Albany County Bar Association Newsletter

ALBANY COUNTY BAR ASSOCIATION NEWSLETTER

September 2015 | A Publication of the Albany County Bar Association

PRESIDENT’S MESSAGE

I hope you had a terrific summer and packs for youth attending Albany Middle opportunity to celebrate his contributions found time to relax and do something you Schools. Our conference room currently to our legal system and to celebrate his enjoy! Summer was busy for the ACBA. looks like a Staples store, filled with back- next chapter. Hope to see you there! We held two great Happy Hour CLEs packs, paper, crayons, pencils and pens. programs at McGeary’s in conjunction Thank you to the firms and all of our mem- And onto another ACBA member, Mi- with Alive at Five. Where else can you bers who donated to help us achieve our chael Friedman, who is retiring and has get a CLE credit, a drink and munchies goal. The staff is excited to deliver the given countless hours in volunteering for twenty dollars? We received positive backpacks later this week and I am sure and service to the ACBA. I cannot even feedback and hope to offer more low the youth who benefit from your generosity begin to list all of Mike’s contributions to cost, fun CLE programs over the next will be excited about their surprise as well. the ACBA. As a Past President, creator few months. If you have CLE ideas or of our pro se divorce program, pro bono are interested in joining our CLE commit- I also had the opportunity to testify attorney, lead instructor for Family Court tee, please contact our Co-Chairs Ryan before Chief Lippman’s Commission on Help Desk trainings, Chair of the Memorial Donovan (rtdonovan@capitalregionlaw. Statewide Attorney Discipline regarding Committee and, most notably, his news- com) and Matt Barry ([email protected]). the state’s attorney discipline system. The letter columns…we will miss you, we wish ACBA was pleased to be invited to provide you the best in California and are happy Our energetic and dedicated staff is al- a perspective of a local bar association to announce the New York Law Journal will ways looking for ways to give back to our and believe it is critical for our members to present Mike with the Lifetime Achieve- community and undertook the mission be have input on such an important mat- ment and Lawyers Who Lead by Public to raise enough money to fill 75 back- ter. We will provide updates as the Com- Service Award in October. This recogni- mission finalizes its recommendations. tion is well deserved! Congratulations! WHAT’S INSIDE: In the spring, the ACBA commissioned As fall arrives, we will be undergoing Workers’ Compensation Law...... 2 a portrait of the Honorable Victoria A. some changes. Our Executive Director, Graffeo. The portrait is finished and we Continued on page 11 Small and Solo Attorneys...... 3 are proud to have it displayed in the Hall Health Law ...... 4 of Judges, located on the third floor of Pro Bono Corner ...... 6 the Albany County Courthouse. A pic- Clarence Darrow Vignettes ...... 8 ture of the portrait is on page 27 and I Pro Bono Corner II...... 9 encourage you to take a few minutes the CLE Calendar...... 10 next time you are in the courthouse to see it in person. We are pleased to have Attorneys in the Public Service...... 11 all of the portraits hanging, once again, Scotuscare?...... 12 the in the courthouse. Practicing Health and Wellness..... 14 Torts and Civil Procedure...... 15 Now onto celebrations….I hope you will Attorney Marketing and Business.. 17 join the Albany County Bar Association, the Labor and Employment Practice... 20 Rensselear County Bar Association, the Matrimonial Law...... 22 Capital District Black and Hispanic Bar As- sociation, the Northern District of NY Fed- Calendar of Events...... 23 eral Court Bar Association in celebrating Classified ...... 24 the retirement of the Honorable Randolph Tax Traps...... 25 F. Treece on September 24th at the Hilton Bench & Bar in the News ...... 26 in Albany. Judge Treece is a former ACBA JANET M. SILVER Business Members in the News.... 27 Director and has given hours of assistance Hinman Straub, P.C. to the ACBA. We are honored to have the EXECUTIVE DIRECTOR’S MESSAGE This fall we have lots of great events fantastic experience and I thank every- planned from Judge Treece’s retirement one for all that you have taught me and reception on September 24 to our annu- provided for me and the Bar. I am fully al Holiday Party on December 17; I do confident that whoever takes my place hope you join us for some celebrating, will do a great job and transition into this giving back and of course learning at position smoothly. During my time here, one of our CLE programs. we have instituted a lot of positive changes to the ACBA and there are even more If you haven’t yet heard, September great things to come that will benefit the 16th will be my last day as Executive members and the community. I look for- Director. I’ve accepted a position at Al- ward to watching these changes and new STACEY WHITELEY bany County Family Court as Deputy initiatives grow and flourish under a new Executive Director Chief Clerk. The decision to leave was Executive Director. [email protected] a difficult one and was not made light- ly. My time here at the ACBA has been Again, thank you all for your member- wonderful; working with the Board, the ship and I look forward to seeing you at staff and member attorneys has been a future events! ●

WORKERS’ COMPENSATION LAW

request in a timely fashion. These or- ally every surgeon I have talked to ders are unappealable. who has been in this situation has ac-

But apparently they can be “object- Continued on page 3 ed to” rather than appealed.

So what happens in a situation MISSION STATEMENT where a doctor requests authorization for a particular surgery and receives The purpose of the Albany County RAYMOND J. “AN ORDER OF THE CHAIR” autho- Bar Association is to promote rizing the particular surgery request- professional collegiality among SELIGMAN, ESQ. ed. The doctor performs the surgery the bench and bar; facilitate public service and access to THE SILVERMAN FIRM as directed and then learns that the justice for all; and offer programs, [email protected] “ORDER OF THE CHAIR” has been benefits and services to enhance redacted due to an objection by the the skills of its members. carrier (mind you not an appeal) and It has been a while since we have therefore won’t get paid. While your had a meaningful discussion on writer only represents claimants even Pictorial Directory Workers’ Compensation but then it’s I am forced to acknowledge that on been a while since anyone has had occasion the carriers are right. Some- a meaningful discussion on Workers’ times they did respond in a timely Compensation. The system con- fashion and the evidence is in the tinues to generate more and more New York State electronic case folder forms and some of the delays have which is maintained by the Workers’ become almost insurmountable. Compensation Board. Notwithstand- Settlement demands made to WAMO ing my pigheadedness they should which was supposed to be a short- have a right to be heard. But what cut on some Special Funds cases about the surgeon, and the anesthe- now have a 22 month review time. siologist, and the assistant surgeon, And then there is something called and the hospital, and the nurses and Don’t forget to stop by our office, “AN ORDER OF THE CHAIR”. This everyone else involved with the sur- 112 State St., Suite 1120, is an order by the Chairman of the gery who has given their professional to pick up your Directory. Workers’ Compensation board au- time? They have now been told that The fee is $20 to pick it up, or add an thorizing very particular and specific the carrier need not pay because additional $6 to have it mailed to you. medical treatment when a carrier has the nonappealable order of the chair This is a great desktop reference! failed to respond to an authorization should not have been issued. Virtu-

2 | Albany County Bar Association Newsletter | September 2015 SMALL/SOLO LAW FIRM COMMITTEE Small and Solo Attorneys

Hope you all had a nice relaxing sum- itch & Coffey, LLC (17 Elk Street, Albany), This will be a great resource for those mer, didn’t get sunburned and didn’t lose Small/Solo member Alan Bazzari will be looking to give or receive potential client too much money at the track. giving a CLE on “Handling Traffic Tickets referrals to other small/solos. for Attorneys Who Don’t Normally Handle The Small/Solo Committee is developing Traffic Tickets.” Many of us practitioners We are developing a form for you to sub- activities and programs tailored to the spe- don’t handle traffic tickets as part of our mit the information and will have that on cial needs of small/solo attorneys (those practice but at times are called upon by the ACBA website in the near future. practicing in firms with approximately 10 friends and family members to appear in or fewer attorneys). traffic court and negotiate a ticket. This Website of the Month breakfast CLE will provide you with an in- There is no charge to join the commit- troduction to local traffic court practice. For those of you who are members of tee, so please email Dan or Sarah if you’d It’s open to all ACBA members. Bagels the American Bar Association, consider like to get involved. and coffee provided. Cost is only $10. joining their Small/Solo section. Their re- Please pre-register through the ACBA’s source center is at: http://www.american- We are looking for speakers to present website so we’ll have an idea how many bar.org/portals/solo_home/solo_home. at our future meetings, either informally or people are coming. html. Some of the content is free. They as a registered CLE. If you have an idea offer 18 hours a year of free CLE on a va- for a topic, such as discussing your area of Small/Solo Directory riety of topics, with archived programs practice, please let us know. We are in the process of compiling of available to listen to online. In addition to directory of ACBA Small/Solos, listing CLEs, they offer frequent informal “Brown October 6 CLE background, areas of practice and your Bag” sessions, that are not available for On October 6, 2015 at 8:30 am at Bow- photograph. CLE credit but are very informative. Re- cent past Brown Bag topics include: “The Co-Chair, Daniel Coffey Co-Chair, Sarah Gold Top Billing Mistakes Attorneys Make and Bowitch & Coffey, LLC Gold Law Firm How to Fix Them,” “Information Security [email protected] [email protected] in the Modern Office,” and “So You Want to Start a Law Blog...” The section’s Solo and Small Summit is September 24-26, 2015 in Boston. ●

WORKER’S COMPENSATION LAW (continued) Continued from page 2 knowledged that he/she will not follow the general bar. The greatest time on the frequency, dosage and other any future directive of “AN ORDER consuming aspect of modern Comp particulars of different medications. OF THE CHAIR” because the Board litigation revolves around the new Suggestions have been made that the won’t stand behind it. One need not non-acute medical treatment guide- ALJ direct the treating physician and be a legal scholar to appreciate the lines. After the surgery, after the PT, the IME to talk by phone with a ste- problems this presents to everyone in- after the rehab Claimants often con- nographer, costs to be borne by the volved. Correspondence to the Board tinue to require pain meds and therein carrier to see if the two experts can’t asking that these bills be paid by the lies the problem. The new guidelines come to a reasonable compromise. To Administrative Fund maintained by are dramatically definitive as to the date, no luck. the Board have fallen on deaf ears. type, quantity and dosage of medi- A hearing has been requested to ad- cations which are often different than Next month we will look at some of dress this issue but to date no hearing those being prescribed. Papers are the more exciting comp decisions, if is scheduled. filed and testimony is taken of both such things exist. ● the treating physician, usually a pain There are some new cases from the doctor and the carrier IME. Eventually Appellate Division but most are very it makes its way to an Administrative technical and not of real concern to Law Judge who then issues a decision

