The Journal of the Nassau County Bar Association May 2021 www.nassaubar.org Vol. 70, No. 9

Follow us on Facebook Paving a Path to What’s Next Elizabeth Eckhardt, LCSW, PhD and and less time running around has been a NCBA COMMITTEE Jackie Cara hidden blessing during this challenging MEETING CALENDAR Page 16 As more and more people get the time. One thing we do know is that we do SAVE THE DATE COVID-19 vaccine, there is a lot of not know what the future will look like. conversation about things getting back Not knowing what to expect and NCBA AND NAL INSTALLATION to normal. Yes, it is true that more and feeling a lack of control over the events OF OFFICERS more people are returning to their in one’s life can wreak havoc on overall Tuesday, June 1, 2021 workplaces and kids are going back mental health. Those of us in the mental 5:00 PM via Zoom to school full time and in person, but health fi eld have seen a sharp rise in See page 6 are things normal? Will things ever the numbers of people reaching out for WE CARE GOLF AND TENNIS CLASSIC go back to the way things were before services. We anticipate that this number See page 19 COVID-19 upended our lives over a will continue to rise as the long-term of the pandemic, while others have year ago? So many questions remain— eff ects of the pandemic show themselves. LAWYER ASSISTANCE PROGRAM (LAP) experienced feelings of depression and Monthly Virtual Wellness Groups Are the vaccines eff ective? Do we have Between March 2020 and July 2020, anxiety in ways they never have before. See page 8 to continue wearing masks and being the Nassau County Bar Association As a result of these calls, LAP has socially distant? What about the new experienced a sharp increase in the expanded its programming to provide variants? Will we need to get a booster, number of attorneys reaching out to the WHAT’S INSIDE additional mental health and substance and when—just to name a few. Lawyer Assistance Program (LAP) and Gestational Surrogacy: New Frontier use programs geared toward prevention Many fear that things will never go the number of monthly callers remains in New York Family Law pg. 3 and early identifi cation of problems, back to the way they were, and others signifi cantly higher than in years past. Til “Tweets” Do Us Part: Social Media including peer and professional support, quietly hope that they do not. Some feel Several attorneys have expressed and Its Impact on Matrimonial that the slowing down of life and the concern about the amount they have Litigation pg. 5 ability to spend more time with family been drinking since the beginning See PAVING, Page 22 COVID-19: Impacting Matrimonial Business Valuations pg. 6 Forming a Family by Adoption Stella K. Abraham High School Wins in New York pg. 7 Separate Property Considerations 2021 Nassau County Mock Trial Tournament for Attorneys, and Working with a by Jennifer C. Groh Forensic Accountant pg. 8 Wasteful Dissipation Claims The Stella K. Abraham High School Concerning Spousal Maintenance mock trial team prevailed over 39 high in a COVID Economy pg. 9 schools to take the Nassau County Championship of the 2021 New York State Stop Wasting Marital High School Mock Trial Tournament. Savings on Interim Counsel North Shore Hebrew Academy High School Fee Applications pg. 10 placed second this year. Stella K. Abraham Impact of COVID-19 on the High School will represent Nassau County Mental Health Legal and in the upcoming state fi nals to be held Clinical Systems pg. 11 virtually from May 23 to 25. We Consult No Common Oracle But… NCBA coordinates the Nassau County Tournament with well over 500 students. the Bylaws pg. 12 Contributing to the success of the program Nixon Before the Bench: The Supreme that was held virtually this year were Court and Richard Nixon pg. 13 dozens of NCBA volunteers—attorneys who served as advisors to the teams and (L-R) Aviva Schreiber, Atara Shleifer, Ariella Borah, Anna Laufer, Priva Halpert, Menucha other attorneys and sitting and retired Ross, Chani Rabinow, Rochel Loike, Avital Davidowitz, Talia Cohen, Lea Septimus, Talia Traube, Rachel Hirt, Tamar Rabinovitz, Shira Yehoshua, Jenny Lifshitz, and Sara Stein. Not village magistrates and judges who presided pictured: Dassie Jaffe OF NOTE over the 40 teams that competed in the NCBA Member Benefit—I.D. Card Photo seven rounds of the tournament. Obtain your photo for Secure Pass The competition is chaired by Hon. Marilyn K. Genoa, educational arm of the Bar Association, coordinates the Court ID cards Peter H. Levy, and Hon. Lawrence M. Schaff er. Jennifer annual mock trial tournament. Only For New Applicants Groh, Director of the Nassau Academy of Law, the See MOCK TRIAL, Page 25 Cost $10

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ROBERT DELAVALE | (516) 741-7400 ext. 230 | [email protected] Nassau Lawyer May 2021 3 FOCUS: Gestational Surrogacy: New Frontier in New FAMILY LAW York Family Law

be over the age of 18 at the time the well as prior donations of ova or sperm a donor identifi er code from the ova agreement is signed, may be married or in creating other surrogate children registry which is attached to the donor’s unmarried, and one of them must be a who are genetic siblings of a surrogate confi dential record maintained by the U.S. citizen or lawful permanent resident child are protected as confi dential tissue bank for tracking purposes and and a resident of New York state. information. generates a separate record, identifi ed Surrogate’s Bill of Rights The extent of a donor’s medical by the code only, indicating for the history remains under the auspices particular donor the number of ova and The CPSA provides for a Surrogate’s of the “assisted reproductive service number of times ova have been donated, Bill of Rights acknowledging the provider” and such data collection her medical and health history “which Nancy E. Gianakos protections needed for low income appears geared to the immediacy of shall include at a minimum, all health women from the coercion of n April 2, 2020, New York the health concerns for a surrogate in screening criteria required under Part 52 manipulative solicitations and long term passed the Child Parent a gestational pregnancy—not the long- of this Title.” The arps must maintain eff ects of gestational practices upon Security Act (CPSA,) which term care of the surrogate child. the confi dentiality of “ova donation their bodies.6 Obecame eff ective February 15, 2021, registry record ” in compliance with A surrogate in New York may not Voluntary Disclosure of Medical legalizing gestational surrogacy. Much state and federal laws including Public only be compensated for the use of History and Confidentiality has been written about the benefi ts of Health Law § 4365(4)(c). her body by the intended parents, but the new law for families experiencing Pursuant to the DOH rules, a donor The confi dentiality of medical and must be provided life insurance with a fertility issues and for the LGBTQ who voluntarily registers “shall be health records aff orded the surrogate 1 minimum value of $750,000 prior to provided with written informational under the Ova Donation Guidelines community in becoming legal parents. execution of the surrogacy contract and In the last decade alone, an estimated material regarding the ova donation are poised as a formidable obstacle to remain in eff ect for 12 months after the registry which shall indicate, at a the future health care of a surrogate 8 million women in America suff ered conclusion of the pregnancy; a health with infertility issues, spending billions minimum…that consent can be insurance policy; and upon request, a withdrawn at any time…[that]the See GESTATIONAL, Page 21 to conceive annually; in 2007, the disability policy for whom she may name pursuit of conception fueled what assisted reproduction service provider Nancy E. Gianakos is benefi ciaries. shall adhere to all state and federal laws a partner at Reisman, then was estimated as a $6.5 billion In addition, the surrogate has Peirez, Reisman & regarding confi dentiality of private Capobianco LLC in for-profi t infertility industry in this the right to complete autonomy in country.2 Undoubtedly with the health information, and the donor may Garden City and may be medical decisions for herself and the pursue remedies against [them]… for reached at passage of same sex marriage laws and child in vitro, including decisions to (516) 746-7799 or statutory enactments legalizing third any unwarranted disclosure of their [email protected]. terminate the pregnancy. A surrogate confi dential information.”8 party gestation, the profi t potential will also has a right to counsel to be paid increase dramatically. This underscores 7 The arsp, after obtaining the donor- by the intended parents. These rights participant’s signed consent, obtains the need for government oversight may not be abridged by contract of an industry that remains in large and attempts to do so may render part unregulated and fraught with the surrogacy contract void and exploitation of women and those unenforceable in whole or in part. desirous of a newborn. New York’s recent legislation is to be DOH Rules Regarding lauded for the protections aff orded a Gestational Surrogacy gestational surrogate under the CPSA. The legislature when enacting the Many of the concerns expressed CPSA delegated to the DOH the in opposition to “womb renting” implementation of regulations with a were very similar to those raised in legislative directive to “regulate surrogacy objection to taxpayer dollars funding programs and assisted reproduction APPELLATE compensation of women who sold their service providers (“arps”), the practice of eggs for harvesting for institutional gestational surrogacy, and the donation COUNSEL research in 2009.3 The commodifying of ova to ensure the health and safety of the women’s body, exploitation of of the egg donor and the Child born under young and impoverished females, and gestational surrogacy agreements [emphasis the creation of “designer babies” have added], to ensure that the surrogacy is been hotly debated in the medical and ethical, and to ensure that the surrogacy Christopher J. Chimeri is frequently sought by legal communities. agreements are fair to the parties that colleagues in the legal community to provide direct Gestational Surrogate enter into them.” appellate representation for clients, as well as The next day, on February 16, consulting services to fellow lawyers. According to the new law, a paid 2021, the DOH published “Surrogacy surrogate in New York must be 21 Programs and Assisted Reproduction Results-driven solutions to family law challenges years of age or older, a US citizen Service Providers.” The rules are or lawful permanent resident, and predicated on a voluntary registry of The firm’s appellate team is highly equipped to biologically unrelated to the child, egg donors and surrogates; notably, navigate, or help you navigate, the complexities and i.e., a surrogate may not contribute there is no reference to a registry for nuances of appellate practice, including all aspects of her own egg for which she serves as sperm donors. matrimonial and family law in all departments in New the gestational surrogate.4 A paid surrogate who is also a donor will void Access to Medical Records: York State and the Court of Appeals, as well as civil a contract of surrogacy, rendering the An Unresolved Dilemma and commercial matters in the Federal Courts. contract unenforceable. The health and safety issues present Further, a surrogate must meet all the one of the more perplexing issues of regulatory health mandates promulgated gestational surrogacy not only for the by New York State Department of surrogate but for the surrogate child. Health (DOH) prior to entering into a The absence and availability of, as well 888 Veterans Memorial Hwy, Suite 530, Hauppauge, NY | 631.482.9700 surrogacy contract with the “intended as access to medical data including an 320 Old Country Rd, Suite 206, Garden City, NY | 516.739.7500 parents.”5 By statutory defi nition, an egg or sperm donor’s history such as “intended parent” in order to enter into the genetic lineage of the donor, the WWW.QCLAW.COM an enforceable surrogacy contract, must existence of siblings of the donor as 4 May 2021 Nassau Lawyer Nassau President’s Column Lawyer The Official Publication In Closing of the Nassau County Bar Association 15th & West Streets, Mineola, N.Y. 11501 Phone (516)747-4070 • Fax (516)747-4147 In closing, our legacy is what history says with our justice partners—community leaders, www.nassaubar.org about the work we have accomplished and the government offi cials, law enforcement, and the E-mail: [email protected] impressions we have left on those around us. judiciary—to bring change, correct inequalities, NCBA Officers We looked for ways to balance tradition with and ensure equal justice and fairness from all President innovation, with the hopes of not compromising constitutionally bound to uphold the law as Dorian R. Glover, Esq. either. My predecessors laid the foundation, and we leaned on the NCBA mission of inspiring President-Elect each saw an opportunity to courageously lead all citizens to have respect for the law and the Gregory S. Lisi, Esq. our organization. governing principles of democracy. 2020-2021 will be remembered for the Vice President That is the story of our history; we answered Rosalia Baiamonte, Esq. Pandemic that claimed the lives of over 3 the call to make our community safer, to stand million people worldwide and counting, but also Treasurer ROM THE up for equality for all citizens, and to have for the movement of racial justice sparked by F Sanford Strenger, Esq. respect for the law. the death of George Floyd and the assault of PRESIDENT Secretary the U.S. Capitol by violent protesters. Family, the spirit of Domus rings true because Daniel W. Russo, Esq. it belongs to all of us. In this oasis of space, Through it all, we stood resolute, whether Dorian R. Glover Executive Director this spectrum of time, this cornerstone of our it was to work with our Administrative Judge, Elizabeth Post the Hon. Norman St. George, to support the community, we have not only met the challenges Editor-in-Chief protective measures used to prevent the spread of COVID- that were before us, but more importantly we seized the Christopher J. DelliCarpini, Esq. 19 virus as we moved through the slow and deliberate opportunity and the responsibility to courageously lead process of increasing in-court proceedings; or to work Domus to even greater heights. Copy Editor Allison C. Shields, Esq. Editor/Production Manager Ann Burkowsky Photographer Hector Herrera

