanbook would cite the case New York court rule, ALWD makes it difficult to find as follows in running text: Matter of Harrison v Alago (199 the citation: ALWD doesn’t give the location of the court AD2d 562 [2d Dept 1993, mem], appeal dismissed & lv de- rule. From ALWD (page 150): N.Y. Code Prof. Resp. DR nied 83 NY2d 831 [1994]). 4-101(c)(2) (1999). From a running-text citation in the ALWD was written by non-New Yorkers for non- Tanbook (section 4.1 [b] [5] [b]): Code of Professional Re- New Yorkers. It tells us to cite the Official Miscellaneous sponsibility DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]). Reports (although it doesn’t tell us when) as follows The Tanbook’s authors know that the Disciplinary Rules
Journal | March/April 2002 15 are binding because the departments of the Appellate In section 12.1, the new Tanbook has an updated sec- Division adopted them, and therefore that the Rules are tion on gender-neutral writing, based on, but better in the Appellate Division’s Rules. ALWD doesn’t know than, a court-system booklet, New York State Judicial about that stuff. Committee on Women in the Courts, Fair Speech: Gen- Both the Bluebook and ALWD are brilliant docu- der-Neutral Language in the Courts (2d ed, NY St Uni- ments, the product of years of thought and sacrifice. fied Ct Sys 1997). The Tanbook is progressive and intel- They’re exceptional when it comes to citing federal, in- ligent on the subject. For example, it turns “foreman” ternational, and foreign authorities. Indeed, in the Pref- into “presiding juror,” not the trite “foreperson.” ace to the 2002 edition, the Tanbook itself suggests con- Throughout the new Tanbook, moreover, are sophis- sulting the Bluebook and ALWD if the Tanbook doesn’t ticated ways to cite CD-ROM and Internet materials, in- answer a question. But the Bluebook and ALWD don’t cluding cases reported on the Law Reporting Bureau’s cite New York sites properly. When it comes to citing Slip Opinion Online Service, accessible from the LRB at New York authorities, the Bluebook and ALWD remind
16 Journal | March/April 2002 and brackets detract and use up space the LRB could that it should be settled correctly.’” (Bryan A. Garner, use to publish more opinions. In its massive revision, Book Review, An Uninformed System of Citation: The Ma- why didn’t the LRB get rid of those parentheses? All roon Book Blues, 1 Scribes J Legal Writing 191, 191 [1990] that parentheses do is throw readers a curve. The an- [arguing that it’s “wrong to discount the importance of swer is stare citatis: not everything can change in one a uniform method of citing legal authority,” id. at 193], swoop. As State Reporter Spivey explained, quoting Gilman v City of Philadelphia, 70 US [3 Wall] 713, 724 [1865].) Let’s hope that the next Tanbook eliminates “Although this revision is extensive, we exercised re- straint in changing established rules. Judges and their the current Tanbook’s almost-limitless discretion. staffs, and our own staff, are familiar with the existing One area in which the 2002 Tanbook judiciously gives rules, and a change in rules requires re-learning. We writers discretion is in citational footnotes. Some like ci- didn’t want to burden anyone unnecessarily. So we con- tations in footnotes; others don’t. (Compare Bryan A. fined our rule changes to those areas most in need of re- Garner, Clearing the Cobwebs from Judicial Opinions, 38 form. The Style Manual is a work in progress, and I Court Review 4 [Summer 2001], and Bryan A. Garner, hope that we will be able to address additional problem areas in the future. For now, I’m satisfied that we have The Citational Footnote, 7 Scribes J Legal Writing 97 [1998- made a course correction and are headed in the right di- 2000], with Richard A Posner, Against Footnotes, 38 Court rection.” (E-mail from Hon. Gary D. Spivey to author, Review 24 [Summer 2001], and Helen A. Anderson, Are Feb. 21, 2002.) Citations on the Way Down? The Case Against Footnotes Journal | March/April 2002 17 18 Journal | March/April 2002 Survey of Practice Before Administrative Law Judges Finds Counsel Are Often Poorly Prepared BY BEVERLY M. POPPELL he likelihood that attorneys will represent a client “Very few attorneys bother to review the Adminis- in an administrative law proceeding sometime in trative Code of the City of New York and the Rules of Ttheir careers is great. The chance increases with the City of New York as they relate to administrative every law the state or local legislature passes. hearings in general and the substantive law and rules in Whether it’s an appeal of a tax assessment, a claim of particular,” she said. Procedurally as well, Judge Miller discrimination for any number of statutorily prohibited observed that attorneys are simply not prepared to go grounds, or an appeal of a consumer complaint against forward; instead they assume that their cases can be ad- a licensed business or professional client, chances are journed without good cause. good that an attorney will need to be familiar with at Failure to prepare for a hearing is a common mistake least one administrative law forum. that James F. Horan singled out from his experience A survey by the Subcommittee of Administrative with the New York State Department of Health. An ad- Law Judges of the Committee on Attorneys in Public ministrative law judge hearing disciplinary charges Service, a standing committee of the New York State Bar against physicians and other health care professionals, Association, has assessed the quality of legal represen- Judge Horan estimated that more than half the attor- tation by practitioners who have appeared before a neys who appear before his agency are new to the cross-section of administrative law judges (ALJs). The forum. They are often lacking in familiarity with the judges also offered their own views on the administra- State Administrative Procedure Act (SAPA) and with tive law process itself and how it produces the determi- hearing provisions that are promulgated in the control- nations often heard on appeal. ling statute and by the agency itself. Beyond unfamiliarity with governing regulations, The survey responses identified the most common Judge Horan said some attorneys are also unfamiliar mistakes attorneys make when handling matters in the with the substantive language at issue. “An attorney administrative law forum, the ethical dilemmas that should remember that the same word can embody dif- often arise, and the effect of the presence of pro se liti- ferent legal definitions in different contexts,” he ex- gants in the administrative law forum. The quality of plained. written submissions was also discussed. Finally, the ALJs were asked to assess the level of civility present in “For example, under New York Education Law, their hearings. specifically sections 6530(3) and (4), the definition of professional misconduct by a physician includes prac- Common Mistakes ticing with negligence on more than one occasion or “The most common mistake is to appear unpre- practicing with gross negligence. To prove negligence pared,” said Karen Miller, administrative law judge at CONTINUED ON PAGE 22 the New York City Department of Consumer Affairs. That agency regulates the conduct of business in the City of New York. It also hears consumer complaints, BEVERLY M. POPPELL, a member of the imposes fines, and orders restitution where appropriate. ALJ Subcommittee of the NYSBA’s Her agency has the authority in certain cases to sus- Committee on Attorneys in Public Ser- vice, serves as a labor relations neutral pend or revoke licenses, order businesses to be “pad- adjudicating municipal labor relations locked,” and order vehicles used unlawfully to be for- disputes. She is a graduate of New feited to the city. “Unfortunately, not all representatives York University and received her J.D. who appear before us understand the possible remedies from Touro Law Center. and may not address the appropriate issues,” she ob- served. 20 Journal | March/April 2002 CONTINUED FROM PAGE 20 often evident in the attorney’s failure to develop facts on under the Education Law requires a showing that a which the case rests, a failure that can be dispositive of physician failed to exercise care that a reasonably pru- the matter. dent physician would exercise under the same circum- Written Submissions stances, but it requires no showing that a physician Factual deficiencies of the sort described by Judge caused harm to a particular patient, in contrast to com- Gombinski in City Tax Appeals are also seen at the pre- mon law negligence.” hearing stage at the New York City Office of Collective Lack of preparation is a common problem regardless Bargaining (OCB), which administers the New York of whether an attorney who appears before the New City Collective Bargaining Law. The Collective Bargain- York City Parking Violations Bureau (PVB) does so reg- ing Law is similar to the New ularly or not, according to York State Public Employees Irwin M. Strum, an adminis- Most arbitrability, "scope," and Fair Employment Law (“Tay- trative law judge with the lor Act”), which is adminis- city’s Department of Fi- improper practice petitions can tered by the New York State nance. Although his agency’s Public Employment Rela- hearings are relatively infor- be determined without a trial, tions Board (PERB). The OCB mal, the Commercial Adjudi- because there is no factual hears matters pertaining to cations Unit handles a high procedural arbitrability of number of summonses, and dispute on a material legal issue. contractual grievances, issues the respondents are commer- declaratory rulings with re- cial companies frequently spect to the bargainability of subjects in dispute, such as represented by counsel, either alone or in conjunction changes in employee scheduling, benefits with mone- with a ticket broker who must be represented by coun- tary implications, and safety issues, to name a few, and sel. Attorneys also appear before appeals panels and at empanels arbitrators who hear breach-of-contract license reinstatement and fraudulent registration hear- claims and certain claims of impasse in the collective ings. bargaining process. This is in addition to certifying bar- Marshaling proof in those hearings is a problem, ac- gaining units, resolving representational questions, and, cording to Judge Strum. “Some attorneys attempt to tes- perhaps the bulk of its work, adjudicating unfair labor tify as to facts to which they have no personal knowl- (“improper”) practice claims. edge without producing any actual witness,” he said. A failure to specify factual allegations in improper Judge Strum’s colleague at the PVB, Judge Stephen practice pleadings under OCB jurisdiction can result in Jackel, added that attorneys who practice before him dismissal of the petition on grounds of legal insuffi- often “fail to appreciate that evidentiary rules are much ciency, without so much as a hearing. Practitioners un- less restrictive in administrative hearings than in court.” familiar with OCB practice and procedure, and even In Judge Jackel’s experience, attorneys who appear be- some who have been practicing before the OCB for fore him are generally unfamiliar with the relevant years, erroneously believe that their clients are entitled statutes and administrative rules as well as the process to a hearing. of adjudicating parking summonses. Another problem Most arbitrability, “scope,” and improper practice pe- he has experienced involves attorneys who are “overly titions can be determined without a trial, because there is argumentative” and attempt to reargue an issue after no factual dispute on a material legal issue. But even the ALJ has issued a ruling. when such a factual dispute exists, some practitioners, Elizabeth Gilbert, a senior administrative law judge particularly those unfamiliar with the agency’s practice at the PVB, made a similar observation. She noted that of not holding hearings in every case, fail to plead the under section 240(2)(c) of the New York State Vehicle case with sufficient specificity even to warrant a hearing. and Traffic Law, her tribunal is not bound by the rules of By contrast, Jackie Brilling, an administrative law evidence in the conduct of the hearing, except for the judge at the New York State Public Service Commission rules relating to privileged communications. “Attorneys (PSC), said the written submissions she sees are volumi- who are not familiar with this provision often make un- nous and of high quality. That may have something to necessary objections to evidence,” she explained. do with the fact that, as Judge Brilling described it, At the New York City Tax Appeals Tribunal, Steven “public utility regulation entails highly technical, com- Gombinski, the chief administrative law judge, said he plex issues and public policy considerations affecting sees practitioners who are unprepared to defend their local, state, and federal entities and consumers. Neces- case even at the pre-hearing conference. Judge Gombin- sarily, practitioners before the Commission are highly ski reported that poor preparation for the conference is paid and technically proficient.” 22 Journal | March/April 2002 Cathy Bennett, an administrative law judge with the New York State Division of Tax Appeals, reported that the quality of written submissions she sees is “all over The View the board in our cases, from taxpayer, pro se handwritten From the Supreme Court scribble, to very professional briefs, and everything in between.” At Tax Appeals, the taxpayer, rather than the As part of its effort to review the status of legal Tax Department, bears the burden of proof that an as- representation before administrative law tribunals, sessment is erroneous, except in cases of suspected the Committee on Attorneys in Public Service sought fraud. Regardless of the quality of the written submis- observations from members of the bench about the sion, Judge Bennett said, respondents often neglect to quality of ALJ determinations when they become the bring courtesy copies of the papers they intend to sub- subject of appeals, and the quality of the legal repre- mit as evidence. In remote locations of the state where sentation as shown in the record. copiers may not be readily available, “that becomes a Justice Helen E. Freedman of the Supreme Court problem,” she explained. in New York County has presided over numerous New York City’s Tax Appeals Tribunal deals with special proceedings under Article 78 of the Civil highly specialized areas of income and excise taxation, Practice Law and Rules, the article governing judicial which Judge Gombinski admits can be “quite difficult review of administrative determinations. Top among for the general practitioner.” As Judge Bennett has her comments was the observation that she often found on the state level, Judge Gombinski also said he finds a lack of clear findings of fact, or “what they are finds that the quality of written submissions varies based on.” In many cases, she said, determinations “greatly, which is a shame,” because “a quality submis- appear to have been “hastily decided” or made with- sion that, for example, sets forth a legal argument the out the ALJ having listened carefully to the peti- ALJ might otherwise not have considered, could greatly tioner. benefit a party’s case.” “What I look for are ALJs who really listen to what Judge Miller at the New York City Department of the petitioner says and who give petitioners, particu- Consumer Affairs said the problems she sees with the larly pro se petitioners, a chance to present his or her written submissions appear to be traceable to unfamil- case,” she said. “We recognize that it’s hard to deal iarity with the forum. “We sometimes receive excellent with pro se petitioners and not appear biased” when submissions and at other times receive submissions enabling the petitioner to present his or her case. which are grossly inadequate. For example, some attor- neys are still not aware that hearsay is not only admissi- Asked for practical advice that might be helpful to ble in an administrative hearing, but if sufficiently reli- administrative law practitioners, Justice Freedman able, can be the basis for a decision.” urged practitioners to “help the ALJ make a clear Some of the written submissions to Consumer Affairs record” and ALJs to encourage both sides to put into come from non-attorney representatives who, under the evidence “whatever documentation is needed to ex- Rules of the City of New York, are permitted to appear plain what transpired as clearly as possible.” “The before the agency on behalf of clients. “Some of these record is important,” she emphasized. “If there is a non-attorney representatives not only argue facts but lack of clarity in the [ALJ’s] decision, ask for clarifi- argue law and even submit legal memoranda, citing cation before the determination is appealed.” cases, statutes and principles of law,” Judge Miller said. Finally, Justice Freedman said she advocates ef- She is “quite concerned” about what she describes as forts to have parties settle their own disputes. “Often, the unauthorized practice of law, in part because of the the decisional resolution in court is not satisfactory to extent to which non-attorneys are involved in the the parties. I would recommend mediation any process at Consumer Affairs. time,” she said, expressing the belief that “many While Carol Abrams reported that the quality of writ- more cases would be resolved if mediation were ten submissions to code-enforcement ALJs at the New tried,” especially in areas such as social services, York City Department of Housing Preservation and where petitioners are likely to proceed pro se. Development is “good,” the ALJs in the New York City Department of Finance reported that written submis- sions in PVB cases, although rare, nonetheless range as “very good” to “extremely bad,” with the majority as from “excellent” to “incomplete,” “poorly written,” and “fair to lacking.” His observation was reiterated by “lacking sufficient detail and without full research Judge Horan, who said he finds “very few written sub- and/or proper citation.” missions helpful” in preparing decisions. At the New York State Department of Health, Judge “Attorneys often miss the point in the case and too Marc P. Zylberberg described the range of submissions often use written submissions to attack their adversaries Journal | March/April 2002 23 rather than arguing their cases,” Judge Horan ex- such as laying a foundation for the introduction of a plained. “I see very professional looking briefs that document, is often a confusing area,” she noted. waste lots of pages setting out the citations to case law “Responsibility for dealing with pro se and non-attor- that guarantees due process in administrative hearings ney litigants falls on the ALJ rather than the attorney for or that goes into too much detail in discussing the re- the other party,” said Judge Horan. When he presides in view standards in a case. These same briefs then ignore a Department of Health case with an attorney and non- or gloss over case law directly on point to the particular attorney litigant, he said the attorney can expect him to issues in the case and on which the case will turn.” give the non-attorney wider latitude in presenting the Judge Horan said he also sees briefs in which advo- case due to that person’s lack of experience. “No attor- cates fail to address pertinent case law cited by their ad- ney in such a case has ever expressed objection about versaries. “I have seen more than a few briefs,” he re- that wider latitude,” he observed. “Even otherwise con- called, “in which attorneys have cited cases without tentious attorneys seem to back off when they face a checking on the cases through Shepard’s or KeyCite.” non-attorney adversary.” Written submissions play a unique role in physician Ethical Dilemmas discipline cases in that counsel are afforded an opportu- Ex-parte communications are a problem that Judge nity to submit written, proposed findings of fact that Horan said he has faced with both pro se litigants and may be used by the ALJ in the drafting of the decision. parties represented by counsel. He said he believes that Yet, Judge Horan noted: “Many attorneys forfeit that avoiding such communications becomes “a crucial ele- chance by submitting what they call ‘proposed findings’ ment” in providing a fair hearing and avoiding the ap- but which instead constitute a written summation or pearance of impropriety. Pointing out that, under memorandum of law. In my agency, each finding of fact § 307(2) of SAPA, no ALJ may communicate with a party must cite to evidence from the record that supports the on an issue of fact or of law except on notice and op- finding. Some attorneys submit well-written findings portunity for all parties to participate, Judge Horan in- but provide no citation to the record to support the find- terprets the ban as permitting some one-party contacts ing. Such a proposed finding offers no help to an ALJ in when questions arise about scheduling, or procedure, or drafting a decision.” which statutes and regulations are controlling. He noted, however, that one colleague refuses any one- Pro Se Litigants party contacts even on matters other than issues of law Litigants who face the administrative tribunal with- or fact, in the belief that such a contact can “easily” be- out benefit of legal counsel require administrative law come an improper, ex-parte communication. judges to take extra steps to assure due process while When ALJ Horan is sent written material without maintaining a reasonable degree of administrative effi- copies provided to the opposing party, he assumes those ciency. This is especially true in Consumer Affairs contacts occur due to ignorance about the ban. He said where, Judge Miller said, attorneys “need to understand he sends a letter to both parties explaining the ban on ex- that the ALJ may assist the unrepresented litigant by parte contact and attaches a copy of the material he re- asking certain questions to enable her/him to present ceived. relevant facts. Such questioning is in the nature of fact- Avoiding any appearance of favoritism or impropri- finding and does not necessarily indicate a bias toward ety is also a top priority at the New York City Depart- the person who is not represented.” ment of Finance, where ALJs at the Parking Violations Judge Brilling at the PSC agreed with this approach. Bureau must recuse themselves if they know respon- She explained, “If we do our jobs correctly, there is a dents who appear before them. Even with respect to at- level playing field, such that pro se litigants do not feel torneys who frequently appear before the same ALJs in overpowered. We establish ground rules in the begin- the Commercial Adjudications Unit, ALJs said they ning of our proceedings to ameliorate problems.” guard against becoming too friendly with counsel with “Lots of patience” is how Judge Bennett described whom they often work. the special considerations given to pro se litigants before The same issue concerns OCB trial examiners in New the State Tax Appeals Tribunal. ALJs tend to take a more York City. Most of the practitioners who appear before active role in questioning the unrepresented individual, that agency have done so for many years and assume a giving procedural guidance, and initiating discussion if certain familiarity with the process and perhaps unwit- necessary, than if the individual were represented by tingly with the personnel. Although some practitioners counsel. One particular problem she noted is that tax- have been “on the scene” longer than some agency staff, payers not represented by attorneys occasionally con- trial examiners are occasionally called upon to remind fuse legal arguments with facts. “Proper proof of facts counsel that ex-parte communications are not permitted and the introduction of evidence in a proper manner, on questions of law and fact. 24 Journal | March/April 2002 Another problem OCB trial examiners said they oc- casionally face is having to disabuse practitioners of the erroneous assumption, particularly by pro se litigants A Veteran’s Suggestions and counsel unfamiliar with the process, that the OCB is a unit of the Mayor’s Office of Labor Relations. This as- A case comes to a hearing because the parties are sumption is often made because the OCB is located in unable to settle the case and need the administrative the same building as the Mayor’s Office of Labor Rela- law judge’s assistance to resolve the dispute. The tions. Not only is the OCB an impartial, non-mayoral ALJ’s job is to render a decision no matter how diffi- agency, representing neither City Hall nor labor unions, cult it may be. So says Judge Robert F. McWeeny, a but its determinations are issued in the name of the Superior Court judge in Connecticut, who for many Board of Collective Bargaining or Board of Certification. years has taught ALJs and practitioners in New York They are not mere recommendations to any commis- and New England how to improve the quality of ad- sioner. However, where these agencies share the same ministrative law proceedings. facilities, e.g., elevators, lobby, hallways, etc., preserving Having heard hundreds of appeals of administra- even the appearance of impartiality requires the hearing tive decisions issued by state agencies, hearing offi- officer to be circumspect in both the hearing room as cers, and decision-making boards, Judge McWeeny well as in informal, hallway conversations. reflected on what the savvy practitioner needs to An ethical problem that Judge Gilbert of the PVB keep in mind about the administrative hearing identified involves attorneys who simply do not know process. the applicable law. “It is unethical,” she noted, “for an “The due process requirement of an opportunity attorney to agree to represent a party without being to be heard encompasses—at the administrative competent to do so.” When an attorney without knowl- hearing level—an opportunity to present evidence edge of PVB policy and governing statutes inadver- and argument as well as to cross-examine or com- tently fails to raise a valid defense or attempts to present ment on evidence admitted against a party,” he said. an argument over which her tribunal has no jurisdic- “What is required is a fair hearing, not a perfect or ex- tion, she said she may be forced to find against the at- haustive hearing. The opportunity to cross-examine torney’s client on that point. a witness does not include the right to harass, intim- Docket Load idate, insult or wear down a witness. Volume “affects the quality of everything,” according “Administrative hearings are subject to human to Judge Miller at Consumer Affairs, including the limitations. This is especially true with respect to ev- amount of time she may devote to a case. “Dockets,” she identiary rulings. Administrative hearings are gener- said, simply “are generally too heavy.” ally not subject to the rules of evidence. It is appro- Volume is also a consideration at the Commercial Ad- priate and often necessary for a hearing officer in the judications Unit at the New York City PVB. “While one administrative setting to indicate that no argument is hearing deals with numerous summonses,” Judge required. Strum said, “each summons is a separate and unique “Courts are unanimous in holding administrative case,” placing added burden on both practitioner and hearings to a more relaxed standard of evidentiary ALJ. In spite of that, and in spite of a party’s knowledge rulings. Redundant or irrelevant evidence is not or lack of it with regard to governing law and policy, proper before the administrative tribunal, and coun- Irwin’s colleague Judge Gilbert said, “Every respon- sel to a party in such a setting can expect such evi- dent, whether represented by counsel or not, is afforded dence to be excluded. ALJs—and courts—are con- a full and fair hearing. This means that all relevant evi- stantly on the alert to avoid the introduction of dence submitted at the hearing is evaluated without re- collateral issues, those which are not necessarily re- gard to time constraints.” quired to be resolved in the case at hearing. Judge Gombinski of the Tax Appeals unit concurred, “The competent administrative law judge will stating he and his colleagues in the New York City ‘allow’ counsel to try the case, to have his or her day agency “make a great effort to afford all petitioners the in ‘court.’ However, the competent practitioner must time they require.” bear in mind that the ALJ’s obligation is to render a At the State Department of Health, Judge Horan said decision in a fair and efficient manner. If, at the out- he does not allow docket load to affect the quality of ev- set, the ALJ has articulated his or her authority and a idence he receives at his hearings. “I have never limited determination to render a fair decision, the parties any party in presenting a case due to my workload,” he are on notice as to the scope of their ‘day in court.’” explained. “I will limit attorneys if I find they are wast- ing time or asking repetitious questions.” Rather than Journal | March/April 2002 25 docket load or time constraints, Judge Horan said he be- each other during a hearing. I point out to them that no lieves that a party’s financial resources usually dictate one else in the room and no one who will review the the quality of a case. “A party with the financial re- record thereafter cares what they think about each other sources can afford the best and most thorough counsel, and that I can make no findings of fact that arise from expert witnesses, and a more exhaustive investigation,” such opinions.” he said. Problems in a hearing can also arise from objection- Similarly, Judge Brilling of the PSC said she finds that able conduct by clients, witnesses or observers. Health the quality and quantity of evidence presented at her Department hearings are usually closed. If open, they hearings are affected less by her docket load and more are usually attended by few people other than those by the expertise of the practitioners and parties who ap- with some relation to a party. If a non-party engages in pear. “Increasingly, there are more collaborative and uncivil conduct, Judge Horan said he announces that mediated disputes which, if left unresolved, affect com- the attorney for the party who has brought in the dis- petitive positions of the parties or prevent customers ruptive individual is being held responsible for that per- from receiving services or products,” she said. “Such son’s conduct. That approach is usually successful, he proceedings require the compression of much work— said. discovery, testimony, other evidentiary matters, briefs Judge Horan’s colleague at the Department of and decision-writing—into a short time frame.” Health, Judge Zylberberg, concurred that “civility must However, because of the technical nature of the dis- be addressed as soon as it is breached.” He said he has putes in the public utility arena, Judge Brilling said she found that practitioners comply readily when the ALJ is has also observed that the technical experts who partic- assertive on this point. ipate in her hearings are often more inclined than coun- Where the disciplinary hearing concerns an individ- sel to resolve disputes constructively. The non-lawyers ual under the influence of drugs, alcohol, or mental dis- tend to concentrate on finding operational or technical ease who might exhibit disruptive behavior, Judge solutions to problems rather than to engage in what she Horan said he relies on the respondent’s attorney to call calls the “posturing or positioning” that attorneys are the problem to his attention—on notice to opposing prone to exhibit. counsel—so that the Department of Health can arrange Civility for increased security at the hearing. Judge Horan con- Failure of a legal representative to exhibit civil be- ducts hearings throughout the state, often at sites with havior in a Consumer Affairs hearing never benefits a little or no security. client, in the view of Judge Miller. “Civility, or the lack At the New York City PVB, Judge Jackel said he sim- thereof,” she said, “always affects the quality of prac- ply ignores impolite and disrespectful conduct by attor- tice.” Judge Bennett agreed that she sees a direct rela- neys “so as to not unfairly penalize their clients.” He tionship between more professional conduct and a more conceded, “It is occasionally difficult since we do not orderly record on which the State Tax Appeals Tribunal have contempt powers.” Judge Strum of the PVAsaid he can base its eventual decision. has also observed disrespectful attorneys on occasion Judge Brilling concurred that mutual respect must be and said it can be a genuine problem “unless the indi- exhibited in mediation sessions at the PSC or else the vidual judge is strong enough to insist on such respect.” session will not be productive. In a litigated proceeding, Conclusion she said, she adheres strictly to a “rule of respect.” In a “I expect counsel to be honest, forthright, and pre- litigated proceeding, Judge Brilling said simply, “we ex- pared,” Judge Zylberberg said in summing up his ap- pect civility and collegiality.” proach. “The best preparation for a hearing is to know Judge Horan agrees that uncivil conduct between the rules before you arrive at the hearing. Review the counsel or by an individual attorney can “make the applicable laws, regulations, and cases of the subject ALJ’s job difficult at the very least.” Contributing to the matter. When in doubt, ask opposing counsel or have a problem is that ALJs lack contempt powers or sanction- conference call with the ALJ and opposing counsel. ing authority, but Judge Horan said he addresses bad behavior head on. “As an ALJ, I have no problem sharing my knowl- “I will not only admonish the attorney for the unac- edge of the process with counsel,” he continued. “From ceptable conduct,” he said, “I will also state that the con- the attorneys, I expect professionalism and courtesy.” duct poisons the atmosphere in the hearing room, Regardless of the subject matter, the forum, or the cir- causes delay and thus additional expense and does no cumstances, Judge Zylberberg said, expressing a senti- good for that party’s case. I find nothing quite so irritat- ment shared by all of the ALJs surveyed, “Surprises are ing or wasteful as attorneys who argue with and insult not welcomed.” 26 Journal | March/April 2002 Use of Exculpatory Clauses Is Subject to Wide Variety Of Definitions and Circumstances BY GWEN SEAQUIST AND MARLENE BARKEN veryone has seen an exculpatory clause. It may be patory clause was effective, because neither the bridge 8 on the back of your lift ticket or part of your appli- nor the race was a “place of amusement or recreation.” cation to a health club. Sometimes called a “waiver Likewise, a challenge course at a not-for-profit residence E 9 of liability,” it may include language saying that if you for needy adolescents is not a place of amusement. are injured you may not bring a lawsuit or you will not Does the statute apply when the plaintiff is injured be able to sue for negligence. By signing one, or even while participating in league or recreation sports? In paying admission to an event, it appears that you are Stuhlweissenburg v. Town of Orangetown,10 a member of a waiving rights to a lawsuit for injuries sustained on the softball team who had paid a fee to Orangetown to par- property. Interestingly, few people in New York know ticipate in league softball suffered an injury. She sued that waivers of liability at places of amusement are void. the town, claiming that the waiver was void under the This article reviews the foundation cases and at- statute. Because the plaintiff failed to produce any evi- tempts to reconcile the often-confusing cases decided in dence that she had paid a fee for admission to, or use of, the past 20 years. These issues affect both business op- the town’s softball field, the court found that GOL § 5- erators who seek to protect themselves from liability by 326 did not void the release executed by the plaintiff be- using effectively written exculpatory clauses and con- fore participating in her softball game. Presumably this sumers who wonder whether the disclaimers they en- is because the release was not in connection with or collat- counter and/or must sign as a condition to participating eral to a fee for admission, one of the requisites under the in a recreational activity are in fact enforceable. statute. The case of Bufano v. National Inline Roller Hockey What Is a Place of Amusement? Ass’n11 had a similar outcome. The injured plaintiff was General Obligations Law § 5-326 (GOL) is accompa- nied by a significant body of contradictory case law. The title of § 5-326 reads “Agreements exempting pools, GWEN SEAQUIST, associate professor of gymnasiums, places of public amusement, recreation legal studies at Ithaca College, is also and similar establishments from liability for negli- associated with the law firm of Jonathan O. Albanese in Ithaca. Before gence,” yet the courts hardly limit its application to joining the faculty of Ithaca College in pools and gymnasiums, and even apply the statute to 1983, she was legal advisor to the col- places of private amusement, including private clubs. lege president. A graduate of Wells Because the language of the statute is unclear, it is no College, she received her law degree surprise that the decisions are inconsistent, and what from the University of Mississippi constitutes a place of amusement continues to be subject Law School and was a visiting researcher at Harvard to debate. Law School. The initial vision of a public place of amusement has 1 run the gamut from riding a bull in a bar to private ski MARLENE BARKEN is an associate pro- clubs,2 parachute jumping,3 white-water rafting in the fessor of legal studies at Ithaca Col- Niagara River,4 JELL-O® pits,5 automobile race tracks,6 lege. She joined the faculty in 1984 and riding stables.7 When no commerce is involved, and after working with the Virginia law therefore there is no consumer to protect, the courts con- firm of McGuire, Woods, Battle and sistently find that the statute does not apply. So, for ex- Boothe. She is a graduate of Cornell University and received her law de- ample, where the plaintiff was injured while riding his gree from Harvard Law School. bicycle on the Verrazano Narrows Bridge during the “Bike New York” five-borough bicycle tour, the excul- Journal | March/April 2002 27 a member of an inline roller hockey league. To become a jet ski to ride in the Niagara River, because the rental member of the league, he paid $25 for annual dues and was not under the control of the defendants and the signed a registration form that contained a release of li- plaintiff was not confined to a bounded area, the busi- ability. Bufano was injured in a fight with another ness was not a place and, therefore, not a place of amuse- player during a game. “Contrary to the plaintiffs’ con- ment. “Although the defendants apparently gave cer- tention, General Obligations Law § 5-326 does not void tain instructions and took certain safety precautions, it the release Bufano signed,” the court said, because “the cannot be said that they had ‘control’ of the environ- $25 he paid was not paid to ment within which these ‘jet the owner or operator of a skis’ were operated to the ex- recreational facility.”12 In- Sometimes the nature of the tent necessary to bring their stead, Bufano had paid the operation within the lan- money as league dues. Thus, business so exceeds the scope guage and intent of § 5-326 the statute was not applica- of the statute that the courts of the General Obligations ble. Law.”17 Note in contrast, however, find categorically that the This particular analysis Williams v. City of Albany,13 statute has no application. was short-lived, however. which involved a flag foot- Eleven years later, in Brancati ball player who was injured v. Bar-U-Farm Inc.,18 the court by broken glass on a community playing field. He sued rejected the controlled environment analysis. Here, the the for-profit corporation that ran the sports recreation plaintiff was injured during a guided trail ride when the league, and the league was held liable. In so ruling, the horse he had leased from the defendant’s establishment court acknowledged that its decision was in direct con- fell and rolled on him. The court’s holding that the rid- trast to Stuhlweissenburg. The court reasoned: ing stable was a place of amusement because the statute The fact that CDFF did not own, maintain or control the was not limited “to acts conducted within a controlled playing field where the recreational activity took place environment,” but “extended to situations involving is not controlling . . . we note that CDFF was much more outdoor amusement,”19 essentially discarded the idea than a mere sponsor. It created and operated the league that the statute is limited to a bounded or controlled in question, arranged for the use of six fields for that area. purpose, provided referees for league play and ac- quired insurance for its protection in that regard. The Subsequently, in Filson v. Cold River Trail Rides Inc., relevant inquiry is whether CDFF, as the operator of the the court reached a similar result when the plaintiff and recreational activity in question, received compensation 14 her husband went on a “wilderness horseback riding therefor. excursion organized and operated by defendant[, that Sometimes the nature of the business so exceeds the included] a one-night stay in a bed and breakfast, a scope of the statute that the courts find categorically lengthy trail ride through the Adirondack Park and an that the statute has no application. When the plaintiff’s overnight stay in the woods.”20 The plaintiff fell when ski equipment malfunctioned and she sued the business she attempted to mount the horse without a guide pres- where she had rented the equipment, the court stated, ent, sustaining injuries to her mouth and teeth. Relying “Snowbird is a retail establishment that rents and sells on its previous holding in Brancati, the court stated that ski equipment and accessories; it is not a place of “although defendant did not own the land upon which amusement or similar establishment contemplated by plaintiff was injured . . . we do not find that this compels 15 General Obligations Law § 5-326.” a contrary result since the statute by its terms applies to Nor does it matter if the place of amusement is pri- owners and operators of places of amusement.”21 vate, rather than public. Where the plaintiff was injured These recent decisions suggest a significant shift— while playing tennis at a country club, the court did not from determining whether the business is an estab- even consider the private versus public nature of the fa- lished place of amusement to an analysis of the type of cility. The statute applied, and the waiver was declared activity in which the plaintiff was engaged and the locus void in accordance with the earlier cases interpreted 16 for that activity. This approach expands the consumer under the statute. protection afforded by the statute. Arguments that the Where Is a Place of Amusement? place is not bounded or confined or is private will fail. In earlier cases, the courts distinguished between a If, however, the place has no recreational activities, such business as a place of amusement based on whether it as a rental shop, or is an instructional facility (see was an unbounded area. Thus, when a plaintiff rented a below), then the statute will not apply. 28 Journal | March/April 2002 Places of Instruction? During the past decade, numerous cases have distin- Background of GOL § 5-326 guished between instructional versus recreational places of business. As a general rule, when a business is By legal standards, General Obligations Law § 5- instructional in nature, the release is valid. Thus it is to 326 is relatively new. Enacted in 1976, it traces its the defendant’s advantage to prove that the business is roots to an incident in the 1960s when Joanne Ciofalo, more like a school than a place of recreation. So for ex- a member of a Vic Tanney gym, slipped and fell pool- ample, when the plaintiff was injured at a racetrack that side, sustaining significant injuries.1 was also used as a driving school, GOL § 5-326 was held As a condition of membership, she had signed an inapplicable.22 Likewise, injuries sustained while receiv- agreement releasing the gym from liability for its ing paragliding lessons23 or scuba diving lessons24 or own negligence. As a result, the plaintiff lost the case horseback riding instruction25 were held not to be within on a motion for summary judgment and never went the ambit of the statute. to trial on the issue of negligence. The perception that In many cases, the place of business has characteris- the decision was an unjust one eventually led to the tics of both amusement and instruction. To determine enactment of the statute making such waivers void.2 the nature of the business in those cases, the courts con- A review of the legislative history indicates that, in sider how the initial filing papers describe the business drafting the statute to cover all “users” of recre- and the manner in which the business represents itself ational facilities, the Legislature explicitly intended in advertisements and brochures. For example, in to overrule the holding of Ciofalo, wherein the Court Wurzer v. Seneca Sport Parachute Club, the court held that of Appeals upheld the enforceability of a contractual a parachute club was a place of recreation based on the provision signed by a member of a gymnasium plaintiff’s affidavit, the club’s statement of purposes in which insulated the gymnasium from liability for its certificate of incorporation, and the club’s name.26 personal injuries resulting from its negligence. As the Similarly, in Bacciocchi v. Ranch Parachute Club, Ltd., a Western District, quoting an appellate decision from parachute club promoted itself as “a year-round skydiv- 1991, stated: ing club and school offering state of the art aircraft and instruction” and stated in a brochure that “our empha- The legislative history of § 5-326 establishes that “it was sis is on having a good time and enjoying a relaxed at- a consumer protection measure based upon an assess- mosphere.”27 A student taking sky diving lessons ment that members of the general public patronizing proprietary recreational and amusement facilities are landed in a tree sustaining serious injuries to her ankle. commonly either entirely unaware of the existence of Because the club did not restrict its use to instruction but exculpatory clauses in admission tickets or member- also had recreational aspects, the release was held void ship applications or are unappreciative of the legal con- and unenforceable. sequences thereof.”3 Contrast the result in Bacciocchi with that of Scrivener 28 Nevertheless, the numerous cases that have inter- v. Sky’s the Limit, Inc. In Scrivener, the business had both preted GOL § 5-326 since 1976 have left a trail of often recreational and instructional descriptions. The court confusing law regarding its scope and application. shifted its analysis from an exclusive focus on the incor- porating papers and promotional brochures to the pur- 1. Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 220 N.Y.S.2d pose of the plaintiff’s visit. Since it was “clear . . . that 962 (1961). the plaintiff was at (defendant’s skydiving facility) for 2. Beardslee v. Blomberg, 70 A.D.2d 732, 416 N.Y.S.2d 855 instructional activity as opposed to a recreational facil- (3d Dep’t 1979) (quoting the Governor’s Bill Jacket, ity as contemplated by GOL § 5-326 then the place was 1976 N.Y. Laws ch. 414). (held to be) one of instruction in spite of the descrip- 3. McDuffie v. Watkins Glen Int’l, 833 F. Supp. 202 29 (W.D.N.Y. 1993) (quoting Owen v. R.J.S. Safety Equip., tions.” These conflicting outcomes make it unclear just Inc., 169 A.D.2d 150, 156, 572 N.Y.S.2d 390 (3d Dep’t what rule the courts will follow in the future. 1991), aff’d, 79 N.Y.2d 967, 582 N.Y.S.2d 998 (1992)). Who Is a User? For the statute to apply, the plaintiff must have paid crashed in the subsequent race and suffered severe in- a fee “in connection with the waiver of liability.” juries. She challenged the waiver, arguing that she had In one of the earliest cases, Beardslee v. Blomberg,30 a paid the fee in connection with entrance to the racetrack, racetrack charged a fee and admitted spectators to the though she had signed the waiver in connection with grandstands. Later in the day, the track management in- the powder puff derby. Because the agreement was not vited all female spectators to participate in a “powder “in connection with, or collateral to . . . any contract, puff derby” by first signing a waiver. The plaintiff membership application, ticket of admission or similar Journal | March/April 2002 29 writing, entered into between the owner . . . and the Drafting an Effective Exculpatory Agreement user of such facilities,” the waiver was upheld. Taking Finally, even if the business falls outside the scope of an extremely literal approach, the court determined that the statute, one must be careful that the language used she was not a user within the contemplation of the in any exculpatory clause will be upheld in accordance statute. with the Court of Appeals decision in Gross v. Sweet.36 User status was also denied in Salazar v. Riverside Rid- There, the plaintiff signed a waiver stating: ing Corp. The court found that paying a fee to board a I, the undersigned, hereby, and by these covenants, do horse and not for riding lessons “is not analogous to a waive any and all claims that I, my heirs, and/or as- user fee for a recreational facility as contemplated by the signees may have against Nathaniel Sweet, the Storm- statute.”31 ville Parachute Center, the Jumpmaster and the Pilot Over the past 25 years, race car drivers have re- who shall operate the aircraft when used for the pur- mained the most frequent litigators on the issue of their pose of parachute jumping for any personal injuries or status as users, and for the most part they are not cov- property damage that I may sustain or which may arise out of my learning, practicing or actually jumping from ered by the statute. This result in part relates to the dis- an aircraft. I also assume full responsibility for any tinction between instructional and recreational facilities damage that I may do or cause while participating in discussed above. For example, in Lux v. Cox,32 the par- this sport.37 ticipants were bound by the release because the fees The court held this waiver was incomplete and un- were paid to register in a race car driver school. Fur- enforceable because it failed to clearly set out the dan- thermore, the court found that the purpose of the statute gers inherent in parachute jumping. was to protect not the professional but rather the un- wary consumer who supposedly does not know any In short, instead of specifying to prospective students better. A professional race car driver assumes the risk of that they would have to abide any consequences attrib- the profession.33 Similarly, the statute does not apply to utable to the instructor’s own carelessness, the defen- a mechanic working in the pits34 or the member of a vol- dant seems to have preferred the use of opaque termi- 35 nology rather than suffer the possibility of lower unteer tow truck crew, as their status is clearly not that enrollment. But, while, with exceptions not pertinent to of the unwary consumer. this case, the law grudgingly accepts the proposition that men may contract away their liability for negli- What Satisfies the Fee Requirement? gently caused injuries, they may do so only on the con- The courts have continued to construe the fee-paid- dition that their intention be expressed clearly and in by-a-user requirement of the statute quite narrowly, de- unequivocal terms.38 spite the broad intent of the statute to cover all agree- The release must explicitly inform the customer what ments, contracts, and membership applications as well risks are inherent in the activity and also that the defen- as tickets. As discussed above, the holdings in Bufano dant is assuming the disclosed risks.39 In DiMaria v. Co- and Stuhlweissenburg con- ordinated Ranches, Inc.,40 for cluded that releases executed example, the plaintiff signed in conjunction with payment Consumers now expect that, as guest registration cards stat- of league membership dues ing, “I recognize that the were valid because the fee a matter of public policy, sporting facilities provided at was not paid, in connection PINEGROVE have a certain with a ticket of admission or businesses cannot disclaim amount of danger connected agreement, to the owner or their liability for negligence with them.”41 The court operator of a recreational fa- found the waiver inadequate cility but to the respective for truly recreational activities. because it did not clearly leagues in which the plain- spell out that signing the tiffs were participating. form meant assuming all of the risks associated with the Williams v. City of Albany, also discussed above, re- use of the defendant’s business. mains the anomalous case pertaining to users. Here, the court looked beyond who actually paid the fee and to If the liability release expresses “in clear and un- whom, and instead focused on whether the operator of equivocal language the intent to relieve the defendants the recreational activity received compensation. Because of all liability for personal injuries . . . caused by the de- fendants’ negligence,” then the release will be enforce- the organizer of the league received a fee for the use of 42 the facilities where the plaintiff was injured, the release able. was considered within the purview of the statute and Businesses should also note that the waiver is more thereby void. likely to be upheld if patrons sign a detailed list of pos- 30 Journal | March/April 2002 sible risks rather than a boilerplate provision on the 3. Sivaslian v. Rawlins, 88 A.D.2d 703, 451 N.Y.S.2d 307 (3d back of a ticket. While business owners may balk at the Dep’t 1982). idea of “scaring away a potential client,” full disclosure 4. Franzek v. Calspan Corp., 78 A.D.2d 134, 434 N.Y.S.2d 288 (4th Dep’t 1980). is the surest route to the enforceability of the waiver. 