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Judith S. Kaye NOVEMBER/DECEMBER 2008 VOL. 80 | NO. 9 JournalNEW YORK STATE BAR ASSOCIATION Judith S. Kaye We take the opportunity to recognize Chief Also in this Issue Judge Judith Kaye with a tribute to her many Medical Malpractice and accomplishments and the imprint she leaves the Modern-Day Athlete upon the Court. 2008 Article and Author Index by Skip Card BESTSELLERS FROM THE NYSBA BOOKSTORE November/December 2008 Construction Site Personal Injury New York State Physician’s FFormsorms NEW! Litigation — New York Labor Law HIPAA Privacy Manual (2007) oonn CCDD §§ 200, 240(1), 241(6) (2008 Revision) A hands-on tool for health care providers Collections and the Enforcement of and their legal counsel, this publication Perhaps no single scheme of statutory causes of action Money Judgments, Second Edition provides guidance for a physician’s office has initiated more debate. This text provides a road (2008) to respond to routine, everyday inquiries map through this at-times confusing area of law. about protected health information. Monetary awards determined in court cases involve Includes a summary of key case developments. PN: 4167 / Member $75 / List $95 / 288 pages an array of procedures that attorneys must know. The PN: 4047 / Member $80 / List $110 / 480 pages new second edition, under the editorship of Paul A. Practitioner’s Handbook for Peters, not only updates case and statutory law but Entertainment Litigation (2007) Appeals to the Court of Appeals, also addresses new issues within this field, providing This reference covers the fundamental issues that are Third Edition (2007) in-depth analyses of key topics. central to a creative artist’s career. 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This Estate Planning and Will Drafting book is a practical guide, providing needed FFormsorms in New York (2006 Revision) Public Sector Labor and information from experts in the field. oonn CCDD PN: 4076 / Member $35 / List $45 / 328 pages Provides a practical overview of the complex Employment Law, Third Edition (2008) This landmark text is the leading reference on public rules and considerations involved in the various Impasse Resolution (2008) aspects of estate planning in New York State. sector labor and employment law in New York State. Everyone will benefit from the comprehensive cover- This publication provides both an overview and Includes numerous sample wills and checklists. in-depth discussion of the impasse resolution proce- PN: 4095C / Member $175 / List $210 / 822 pages age of this book, whether they represent employees, unions or management. Practitioners new to the field, dures under the Public Employees Fair Employment as well as seasoned attorneys, will benefit from the Act, commonly known as the Taylor Law. Foundation Evidence, Questions and book’s clear, well-organized coverage of what can be PN: 4122 / Member $30 / List $40 / 124 pages Courtroom Protocols (2005) a very complex area of law. This manual contains a collection of the forms and PN: 42057 / Member $150 / List $185 / 1,568 pp. Legal Careers in New York State protocols that provide the necessary predicate or Government, Ninth Edition (2008) foundation questions for the introduction of common Real Estate Titles, This directory was compiled to assist law students forms of evidence and the examination of witnesses. Third Edition (2007 Revision) and lawyers who are considering careers and/or work experiences in public service with the State PN: 4107 / Member $48 / List $57 / 172 pages An all-time bestseller, this 2007 Edition is edited by of New York. This edition has been expanded to James M. Pedowitz, Esq., a nationally renowned New York Lawyer’s Deskbook, include comprehen sive information on employment expert in real estate law and title insurance, and opportunities with the various levels of government Second Edition (2007–2008) authored by some of the most distinguished practitio- in New York State. WINNER OF THE ABA’S CONSTABAR AWARD ners in the field. This is an essential guide to the many PN: 41298 / Member $30 / List $45 / 264 pages The Second Edition consists of 25 chapters, each complex subjects surrounding real estate law. Includes covering a different area of practice with practical the new ALTA policies and TIRSA endorsements. advice in that particular area of law. PN: 521007 / Member $150 / List $180 / 1,632 pages NYSBA Practice Forms on PN: 4150 / Member $250 / List $325 / 2,092 pages CD-ROM—2007–2008 FFormsorms Representing People with Access more than 700 forms for oonn CCDD Disabilities, Third Edition use in daily practice. New York Lawyer’s Formbook, FFormsorms PN: 61508 / Member $280 / List $315 Second Edition (2007–2008) oonn CCDD (2007 Revision) The Formbook is a companion volume to the A comprehensive reference that covers the myriad New York Lawyer’s Deskbook and includes 21 legal concerns of people with disabilities. It is the sections, each covering a different area of practice. ideal reference for those who want a “one-stop” COMING SOON! PN: 4155 / Member $250 / List $325 / 3,244 pages source for a thorough overview of the legal frame- work affecting individuals with disabilities. December New York Municipal Formbook, PN: 42158 / Member $160 / List $200 / 1,588 pages New York Lawyer’s Deskbook, FFormsorms 2008–2009 Third Edition (2006) oonn CCDD A rich resource for attorneys dealing * Free shipping and handling within the continental New York Lawyer’s Formbook, U.S. The cost for shipping and handling outside the with local government procedures. Over 1,100 forms continental U.S. will be added to your order. Prices 2008–2009 covering all aspects of municipal law. do not include applicable sales tax. PN: 41606C / Member $150 / List $185 / 3,318 pages Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0362 JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Elissa D. Hecker Irvington Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Gary D. Spivey Albany Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside PUBLISHER Patricia K. Bucklin Executive Director NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org ADVERTISING REPRESENTATIVE Network Media Partners Chris Martin Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS NOVEMBER/DECEMBER 2008 JUDITH S. KAYE BY SKIP CARD 10 18 Smith, 1984 BY GARY HOPPE AND DARREN O’CONNOR 20 Immuno AG., 1989–1991 BY LAURA JOHNSON 22 Jacob, 1995 DEPARTMENTS BY ROBERTA A. KAPLAN 5 President’s Message 24 Jamaica Public Service Co., 1998 8 CLE Seminar Schedule BY JEREMY R. FEINBERG 32 Burden of Proof BY DAVID PAUL HOROWITZ 26 Kihl, 1999, and Its Progeny 44 Book Review BY JENNIFER G. SCHECTER BY ALBERT ROSENBLATT 45 Editor’s Note Campaign for Fiscal Equity, 2003 30 46 Index to Articles 2008 BY MATTHEW J. MORRIS 48 Index to Authors 2008 34 A Whole Different Ballgame . Or Is It? 51 Language Tips Medical Malpractice and the BY GERTRUDE BLOCK Modern-Day Athlete 52 Attorney Professionalism Forum BY TARA R. DI LUCA 54 New Members Welcomed 58 Index to Advertisers 58 Classified Notices 63 2008–2009 Officers 64 The Legal Writer BY GERALD LEBOVITS CARTOONS © CARTOONRESOURCE.COM The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2008 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. NYSBA Journal | November/December 2008 | 3 PRESIDENT’S MESSAGE BERNICE K. LEBER Honoring 25 Years of Devoted Public Service ome jurists stand in a league of tory death penalty for killers already their own. That is why we are serving a life term of imprisonment Shonoring Chief Judge Judith S. was cruel and unusual punishment. Kaye with this special issue of the Former clerks Gary Hoppe and Darren Journal, in which we pay tribute to O’Connor relate how Judge Kaye one of New York’s most distinguished methodically addressed every factual public servants.
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