Albany County Bar Association Newsletter | September 2015 | 3 HEALTH LAW ESPN, JPP, and HIPAA: CAN REPORTERS BE LIABLE FOR REVEALING PHI? Does a news reporter violate the injuries were “not career threatening.” viduals not covered by HIPAA. privacy protections of the Health In- Not even the Giants knew the full ex- formation Portability and Account- tent of the injuries as team officials A brief overview of criminal liabil- ability Act (“HIPAA”) when he broad- were prevented from seeing Pierre- ity under HIPAA is a useful starting casts protected health information Paul at Jackson Memorial Hospital in point in looking at this issue. As (“PHI”) obtained as the result of an Miami, where he was being treated. noted above, HIPAA only applies to improper disclosure by a health care “covered entities,” which are defined provider? That question was raised However, Schefter discovered the as health insurance plans, healthcare in July when ESPN reporter Adam true extent of the injury when he ob- clearinghouses and all healthcare Schefter published the hospital re- tained excerpts of Pierre-Paul’s medi- providers that “transmit any health cords of Jason Pierre-Paul, a star cal record demonstrating that he had information in electronic form in con- player for the New York Giants. Put- undergone surgery to amputate his nection with a transaction” for which ting aside the question of whether, right index finger. Schefter reported the Secretary of Health and Human and to what extent, the hospital or the development and posted imag- Services has adopted a standard. its employees may be liable for this es of the hospital records on Twitter. In general, a covered entity may not disclosure, news agencies and re- While the records presumably came disclose the PHI of an individual to a porters should take a closer look at from someone at the hospital and third party without his consent, unless the legal ramifications of obtaining were disclosed without Pierre-Paul’s an exception applies. In addition to and publishing PHI. Even though consent—which would expose the civil monetary penalties for violating the mainstream media is not subject hospital and the involved employees HIPAA protections and standards, to HIPAA, there may still be exposure to potential liability under HIPAA— criminal penalties can apply when to criminal prosecution in certain sit- some observers questioned whether a “person” who is a covered enti- uations where news agencies handle Schefter’s reporting violated HIPAA. ty under HIPAA knowingly “(1) uses improperly released PHI; the United ESPN’s response was simple: “HI- or causes to be used a [patient’s] States Department of Justice (“DOJ”) PAA does not apply to news orga- unique health identifier [to access has prosecuted individuals for con- nizations.” Schefter did not reveal data]; (2) obtains individually identifi- spiring with others to violate HIPAA, his source or how he obtained the able health information relating to an even though those individuals were documents, but he wrote in an e-mail individual; or (3) discloses individu- not covered entities under HIPAA. interview with Sports Illustrated that ally identifiable health information” in he “never once requested a single a manner that violates HIPAA privacy Readers are likely familiar with the image from anyone at any time” and protections. basics of the ESPN/Pierre-Paul situ- that the documents came to him “un- ation. On July 5, 2015, news reports expectedly.” Schefter also likened There are a range of penalties for a surfaced that Pierre-Paul, who was his disclosure of the Pierre-Paul re- violation of this section. Persons vio- in the process of negotiating a large cords to the normal media practice lating the law may be: contract extension with the Giants, of reporting of injuries suffered by had injured his hand in a fireworks players, the latter of which is gener- (1) be fined not more than $50,000, accident in Miami. Initial reports were ally accepted practice. imprisoned not more than 1 year, or sketchy and conflicting; the first re- both; ports were that Pierre-Paul had “se- ESPN’s response was accurate: verely injured” his hand, but ESPN’s non-healthcare entities—including (2) if the offense is committed un- Schefter reported that Pierre-Paul’s news agencies and their staff—are der false pretenses, be fined not not subject to HIPAA and cannot be more than $100,000, imprisoned not subjected to civil or criminal penal- more than 5 years, or both; and David Nardolillo ties under that law. However, that O’Connell & Aronowitz P.C. [email protected] should not be the end of the analysis (3) if the offense is committed with conducted by third party recipients intent to sell, transfer, or use individ- of PHI because the DOJ has used ually identifiable health information the concepts of conspiracy liability to for commercial advantage, personal expand the scope of prosecutions of improper disclosures of PHI to indi- Continued on page 5 4 | Albany County Bar Association Newsletter | September 2015 HEALTH LAW (continued)

Continued from page 4 done which if directly performed by potentially result in a prosecution of a him or another would be an offense reporter under a theories of conspir- gain, or malicious harm, be fined not against the United States.” 18 U.S.C. acy to violate HIPAA or aiding and more than $250,000, imprisoned not § 2 (2000). And the conspiracy stat- abetting a HIPAA violation. Even more than 10 years, or both. ute prescribes punishment “if two or under the pressures of the modern more persons conspire . . . to commit news cycle, media outlets are best It is important to note that this pro- any offense against the United States served to take the time to ensure their vision of HIPAA, in addition to prohib- . . . and one or more of such persons acquisition and publication of PHI iting the improper disclosure of PHI, do any act to effect the object of the does not inadvertently expose them also punishes the improper acquisi- conspiracy.” 18 U.S.C. § 371 (2000). or their employees to liability. ● tion of PHI, even if that information is never disclosed to a third party. Fur- DOJ has put its position into prac- thermore, a covered individual does tice by prosecuting individuals for 1. Andy Slater, https://twitter.com/AndySlater/status not need to possess knowledge that conspiring to improperly access and /617785024302194688 his actions in accessing or disclosing disclose PHI, even though those in- 2. Michael David Smith, “Jason Pierre-Paul’s fire- the PHI violate HIPAA in order to be dividuals were not subject to HIPAA. works injury not believed career threatening,” Pro Football Talk, at http://profootballtalk.nbcsports. held liable under the statute; liabili- In one example, an Arkansas nurse com/2015/07/05/jason-pierre-pauls-fireworks-inju- ty merely requires that violator knew pleaded guilty for improperly dis- ry-not-believed-career-threatening/ that he obtained or disclosed PHI. closing PHI in violation of 42 U.S.C. 3. Justin Tasch, “Giants still haven’t been able to see 1320d-6 after she and her husband— Jason Pierre-Paul, who’s believed to have undergone surgery after fireworks accident,” New York Daily It is important for HIPAA-exempt who was not a healthcare provider News, July 8, 2015, available at: http://www.nydai- third parties, such as news organi- or employed by a HIPAA covered lynews.com/sports/football/giants/giants-haven-in- zations, to understand the legal ele- entity—were indicted on multiple jured-pierre-paul-article-1.2284546 ments of HIPAA’s protections and to charges, including conspiracy to vi- 4. The release may be accessed here: https://twitter. carefully consider how they approach olate the HIPAA privacy protections. com/AdamSchefter/status/618918579770146816 the acquisition and publication of PHI The nurse improperly accessed the “Did Adam Schefter violate Jason Pierre-Paul’s HI- PAA rights?” AOL.com, at: that has been obtained without the medical record of a patient and re- 5. Brian Stelter, via Twitter, at: https://twitter.com/bri- formal consent of the patient. While layed information from the record to anstelter/status/618955535111561217 ESPN’s position that news organi- her husband, who then harassed the 6. Richard Deitsch, “The Noise Report,” zations and their employees cannot patient and threatened to use the PHI SI.com July 13, 2015, at: http://www.si.com/ be directly subject to criminal pen- in a lawsuit against the patient. more-sports/2015/07/12/caitlin-jenner-es- pnys-espn-adam-schefter-jason-pierre- alties under HIPAA and 42 U.S.C. § paul?page=4&devicetype=default 1320d–6 is technically correct, the The reality of a broader scope of 7. Although analysis of the legal aspects of reporting scope of persons that may be prose- prosecution therefore requires news player injuries is outside the scope of this article, it cuted in conjunction with improperly agencies and their employees to bears noting that in most of those cases, player injury information originates from NFL teams which, unlike accessed or disclosed PHI is broad- carefully consider the legal ramifica- the hospital in this case, are not subject to HIPAA,. er that just HIPAA covered entities. tions of obtaining or disclosing med- 8. 45 C.F.R §160.103. As a practical matter, his The exposure to prosecution is not ical records and other PHI without broad designation captures most healthcare provid- just theoretical. The United States patient consent or without confirming ers. It should also be noted that “business associates” (e.g. law firms, consultants, billing companies) Department of Justice (“DOJ”) has the legality of the disclosure. To be that provide services to covered entities that require taken the position in a formal legal clear, the known facts of the ESPN/ the use of PHI also become subject to the HIPAA opinion that “persons outside the Pierre-Paul matter indicate that Adam standards via that relationship. covered entity, including recipients of Schefter did not aid or abet a HIPAA 9. See 45 C.F.R. §164.502. Typical exceptions in- protected information, may be prose- violation, did not participate in a con- volve disclosures to other healthcare providers for the purposes of treatment, disclosures to business cuted in accordance with principles spiracy to violate HIPAA, and did not associates (see n.10, supra), disclosures pursuant of aiding and abetting liability and of violate any other health privacy law— to court orders, and disclosures in specific types of conspiracy liability.” In that opinion the Pierre-Paul medical records sent emergencies. the DOJ succinctly summarized the to Schefter arrived “unexpectedly” 10. See 42 U.S.C. § 1320d-5. applicable statues: and he stated that did not request 11. Individually identifiable health information is within the definition of PHI, see 45 C.F.R. § 160.103, and any information. However, regulato- is defined as any information that is created or re- The aiding and abetting statute ry focus and enforcement regarding ceived by a covered entity that “relates to the past, renders “punishable as a principal” data security, including PHI security, present, or future physical or mental health or condi- tion of an individual, the provision of health care to an anyone who “commits an offense remains robust and it is not hard to individual, or the past, present, or future payment for against the United States or aids, imagine a different set of facts—such the provision of health care to an individual,” either abets, counsels, commands, induces as a striking some deal or agreement identifies the individual or that creates “a reasonable basis to believe that the information can be used to or procures its commission” and any- with a hospital employee in exchange one who “willfully causes an act to be for medical records—which could Continued on page 6 Albany County Bar Association Newsletter | September 2015 | 5 HEALTH LAW (continued) Continued from page 5 identify the individual.” See 42 U.S.C. § 1320d(6). 13. 42 U.S.C.A. § 1320d-6. band were dismissed. See “Nurse Pleads Guilty to HIPAA Violation,” Press Release of United States At- 12. 42 U.S.C. § 1320d-6(a). Note that DOJ interprets 14. Those two important concepts were illustrated by torney, Eastern District of Arkansas (April 15, 2008), the term “person” in that section to mean a covered the Ninth Circuit Court of Appeals in United States v. available at: http://www.justice.gov/archive/usao/ entity who is an individual. When the covered entity Zhou, 678 F.3d 1110 (2012). The defendant in that are/news/2008/April/SmithLPNplea%20HIPAA%20 is not an individual but, for example, a corporation, case, an employee of a health system, argued that 041508.pdf and one of the corporation’s employees or officers he should not be prosecuted for violating HIPAA be- acts in a fashion which causes the covered entity cause he did not know that improperly accessing and 17. It should be noted that other types of PHI are gov- to violate HIPAA, the DOJ notes that “principles of viewing (but not disclosing) the medical records of erned by separate laws in addition to HIPAA. For corporate criminal liability will determine the entity’s others was a violation of the law. The Ninth Circuit example, alcoholism and substance abuse treatment liability [under 42 U.S.C. § 1320d-6] and that of indi- rejected that position. records are governed by 42 C.F.R. Part 2, which is viduals within the entity, including directors, officers, generally more stringent than HIPAA. Under that law, 15. See n.13, supra, Office of Legal Counsel, U.S. and employees.” Thus, individual employees (e.g. individuals receiving those types of records become Department of Justice, Memorandum Opinion: billing department employees) involved in improper subject to Part 2’s restrictions, and can be subject to “Scope of Criminal Enforcement under 42 U.S.C. § access or disclosure of PHI may also be prosecuted Part 2’s criminal penalties if the receiving individu- 1320d-6” (June 1, 2005). under section 1320d-6. See Office of Legal Counsel, al’s subsequent redisclosure violates that law. Ac- U.S. Department of Justice, Memorandum Opinion: 16. Id. cordingly, a recipient who receives PHI that includes “Scope of Criminal Enforcement Under 42 U.S.C. § 16. Once the nurse pleaded guilty to the section mental health or substance abuse records should 1320d-6” (June 1, 2005), available at: http://www. 1320d-6 violation, the charges against her husband, proactively analyze its obligations upon the receipt justice.gov/olc/opinion/scope-criminal-enforcement- including the conspiracy charge, against her hus- of such material. under-42-usc-1320d-6.