5. Long v. State, 158 A.D.2d 778, 551 N.Y.S.2d 369 (3d Dep’t Conclusion 1990). 6. Gilkeson v. Five Mile Point Speedway Inc., 232 A.D.2d 960, In the past 25 years, the legislature has made no effort 648 N.Y.S.2d 844 (3d Dep’t 1996); Stone v. Bridgehampton to re-examine the impact and interpretation of GOL § 5- Race Circuit, 217 A.D.2d 541, 629 N.Y.S.2d 80 (2d Dep’t 326. Case law over the past decade indicates continued 1995); Owen v. R.J.S. Safety Equipment, Inc., 79 N.Y.2d 967, confusion over the scope of the law’s application, 582 N.Y.S.2d 998 (1992); Lago v. Krollage, 78 N.Y.2d 95, 571 N.Y.S.2d 689 (1991); Smith v. Lebanon Valley Auto Racing, though some clarification has been achieved. Inc., 167 A.D.2d 779, 563 N.Y.S.2d 335 (3d Dep’t 1990); Consumers can now expect that, as a matter of pub- Howell v. Dundee Fair Ass’n, 73 N.Y.2d 804, 537 N.Y.S.2d lic policy, businesses cannot disclaim their liability for 27 (1988). negligence for truly recreational activities, even if the ac- 7. Salazar v. Riverdale Riding Corp., 183 Misc. 2d 145, 701 N.Y.S.2d 878 (Sup. Ct., Nassau Co. 1999); Strauss v. tivity takes place in a wilderness area over which the de- Stoneledge Farms, Inc., 256 A.D.2d 1186, 684 N.Y.S.2d 387 fendant cannot exercise complete control. If, however, (4th Dep’t 1998); Filson v. Cold River Trail Rides Inc., 242 the purpose of the plaintiff’s visit is to receive instruction A.D.2d 775, 661 N.Y.S.2d 841 (3d Dep’t 1997); Brancati v. Bar-U-Farm, Inc., 183 A.D.2d 1027, 583 N.Y.S.2d 660 (3d in the recreational activity, then the court likely will up- Dep’t 1992); DiMaria v. Coordinated Ranches, Inc., 138 hold the waiver. Clients who provide both instructional A.D.2d 445, 526 N.Y.S.2d 19 (2d Dep’t 1988). training and access to recreational opportunities should 8. Tedesco v. Triborough Bridge & Tunnel Auth., 250 A.D.2d clearly identify the type of activity for which the patron 758, 673 N.Y.S.2d 181 (2d Dep’t 1998). is making payment. Disclaimers are appropriate to pro- 9. Barone v. St. Joseph’s Villa, 255 A.D.2d 973, 679 N.Y.S.2d tect against liability for injuries incurred in the course of 870 (4th Dep’t 1998). instruction. 10. 223 A.D.2d 633, 636 N.Y.S.2d 853 (2d Dep’t 1996). 11. 272 A.D.2d 359, 707 N.Y.S.2d 223 (2d Dep’t 2000). Another major unsettled issue is whether consumers 12. Id. at 359. will be protected in situations where they pay to partic- 13. 271 A.D.2d 855, 706 N.Y.S.2d 240 (3d Dep’t 2000). ipate in league or recreational sports organized by spon- 14. Id. at 857. In reference to the decision in Stuhlweissenburg, sors who do not actually own the facilities where the the court said, games take place. The intent of the legislation indicates we do not deem the statute as limited in application that the statute should apply, although the current to the person or entity that actually pays the fee. weight of case law runs counter to this interpretation. Rather, the statute, by its express terms, is applica- ble to an owner or operator of a recreational facility Clients should be cautioned that in this gray zone dis- who receives a fee. Accordingly, inasmuch as CDFF claimers may not survive further judicial scrutiny. received a fee for the use of the facilities where As always, consumers should be wary of signing dis- Williams was injured, the release executed by him is void as against public policy and is wholly unen- claimers under any circumstances. Unfortunately, the forceable. reality is that businesses typically present patrons with 15. Perelman v. Snowbird Ski Shop, Inc., 215 A.D.2d 809, 626 form disclaimers as an absolute prerequisite to partici- N.Y.S.2d 304, 305 (3d Dep’t 1995). pation in the desired activity. So consumers sign and lit- 16. See Blanc v. Windham Mountain Club, 115 Misc. 2d 404, 454 igate later. Business clients and consumers alike should N.Y.S.2d 383 (Sup. Ct., N.Y. Co. 1982). be advised that where disclaimers are permissible, they 17. Dumez v. Harbor Jet Ski, Inc., 117 Misc. 2d 249, 458 N.Y.S.2d 119, 120 (Sup. Ct., Niagara Co. 1981). nonetheless will be examined closely under the still op- 18. 183 A.D.2d 1027, 583 N.Y.S.2d 660 (3d Dep’t 1992). erable Gross standard. Any limitation of liability must 19.Id. at 1030. clearly and unambiguously extend to the defendant’s 20. 242 A.D.2d 775, 775, 661 N.Y.S.2d 841 (3d Dep’t 1997). negligence, and the patron must clearly and expressly 21. Id. at 777. assume specific risks. Practitioners should be prepared 22. Lux v. Cox, 32 F. Supp. 2d 92 (W.D.N.Y. 1998). to identify those situations outside the scope of the 23. Chieco v. Paramarketing, Inc., 228 A.D.2d 462, 643 N.Y.S.2d statute where releases will be upheld, and to draft effec- 668 (2d Dep’t 1996). tive exculpatory clauses for clients engaged in such ac- 24. Baschuk v. Diver’s Way Scuba, Inc., 209 A.D.2d 369, 370, tivities. 618 N.Y.S.2d 428 (2d Dep’t 1994). Plaintiff was injured while taking a scuba diving course sponsored by the de- fendant at its facilities, which included a private swim- 1. Meier v. Ma-Do Bars, 106 A.D.2d 143, 484 N.Y.S.2d 719 (3d ming pool. Since defendant’s private swimming pool was Dep’t 1985). used for instructional, not recreational or amusement 2. Blanc v. Windham Mountain Club, 115 Misc. 2d 404, 454 purposes, the court concluded that the tuition fee paid by N.Y.S.2d 383 (Sup. Ct., N.Y. Co. 1982). the plaintiff for a course of instruction is not analogous to Journal | March/April 2002 31 the use fee for recreational facilities contemplated by the tiffs cannot be said to belong to a class of consumers statute. Hence, GOL § 5-326 was held not to apply. “unaware of the existence of exculpatory clauses” 25. Salazar v. Riverdale Riding Corp., 183 Misc. 2d 145, 701 in the releases they were required to sign, or “unap- N.Y.S.2d 878 (Sup. Ct., Nassau Co. 1999). preciative of the legal consequences thereof.” 26. 66 A.D.2d 1002, 411 N.Y.S.2d 763 (4th Dep’t 1978). Id. at 99. Plaintiff’s uncontroverted assertions in his affidavit, 33. Mc Duffie v. Watkins Glen Int’l, Inc., 833 F. Supp. 197 defendant SSPC’s statement of purposes in its cer- (W.D.N.Y. 1993). “Mc Duffie was not a patron user of the tificate of incorporation, and defendant SSPC’s own recreational establishment involved here. Rather, he was name establish that defendant SSPC is a “place of an experienced participant who made his living from rac- recreation” within the plain meaning of the statute. ing, and as such, knowingly waived suit in order to en- Defendants submitted no evidentiary material that gage in his profession for profit.” Id. at 202. would undercut this characterization of the nature 34. Lago v. Krollage, 157 A.D.2d 49, 554 N.Y.S.2d 633 (2d Dep’t of defendant’s facilities. 1990). Id. at 1003. 35. Kazmierczak v. Lancaster Motor Sports, Inc., 214 A.D.2d 1039, 626 N.Y.S.2d 633 (4th Dep’t 1995). Plaintiff was in- 27. 273 A.D.2d 173, 175, 710 N.Y.S.2d 54 (1st Dep’t 2000) “As jured while repairing the racing surface of defendant’s stated in its certificate of incorporation, the purpose of racetrack during a racing event. Plaintiff was in the area the club, organized under the Not-For-Profit Corporation of the raceway solely as a member of the volunteer tow Law, is ‘to promote sport parachuting.’ The purpose is truck crew. Therefore, plaintiff is not entitled to the status exclusively a recreational purpose.” Id. of a “user.” See Howell v. Dundee Fair Ass’n, 135 A.D.2d 28. 68 F. Supp. 2d 277 (S.D.N.Y. 1999). Scrivener’s affidavit 1133, 523 N.Y.S.2d 259 (4th Dep’t 1987) (holding that a stated, “In April 1997 my wife gave me a birthday pre- volunteer fireman on a fire and ambulance crew at the sent to take skydiving lessons at ‘Sky’s The Limit.’ . . . Dundee Raceway was not a protected user). After we paid the fee, I signed numerous documents be- 36. 49 N.Y.2d 102, 424 N.Y.S.2d 365 (1979). fore I was allowed to take my first lesson.” Id. at 280. 37. Id. at 109. 29. Id. 38. Id. at 110. 30. 70 A.D.2d 732, 416 N.Y.S.2d 855 (3d Dep’t 1979). 39. Rogowicki v. Troser Mgmt. Inc., 212 A.D.2d 1035, 623 31. 183 Misc. 2d 145, 701 N.Y.S.2d 878 (Sup. Ct., Nassau Co. N.Y.S.2d 47 (4th Dep’t 1995). Defendants failed to meet 1999). their burden of establishing, as a matter of law, that John 32. 32 F. Supp. 2d 92 (W.D.N.Y. 1998). Rogowicki expressly assumed the risk of his injury by virtue of the disclaimer language printed on the back of In this case, the record is clear that plaintiffs were the lift ticket and the ski school lesson coupon book. participants in the PCA Drivers’ School program, rather than spectators or patrons of the Watkins 40. 138 A.D.2d 445, 526 N.Y.S.2d 19 (2d Dep’t 1988). Glen race course. The fees paid by plaintiffs to PCA 41. Id. at 446. were for the purpose of registration in the program, 42. For an example of detailed language to use in drafting an not for admission to the racecourse. As frequent exculpatory clause, see Lux v. Cox, 32 F. Supp. 2d 92 participants in the Drivers’ School program, plain- (W.D.N.Y 1998). SaveNow! 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Go to: www.softmart.com/nysbastore FOR MORE INFORMATION GO TO: www.nysba.org/member/discount 32 Journal | March/April 2002 Last Resort Estate Planning Finds Acceptance in Statutes and Cases Relying on Substituted Judgment BY EUGENE E. PECKHAM he call from the client usually starts out one of Substituted Judgment Tseveral ways: Beginning in the late 1980s, a major change began re- (1) “Mom (or Dad) is really getting bad. She can’t garding estate planning for incapacitated persons. First remember anything. The doctor says she may have came two decisions by Nassau County Surrogate C. Alzheimer’s and will have to go to a nursing home.” Raymond Radigan that have become the standard for applying the substituted judgment doctrine. The con- (2) “My daughter (or son) had a bad auto accident cept of substituted judgment provides the basis for a and is now partly paralyzed in a wheelchair and brain court of equity to approve the transfer of part of a men- damaged. But the good news is she just got a big settle- tally disabled person’s property to another person, pro- ment in her court case.” vided that the disabled person does not need the prop- (3) “My son (or daughter) was born with mental erty for support and probably would have made the retardation. He just turned 21 and I want to do what I transfer if competent to do so.3 The doctrine first arose can to see to it he’s taken care of for the rest of his life.” in an 1816 English case, ex parte Whitbread,4 but the early (4) “My husband (or wife) had a stroke and is in a cases were quite restrictive in its application. coma. The doctor says he may only live a month or so. In Florence,5 Judge Radigan authorized gifts for estate He has a big estate and the taxes will eat it up and he planning purposes from a conservatee’s estate of $1.1 hasn’t revised his will in 20 years.” million out of a total estate of $1.8 million. The gifts to The next question always is: “What can we do?” Re- family members would be in accordance with the viewing the situation with the client, you quickly find ward’s testamentary plan and would save about $85,000 there is no durable power of attorney or health care in taxes. The decision enunciated the two standards that proxy for the incapacitated person, and either no will or had arisen for substituted judgment: objective and sub- an old one that is out of date. For many years, the only jective. The objective test “is extended where the ward answer was to consider the appointment of a Commit- as a reasonably prudent person would so act, there tee of the Incompetent and then ask the court to apply being no substantial evidence of a contrary intent.” The the doctrine of “substituted judgment.” Both of those subjective test requires that “the ward would actually 6 procedures were complicated. Even worse, most people have made the transfer himself, if the capacity existed.” 7 quailed at the idea of declaring Mom, Dad or other rel- In In re Daly, Judge Radigan again used substituted atives incompetent by having a committee appointed, judgment and applied the objective standard to autho- not wanting the stigma of mental illness in the family, and not wanting the loss of civil rights that accompa- EUGENE E. PECKHAM has been the 1 nied a declaration of incompetence. Broome County Surrogate since Janu- This article explores what can be done as a last resort ary 2001. He is also an adjunct profes- when someone is incompetent to make or change a will sor of accounting at Binghamton Uni- and there is no durable power of attorney that could be versity. A member of the Journal’s used to make gifts or do estate or Medicaid planning. As Board of Editors, he was formerly a partner in the Binghamton firm of described below, the available options have been ex- Hinman, Howard & Kattell, LLP. He is panded by a Court of Appeals decision of major impor- a past chair of the Trusts and Estates tance that permits courts to give guardians the author- Law Section of the NYSBA and a fellow of the American ity to enter into estate and Medicaid planning College of Trust and Estate Counsel. He graduated from transactions in the form of gifts that benefit the ward Wesleyan University and received his J.D. degree from and his or her family.2 Harvard Law School. Journal | March/April 2002 33 rize the Surrogate’s Court Procedure Act (SCPA) Article 3. The incapacitated person has not manifested an in- 17-A guardian to make $10,000 gifts to the siblings of an tention inconsistent with the performance of the act or 11-year-old boy with irreparable brain damage. He also acts for which approval has been sought at some earlier time when he or she had the requisite capacity or, if held “to the extent that substituted judgment is other- such intention was manifested, the particular person wise available, the court perceives no distinction be- would be likely to have changed such intention under tween a person who has received the protection of SCPA the circumstances existing at the time of the filing of the Article 17-A as opposed to Article 77 or 78 of the Mental petition.11 Hygiene Law”8 (MHL). Logically, this is still true of Ar- As can be seen, subparagraph (2) incorporates the ob- ticles 17, 17-A and 81 because Article 81 has replaced Ar- jective test for substituted judgment and subparagraph ticles 77 and 78. (3) incorporates the subjective test of the “intent” of the MHL Article 81 incapacitated person. In 1989, SCPA Article 17-A was substantially Section 81.21 also provides that the court shall con- amended to add developmentally disabled persons to sider12 the following factors in making its decision: its application in addition to mentally retarded persons. But the most significant change was the adoption in 1. Whether the incapacitated person has sufficient capacity to make the proposed disposition himself or 1993 of Article 81 of the MHL to replace Article 77, Con- herself, and, if so, whether he or she has consented to servators, and Article 78, Committees of the Incompe- the proposed disposition; tent. Article 81 ushered in a new era in the treatment of mental illness because the legislative findings state that 2. Whether the disability of the incapacitated person “it is desirable for and beneficial to persons with inca- is likely to be of sufficiently short duration such that he pacities to make available to them the least restrictive or she should make the determination with respect to form of intervention which assists them in meeting their the proposed disposition when no longer disabled; needs . . . which takes in account the personal wishes, 3. Whether the needs of the incapacitated person and preferences and desires of the person, and which affords his or her dependents or other persons depending upon the person the greatest amount of independence and the incapacitated person for support can be met from self determination and participation in all the decisions the remainder of the assets of the incapacitated person affecting such person’s life.”9 after the transfer is made; Least restrictive form of intervention is now the catch- phrase to describe this new approach to guardianship 4. Whether the donees or beneficiaries of the pro- for the disabled. The stigma attached to the appoint- posed disposition are the natural objects of the bounty ment of a Committee of an Incompetent has been re- of the incapacitated person and whether the proposed disposition is consistent with any known testamentary moved because the statute now provides that the “ap- plan or pattern of gifts he or she has made; pointment of a guardian shall not be conclusive evidence that the person lacks capacity for any other 5. Whether the proposed disposition will produce es- purpose, including the capacity to dispose of property tate, gift, income or other tax savings which will signif- by will.”10 icantly benefit the incapacitated person or his or her de- Most important for estate planners is the codification pendents or other persons for whom the incapacitated in Article 81 of the substituted judgment concept. MHL person would be concerned; and § 81.21 authorizes a court to grant to the guardian the 6. Such other factors as the court deems relevant.13 power to (1) make gifts, (2) create revocable or irrevoca- ble trusts of the property of the incapacitated person, Supplemental Needs Trusts (3) change beneficiaries on insurance and annuity poli- Perhaps most frequently, courts and guardians have cies, and (4) renounce or disclaim gifts or inheritances used substituted judgment to establish a supplemental for the incapacitated person. The court may grant the needs trust (SNT).14 Typically, the settlement proceeds application to use such powers “if satisfied by clear and of a negligence lawsuit for a disabled person injured at convincing evidence” that: birth or in an accident, who is thereby rendered inca- 1. The incapacitated person lacks the requisite men- pable of making decisions or managing his affairs, are tal capacity to perform the act or acts for which ap- proval has been sought and is not likely to regain such used to fund the trust. capacity within a reasonable period of time or, if the in- A supplemental needs trust, or “SNT”, is a “discre- capacitated person has the requisite capacity, that he or tionary trust established for the benefit of a person with she consents to the proposed disposition; a severe and chronic or persistent disability” that is de- 2. A competent, reasonable individual in the position signed to enhance the quality of the disabled individ- of the incapacitated person would be likely to perform ual’s life by providing for special needs without dupli- the act or acts under the same circumstances; and cating services covered by Medicaid or destroying 34 Journal | March/April 2002 Medicaid eligibility. Under Federal and State Medicaid amount is available and must be used to pay Medicaid laws, funds placed in a SNT are not considered re- liens before the balance can be placed in the SNT.21 sources that are “available” to a Medicaid recipient for purposes of assessing the recipient’s eligibility for ben- The third-party SNT can be used by a parent or other efits, so long as the trust document conforms with the relative to establish a trust for a mentally retarded or de- EPTL’s requirements and further grants to the State a velopmentally disabled child in situation (3) above, remainder interest in the trust assets remaining at the with the one proviso that the parent or relative must recipient’s death up to the amount of all public assis- have no obligation to support the child; otherwise the 15 tance provided. trust will be an available resource for Medicaid.22 Thus, There are two general types of SNTs. The first is the turning 21 is significant because that is when the oblig- self-settled payback type described above, where the ation of support ends. If the trust is established before Medicaid recipient’s own funds establish the trust, fre- the support obligation terminates, the Medicaid lien quently from a personal injury settlement. In this type of would apply because the funds used to create the SNT SNT, any balance of funds remaining, after providing would be coming from the parental assets that would be for the beneficiary’s special needs over and above Med- an available resource for the parents’ support obliga- icaid, must be paid to the state to reimburse it for the tions. Medicaid it has paid for the beneficiary.16 As long as the As can be seen from the foregoing, the courts have Medicaid recipient is under frequently established an SNT pursuant to the power age 65 and disabled, the provided in MHL § 81.21 to transfer to the SNT will not “create trusts,” revocable or cause a period of ineligibility There are two types of SNTs . . . irrevocable, for an incapaci- for Medicaid.17 Some courts the self-settled payback type . . . tated person. Guardians ap- have even issued decisions pointed under SCPAArticles specifying the language to be and a trust established by a third 17 and 17-A have also been included in payback SNTs.18 authorized by the court to The second type is a trust es- party who does not have a legal set up SNTs.23 Obviously, tablished by a third party obligation to provide support. creating the SNT also consti- (typically a parent or some tutes Medicaid planning and other relative) who does not estate planning. have a legal obligation to provide support to the dis- Estate and Medicaid Planning abled person. In these circumstances, there is no re- In a very significant decision, the Court of Appeals quirement for the state to be paid pack when the indi- vidual dies. Consequently, the remainder of a third held in mid-2000: “We now confirm that a guardian party trust can be left to other family members or spouse is permitted to effectuate . . . Medicaid plan- whomever the grantor chooses.19 ning on behalf of an incapacitated individual pursuant to Mental Hygiene Law Article 81.”24 In the Shah case, The SNT can provide an answer to situation (2) de- Mr. Shah was in a coma from which no recovery was ex- scribed at the beginning of this article. The payback SNT can be used to receive the proceeds of a large personal pected. His wife as his Article 81 guardian sought court injury settlement whether it is a lump sum or a struc- approval to transfer all of his assets to herself to support tured settlement. A parent, guardian or the court han- herself and their children and then execute a spousal re- fusal so that Mr. Shah would be eligible for Medicaid. dling the personal injury case establishes the trust to re- 25 ceive the proceeds and use them to supplement what The Court of Appeals held that she could do so. Medicaid will provide for the disabled beneficiary. Only In In re John XX,26 which was cited with approval in when the beneficiary dies does any remaining principal Shah, an Article 81 guardian was authorized, for Medic- of the trust become available to pay back the state for aid planning purposes, to give $640,000 of the ward’s the Medicaid assistance provided. Any excess over the assets to his two adult daughters. This left John with Medicaid payback ordinarily would pass to the estate of about $150,000 which, together with his pension and So- the incapacitated individual.20 cial Security income, would pay his nursing home costs Until recently an unresolved issue in such cases was during the Medicaid ineligibility period of 36 months. whether, before funding the SNT, the state had to be re- At the time the transfer took place, the exemption from imbursed for interim Medicaid assistance provided to federal estate and gift tax was $600,000, and thus it the injured party from the date of injury until the date would seem likely the amount of the gift to the daugh- the judgment or settlement was entered. In two cases ters also involved an element of estate planning to use the Court of Appeals has held that reimbursement is re- up the exemption and also use the $10,000 per-person quired for interim assistance and the entire settlement annual exclusion from gift tax. The court said “it cannot Journal | March/April 2002 35 reasonably be contended that a competent reasonable the effective date of Article 81 and the court noted that individual in his position would not engage in the estate