May 2021 Nancy E. Gianakos, Esq. Jeff Morgenstern, Esq. Andrea DiGregorio, Esq. Christopher J. DelliCarpini, Esq. Focus Editors Rhoda Y. Andors, Esq. Cynthia A. Augello, Esq. Rudy Carmenaty, Esq. Thomas McKevitt, Esq.

Committee Members Christopher J. DelliCarpini, Esq., Co-Chair Andrea M. DiGregorio, Esq., Co-Chair Rudy Carmenaty, Esq., Vice-Chair Rhoda Y. Andors, Esq. Cynthia A. Augello, Esq. Deborah S. Barcham, Esq. Hon. Robert G. Bogle Deanne Marie Caputo, Esq. Ellin Cowie, Esq. Nancy E. Gianakos, Esq. Adrienne Flipse Hausch, Esq. Jordan K. Hoffman, Esq. Janine Luckie, Esq. Michael J. Langer, Esq. Michael H. Masri, Esq. Thomas McKevitt, Esq. Daniel McLane, Esq. Jeff H. Morgenstern, Esq. Marian C. Rice, Esq. Daniel W. Russo, Esq. Allison C. Shields, Esq. Tammy Smiley, Esq. Ellen B. Tobin, Esq.

Published by Long Island Business News (631)737-1700; Fax: (631)737-1890 Publisher Graphic Artist Joe Dowd Wendy Martin

Nassau Lawyer (USPS No. 007-505) is published month- ly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 and at additional entries. Contents Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association that are of substantive and procedural legal interest copyright ©2021. Postmaster: Send address changes to the Nassau County Bar Association, 15th and West Streets, to our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to Nassau Lawyer, Mineola, NY 11501. its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations, and quotations. Nassau Lawyer May 2021 5 FOCUS: Til “Tweets” Do Us Part: Social Media and MATRIMONIAL LAW Its Impact on Matrimonial Litigation

attesting to this fact. A 2010 study the fact that someone has utilized was single and without children while conducted by the American Academy of GoFundMe to raise money for counsel simultaneously seeking primary custody Matrimonial Lawyers (AAML) “revealed fees serve as a basis to impute income of his children; a parent denied her that 81% of respondents had used social to a spouse claiming poverty? Can marijuana use in court, but subsequently media evidence in their cases.”2 someone’s radicalized petition on posted photographs of her smoking Naturally, eleven years later, one can Change.com affect the outcome of a marijuana at a party; a father claimed only expect that number to have risen. custody case? Can someone’s dating he could not afford to pay any type of “Going through a divorce always results profile suggest that he or she is living child support; however, his social media in heightened levels of personal scrutiny. with an intimate partner, thus affecting account depicted photographs of him Angela A. Ruffini If you publicly post any contradictions any maintenance award? While these sitting in a Ferrari, taking a cruise, and may be questions still unanswered, selling land that he owned.12 ocial media, a global phenomenon to previously made statements and documentary evidence of someone It is evident that social media has that has transformed the way we promises, an estranged spouse will receiving counsel fees from online provided a vast array of evidence into live, receive our news, and elect certainly be one of the first people to platforms or a radicalized online petition an individual’s life and indiscretions Sour politicians, has profoundly impacted notice and make use of that evidence,” or even someone’s dating profile can be that can assist in evaluating a child’s divorce litigation. according to Marlene Eskind Moses, 3 utilized as evidence. best interests. What a precarious situation people president of the AAML. There are also questions about social When it comes to maintenance or find themselves in when all of their Courts have gone as far as compelling media affecting someone’s credibility alimony, litigants have utilized social uninhibited thoughts and questionable social media evidence by granting access 4 and the ability to manipulate social media evidence to prove that a spouse’s conduct wind up on social media. They to passwords and login information. media evidence. Can social media allegations of disability were far from live under the false pretense that deleting This now begs the question be used to impeach a witness? Can reality. In one case, a husband submitted their “posts” ensures their privacy. In of whether there is a reasonable someone’s grandiose portrayals evidence to prove that a wife’s hobby of reality, their uninhibited thoughts and expectation of privacy in what and be used against a party when he belly dancing, as depicted on her social questionable conduct have presented as how we post. What we think of as or she has represented the exact media account, was requisite proof new forms of evidence in matrimonial “private,” especially if an individual’s opposite throughout the matrimonial that she was not disabled and thus not litigation that could muddy the waters account is private, may no longer proceedings? Can someone’s location on a candidate for lifetime maintenance.13 for some litigants. Indeed, as we well bear that status in legal proceedings, especially if it is material to custody or social media provide confirmation about The court considered this social media know, when something is deleted, it is someone’s true whereabouts? evidence when awarding her durational never truly deleted. finances. In fact, as many social media platforms do not guarantee complete Recent literature suggests these maintenance of only two years. In Social Media as Evidence privacy, a litigant cannot, and indeed, answers are likely yes. Moreover, the another instance, a litigant alleged that concept of manipulating what we see he was unemployed, and thus received It is with good reason that courts should not have a legitimate reasonable and hear on social media is not new. temporary alimony payments from have begun to capitulate to social media expectation of privacy.5 With applications like Photoshop, we his wife. However, on social media the evidence. It has become one of the most This further gives rise to concerns often question what is real and what is “unemployed” litigant represented intricate details encompassing people’s about an individual’s Fourth not. Can a scorned spouse choreograph himself as a business owner and wrote daily lives. Users of social media often Amendment protections. Are these evidence to meet his or her agenda? details about lavish trips to Las Vegas, wake up and immediately check their protections applicable in the context These very real and hot-button issues South America, and Sea World all taken social media accounts, post about their of social media? While there is little are making their way to the forefront with his new girlfriend. Based on this 12:00 p.m. brunch special or express written on the Fourth Amendment and of matrimonial litigation, sometimes evidence, the judge denied his request their unsolicited political views amongst its application to divorce and family helping and often hurting litigants. for alimony at trial.14 litigation, it may become an integral their “friends.” Social media has become Although litigants may find it hard part of evidence and motion practice in Social Media’s Impact a pesky little nuisance that people cannot to grasp that their private social media the future.6 on Custody and Finances get enough of. content is not actually private, social Social media evidence has also Embedded in social media platforms What is social media evidence media evidence has given divorce is also the platform’s ability to track an presented ethical issues. The concept intended to prove? Do litigants use it as attorneys a wealth of knowledge about individual’s every move. Many social of “false friending,” where a spouse, evidence of destructive habits, excessive adverse parties that serves to assist media websites contain GPS and similar third party, or even attorney “friends” income, bad parenting? In reality, social them in their cases and bolster their technology to pinpoint one’s exact (or an adverse party or possible witness media evidence can be used to help clients’ positions. almost exact) location. Therefore, social on social media under false pretenses prove—or disprove—all of these things Conclusion media evidence has become integral to accumulate evidence brings to and much, much more. to legal proceedings and could truly light New York Rules of Professional Courts in custody matters have While technology and media 7 make or break someone in the throes of Conduct Rule 4.1. This rule provides: considered social media evidence platforms constantly change and matrimonial litigation. This evidence, as “In the course of representing a client, when rendering a decision “in the adapt to the ever-evolving times, most further detailed herein, has the ability to a lawyer shall not knowingly make child’s best interests.” Some courts individuals fail to consider the impact uncover a party’s finances, location, drug a false statement of fact or law to a have considered social media evidence that social media can have on their 8 or alcohol use, radicalism and other third person.” Does this phishing of a mother’s live-in paramour as lives. The ramifications social media compromising evidence in ways legal expedition raise ethical concerns? justification for awarding a father can have on matrimonial litigation will processes—like subpoenas—cannot. Indeed, is a lawyer friending someone primary residential custody.9 only continue to emerge as social media Courts will often cite three reasons for on social media under false pretenses Other courts have considered social transforms and becomes an increasingly allowing social media evidence: the equivalent of “knowingly [making] media evidence of using illicit substances integral part of everyone’s daily life (1) it does not violate privacy as there is a false statement?” Or, can (and should) when determining custody.10 Still, and communications. Can we learn no expectation of privacy; (2) it can be this evidence be used to hold a spouse other courts have scrutinized social something from this? Perhaps yes or relevant; and (3) it does not violate any accountable for his or her actions media evidence as merely speculative See SOCIAL MEDIA, Page 23 privilege.”1 despite the ethical concerns, especially with no probative value in custody But what does this mean for if this evidence is material and relevant? determinations.11 Angela A. Ruffini is a When we think of social media, matrimonial litigation matrimonial litigation? Put simply, what As in most custody matters, the associate at Van Horn litigants post on social media can— we often think about the preeminent use and weight given to social media & Friedman, P.C. in and likely will—be used against them platforms including Facebook, Twitter, evidence will almost certainly be Westbury and a member of the NCBA Matrimonial (to the extent that it can). Indeed, social Instagram, Tik Tok, or Snapchat. But determined on a case by case basis. and Family Law media evidence can be more compelling what about the less-thought-about Other situations whereby parents’ Committee. in divorce litigation than evidence platforms including GoFundMe, social media accounts shed light on uncovered by a private investigator. In Change.com, or even dating websites their ability to parent include: a father recent years, there have been studies like Match.com and eHarmony? Can joining a dating website claiming he 6 May 2021 Nassau Lawyer