PRO BONO CORNER NOT ALL OUR VICTORIES ARE IN COURT By: Lianne S. Pinchuk Eileen Guinan, our Pro Bono coor- Eileen set up an introduction with The ACBA is lucky to be located on dinator, is a generous individual, of- our partner organization, Interfaith State Street – it’s the business and legal fering help (and her business card) Partnership for the Homeless, and hub of the city, it’s a stone’s throw from to anyone and everyone. One of paved the way for them to provide the Capital and there are some great those people was a gentleman col- assistance to this man. With their restaurants. But for the pro bono de- lecting cans and bottles to exchange outstanding array of services, Inter- partment, there is one more important for nickels. Eileen regularly provided faith Partnership for the Homeless reason. Our clients are nearby. They him with cans and bottles, thanking was able to help him. Within just a walk in. Sometimes they are home- him for his service in recycling. One few short months, this despondent, less; sometimes they are sent from day, he broke down and shared his alcoholic, unemployed homeless City Court; from the Clerk’s office; from sad story with her – he was home- man was able to turn his life around a shelter. And we are here to help. less, unemployed, an alcoholic and to become a productive member of had recently lost his sister. Eileen society – not because of our legal This is the story of one such cli- invited him to office figuring she had skills but because of our ability to ent - and his story is an inspirational to do something – anything – to help provide whatever assistance people success story, so I hope you get the this man. And, in true ACBA fashion, need. same happiness from reading it as she did! we get here from watching him live it. While we celebrate our legal victories and enjoy representing clients in court, our successes are measured by those we help, not by the number We’d love to meet even more of cases we win. ● of you in 2015.

Lianne Pinchuk If you’d like to add to the conversation, Pro Bono Attorney join us on [email protected] LinkedIn at: http://tinyurl.com/m2w8odv

6 | Albany County Bar Association Newsletter | September 2015 Join the us for a Retirement Reception for The Honorable Randolph F. Treece Thursday September 24, 2015 6:30 PM The Hilton Albany

Tickets are $75.00 and can be purchased at www.albanycountybar.com or by calling the office, 518-445-7691. Beer and wine, hors d’oeuvres Complimentary parking in the hotel’s garage. This event is co-sponsored by the Rensselaer County Bar Association, the Capi- tal District Black and Hispanic Bar Association, the Northern District of NY Federal Court Bar Association and the Albany County Bar Association. ______If you’d like to thank the Judge for his service with an ad or message from your firm in the commemorative program, please email your camera ready artwork with size specifications to [email protected] by September 10. Program ad rates are as follows: Full Page b&w $250.00 Half Page b&w (5.5” x 4.25”) $125.00 Quarter Page b&w (2.25” x 2”) $ 60.00

All proceeds will be donated in Judge Treece’s name to the Capital City Rescue Mission, the Lansingburgh Boys and Girls Club and the Troy Boys and Girls Club.

Albany County Bar Association Newsletter | September 2015 | 7 CLARENCE DARROW VIGNETTES

“For the young lawyer, the golden rule “Criminal defense lawyers who be- Lifetime Lessons is to forget about yourself - - this case is come media talking heads can still be not about you. It is about your client and your friend but beware that their loyal- By: Ray Kelly your client’s cause.” ties are now divided.”

“Lost causes are the only ones worth “For the young lawyer, you are the “Be extremely wary of lawyers with di- fighting for.” most dangerous because you don’t vided loyalties.” – Clarence Darrow know that you’re supposed to lose this case.” “Never cultivate a true friendship with Atticus was holding Friday night court prosecutors or judges with whom who in The Chambers at the request of Si- “For the jaded older lawyer, never regularly work. The day will come when enna and Wolff. “What are some of the stop growing.” you have to protect your client or your best lessons you’ve learned over your friendship and it will be time to kiss the years in the legal profession?” Atticus “For the older lawyer, recapture the friendship good bye.” settled in with his Woodford on the rocks spirit and the enthusiasm of your neo- and began to muse. phyte years.” “Clients benefit from your reputation and your integrity. It is never in your “Preparation, preparation, and more “Judges are only appealable, not de- interest or your client’s interest to lie or preparation help your butterflies to fly in batable.” cheat. Never succumb to a win-at-all- formation.” cost mentality.” “Of your 25 greatest victories, 21 will “Understanding clients is the ultimate be deals. Deals count for your clients “Keep fit - - in both mind and body.” form of preparation.” and carry much less risk than verdicts.” “Lawyers of the highest ethical stan- “Never fear taking the hardest case.” “When you negotiate a great deal, dards never mention ethics.” keep your damn mouth shut or you’ll “Leave time for you and yours each never negotiate another.” “Public defenders have no right to day - - try not take the case home.” look down on the private bar. The pri- “If the media finds out you stole a vate bar has no right to look down on “Your heartiest laughs will be at your great deal, be sure to protect the pros- public defenders. Both do. Our clients own screw-ups.” ecutor.” lose. We all lose.”

“You can’t hit a homer if you don’t step “Never ever take a case for the “Lawyers who never try cases are the to the plate.” publicity. When media coverage be- first to say ‘I’d take that to trial’.” comes a form of your retainer fee, you “Some adversaries are despicable - - will make tactical decisions to ensure “Joint defense agreements are prob- never let that interfere with your tactics that your name gets publicized. When lematic. Clients’ rights and the attor- or your ethics.” your name is in the media eye, so too ney-client privilege are endangered. is your client’s name. The great major- Beware joining.” “Beware joint defense agreements ity of clients do not want their name in because one client will be screwed - - if the public eye.” “Unethical prosecutors who change after two weeks you can’t figure out who hats become unethical defense law- it is, it’s your client.” “Your integrity will win you more cases yers. We called them on it before. Con- and more motions than case law.” tinue to do so.” “Beware of making decisions when money is tight - - your judgment will be “Beware seeking media coverage - - “On ethics - - true professionalism is clouded.” at best, it is a break-even deal. You will adherence to the unenforceable.” get burnt much more often than you will “Lawyers who produce profession- benefit.” “Be sure to praise honesty in your op- al results day after day are silently ponent as you are to scorn dishonesty.” admired more than those who create “If you must face the media, learn dazzling media events every now and how to speak media. Rehearse your “Accepting new challenges keeps the then.” sound-bite and give them no room to spirit alive.” leave your message on the editing “Defeat is the greatest teacher.” room floor.” Continued on page 9 8 | Albany County Bar Association Newsletter | September 2015 PRO BONO CORNER II

A word from our former volunteer in- more than willing to answer any ques- me to put that level of effort in becoming tern – Alan Ayers* tions I may have had. They were so ap- a lawyer. The knowledge I’ve gained from proachable and eager to help, they even their mentorship, and the experiences My time volunteering for the Albany helped me with preparing for the LSAT! I’ve had from helping those in need were County Bar Association has been one invaluable to my professional and per- of the most enriching experiences of my Every day I went into the office, I was sonal growth, and I will always be thankful life. I approached Eileen and the ACBA working on something new and excit- for the opportunity and help The Albany last December, after hearing the difficult ing. The pro bono department handles County Bar Association gave me. path faced by many aspiring future law- a variety of cases spanning different yers. I am sure I do not need to tell any practice areas. One day, I may be at our *Alan is now working at a law firm of you that law school is an enormous in- help desk with Jessica in Albany Coun- in Saratoga Springs and planning on vestment of both time and money. Being ty Family Court, the next I may be with attending law school in the future. raised a realist, I wanted to ensure before Lianne at the Albany Town Court for the I committed to pursuing my passion for Attorney for a Day Program, or I may the law that the practice of it inspired me even be out to lunch with Eileen and as much as learning about it had in col- an impoverished woman. No two days lege. Volunteering at the Albany County were alike, but every day I worked in the Bar Association allowed me to see the ACBA was an enriching one. We want to practice of law firsthand, while helping the community I live in. It is because of my time working with the Albany County Bar Association that Hear from From the very moment I started help- I know with the utmost confidence that I ing in the pro bono department, Eileen, want to pursue a career as a lawyer. It was Lianne, and Jessica involved me as truly moving to see a group who really be- much as they could; giving me every op- lieves in what they were doing and help You! portunity to learn as much as possible. their clients in every capacity they were They were happy to bring me in on any able. To see such pride taken in every as- cases they were working on, and were pect of practicing law is what has inspired

What topics would you like to see CLARENCE DARROW “Never give in to the itch to impress discussed in the ACBA Newsletter? (continued) - - the jurors may scratch your view of brilliance.” Your thoughts are Continued from page 8 “Courtesy is never a sign of weak- important to us! “Humility is a trial lawyer’s strongest ness.” asset.” Contact us at “Take time to help other defense law- [email protected] “Wear no $6,000 watches or Brooks yers with their problems. The sharing Brothers’ suits.” of knowledge is what distinguishes the criminal defense bar.” “Lawyers with three mouths and no ears can never cross-examine.” “The best CLE is a listserve in which all members share knowledge.” “Courtroom Rambos are never suc- cessful.” “Never forget - - Justice is a Process, Not a Result!” “Beware the persuasion paradox - - the more forcefully you argue, the less Sienna and Wolff bought Atticus an- force the argument.” other Woodford but before they could toast him, Atticus concluded, “Never “On cross, always act like you are win- have a drink before 5:00 p.m.” ● ning.”

Albany County Bar Association Newsletter | September 2015 | 9 CONTINUING LEGAL EDUCATION CALENDAR

REPRESENTING INVESTORS IN SECURITIES HANDLING TRAFFIC TICKETS FOR ATTORNEYS BROKERAGE ARBITRATION PROCEEDINGS WHO DON’T NORMALLY HANDLE TRAFFIC An in-depth study with practical takeaways for attorneys who would like to TICKETS improve their knowledge about arbitration proceedings. A quick half an hour tutorial for those attorneys who Sept 22 12:00 to 2:00 PM wish to get some tips on how to handle traffic ticket 112 State Street, 9th Floor matters. Delicious lunch buffet from The Healthy Café included with paid registration. October 6 8:30 to 9:00 AM 2.0 CLE credit hours Professional Practice Bowitch & Coffey, 17 Elk Street Transitional: Appropriate for both newly admitted and experienced attorneys. Bagels and coffee will be provided. Speaker: .50 CLE credit hour Professional Practice Timothy J. O’Connor, Esq Transitional: Appropriate for both newly admitted and experienced Law Offices of Timothy J. O’Connor attorneys. Cost: $50.00 Members | $75.00 Non-Members Speaker: Alan Bazzari, Esq. THE CONNECTION BETWEEN DOMESTIC Cost: $20.00 members | $35.00 Non-Members VIOLENCE & ANIMAL CRUELTY The Connection Between Domestic Violence and Animal Cruelty will ad- LANDLORD/TENANT TRAINING dress how to recognize the continuum of criminal conduct against animals This is a FREE training for attorneys who are admitted to practice in New and people, and will identify the appropriate organizational resources. York State and who are willing to represent tenants at their first court ap- Who should attend: This program will be geared to attorneys, both pearance in Albany City Court. from a defense and a prosecutorial perspective, but will also be broadly Topics: designed to be useful to law students, law enforcement personnel, and A View from the Bench those in the domestic violence and animal abuse communities. Types of Leases/Tenancies September 30 2:00 to 5:00 PM Summary Proceedings Defenses and Mortgage Foreclosures NYSBA Great Hall Resources Light refreshments will be served. October 7 4:00 to 7:00 PM 2.0 CLE credit hours Professional Practice NYSBA Great Hall 1.0 CLE credit hour Ethics Light Refreshments will be served Transitional: Appropriate for both newly admitted and experienced attorneys. 2.5 CLE credit hours Professional Practice 1.0 CLE credit hour Skills Speakers include: Jed Painter, Deputy Counsel to the Nassau District Attorney MINDFULNESS AND MEDITATION FOR LAW- Stacy Wolf, Esq., Senior Vice President, Anti-Cruelty Group, American YERS: ENHANCING YOUR PRACTICE. IMPROV- Society for the Prevention of Cruelty to Animals ING YOUR LIFE Gwen Wright, Executive Director of NYS Office for the Prevention of A one hour overview with of how mindfulness and meditation can help Domestic Violence attorneys focus, relax, and deal with the stress of their practice. Attendees Additional panelists include: will be asked to join in a guided meditation. Christine Mott, Esq., Member and Past Chair, Animal Law Committee of November 4 8:30 to 9:30 AM the NYC Bar Association; Member, NYS Council of the Humane Society th of the US 112 State Street, 9 Floor Libby Post, Executive Director of NYS Animal Protection Federation Light refreshments will be served. Brad Shear, Executive Director of the Mohawk Hudson Humane Society CLE credit hour Ethics Seminar will be moderated by the Honorable Rachel Kretser, Chair of Transitional: Appropriate for both newly admitted and experienced attorneys. the Third Judicial District Gender Fairness Committee. Speakers: Cost: FREE to all registrants Ann Lapinski, Esq., NYS Department of Environmental Conservation and a “Let Your Yoga Dance” Instructor Presented by Third Judicial District Gender Fairness Committee, in coordination with the Capital District Women’s Bar Association, The Legal Sam Trumbore, student of Buddhist mindfulness meditation since 1985 Project, Mohawk Hudson Humane Society, NYS Office for the Prevention and minister of the First Unitarian Universalist Society of Albany of Domestic Violence, NYS Animal Protection Federation, Albany Law Cost: $20.00 Member | $40.00 Non-Member School, Albany County Bar Association, the Mayor’s Alliance for NYC’s Animals, Empire Justice Center, and New York State Bar Association.