Article 81 would give specific authority to create the and Medicaid planning proposed in the petition . . . a trust. The court said, “From an objective perspective, the contrary conclusion would have the effect of depriving propriety of creating the proposed trust, which ensures incapacitated persons of the range of options available the conservatee’s well-being during her lifetime while to competent individuals.”27 enabling her son to enjoy an enhanced quality of life Thus, the Court of Ap- upon her death without risk- peals has recognized that in- ing his public assistance, capacitated persons have the The courts have allowed cannot be questioned.”38 same rights to engage in es- An even more significant tate planning and Medicaid guardians to establish and example of the type of estate planning as competent per- amend revocable and irrevocable planning a court can autho- sons. To deny an incapaci- rize is the unreported case of tated person the same right inter vivos trusts, which act as In re Majka39 decided by to engage in estate planning Broome County Surrogate as another person with ca- will substitutes. John M. Thomas sitting as an pacity could be a denial of acting Supreme Court jus- equal protection of the tice. On January 21, 1996, laws.28 Theodore Majka suffered a cerebral hemorrhage that Guardians have been authorized by the courts to ex- rendered him quadriplegic and unable to speak or com- ercise the powers granted by the Legislature in MHL municate in any significant way. His wife, Beverly A. § 81.21 to make gifts,29 (including charitable gifts)30 cre- Majka, was appointed his guardian in an Article 81 pro- ate supplemental needs trusts,31 transfer real property,32 ceeding. It was a second marriage for each of them and renounce an inheritance33 and do Medicaid planning34 they each had three children from a prior marriage. Mr. and estate planning.35 The statute provides that “trans- Majka was a successful businessman who owned en- fers made pursuant to this article may be in any form tirely in his name the common stock of two businesses, that the incapacitated person could have employed if he a machine shop and an apartment complex. Also in- or she had the requisite capacity, except in the form of a cluded in his estate were two life insurance policies on will or codicil.”36 Thus, the only estate planning action his life with his children as beneficiaries and several the guardian cannot take on behalf of the ward is to policies owned by him on the lives of his children. At make a new will. Even in situations (1) and (4) above, it the time of his stroke, Mr. Majka had an old style “elec- is possible to do estate planning when the incapacitated tive share trust” with his wife receiving income only person is incompetent to do so or has only a short time from one-third of his estate and the residue of his estate to live. divided into three trusts for each of his children with The courts have allowed guardians to establish and final payout of principal to them at age 45. amend revocable and irrevocable inter vivos trusts, Because the total value of the estate was several mil- which act as will substitutes and can have the effect of lion dollars, the estate tax under his existing will could making a new estate plan for a ward. Recently, the Third have been almost $1 million, and since the businesses Department approved an amendment by an Article 81 were the bulk of the estate, there would have been a se- guardian of a revocable trust established by the ward. vere cash shortage. Fortunately, Mr. Majka had begun The amendment added two nephews of the incapaci- some estate planning to rectify the situation, but unfor- tated person as additional co-trustees of the trust. Thus, tunately he had not completed it. He had set up a life in- the decision recognized that a guardian can exercise the surance trust and funded it with a million-dollar sec- powers reserved by the ward to alter or amend the re- ond-to-die policy on himself and his wife. He had had vocable trust, if authorized by the court to do so.37 discussions with his attorney about a new will with a In an earlier case, the Kings County Surrogate autho- QTIP trust, but had not executed a new will. rized a conservator to establish an irrevocable trust of The court was petitioned pursuant to MHL § 81.21 to the conservatee’s entire assets of $700,000. The trust authorize the guardian to execute on Mr. Majka’s behalf agreement provided for the trustee to apply income and a revocable inter vivos trust with the then-allowable principal for the benefit of the conservatee during her $600,000 unified credit exemption passing outright to lifetime and then upon her death the trust would be- his three children, and a QTIP trust of the residue for his come an SNT for the benefit of the conservatee’s adult wife. Upon the death of Mrs. Majka, one-third of the retarded son. The case was decided using the principle trust would be paid to her children and two thirds of the of substituted judgment, but it was decided just before trust to the Majka children. The trust would be funded 36 Journal | March/April 2002 with the stock of the two businesses. The result would nificant recovery period or the administration of psy- be to eliminate tax upon Mr. Majka’s death and allow chotropic medication or electroconvulsive therapy. the second-to-die policy to pay the tax on his wife’s sub- What is not included is the “withholding or withdrawal sequent death. The plan also followed his existing will of life sustaining treatment including artificial nutrition in that Mrs. Majka’s children would receive the one- and hydration.”47 In this regard the Legislature followed third of the estate she could have received by exercising the O’Connor decision of the Court of Appeals.48 If there her right of election, while Mr. Majka’s children would is no health care proxy or other advance directive, the receive the remaining two-thirds. petitioner who wishes to have authority to terminate In addition, the court was asked to permit the life-sustaining measures must establish by clear and guardian to establish a second life insurance trust into convincing evidence the incapacitated person’s ex- which the two policies on Mr. Majka’s life owned by pressed wish to withhold or withdraw life-sustaining him would be transferred as gifts. The beneficiaries of treatment.49 this trust would be the three Majka children, consistent Although there is no specific provision in either Arti- with the existing beneficiary designations in the poli- cle 17 or 17-A regarding medical decision making, a cies. The purpose was to remove the value of these poli- guardian of the person appointed under those sections cies from the estate, if he lived for three years pursuant would ordinarily have custody of the child or retarded to the contemplation-of-death rule.40 Lastly, the court person and the right to make health care decisions.50 Ab- was asked to approve gifts of the life insurance policies sent specific provisions on health care in Articles 17 that Mr. Majka owned on the lives of his children to the and 17-A, a court would undoubtedly look to Article 81 respective children. Because these policies had cash val- for analogous definitions and provisions as to the ues less than $10,000 apiece they would come within the guardian’s powers for health care decision making. then-applicable $10,000 annual exclusion from gift tax.41 Again, with Article 17 and 17-A guardians, termination In an order signed December 4, 1996, Judge Thomas of life sustaining treatment would require proof of the authorized the guardian to carry out all of the requested ward’s expressed wishes pursuant to O’Connor. Proof of estate planning transactions, namely establishing the re- the ward’s wishes may be impossible when the ward vocable trust, the life insurance trust and the making of never had capacity, as with a retarded person. the gifts. The effect was to change totally the existing Standard of Proof will of Mr. Majka by means of the revocable trust. The Although most requests to apply substituted judg- court was convinced in the words of the statute that a ment in an Article 81 proceeding are successful, proof is “competent, reasonable individual in the position of the required by clear and convincing evidence of incapac- incapacitated person would be likely to perform the act 51 or acts under the same circumstances.”42 The intentions ity. Clear and convincing evidence is also required that that Mr. Majka had been working on for his estate plan- (1) the incapacitated person lacks capacity to perform ning were carried out, taxes were saved and the family the estate planning acts, (2) a reasonable person would benefitted. perform the acts, and (3) the incapacitated person has not manifested an inconsistent intention or would be Medical Decision Making likely to change the intention under the present circum- A health care proxy is now a document that is rou- stances.52 A hearing before the court is required in all tinely discussed with the client as part of the estate plan- cases.53 The alleged incapacitated person may request a ning process. In all of the situations above, there proba- jury trial,54 although this is rarely done. bly will be a need to make medical decisions for the Clear and convincing evidence is defined in the Pat- incapacitated person. When there is no health care tern Jury Instructions as follows: proxy,43 the court can authorize a guardian of the person to “consent to or refuse generally accepted routine or Clear and convincing evidence must satisfy you that the evidence makes it highly probable that what he or major medical or dental treatment” and “choose the she claims is what actually happened.55 place of abode” of the incapacitated person.44 The latter power may include the placement of the incapacitated As a result of this higher standard of evidence, not all person in a nursing home or other residential facility,45 applications for estate and Medicaid planning on behalf but not the power to admit the incapacitated person to of an incapacitated person are approved. For example, a mental hospital.46 in In re Karp,56 the court refused to permit gifts by a con- Major medical or dental treatment is defined in MHL servator of $120,000 per year from a $4.5 million estate. § 81.03(i) and generally includes medical or surgical The court stated there was no proof in the record of the procedures where general anesthesia is used, any sig- anticipated expenses for home care of the incapacitated nificant invasion of the body, a procedure having a sig- person, the amount of estate tax savings, the intention of Journal | March/April 2002 37 the incapacitated person to make lifetime gifts to his 15. Cricchio v Pennisi, 90 N.Y.2d 296, 660 N.Y.S.2d 679 (1997). family or whether a lesser distribution plan would be 16. 42 U.S.C. § 1396(d)(4)(A). more appropriate. In another case, a proposal for a re- 17. 41 U.S.C. § 1396(c)(2)(B)(iv). vocable trust of the incapacitated person’s assets was re- 18. In re Morales, N.Y.L.J. July 28, 1995, p. 25, col. 1 (Sup. Ct., fused because the disposition of the remainder of the Kings Co). For a complete discussion of SNTs and forms 57 for both payback and third-party trusts see Krooks, trust was different from the disposition in his will. In Krooks & Robert, Creative Advocacy in Guardianship two other cases, gifts were authorized in amounts less Settings, Guardianship Practice in New York State, 905-28, than had been requested because there was insufficient 1007-23 (NYSBA 1997) and Kassoff, Elder Law & Guardian- proof of the ward’s potential future cost of care.58 ship in New York, 8-75 to 8-79 (West 2001). The petition must include the information required 19. SSL § 104(3) and EPTL 7-1.12(a)(5). by the statute in order to secure authorization for a 20. In re Goldblatt, 162 Misc. 2d 888, 891, 618 N.Y.S.2d 959 (Sur. Ct., Nassau Co. 1994). transfer of the incapacitated person’s property.59 Clearly, 21. Cricchio; supra note 15; Calvanese v. Calvanese, 93 N.Y.2d the attorney should be prepared to present clear and 111, 688 N.Y.S.2d 479 (1999). convincing evidence that a reasonable person would 22. EPTL 7-1.12(c)(1). carry out the same type of plan and that the ward has 23. Both Article 81 and Articles 17 and 17-A guardians have not shown a contrary intention, or would be likely to been authorized to establish an SNT. See In re Sutton, 167 change that intention.60 Evidence of the factors that Misc. 2d 956, 641 N.Y.S.2d 515 (Sur. Ct., NY Co. 1996); In MHL § 81.21(d) says the court should consider must re Goldblatt, 162 Misc. 2d 888; In re Pace, 182 Misc. 2d 618, also be presented, although it is not necessary to prove 699 N.Y.S.2d 257 (Sup. Ct., Suffolk Co. 1999). these factors by clear and convincing evidence.61 24. In re Shah, supra note 2 at 159. 25. Id. at 161. Conclusion 26. 226 A.D.2d 79, 652 N.Y.S.2d 329 (3d Dep’t 1996) leave to When a client calls with one of those difficult ques- appeal denied, 89 N.Y.2d 814, 659 N.Y.S.2d 854 (1997). tions appearing at the beginning of this article, all is not 27. Id. at 83-4; In re Klapper, N.Y.L.J. August 9, 1994 p.26, col.1 lost. By incorporating the substituted judgment doc- (Sup. Ct., Kings Co.). trine, Article 81 provides a method to do last resort es- 28. In re Baird, 167 Misc. 2d 526, 531, 634 N.Y.S.2d 971 (Sup. Ct., Suffolk Co. 1995). tate and Medicaid planning. Similarly, Article 17 and 29. In re Shah, supra note 2; In re John XX, supra note 26; In re 17-A guardians can use substituted judgment to do Scheiber, N.Y.L.J. October 18, 1993 p.38, col.5 (Sup.Ct., Suf- planning and decision making for their wards. folk Co.); In re Schultze, N.Y.L.J. September 3, 1996 p.30, The procedure, while not simple, is not impossible col. 1 (Sur. Ct., New York Co.). because forms are available.62 Nevertheless, the attorney 30. In re Burns, supra note 12. must be prepared to meet the evidentiary requirements. 31. Calvanese, supra note 21; Cricchio, supra note 15; In re Gold- In short, even in extreme situations it is still not too late blatt, supra note 20; In re Pace, supra note 23. to do estate planning for the benefit of the incapacitated 32. In re Daniels, 162 Misc. 2d 840, 618 N.Y.S.2d 840 (Sup.Ct., Suffolk Co. 1994). person and his or her family, and to save taxes. 33. In re Pflueger, 181 Misc. 2d 294, 693 N.Y.S.2d 419 (Sur. Ct., N.Y. Co. 1999); In re Baird, supra note 28; In re Scheiber, 1. See Report of the Law Revision Commission in McKin- supra note 29; In re Lisle, N.Y.L.J. August 9, 1994 p.27 col.1 ney’s 1991 Session Laws of New York p. 1805. (Sur. Ct., Nassau Co). 2. In re Shah, 95 N.Y.2d 148, 711 N.Y.S.2d 824 (2000). 34. In re Shah, supra note 2; In re John XX, supra note 26; In re 3. In re Florence, 140 Misc. 2d 393, 530 N.Y.S.2d 981 (Sur. Ct., DaRonco, 167 Misc.2d 140, 638 N.Y.S.2d 275 (Sup. Ct., Nassau Co. 1988). Westchester Co. 1995); In re Beller (Maltzman), N.Y.L.J. 4. 35 Eng.Rep. 878. August 31, 1994 p. 23, col.4 (Sup. Ct., Kings Co.); In re Klapper, supra note 27. 5. Florence, supra, note 3. 35. In re John XX, supra note 26; In re Scheiber, supra note 29. 6. Id. at 395. 36. MHL § 81.21(a). 7. 142 Misc. 2d 85, 536 N.Y.S.2d 393 (Sur. Ct., Nassau Co. 1988). 37. In re Elsie B., 265 A.D.2d 146, 707 N.Y.S.2d 695 (3d Dep’t 2000). 8. Id. at 87. 38. In re Garbow, 155 Misc. 2d 1001, 591 N.Y.S.2d 754 (Sur. Ct., 9. MHL § 81.01. Kings Co. 1992). 10. MHL § 81.29(b). 39. Sup. Ct., Broome Co. Index No. 96-960. 11. MHL § 81.21(e). 40. Internal Revenue Code (IRC) § 2035. 12. In re Burns, 287 A.D.2d 862, 731 N.Y.S.2d 537 (3d Dep’t 41. IRC § 2503. 2001). 42. MHL § 81.21(e)(2). 13. MHL § 81.21(d). 43. See MHL §§ 81.22(b)(2) and 81.29(d). A guardian may not 14. See EPTL 7-1.12 and Social Services Law (SSL) § 366(2)(b) revoke or amend an existing health care proxy, only the for the requirements for a supplemental needs trust. court can do so. 38 Journal | March/April 2002 44. MHL § 81.22(a)(8) and (9). 54. MHL §§ 81.11(f) and 81.07(c). 45. In re Rimler, N.Y.L.J. March 22, 1995 p. 30, col.4 (Sup. Ct., 55. Pattern Jury Instructions 7:65 (West 2001). Queens Co.); In re Jospe, N.Y.L.J. January 30, 1995 p.30, 56. In re Karp, 145 A.D.2d 208, 537 N.Y.S.2d 510 (1st Dep’t col. 2 (Sup. Ct., Suffolk Co.). 1989). 46. MHL § 81.22(b)(1). 57. Felix v. Herman, 257 A.D.2d 900, 684 N.Y.S.2d 62 (3d Dep’t 47. MHL § 81.29(e). 1999). 48. In re O’Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886 (1988); 58. In re Daly, supra note 7; In re Schultze, supra note 29. Law Revision Commission Comments to MHL § 81.29 in McKinney’s Practice Commentaries to MHL § 81.29. 59. MHL § 81.21(b). 49. In re O’Connor, supra note 48; In re Kyle, 165 Misc. 2d 175, 60. MHL § 81.21(e). 627 N.Y.S.2d 903 (Sup. Ct., Suffolk Co. 1995). 61. In re Burns, supra note 12 at 863. 50. In re Thoemmes, 238 A.D. 541, 264 N.Y.S. 829 (4th Dep’t 62. See Warren’s Heaton on Surrogates’ Court Practice, chap. 50, 1933); Warren’s Heaton on Surrogate Courts, § 48.08(2). Matthew Bender 1998; Kassoff, Elder Law & Guardianship 51. MHL §§ 81.02(b) and 81.12(a). in New York (West 2001); N.Y. St. B. Ass’n, Guardianship 52. MHL § 81.21(e). Practice in New York (Robert Abrams ed. 1997). 53. MHL § 81.11. Real Estate Titles, Third Edition An Essential Guide To The Many Complex Subjects Surrounding Real Estate Titles —updated with new decisions, statues and regulations • The Nature of Title and Estates in New York • Search and Examination of Title • Parties and Capacity to Buy and Sell • Federal Deposit Insurance Corporation • Devolution of Title by Death • Real Estate Descriptions Plottings, Surveys and Maps • Deeds • Mortgages • Liens and Encumbrances • and much more! List Price: $160 (incls. $11.85 tax) Mmbr. Price: $130 (incls. $9.63 tax) To order call 1-800-582-2452 or visit us on- ® line at www.nysba.org Product Number: 42101 Source Code: CL1536 New York State Bar Association Journal | March/April 2002 39 Risk of SLAPP Sanction Appears Lower for Internet Identity Actions In New York Than in California BY ELIZABETH TROUP TIMKOVICH magine the following hypothetical situation: SLAPP law. However, when pursuing an Internet iden- I tity action as described in the hypothetical posed here, it A corporate client has discovered that someone (an is still important to keep in mind the various other employee, former employee, disgruntled investor, etc.) remedies for frivolous or malicious suits discussed is anonymously posting defamatory, libelous, or confi- below. One or more of them might be used by Internet dential information about the company on an Internet poster defendants to win sanctions or attorney fees. Web site. Your client asks you to file a discovery action First Amendment Concerns against the Internet Service Provider to obtain the name To help practitioners evaluate whether actions might of the anonymous poster, needed, you would argue, to be classified as SLAPP suits and how defendants might file a lawsuit against her. The company’s main goal is to respond to those actions, it is helpful to understand the locate the poster and encourage her to stop posting such concerns underlying anti-SLAPP laws and the various information; an actual lawsuit against her is not neces- remedies, in addition to anti-SLAPP statutes, that de- sarily wanted. fendants can invoke in these actions. If you bring such a bill or suit, and the court ulti- The Petition Defense and Its Limitations The main mately decides that there is no basis for your claim, purpose behind anti-SLAPP legislation is protection of what kind of sanctions might you or your client face? the First Amendment right to petition. There are limits, Could your action against the Internet poster qualify as however, to a defendant’s ability to claim this petition a “SLAPP” (Strategic Litigation Against Public Partici- privilege. “Sham” petitioning, for example, in which the pation) action,1 chilling a defendant’s right to free government process is used to injure an opponent, falls speech or petition? In California, the answer would ap- outside the protection of the petition clause.3 In addi- pear to be yes; but would your Internet identity action tion, the right to petition does not offer an absolute priv- fall victim to New York’s anti-SLAPP law? ilege to one who defames. According to the Supreme The California Case: GTMI Court in McDonald v. Smith,4 if a defendant posts infor- In a U.S. District Court case decided in California, mation that she knows is false, or recklessly disregards Global Telemedia International, Inc. v. Doe 1,2 (GTMI) a the truth, First Amendment protection does not extend 5 publicly traded company filed a trade libel and defama- to her. For example, in In re Subpoena Duces Tecum to 6 tion suit against John Doe defendants for posting al- America Online, Inc., a suit to obtain the identities of legedly libelous material about the company on an In- anonymous Internet posters of defamatory and confi- ternet message board. The court declared the plaintiff’s dential information, a Virginia court held that defama- claims against defendants Barry King and Ronald tory statements and the release of confidential insider Reader to be SLAPP actions and dismissed them, in the information relating to a publicly traded company were process granting the two defendants attorney fees not entitled to protection under the First Amendment. under California’s anti-SLAPP statute. There is also support for the limitation of First It is doubtful that the same decision would have been Amendment protection in cases of contractual breaches. reached under New York’s anti-SLAPP law. New York’s anti-SLAPP statute is much narrower than California’s, under which the GTMI case was decided; New York ELIZABETH TROUP TIMKOVICH is a third-year law student statutory anti-SLAPP protections are reserved for citi- at Yale Law School. After graduation, she will be an asso- zens petitioning against public applicants or permittees. ciate at the law firm of Axinn, Veltrop & Harkrider in its The hypothetical Internet identity plaintiff would there- Hartford, Connecticut, office. fore not need to fear prosecution under New York’s anti- 40 Journal | March/April 2002 A Michigan district court noted that the use of trade se- in state courts on the basis of malicious prosecution or crets in violation of a confidentiality agreement or in abuse of process, or in federal courts for civil rights vio- breach of a fiduciary duty is not protected by the First lations, and generally allow recovery of compensatory Amendment.7 These restrictions on a defendant’s ability damages and, sometimes, punitive damages. The to claim protection for sham petitions, defamatory SLAPP-back has become the latest legal growth indus- speech or speech made in breach of contract could try in the SLAPP area.13 Even law firms have been strengthen the hypothetical Internet identity suit SLAPPed back for filing SLAPP actions.14 against a First Amendment challenge. The Opinion Privilege of the First Amendment As seen in the GTMI case, an Internet poster accused of Some courts hold that the tort defamation can enjoy free speech protection for state- ments determined by a court to clearly be opinions (as of abuse of process may be perceived by a reasonable person) rather than state- premised on the mere filing of ments of objective fact. This First Amendment opinion privilege was explained by the Supreme Court in a suit, even one that is successful. Milkovich v. Lorain Journal Co.,8 where the Court declared that the operative distinction lay between statements that imply an assertion of objective facts and those that Tort of Abuse of Process In addition to SLAPP-back do not. suits, states can punish plaintiffs for wrongful litigation [Because] implicit assertions of fact can harm reputa- through common law litigation torts, such as abuse of tion just as much as explicit assertions . . . , [t]he process, in which the original defendant sues the former [Milkovich] Court therefore rejected the proposition that plaintiff for damages arising from the prior suit. The tort defamatory statements should be protected as long as it of abuse of process applies to litigants who use litigation is clear that they reflect the author’s point of view, or as for ulterior purposes,15 and “it is immaterial that the long as they state accurately the facts on which they are based. Such statements are nonetheless actionable if process was properly issued, that it was obtained in the they imply factual assertions that are defamatory and course of proceedings that were brought with probable untrue.9 cause and for a proper purpose, or even that the pro- Since the decision in Milkovich, courts that have ceedings terminated in favor of the person instituting or 16 granted the opinion privilege to defamation defendants initiating them.” look to the context and reasonable reader perceptions Some courts hold that the tort of abuse of process when determining whether statements imply objective may be premised on the mere filing of a suit, even one fact.10 Internet poster defendants, such as King and that is successful and even when the plaintiff has mixed Reader in GTMI, will therefore be able to make use of motives in filing suit.17 However, many courts, includ- this opinion privilege in many circumstances, due to the ing the Second Circuit, are reluctant to apply this doc- context in which their statements are posted. trine; they will not find an abuse of process in suits that are otherwise meritorious but filed for an ulterior pur- Potential Remedies Available to Defendants pose.18 This restrictive treatment of the abuse of process In addition to the remedies provided in individual tort by the Second Circuit bodes well for our hypotheti- state anti-SLAPP statutes, most of which contain provi- cal Internet identity suit client if a claim of abuse of sions for the recovery of costs and attorney’s fees, there process is raised by the defense. are many common law and statutory methods for im- Rule 11 Another potentially powerful tool in the posing sanctions and recovering monetary awards. For hands of the defense in an Internet identity action is example, Rule 11 of the Federal Rules of Civil Procedure (FRCP), [s]everal avenues are available to penalize attorneys for which sanctions attorneys