FOCUS: COVID-19: MATRIMONIAL LAW Impacting Matrimonial Business Valuations

trial.2 If, on the other hand, the post- Market Forces vs. Spousal Efforts pandemic on a particular type of commencement increase or decrease A spouse’s business is generally industry in comparison to the growth was primarily due to the actions of considered an active asset, but courts of the specifi c business being valued. the titled spouse, then the business have discretion to value a business as For example, if the revenues of a would be valued as of the date of of the date-of-trial, in certain instances, grocery store grew at a rate similar to commencement.3 A party seeking to such as when the business increased or the rate of this industry as a whole, demonstrate that COVID-19 has had decreased dramatically due to broad then it would appear that the growth an impact on the business interest of market forces, as opposed to the to the was due primarily to broad market the titled spouse likely would argue for eff orts of the titled spouse.7 The use of forces. In contrast, if the revenues grew Marie F. McCormack an evaluation date closer to the time of a date of trial valuation date prevents at a rate substantially higher than that trial. This party would also seek to show OVID-19 has changed the either a windfall or fi nancial hardship to of the industry, then it is likely that the impact constituted a broad market world over the course of the 8 the growth was due primarily to the force beyond the control of the titled one of the parties. last year. Not only has it caused eff orts of the titled spouse, and a date- C spouse and that the impact was not As to the impact of COVID-19, tremendous loss of life and widespread short-term. each case will be fact specifi c, but if the of-commencement valuation would be illness, but it has also had a substantial Trial courts have broad discretion in value of a business, such as a grocery more equitable. Selection of a valuation impact on the global economy. However, selecting a valuation date for a marital store, increased substantially during date is thus crucial to achieve an its economic impact has not been asset.4 The valuation date selected, the pandemic due to the fact that more equitable result in assessing the impact uniform, but has had varying eff ects on however, must be between the date of people were preparing meals at home, of COVID-19 on business value. Prior businesses. Therefore, in matrimonial commencement and the date of trial.5 it could be argued that this constitutes a case law provides some guidance on how actions, it is important to consider the The court in Daniel v. Friedman held that: broad market factor beyond the control courts might address its impact. impact of COVID-19, if any, on the Courts have discretion to value of the titled spouse. In this situation, value of the business interest of the ‘active’ assets such as a professional a date-of-trial valuation may be more See VALUATIONS, Page 24 titled spouse. practice on the commencement equitable, as it would prevent the titled Marie F. McCormack is a To value a business interest, it is spouse from benefi tting from the impact Court Attorney Referee in date [of the action], while ‘passive’ the Supreme Court, Nassau necessary to analyze whether the assets such as securities, which of market forces that were not due County, and presides over change in value of the business is active could change in value suddenly solely to the eff orts of the titled spouse, matrimonial trials, and other matters. or passive.1 Generally, if the post- based on market fluctuations, but largely due to a change in the commencement growth or decline in may be valued at the date of trial overall economy. the business is a result of broad market but such formulations should be Of course, the analysis of a forensic factors, courts would use their discretion treated as helpful guideposts and expert would be necessary to determine to value the business as of the date of not immutable rules.6 the broad market impact of the

2021 Installation of NCBA and NAL Officers and Directors S A V E T H E D A T E Tuesday, June 1, 2021 at 5:00 PM via Zoom NCBA OFFICERS Annual Dinner Gregory S. Lisi, President Rosalia Baiamonte, President-Elect Sanford Strenger, Vice President Daniel W. Russo, Treasurer Gala of the James P. Joseph, Secretary

NCBA DIRECTORS Association Joshua D. Brookstein Oscar Michelen Deanne M. Caputo Marcus Monteiro A U G U S T 4 , 2 0 2 1 Adrienne Flipse Hausch Faith Getz Rousso N A S S A U C O U N T Y B A R A S S O C I A T I O N Lisa A. LoCurto Anthony Michael Sabino M I N E O L A , N E W Y O R K

NASSAU ACADEMY OF LAW H O N O R I N G Terrence L. Tarver, Dean C H R I S T O P H E R T . M C G R A T H Susan Katz Richman, Associate Dean 7 7 T H D I S T I N G U I S H E D S E R V I C E Michael E. Ratner, Assistant Dean M E D A L L I O N R E C I P I E N T Gary Petropoulos, Assistant Dean H E C T O R H E R R E R A Lauren B. Bristol, Secretary P R E S I D E N T ' S A W A R D R E C I P I E N T Matthew V. Spero, Treasurer Christopher J. DelliCarpini, Counsel

There is no charge for this event. Must pre-register to Additional details to follow. receive Zoom link. Contact the NCBA Special Events Department at [email protected] or (516) 747-4071. Nassau Lawyer May 2021 7 FOCUS: Forming a Family by Adoption in New York FAMILY LAW

adoption for a fraction of the cost. An legal bill is paid by the Agency. In New $20,000 for the matching service. adoption can cost a family anywhere York State, the adoption subsidy for It is the agency’s role to screen from nothing to approximately representation is $2000 per adoption. the expectant parents, request their $25,000. There are three (3) ways of Private Adoptions background and medical information, adopting a child in the state of New and provide support for both the York. Private adoption is attractive to expectant parent and the adoptive many families for a multitude of Foster Care Adoption parent throughout the process. The reasons, including that the prospective biological parent surrenders her child to Foster care adoption is adopting family is in control of the costs. One the agency, and the agency may consent through a public agency. In Nassau and may adopt with a private agency or to the adoption of a minor to a family Suff olk Counties, the Department of a private placement adoption. There that the agency has approved. Many fi nd Faith Getz Rousso Social Services (“DSS”) is responsible are signifi cant distinctions between the private agency attractive because for removing children from their families independent and agency private here has been a lot of buzz it takes the “work” out of the hopeful due to allegations of neglect, abuse, or adoptions. Most notable is how the recently regarding the newly adoptive family’s hands. abandonment.2 If the agency cannot expectant parent and the adoptive enacted New York Child Parent locate family members to place the parent are “matched.” Private Placement Adoption TSecurity Act (“CPSA”), which was child pending termination of parental Private independent adoption—in signed into law on April 3, 2020, and Private Agency Adoption rights (“TPR”), the child is placed in a contrast to private agency adoption— went into eff ect on February 15, 2021.1 non-kin, foster care placement.3 The Only a licensed agency may facilitate is the process of a birth parent This comprehensive law addresses state must protect the natural parents’ an adoption in the state of the New placing their child directly with an all children born through third-party 5 right to care for their child absent York. The authorized agency acts as adoptive parent. The parties connect reproduction, that does not involve the a demonstration of abandonment, an intermediary between the hopeful independently, often through social surrogate’s own egg. surrender, persisting neglect, unfi tness, families and the expectant parents who After years of revising and addressing or other like behavior, evincing utter are considering adoption for its child. It See ADOPTION , Page 23 the concerns of those opposed to indiff erence and irresponsibility to the is a crime for an attorney in New York to 6 Faith Getz Rousso is surrogacy, the New York CPSA is child’s well-being.4 place a child for adoption. principal at Law Offi ce of comprehensive, complex, and intended However, once the parental rights The agency conducts their own Faith Getz Rousso, P.C., in Garden City, practicing in to protect the rights of both the carrier are terminated, the foster parent may outreach with clinics, hospitals, and all facets of adoption law, and the intended parents. However, the adopt the child. The process can take advertising in eff orts to connect its including representing reality is that a New York surrogacy may adoptive parents, years while the ultimate goal remains clients (who have been approved by biological parents in be cost prohibitive for many families, reunifi cation with the families until their agency) with pregnant women private and agency as the total costs can be upwards of TPR. There is no cost to adopt through considering an adoption plan. The adoptions, stepparents, and foster parents. She $200,000, if not more. foster care and a family may be eligible agency charges a fee for this service is also Chair of the NCBA A family may form their family by for an adoption subsidy. The family’s which is approximately $10,000 - Adoption Committee. S U P P O R T T H E D I N N E R G A L A AttorneyAttorney Grievance Grievance & & DisciplinaryDisciplinary Defense Defense J O U R N A L AnAn allegation allegation of ofprofessional professional misconduct misconduct can can tarnish tarnish your your reputationreputation and and place place your your law law license license in injeopardy. jeopardy. Let Let the the experiencedexperiencedteamteam of ofDavid David H. H. Besso Besso and and Michelle Michelle Aulivola Aulivola helphelp you you achieve achieve a favorablea favorable result. result.

Christopher T. McGrath Hector Herrera David H. Besso, past Chairman Michelle Aulivola has 77th Distinguished Service Medallion Honoree President’s Award Recipient David H. Besso, past Chairman Michelle Aulivola has NCBA Past President, Past Co-Chair of WE CARE, of theof the Grieva Grievancence Committee Committeeforfor the the defendeddefendedattorneysattorneys and Partner at Sullivan, Papain, Block, McGrath, NCBA BuildingManager th 1010Judicialth Judicial District District and and past past President President involvedinvolvedin attorneyin attorney Coffinas & Cannavo of theof theSuffolkSuffolk County County Bar Bar Association, Association, disciplinarydisciplinary matters mattersandand hashas been been representing representing attorneys attorneys for for grievangrievance ceinvestigations investigations more than twenty years. for the past fifteen years. The journal is an invaluable way to show support for our more than twenty years. for the past fifteen years. honorees in a safe and contact-free way. LongLong Tuminello, Tuminello,LLPLLP To purchase a journal ad, contact the NCBA Special Events 120120 Fourth Fourth Avenue Avenue Department at [email protected] or (516) 747-4071. BayBay Shore, Shore, New New York York 11706 11706 (631) 666-2500 You can also visit our website at www.nassaubar.org to (631) 666-2500 download a journal ad form. We hope you will join us in www.longtuminellolaw.comwww.longtuminellolaw.com paying tribute to these deserving individuals.