10 | Albany County Bar Association Newsletter | September 2015 PRES. MESS. (continued) Continued from page 1 Stacey Whiteley, has accepted a posi- our Pro Bono Department, upgraded and we are committed to ensuring the tion at Albany County Family Court as our technology, streamlined our Law- ACBA continues to provide quality ser- Deputy Chief Clerk. While Stacey has yer Referral Service, and enhanced our vices and pro bono representation. We only been with us a few years, she has communications….all with the goal of hope to have a new Executive Director in made her imprint on our Association. improving member interaction with the place as soon as possible. In the mean- People always think of the Executive ACBA. On behalf of the Board of Direc- time, the Board of Directors will have Director as the person in the office that tors and our members, I want to wish more involvement and we know Graham gets to plan fun parties, oversee CLE Stacey the best of luck in her new po- Molho, Bryant Chang, Eileen Guinan, programs, and chit chat with our mem- sition and look forward to working with Lianne Pinchuk, and Jessica Brand will bers but the reality is the position is so you in your new capacity. keep the ship upright. If you have any much more than that and requires lots of concerns, or need assistance, please events at night and on weekends. Un- The Board of Directors has started the do not hesitate to reach out to any mem- der Stacey’s leadership, we have grown process to hire a new Executive Director ber of the Executive Committee. ●

ATTORNEYS IN THE PUBLIC SERVICE COMMITTEE Creating Your Brand…To Follow, To Friend, To Link and Beyond By Lisa R. Harris, Esq. is a challenge for young lawyers to find of your relevant professional interests, Right off the bat a big caveat, I do not the right firm, the right government job, charitable work and activities. Update it currently friend or follow, snap or chat the right corporation or the just the right regularly and use it to share decisions or and most things in my life are not ins- fit. Even for seasoned lawyers looking to practice advice. Engaged in a communi- ta-anything. However, I recently spoke at transition to a new area of law, practice ty service or charitable effort that moved a conference where I heard an amazing in another state or seek advancement in you, then boast about it and invite others speaker who may have reframed my so- their current field, networking is often a to join next time. cial media bias. She may have given me last minute thought not a well sowed field a reason to reconsider the value of so- from which we reap when ready. Howev- On many occasions I have used Linke- cial media to advance our legal careers, er, time is limited, mentoring takes time dIn (which I do have) to seek out thought help us stay connected to legal issues and so does networking. Enter social leaders or legal specialist in certain ar- and encourage non-ACBA members media. eas of law or policy. I connect in to con- to become members. Now, to be clear duct research, obtain opinions or be di- this is not passive social media 101, this Social media as a brand builder could rected to helpful resources. Social media is targeted communication with those encourage attorneys in public service can lead to meaningful in person “con- you know with the intention of capturing to participate electronically and garner nections” which open the communica- those you don’t. from the experience not only profession- tion pathways that may help us network, al value and resume building but also a improve in our area of practice, advance Paula T. Edgar. Esq. is a public speak- connection to the greater legal commu- in our current position or move on. So, if er and career strategist (I am under- nity. So, how do we do this? Use social you are so inclined to use social media whelming her resume, but you get the media to start discussions, share infor- geared toward professionals think about idea) who focuses on networking and mation about your specialty, pen articles using every inch of it to help you save branding. She likened creating social for the ACBA Newsletter or retweet sig- time, share your brilliant ideas and reach media accounts to creating your per- nificant decisions related to your area of out to the legal community. I don’t think I sonal brand. I liked it! She spoke about practice and do so on a regular basis. If will ever be as attached to technology as how who you link, friend or connect with you have one, consider creating a more some but, if the United States Supreme reflects on your brand as well as what robust LinkedIn page that reflects all Court can Tweet, maybe I can follow. ● you post, blog or share. I spoke about resumes and cover letters and how you have to water and bring light to your re- Co-Chair, Co-Chair, Lisa R. Harris Esq. Daniel J. Hurteau, Esq. sume on a regular basis to ensure that Senior Counsel to the Senate Nixon Peabody, LLP, it does not grow stale or you forget that Majority Republican [email protected] what you have been doing for so long Conference, was once a new and is now a highly valu- [email protected] able skill. The same goes for professional social media maintenance. Sometimes it

Albany County Bar Association Newsletter | September 2015 | 11 SCOTUSCARE? THE SUPREME COURT TO THE RESCUE OF THE AFFORDABLE CARE ACT---AGAIN

nationwide level, Federal exchanges “Loose judicial reading makes for loose W. Dennis Duggan, A.J.S.C. legislative writing. It encourages the were needed as backstops where & F.C. J. Ret. practice illustrated in a recent cartoon States did not establish their own ex- in which a senator tells his colleagues. changes. Thirty-four States opted out “I admit this new bill is too complicated of Obamacare. This was a big problem if the insurance plans purchased to understand. We’ll just have to pass it on a Federal exchange did not qual- to find out what it means.” ify for subsidies. Why didn’t the law that what is---isn’t, was a stretch too Felix Frankfurter, specifically say that plans purchased clever by half. “Here the statuto- on Federal exchange qualified for ry scheme compels us to reject the “Some Reflections on the Reading of subsidies? This important question petitioners’ interpretation because it Statutes.” 47 Col. L.R. 545 (1947) was at the heart of the case but was would destabilize the individual in- largely ignored by both the majority surance market in any State with a Q. When does “is” mean “isn’t”? and minority opinions---because the Federal Exchange and likely create A. When the court needs to save answer does not fit into a proper legal the very ‘death spirals’ that Congress the biggest piece of social legisla- analysis of the problem. designed the act to avoid. There tion passed in the last 50 years. So, you have it. All of the majority’s jig- the clause established by a State To uphold the law, the majority had gery-pokery (as Scalia says) has also means established by the Fed- to show that clearly expressed lan- nothing to do with interpreting the law eral Government, says the Supreme guage was ambiguous. “We must or great Constitutional principles and Court, thus saving Obamacare from determine whether a Federal Ex- all to do with avoiding a perceived the dust bin of history. change is ‘established by the State’ catastrophe in the health insurance for purposes of 36B.” This presented marketplace. To qualify for the Obamacare in- a considerable challenge since Fed- surance subsidy you must purchase eral Exchanges are established by The proof of the pudding is in the your insurance through an “ex- the Secretary of Health and Human eating and Congress would be eat- change.” There are Federal exchang- Services, who is clearly not a State. ing a lot of crow pudding if the ma- es and State exchanges. The prob- Ambiguity is, of course, in the eye of jority had not bailed them out of a lem in King v. Burwell was that the the beholder and there must be some drafting mess of their own creation. law clearly said you got the subsidy somewhere in a 900 page law---or So how did these perplexing four only if you purchased your insurance maybe not. words, “established by a State,” be- through “an exchange established come law? It was not something as by a State.” The Government con- I must admit that I did not get the simple as a drafting error or a typo. tended that plans purchased through few ambiguities that the majority No doubt that Congress intended for a Federal exchange also qualified for could conjure up. For example, they plans purchased through the Federal subsidies. But do they? “You would found ambiguity in the requirement Exchanges would qualify for subsi- think the answer would be obvious— that the Federal exchanges must dies. The amicus brief of members so obvious there would hardly be a provide information about tax credits of Congress and State legislatures need for the Supreme Court to hear a and a calculator for computing those affirm that there was no intent to re- case about it,” said Scalia in dissent. credits. Each exchange must also strict subsidies to plans offered only report to the Treasury Secretary the by State exchanges. Interviews with When an issue gets to the Supreme credits allowed under the plans they important legislative aides intimately Court, nothing is obvious. Finding provide. All these would be super- involved in the process support the sufficient ambiguity in the law, the six fluous, says the majority, if the subsi- conclusion that State and Federal Ex- member majority says that “an ex- dies were not available for plans pur- changes were to operate on an equal change established by a State also chased through a Federal Exchange. basis. “Congress, in my experience, includes an exchange established by O.K., but I don’t see how legislative always intended for the federal ex- the Federal government,” despite the obtuseness in one area clouds the changes to deliver subsidies,” said law saying nothing of the sort. meaning of a clearly stated provision Christopher E. Condeluci, Republi- in another. can counsel to the Senate Finance Well established Constitutional law Committee. According to Charles says that the Federal government I you like Obamacare (which I do), M. Clapton, counsel for Senator Mi- cannot make a State enforce Federal then the majority’s heart was in the law. To make Obamacare work on a right place. But their efforts to prove Continued on page 14

12 | Albany County Bar Association Newsletter | September 2015 Albany County Bar Association Family Law Helpline (518) 445-7691

The Albany County Bar Association Pro Bono Department has established a Family Law Helpline to answer questions and provide brief advice to any Albany County resident who is financially challenged and unrepresented by an attorney. Advice will be given in the following matters:

Custody Paternity Visitation Kinship foster care Child support Procedures for filing petitions Spousal support What to expect in court

The Albany County Bar Association also assists with pro se divorces once custody and support are resolved in Family Court.

To speak with us, please call (518) 445-7691 and ask for the Helpline.

If you have an attorney, you should always seek advice from your own counsel.

This program is possible under the auspices of the IOLA Fund of the State of New York, Albany County Bar Association, Albany County Bar Foundation, and the NYS Office of Court Administration.