and/or their clients for frivo- infractions of the rules requiring that only meritorious lous litigation. Under this rule, litigants are required to claims be advanced. These remedial measures include Rule 11 sanctions, statutory penalties for attorneys who certify that their pleadings are “not being presented for “unreasonably and vexatiously” multiply litigation, any improper purpose, such as to harass or to cause un- and the inherent power of the courts to impose sanc- necessary delay or needless increase in the cost of litiga- tions on lawyers who act in bad faith to abuse the judi- tion.”19 A plaintiff must certify both that it has conducted 11 cial process. a reasonable inquiry into the factual and legal merit of SLAPP-Back Suits Some states, including New the complaint and that it is not filing the complaint for York,12 provide for “SLAPP-back” suits against SLAPP any improper purpose. If these requirements are vio- plaintiffs for injuries resulting to defendants from the lated, sanctions are generally permitted under Rule 11 original SLAPP actions. These suits are usually brought (as under many states’ “frivolous” suit statutes)20 in the Journal | March/April 2002 41 court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such The Court’s Analysis in GTMI conduct.”23 A defendant in a SLAPP-like action also might pur- Defendants King and Reader, both small investors sue a claim under 42 U.S.C. § 1988, under which, if the in Global Telemedia International, Inc. (GTMI), ar- suit is filed in federal court, the defendant may be gued that the plaintiff GTMI’s suit was a SLAPP suit, awarded attorney’s fees if the suit is shown to be merit- brought against them as a transparent effort to in- less. timidate individuals who were critical of the plain- tiff’s corporate performance. The court agreed with However, just as with a malicious prosecution suit, a motion for fees under 1988 cannot be filed until favor- the defendants and held that the California anti- able termination of the suit upon which the motion is SLAPP statute permitted dismissal of the lawsuit based. Receiving fees under this statute is subject to the since “the alleged bad acts arose from [the defen- same limitations as receiving sanctions under Rule 11. If dants’] exercise of free speech ‘in connection with a the SLAPP defendant cannot show that the claim was public issue,’’’ and the plaintiff could not show a completely without merit, she will not be awarded fees 24 probability of success on its claims.1 under the statute. In ruling that the defendants’ speech qualified as Courts’ Inherent Power to Sanction In addition to dealing with a “public issue,” the court reasoned that statutory sanctioning powers (such as Rule 11 and 28 GTMI was a public company with thousands of in- U.S.C. § 1927), the Supreme Court has held that along vestors. The court further found that King’s and with the powers derived from statutes and court rules, Reader’s statements were opinion rather than fact, federal courts have the inherent power to control the and therefore not actionable for trade libel or proceedings before them, which includes the power to defamation. The court looked at the message board impose sanctions on parties and their lawyers for abus- context of the postings when determining that the ing the judicial process.25 statements were merely individual opinions. In addi- Most courts impose such inherent power sanctions tion, the court found that the plaintiff could not show only in extraordinary cases, e.g., when the party has that damages had resulted from the defendants’ acted in bad faith and filed a frivolous pleading.26 For postings. Therefore, because GTMI was found to be example, the Second Circuit, in Oliveri v. Thompson,27 an entity of public concern, about which the defen- noted that the inherent power standard is to be inter- dants had a First Amendment right to freely speak preted restrictively: their negative opinions, GTMI’s suit against the de- fendants was dismissed under the California anti- “[W]e have declined to uphold awards under the bad- SLAPP law, California Code of Civil Procedure faith exception absent both ‘clear evidence’ that the challenged actions are ‘entirely without color, and [are § 425.16, which mandates an award of attorney’s fees taken] for reasons of harassment or delay or for other to “SLAPPed” defendants. improper purposes’ and ‘a high degree of specificity in the factual findings of the lower courts.’”28 1. Global Telemedia Int’l, Inc. v. Doe 1, 132 F. Supp. 2d 1261, 1265 (C.D. Cal. 2001). This restrictive treatment of the inherent power to sanc- tion by the Second Circuit should favor the plaintiff in the hypothetical Internet identity suit being discussed amount of a defendant’s costs and attorney’s fees.21 here. Luckily, however, the Second Circuit does not award Rules of Professional Responsibility New York at- sanctions for a plaintiff’s improper purpose if the com- torneys filing Internet identity suits that could be plaint is otherwise meritorious.22 This treatment by the deemed frivolous might also be sanctioned profession- Second Circuit of Rule 11 could work in favor of the hy- ally. Under the Model Rules of Professional Conduct, pothetical Internet identity action, but New York attor- Disciplinary Rule 7-102(A)(1), adopted by New York, a neys should nevertheless not rule out the possibility of lawyer is ethically prohibited from “fil[ing] a suit, as- sanctions for suits deemed frivolous under New York’s sert[ing] a position, conduct[ing] a defense, delay[ing] a frivolous suit statute, 22 N.Y.C.R.R. § 130-1.1, found in trial, or tak[ing] other action on behalf of the client when chapter I, Standards and Administrative Policies. the lawyer knows or when it is obvious that such action Additional Sanctioning Forms In addition to Rule would serve merely to harass or maliciously injure an- 11, 28 U.S.C. § 1927 punishes lawyers whose groundless other.” This rule might well apply to an attorney who litigation techniques waste time and cost their oppo- files a SLAPP-like suit in New York, subjecting him or nents money by unnecessarily prolonged litigation. her to various sanctions under the attorney disciplinary Under this statute, an attorney “may be required by the process. 42 Journal | March/April 2002 Comparison of California nents, but it fails to provide any broader protection for and New York SLAPP Laws the right of petition.”36 California’s Broad Anti-SLAPP Statute Currently, New York’s anti-SLAPP statute has been given a very at least 13 states have adopted legislation to combat narrow construction since the first case that interpreted 37 SLAPPs. These are California, Delaware, Florida, it. The court in Harfenes v. Sea Gate Ass’n, Inc. found Georgia, Maine, Massachusetts, Minnesota, Nebraska, that the statute did not apply to a suit brought against Nevada, New York, Rhode Island, Tennessee, and residents trying to delay a federal clean-up loan to their Washington.29 California’s statute, under which GTMI homeowners association because, as statutorily defined, the loan application process did not constitute a public was decided, is one of the broadest, much broader than 38 New York’s. proceeding. The Harfenes court recognized that the new law (the anti-SLAPP statute), being in derogation of The statute, California Code of Civil Procedure the common law,39 had to be narrowly construed; there- § 425.16, explicitly states that “this section shall be con- fore, the only way a defendant could claim protection strued broadly.”30 Immunized activities may include not under the anti-SLAPP statute was if she directly chal- just speech targeted at the government, but activities in lenged the permit application.40 connection with private persons and entities, especially when (as with the publicly held company in GTMI) a New York’s scheme for providing recovery of costs large, powerful organization may have an impact on the and fees to a SLAPP target is unusually complex: a de- lives of many individuals.31 Once a defendant has in- fendant can recover fees and costs if the plaintiff’s ac- voked the protection of this anti-SLAPP statute, the bur- tion “was commenced or continued without a substan- den switches to the plaintiff to show a probability of tial basis in fact and law and could not be supported by success on its claims and to satisfy an actual malice a substantial argument for the extension, modification 41 standard by showing that the defendant’s defamatory or reversal of existing law.” Further compensatory statement was made with actual knowledge or reckless damages can be awarded upon a showing that the disregard of its falsity.32 If a plaintiff fails to meet these plaintiff filed the action to harass, intimidate, punish, or burdens, the prevailing defendant under § 425.16(c) otherwise maliciously inhibit the free exercise of speech, 42 can recover reasonable attorney’s fees and costs. petition or association rights. Punitive damages only become available if those illegitimate designs are shown “Awards for attorney’s fees [in California] for motions 43 to strike have ranged from a low of $3,000 to a high of to have been the plaintiff’s “sole purpose.” In making $130,506.71. The average attorney fee awards range these awards, New York courts exercise discretionary from $15,000 to $40,000.”33 authority; imposition of attorney fees and costs in every situation in which a SLAPP claim is interposed is not Under the broad coverage of California’s anti-SLAPP mandated.44 statute, it is not surprising that Internet posters such as King and Reader in the GTMI case succeeded in brand- Conclusion ing the plaintiff’s Internet identity suit a SLAPP and Although there are some similarities between the won attorney fees. However, New York’s anti-SLAPP anti-SLAPP statutes of California and New York, such as statute is much narrower, and there is as yet no New actual malice requirements (New York, like California, York case law defining Internet identity actions as requires a plaintiff seeking damages to demonstrate ac- SLAPPs. tual malice on the part of the defendant), and provisions New York’s Narrow Anti-SLAPP Statute Unlike Cal- for attorney fees and costs, it is the difference in the ifornia’s statute, which protects statements “made in a scope of their protective coverage that is vital to the hy- place open to the public or a public forum in connection pothetical Internet identity scenario considered in this with an issue of public interest” and “any other conduct article. in furtherance of the exercise of the constitutional right The coverage of California’s anti-SLAPP statute is so of petition or the constitutional right of free speech in broad that it easily encompasses the hypothetical Inter- connection with a public issue or an issue of public in- net identity action. However, because New York’s terest,”34 the protective coverage of New York’s anti- statute is so much narrower, New York attorneys repre- SLAPP statute is much narrower. New York’s anti- senting typical (non-public applicant or permittee) cor- SLAPP protection is limited to “action[s] involving porate clients in the same situation need not yet fear public petition and participation” in regard to public ap- such a result. plicants or permittees.35 “New York’s narrow definition Because New York’s anti-SLAPP statute is so much [of ‘public applicant or permittee’] is well-suited to the narrower than California’s, under which GTMI was de- paradigmatic situation where, for example, a developer cided, the defendants in GTMI would not have suc- applies for a permit and retaliates against citizen oppo- ceeded in their dismissal and motions for fees and costs Journal | March/April 2002 43 if the case had been decided under New York law. It is Even without such a statutory actual malice requirement, unlikely that an Internet poster, making defamatory remember that public figures have long been required to satisfy an actual malice standard in defamation cases. See statements or posting trade secret information about a Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); New corporate entity, can claim protection under New York’s York Times Co. v. Sullivan, 376 U.S. 254 (1964). Courts have anti-SLAPP law. New York’s anti-SLAPP statute is de- often qualified corporations as public figures. See, e.g., signed to protect only those citizens petitioning against GTMI, 132 F. Supp. 2d 1265. In Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 280 (3d Cir. 1980), the court stated: public applicants or permittees. Therefore, filing an In- Application of the public figure rule to sellers such ternet identity suit on behalf of the hypothetical corpo- as Steaks, which through advertising solicit the rate plaintiff should not result in sanctions under New public’s attention and seek to influence consumer York’s anti-SLAPP law. choice, therefore serves the values underlying the First Amendment by insulating consumer reporters Nevertheless, it is important for New York practi- and advocates from liability unless they have tioners to beware of other sanctions and remedies avail- abused their positions by knowingly or recklessly able to victims of frivolous suits, such as Rule 11 or 22 publishing false information. N.Y.C.R.R. § 130-1.1, under Standards and Administra- 6. 52 Va. Cir. 26 (Va. Cir. Ct. 2000). tive Policies, before pursuing a legal action with the ul- 7. See Ford Motor Co. v. Lane, 67 F. Supp. 2d 745, 750 (E.D. terior motive of inhibiting an Internet poster’s speech. Mich. 1999). The court ultimately denied the plaintiff’s injunction against the defendant’s publication of Ford’s trade secrets on defendant’s Web site because such an in- 1. Barbara Arco, When Rights Collide: Reconciling the First junction constituted an invalid prior restraint of free Amendment Rights of Opposing Parties in Civil Litigation,52 speech in violation of the First Amendment. U. Miami L. Rev. 587, 614 (1998) (quoting Wilcox v. Supe- rior Court, 27 Cal. App. 4th 809, 816 (Ct. App. 1994) (here- 8. 497 U.S. 1 (1990). In New York, Immuno AG v. Moor- inafter “Arco”): Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 906 (1991), grants a more expansive opinion privilege than Milkovich. The prototypical SLAPP suit is one in which a large land developer files a claim against environmental 9. Lyrissa Barnett Lidsky, Silencing John Doe: Defamation and activists or neighborhood associations intending to Discourse in Cyberspace, 49 Duke L.J. 855, 924–25 (2000) chill their political or legal opposition to the filer’s (citing Milkovich, 497 U.S. at 18). plans. The filer’s purpose is to gain an economic ad- 10. For a recent New York case following the decision in vantage over its target, rather than “to vindicate a Milkovich, see Flamm v. American Ass’n of Univ. Women, legally cognizable right.” 201 F.3d 144, 148 (2d Cir. 2000) (“[T]he dispositive inquiry 2. 132 F. Supp. 2d 1261 (C.D. Cal. 2001) (defendants Reader here is the same: whether the challenged statement can and King’s motions to dismiss granted). Based on the reasonably be construed to be stating or implying facts GTMI court docket, the court on May 4, 2001, granted about the defamation plaintiff”). Reader’s motion for attorney’s fees and costs in the 11. Arco, supra note 1, at 620–21. amount of $37,276.83 and denied Reader’s motion for sanctions against plaintiff’s attorney. Also on May 4, the 12. New York’s anti-SLAPP statute allows the SLAPP victim court granted King’s motion for attorney’s fees in the to bring an immediate counteraction to recover damages amount of $23,959.00, then amended the award to where the action has been initiated or continued under $17,969.25. (The final status of the case and awards is specious circumstances. Available relief under New York somewhat unclear from the docket, as the GTMI suit was law includes attorney’s fees and costs, compensatory and dismissed without prejudice on July 20, 2001, for lack of punitive damages. See Civ. Rights Law § 70-a. prosecution.) 13. Carol Rice Andrews, Motive Restrictions on Court Access: A 3. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 First Amendment Challenge, 61 Ohio St. L.J. 665, 739 (2000) U.S. 365, 380 (1991); see also Eastern R.R. Presidents Confer- (“Andrews”). ence v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961) 14. See, e.g., Mortensen v. S&S Constr. Co., No. 46 61 26 (Cal. (antitrust liability can attach to petitioning activity that Super. Ct. Oct. 10, 1990), aff’d sub nom. Mortensen v. Gib- constitutes “a mere sham to cover what is actually noth- son, Dunn & Crutcher, No. G010431 (Cal. Ct. App. 1992) ing more than an attempt to interfere directly with the (court found law firm liable for bringing SLAPP suit, and business relationships of a competitor”). target won $80,000 verdict). 4. 472 U.S. 479 (1985). 15. The Restatement (Second) of Torts § 682 (1977) defines 5. Many states with anti-SLAPP statutes, including New this tort as “One who uses a legal process, whether crimi- York, require a showing of actual malice by a defendant nal or civil, against another primarily to accomplish a in order for a plaintiff to recover damages in a defama- purpose for which it is not designed, is subject to liability tion case. See, e.g., N.Y. Civil Rights Law § 76-a(2) (“Civ. to the other for harm caused by the abuse of process”. Rights Law”). Actual malice, as explained by the McDon- 16. Restatement (Second) of Torts § 682, cmt. a (1977). ald Court and others, “means that the SLAPP plaintiff will have to prove that the communication provoking the 17. See Andrews, supra note 13, at 727–30 (citing, e.g., Poduska lawsuit was made with knowledge of its falsity or reck- v. Ward, 895 F.2d 854 (1st Cir. 1990) which affirmed an less disregard thereof.” Jennifer E. Sills, SLAPPs (Strategic award for abuse of process, even though employer had Litigation Against Public Participation): How Can the Legal won the underlying claim, because employer’s “bad” System Eliminate Their Appeal?, 25 U. Conn. L. Rev. 547, motive of wanting to cause employee to feel awkward in 580 (1993) (“Sills”). the industry constituted abuse). 44 Journal | March/April 2002 18. See, e.g., Sussman by & Through Guilden v. Bank of Isr., 56 26. See Andrews, supra note 13, at 724. F.3d 450 (2d Cir. 1995) (non-frivolous complaint filed in 27. 803 F.2d 1265. part to exert pressure on defendants was not filed for im- proper purpose, and pre-filing letter threatening lawsuit 28. Id. at 1272 (quoting Dow Chem. Pacific Ltd. v. Rascator Mar- and warning of adverse consequences to defendants did itime S.A., 782 F.2d 329, 344 (2d Cir. 1986)). not reflect improper purpose). 29. See Cal. Code Civ. Proc. § 425.16; 10 Del. C. §§ 8136–8138; 19. FRCP 11. Fla. Stat. § 768.295; O.C.G.A. § 9-11-11.1; 14 M.R.S. § 556; 20. See, e.g., N.Y. Comp. Codes R. & Regs. tit. 22, § 130-1.1 Mass. Ann. Laws ch. 231, § 59H; Minn. Stat. §§ (N.Y.C.R.R.). New York has declined to explicitly adopt 554.01–554.05; R.R.S. Neb. §§ 25-21, 246; Nev. Rev. Stat. Rule 11, believing “that an amendment to Part 130 of the Ann. §§ 41.650–41.670; Civ. Rights Law §§ 70-a, 76-a; Rules of the Chief Administrator requiring the attorney’s CPLR 3211, 3212; R.I. Gen. Laws §§ 9-33-1–9-33-4; Tenn. signing of all court papers would be preferable.” 1997 Code Ann. §§ 4-21-1001–4-21-1003; Rev. Code Wash. Recommendations of Advisory Committee on Civil Prac- (ARCW) §§ 4.24.500–4.24.520. tice. 30. This statement was added during the 1997 amendment of Note that the statutory cap for sanctions awarded for § 425.16. Subsequently, in 1999, the California Supreme frivolous conduct under § 130-1.1 is $10,000. See Gordon v. Court in Briggs v. Eden Council for Hope & Opportunity, 19 Marrone, 155 Misc. 2d 726, 590 N.Y.S.2d 649 (Sup. Ct., Cal. 4th 1106 (Cal. 1999), definitively ended the idea that Westchester Co. 1992) (petitioner was properly assessed there was any proof requirement for the SLAPPee as to $10,000 maximum as sanction for frivolous conduct “public issue” where the act underlying the lawsuit was under § 130-1.1(c) for bringing retaliatory SLAPP suit an activity falling under § 425.16(e)(1) or (2). For a discus- without substantial legitimate purpose, notwithstanding sion of this decision, see Kathryn W. Tate, California’s that petitioner’s claim was colorable). The Gordon court Anti-SLAPP Legislation: A Summary of and Commentary on noted that § 130-1.1 “is clearly broader in reach than its Operation and Scope, 33 Loy. L.A. L. Rev. 801, 824–26 [FRCP] 11.” Id. at 730. “By embracing frivolous conduct (2000) (“Tate”). undertaken for improper purpose without limitation to 31. See, e.g., Church of Scientology v. Wollersheim, 42 Cal. App. specific acts as in the case of rule 11, i.e., filing, [§ 130-1.1] 4th 628 (Cal. Ct. App. 1996). permits the court to consider more varied conduct.” Id. 32. See, e.g., Wilcox v. Superior Court, 27 Cal. App. 4th 809 21. Since 1993, FRCP 11 makes sanctions permissive rather (Cal. Ct. App. 1994) (discussing actual malice standard); than mandatory, and courts imposing sanctions may take see also Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. into account a number of factors, including whether the 1999) (dismissing plaintiff’s libel suit against Internet violation was willful. See FRCP 11(c)(1)(A). One of the poster for failure to sufficiently plead actual malice and, conditions subject to which a court may impose appropri- therefore, failure to show that plaintiff would probably ate sanctions is a ‘safe harbor’ provision giving parties 21 prevail on his claims). days to withdraw offending pleadings and avoid sanc- tions. 33. Tate, supra note 30, at 844–45 (internal citations omitted). 22. See, e.g., Sussman, 56 F.3d at 458–59. Sussman noted the 34. See Cal. Code Civ. Proc. § 425.16(e). split in the circuits and adopted the holding of Townsend 35. See Civ. Rights Law § 76-a(1). New York’s anti-SLAPP law v. Holman Consulting Corp., 929 F.2d 1358 (9th Cir. 1991) is embodied in Civ. Rights Law §§ 70-a and 76-a, and (en banc), which singled out complaints and counter- CPLR 3211 and 3212. claims for special treatment under Rule 11: “[I]t would be counterproductive to use Rule 11 to penalize the assertion 36. Jerome I. Braun, Increasing SLAPP Protection: Unburdening of non-frivolous substantive claims, even when the mo- the Right of Petition in California, 32 U.C. Davis L. Rev. 965, tives for asserting those claims are not entirely pure.” 1037 (1999). Townsend, 92 F.2d at 1362; see Oliveri v. Thompson, 803 F.2d 37. 167 Misc. 2d 647, 647 N.Y.S.2d 329 (Sup. Ct., N.Y. Co. 1265, 1275 (2d Cir. 1986) (stating that Rule 11 is violated 1995). only when it is patently clear that a claim has absolutely no chance of success). 38. See id. 23. 28 U.S.C. § 1927. 39. The New York anti-SLAPP law changed the common law by creating a new cause of action by placing restrictions 24. Sills, supra note 5, at 575 (citing Hamer v. Lake County, 819 on a public applicant’s ability to access the court by re- F.2d 1362, 1367 (7th Cir. 1987), which quotes Hughes v. quiring him to demonstrate that his claim has a substan- Rowe, 449 U.S. 5, 14 (1980) (the prevailing defendant must show that the suit was “meritless in the sense that it is tial, rather than reasonable, basis in law or fact. See id. at groundless or without foundation”)). 652–53. 