8 May 2021 Nassau Lawyer FOCUS: Separate Property Considerations for Attorneys, MATRIMONIAL LAW and Working with a Forensic Accountant

these questions even if in existence, separate property, except to the extent the manner in which contributions the undertaking to establish legitimate that such appreciation is due in part resulted in the increase in value and separate property rights commences. to the contributions or efforts of the the amount of the value attributable The first question is how to define the other spouse; (4) property described to his/her efforts.2 property: marital property or separate as separate property by written 4. What records/documents might you property, both of which are defined in agreement of the parties pursuant to need to support the separate property the Domestic Relations Law. subdivision three of this part. Assets claim? These could include: acquired post-date of commencement a. Bank and brokerage statements Identifying Separate Property of a matrimonial action, such as b. Deeds and closing statements Andrea Brodie and Joseph Ammirati, CPA/ABV/CFF Pursuant to Domestic Relations post-commencement retirement c. Wills and trusts Law § 236 (B) (c), the term “marital contributions, will also be treated as the d. Estate or gift tax returns prospective client contacts property” shall mean all property separate property of the titled spouse. e. Incorporation documents you for a divorce consultation. acquired by either or both spouses The definition of marital property f. Pre-nuptial agreements During the consultation, you during the marriage and before the is broadly construed, including 5. What do you do when the party with Alearn that the prospective client came execution of a separation agreement or the rebuttable presumption that the burden of proof does not have all into the marriage with certain assets the commencement of a matrimonial commingling of assets or transmutation of the documents/records needed for and the parties accumulated significant action, regardless of the form in which of assets become marital assets. The tracing the separate property claim? assets during the marriage. The title is held, except as otherwise provided definition of separate property is Once you and your client have prospective client further represents that in agreement pursuant to subdivision narrowly construed. The statutory determined the asset(s) in question with certain of the assets accumulated during three of this part. Marital property presumption is that all property, unless a separate property claim or component the marriage are his/her separate shall not include separate property as clearly separate, is deemed marital and as you start to develop your strategy property. You anticipate that the spouse hereinafter defined. property, and the titled spouse has the for the case, the next decision is whether 1 will dispute the ownership of the alleged Section 236 (B) (d) defines the term burden to rebut that presumption. you will need to retain the services of a separate property assets, how they separate property as: (1) property The designation of an asset as a forensic accountant to help support the were acquired or appreciated during acquired before marriage or property marital asset does not automatically claim for separate property, particularly the marriage, the source of funds to acquired by bequest, devise, or descent, preclude a spouse from asserting a when the documentation trail is less than acquire, etc. or gift from a party other than the separate property claim against the pristine. If you and the client determine Assuming the prospective client spouse; (2) compensation for personal marital asset, but as the attorney, it is a forensic accountant would be helpful does not have a prenuptial agreement, injuries; (3) property acquired in critical to make this distinction early on to establish a separate property asset which may do little to help resolve exchange for or the increase in value of to best protect the client’s interest. or claim, here are some considerations Some of the more common separate depending upon the type of asset. property claims in a matrimonial action are: (1) residential or investment Business Interest properties, (2) retirement accounts, (3) If a business is being claimed as Lawyer Assistance cash and/or investment accounts, (4) separate property, a forensic account business or investment holding interests, will first want to know if the business Program (LAP) (5) deferred compensation awards (i.e., was owned prior the marriage and/or stock option or restricted stock awards), was it received via gift or inheritance. (6) disability pensions, and (7) separate The second question will be whether V I R T U A L E V E N T S C A L E N D A R property sold or exchanged to purchase there are documents available to new property. support ownership and the value of said UN/UNDEREMPLOYED As the attorney, it becomes incumbent asset and as of what date, i.e. date of GROUP upon you to start running through a marriage, date of gift, etc. checklist of sorts to determine how The first question is whether FIRST TUESDAY OF EVERY best to help the client establish an asset financial statements and/or tax returns MONTH AT 6:00 PM as separate property and/or assert are available. The IRS maintains a separate property claim against a historical tax returns for the past 6 Share professional struggles marital asset. This checklist should be years. Accountants typically maintain during this difficult time and part of the discussion as early as the accounting and tax records for the receive guidance from initial consultation. Some of the initial past 7 years. Next question, if the colleagues in a safe space. considerations should be as follows: business interest was obtained via a gift 1. Does this asset fall within the or inheritance, are gift tax returns or MINDFULNESS narrowly defined definition of estate tax returns available? Personal separate property as set forth tax returns may assist in identifying MONDAYS in Section 236(B)(d), or is this when certain business interests were potentially a separate property credit SECOND MONDAY OF against a marital asset? Was the asset See SEPARATE PROPERTY, Page 21 EVERY MONTH AT 6:00 PM passively or actively managed during Andrea M. Brodie is the marriage? Will there be an a Partner at Abrams, Mindfulness is a proven Fensterman, Fensterman, technique in the elimination appreciation claim? Eisman, Formato, Ferrara, 2. What valuation date(s) will you Wolf & Carone, LLP in of stress, anxiety, and Lake Success, practicing depression. Join us as we want to use? Date of trial, date of in the Family and commencement, or some date in Matrimonial Law group. explore a variety of She can be reached mindfulness techniques. between? Particularly with current at (516) 328-2300 or actions, how does the COVID-19 [email protected]. pandemic potentially impact the valuation, especially if the asset is a Joseph Ammirati, CPA/ABV/CFF, is a Director at Empire Valuation Consultants in Hauppauge. He T O R E G I S T E R , C O N T A C T B E T H E C K H A R D T A T business interest? has performed valuations of business interests for 3. Who has the burden of proof to a variety of purposes, including family law matters, E E C K H A R D T @ N A S S A U B A R . O R G O R ( 5 1 6 ) 2 9 4 - 6 0 2 2 . estate and gift tax matters, business damages, establish the separate property claim? corporate litigation and shareholder disputes He If there is an appreciation claim, the can be reached at [email protected] or non-titled spouse must demonstrate (631) 719-3258. Nassau Lawyer May 2021 9 FOCUS: Wasteful Dissipation Claims Concerning MATRIMONIAL LAW Spousal Maintenance in a COVID Economy

dissipation of marital property, including unemployment, or a downturn in Impact of Wasteful Dissipation on transfers or encumbrances made in business. Any historical lifestyle analysis Spousal Maintenance contemplation of a matrimonial action that is going to be utilized to establish a Assuming a wasteful dissipation is without fair consideration.” dissipation claim must take these factors established by the requisite burden Under the right circumstances, into account. of proof (i.e., a “preponderance of application of this frequently overlooked the evidence),”9 the court must still factor can make a compelling case for “Separate Property” Defense determine how such fi nding should a deviation, either up or down, from The “wasteful dissipation” maintenance impact spousal support. Wasteful the statutory maintenance guidelines deviation factor expressly applies only to dissipation can be remedied in the Joseph A. DeMarco calculation. the wasteful dissipation of marital assets— equitable distribution context by our client’s husband shut down What Conduct Rises to the Level of not separate property assets. compensating and making the aggrieved his commercial construction “Wasteful Dissipation?” Accordingly, under a plain reading of party whole through an unequal business last spring, shortly after What constitutes a “wasteful the statute, proof by the off ending party property distribution. theY onset of the COVID-19 pandemic. dissipation” of assets on the one that the dissipated assets were his or However, this compensatory remedy During the past year he has focused hand, versus ordinary lifestyle and her separate property would provide a would not appear to be applicable to much of his time on trading in his online discretionary spending, or simply an defense to the claim, and would prevent the maintenance determination. While investment account, which has seen wild there are few reported cases addressing imprudent fi nancial decision on the application of this deviation factor when swings, resulting in tens of thousands the application of the wasteful other? Courts have great discretion in determining maintenance. However, of dollars in “paper” gains and losses determining what conduct constitutes dissipation factor for purposes of depending on the particular day. Your there is authority for considering spousal maintenance, the remedy would “wasteful dissipation,” and the overall wasteful dissipation of separate property client, who does not work, has continued circumstances and context in which the when there is evidence of “egregious See WASTEFUL, Page 23 to spend in the same manner as she did particular conduct occurs must be taken prior to the pandemic and closure of economic fault in mismanaging, into account. Joseph A. DeMarco dissipating and wasting separate assets” her husband’s business. As a result, the For example, excessive spending is a partner at the matrimonial law parties have amassed signifi cant debt on activities such as fl ying and based on an application of the statutory 7 fi rm Schlissel Ostrow by the time the matrimonial action is snowmobiling was not considered catchall “just and proper factor.” Karabatos, PLLC in commenced in April, 2021. wasteful dissipation where the entire Also note that a court could impute Garden City. Does either party’s conduct constitute family enjoyed the activities,1 but where income to a party for maintenance a “wasteful dissipation” of assets? If so, a wife “developed a shopping problem” purposes where the dissipation of how does a fi nding that a party engaged and made over $30,000 in purchases separate property assets results in a in wasteful dissipation impact a claim for from television shopping channels, the reduction in income.8 spousal maintenance? Does the wife’s Court found she wastefully dissipated own continued spending, in the face of marital assets.2 A husband’s post- a reduction in family income, constitute commencement spending on a girlfriend a wasteful dissipation? What if the and their child (who was conceived construction business and/or the stock during the marriage and born during the account were the husband’s pre-marital litigation) and minor gambling did not separate property? Can a wasteful rise to the level of a wasteful dissipation.3 Tax Defense & Litigation dissipation of separate property impact a Nor did a refusal to refi nance a mortgage maintenance determination? These are on the marital home.4 just some of the questions with which On the other hand, where there matrimonial attorneys must grapple was “overwhelming” evidence in the when faced with facts similar to those set form of investment account statements forth above. and records from casinos indicating Looking at Wasteful Dissipation that a husband engaged in extensive Beyond the Equitable Distribution gambling over a number of years, Factor incurring signifi cant debts and depleting substantial assets that would otherwise Wasteful dissipation claims are most have been suffi cient to support the often raised in the context of equitable parties at their prior lifestyle indefi nitely, distribution where a party seeks to claw- the Court found dissipation.5 back assets that have been squandered Dissipation claims have also been or diverted during the marriage, or as successful where there is evidence of a basis for obtaining a greater share of mismanagement of assets or a business, Harold C. Seligman has been a member of the whatever remains in the marital estate. including the closing of a profi table Indeed, among the statutory factors business.6 Assessing whether a business United States Tax Court since 1987. that the court must consider when owner’s conduct is wasteful dissipation He has represented individual and corporate clients determining equitable distribution is may be more challenging under the in hundreds of tax cases, both large and small, “the wasteful dissipation of assets by current climate of rapidly changing over the past 30 years against the IRS and New York either spouse.” In addition, though business and economic conditions. State Department of Taxation and Finance. infrequently utilized by matrimonial The caselaw demonstrates that practitioners and seldomly addressed context is crucial when assessing a in appellate decisions, wasteful wasteful dissipation claim, and the dissipation claims are also relevant to impact of the COVID-19 pandemic Long Tuminello, LLP determinations of spousal maintenance. should now also be considered. Business 120 Fourth Avenue Thus, pursuant to the spousal decisions that impact income or Bay Shore, New York 11706 maintenance factors set forth in the valuation must be viewed in context. (631) 666-2500 Domestic Relations Law, courts have What may have once been considered the authority to deviate from the ordinary, discretionary spending in www.longtuminellolaw.com guideline maintenance calculations the pre-pandemic economy may now (temporary and post-divorce) based be considered wasteful dissipation for on a consideration of “the wasteful a family experiencing health issues, 10 May 2021 Nassau Lawyer FOCUS: Stop Wasting Marital Savings on Interim MATRIMONIAL LAW Counsel Fee Applications