We are here to help provide equal access to justice for all. (518) 445-7691

Albany County Bar Association Newsletter | September 2015 | 13 SCOTUSCARE (continued) Continued from page 12

chael B. Enzi (R-Wyoming) the idea There was no chance that a “tech- The majority and minority opinions of denying subsidies to people who nical corrections act” would pass--- in this case are unconvincing be- bought insurance through the federal that’s why. With the election of Scott cause they both disguise different exchanges ‘was never discussed.” Brown in Massachusetts to fill Ted charades. The majority dressed up Senator Olympia J. Snowe (R-ME), Kennedy’s seat, the Democrats in a legal opinion to make it sound like who helped write the bill as a mem- the Senate were about to lose their they were interpreting a law. In re- ber of the Finance Committee, said, filibuster proof majority. As it was, ality, their goal was to save a very “I don’t ever recall any distinction be- the Affordable Care Act made it over important piece of social legislation. tween federal and state exchanges the finish line only because it was Similarly, the dissent was willing to in terms of the availability of subsi- passed under a process known as disregard Congress’ clear intent dies.” Indeed, there appears to be “Reconciliation.” This is a convolut- and allow a national health care bill no member of Congress on record as ed procedure which is meant to ap- to perish because of sloppy work by contending that the law’s intent was ply to budget bills but has been more Congressional staff---all based on as literally written. frequently used in recent years to a literally correct but fundamentally end run the 60 vote cloture rule in the dishonest reading of the whole law. So why not just tell Congress that Senate. However, the reconciliation A pox on both their houses I say. But they screwed up and to fix their own process was sloppy. Fortunately for not to worry--- under Obamacare, it’s damn problem. Because the political Obama, six justices of the Supreme covered. ● stakes were too high. Both the law Court, were willing to bail out his leg- and the Court’s legacy were at stake. acy legislation.

PRACTICING HEALTH AND WELLNESS LONGEVITY (definition: LONG LIFE, THE FACT OF LIVING FOR MANY YEARS)

A recent Swedish study found that of exercise to move someone from an day, not necessarily doing exercise, people older than 75 who were physi- inactive state to one that provides real just reducing sitting time. Examples: cally active and joined in regular social benefits. A regular walking program Walk away from your desk for a few activities lived an average of 5.4 years will do. The goal is 150 minutes of minutes every half hour. Stand up more than their less active and less moderately intense exercise a week. or do some exercise while you are social peers. Even at age 85, being That is a mere 2.5 hours or 21.4 min- watching TV. Park your car further active and social increased longevity utes a day. Amazingly, only 10% of from your office so you have to walk by 4 years. Wow. Other factors that adults meet that guideline in the US. further before you get to your desk. influenced longevity were being nor- It is best not to “concentrate” your ex- Stand when speaking on the phone. mal weight, not smoking and alcohol ercise by doing an hour one day and If you are meeting with only 1 other (those who drank alcohol lived 1.3 skipping the next three. person, take a walk instead of sitting years longer than those who did not.) in a room. Allow/Encourage attend- In a separate but related study, re- ees at a meeting to stand. It helps not only to be social, but also searchers at a Toronto Institute did a to engage in an activity of significance comprehensive review of the studies If you want to live and long and like volunteering for a cause that is that focused on sedentary behavior. healthy life: Get off your butt! ● meaningful to you. If retirement is not Their review indicates that the more too far down the horizon for you, it is time you sit in a day, the greater the time to start thinking about volunteer risk of heart disease, diabetes, can- Ann Lapinski NYS Dept. of opportunities now to give yourself a cer and death. The negative effects Environmental chance to find something you like and are true both for those who exercise Conservation will continue doing. and those who don’t but the impact is [email protected] worse for those who don’t exercise. The good news about exercise is The researchers suggest reducing that it does not take a huge amount sitting time by 2-3 hours in a 12 hour

14 | Albany County Bar Association Newsletter | September 2015 TORTS AND CIVIL PROCEDURE Torts and Civil Practice

Labor Law § 240 (1) of Claims’ grant of partial summary snow fell from. Defendant started a judgement to plaintiff. On the day of third-party action against the roofing Salzer et al. v Benderson Development the incident, plaintiff was employed subcontractor predicated on such Co., LLC, et al. (McCarthy, J.P., 520253 by a roofing company to collect roof third-party defendant’s negligence. [7/9/15]) tiles removed by co-workers further Third-party defendant then moved up on the roof. Plaintiff would either for summary judgment dismissing Plaintiff was denied partial sum- stack the tiles or place them in a the third-party complaint, which was mary judgment and Supreme Court bucket on scaffolding located below granted by Supreme Court. In re- dismissed his Labor Law § 240 (1) the roof ledge he was standing on. versing, the Third Department found claim following injuries he sustained While performing this work, Scribner third-party defendant failed to meet after falling off a roof while directing became tangled up in the tiles and its initial burden of establishing it in- a crane where to place a heating and fell off the roof and down onto the stalled the snow guards of the roof air conditioning unit on the roof. On scaffolding located some 2 to 5 feet as specified in defendant’s plans. In appeal by plaintiff, the Third Depart- below the roof ledge, causing him support of its motion, the third-party ment reversed Supreme Court and injuries. The Court found plaintiff’s defendant relied upon the testimony found plaintiff was entitled to partial fall was the type of elevation-relat- and affirmation of its former presi- summary judgment on his Labor Law ed hazard to which Labor Law § 240 dent, Mr. Stout, who testified he was § 240 (1) claim. The record indicated (1) applies. Plaintiff’s expert opined responsible for the roofing project at that plaintiff’s work required him to be that plaintiff was not provided a suf- issue, that he had visually examined on the roof and his choice to use hand ficient safety device to prevent his the roof installation after it was com- signals, rather than a cell phone, to fall from the ledge to the scaffold pleted, and that third-party defen- direct the crane was a usual method decking below the roof ledge. De- dant had installed the snow guards of doing this work. Third-party defendant argued plaintiff was provid- according to defendant’s plans. In fendant argued they provided plained sufficient protection from falls by particular, the plans called for a tiff appropriate safety devices but provision of the scaffolding that was number 10 snow guard and defen- the Court noted a permanent parapet located some 2-5 feet below the roof dant alleged third-party defendant wall surrounding the edge of the roof edge (the same scaffolding that he installed a number 30 snow guard. does not normally “constitute a func- fell onto causing his injuries), that a Notably, at Mr. Stout’s deposition, tional equivalent of a scaffold or oth- permanent ledge and certain pillars he was shown and confronted with a er safety device within the meaning served as a railing to protect plain- number 30 snow guard and admitted of the statute” and plaintiff was also tiff, and other barriers would have he could not identify whether or not not provided sufficient length of rope reduced plaintiff’s work space. De- it was the model of snow guard that to securely tie off an available safety spite the similarity of this case to the third-party defendant had installed harness. The Court found that “in- Salzer case, the Court came down on the roof. Given this proof under- asmuch as plaintiff fell because his differently and found triable issues of mining Mr. Stout’s statement that the work required him to work at a height, fact based upon the expert’s conflict- plans were followed, and third-party and ‘there is no view of the evidence ing opinions. defendant’s failure to provide other to dispute or contradict a finding that evidence supporting its contention it the absence of safety equipment was Good Use of Physical Evidence at installed a number 10 snow guard as a proximate cause of the plaintiff’s Deposition specified in the plans, the motion for injuries,’” plaintiff should have been summary judgment dismissing the granted partial summary judgment. Cusson v The Hillier Group, Inc. claims against third-party defendant and Charles F. Evans Co., Inc., (Mc- Scribner v State of New York, (Pe- Carthy, J.P., 519170 [7/30/15]) Continued on page 16 ters, P.J., 519921 [7/9/15]) (disclaim- er – plaintiff is represented by Powers This litigation stems from injuries & Santola, LLP) received by plaintiff when ice and Laura M. Jordan Powers & Santola, LLP snow fell from the roof of a building. [email protected] In another Labor Law decision that Plaintiff brought a professional mal- came down on July 9, the Third De- practice action against defendant, partment found triable issues of fact the architecture firm, alleging negli- requiring a trial of the plaintiff’s Labor gent design, planning and construc- Law § 240 (1) claim, reversing Court tion of the building where the ice and

Albany County Bar Association Newsletter | September 2015 | 15 TORTS AND CIVIL PRACTICE (continued) Continued from page 15 should have been denied. fensive conduct of Dr. Alvarez came was unusual, conducted in a groping from a seizure, Dr. Alvarez failed to manner, and appeared to be deliber- Assault and Battery Alleged Against take his anti-seizure medication, ate behavior. The Court noted that Physician which was previously prescribed by “while lay witnesses cannot properly Mayr v Alvarez, et al., (Devine, J., a physician who had indicated to give an opinion as to the mental ca- 519730 [7/9/15]) Dr. Alvarez that he likely had a sei- pacity of an individual, they are free zure disorder. The Court also found to state the impressions which the plaintiffs proof set forth sufficient tri- acts and declarations of the individ- Plaintiff was a patient of defendant able questions of fact at to whether ual produced upon their minds at the Family Practice of Kingston and pre- Dr. Alvarez committed an assault and time, and as to whether they were ra- sented to its office in July 2008 with battery. Both plaintiff and her daugh- tional or irrational.” ● complaints of chest pain. Plain- ter testified Dr. Alvarez’s examination tiff was accompanied by her adult daughter at this visit, including in the examination room. After being placed in the examining room, plaintiff was examined by defendant, Dr. Alvarez, who listened to plaintiff’s heart with a stethoscope by placing his entire hand underneath her shirt on her left breast. While he was lis- tening to her heart, Dr. Alvarez began ALBANY COUNTY BAR to blink his eyes rapidly, made moan- ing sounds that both plaintiff and her ASSOCIATION’S daughter believed to be sexual, and rubbed his genitalia back and forth Lawyer Referral against the table. When plaintiff first attempted to escape, Dr. Alvarez continued to hold his hand against Service plaintiff’s breast, shoving her down on the table. Plaintiff and her daughter fled the examining room as soon With over 150 LRS calls a week, the ACBA can help you find more clients as they could. After this incident, for your practice. plaintiff commenced this action alleging Dr. Alvarez had committed as- • Clients receive personalized attention to help them find the right sault and battery and that the Family attorney. Practice of Kingston had negligently • Attorneys receive referrals specific to their field of practice. hired and supervised him. Defen- • The service is staffed Monday through Friday 9:30 AM to 1:30 PM dants’ moved for summary judgment dismissing the complaint arguing, Interested in expanding your client base? among other things, that Dr. Alvarez’s Call the office, 445-7691, and sign up for the ACBA LRS! actions were caused by a subse- quently diagnosed seizure disorder. For only $75.00 annually to be listed on two panels, the ACBA LRS is a proven and affordable way to grow your practice. Supreme Court granted defendant’s motions and plaintiff appealed as to the claims against Dr. Alvarez. In reversing Supreme Court’s grant of summary judgment dismissing the claims against Dr. Alvarez, the Third Department found questions of fact as to “whether Alvarez failed to ‘exercise caution to compensate for any increased hazard occasioned by his known disabilities’ in conducting his examination of plaintiff.” Notably, the proof established that even if the of-