25. Arco, supra note 1, at 624 (citing Roadway Express, Inc. v. 40. See id. at 653. Piper, 447 U.S. 752, 764–67 (1980)). Note that the only 41. Civ. Rights Law § 70-a(1)(a). meaningful difference between an award made under the 42. See Civ. Rights Law § 70-a(1)(b). court’s inherent judicial power to sanction and an award made under 28 U.S.C. § 1927 is that awards under § 1927 43. See Civ. Rights Law § 70-a(1)(c). are made only against attorneys, while an award made 44. See, e.g., West Branch Conservation Ass’n v. Planning Bd., under the court’s inherent power may be made against 222 A.D.2d 513, 636 N.Y.S.2d 61 (2d Dep’t 1995). an attorney, a party, or both. Both inherent-power awards and awards made under § 1927 require findings of bad faith on the part of the plaintiff. See Oliveri, 803 F.2d at 1273. Journal | March/April 2002 45 Enhanced Notice Requirements In Property Tax Foreclosure Cases Give Owners More Protection BY DAVID C. WILKES rompted by the plight of a Rockland County received notice of a foreclosure on her townhouse in woman who claimed that she had never received Spring Valley. Rockland County contended that it had Pnotice of a pending foreclosure based on an un- attempted to notify Mireille Leroy of its pending fore- paid $58 property tax bill, New York’s Real Property Tax closure by mailing notices to her home address by first- 3 Law (RPTL) now provides a more rigorous method of class mail. When a county sheriff’s deputy arrived to mailing municipal foreclosure notices to property own- serve eviction papers, Ms. Leroy said she had never ers, but it also raises questions about what to do if there been informed about the foreclosure or auction-sale of is no evidence that the owner actually received notice of her home. the pending foreclosure. According to local newspaper reports, Ms. Leroy had The revised RPTL § 1125, in effect since August 23, bought the townhouse in 1996 from an owner who had 2000, places greater emphasis on proving that a foreclo- qualified for a veteran’s tax exemption. She did not sure notice was received, as opposed to whether a notice qualify for the exemption to continue, and the county was sent, and thus represents a fundamental shift in the billed her the difference of $58.67. Her plight caught the long-standing scheme of in rem proceedings. attention of local state legislators, and the result was the Before the change, RPTL § 1125 required only that a change in RPTL § 1125. municipality send foreclosure notices to interested par- The former procedure had required only an affidavit ties by “ordinary first class mail.” The principle that a stating that the notice had been mailed to the address municipality need only show that proper notice had found in the public records.4 When properly followed, been sent, with no requirement that a municipality en- the statutory mailing requirement gave rise to a rebut- sure receipt by the intended party, had withstood a table presumption that the item was received by the ad- sweeping overhaul of other tax foreclosure statutes in dressee.5 Whether the notice was actually received was 1995.1 Under those amendments, article 11 of the RPTL irrelevant. Claims that notices were never received were specified that such notice was to be sent to those whose by far the most common defense to a foreclosure, al- names and addresses were “reasonably ascertainable though a property owner who sought to rebut the pre- from the public record, including the records in the of- sumption faced a nearly insurmountable challenge. For fices of the surrogate of the county.”2 Often, notices were example, in T.J. Gulf, Inc. v. New York State Tax Commis- not, in fact, received by the intended recipient, usually sion,6 which involved a similar notice-mailing statute because the address in the public records was no longer where the party received mail. Even after the 1995 amendments, however, such non-receipt was of no con- DAVID C. WILKES is a member of Huff Wilkes, LLP in White Plains sequence, so long as notice was mailed. ([email protected]), where he Now, however, RPTL § 1125 differentiates between concentrates in property taxation and those who own the property and those who hold a non- condemnation. He is also the senior ownership interest such as a mortgage, a mechanic’s editor of Real Estate Review (West lien, a judgment, or another form of lien. The person Group). A graduate of City University who owns property subject to a tax lien must be sent no- of New York, he received a law degree tice “by certified mail with a return receipt requested,” from Boston University and a master’s while it remains sufficient for the municipality to send degree in real estate valuation from New York Univer- the others a notice by ordinary first-class mail. sity’s Real Estate Institute. Jean S. Huff, a partner in the firm, and Alexander Lycoy- Rockland Woman’s Plight annis, an associate, assisted in the preparation of this ar- The change in RPTL § 1125 came in the wake of a ticle. claim by a Rockland County woman that she had never 48 Journal | March/April 2002 under the state income tax law, the court held that the is not returned. In State v. International Fidelity Insurance challenging taxpayer would need to do more than Co.,9 which involved the question of whether certain merely deny receipt of the notice; rather: bond cancellation notices sent by an insurer were actu- ally received, the court quoted an earlier case in observ- [T]o rebut the presumption, the taxpayer must show that routine office practices [of the governmental entity] ing that, were not followed or that those practices were per- “where the method of mailing requires the addressee to formed so carelessly that it would be unreasonable to sign a return receipt, the presumption of receipt which assume that the notice was mailed.”7 attaches to first class mail is inapplicable, because the mailing cannot be received until the addressee signs for The taxpayer in T.J. Gulf, Inc. was unsuccessful. it.” The certified mail distinction has blanket support in Proceedings Under RPTL § 1125 several Federal Circuits, and at least tacit support in the Second Circuit. In examining the underlying presump- The sources from which municipalities must obtain tion and its origin, this court is convinced that the dis- the mailing addresses of taxpayers did not change when tinction is well taken.10 RPTL § 1125 was revised; municipalities are still obliged This seems to be the logical and likely approach for only to mail to those “whose name and address are rea- 8 courts in situations arising under the revised RPTL sonably ascertainable from the public record.” Whether § 1125. by ordinary mail or by certified, return receipt requested The more significant question when the card is not mail, the foreclosure notice may still go to the same returned is what additional measures must the munici- wrong address if that is the address in the public records. pality pursue to satisfy due process? The suggested an- And if it is the wrong address, the owner’s likelihood of swer is that the municipality must take any reasonable receiving the notice is as poor as it was before the revi- steps to locate the owner’s true address from readily sion of RPTL § 1125. available sources that will not impose great cost on the If the municipality gets it right, however, and the municipality in relation to the scope of the entire fore- green return receipt card is sent back with the recipient’s closure process. signature, the municipality now has the advantage of a Virtually all of the cases conclusive bar against a dealing with the issue of tax claim that the notice was foreclosure notices recog- not received. The address In contrast to past practice in nize that service is required found in the public records only upon those whose is usually correct and a re- the mailing of such notices, name and address are ceipt card is likely to be the municipality’s duty may no “known or readily ascer- signed and returned. longer end at the point of mailing. tainable.”11 These cases do The amended statute not impose a more in-depth does not, however, specify and costly search for the re- the consequences that cipient’s proper mailing address, such as by hiring a pri- would follow if a receipt card was not signed by the in- vate investigator. These cases make clear that even the tended recipient and returned. Is the mere act of mailing requirement that municipalities mail a notice (as op- the notice in the manner required by the statute suffi- posed to, for example, simple publication of notice in a cient compliance with the requirements of due process, newspaper) is an acceptable standard because it only even though it can now be known that receipt never oc- imposes “a minimal burden on the [municipality].”12 curred? Should the municipality’s receipt of a card So long as the additional procedure to locate the marked “unclaimed” trigger greater efforts to locate the owner comes at little additional cost, the prudent course owner and serve him or her with notice in a different for the municipality appears to be to take some addi- way? In contrast to past practice in the mailing of such tional steps when it is clear that the mailed notice was notices, the municipality’s duty may no longer end at not received. As a general rule, however, as the expense the point of mailing when a return receipt card is not re- of additional efforts to locate an owner grows, the due turned, or is returned stamped “unclaimed.” process requirement diminishes. New York courts have dealt infrequently with the It is safe to say that if the correct mailing information question of what to do when a return receipt card is not is not readily available in the official public records or returned with a proper signature, but they have consis- some other easily obtainable resource such as the tele- tently negated any presumption that the intended recip- phone book, a library, or the resources found on the In- ient actually received the notice. The general New York ternet, the municipality is not likely to be required to and federal rule is that there is no presumption of re- use greater and more costly efforts to find the owner. In ceipt when the sender includes a return receipt card that municipalities that routinely bring foreclosure proceed- Journal | March/April 2002 49 ings against hundreds or thousands of properties at a waiting for court approval, would jeopardize many re- time, case law suggests that going to more expensive, demptions and make the prosecution of tax foreclosures time-consuming lengths is an unjustifiably great ex- overwhelming, particularly when the additional pense, even though more intensive efforts might pro- charges may not be much more than another $50 to $100 duce better results. per parcel. Further, because tax foreclosures often involve many Municipal Foreclosure Costs parcels joined in a single proceeding, it is often impossi- The current RPTL § 1125 raises at least one other ble to accurately attribute costs on a per-parcel basis— question in light of foreclosure provisions that permit particularly prior to the judgment of foreclosure—other the municipality to recoup its foreclosure-related ex- than to simply estimate total costs from start to finish penses from the delinquent taxpayer. and divide by the number of parcels. RPTL § 1102 provides that a municipality’s reason- Under the current RPTL § 1125, the total cost of lo- able and necessary costs incurred in searching the pub- cating the delinquent taxpayer whose return receipt lic record, as well as legal services connected with fore- card is never returned with a proper signature must nec- closing a tax lien, may be added to an individual’s essarily increase by some amount the per-parcel costs of delinquent tax for purposes of calculating the amount 13 the proceeding from what it would otherwise have necessary to redeem the parcel. RPTL § 1102(e) permits been, making it more likely that the $150 “no questions a charge of up to $150 per asked” threshold will be ex- parcel to be added to the ceeded more frequently and delinquent tax “without sub- RPTL § 1125 provides property by a greater amount. stantiation” by the munici- The best and simplest rem- pality, but it further states owners in New York with an edy for RPTL § 1102, in con- that a greater amount may be additional degree of due process sideration of the practical me- charged to the delinquent chanics of tax foreclosure taxpayer “upon demonstra- that may lead to greater efforts proceedings, would be to tion to the satisfaction of the by tax-collecting municipalities establish several threshold court” that the additional charges that would increase costs were necessary. In prac- to locate delinquent owners. from $150, in accordance with tice, the combined costs of several factors that might in- title searches, in-house and clude (1) the stage of the proceeding at which the parcel outside attorneys’ time, municipal employees’ time, and is redeemed, (2) whether the municipality had to resort court filing fees typically add up to something more to additional measures to attempt to locate the owner, than $150 per parcel. This is particularly so in towns, vil- and (3) whether the return receipt card was either never lages and even small cities that are permitted to enforce returned, or was returned stamped “unclaimed” (this as- their own taxes, because their use of the foreclosure sumes that the address on the card that was used by the process lacks the economies of scale enjoyed by a county municipality matched the address shown in the public or large city. Unfortunately, this legislative scheme overlooks the records). fact that most properties are redeemed pursuant to The proposed schedule of charges would be similar RPTL § 1110 long before any substantive application is to the statutory costs provided by article 82 of the Civil made to the court for foreclosure relief.14 This is because Practice Law and Rules, by which a successful litigant the application to the court for a foreclosure judgment may recoup various specific charges associated with lit- pursuant to either RPTL § 1131 or § 1136 is usually made igation in accordance with the particular efforts that in a single proceeding covering perhaps hundreds or were required to obtain a judgment. The key difference even thousands of properties; the application for judg- in the proposed foreclosure fee charges would be that ment may come long after many properties have al- no court or clerk approval would be necessary, and in- ready been redeemed. stead, such fees would be allowed automatically in ac- Therefore, at the point when most taxpayers seek to cordance with an articulated set of foreclosure events. redeem their properties, no application has typically This would be only a minor departure from the current been made to the court. It is thus unlikely that when a scheme, but would account for the fact that charges in taxpayer redeems property, the foreclosure attorney excess of $150 are likely, and multiple court applications would be in a position to seek court approval for would be unduly burdensome and unnecessary. charges that may exceed $150 per parcel. Making sepa- For example, if a delinquent taxpayer redeemed a rate applications to the court to substantiate charges in parcel at an early stage of the proceeding, it is possible excess of $150 on each such occasion, and the time spent that the municipality would have taken only the pre- 50 Journal | March/April 2002 liminary step of buying an index number and filing a courts. The answer must be guided by the standards ap- List of Delinquent Taxes with the county clerk, pursuant plicable in the general framework of due process neces- to RPTL § 1122. At this stage, the $150 charge might still sary in tax foreclosures. automatically apply. If a parcel were redeemed later, for More work is also required by lawmakers to reform example after a petition of foreclosure was created and RPTL § 1102 so that municipalities will have the means filed pursuant to RPTL § 1123, an additional charge to recoup their costs quickly and efficiently and without could be automatically allowed without substantiation the need for multiple, unnecessary applications to the pursuant to RPTL § 1102. Further charges could be sim- court. ilarly specified upon publication of notice of foreclosure pursuant to RPTL § 1124, upon posting of notice,15 and 1. See David C. Wilkes, Real Property Interests May Be Signifi- then upon service of personal notice of foreclosure pur- cantly Affected by Sweeping Changes to RPTL, N.Y. St. B.J., suant to RPTL § 1125. If a properly addressed return re- Vol. 69, No. 6, at 14 (Sept./Oct. 1997). ceipt card was returned as “unclaimed,” and further 2. RPTL § 1125(1). 3. In fact, former Section 1125 required only one such no- time and effort were required to locate the property tice. owner, an additional automatic charge would be al- 4. See RPTL § 1128(1). lowed in a specified amount. 5. See, e.g., Rosa v. Board of Examiners, 143 A.D.2d 351, 352, With such a system of presumptive costs associated 532 N.Y.S.2d 307 (2d Dep’t 1988). with specific, identifiable events in a foreclosure pro- 6. 124 A.D.2d 314, 508 N.Y.S.2d 97 (3d Dep’t 1986). ceeding, the mechanical problems associated with the 7. Id. at 315. current version of RPTL § 1102 would be eliminated, 8. RPTL § 1125(1). and the parties would have a more clearly defined 9. 181 Misc. 2d 595, 694 N.Y.S.2d 896 (Sup. Ct., Albany Co. method for determining charges. 1999), aff’d in part, modified in part, 272 A.D.2d 726, 708 N.Y.S.2d 504 (3d Dep’t 2000). Conclusion 10. Id. at 600 (citations omitted) (quoting Metropolitan Life Ins. The current version of RPTL § 1125 provides property Co. v. Young, 157 Misc. 2d 452, 454, 596 N.Y.S.2d 653 (Civ. Ct., N.Y. Co. 1993)). owners in New York with an additional degree of due 11. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 process that may lead to greater efforts by tax-collecting (1983); Mullane v. Central Hanover Bank & Trust Co., 339 municipalities to locate delinquent owners. Municipali- U.S. 306, 318 (1950); McCann v. Scaduto, 71 N.Y.2d 164, ties may benefit as well, because when return receipt 176, 524 N.Y.S.2d 398 (1987); Congregation Yetev Lev D’Sat- cards are signed and returned, time-consuming battles mar v. County of Sullivan, 59 N.Y.2d 418, 425, 465 N.Y.S.2d 879 (1983). over whether notice was actually mailed will be 12. See, e.g., McCann, 71 N.Y.2d at 177. avoided. Where an item mailed with a return receipt 13. RPTL § 1102(1)(e), (f). card comes back unclaimed, it seems that something 14. See RPTL §§ 1110, 1111, 1112, 1114. more must be done to locate the delinquent owner; but 15. RPTL § 1124(4). the extent of those efforts must still be defined by the ® Member Discount Programs for more information, go to www.nysba.org/member/benefits NYSBA Products and Services Bank - Funds include Profit Sharing Plan, Defined Benefit Plan, Money Purchase Pension Plan, 401(k) Plan and Target Benefit Plan. • CLE Seminars, CLE Online, Audio and Video, Publications - Save with special member discounts. 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Journal | March/April 2002 51 RPL Requires Revolutionize Your Disclosure Statement Real Estate Practice ince March 1, most sellers of residential real property in New York State have been obliged to provide buy- Sers with a “Property Condition Disclosure State- NYSBA's Residential ment” answering 48 specific questions about the property. A copy of the four-page statement is reproduced on the Real Estate Forms page at the right.1 As mandated by a new Article 14 of the Real Property Law (RPL) (§§ 460 through 467), the statement must be A comprehensive and easy-to-use “delivered to a buyer or buyer’s agent prior to the signing automated document assembly system by the buyer of a binding contract of sale.”2 If the statement is not delivered, “the buyer shall re- • Increase accuracy and eliminate ceive upon the transfer of title a credit” of $500 against the repetitive typing agreed-upon purchase price.3 The law specifies that the statement is “not a warranty • Smart Formatting - calculations of any kind,” but a “knowingly false or incomplete state- are performed automatically and intelligently ment by the seller . . . may subject the seller to claims by the buyer prior to or after the transfer of title.”4 • Save Information - save data and After providing the statement but before the buyer use it to automatically complete takes title or occupancy, sellers have an obligation to pro- other forms vide revised information if they acquire knowledge that renders a previously provided statement “materially inac- • Comprehensive - Includes brokerage curate.”5 contracts; checklists; contracts of sale; Sellers who willfully fail to comply, “shall be liable for contract addenda/riders; forms the actual damages suffered by the buyer in addition to relating to contracts of sale; notes any other existing equitable or statutory remedy.”6 and mortgages; forms relating to No statement is required in 14 specified circumstances, loans, notes and mortgages; deedes; among them a “transfer by a fiduciary in the course of the closing statements and forms; state administration of a descendant’s estate, a guardianship, a and local tax forms conservatorship, or a trust.”7 Exceptions also apply to transfers from one co-owner to another, transfers as the re- The quick and easy way to draft sult of a divorce decree, various forced sales, and transfers Residential Real Estate Forms… that involve newly constructed residential real property that has not previously been inhabited. Agents representing a seller have the duty to inform To order call sellers of the obligation to provide a statement.8 Nothing in 1-800-582-2452 or visit us the article is to be construed as limiting any existing cause of action or remedy at law.9 online at www.nysba.org 1. The Property Condition Disclosure Statement provided is Discounted prices for NYSBA reproduced from NYSBA’s Residential Real Estate Forms, members and multiple users. an automated document assembly system published by the New York State Bar Association, in collaboration with Product Number: 6250 Matthew Bender and Company. 2. RPL § 462. 3. RPL § 465. ® 4. RPL § 462(2). 5. RPL § 464. 6. RPL § 465. 7. RPL § 463. 8. RPL § 466. 9. RPL § 467 52 Journal | March/April 2002 Property Condition Disclosure Statement 19. Has the property been tested for the presence of motor fuel, motor oil, home heating fuel, lubricating oil, or any other petroleum product, methane gas, or any hazardous or toxic substance? Yes No Unkn NA (If yes, attach report(s).) Name of Seller or Sellers: Property Address: Structural The Property Condition Disclosure Act requires the seller of residential real property to cause this 20. Is there any rot or water damage to the structure or structures? Yes No Unkn NA (If yes, explain below.) disclosure statement or a copy thereof to be delivered to a buyer or buyer’s agent prior to the signing by the buyer of a binding contract of sale. 21. Is there any fire or smoke damage to the structure or structures? Yes No Unkn NA (If yes, explain below.) 22. Is there any termite, insect, rodent or pest infestation or damage? Purpose of Statement: This is a statement of certain conditions and information concerning the property known to the seller. Yes No Unkn NA (If yes, explain below.) This disclosure statement is not a warranty of any kind by the seller or by any agent representing the seller in 23. Has the property been tested for termite, insect, rodent or pest infestation or damage? Yes No Unkn NA (If yes, please attach report(s).) this transaction. It is not a substitute for any inspections or tests and the buyer is encouraged to obtain his or 24. What is the type of roof/roof covering (slate, asphalt, other.)? her own independent professional inspections and environmental tests and also is encouraged to check public records pertaining to the property. Any known material defects? A knowingly false or incomplete statement by the seller on this form may subject the seller to claims Yes No Unkn NA (If yes, explain below.) How old is the roof? ______by the buyer prior to or after the transfer of title. In the event a seller fails to perform the duty prescribed in this article to deliver a disclosure statement prior to the signing by the buyer of a binding contract of sale, the Is there a transferable warrantee on the roof in effect now? buyer shall receive upon the transfer of title a credit of five hundred dollars ($500.00) against the agreed Yes No Unkn NA (If yes, explain below.) 25. Are there any known material defects in any of the following structural systems: footings, beams, upon purchase price of the residential real property. “Residential Real Property” means real property improved by a one to four family dwelling used or girders, lintels, columns or partitions? occupied, or intended to be used or occupied, wholly or partly, as the home or residence of one or more Yes No Unkn NA (If yes, explain below.) persons, but shall not refer to (a) unimproved real property upon which such dwellings are to be constructed or (b) condominium units or cooperative apartments or (c) property on a homeowners’ association that is not Mechanical Systems & Services owned in fee simple by the seller. 26. What is the water source (Circle all that apply - well, private, municipal, other)? If municipal, is it metered? Yes No Unkn NA Instructions to the Seller: (a) Answer all questions based upon your actual knowledge. 27. Has the water quality and/or flow rate been tested? (b) Attach additional pages with your signature if additional space is required. Yes No Unkn NA (If yes, describe below.) 28. What is the type of sewage system (Circle all that apply - public sewer, private sewer, septic or (c) Complete this form yourself. (d) If some items do not apply to your property, check “NA” (Non-Applicable). If you do not know the cesspool)? answer check “Unkn” (Unknown). If septic or cesspool, age? ______Date last pumped? ______Frequency of pumping? ______Seller’s Statement: The seller makes the following representations to the buyer based upon the seller’s actual knowledge at the time of signing this document. The seller authorizes his or her agent, if any, to Any known material defects? provide a copy of this statement to a prospective buyer of the residential real property. The following are Yes No Unkn NA (If yes, explain below.) 29. Who is your electric service provider? ______representations made by the seller and are not the representations of the seller’s agent. What is the amperage? ______Does it have circuit breakers or fuses? ______General Information Private or public poles? ______1. How long have you owned the property? ______Any known material defects? 2. How long have you occupied the property? ______3. What is the age of the structure or structures? ______Yes No Unkn NA (If yes, explain below.) Note to Buyer - If the structure was built before 1978 you are encouraged to investigate for the 30. Are there any flooding, drainage or grading problems that resulted in standing water on any portion of the property? Yes No Unkn NA (If yes, state locations and explain below.) presence of lead based paint. 4. Does anybody other than yourself have a lease, easement or any other right to use or occupy any part 31. Does the basement have seepage that results in standing water? of your property other than those stated in documents available in the public record, such as rights to Yes No Unkn NA (If yes, explain below.) use a road or path or cut trees or crops? Yes No Unkn NA (If yes, explain below.) Are there any known material defects in any of the following (If yes, explain below. Use additional sheets if 5. Does anybody else claim to own any part of your property? necessary.): Yes No Unkn NA (If yes, explain below.) 32. Plumbing System? Yes No Unkn NA 33. Security System? Yes No Unkn NA 34. Carbon Monoxide Detector? Yes No Unkn NA 6. Has anyone denied you access to the property or made a formal legal claim challenging your title to 35. Smoke Detector? Yes No Unkn NA the property? Yes No Unkn NA (If yes, explain below.) 36. Fire Sprinkler System? Yes No Unkn NA 7. Are there any features of the property shared in common with adjoining land owners or a 37. Sump Pump? Yes No Unkn NA homeowners association, such as walls, fences or driveways? 38. Foundation/Slab? Yes No Unkn NA Yes No Unkn NA (If yes, describe below.) 39. Interior Walls/Ceilings? Yes No Unkn NA 8. Are there any electric or gas utility surcharges for line extensions, special assessments or homeowner 40. Exterior Walls Or Siding? Yes No Unkn NA or other association fees that apply to the property? 41. Floors? Yes No Unkn NA Yes No Unkn NA (If yes, explain below.) 42. Chimney/Fireplace or Stove? Yes No Unkn NA 9. Are there certificates of occupancy related to the property? 43. Patio/Deck? Yes No Unkn NA Yes No Unkn NA (If no, explain below.) 