the non-monied spouse paid, Domestic hand, the more affluent spouse steps to avoid deciding interim counsel Relations Law § 237(a) was amended should not be treated as an open- fee applications altogether. Judges in 2010 to purportedly ensure a level ended checkbook expected to pay could follow the lead taken by Special playing fi eld in divorce litigation. Now for exorbitant legal fees incurred Referee John Montagnino in Freihofner the “less monied” is presumptively by the less affl uent spouse through v. Freihofner, where he awarded the wife entitled to an award of interim counsel excessive litigation or the assertion an advance against her prospective fees, though courts may address the of unreasonable positions.1 equitable distribution pending resolution situation as justice dictates: Justice Scheinkman went on to explain of who was ultimately responsible for In exercising the court’s discretion, litigation costs: Peter J. Galasso that an “assessment of litigiousness” may the court shall seek to assure that even require a hearing, which would It would be inappropriate at this time each party shall be adequately for the Court to make any comment All too frequently, divorce actions veer necessarily elongate the action and represented and that where fees with regard to who should ultimately off the tracks that would otherwise lead errantly grow the parties’ counsel fees. and expenses are to be awarded, be required to shoulder this burden. to an expeditious resolution. The reason Although some commentators have they shall be awarded on a timely And so, as an accommodation, the is the confl ict that often occurs over how suggested that the standard of proof basis, pendente lite, so as to enable Court has made the instant directive the needy spouse’s attorney will be paid required to entitle a needy spouse to an adequate representation from the that defendant advance certain monies during the pendency of the action. award of interim counsel fees should commencement of the proceeding. in equitable distribution in order to The tension created by that single be limited to establishing the movant’s allow plaintiff to continue to be “process” issue is ordinarily grounded Despite the needy-spouse inability to pay her own counsel fees represented in this proceeding.5 in the monied spouse’s belief that it is presumption, the myriad issues and should not contemplate or permit counterintuitive to voluntarily supply complicating the resolution of interim an inquiry into the merits of the needy The only problem with the ammunition to one’s mortal enemy. This Section 237(a) applications were spouse’s position,2 decisions like Kaufman Freihofner decision is that the Special article seeks to point the matrimonial recently and ably summarized by the continue to support the converse notion. Referee’s non-decision was rendered bar and the judiciary in the most former Presiding Justice of the Second Advantages of Interim Awards in response to motion practice, rather pragmatically benefi cial direction to Department, Alan Scheinkman, in than in lieu of motion practice. That solve this problem and thereby enable Kaufman v. Kaufman: While that debate rages on, other problem can be easily remedied by divorcing couples to reduce the cost of A less-monied spouse should not be commentators have pointed to decisions a collaboration between counsel and litigating while they focus on addressing expected to exhaust or spend down of noted jurists like Monroe County’s the court to add language to the their substantive issues. a prospective or actual distributive Justice Richard A. Dollinger’s in Kinney parties’ preliminary conference order 3 award in order to pay counsel v. Kinney. Justice Dollinger reserved establishing a fund to pay the parties’ Judicial Discretion Under DRL § 237 fees as the result of unreasonable the right to reallocate fees after trial to counsel fees and forbidding interim To combat the monied spouse’s or excessive litigation conduct by ensure equitable distribution: counsel fee applications. disinterest in getting the counsel fees of the adverse party. On the other This award still leaves the husband with a ‘horse in the race’— Planning Ahead in the his exposure to additional fees Preliminary Conference Order FREE CONFIDENTIAL* during the trial and the potential for In most contested divorces, the reallocation of fees against his interest Preliminary Conference is a critical HELP IS AVAILABLE after trial—that should nose him— but too often a neglected opportunity and his soon-to-be ex-wife (who to prudently chart the trajectory of a faces the same choices)—closer to case. At the Preliminary Conference, The NCBA Lawyer Assistance Program offers professional the fi nish line.4 in addition to ensuring that the parties and peer support to lawyers, judges, law students, and their Spending limited marital savings collaborate in maintaining the pre- immediate family members who are struggling with: on interim attorney fee applications commencement status quo, the parties is commonly driven by the parties’ must be instructed by the Court to identify the marital accounts to be used Alcohol Drugs Gambling Mental Health Problems displaced aggression. Clients see it as a fi ght where compromise constitutes to pay the parties’ counsel fees. capitulation. That is why judges Pursuant to the Court’s inherent YOU ARE NOT ALONE who successfully discourage or avoid power to advance the parties a portion pendente lite motion practice under of their equitable distribution to pay 6 Section 237 deserve ample praise. their own counsel fees, the Court must Augmenting the fi nancial waste, then order that those funds remain interim counsel fee applications also segregated and be used to pay the tend to elevate the parties’ temperature, counsel fees of both parties, subject to as their attorneys meticulously craft reallocation after trial. In that way, no derogatory passages about the other nasty attorney fee motions will need to spouse in their supporting papers to be made and no interlocutory appeals justify an award. That move inevitably will need to be taken. At the end of the invites an even more vituperative case, and after all the facts are in, the response. This dance always represents Court can decide whether one party a turn for the worse. In disbelief over an should bear a portion of the other (888) 408-6222 adverse decision, an irate and dissatisfi ed party’s counsel fees, if the parties cannot spouse may then choose to appeal or otherwise agree. [email protected] perhaps move to renew and reargue, all See MARITAL SAVINGS, Page 22 over the payment of the interim counsel fees. Indeed, the litigation cacophony Peter J. Galasso is a Partner The NCBA Lawyer Assistance Program is directed by Beth Eckhardt, PhD, and the Lawyer stirred up over the payment of interim at Galasso & Langione, Assistance Committee is chaired by Jacqueline A. Cara, Esq. This program is supported by grants LLP and a Fellow to the from the WE CARE Fund, a part of the Nassau Bar Foundation, the charitable arm of the Nassau counsel fees can be literally deafening Academy of American County Bar Association, and NYS Office of Court Administration. and must, therefore, be pragmatically Matrimonial Lawyers. He *Strict confidentiality protected by § 499 of the Judiciary Law. can be reached at and permanently silenced. [email protected]. Rather than engage in motion practice Thank you to Lea Moalemi, Nassau County Bar Association ncba_lawyersassistance to test a jurist’s bent on the interim associate at the fi rm, who Lawyer Assistance Program assisted in the preparation counsel fee issue, the best solution is of this article. NASSAUBAR-LAP.ORG for the court to take more proactive Nassau Lawyer May 2021 11 FOCUS: Impact of COVID-19 on the Mental Health MENTAL HEALTH LAW Legal and Clinical Systems

units to convert them into COVID units, process disrupts the therapeutic alliance offi ces and clinics were forced to signifi cantly reducing the availability of between the patient and the psychiatric close at the height of the pandemic. psychiatric beds in New York. Staff and treatment team and interrupts the Staffi ng shortages, insuffi cient funding physicians from many units, including patient’s treatment. to implement safety protocols, and a psychiatry, were redeployed to treat the Last, but certainly not least, COVID- host of other reasons prevented many massive infl ux of COVID-19 patients. 19 impacted the treatment team’s outpatient mental health providers Staffi ng shortages due to illness, caring ability to plan for a safe discharge from safely off ering services. Some for loved ones, or observing quarantine from the hospital. Social workers, patients may have been unable to obtain protocols, only exacerbated these issues. staff , and physicians generally rely medication or visit providers, leading Carolyn Reinach Wolf and Jamie A. Rosen Hospitals immediately implemented upon referrals to outpatient clinics and to an increase in non-compliance and 6 he COVID-19 pandemic posed new safety protocols and procedures, psychiatrists for follow up appointments emergency room visits. including on their psychiatric units, unprecedented challenges for in the community after discharge, but See MENTAL HEALTH, Page 25 the fi eld of psychiatry, disrupting if they remained open. Emergency many closed or signifi cantly reduced Carolyn Reinach Wolf is Tthe clinical services available to those departments began to require rapid their services during the pandemic. an Executive Partner in individuals suff ering from mental illness testing to determine COVID-19 status This posed a very serious problem the law fi rm of Abrams, before admission. Requirements of facial Fensterman, Fensterman, and their loved ones who often seek for individuals requiring follow up Eisman, Formato, Ferrara, assistance on their behalf. Under normal masks and other personal protective appointments for therapy and the Wolf, & Carone, LLP and circumstances, it is extremely diffi cult equipment, practicing social distancing, administration of medication in the Director of the fi rm’s and changing visitation policies became unique Mental Health to watch a loved one suff er, refuse or community. Law practice. She serves discontinue treatment, disconnect from the new normal in hospitals, including on the Lawyer Assistance on psychiatric units. Group activities, Psychiatric Care in the Community Committee of the their support system, and relapse or NCBA. She may be deteriorate. The COVID-19 pandemic group therapy, and congregate meals COVID-19 has required reached via email at has only exacerbated these struggles, were limited or eliminated. Many of unprecedented changes in the provision [email protected]. aff ecting access to inpatient treatment these protocols still exist to date. of psychiatric care in the community. Jamie A. Rosen is a and outpatient mental health resources The legal system, which is so closely Without clear guidelines, mental Partner at Abrams, intertwined with the provision of Fensterman, LLP where and, at times, impeding the ability health and healthcare professionals she practices Mental to simply visit a loved one to provide inpatient psychiatric services, also worked had to adapt their practices to provide Health Law. She serves tirelessly to adjust court operations and on the Board of Directors support or necessary intervention. quality care to the already vulnerable of the NCBA and was the Moreover, the rapid spread of implement safety protocols in the fi rst population of people with serious founding Co-Chair of the this highly contagious disease, the few days and weeks of the State of mental illness. NCBA Mental Health Law Emergency. Mental hygiene legal matters Committee. She may be resulting economic recession, and the Unfortunately, as mentioned earlier, reached via e-mail at death of close friends or family has in New York that aff ect the rights of many facilities, medical or professional [email protected]. resulted in a host of mental health patients on inpatient psychiatric units 3 consequences for even the healthiest have been considered essential. of individuals: feelings of uncertainty, The Mental Hygiene Parts were some sleep disturbances, anxiety, distress, of the fi rst in the State to transition to depression, and increased levels of virtual hearings even before Governor alcohol or drug use. The restrictive Cuomo issued an Executive Order measures such as quarantining, isolation, mandating telecommuting or “work 4 LOWER COST and social distancing have caused from home” procedures. The courts psychological distress for everyone. and the hospitals made immediate and Over the past year, psychiatrists and signifi cant operational changes when MEDIATION AND other mental health professionals have judges, court staff , lawyers, doctors, faced unique challenges including caring and patients could no longer attend for patients who suff er from serious in-person court proceedings. Hearings ARBITRATION mental illnesses and test positive for for the retention of psychiatric patients, COVID-19, as well as taking measures treatment over objection and Kendra’s to prevent the spread of infection. Law applications for Assisted Outpatient In the outpatient world, the practice Treatment, among others, transitioned Through the Nassau County Bar Association of psychiatry has transformed as somewhat seamlessly to our new virtual many clinics, healthcare offi ces, and world, with everyone participating from Expeditious, time-saving, and cost-effective solutions therapists closed their doors to in-person remote locations. to resolve disputes that might otherwise be litigated In some cases, where a psychiatric treatment. Telehealth and telepsychiatry, in court which previously accounted for a very patient tests positive for COVID-19, the small portion of mental health services, hospital might not have the staff or space has become the new norm. to accommodate the patient and must Available to the public as well as to all legal transfer him/her to a medical unit or professionals Inpatient Hospitalization even to another psychiatric facility. This Hospitals off er a safe setting for requires diligent record keeping and the mental health treatment including execution of certain legal documents Reasonable fees that are less expensive than other observation, diagnosis, therapy, and to eff ectuate such a transfer and limit alternative dispute resolution providers medication management.1 However, any potential liability. Further, court the COVID-19 pandemic signifi cantly orders obtained by a hospital for the Mediators and arbitrators are highly skilled attorneys impacted the provision of clinical administration of psychiatric medication services and required major legal, over a patient’s objection5 do not follow admitted to the New York Bar for a minimum of 10 regulatory, and procedural changes. that patient when he/she is transferred years, as well as screened and approved by the NCBA In early 2020, especially by the time to another facility. This means that Judiciary Committee. Governor Andrew Cuomo had declared the accepting hospital will have to 2 a State of Emergency, most hospitals re-evaluate the patient’s compliance For rules, applications, and additional information, were overwhelmed with patients in need with treatment and apply to the court please call (516) 747-4126. of emergency care due to COVID-19. again for continued treatment over the Some hospitals closed their psychiatric patient’s objection. Unfortunately, this 12 May 2021 Nassau Lawyer FOCUS: We Consult No Common Oracle But…the NCBA BYLAWS COMMITTEE Bylaws