16 | Albany County Bar Association Newsletter | September 2015 ATTORNEY MARKETING AND BUSINESS The Lost Art of Lawyer-to-Lawyer Referral Based Marketing You want the big cases through We should all be focusing no getting Building Equity with Your Referral glamorous, self-promoting ads that more lawyer referrals, right? Okay, Partners make you look like a superstar. You then then why do you have no system Once you’ve done a preliminary justify the huge outlay of cash with the for getting more lawyer referrals? You review of the case, send an email to occasional big case that strikes gold. just hope that lawyers will think of you your new referral partner with your And you think life is good, you’re mak- and you thank your lucky stars for any evaluation. I do this ONE THING ev- ing some cash and paying the bills. referrals. But you’re just relying on ery day to keep our referral partners blind luck for lawyer referrals and this informed. Perhaps you explain that If you’re happy, stop reading and is really no system at all. you’ve reviewed the medical records, toss this out. But for some, the discussed the case with an expert self-promotion of some lawyers is too Your Online “Co-Counsel Program” and the next step in the process of much. You want a more dignified ap- Begin by adding a unique landing evaluating the case. proach to building your law practice page of your website for lawyer re- and you don’t have the megabucks to ferrals (“Our Co-Counsel Program”). I know what you’re thinking, you’re compete with big guns of lawyer mar- Check out the “Co-Counsel Program” busy and you don’t have time for up- keting. And let’s face it, if you do what on the website of Shapiro, Appleton & dates to your referral partners. But every other lawyer is doing, you’ll be Duffan, P.C., a Virginia Beach PI firm. you don’t have to conquer the world— like them: fighting for the crappy cas- The Shapiro firm lays out their “4 step just focus on just a single case update es. process when working with co-coun- once a day. Your referral partners will sel referrals” and includes testimoni- love you for this and even if you don’t Lawyer Referrals are Marketing als from their referral partners. The accept their referral, you’re building Gold Co-Counsel Program shows you’re equity with them that virtually guaran- Where do you get your best and serious about protecting the rights of tees that you’ll get their next referral. most profitable cases? Are your best your referral partners. This ONE THING will instantly set you cases from your website or TV and ra- apart from 99% of lawyers who ignore dio ads? NO! You get your best cas- But don’t stop there. When new cas- their referral partners. es from lawyer referrals. That’s right, es are referred, send an email to your lawyers who have prescreened the referral partner explaining the process How to Get New Referral Partners case for merit, obtained the medical for reviewing the case and protecting Here’s a radical concept: don’t records for you and told the new client their rights to a referral fee. Perhaps spend another penny on traditional that you are perfect for their case. you send an email with a guide for forms of lawyer marketing (i.e., yel- your new referral partners, How to low pages, TV and radio) and focus You know that you wouldn’t exist Protect Your Rights to a Referral Fee, 100% of your marketing budget on without lawyer referrals. A single rela- that shows them how to protect their lawyer-to-lawyer referral-based mar- tionship with an influential, prominent rights to a referral fee and negotiate keting. Sound crazy? But if your re- lawyer can send referral after referral the best fee division. turn on investment on referral-based to you for the rest of your career and marketing blows away traditional mar- you’re not paying a penny for TV or Once you’ve got the ball rolling, fol- keting, shouldn’t you at least give this billboard ads. You get good liability low up with your referral partner with some thought? cases, spend no money on marketing periodic updates. Every case has and get high quality clients who think important milestones, i.e., filing of You begin by giving 100% value to you’re a rock star. There’s almost no the lawsuit, etc., and you should au- your referral partners. Hold seminars way you can screw this up! tomate the process for sending case and workshops for your ideal referral updates through a Customer Relation- partners that help them grow their law John H. Fisher Esq. ship Management software program (I practices or prepare for trial. Face-to- John H. Fisher, P.C. [email protected] love Infusionsoft!). Your referral part- face marketing is, and always will be, ners will never complain that you are the best form of marketing and with giving too much information. speaking events, you are an instant celebrity.

Continued on page 18 Albany County Bar Association Newsletter | September 2015 | 17 REFERRAL BASED MARKETING (continued) Continued from page 17

Give value that no one else is. You have 2 hours to write a newsletter, the or PersonalInjury.com, and watch your might offer seminars about internet growth of your law practice means lit- tribe grow. Your article’s presence on marketing (all lawyers want a great tle to you (and that’s a damn shame!). a prominent lawyer website will give website) or conduct workshops like the you credibility and add high-ranking Jury Project that shows lawyers how A weekly email newsletter is a great links to your website. to use focus groups for trial prepara- way to share your blog posts and ex- tion. Give tons of value to your referral tra articles that won’t fit on your month- A Brutal Challenge for You partners and ask for nothing in return. ly newsletter. An email newsletter is Does this stuff work? Well, you’ll You should videotape every speaking a great way to build a herd of raving never find out while you’re on the side- event, and Voila! Now you’ve got new fans and nurture your relationship with lines. But I’m willing to bet 98% of you video that you can segment into 8-10 your referral partners. WON’T DO A DAMN THING. My chal- new video clips on your website, so- lenge to you: prove me wrong. And if cial media and YouTube. Party Like it’s 1999 you’ve got some crazy, unconvention- Get crazy with a party for your top real marketing tactics for lawyer-to-law- Instead of telling the world how ferral partners—maybe a Blues Cruise yer marketing, share them with the great you are, help your referral part- on the Hudson River, or a happy hour world (or at least a friend or two)… ners grow their practices with a book at your micro-brewery. Let your hair and watch your bucket fill up with new that contains your best secrets. The down and give your referral partners referrals. ● key: GIVE EVERYTHING AWAY. Don’t some props in a fun, casual setting. hold back any secrets and your referral partners will crave the information. Not enough cash for a party? Drop Albany County Bar Association Your book will be the cornerstone for off some bagels and donuts for your 2015 OFFICERS all of your lawyer-to-lawyer marketing top referral partners with a handwrit- and you will be the beneficiary with a ten note showing your love. Handwrit- Janet M. Silver pipeline of referrals. ten letters cost less than a buck and President add a unique, personal touch. No one No time for a book? Write a defin- is doing any of this stuff and that’s pre- Daniel W. Coffey itive guide that is 8-10 pages con- cisely why it works. President – Elect taining your top marketing and management advice for lawyers. Better Become a Rock Star with Lawyers James E. Hacker yet, create a website for your referral Join the bar associations within 60 Vice President partners (i.e., UltimateInjuryLaw.com) miles and write articles for their news- Christina L. Ryba that contains your best management letters. Bar Associations are always Treasurer and marketing tips or create a Linke- looking for new articles for their news- dIn group (i.e., Building a Better Injury letters and if you’re halfway decent, Daniel J. Hurteau Practice) and become the moderator you just expanded your reach to hun- Secretary of your tribe of fans. dreds (if not thousands) of prospective referral partners every single month… Hon. Peter G. Crummey Nurturing your Relationship with and it won’t cost you a penny. Now, Immediate Past-President Referral Partners you’ve got an audience of thousands BOARD OF DIRECTORS It’s not enough to make a good first of prospective referral partners. Elizabeth J. Grogan impression—you have to cultivate and Michael P. McDermott nurture every new referral partner. A Tell the Executive Director of a Matthew P. Barry monthly, hard copy newsletter that pro- county bar association that you have Douglas R. Kemp vides your referral partners with mar- a special seminar/workshop that Ryan T. Donovan keting and management tips is the #1 you’re offering for free to their mem- weapon in your referral-based toolshed. bers. Most bar associations will jump William T. Little, Jr. on your offer and here’s the beauty of Committee on Admission A monthly newsletter will keep you this—the bar association will promote Lisa Harris front and center with your referral part- your event for its members. Now, your ners, and they will post your newslet- event/workshop has the endorsement ter on bulletin boards and share them of the bar association and they will with their buddies. With a fulfillment promote the hell out of your event. provider and graphic designer, a monthly newsletter will only take 2 Write articles for prominent lawyer hours of your time. And if you don’t websites, such as Lawmarketing.com

In August, the Third Department (“Smith”), also referred to the group trauma that included suicidal ideations handed down Matter of Rensselaer of men by that phrase. According to and required medication. Seabury’s County Sheriff’s Department v. New Seabury, members of the boys club psychiatrist confirmed these reports York State Division of Human Rights began to level slurs at both Seabury and testified that he had diagnosed (520239), a decision that, among other and another female employee who Seabury with posttraumatic stress dis- things, examines the damages avail- had reported Fenton for sexual harass- order and major depressive disorder. able for claims of hostile work environment, slurs that included rat, bitch, slut The psychiatrist opined that the causes ment under the Human Rights Law. and whore. The men also began mak- of such conditions were Seabury’s fre- ing rat noises while in the presence of quent and recurring thoughts regard- Respondent Lora Abbott Seabury the two female employees. According ing the harassment that she suffered (“Seabury”) filed a complaint with re- to Seabury, one such male employee at the correctional facility. Considering spondent State Division of Human stated, “That f***ing bitch don’t miss Seabury’s testimony and the medical Rights (“SDHR”) in September 2010, a f***ing trick” in reference to Seabury proof elaborating on the severe effects alleging that, while employed by pe- and while in her presence. Seabury ex- that the discrimination had on her, the titioner Rensselaer County Sheriff’s plained that this harassment occurred Court held that the award is reasonably Department (“RCS”) at its correctional on a daily basis and that she always re- related to the wrongdoing, supported facility, she was subjected to, among ported the incidents to Smith. Seabury by substantial evidence and compara- other things, sexual harassment by testified that Smith would tell her, “be ble to awards for similar injuries. male coworkers. Ultimately, an Ad- tough” and “[y]ou need to be strong,” ministrative Law Judge, after holding but failed to reprimand the offending The Appellate Division also agreed a hearing, found that Seabury had employees. Seabury also testified that with Seabury’s argument that the Com- shown that she was sexually harassed Smith communicated that he held dif- missioner should not have offset her by male coworkers and recommended ferent professional expectations for award based on past and future work- that RCS be ordered to pay Seabury the alleged male harassers than for ers’ compensation benefits. Workers’ nearly $450,000 in economic damages Seabury, informing her that “boys will Compensation Law § 29 (1) provides and $300,000 in noneconomic dam- be boys” and “you know how those that, when a benefits recipient pursues ages. SDHR’s Commissioner adjusted boys are.” When Seabury specifical- a legal remedy against a third party with the amount of economic damages to ly reported to Smith that she believed respect to the same injuries for which he approximately $315,000, but otherwise that the fellow female employee who or she is receiving benefits, the relevant adopted the ALJ’s recommendations had also reported Fenton had been as- insurance carrier “shall have a lien on in all pertinent respects. RCS thereaf- signed, by one of the individuals in the the proceeds of any [resulting] recovery ter initiated a proceeding to annul the boys club, to a stressful, undesirable . . . to the extent of the total amount of Commissioner’s final determination. and potentially more dangerous shift compensation awarded.” According to Seabury filed an application seeking as a form of harassment, Smith sug- the Court, Workers’ Compensation Law modification and confirmation of the gested that Seabury go speak to the § 29 (1) grants a lien without any excep- final determination. The consolidated employee who had made the assign- tion for when an award of damages has proceeding was transferred by Su- ment. Seabury clarified that the same already been reduced in recognition of preme Court to the Appellate Division. employee had also been harassing her a workers’ compensation award. An in- and then asked Smith if he still thought terpretation of Workers’ Compensation The Appellate Division made quick she should go speak to him. He re- Law § 29 (1) that allowed a reduction in work of finding the existence of a hos- sponded, “That’s how you approach it” the initial award of damages would not tile work environment. Here, the Court and explained that it was “nice” of that foreclose the plain application of a lien noted that Seabury, after reporting employee to prepare the schedule. to that already reduced award, which coworker Richard Fenton (“Fenton”) would permit the absurd result of punish- for offenses that included sleeping As to damages, the Appellate Di- ing the injured party with a double debit on the job and grabbing her buttocks vision declined to reduce Seabury’s and breasts, began to be increasing- $300,000 award for noneconomic inju- Continued on page 21 ly harassed by male friends of Fenton, ries, noting that an award for noneco- who had been suspended as a result nomic damages will be upheld where Glen P. Doherty, Esq. of the initial reports. Seabury testi- it is reasonably related to the wrongdo- McNamee, Lochner, Titus & Williams, P.C. fied that this group of men, along with ing, supported by substantial evidence Fenton, were known by the name “the and comparable to other awards for boys club” within the correctional fa- similar injuries. Here, Seabury testi- cility. Seabury further testified that one fied that the male coworkers’ harass- of her supervisors, Captain Hal Smith ment led to extensive psychological