44. Driveway? Yes No Unkn NA 45. Air Conditioner? Yes No Unkn NA Environmental 46. Heating System? Yes No Unkn NA Note to Seller - In this section, you will be asked questions regarding petroleum products and 47. Hot Water Heater? Yes No Unkn NA hazardous or toxic substances that you know to have been spilled, leaked or otherwise been released on the 48. The Property is located in the following School District: ______Unkn property or from the property onto any other property. Petroleum products may include, but are not limited to, gasoline, diesel fuel, home heating fuel, and lubricants. Hazardous or toxic substances are products that Note: Buyer is encouraged to check public records concerning the property (e.g. tax records and wetland and could pose short- or long-term danger to personal health or the environment if they are not properly disposed flood plain maps.) of, applied or stored. These include, but are not limited to, fertilizers, pesticides and insecticides, paint including paint thinner, varnish remover and wood preservatives, treated wood, construction materials such The seller should use this area to further explain any item above. If necessary, attach additional pages and as asphalt and roofing materials, antifreeze and other automotive products, batteries, cleaning solvents indicate here the number of additional pages attached. including septic tank cleaners, household cleaners and pool chemicals and products containing mercury and ______lead. ______Note to Buyer - If contamination of this property from petroleum products and/or hazardous or toxic ______substances is a concern to you, you are urged to consider soil and groundwater testing of this property. ______ 10. Is any or all of the property located in a designated floodplain? Seller’s Certification: Seller certifies that the information in this property condition disclosure statement is Yes No Unkn NA (If yes, explain below.) true and complete to the seller’s actual knowledge as of the date signed by the seller. If a seller of residential 11. Is any or all of the property located in a designated wetland? real property acquires knowledge which renders materially inaccurate a property condition disclosure Yes No Unkn NA (If yes, explain below.) statement provided previously, the seller shall deliver a revised property condition disclosure statement to the 12. Is the property located in an agricultural district? buyer as soon as practicable. In no event, however, shall a seller be required to provide a revised property Yes No Unkn NA (If yes, explain below.) condition disclosure statement after the transfer of title from the seller to the buyer or occupancy by the 13. Was the property ever the site of a landfill? buyer, whichever is earlier. Yes No Unkn NA (If yes, explain below.) 14. Are there or have there ever been fuel storage tanks above or below the ground on the property? Seller ______Date ______Yes No Unkn NA If yes, are they currently in use? Seller ______Date ______Yes No Unkn NA Location(s) ______Buyer’s Acknowledgment: Buyer acknowledges receipt of a copy of this statement and buyer understands Are they leaking or have they ever leaked? that this information is a statement of certain conditions and information concerning the property known to Yes No Unkn NA (If yes, explain below.) the seller. It is not a warranty of any kind by the seller or seller’s agent and is not a substitute for any home, 15. Is there asbestos in the structure? pest, radon or other inspections or testing of the property or inspection of the public records. Yes No Unkn NA (If yes, state location or locations below.) 16. Is lead plumbing present? Buyer ______Date ______Yes No Unkn NA (If yes, state location or locations below.) 17. Has a radon test been done? Buyer ______Date ______Yes No Unkn NA (If yes, attach a copy of the report.) 18. Has motor fuel, motor oil, home heating fuel, lubricating oil or any other petroleum product, methane gas, or any hazardous or toxic substance spilled, leaked or otherwise been released on the NYSBA Residential Real Estate Forms on HotDocs7 (1/2002) 4 property or from the property onto any other property? © 2002 Matthew Bender & Company, Inc., a member of the LexisNexis Group. Yes No Unkn NA (If yes, describe below.) Journal | March/April 2002 53 A New Paradigm for Lawyers? POINT OF VIEW BY ROBERT P. B ORSODY he terrorist attacks last fall spirit and unified field connection to Holistic practitioners may take caused many Americans to re-ex- each other and all that is. Our role be- more time with a client to understand Tamine their lives, their relation- comes a sharing of our own humanity the client’s life and lifestyle and the ships, values and purposes on this as equals, as Spiritual companions.” client’s business, going beyond the im- earth. This is true especially of the When Bill opened his practice in 1992 mediate facts of the proposed deal or New York City lawyer who, like my- at the “Holistic Justice Center” in Mid- the perceived conflict. In structuring self, could have been in the World dlebury, Vt., a New York Times reporter a transaction in the context of the Trade Center at that tragic time, but noted that a fellow lawyer asked if he broader picture, holistic lawyers can was not. was practicing “wimpy law.” Many fulfill their obligations to clients and Perhaps now is also the time to re- members of the Alliance practice in may also provide some healing advice examine how we practice law, for law small towns. Bill van Zyverden still that could address not only the clients’ practice, especially in New York City, practices in a small town in Vermont, immediate problems but also prevent can often be corrosive to the soul and wears blue jeans to work and bills out them from reoccurring. heart of practitioners. Over time, it can at $80 an hour. The question that I have Holistic practitioners are often con- also become a pain of the mind and put to myself after becoming aware of centrated in particular areas of law, body. This may be one reason why at- this concept is: “Will it play in the Big such as family law, where, instead of torneys, as a group, have some of the Apple?” just aggressively representing a client highest rates of divorce, heart attacks, Before September 11, 2001, I had in a divorce, they urge the client to strokes, drug and alcohol addiction doubts. Now, however, I am hopeful look at a broader, longer view that con- and suicide. How did it get this way? that New York lawyers might be open siders the effect on the children and Is a different paradigm possible for the to suggestions for alternative ways of how the children will view the client in practice of law? looking at their practice. years to come. However, even a lawyer representing commercial or corporate Some lawyers are working hard to When I started practicing on Wall clients versus neighborhood and com- point the way to a different paradigm Street, I read a book by Erwin O. munity interests can also serve his for the practice of law. They are ex- Smigel called The Wall Street Lawyer, client well by looking beyond the nor- ploring the question, can a lawyer can Professional Organization Man? It char- mal parameters of the matter. be a healer; can a lawyer ever be a acterized a good lawyer as one who is Tom Lynch, an environmental peacemaker—and make a living? “methodical, prudent and disci- plined.” This description is still useful. counsel and litigator at a traditional A concept and a practice has arisen A lawyer who represents clients in sig- corporate law firm in Maryland who is called Holistic Law. The concept and nificant transactions must engage in also a member of the International Al- the practice is new enough so that the thorough and exhaustive research and liance of Holistic Lawyers, described definition is still developing. Holistic find all the cases and all the precedents the evolution in his representation of a Law approaches disputes differently, that favor the client’s position. There company that became aware of pollu- looking for a resolution that will not are, of course, ethical obligations to tion problems at one of its facilities. inevitably involve litigation, but rather represent client with the utmost vigor. The company prudently took immedi- a solution that will take the interests of Canon 7 requires “zealous” represen- ate damage-control measures to ad- all parties into consideration. Holistic tation of a client.1 However, the dress the contamination problem qui- Law practice has its own professional Canons of Ethics also state, “The duty etly and efficiently. For several years, association, the International Alliance of a lawyer to represent his client with on Tom’s advice, it avoided communi- of Holistic Lawyers, which just cele- zeal does not militate against his con- cation with the media and its neigh- brated its tenth anniversary. current obligation to treat with consid- bors out of fear that disclosing past Bill van Zyverden, a Vermont eration all persons involved in the problems might lead to litigation. lawyer, is the founder of the Alliance. legal process and to avoid the infliction When a company representative had In a recent newsletter he says that of needless harm.”2 In addition, Canon to appear at a public meeting as a part Holistic Law “is concerned with the 8 encourages improvement of the legal of the process to upgrade its treatment ‘whole’ client: past, future, body, mind, system. system, Tom was chosen to speak. He 54 Journal | March/April 2002 had just finished reading Seeing Law thrall. Business lawyers might not be may be in a position to help or harm Differently, Views From a Spiritual Path able to change their practices dramati- the client in the future; how the lawyer by Alan Reid, a Canadian lawyer, and cally overnight, but they can make a constructs the deal and conducts the the book gave him an inspiration. At difference in small ways. Indeed, transaction could determine whether the meeting, he apologized to the com- many such lawyers have been trying in the result is helpful or harmful. munity for having advised his client to some ways to “do the right thing.” Will the “high-powered, corporate maintain a low profile. Instead, he and Like Moliere’s Monsieur Jourdain in Le lawyers” in a big firm in a big city his environmental consultant dis- Bourgeois Gentilhomme, who is amazed practice think of applying any of these closed precisely what had been done to to discover he had been speaking principles in the way they make a liv- remediate the problem and invited the prose for 40 years without knowing it, ing, or will they believe these princi- community to participate in plant many lawyers may be surprised to ples are inconsistent with the maxim tours during which the state-of-the-art know they have been practicing some that “Business is Business”? They may environmental clean-up equipment holistic law without knowing it. believe it would be too risky to change could be examined. The community’s Almost all lawyers are fine, decent the way the business of law is con- concern and anger were dissipated by and honest people. From the young, ducted, and take comfort in the feeling this cathartic event, and the commu- idealistic lawyer who has recently that a successful practice is their con- nity has worked with the company graduated, to the older, seasoned tribution to the world. They should since then. Expensive litigation was lawyer, who has seen it all, many know, however, about the story Abra- avoided, and the relationship between lawyers have been implementing some ham Lincoln used to tell. A brilliant the company and the community was of the holistic principles described and eloquent frontier lawyer had significantly improved. This approach above. This includes the customary spent his life in anxious, unending and was consistent with the basic premise courtesies extended to opposing coun- exclusive pursuit of big fees, uncon- and major tenets of holistic and com- sel and the cautionary observation to a cerned with the issues of the day: slav- passionate lawyering. Compassion, in- client that a course of action could ery, states’ rights, free soil, or other formation sharing, cooperation and have long-term, unintended and un- community concerns. Before the understanding on both sides encour- pleasant consequences. In these and lawyer died, he ordered his own tomb- aged community and commonality of many other ways, many lawyers have stone and directed that under his purpose. There was no call for blame helped to make the practice of law a name be placed the inscription: “A and no need for the waste of resources little less abrasive and life more bear- Successful Lawyer and a Good Man.” in litigation. able for some clients and their oppo- The local town council refused to ap- Many traditional lawyers could see nents. They might, however, be embar- prove the inscription. Members said it disaster in this direction because less rassed or indignant to find themselves was against the law to bury “two men litigation could mean fewer legal fees. grouped with “holistic lawyers,” fear- in one grave.” However, in the long run, a practice ing it was bad for business. Lawyers can change—to make that encourages resolution of disputes The good news is that it could be themselves healthier and happier, and without the expense of litigation can very good for business. The longer and to better their country. It starts with flourish. Abraham Lincoln said, “Dis- broader view of a client’s interest is al- each individual lawyer. It spreads to courage litigation. Persuade your ways good for lawyers. Furthermore, it the lawyer’s firm, to colleagues and neighbors to compromise whenever can be entirely consistent with the perhaps to the courts and to the gov- you can. Point out to them how the Canon of Ethics. When a client comes ernmental agencies, and then to the nominal winner is often a real loser— to a lawyer, flushed with the heat of in- broader legal community and the com- in fees, expenses and waste of time. As cipient battle, seething from a wrong, munity as a whole. Then it can spread a peacemaker, the lawyer has a supe- or excited about a possible deal or sale across the country and, in this Web- rior opportunity of being a good man.” of a new business, he certainly expects based international community, it can Most lawyers do not go to court and the lawyer to point out pitfalls and spread to the rest of the world. Where are rarely involved in litigation. Many even hopes to learn about unexpected it must start, however, is in the con- practice “transactional law,” buying advantages and possibilities. But he sciousness of each individual lawyer. and selling businesses, setting up busi- would also appreciate the lawyer Lawyers interested in the subject nesses, counseling their clients on con- pointing out an approach that would may wish to read Transforming Prac- tractual relationships with other busi- benefit both sides of the deal. The tices: Finding Joy and Satisfaction in the nesses, and dealing with the other party is not going to disappear. Legal Life by Steven Keeva (Lincoln requirements of governmental agen- Within a particular industry, paths cies that hold their clients in regulatory may cross again and that other party CONTINUED ON PAGE 57 Journal | March/April 2002 55 his “night owl” associates. I finally agitare (to agitate). Agita would be the made a “wild guess” (which should Latin imperative form.] LANGUAGE warn me never to make another wild Attorney Robert J. Cubitto, wrote: guess). I wrote, “Is it possible that agita “I chuckled when I read your ‘wild TIPS is a New York pronunciation of agitur, guess’ about agita. Clearly you are nei- a third person singular Latin subjunc- ther from New York nor of Italian de- tive meaning “an action has been scent . . . You will not find agita in a B Y G ERTRUDE B LOCK brought”? standard Italian dictionary. I am, how- Mr. Moskow, it turns out, had made ever, surprised that the word does not uestion: New York attorney a much better guess than I. But having appear in any dictionaries of American Roberta Arnone asks what the experienced what I hoped might be a slang. . . . A song named ‘Agita’ ap- Qapproved language is for not- stroke of insight, I e-mailed the column peared in Woody Allen’s film ‘Broad- ing that a document is attached to a and then was away from my office for way Danny Rose,’ sung by the actor message being sent over the Internet. about a month. On returning, I Nick Apollo Forte, who played the She uses the word enclosure, but is checked my e-mail and discovered character Lou Canova. Mr. Forte wrote tempted to add the phrase by attach- page-after-page of responses, all from the song himself.” ment in parentheses. New Yorkers, all on the subject of agita, Attorney P. Skomorowsky wrote: ‘I Answer: To my knowledge there is and the overwhelming majority cor- always enjoy your column . . . but no “approved language” to indicate rectly answering the question of its most especially so in the that a document has been attached to meaning and usage. It seems that Mr. November/December Journal. ‘Agita’ a letter sent via the Internet. Ms. Moskow and this “flatland furriner” is an expression, commonly heard Arnone’s suggested form seems sensi- (remember “Snuffy Smif”?) may be the around New York, derived from the ble and clear. In my e-mails to which only persons in doubt about the mean- verb agitare (to trouble, to get worked documents are attached, I use the ing of agita. up about something). One can get agita word attachment, and that form is the In all, I have received more than 100 . . . often from one’s teen-aged children, one I see most often in e-mails that I re- e-mailed and slow-mailed messages. resulting in digestive interference.” ceive containing attached documents. As is my custom, and being at first un- A St. John’s University law profes- If other readers prefer a form differ- aware of the immensity of the task, I sor wrote, among other kind and help- ent from either of the two above, both sent e-mails thanking the correspon- ful remarks, that to say that “my ad- Ms. Arnone and I would appreciate dents who had set me right, but after versary is giving me agita” is to state knowing what they are. e-mailing perhaps 25 appreciative that my esteemed opponent is aggra- responses, I gave up. So those corre- vating me, particularly giving me an From the Mailbag: spondents who failed to receive my upset stomach in a literal sense. It is In the November/December Lan- thanks now know why they haven’t one of those words, like kosher that in guage Tips, I responded to an e-mail heard from me. our linguistic melting pot is incorpo- containing three questions, sent by At- The responses ranged from humor, rated into everyday American English. torney Robert S. Moskow, who prac- to helpfulness, to sarcasm, to in- It is not unlike the Italian banca rotta, tices in Morristown, N.J. The final credulity that anyone could be so stu- literally “broken bench,” a Renaissance question stumped me. Mr. Moskow pid. In the event that readers who do symbol of insolvency that evolved into wrote, “The ‘night owls’ in our office not practice in New York may be inter- the English “bankruptcy.” are at a loss as to the meaning of the ested, here are quotations from some Finally, a helpful law school senior word agita. Although we believe that of the responses New York attorneys wrote that agita is “probably another the word is spelled ‘agita,’ we cannot mailed. word for heartburn. It may be Yid- find any verification that it is the cor- Attorney David Howe wrote: “Your dish.” rect spelling. The common use sug- most recent column provoked mild My thanks to all who wrote. The vol- gests nerves and seems to be a version agita, as I was alarmed to see that ume of responses gave me mixed feel- of ‘agitate,’ but we cannot find it in the someone writing for the NYSBA Journal ings of dismay and delight, the latter dictionary or determine its roots. We was unfamiliar with the word. It is an outweighing the former. I never realized are not even sure that that is the correct Italian word employed regularly by that Language Tips had so many inter- spelling. Can you shed some light on New Yorkers of all ethnicities. Its literal ested readers who were willing to help. this subject?” meaning is indigestion, but it is most Although I doggedly searched for commonly used figuratively to mean GERTRUDE BLOCK is the writing spe- cialist and a lecturer emeritus at Hol- the meaning and usage of agita in a anxiety, as in “You’re giving me agita.” land Law Center, University of number of legal and lay dictionaries, I [As I wrote Mr. Howe, although agita is Florida, Gainesville, FL 32611. Her was unable to help Mr. Moskow and an Italian noun, its origin is Latin: from e-mail address is [email protected]. 56 Journal | March/April 2002 THE LEGAL WRITER November 19, 1999 a Friday” re- writer has more than one wife. The CONTINUED FROM PAGE 64 quires commas after New York and issue is whether the person is defin- “You’re a better man than I, Gunga 1999. ing, or nonrestrictive. If yes, commas Din.” Unless you mean “I Gunga The name game. Use commas to set go front and back. Din.” “Where’s the beef jerky?” Un- off phrases that describe nouns or Next Month: Which hunting, run- less you mean “Where’s the beef, phrases and to separate names and away commas, verbal hesitation, ser- jerky?” titles. This example covers both cate- ial killers, and related comma con- Be positive about appositives. Ap- gories: “Judge X (title, noun, and cerns. positives are nouns or pronouns that name), the supervising judge of the rename other nouns or pronouns. Housing Part, New York City Civil 1. The Legal Writing Handbook § 25.2.2, at 689 (2d ed. 1998). Commas must frame nonrestrictive Court, Richmond County (phrase 2. In typing, add two spaces before a appositives. Correct: “The Supreme that describes the title, noun, and name), is a Housing Court judge.” zip code: “The court attorney works Court, Appellate Division, First De- at 141 Livingston Street, Brooklyn, partment, is in New York County.” Keep going. Avoid commas if possi- New York 11201.” Correct: “Judge A, who presides in ble by inverting the sentence: “Judge 3. William Strunk Jr. & E.B. White, The Chemung County, and Judge B lec- Y, after reviewing the papers, Elements of Style 3 (3d ed. 1979). tured last week.” (And note the ab- granted the motion.” Becomes: “After Gerald Lebovits is a judge of the New sence of a comma after “Judge B.”) reviewing the papers, Judge Y granted the motion.” “Even when York City Civil Court, Housing Part, “Judge John Smith, Jr., is presiding.” currently assigned to Brooklyn and Strunk and White argue that “Jr.” is doing simple tasks, choices must be made.” Becomes: “Choices must be Staten Island. An adjunct professor restrictive and therefore that no and the Moot Court faculty advisor at made even when doing simple comma is needed before or after New York Law School, he has written “Jr.”3 Thus, add a comma fore and tasks.” numerous articles and Advanced Judi- aft, depending on the named per- Explanatory commas. X: “How is cial Opinion Writing, a handbook for son’s preference. Use commas to set your wife Carol?” Y: “As opposed to New York State’s trial and appellate off appositive dates, places, and ex- my other wife? My wife, Carol, is courts, from which this column planatory phrases. “The lecture will fine.” The lack of commas in this is adapted. His e-mail address is be held in Rochester, New York on bigamy quiz would be correct if the [email protected]. POINT OF VIEW Society, P.O. Box 949, Stone Ridge, N.Y. CONTINUED FROM PAGE 55 12484, Journal | March/April 2002 57 John Arthur Houlihan Meghan M. Murphy Patrick Sean Sinclair Robert Daniel Innocentin Kathleen Elizabeth Peter Murray Skinner Marisa Iozzi Murray Marc Smiley NEW Tamarah Eve Isenberg Courtney Myers Adam Zachary Solomon Michael Andrew Jaffe Jodi Nagel Elene M. Spanakos MEMBERS Anita Magdalena Jaskot Terri-lee Nataline Emily Copland Stein Nicole Elena Joseph Shawn Patrick Naunton Michael A. Stoker Leonard Kahn Angela D. Nelson Sahara Gayle Stone WELCOMED David J. Kanfer Lena Nevsky Walter J. Storey Chia Kang Walter M. Norkin Joshua William Sussman Jonathan Marcos Kaplan Kevin J. O’Brien Anthony Michael Tracy L. Karsch Heather Ruth Ogilvie Tessitore Susan G. Kaufman Michael Lee Oh Lorina A. Tester FIRST DISTRICT Brett Evan Cooper Timie Kavouklis Grace Eileen O’Hanlon Kara Isabelle Theard Andres Eduardo Aguila Erin Bernadette Corcoran James Francis Kelly Amanda L. Oren Jonathan Eric Turco Perri Al-Rahim David P. Crowe Robert M. Kim Brian Vincent Otero Nicholas Raymond Lisa L. Albert Amanda Beth Soh Hyong Kim Sean Patrick O’Toole Turner Jessica Jacqueline Cunningham Bernadette Kelly Kirwin Shonna L. Owen Oren Uziel Albrecht Louis Anthony Curcio Amy Frances Kleitman Rosanne Palumbo Eleanor Vale Jill N. Alintoff Patrick Colman Daly Natasha G. Kohne Sung Uk Park Carla A. Varner Margaret Smith Allison Joel Wesley Darrington Yasmin Kok Samuel E. Peckham Miguel Antonio Villarreal Annaise Alviar Shaffin Abdul Datoo Thomas Reid Kopff Richard Pero Christopher V. Vitale Keisha M. Amey Dwight J. Davis Paul Richard Koppel Lisa Margaret Pisciotta James J. Wallace Richard H. An Lisa De Lindsay Daniel S. Kratka Matthew Vincent Pontillo Mark E. Walli Laura A. Angel-Lalanne Louis John Deljuidice Lauren Pamela Kraus Tama William Potaka S. Eric Wang Alison Mary Arcuri Anne K. Desutter Mark B. Kravitz Joanna Elizabeth George Warhit Jordan Steven Arnold Arlo Devlin-Brown Kazuya Kuwada Pressman William H. Waters Tara Nicole Auciello Shari Beth Domow Kathryn V. Kwak April Franchon Preston Andrea Rochelle Watson John Anthony Aviles Torin A. Dorros Jennifer L. Lallite Tara Christine Prigge Jay Adam Wechsler Emily M. Beck Joshua M. Dubofsky Joseph M. Lamicela George B. Raine Arthur I. Weinstein Brad Michael Behar Carrie Lynn Durant Rachel Mara Laveman Jamie Beth Rainerman Yosef Yitzchak Weintraub Rebecca Jane Behr Christine Isabelle Marie Jenny Nahyoung Lee Louis Andrew Raniero Eliezer A. Weiss Bernard Belkin Durland Robert Chuan-jin Lee Katherine M. Reihing Elizabeth Robin Weiss Rina Bersohn Jennean Marie Endres Carl Winslow Leighton Sonya Reiss Dori Ellen Weissman Marina A. Bezrukova Ann-Charlotte Kerstin Mark Joseph Lemire Michael John Riela James M. Westerlind Eric Stanley Black Engstrom David Aaron Lewis Ryan Evan Roberson Anne-marie Whelan Julia Enion Blanlurtz Michael Roman Ertel Michael S. Lieber Andrew Charles Michael Wieder Philip Michael Blumberg