Black’s Dictionary defi nes bylaws as: History of the NCBA Bylaws Director (Six Sections) Article IV – Meetings of the Regulations, ordinances, rules or While the exact date and author Association (Five Sections) laws adopted by an association of the NCBA bylaws is unknown, the wonderful publication entitled: A Toast Article V – Nominations and or corporation or the like for its Elections (Six Sections) to Domus, the Legacy of the Nassau County internal governance. Bylaws defi ne Article VI – Committees (Four Bar Association, does shed light on the the rights and obligations of various Sections) timeframe that the bylaws were written officers, persons or groups within Article VII – Grievance Committee and narrows the likely authors to one (Two Sections) Daniel W. Russo the corporate structure and provide or several of the 17 charter members. Article VIII – Judiciary Committee rules for routine matters such as According to A Toast to Domus, it is likely (Nine Sections) ecoming Secretary of the calling meetings and the like.1 that the bylaws were authored between Nassau County Bar Association Article IX – Sections (Three January 18, 1899 (when the fi rst meeting has been one of the highlights Well-written bylaws should defi ne the Sections) to organize the Nassau Bar County B governing structure with the purpose of Article X – Amendments (Three of my career. The new position comes Association was held) and March 2, with new relationships, new priorities maintaining consistency in the operation Sections) 1899 (when the formation of the NCBA and, of course, new responsibilities. of the organization. Bylaws should Article XI – Effective Date (One was formalized and the bylaws were One of the responsibilities I was Section) address matters like the size and function adopted).3 advised to begin immediately was to of the Executive Board and Board of Over the last 122 years, the NCBA A great example of the bylaws being familiarize myself with the Nassau Directors, the frequency of leadership Bylaws have been amended many times amended to refl ect these unsettling County Bar Association Bylaws. elections, the rules for governing elections, to refl ect the changing times of the legal times was an amendment approved As Secretary, you are the de facto the terms and duties of elected offi cers, profession and society. For example, on by the Board of Directors at the April chairperson of the Bylaws Committee 2020 Board Meeting and adopted at and the frequency of meetings held March 15, 1962, the NCBA Board of and, while the committee does not meet the annual meeting in May 2020. The within the association.2 While bylaws Directors voted to amend the bylaws to regularly like other committees, you are amendment authored by the Bylaws need not address every potential issue give the Judiciary Committee the power often called upon to consult on issues, such to recommend candidates for judgeships Committee allowed for meetings that may arise within an organization, as NCBA elections, committee and task as opposed to simply rating candidates (monthly or Special) of the Executive they must provide the internal framework force formations, budget issues and public already nominated. This action was Committee and the Board of Directors positions the NCBA may be asked to take for addressing anything that may come taken to comply with then Governor through electronic means. The on a variety of political and social issues. leadership’s way. Rockefeller’s wish to have local county amendment was passed in anticipation bar associations recommend candidates of what was thought by many to be an impending yet brief suspension of for new judgeships.4 in-person meetings. Thankfully, the Today, Article VIII of the NCBA NCBA leadership had the foresight to bylaws governs the procedures for the do so as we remain, over one year later, Judiciary Committee. Article VIII is a conducting almost all NCBA business comprehensive framework regulating virtually. every aspect of the Judiciary Committee In conclusion, like many similar from who can serve on it, to the documents that provide the architectural qualifi cations a member should consider framework for an association such as when determining if a candidate is the Nassau County Bar Association, qualifi ed to sit as a judge. It is one of the bylaws that govern must be treated many Articles in our bylaws that evolved as a living, breathing document with over time to refl ect the ever-changing the ability to change with and embrace profession of practicing law. the times in which we live. The NCBA Today’s NCBA Bylaws Bylaws are consulted often and, when As the NCBA has grown and evolved necessary, amended to better the Association’s almost 5,000 members and in its 122 years of existence, so has the the rest of those attorneys that practice bylaws that govern the Association. law in Nassau County. Currently, the bylaws are comprised of 11 separate Articles, each containing 1. See Black’s Law Dictionary (6th ed. 1990). multiple sections and sub-sections. 2. Making Sure Your Bylaws Are on Point (https:// gbq.com/making-sure-your-bylaws-are -on-point-2) Each Article governs a specifi c category, (2016). detailing the rules and procedures 3. See A Toast to Domus, the Legacy of the Nassau County Bar Association. Immediate Past President Rick Collins for that topic. For example, Article I – initiated this project when he was the Secretary, Need to place a Public Notice ad Membership, consists of eight sections and the book was completed during his term as and multiple sub-sections throughout. President. It is a wonderful history of our beloved NCBA and those who worked tirelessly to complete in Nassau or Suffolk counties? This Article details with specifi city the it deserve the entire NCBA’s appreciation. Each Our weekly rates start at 39.5 cents per line! diff erent classifi cations of membership, person is properly acknowledged by Past-President a member’s rights and privileges, Collins on page three of the publication. 4. See A Toast to Domus, citing several local newspaper Please be advised that effective immediately the deadline for memberships fees and disciplinary articles reporting on the amendment. submissions will be at 12:00pm on Monday for Friday editions. procedures for removing a member. This Daniel W. Russo is a Article was amended under President partner at Foley Griffi n, LLP and the current NCBA Elena Karabatos to include non- Secretary. attorney membership categories. The additional Articles of the Bylaws with similar specifi city are as follows: If you have any questions please call Robin Burgio Article II – Board of Directors 631.737.1700 or email [email protected] (Eight Sections) Article III – Offi cer and Executive Nassau Lawyer May 2021 13 FOCUS: Nixon Before the Bench: The Supreme LAW AND AMERICAN CULTURE Court and Richard Nixon