20 | Albany County Bar Association Newsletter | September 2015 LABOR AND EMPLOYMENT PRACTICE (continued) Continued from page 20 instead of preventing a double benefit. sion, the Court held that the Commis- category of loss for which damages are Therefore, the Court rejected the notion sioner’s order that petitioner take steps awarded -- by clear and convincing ev- that an award that would be subject to to involve the Office of the State Comp- idence. It is uncontested that Seabury such a lien may be reduced at the outset, troller and the New York State and Lo- has never applied for such benefits. because such a scheme is inconsistent cal Retirement System -- presumably to RCS, in its briefs to the Commissioner with Workers’ Compensation Law § 29 have them provide an actual pension and to the Court – broadly asserts that (1). Accordingly, the Court held that the -- was an abuse of discretion. Because the record establishes that Seabury Commissioner erred as a matter of law it attempted to provide Seabury her ac- would have been entitled to disability by reducing Seabury’s award for past tual anticipated pension, SDHR never retirement benefits or performance of lost wages by $88,200 and her award calculated the monetary award that duty disability benefits. Having failed to for future lost wages by $176,400 on the would compensate Seabury for the loss identify in any meaningful detail which basis of workers’ compensation benefits. of that expected annuity. Given the ab- specific statutory provisions it relies sence of an initial determination in that upon for the proposition that Seabury is In addition, the Appellate Division regard, the Court remitted for the limit- qualified for such benefits, or the further agreed with Seabury that her damages ed purpose of resolving the amount of specific provisions that would establish should have properly reflected consid- damages that will make Seabury whole what amount Seabury would receive eration of the pension that she would to the extent that her pension has been if she were so entitled, the Court held have received absent the harassment, diminished, in whole or in part. that RCS failed to meet its burden of given that any remedy should make the establishing by clear and convincing victim whole for injuries suffered as a Finally, the Appellate Division held evidence that Seabury was obligated to result of discriminatory employment that RCS did not establish that Seabury mitigate damages by obtaining a collat- practices, and that such a remedy in- failed to mitigate damages relating to eral offset. ● cludes the consideration of pension her pension to the extent that she failed rights that are established with reason- to obtain a collateral offset in the form of able certainty. However, because RCS disability. As is relevant here, the Court bears the sole responsibility of making pointed out that RCS bore the burden Seabury whole and could do so by pay- of establishing its entitlement to a col- ment commensurate with any damages lateral offset -- a collateral source pay- attributable to loss or diminution of pen- ment that particularly corresponds to a

Executive Director Albany County Bar Association is a 501(c)(6) representing 1200 attorneys residing or practicing in Albany County, New York.

Qualifications: Admission to practice as an Experience in grant writing and attorney or a Juris Doctor management, public relations, Bachelor’s degree or higher degree is a plus. business practices, membership with 5 years of not-for-profit, recruitment, and working Demonstrated supervisory, legal, or bar association knowledge of technology/ communication, sponsor management experience is website management/social cultivation, event planning, and required. media is desired. interpersonal skills are required. To apply send resume and cover letter by September 11, 2015 to: The ACBA Search Committee c/o Hinman Straub, 121 State Street, Albany, NY, 12207 Email: [email protected] Learn more www.albanycountybar.com

Albany County Bar Association Newsletter | September 2015 | 21 MATRIMONIAL LAW ACBA Matrimonial Update – September 2015

Maintenance Guidelines: As of the of the subject child. The Second De- the law, by deleting the maintenance deadline for this column, A07645/ partment stayed the order pending suspension and reducing the fine to S05678 (see July-August 2015 ACBA appeal, reversed on the law, and re- $2,750. The confidentiality provision newsletter, page 10) had not yet mitted to Supreme Court, for further “prohibited either party from dis- been signed into law. If the signing proceedings “on an expedited basis.” closing to third parties, other than occurs on September 3, the effective Pending a new determination, custo- medical or other professionals who date will be January 1, 2016, for all dy remained with the mother as per were treating or assisting that party provisions except the revised tempo- prior orders. The Appellate Division in their professional capacity, any of rary maintenance guidelines, which found that “Supreme Court failed to the allegations of misconduct by the become law 30 days after signing. For conduct an in camera examination” parties which had been litigated in a comparison between existing and and “relied on a forensic report that, the action.” Plaintiff sent a letter in new provisions, assume the payor’s by the date the court issued its de- January 2012 to defendant’s attor- income is $175,000 and the payee’s termination, was more than 2½ years ney, which was copied to 11 third income is $30,000. Under the exist- old.” The Second Department held: parties, and which mentioned one ing maintenance guidelines, which “Under the circumstances of this of her allegations of defendant’s will still be used where the payor is case, including the protracted hear- misconduct. The Appellate Division not also paying child support, the ing conducted over the course of 44 held that Supreme Court properly presumptive maintenance guidelines nonconsecutive days (see 22 NYCRR found that plaintiff “disobeyed that amount is $46,500 per year. The re- 202.16[l]), the delay thereafter in mandate [the incorporated stipula- vised formula, if the payor is paying issuing the order after the hearing, tion] by sending copies of the letter both maintenance and child support, and ‘the pace of psychological de- to eleven third parties who were not will result in a presumptive mainte- velopment of the child whose best medical or other professionals ***.” nance guidelines amount of $27,500 interest is the primary concern’ (ci- The Second Department found that per year. Note that the new statutes tation omitted), we find that the re- “this is a case in which separate fines require the court to calculate tem- cord before us is no longer sufficient may be imposed for multiple acts of porary and permanent maintenance, for determining the ultimate issues disobedience” and reduced the fine and Family Court spousal support, presented herein.” The Court direct- to the statutory maximum of $250 before child support, because main- ed “a re-opened expedited hearing per third party ($2,750) and upheld tenance “shall be subtracted from solely to receive an updated forensic the award of counsel fees. the payor’s income and added to mental health evaluation conducted the payee’s income as part of the by the same court-appointed expert, Family Offense - Intimate calculation of the child support obli- ***, if *** available (citations omit- Relationship Not Found gation.” Proposed new DRL §§236(B) ted), and an in camera examination In Matter of Cambre v. Kirton, 130 (5-a)(c)(1)(F) and (c)(2)(F), 236(B)(6) of the child, now 10 years old.” AD3d 926 (2d Dept. July 22, 2015), (c)(1)(G) and (c)(2)(F) and proposed respondent Kirton appealed from new FCA §§412(3)(A)(6) and (3)(B) Enforcement - Contempt – a September 2014 Family Court or- (6). Confidentiality Stipulation der of protection which, without a In Weissman v. Weissman, 2015 hearing, granted Cambre’s petition. Custody - Hearing Delayed and Westlaw 4743845 (2d Dept. August On appeal, the Second Department “Stale” Forensic – Reversed 12, 2015), the plaintiff former wife reversed, on the law, and dismissed In E.V. v. R.V., 130 AD3d 920 (2d appealed from a July 2013 Supreme the petition. The Appellate Division Dept. July 22, 2015), the mother Court order, which: granted the de- appealed from a July 2014 Supreme fendant former husband’s motion to Continued on page 23 Court order [44 Misc3d 1210(A), hold her in civil contempt of a May 2014 Westlaw 3557805 (Sup. Ct. 2004 stipulation incorporated into a Bruce J. Wagner McNamee, Lochner, Titus Westchester Co., Colangelo, J., July 2, November 2005 judgment of divorce; & Williams, P.C. 2014)] which, after a hearing, grant- suspended his maintenance obliga- [email protected] ed the father’s cross motion to mod- tion for 8 months; imposed a $7,500 ify prior orders incorporated into a fine upon plaintiff; and awarded him judgment of divorce, and awarded $4,884 in counsel fees. On appeal, him sole legal and physical custody the Second Department modified, on

22 | Albany County Bar Association Newsletter | September 2015 CALENDAR OF EVENTS MATRIMONIAL LAW (continued) Sept. 7 Office Closed-Labor Day Continued from page 22 found that Cambre is the fiancée of Sept. 8 ACBA Board Meeting Mr. K., who is the former boyfriend of Kirton and the father of Kirton’s Sept. 18 Attorneys in Public Service Meeting-677 child. The Second Department noted that Family Court’s jurisdiction Broadway-Nixon Peabody-Noon includes “persons who are not relat- Email: [email protected] to register ed by consanguinity or affinity and who are or have been in an intimate Sept. 22 CLE Representing Investors in Arbitration-112 relationship regardless of whether such persons have lived together at State Street, 9th Floor 12:00- 2:00 any time,” citing Family Court Act §812[1][e]. The Appellate Division Sept. 24 Judge Treece’s Retirement Reception -6:30 found that “Kirton and Cambre have no direct relationship ***, met for Hilton Albany the first time during the course of the court proceedings, and have no Sept. 30 CLE Connection btw DV and Animal Cruelty- ongoing relationship.” The Court NYSBA 2:00 to 5:00 concluded that “there is no ‘intimate relationship’ between the parties within the meaning of Family Court Oct. 6 CLE Handling Traffic Tickets for Attorneys Who Act §812(1)(e).” Don’t Normally Handle Traffic Tickets-Bowitch Procedure - Trial – Questioning by & Coffey 17 Elk St. 8:30-9:00 AM Court In Matter of C.H. v. F.M., 130 AD3d Oct. 7 CLE Landlord Tenant Training-NYSBA 4:00- 1028 (2d Dept. July 29, 2015), the 7:00 mother appealed from a Decem- ber 2013 Family Court order, which Oct. 12 Office Closed-Columbus Day granted the father’s motion, upon the close of her case, to dismiss her modification petition. The Second Oct. 14 ACBA Board Meeting Department affirmed, but stated: “The mother correctly contends that Nov. 4 CLE Attorney Wellness-112 State Street, 9th the Family Court’s questioning of her during her testimony, which includ- Floor 8:30-9:30 AM ed pointed and persistent challenges to her credibility, was inappropriate. Nov. 10 ACBA Board Meeting Under the circumstances of this case, the court’s conduct did not operate Nov. 18 & 19 JD Conference-SUNYA Tech Conference to deprive the mother of a fair trial. However, we take this opportunity to Center-8:30 AM-5:00 PM two days remind the court that it must strictly avoid taking on ‘either the function Dec. 9 ACBA Board Meeting or appearance of an advocate at trial’ (citation omitted).” ● Dec. 7 ACBA Member Annual Memorial Service- County Courthouse-9:30 AM

Dec. 14 ACBA and Legal Aid Society of NNY Holiday Party-Renaissance Albany Hotel-5:30 PM