Eric M. Eusanio Herve N. Linder Robertson Jeffrey Martin William Linda R. Blumkin Joy Naomi Fallek Christopher Donald Andre Keith Roger John Wesley Williams Bernd Bohr Denis Michael Farrell Lindquist Charbonneau Mark Jason Woodward Clifford J. Bond Riqueza Vernetta Feaster Sin Yen Ling Tracey Sharon Rogers Alissa Joy Wool Benkai H. Bouey David Joseph Fein Elliot Wesley Lipins Rachel Marjan Rokhsar Steven J. Zaloudek Yanitza Nannette Kevin Earle Feinblum Russell Lawrence Michel Marie Rose Andrea Ellmers Brignoni Maria E. Felix Lippman David L. Rosenband Zeuschner Tor E.P. Brodtkorb Alan David Feller Jeanne Marie Locicero Benjamin Michael Roth Hallie Ziesmer Daniel L. Brook Jason David Fernbach Kristen Johanna Lonergan Jason Michael Rothschild Jacklyn Alyce Jonathan Michael Igor Fert Gina S. Love Arthur D. Russell Zimmermann Brundige Beth Ivy Fingerman Phillip Lum Andrea Russo Anthony Roche Zupka Melissa Ann Butler Jessica Lee Finkelstein Deborah Lynn Mains Gregory Matthew Saiontz Christopher Grey Shari Beth Finkelstein Amy Lynn Marcus John Jeffrey Salvo SECOND DISTRICT Campbell Stefanie Aimee Firtell Sasson Gur Marcus Jocelyn Santo Aliaa Ezzat Abdelrahman Molly Canick Jimmy Fokas Rose A. Marino Jean-Paul Saulnier Mark I. Aronson David Lee Cargille Michelle Rachael Forrest Gabriel Joseph Marous David B. Saxe Glenn D. Bell Pamela D. Caron Jessica M. Friedman Alison Lee Marquez Edward F. Sayago William Boltrek Anthony J. Carone Jill Kathleen Frizzley Kerry Frances John C. Scalzo Betty-Anne Marie Bryce Brian James Casey Paul A. Galante Marsicoveters Jill Marie Schatz Cesar De Castro Joseph Cerullo Julia Gatto Andre Rudolph Mattis Nance L. Schick Gerald Keith Deaguiar Michelle Christina Stephanie Anne Golden Thomas R. May Rebecca Ann Schleifer Donna Marie Dwyer Cerullo Bernard S. Gordon Lauren Beth Mazur Ava Schoen Daniel Jason Fox Jeffery Millard Alexis Kathleen Gratt Mary A. Mchale Debra M. Schoenberg Christopher Salvatore Chamberlain Erica C. Gray Zana Michelle McIntosh Robert William Guardino John S. Chambers Laura Sperling Greenberg Jennifer Meredith Schumacher Katherine M. Jaskot Susana M. Chavez Jacqueline Gross Lara Maria Merkel Ellen Scordino Ian Russell Kaplan Andrew W. Cheng Paul Jason Hadley Bethany Barbara Florence Hagan Segler Michael Alexander Padmaja Chinta Stacey J. Hanna Mongeau Ruby G. Sekhon Kushner Dutch D. Chung Gretchen Harders-Chan Kim Denise Moore-Ward William S. Seplowitz Naeemah Lamont Randolph Winston Clarke Geoffrey F. Heffernan Payam Moradian Melissa Beth Sherman Pietra Grazia Lettieri Eric J. Cleary L Allison Heller Maurizio J. Morello Edward Shin Leon Lubarsky Peter Francis Coates Kieran Patrick Hennigan Henry Morris Erica Rachel Siegel Yury Maltser Heather Jill Cohen Joseph Andrew Herz Gloria Mshelia Melanie Brook Siegel Stephen Novakidis Michael M. Cohen Elson Ho John C. Muccitori Adam Silvera Wilhemina Efua Nyarko Kevin Paul Colan Ida Hoghooghi Eric David Muller Amy Louise Simmons Michelle Patrice Patten Edwin M. Collins Rebecca Houghton Journal | March/April 2002 59 Tara Adams Ragone Diantha Fuller Andrew A. Washburn Naomi Suzanne Gordon Alonzo George Jacobs Edward M. Rappaport Courtney Ann Goldstein Kimberly E. Whistler Daniel Greenberg Emily Kaplan Cateline Samedi Robert L. Halpin Colleen Wood Robert Walter Griffith Keith S. Labella Stan Schuldiner Sarah A. Hinchcliff Mark C. Haut Jeffrey Dan Landy Thomas J. R. Stadnik Margaret Lyons NINTH DISTRICT Jennifer Coddington Maryann Helene Lattner Robert Donald Vinokur Erin C. Pemberton Miriam S. Alers Hecker John J. Lee John A. Vitucci Jonathan Penna Ilyssa Rothman Alter Michael D. Humphrey David Andrew Leventhal Aline K. Piccola Rebecca Mayfield Blahut Jeanne Nadia James Anthony Phillip THIRD DISTRICT Donald C. Pingleton Catherine Cha Chris Katechis LoGiudice Timothy Scott Brennan Norma A. Polizzi Christina Marie Chillino Thomas M. Kelty Genevieve Njideka Madu Marie Chery-Sekhobo John G. Rizzo Seth D. Cohen Michael Khodadadi Eleni Mavros Kathleen Hope Courtney Kimberly I. Shimomura Shari Lynn Cohen Jean Marie Kowalchuk Mark McMillan Darren P. Cunningham Joseph E. Simpson Raymond A. Cote John Joseph Kramer Michael Mossa Melissa Franolich Michael W. Stivers Susan A. Di Tomasso Lisa Renee Kramer Cynthia Parache Stacy Marie Frederick Robert M. Vitale Dina F. Diagonale Heather G. Kress Kyla Lynn Ratliff Nicole Elizabeth Gantner Kristopher J. Vurraro Mary DiCicco Lucie M. Kwon Leo Luminarias Rosales Salvatore Anthony Gatto Robert T. Witthauer Anthony Joseph DiFiore Amy Susan Lanza Michael E. Ryan Christopher Edward Michael R. Dimino Melvin Leibowitz Jason Shum Gurda EIGHTH DISTRICT Robert M. Fields Lisa Anne Leimbach- Christian Patrick Siebott Michael Patrick Hale Michael R. Argentieri Ernest Gary Gutman Elena M. Yun Shannon Lynn Hale James E. Balcarczyk Joshua Michael Glaser Damon Scott Levenstien Timothy Tuoti Hollis John M. Baxter Deborah Anne Linda A. Lundgren TWELFTH DISTRICT Alexis S. Komarow Norman M. Bennett Goldberger Benjamin Palmer Malerba Brenda P. De Cambre Jaime Czajka Louridas Howard S. Beyer Eric Lewis Gordon Mirsade Markovic Jemal A. Deshong William S. Nolan K. John Bland Andrew Michael Herzig Matthew J. Martinez Brian Nelson Dobbins Jill R. Novak Dylan Brennan John Henry Hughes Caryn Sue Maxfield Natalie V. Gershuni Timothy Wink Tapply Nora M. Buckley Jennifer Innes Lauren Marie Mazzara Adrienne Angela-Yolanda Rodney D. Butler Amy Lynne Itzla Kimberly R. McCrosson Giunta FOURTH DISTRICT Peter Carey Michelle H. Kagan Jason A. Miller Mary Lee Hughes Frederick A. Congdon Sarah E. Castaner Michael John Khader Darren Mogil Mary Beth Macina Benjamin J. Migliore William Chen Francis Lieto Thomas A. Montiglio Audrey Marie Maiello Nikki Jo Palmer Emilio Colaiacovo Dennis W. Light Eric L. Morgenthal Janet Lynn Mcfarland Catherine Grantier Cooley Rahul D. Manchanda John D. Nagy Steven Mogel FIFTH DISTRICT Sarah Cressman David Evan Markus Matthew W. Naparty John Park Jeffrey A. Aumell Jennifer A. DiCioccio Anita Lubetsky Marshall Rebecca S. Naumberg Sarah Joanna Schall Gina M. Bavaria Patrick Allan Dudley Richard Kennison Moran Richard Stever O’Brien Leonard B. Sukherman Joseph F. Bergh Amanda Fantauzzo Andrew Negro Michele Robin Olsen Katlyn Thomas Karen Karhar Chow Louise M. Flynn Richard Nunez Christopher M. Otton Gemma Rossi Corbin Shannon Fuhrman Douglas Malcolm Owens Kenneth J. Paganini OUT-OF-STATE Carrianna C. Eric C. Genau Michael Palumbo Atefeh Saatchi Pahlavan Mammad Aslan Abbasov Eurillo-Travinski Kimberly D. Gensler Roger Prahl Edward Papa Paul M. Aguggia Robert A. Feinberg Rodney Giove Matthew Allen Ray Samildre R. Perez Rajewdrawath Jawki Joelle M. Fortunate F. Alejandro Gutierrez Stewart A. Rosenwasser Jorge Luis Rosario Akalu Ashley D. Hayes Jeri N. Hagen Sim Shapiro Antonia I. Savaria Hitoshi Akiba Suzanne M. Knight Carolyn C. M. Hensley Barbara Cecelia Smith James M. Sheridan Christopher Joseph Danielle M. McCann Jonathan S. Hickey Marc Elliott Stiefeld Marshal Shichtman Albanese Melissa M. Mitchell Miranda L. Hunter Ira Scott Zaroff Marjorie R. Simon Robert Matthew Aldrich Sean F. Nicolette Cheryl S. Jones J. Bernard Slutsky Bradley Gunther Allen Jadi K. Ruark Gregory P. Kammer TENTH DISTRICT Philippe Solages Joseph Carmine Amoroso William J. Rubenstein Patricia Kelleher Howard Benjamin Altman Lorraine June Soleimani Angie Lynn Armer Joseph J. Sapio Sung Mo Kim Robin Audubon Theresa A. Spinillo Keisha L. Audain Michael F. Scanlon Michele L. Laski Karyn Bell Wendy Marla Tobias Babatunde Awodiran Mary Snyder Katherine M. Lee Yuri Y. Burshteyn Philip P. Tumminio Olusengun R. Kurt M. Stroman Kimberly J. Leoncavallo Daniel K. Cahn Frank Anthony Valverde Ayo-adebanjo Heather L. Sunser- Patrick A. Makin Albert Campos Christopher Edward Megumi Azuma Schremp Roseanne McMorrow Daniel Martin Cotter Vatter Daniel John Bailey Timothy L. Virkler Serafina M. Mitri Kathryn Lynn Coward Mary C. Villeck Patrick Marc Baron Michele Wendt Shamus B. Mulderig Lauren Jennifer Darienzo Rebecca Marion Wenner Gail Marie Berkowitz Jean Marie Westlake Patric R. O’Brien Susan M. Datlof Patricia A. Yankus Flor Bermudez Brent F. Osgood Dana Louise De Stefano Patricia E. Ziminski Timothy William Blakely SIXTH DISTRICT Melissa S. Paull James Peter Deana Robert Block Peter N. DeLucia Michael S. Rakowski Jason T. Donatelli ELEVENTH DISTRICT Sonia Boussebissi Caitlin E. Wade Rachel E. Roberts Ana Lynn Droscoski Chiling Jonathan Chen Keli Lynnette Bowden David Roggenbaum Marissa R. Dubey Jacqueline Cigliano Jonathan Judson Boyles SEVENTH DISTRICT Andrea C. Ruta William John Edwins Ilana F. Davidov Kevin Richard Brady David D. Benz Jorge Santiago De Rosas P. Stephanie Estevez Joseph DiBenedetto J. Michael Brandt Nicole J. Buckner Brian A. Scudder Andre L. Ferenzo Dawn M. Foster Kim Bressant-Kibwe Mark Campanella Drummond Smith Lori Ann Ferraro Michael J. Freed Joanna D. Brick Bethany Centrone Todd M. Smith Nikolaos Dionyssiou Dorien David Gottlieb Garrett Cade Broadrup Siwen Chen Kevin M. Stadelmaier Galanopoulos Rosalind Camille Gray Erin Elizabeth Brophy Michelle M. De Mareo Ellen B. Sturm Richard S. Gershman Lishomwa Damian Henry Daniel H. Brown Shelly J. Dittmar Judy Wagner Joseph Michael Gitto Sonja Kaete Burkard 60 Journal | March/April 2002 Ana Maria Cabassa- Emily Anna Hayes Torres Richard Augustus Susan Cahill Hazzard Luis Carrillo Caroline Jean Heller In Memoriam Jerome Patrick Angara Todd A. Higgins Robert C. Agee Richard L. Klein Stephen A. Perelson Castillo Kirsten J. Hildebrand Bonxville, NY New York, NY Poughkeepsie, NY Andrew David Ceitlin David Adam Hoffman Ameet Chander Nicole Lauren Inman David N. Cubley Charles J. McPeak George N. Toplitz Catherine Tasmin Hinda Jama Jarik Potsdam, NY Stony Brook, NY New York, NY Chandler Terry Lloyd Jerome Bertram W. Eisenberg James A. Moyer Thomas M. Whalen Krista Harris Cheatham Eric J. Jiang Liberty, NY Port Washington, NY Albany, NY Geraldine Ann Cheverko Maitland Kalton Bruce E. Hansen Paul J. Chuey P. Bic Kanayjorn- Rochester, NY Melissa Cipriano Na-Ayuthaya Rebecca Clar Ja Lee Kao Joan Elizabeth Clarke Mark C. Katzef Victoria L. Rehrer Barteline Aster B. Tuvi Keinan Lillian Elizabeth Rice Cnossen Robin Plummer Keller Tracy L. Rich Audrey Paula David Michael Kerr Isabelle B. Riviere MEMBERSHIP Cohen-Davis Dongjin Kim Jason Scott Robertson Virginie Antonella Dongmyung Kim Craig Drury Robin OTALS Colaiuta Hongki Kim T Jin-gyu Ryu Jonathan Tracy Colby Joel Gibson Kinney Melody Sayer Hillary Jane Collyer Hideyuki Kiuchi Clifford David Dina Confalone Itai Klein Schlesinger Timothy Joseph Corbett Christopher John Rachel E. Schottland NEW REGULAR MEMBERS Bryan Paul Couch Koddermann Maria Seferian 1/1/02 - 4/10/02 ______2,101 Victoria Louise Crane James Alan Kozachek Dakhini Ramyalatha Jeffrey Michael Daitz Yanina Kravtsova Senanyake NEW LAW STUDENT MEMBERS Inigo Jorge Deluisa Hong S. Kwon Kimberly Louise Shaw Yolanda Marie David Michael La Bruno 1/1/02 - 4/10/02 ______473 Karim K. Shehadeh Demianczuk Hang Bog Lee Andrew Mervyn Shih TOTAL REGULAR MEMBERS AS OF Askan Deutsch Hsiao-wei Lee Nancy Silverman Oren D. Doron Hyun Chul Lee 4/10/02 ______66,923 Michael Scott Simitz Robert Mark Dunn Erica M. Lell Chander Paul Singh Ashley Darryl Dworsky Chiu-hua Tracy Li TOTAL LAW STUDENT MEMBERS AS Christine Juliet Sohar Chadia Salim El Meouchi Lester E. Lipschutz OF 4/10/02______5,317 Edward L. Soyka William Patrick Evans Harel Locker Rebekah L. Sprano John Fehrenbach Elizabeth Lucas TOTAL MEMBERSHIP AS OF Eleftherios Stefas Angela Ferrante Simone M. Manigo-Truell David Jason Steinberg 4/10/02 ______72,240 Moshe Fessel Steven D. Markowitz Joshua Brooks Sterling Noah J. Fisette Kara Lynn Marsallo Michael K. Stern Kyle Bradford Fleming Suzannah R. Mayberry Rohan K. Sukhdeo Siofra Niamh Flood Patrick Henry Mccaffery Christine Patricia Sun Angela Marie Smidga Fox Sharon Marie Mcgowan Patrick David Sweeney Shlomi Shlomo Friedman Edwin Mejia Christine Mary Jacqueline Samrat Ganguly Anja Lucia Miller Synder Fei Gao David Emanuel Miller Matthew Scott Tamasco Vincent Garcia Palvi David Mohammed Samuel Jason Teele Sarika Ila Garg Peter Edward Moran Ria Miriam Thomas Greg Stephen Gargulinski Scott H. Moss Ethan Venner Torrey Tamara N. Garnes Tetsuya Nagasawa Chao An Tsai Dana Alan Gausepoal Lawrence Herbert Nelsen Massimiliano Valerio Brian Gaynor Todd Andrew Neufeld Christopher Neil Willott Jennifer A. Gelain-Sohn Michael Donald Nieman Kangsun Yong Leonard Hardy Gicas Mark E. Nikolsky Michael M. Youssef John Joseph Ginley Federico Ortino Xuan Zhang Emily Anne Gioseffi Gisel J. Ortiz Matt Ziegler Brion David Graber Archis Ashok Robert F. Zysk Michael Spitzer Greene Parasharami Jennifer Katheryne Ellis K. Park Gurzenski Mary T. Pasqualino Bryan Ha Maria G. Pavon Simon Airi Hammalov Elizabeth Anne Pelletreau Julian Ari Hammond Mark Andrew Petry Masaki Hanai Heather Kay D. Pinnock Brenda Marie Hankins Grace Ann Pranzo Yorke Morgan Alicia Harris Radoslav Prochazka Catherine Elizabeth James Thomas Hasenzahl Prusinowski Anja Wilma Helga Heather Lynn Quinter Hasselmann Victor Stephan Ramirez Journal | March/April 2002 61 Jean E. Nelson II, Associate Director, Lawyer Assistance Program [email protected] Ray M. Lopez, Director, HEADQUARTERS Jean Marie Grout, Staff Attorney, [email protected] [email protected] Management Information Systems STAFF Leslie A. Fattorusso, Staff Attorney, John M. Nicoletta, Director, [email protected] [email protected] E-MAIL ADDRESSES Cheryl L. Wallingford, Program Manager, Ajay Vohra, Technical Support Manager, [email protected] [email protected] Daniel J. 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Faccioli, Production Manager, Amy Travison Jasiewicz, Editor, State Bar News, Kathleen M. Heider, Director of Meetings, [email protected] [email protected] [email protected] Human Resources Membership Barbara Beauchamp, Web Site Content Editor Richard V. Rossi, Director, Patricia K. Wood, Director, [email protected] [email protected] [email protected] Accounting Law Office Economics and Management Pro Bono Affairs Kristin M. O’Brien, Director of Finance, Stephen P. Gallagher, Director, Diane Burman, Director, [email protected] [email protected] [email protected] Anthony M. Moscatiello, Controller, Law, Youth and Citizenship Program [email protected] Gregory S. Wilsey, Director, Continuing Legal Education [email protected] Terry J. Brooks, Director, Emil Zullo, Assistant Director, [email protected] [email protected] THE NEW YORK JOURNAL BOARD BAR FOUNDATION MEMBERS EMERITI 2001-2002 OFFICERS DIRECTORS s a tribute to their outstanding service to Richard J. Bartlett John P. Bracken, Islandia Aour Journal, we list here the names of President Cristine Cioffi, Niskayuna each living editor emeritus of our Journal’s Board. 1 Washington Street Angelo T. Cometa, New York City Richard J. Bartlett P.O. Box 2168 Maryann Saccomando Freedman, Buffalo Coleman Burke Glens Falls, NY 12801-2963 Robert L. Haig, New York City John C. Clark, III Emlyn I. Griffith Jules J. Haskel, Garden City Angelo T. Cometa Vice President Paul Michael Hassett, Buffalo Roger C. Cramton 225 North Washington Street John R. Horan, New York City Maryann Saccomando Freedman Rome, NY 13440-5724 Susan B. Lindenauer, New York City Emlyn I. Griffith H. Glen Hall Patricia K. Bucklin Robert L. Ostertag, Poughkeepsie Secretary Paul S. Hoffman Joshua M. Pruzansky, Islandia One Elk Street, Albany, NY 12207 Charles F. Krause Thomas O. Rice, Garden City Philip H. Magner, Jr. Randolph F. Treece M. Catherine Richardson, Syracuse Treasurer Wallace J. McDonald Hon. Shira A. Scheindlin, New York City 445 Broadway J. Edward Meyer, III Albany, NY 12207 Justin L. Vigdor, Rochester Albert M. Rosenblatt Robert J. Smith Lawrence E. Walsh 62 Journal | March/April 2002 Members of the House of Delegates 2001-2002 First District Third District Eighth District Alcott, Mark H. Ayers, James B. Attea, Frederick G. OFFICERS Baker, Theresa J. Bauman, Harold J. Doyle, Vincent E., III Barasch, Sheldon Cloonan, William N. Edmunds, David L., Jr. Batra, Ravi Connolly, Thomas P. Eppers, Donald B. † Bing, Jonathan L. Dorsey, Richard J. Evanko, Ann E. Bonner, Thomas J. Flink, Edward B. Evans, Sue M. Brett, Barry J. Friedman, Michael P. * Freedman, Maryann Saccomando Buckley, Hon. John T. Higgins, Patrick J. Gerstman, Sharon Stern Steven C. Krane, President Cashman, Richard Kelly, Matthew J. Gold, Michael A. New York Chakansky, Michael I. Klein, Frank Graber, Garry M. Chambers, Hon. Cheryl E. LaFave, Cynthia S. †* Hassett, Paul Michael Lorraine Power Tharp, President-Elect Christian, Catherine A. Leistensnider, Ruth E. McCarthy, Joseph V. * Cometa, Angelo T. Lester, Kelly Mooney Mohun, Michael M. Albany Cuyler, Renaye B. Maney, Hon. Gerard E. O’Connor, Edward J. Frank M. Headley, Jr., Treasurer Davis, Bonni G. Miranda, David P. O’Mara, Timothy M. Davis, Evan A. Murphy, Sean Palmer, Thomas A. Scarsdale DeFritsch, Carol R. Netter, Miriam M. Pfalzgraf, David R. Eisman, Clyde J. Pierro, Louis W. Porcellio, Sharon M. A. Thomas Levin, Secretary Eppler, Klaus Samel, Barbara J. Mineola * Fales, Haliburton, 2d † Tharp, Lorraine Power Ninth District Farrell, Joseph H. Tippins, Timothy M. Aydelott, Judith A. Field, Arthur N. Treece, Hon. Randolph F. Fedorchak, James M. Finerty, Hon. Margaret J. * Williams, David S. Gardella, Richard M. Fink, Rosalind S. * Yanas, John J. Geoghegan, John A. * Forger, Alexander D. Golden, Richard Britt Freedman, Hon. Helen E. Fourth District Goldenberg, Ira S. * Gillespie, S. Hazard Cioffi, Cristine Headley, Frank M., Jr. Goldstein, M. Robert Clements, Thomas G. Herold, Hon. J. Radley Vice-Presidents Gross, Marjorie E. Coffey, Peter V. Klein, David M. First District: Haig, Robert L. Doern, James E D Kranis, Michael D. Handlin, Joseph J. FitzGerald, Peter D. Longo, Joseph F. Mark A. Alcott, New York Harris, Martha W. Harper, David A. Manley, Mary Ellen Stephen D. Hoffman, New York * Heming, Charles E. Hoye, Hon. Polly A. * Miller, Henry G. Second District: Hirsch, Andrea G. Keniry, Hon. William H. Mosenson, Steven H. Hoffman, Stephen D. Russell, William E. O’Leary, Diane M. Edward S. Reich, Brooklyn Horowitz, Steven G. Tishler, Nicholas E. * Ostertag, Robert L. Third District: Jacoby, David E. Riley, James K. James B. Ayers, Albany Jaffe, Hon. Barbara Fifth District Stewart, H. Malcolm, III Kilsch, Gunther H. Cohen, Richard A. Walker, Hon. Sam D. Fourth District: * King, Henry L. Doerr, Donald C. Peter D. FitzGerald, Glens Falls Kougasian, Peter M. Dwyer, James F. Tenth District Fifth District: † Krane, Steven C. Fennell, Timothy J. Abrams, Robert Landy, Craig A. Fetter, Jeffrey M. Asarch, Hon. Joel K. James F. Dwyer, Syracuse Leber, Bernice K. Getnick, Michael E. †* Bracken, John P. Sixth District: Lieberman, Ellen Gingold, Harlan B. Filiberto, Hon. Patricia M. Hon. Eugene E. Peckham, Binghamton Lindenauer, Susan B. Klein, Michael A. Franchina, Emily F. * MacCrate, Robert Kogut, Barry R. Gutleber, Edward J. Seventh District: Mandell, Andrew Michaels, Joanne E. Kramer, Lynne A. C. Bruce Lawrence, Rochester Miller, Michael Priore, Nicholas S. Levin, A. Thomas Eighth District: Miller, Sonia E. Renzi, David A. Levy, Peter H. Minkowitz, Martin †* Richardson, M. Catherine Meng, M. Kathryn Joseph V. McCarthy, Buffalo Opotowsky, Barbara Berger Rizzo, James S. Mihalick, Andrew J. Ninth District: * Patterson, Hon. Robert P., Jr. Uebelhoer, Gail Nackley Monahan, Robert A. Joseph F. Longo, White Plains Paul, Gerald G. Perlman, Irving Tenth District: Pickholz, Hon. Ruth Sixth District †* Pruzansky, Joshua M. Quattlebaum, Poppy B. Beehm, Angelina Cutrona Purcell, A. Craig A. Craig Purcell, Hauppauge Raubicheck, Charles J. Denton, Christopher †* Rice, Thomas O. Eleventh District: Rayhill, James W. Drinkwater, Clover M. Roach, George L. Gary M. Darche, Flushing Rifkin, Richard Folmer, John B. Rothkopf, Leslie Robertson, Edwin D. Gacioch, James C. Spellman, Thomas J., Jr. Twelfth District: Roper, Eric R. Lewis, Richard C. Tully, Rosemarie Lawrence R. Bailey, New York Rosner, Seth Mayer, Rosanne Walsh, Owen B. Rubenstein, Joshua S. Peckham, Hon. Eugene E. Safer, Jay G. Reizes, Leslie N. Eleventh District Scarborough, Robert H. Wayland-Smith, Tina Bohner, Robert J. Schumacher, H. Richard Darche, Gary M. Members-at-Large of the * Seymour, Whitney North, Jr. Seventh District Dietz, John R. Silkenat, James R. Bleakley, Paul Wendell Fedrizzi, Linda F. Executive Committee Sloan, Pamela M. Buzard, A. Vincent Glover, Catherine R. Souther, Eugene P. Castellano, June M. Nashak, George J., Jr. Sharon Stern Gerstman Stenson, Lisa M. Clifford, Eugene T. Nizin, Leslie S. Michael E. Getnick Vitacco, Guy R., Sr. Dwyer, Michael C. Terranova, Arthur N. Matthew J. Kelly Yates, Hon. James A. Grossman, James S. Wimpfheimer, Steven Gunther H. Kilsch Harren, Michael T. Second District Heller, Cheryl A. Twelfth District Bernice K. Leber Cerchione, Gregory T. Lawrence, C. Bruce Bailey, Lawrence R., Jr. Susan B. Lindenauer Dollard, James A. †* Moore, James C. Friedberg, Alan B. Doyaga, David J. * Palermo, Anthony R. Kessler, Muriel S. Fisher, Andrew S. Reynolds, J. Thomas Kessler, Steven L. Hesterberg, Gregory X. * Van Graafeiland, Hon. Millon, Steven E. Kamins, Barry Ellsworth †* Pfeifer, Maxwell S. Lashley, Allen * Vigdor, Justin L. Schwartz, Roy J. Morse, Andrea S. Wallace, David G. Torrent, Damaris Esther † Delegate to American Bar Association House of Delegates Reich, Edward S. †* Witmer, G. Robert, Jr. Torres, Austin * Past President Sunshine, Nancy T. Out-of-State * Walsh, Lawrence E. Journal | March/April 2002 63 The Pause That Refreshes: THE LEGAL WRITER Commas BY GERALD LEBOVITS or most of us, commas induce is necessary. If the comma feels cum- that sentence, delete the comma after comas. We know that we must bersome, rearrange the sentence: first or, if the comma remains, add a Feliminate unnecessary commas. “The opinion, which the judge comma after only, because the sen- We agree that commas must enclose signed, is dated March 6, 1955.” tence means, “Justification was his parenthetical words. But what’s the Begin and end on high notes. Use first excuse; justification was his only difference between a comma splice commas after closings (“Sincerely excuse.” Use commas to separate and a serial comma? yours,”) and informal salutations two parts of a double comparative: Commas, like all punctuation, (“Dear Art,”). Formal salutations re- “The more, the merrier.” have many uses, including writing quire a colon (“Dear Mr. Arthur:”). persuasively. Punctuation can speed You’re entitled. Commas go before Be positive readers up or slow them down. Em titles: “John Doe, J.D.” “Jane Roe, about appositives. dashes (“—”) grab readers, semi- Esq.” Commas must frame colons pause, periods arrest. Recast Some nonessential information. nonrestrictive appositives. sentences to add or excise commas if Commas set off phrases that add you want your reader to get through nonessential information to preced- your material slowly or quickly. Con- ing clauses that begin with words Introduce yourselves. Use an intro- sider in a custody-dispute case the like despite, including, irrespective of, ductory comma for clarity after an persuasive effect of asyndetons, or particularly, perhaps, preferably, proba- introductory word, clause, or prepo- using commas instead of conjunc- bly, provided that, regardless of, and sitional or participial phrase or sub- tions, and polysyndetons, or using usually. ordinate clause. Introductory word: conjunctions instead of commas. The Tag: you’re it. Commas set off tag “Frankly, Judge Friendly wrote the following examples, with some edit- questions. “The attorney read the opinion.” Without the comma, a ing, come from Laurel C. Oates et al.1 court rules, didn’t she?” reader might believe that the judge’s Objective style: “Mr. Lundquist had A good question. No comma after a name, or nickname, is “Frankly certain responsibilities regarding his question mark or an exclamation Judge Friendly.” Introductory phrase: daughter Anna’s care: He drove her to point after a quotation. “‘Dismiss the “Although Judge Smith gave her school, checked her homework, and took petition!,’ the tenant insisted.” Be- court attorney explicit instructions her to medical appointments.” Persua- comes: “‘Dismiss the petition!’ the for revising, the draft opinion got sive style favoring the father: “Mr. tenant insisted.” worse.” Without the comma, a reader Lundquist had several significant re- Double trouble. Use a comma to might confuse “revising” with “re- sponsibilities regarding his daughter omit and or but between double ad- vising the draft opinion.” Introduc- Anna’s care: He drove her to school, and jectives. “She is a strong, careful tory clause: “In German, nouns are al- checked her homework, and took her to writer.” “As a youth, Judge Y went to ways capitalized.” Without the medical appointments.” Persuasive new, hip joints; now he must go for a comma, a reader who reads quickly style favoring the mother: “Mr. new hip joint.” Noncoordinate adjec- might believe that the introductory Lundquist had minimal responsibili- tives are unpunctuated because they phrase was, “In German nouns,” not ties regarding his daughter Anna’s carry equal weight: “Under his robes, “In German.” care: He drove her to school, checked her the judge wears a gray flannel suit.” Am I making myself clear? Use or homework, took her to medical appoint- Thus, do not use a comma to sepa- omit mid-sentence commas for clar- ments.” rate two adjectives before a noun ity: “The problem, in Judge X’s opin- Set off on the right foot. Commas set when the first adjective modifies the ion, is that Av Bis not cited.” Vs. off dates or addresses—but not zip second adjective or when the second “The problem in Judge X’s opinion is 2 codes. “The opinion is dated March adjective and the noun form one that Av Bis not cited.” The former 6, 1955, and signed by the judge.” unit. But add a comma before a word refers to Judge X’s belief. The latter Many modern authorities argue that that belongs to two or more phrases. refers to Judge X’s decision. Use or the comma after the year looks awk- Incorrect: “Justification was his first, cut commas to eliminate confusion: ward and interrupts. But the comma and ultimately his only excuse.” In CONTINUED ON PAGE 57 64 Journal | March/April 2002