the prize defeating Hubert Humphrey be deceiving. Pompous and shallow, frequently with his Chief. The turning and George Wallace. His mantra that Burger proved ineff ective. He had the point in Blackmun’s tenure came with year was ‘law & order,’ blaming the infuriating habit of switching his vote in Roe v. Wade (1973).10 Warren Court for the dislocations then conference. This was so he could control After Roe, Blackmun started charting running rampant in America. the assigning of opinions, much to the his own path. He began siding Nixon v. Warren Court consternation of his colleagues. consistently with Bill Brennen as Thanks to Abe Fortas, another opposed to Warren Burger. By the time Nixon, ironically, was sworn in opening became available in 1969. It of his retirement, Blackmun led the by his bête noire Chief Justice Earl was revealed that Fortas ill-advisedly court’s liberal wing and was succeeded Rudy Carmenaty Warren. Long-standing intermural- accepted renumerations from by Stephen Breyer, a Clinton appointee. Republican rivals in California, Warren fi nancier Louis Wolfson. The ensuing The retirements of Hugo Black and n August 9, 1974, Richard didn’t support Nixon in his 1950 Senate Nixon resigned the presidency. embarrassment forced Fortas to resign John Marshall Harlan created two race. At the 1952 GOP Convention, Facing impeachment and his seat under public pressure. additional vacancies in 1971. Black, Nixon worked to secure for Eisenhower the intellectual leader of the Warren Oremoval from offi ce, his departure was To replace Fortas, Nixon sequentially the California delegation undermining nominated two Southern federal appeals era, had been placed on the court by triggered by a decision from the United Warren’s candidacy. court judges, Clement Haynsworth Franklin Roosevelt in 1937. Harlan, States Supreme Court. Ultimately, it Warren at that point got behind of the Fourth Circuit and G. Harrold who was nominated by Eisenhower, was the Court who determined his fate Ike. Nixon was named Eisenhower’s Carswell of the Fifth Circuit. Both and Nixon, in-turn, left his mark on running-mate and Warren was promised men were denied confi rmation. Harry See NIXON, Page 26 American jurisprudence. the “fi rst vacancy” on the Supreme Blackmun was appointed and confi rmed Nixon is an infi nitely fascinating Court.6 When Chief Justice Fred Vinson Rudy Carmenaty serves in 1970. as a Bureau Chief in the historical personality. He should be died, Warren held Ike to his promise, Amusingly, Nebraska Senator Roman Offi ce of the Nassau remembered for more than just being and was nominated in 1953. Eisenhower County Attorney, is Hruska actually defended Carswell’s bid the Director of Legal “Tricky Dick.” At his 1994 memorial considered Warren’s appointment his by endorsing mediocrity: Even if he were Services for the Nassau service, Senator Bob Dole remembered biggest mistake. County Department the late president as “the largest fi gure of Warren ushered in a legal revolution, mediocre, there are a lot of mediocre judges and of Social Services, and the Language Access our time,” calling the post-war era the beginning with Brown v. Board of people and lawyers. They are entitled to a little 1 9 Coordinator for the “Age of Nixon.” Perhaps Dole was right. Education.7 Nixon supported the Brown representation, aren’t they, and a little chance? Nassau County Executive. Blackmun had served on the Eighth He is also Vice-Chair of Political Outsider Enters the Fray decision, having witnessed segregation the NCBA Publications up-close when he attended Duke. As Circuit. Burger and Blackmun were Committee and Diversity As a child, Nixon told his mother: vice-president, he backed the 1957 best friends and were initially tagged the and Inclusion Committee. “I would like to become a lawyer-an honest Civil Rights Act. Later as president, he ‘Minnesota Twins.’ Serving from 1970 lawyer, who can’t be brought by crooks.”2 In desegregated Southern schools. until 1994, Blackmun at the outset voted the eighth grade he wrote: “I would like to During the next decade, the Warren study law and enter Politics, for an occupation Court issued landmark decisions in so that I can be of some good for the people.”3 criminal procedure (Escobedo v Illinois, Nixon attended Duke Law School LAW YOU SHOULD KNOW Miranda v Arizona)8 Appealing to the on scholarship. He made law review, ‘Silent Majority,’ Nixon saw his path to On 90.3 FM WHPC graduating third in the class of 1937.4 power. As crime rose and civil unrest Hosted by Kenneth J. Landau, Esq. He was admitted to the California mounted, many Americans blamed the Celebrating 30 Years! Bar, practicing in a small-town law turmoil on the permissiveness of the For Voicestream or PODCAST go to www.NCCradio.org offi ce in Whittier before naval service courts. during World War II. After the war, he Wednesday, May 5, 2021 embarked on a political career. Nixon’s Justices Returning to the Workplace After a Break at 3:00 PM Nixon entered Congress as a fervent Nixon pledged to appoint ‘strict cold warrior. He would serve in the constructionists.’ He would make a total Wednesday, May 12, 2021 Senate and as Dwight Eisenhower’s vice- Choosing and Using a Divorce Attorney of six appointments to the Supreme at 3:00 PM president. As president, Nixon’s most Court, two of which were rejected by notable achievement was establishing the Senate. Having run against judicial Wednesday, May 17, 2021 a rapprochement with China. But his Be Less Boring in Your Writing and Marketing activism, Nixon sought to shift the Court at 3:00 PM White House years were polarizing, in a conservative-leaning direction. He dominated fi rst by Vietnam and later Wednesday, May 26 , 2021 was not entirely successful. The Asian American Bar Association of New York consumed by Watergate. Nixon entered offi ce with a vacancy at 3:00 PM He lost his fi rst bid for the presidency pending. Warren had retired in 1968 Wednesday, June 2, 2021 to John Kennedy. Awkward and ill at so Lyndon Johnson could appoint Avoiding Conflict When You Plan An Estate ease, Nixon was insecure, resentful. his successor. LBJ chose Associate at 3:00 PM Snubbed by the establishment whose Justice Abe Fortas. Although the Wednesday, June 9, 2021 approval he craved, his relations with Democrats controlled the Senate, Fortas’ Minimizing Conflict When You Handle An Estate the press were strained. His untelegenic nomination was fi libustered. A lame at 3:00 PM performance in the 1960 presidential duck, LBJ left the vacancy to be fi lled by Wednesday, June 16, 2021 debate may have cost him the election. the next president. Cyber Security Tips for Law Firms After losing the 1962 California Nixon selected Warren Burger, a at 3:00 PM Governor’s race, he was written-off judge on the DC Circuit Court of politically. At his ‘last press conference,’ Appeals, as the fi fteenth Chief Justice GUESTS WANTED he griped “you won’t have Nixon to kick (1969 to 1986). A critic of Warren Contact us at [email protected] if you would like to discuss an around anymore.”5 Nixon moved to Court decisions, Burger favored a interesting/important aspect of the law. Manhattan for a fresh start, using far more restrictive reading of the his New York law practice as the Constitution. The Burger Court was a springboard back to high offi ce. mixed bag rendering conservative and CLE OFFERED *You can earn CLE by listening to broadcast, podcast (or purchasing CDs) He became the Republican leader liberal rulings. of these shows. Check with the Nassau Academy of Law for details. in waiting. Nixon supported Barry Senator Everett Dirksen noted Goldwater in 1964 and congressional Burger looked, sounded, and acted like Visit www.nassaubar.org or call (516) 747-4464. candidates in 1966. In 1968, Nixon won a chief justice, but appearances can 14 May 2021 Nassau Lawyer

Pre-registration is REQUIRED for all Academy programs. Go to nassaubar.org and click on CALENDAR OF EVENTS to register. CLE material, forms, and zoom link will be sent to pre-registered attendees 24 hours before program. All programs will be offered via ZOOM unless otherwise noted.

May 5, 2021 May 18, 2021 May 27, 2021 Dean’s Hour: Nixon Before the Bench: The Supreme Dean’s Hour: Understanding and Implementing the Dean’s Hour: Everything You Need to Know About Court and Richard Nixon New Power of Attorney Law Becoming a Judge: Part 1 Program sponsored by NCBA Corporate Partner Program sponsored by NCBA Corporate Partner With the Franklin H. Williams Judicial Commission Champion Office Suites and Nota by M&T Bank Champion Office Suites and Encore Luxury Living 12:00-2:00PM 12:30-1:30PM 12:30-1:30PM 2 credits in professional practice 1 credit in professional practice 1 credit in professional practice Part 1 will cover Securing the Nomination; Evaluation Process May 6, 2021 Skills credits are available for newly admitted Business of Law Lecture Series presents: Law Firm attorneys Management: Opportunities Presented During COVID- May 27, 2021 19 May 19, 2021 Fragility of Legal Systems: Lawyers and Law in Nazi Program sponsored by NCBA Corporate Partner Dean’s Hour: Fireside Chat with Hon. Gail A. Germany Champion Office Suites and Nota by M&T Bank Prudenti With the NCBA Diversity and Inclusion Committee and 5:30-7:00PM Program sponsored by NCBA Corporate Partner the Jewish Lawyers’ Association of Nassau County 1.5 credits in professional practice Champion Office Suites and Nota by M&T Bank Program sponsored by the Jewish Lawyers’ Association *Zoom networking will precede the program from 5:00- 12:30-1:30PM of Nassau County 5:30PM 1 credit in professional practice 5:30-7:00PM **Program coordinated with Assigned Counsel 1 credit in ethics May 7, 2021 Defenders Plan Inc of Nassau County Dean’s Hour: Pathways to Legalization for June 2, 2021 Undocumented Immigrants Program sponsored by NCBA Corporate Partner May 26, 2021 Dean's Hour: Lyndon Johnson and the Paradox of Champion Office Suites and Nota by M&T Bank Dean’s Hour: Serving Those Who Served: Cultural Legislative Power 12:30-1:30PM Competency—Interviewing and Communicating Program sponsored by NCBA Corporate Partner 1 credit in professional practice with Veteran Clients Champion Office Suites and Nota by M&T Bank Skills credits are available for newly admitted attorneys Program sponsored by NCBA Corporate Partner 12:30-1:30PM **Program coordinated with Assigned Counsel Champion Office Suites and Nota by M&T Bank 1 credit in professional practice Defenders Plan Inc of Nassau County 12:00-1:00PM 1 credit in professional practice RECENTLY ADDED CLE ON DEMAND May 14, 2021 Skills credits are available for newly admitted Dean’s Hour: Get the 411 on the 420: Legalized attorneys Marijuana in New York MAR. What is New in New York Elder Care For 2021 **Program coordinated with Assigned Counsel Date of program: March 24, 2021 Program sponsored by NCBA Corporate Partner 24 Defenders Plan Inc of Nassau County 1 credit in professional practice Champion Office Suites and Nota by M&T Bank

12:00-1:00PM 12 free credits of On-Demand are included with your membership in 1 credit in professional practice addition to unlimited live/Zoom CLE offered by the Academy and NCBA Skills credit available for newly admitted attorneys Committees for the current membership year. Nassau Lawyer May 2021 15

Pre-registration is REQUIRED for all Academy programs. Go to nassaubar.org and click on CALENDAR OF EVENTS to register. CLE material, forms, and zoom link will be sent to pre-registered attendees 24 hours before program. All programs will be offered via ZOOM unless otherwise noted.

May 5, 2021 May 18, 2021 May 27, 2021 Dean’s Hour: Nixon Before the Bench: The Supreme Dean’s Hour: Understanding and Implementing the Dean’s Hour: Everything You Need to Know About Court and Richard Nixon New Power of Attorney Law Becoming a Judge: Part 1 Program sponsored by NCBA Corporate Partner Program sponsored by NCBA Corporate Partner With the Franklin H. Williams Judicial Commission Champion Office Suites and Nota by M&T Bank Champion Office Suites and Encore Luxury Living 12:00-2:00PM 12:30-1:30PM 12:30-1:30PM 2 credits in professional practice 1 credit in professional practice 1 credit in professional practice Part 1 will cover Securing the Nomination; Evaluation Process May 6, 2021 Skills credits are available for newly admitted Business of Law Lecture Series presents: Law Firm attorneys Management: Opportunities Presented During COVID- May 27, 2021 19 May 19, 2021 Fragility of Legal Systems: Lawyers and Law in Nazi Program sponsored by NCBA Corporate Partner Dean’s Hour: Fireside Chat with Hon. Gail A. Germany Champion Office Suites and Nota by M&T Bank Prudenti With the NCBA Diversity and Inclusion Committee and 5:30-7:00PM Program sponsored by NCBA Corporate Partner the Jewish Lawyers’ Association of Nassau County 1.5 credits in professional practice Champion Office Suites and Nota by M&T Bank Program sponsored by the Jewish Lawyers’ Association *Zoom networking will precede the program from 5:00- 12:30-1:30PM of Nassau County 5:30PM 1 credit in professional practice 5:30-7:00PM **Program coordinated with Assigned Counsel 1 credit in ethics May 7, 2021 Defenders Plan Inc of Nassau County Dean’s Hour: Pathways to Legalization for June 2, 2021 Undocumented Immigrants Program sponsored by NCBA Corporate Partner May 26, 2021 Dean's Hour: Lyndon Johnson and the Paradox of Champion Office Suites and Nota by M&T Bank Dean’s Hour: Serving Those Who Served: Cultural Legislative Power 12:30-1:30PM Competency—Interviewing and Communicating Program sponsored by NCBA Corporate Partner 1 credit in professional practice with Veteran Clients Champion Office Suites and Nota by M&T Bank Skills credits are available for newly admitted attorneys Program sponsored by NCBA Corporate Partner 12:30-1:30PM **Program coordinated with Assigned Counsel Champion Office Suites and Nota by M&T Bank 1 credit in professional practice Defenders Plan Inc of Nassau County 12:00-1:00PM 1 credit in professional practice RECENTLY ADDED CLE ON DEMAND May 14, 2021 Skills credits are available for newly admitted Dean’s Hour: Get the 411 on the 420: Legalized attorneys Marijuana in New York MAR. What is New in New York Elder Care For 2021 **Program coordinated with Assigned Counsel Date of program: March 24, 2021 Program sponsored by NCBA Corporate Partner 24 Defenders Plan Inc of Nassau County 1 credit in professional practice Champion Office Suites and Nota by M&T Bank

12:00-1:00PM 12 free credits of On-Demand are included with your membership in 1 credit in professional practice addition to unlimited live/Zoom CLE offered by the Academy and NCBA Skills credit available for newly admitted attorneys Committees for the current membership year. 16 May 2021 Nassau Lawyer