Albany County Bar Association Newsletter | September 2015 | 23 CLASSIFIED

ASSISTANT COUNTY ATTORNEY - potential to expand. General commer- phases of litigation (pleadings, depo- Provides professional legal work in the cial litigation experience in federal and sitions, discovery and witness prepa- office of the County Attorney; does re- state courts with expertise in repre- ration) and have experience as the lated work as required. These profes- senting clients in the areas of financial primary trial attorney in federal and sional duties involve responsibility for services, corporate, employment, and/ state court proceedings. Experience the performing of various legal work or energy matters, a plus. Candidate representing clients at administrative in the County Attorney’s Office. Re- should have a minimum of 10+ years hearings is beneficial. Opportunity for quired knowledge, skills and abilities: of related commercial litigation experi- professional growth in a major law firm Knowledge of the law as it relates to ence, excellent academic credentials, with a statewide platform and a nation- the county; knowledge of court pro- strong drafting and negotiating skills, al client base. Required qualifications ceedings and the rules of evidence; excellent verbal and written communi- include 10+ years of general litigation ability to present arguments of law cation skills, a stable work history and and trial experience and admission in clearly and logically by written and an entrepreneurial spirit. New York bar New York (or ability to waive in). In- spoken word; ability to get along with licensure in good standing required. terested applicants should email their others; ability to comprehend and car- This firm offers an excellent work en- resume and cover letter to resumes@ ry out complex oral and written direc- vironment and benefits package with harrisbeach.com. tions; skill in preparing and trying cas- a highly competitive compensation es; good judgment; integrity; ethical commensurate with experience and OFFICE SPACE FOR RENT: Up to conduct in the practice of law. Contact book of business. Send applications to 3500 sq feet of space which can be Necole Chambers at 518.447.7110 for [email protected]. subdivided in building to be com- more information. pletely renovated located at 440 New ASSOCIATE ATTORNEY – EDUCA- Karner Road, T/O Colonie. Perfect for EXPERIENCED ASSOCIATE ATTOR- TION/LABOR LAW - Capital regional sole practitioner or firm looking to ex- NEY – Young/Sommer LLC is looking education law firm seeks associate pand. Free parking; great location; for a litigation associate with a mini- with strong research and writing skills. Please email interest to crosenstein@ mum of 4 years of experience. Our 2+ years of experience preferred. La- cbrlaw.net. ideal candidate will have excellent bor & employment law, education law, writing and communication skills and and/or municipal experience a plus. OFFICE SPACE FOR RENT DOWN- a strong background in litigation and Send resume including salary require- TOWN ALBANY – 1 block from Court case management, and have substan- ments to Kathy A. Ahearn, Esq., Guer- House, bright modern office space for tial experience with drafting motion cio & Guercio, LLP, 24 Century Hill rent (1200 sq ft). Ideal for 3 or 4 offic- papers. Experience with environmen- Drive, Suite 101, Latham, NY 12110. es, reception and storage space. 2nd tal litigation is preferred. Send resume Floor, with elevator, central HVAC and with salary requirements by e-mail to SENIOR-LEVEL LITIGATOR - Harris fully wired for internet/computer ac- Nicole Banagan, Firm Administrator, Beach PLLC seeks an attorney with cess. $1500.00 per month gross rent. [email protected]. All civil trial experience. Must be expe- NO CAM or add ons. Tenant fit up submissions will be kept strictly confi- rienced and able to independently open. Call Patty at (518) 449-5400. dential. handle significant matters including all DEFENSE ATTORNEY - Personal In- jury law firm seeks a Senior Trial Attor- NEW MEMBERS ney to handle all aspects of personal injury litigation to manage our growing satellite office. The candidate should be proficient in handling a case load The ACBA welcomes the following from inception through and including new members: trial and have at least 5 to 7 years of Nicholas Buttino experience. Good salary and benefits. Please send resume with salary Jeffrey Cardone requirements to [email protected]. Jacqualine C. Lombardo COMMERCIAL LITIGATION PART- Marshall Broad NER - Seeking a candidate who is look- Mary Elizabeth Slevin ing to explore opportunities for growth for our Albany, NY office. Candidate Mary Kate Leahy should have a solid client base of por- table business of at least $200K with

24 | Albany County Bar Association Newsletter | September 2015 TAX TRAPS

When a job title doesn’t matter 4. the extent of the investment in 8. possible disqualification of tax -ex X&Y law firm has a problem - it needs the facilities or tools to perform empt status of its retirement plans to hire a new lawyer but it is concerned the work about the cost. It’s not just the cost of And if fraudulent, criminal penalties. 5. the extent the worker’s services the salary, employers pay as much as one-third of an employee’s total com- are offered to others Unfortunately for X&Y there’s no pensation in the form of benefits1: 6. the method of payment clear answer – it’s all about the totality of facts and circumstances. What is • Matching Social Security tax 7. who realizes the profit or loss clear, X&Y’s must make every attempt • Matching Medicare tax Relationship Type to fit favorably within the IRS guidelines • Federal unemployment insurance to survive a challenge4. • State unemployment insurance 8. written contracts of the relationship • Worker’s compensation It’s been reported the IRS and the U.S. • Retirement and savings 9. employee-type benefits provided Department of Labor are on the war- • Health and other insurance 10. permanency of the relationship path. In Louisiana, a law firm classified • Supplemental pay its principal, all its associate lawyers, • Paid leave 11. importance of the work performed and a law clerk, as independent con- tractors. It didn’t survive the challenge. X&Y is determined to reduce its cost If misclassified, all of X&Y’s pay- The firm was assessed $158,356 for tax by hiring the new lawyer – not as an ments to the new lawyer will be treated and penalties for a 2-year period.5 It is employee – but as an “of counsel” in- as wages, potentially resulting in liabil- a good example of what not to do. ● dependent contractor. ities (among others) for: 1 March 2015 Bureau of Labor Statistics, U.S. Depart- Will it work? 1. 25% of the wage for underwith- ment of Labor news release. It depends on the degree of inde- holding the income tax 2 Generally other government agencies and third parties use other employee-classification tests. pendence and control in their relation- 2. 3.0% penalty of the wage for fail- 3 U.S. Department of the Treasury, Internal Revenue ship. Just identifying the new lawyer as ure to withhold the income tax Service. (2015). Publication 15-A: Employer’s Supple- an “of counsel” independent contrac- mental Tax Guide. tor won’t count for much. 3. 40% penalty of Social Security 4 Some relief may be available under Section 530 of the and Medicare tax that was not Revenue Act of 1978, and the IRS Voluntary Classifica- In federal tax matters, IRS has its own withheld tion Settlement Program. guideline2, consisting of eleven factors 5 Donald G. Cave, A Prof’l Law Corp. v. Comm’r, T.C. 4. 100% of matching Social Security Memo. 2011-48 (2011), aff’d 476 F. App’x 424, 425 (5th 3 grouped under three broad categories : and Medicare X&Y that should Cir. Mar. 2012) which applied a 5-factor control test.

Behavioral have paid Richard V. D’Alessandro, 1. work instructions 5. 0.5% penalty per month of the Esq. Professional Corporation 2. job training unpaid tax liability (up to 25%) [email protected] for failure to pay a tax Financial 6. $50 penalty for each W-2 not filed 3. the extent of business expense reimbursements 7. interest

The Albany County Bar Foundation will be accepting grant applications until October 31, 2015 Non-profit organizations in Albany County who work with domestic violence victims or provide education or advocacy regarding domestic violence issues are encouraged to apply. Applications and grant guidelines can be found on the ACBA website: http://www.albanycountybar.org/grantapplications

Albany County Bar Association Newsletter | September 2015 | 25 BENCH & BAR IN THE NEWS

News to share? Please email us at acba@albanycoun- discusses the undertaking of this project and the drastic tybar.com. Please note, The Bench & Bar In The News changes they have brought to the tribes in the Ewaso com- section is for ACBA members and member firms to share munity. information regarding recent achievements and activities. Publication in The Bench & Bar is limited to ACBA mem- Hinckley Allen’s Albany office is proud to announce that bers. To be eligible for consideration, all submissions, in- two local attorneys were recently selected by their peers cluding press releases, must be edited to 50-75 words. for inclusion in the 2016 edition of The Best Lawyers in America®: ACBA Past President Michael P. Friedman, Friedman and Molinsek, was recently awarded the 2015 New York • James J. Barriere (Commercial Litigation, Litigation – Law Journal Lawyers Who Lead By Example award for his Construction) Pro Bono work. Mr. Friedman and the other honorees will be recognized in a special section of the New York Law • Michael L. Koenig (Commercial Litigation, Criminal Journal and at a dinner celebration on October 14 in New Defense: White Collar) York City. In total, 49 attorneys from Hinckley Allen were listed in Partner James T. Towne, Jr. of Towne, Ryan & Partners, The Best Lawyers in America© 2016. P.C. shared his first-hand experience of being Trustee to the Loisaba Community Conservation Foundation, Inc. On August 13, 2015 Lisa R. Harris supported soon to (LCCF), a not-for-profit organization serving the Ewaso be lawyers by presenting a workshop on Resumes, Cover and Laikipia communities in Kenya, Africa, in a one-on- Letters and Thank You Letters at the Fifth Annual NYSBA one interview produced by Africa24 Media and broadcast- Minority Law Student Conference Day Program at New ed to millions of viewers in Africa and Europe. Mr. Towne York Law School.

Handling Traffic Tickets For Attorneys Who Don’t Normally Handle Traffic Tickets

A quick half an hour tutorial for those attorneys who wish to get some tips on how to handle traffic ticket matters. Speaker: Alan Bazzari, Esq. Bowitch & Coffey, 17 Elk Street Bagels and coffee will be provided. .50 CLE credit hour Professional Practice Transitional: Appropriate for both newly admitted and experienced attorneys.

26 | Albany County Bar Association Newsletter | September 2015 The Honorable Victoria A. Graffeo

The Honorable Victoria A. Graffeo’s portrait commissioned by the ACBA was recently hung in the Albany County Courthouse’s Hall of Judges located on the third floor. Judge Graffeo served as a Judge on the New York State Court of Appeals from 2000 to 2014, completing her service on the bench as a Senior Associate Judge. Prior to her Court of Appeals appointment, Judge Graffeo served as a Judge for the New York State Supreme Court in the Third Judicial District. Judge Graffeo is now a member of the firm Beach and is a leader of the Alternative Dispute Resolution Practice Group, co-leader of the Appellate Practice Group, and practices in the Government Compliance and Investigations, and the Business and Commercial Litigation Practice Groups.

BUSINESS MEMBERS IN THE NEWS

Teal, Becker & Chiaramonte, CPAs, P.C. (TBC), announced today the hiring of Tim Spadaro as a Senior Valuation Analyst. Spadaro is a licensed Certified Public Accountant with both a Masters and Bachelor of Science in Accounting from Bentley University. He has experience in business valuations and is working towards attaining the Chartered Financial Analyst (CFA) credential, as he has passed Levels I and II of the CFA exam.

The views expressed in the letters and columns reflect the opinions of the authors and may not reflect the views of the Association, its Officers, Directors or Members. Opposing viewpoints are always welcome and can be emailed to: [email protected].

Albany County Bar Association Newsletter | September 2015 | 27 PRSRT STD ALBANY COUNTY BAR ASSOCIATION U.S. POSTAGE 112 State St., Suite 1120 PAID Albany, NY 12207 ALBANY, N.Y. PERMIT #749

ADVERTISING POLICY FOR THE ACBA NEWSLETTER Advertising & articles appearing in the ACBA Newsletter does not presume endorsement of products, services & views of the Albany County Bar Association. 2015 Rates and Deadlines: Albany County Bar Association Rates: Member: $50 in our classified section (approximately 30-40 words) additional fees will be incurred as the number of words increase. Non-member: $100 in our classified section (approximately 30-40 words) additional fees will be incurred as the number of words increase. There is an additional $10 charge for Blind Ads. Seminars announced: $60 (approx. 30-40 words). The rates for all photo ready ads are: full page (8.5” x 11”) = $550; half page (7.5” x 5”) = $375; Quarter page (3.5 “ x 5”) = $300; Business card size (3.5 “ x 2 .5 “) = $200. Classified Advertising Policy: All ads must be prepaid and in writing. We also hold the right to edit all ads. For display advertising rates and information, please call (518) 445-7691. All ads must contain wording “Paid Advertising” at the top. It shall be the policy of the Albany County Bar Association that no advertisement should indicate any preference, limita- tion, specification, or discrimination based on color, handicap, religion, sex, national origin, or age. Change of Scene and Bench & Bar in the News: Provided at no cost to our members and inclusion is limited to ACBA Members. All notices must be submitted in writing. E-mail is preferable. Deadline: *Please note change: The third Friday of the prior month. E-mail ad copy and remit payment to Albany County Bar Association, 112 State Street, Suite 1120, Albany, NY 12207. We also take credit cards, call 445-7691.

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