CIVIL RIGHTS BUSINESS LAW, TAX AND ACCOUNTING HOSPITAL & HEALTH LAW Bernadette K. Ford Jennifer L. Koo/Scott L. Kestenbaum Leonard M. Rosenberg NCBA Committee Tuesday, May 11 Wednesday, May 19 Tuesday, May 25 Meeting Calendar May 5, 2021 - 12:30 p.m. 12:30 p.m. 12:30 p.m. June 2, 2021 LABOR & EMPLOYMENT LAW ASSOCIATION MEMBERSHIP ELDER LAW SOCIAL SERVICES HEALTH Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change. Matthew Weinick Michael DiFalco ADVOCACY Check www.nassaubar.org Tuesday, May 11 Wednesday, May 19 Katie A. Barbieri/Patricial A. Craig for updated information. 12:30 p.m. 12:30 p.m. Wednesday, May 26 12:30 p.m. MATRIMONIAL LAW SURROGATE’S COURT ESTATES & TRUSTS REAL PROPERTY Samuel Ferrara Brian P. Corrigan INTELLECTUAL PROPERTY Alan J. Schwartz Wednesday, May 12 Wednesday, May 19 Frederick Dorschak Wednesday May 5 5;30 p.m. 5:30 p.m. Thursday, May 27 12:30 p.m. 12:30 p.m. DIVERSITY & INCLUSION APPELLATE PRACTICE ETHICS Hon. Maxine Broderick Jackie L. Gross REAL PROPERTY Matthew K. Flanagan Thursday, May 13 Thursday, May 20 Alan J. Schwartz Wednesday, May 5 6:00 p.m. 12:30 p.m. Wednesday, June 2 4:30 p.m. 12:30 p.m. PLAINTIFF’S PERSONAL INJURY/ EDUCATION LAW PUBLICATIONS BANKRUPTCY John Sheehan/Rebecca Sassouni COMMUNITY RELATIONS & PUBLIC Christopher J. DelliCarpini/Andrea M. Ira S. Slavit/Neil Ackerman Thursday, May 20 EDUCATION DiGregorio Tuesday, May 18 12:30 p.m. Joshua D. Brookstein Thursday, May 6 12:30 p.m. Thursday, June 2 12:30 p.m. DISTRICT COURT 12:30 p.m. WOMEN IN THE LAW Roberta D. Scoll/S. Robert Kroll COMMUNITY RELATIONS & PUBLIC Edith Reinhardt Friday, May 21 PUBLICATIONS EDUCATION Tuesday, May 18 12:30 p.m. Christopher J. DelliCarpini/Andrea M. Joshua D. Brookstein 6:00 p.m. DiGregorio Thursday, May 6 GENERAL, SOLO AND SMALL LAW Thursday, June 2 12:30 p.m. ALTERNATIVE DISPUTE RESOLUTION PRACTICE MANAGEMENT 12:30 p.m. Marilyn K. Genoa/Jess Bunshaft Scott J. Limmer Tuesday, May 18 Tuesday, May 25 SURROGATE’S COURT ESTATES & TRUSTS 6:00 p.m. 12:30 p.m. Brian P. Corrigan Thursday, June 2 5:30 p.m.

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McGrath NYS Court of Appeals Hon. Chris J. Coschignano Anthony J. Montiglio The Nassau County Hon. Eileen Catherine Daly Michael Mosscrop Hon. Salvatore J. Nicosia Joseph G. Dell Teresa Ombres Magistrates Association Inc. Hon. Michael L. Orenstein Hon. Joseph A. DeMaro Hon. Stephen and Elizabeth Michael DiFalco Lisa M. Petrocelli Jeffrey M. Kalenka Bucaria Laura M. Dilimetin Christian Aaron Pickney John P. DiMascio Jr. Milan Rada Janet Nina Esagoff Michael E. Ratner Mary Ann Aiello Barbara Paltrow Howard S. Fensterman Marc W. Roberts Jordan Fensterman Jamie A. Rosen Merrill B. Gugerty, brother of Hon. David Samuel J. Ferrara Leonard M. Rosenberg Kimberly Snow J. Gugerty and brother-in-law of Hon. Ellen L. Flowers Daniel W. Russo Helene F. Guerty Thomas J. Foley William Savino Byron Divins, Sr., Lawrence R. Gaissert Jerome A. Scharoff Kimberly Snow Marc C. Gann Stephen W. Schlissel father of Byron Divins, Jr. Eugene S. Ginsberg Hon. Denise L. Sher Frank Giorgio, Jr. Hon. Peter B. Skelos Christopher T. McGrath Jeffrey M. Kalenka John J. Giuffre Ira S. Slavit Dorian R. Glover Wiliam J.A. Sparks Alan B. Goldman Jill C. Stone IN HONOR OF HECTOR HERRERA RECEIVING Stephen F. Gordon Sanford Strenger THE NCBA PRESIDENT’S AWARD Hon. Frank A. Gulotta Terrence L. Tarver The Korth Family Christopher T. McGrath Jamie Rosen Mary Elizabeth Heiskell Thomas A. Toscano Alan B. Hodish Craig J. Tortora IN MEMORY OF HARRY RICHMAN, Carol M. Hoffman Danielle M. Visvader FATHER OF HON. SUSAN KATZ RICHMAN Warren S. Hoffman Hon. Joy M. Watson James P. Joseph David Paul Weiss Donna-Marie Korth and The Nassau County Christopher T. McGrath Lorraine M. Korth Magistrates Association Inc. IN MEMORY OF HON. SANDRA J. FEUERSTEIN Kenneth L. Marten Hon. Marilyn K. Genoa Hon. Carnell T. Foskey To become a Sustaining Hon. John G. Marks Christopher T. McGrath Hon. Steven and Hon. Denise L. Sher Roger and Peggy Jaeger Member, please contact Alan B. Hodish Adrienne Hausch Mary Ann Aiello HOW YOU CAN HELP THE WE CARE FUND? the Membership Office at MAKE A DONATION Show your support for the WE CARE Fund by making adonation today by visiting (516) 747-4070. nassaubar.org/donate-now. AMAZON SMILE Do your regular online shopping using smile.amazon.com and HOW YOU CAchooseN Nassau BarFoundation, Inc. as your charity of choice.HOW YOU CAN HELP THE Amazon willdonate 0.5% of eligible purchases to WE CARE! HELP THE WE CARE FUND WE CARE FUND MAKE A DONATION MAKE A DONATION Show your support for the WE CARE Fund by making a Show your support for the WE CARE Fund by making a donation today by visiting nassaubar.org/donate-now. donation today by visiting nassaubar.org/donate-now.

AMAZON SMILE AMAZON SMILE Do your regular online shopping using Do your regular online shopping using smile.amazon.com and choose Nassau Bar smile.amazon.com and choose Nassau Bar Foundation, Inc. as your charity of choice. Amazon will Foundation, Inc. as your charity of choice. Amazon will donate 0.5% of eligible purchases to WE CARE! donate 0.5% of eligible purchases to WE CARE! Nassau Lawyer May 2021 19

MONDAY, SEPTEMBER 20, 2021 20 May 2021 Nassau Lawyer In Brief

Bruce Barket of Barket Epstein general practitioners in New who has joined the fi rm as fi elds." PartnerAvrohom Gefen of Kearon Aldea & LoTurco, LLP, York State. an Associate practicing in the VMM's Employment Law, Commercial announced it is launching a new weekly Ronald Fatoullah of areas of commercial litigation Litigation, and Alternative Dispute radio show, “Crime & Justice Radio,” Ronald Fatoullah & Associates and real estate. Resolution practices was interviewed on on LI News Radio. The fi rst episode of was honored to participate in Hon. Arthur M. April 7 on the CBS New York 6 o'clock the hour-long show aired on April 12 at a tribute entitled “A Day of Diamond (ret.) will be news, explaining what employers and 6:00 PM. Remembrance—Honoring hearing cases at NYC Private employees need to know about the new Jeff rey D. Forchelli Managing Nursing Home Lives Lost” Justice, a platform that recreational marijuana law. Partner of Forchelli Deegan Terrana sponsored by National enables divorcing couples and Capell Barnett Matalon & Schoenfeld LLP, has been selected for inclusion in Organization Gray Panthers. their counsel to bypass the LLP Partner Robert Barnett recently Long Island Business News’ Power 25 Law The program highlights Marian C. Rice overburdened New York State lectured for Straff ord on the topic of list in recognition of his outstanding included shared testimonials, court system to schedule a trial “Minimizing Capital Gains in Estate achievements and standing in the legal musical tributes, and refl ections by on fi nancial issues related to their divorce, Planning”. In addition, Robert Barnett’s community. Jane Chen has been spiritual leaders and elected offi cials. and with complete discretion. article “Discrimination Settlements— appointed Co-Chair of the Asian In addition, the fi rm celebrated Older Hon. Jeff rey Brown will join NAM Income Tax Considerations” was American Bar Association’s Real Estate Americans Month with an educational (National Arbitration and Mediation) as featured on the cover of Thomson Committee for the 2021-2022 fi scal year. webinar regarding the changes to the a Hearing Offi cer/Neutral. This spring, Reuters’ Journal of Taxation. Partner Howard Fensterman, Managing New York Statutory Power of Attorney. for the seventh year in a row, Richard Stuart Schoenfeld presented a webinar, Partner of Abrams Fensterman is proud Marc L. Hamroff , Managing Partner Byrne was named as one of the Top “Tax Meets Elder Law”. Partner to congratulate its attorneys named of Moritt Hock & Hamroff , announced Three Mediators in the United States by Yvonne Cort spoke at a recent webinar to the Top Women Super Lawyers today that he, Robert S. Cohen, and the National Law Journal Best of Survey. for the Chinese American Society of and Rising Stars including Moriah Julia Gavrilov, all members of MH&H’s Vishnick McGovern Milizio (VMM) CPAs, on the topic of IRS and NYS Adamo, Andrea M. Brodie, Sarah Secured Finance and Equipment Leasing managing partner Joseph Milizio, head collection updates. A. Chussler, Ellen L. Flowers, Jill practice area, will be presenting at the of the fi rm's Business and Transactional The In Brief column is compiled by Marian C. Rice, a M. Goff er, Elizabeth Kase, Amy B. 2021 Equipment Leasing and Finance Law, LGBTQ Representation, and partner at the Garden City law fi rm L’Abbate Balkan Marion, Jamie A. Rosen, Danielle M. Association Legal Forum LIVE. Hamroff Surrogacy, Adoption, and Assisted Colavita & Contini, LLP, where she chairs the Attorney Professional Liability Practice Group. In addition to Visvader, and Carolyn Reinach Wolf. will be serving both as moderator and a Reproduction practices, led on April representing attorneys for 35 years, Ms. Rice is a Past Emily F. Franchina of Franchina presenter for a panel discussion entitled 15 the fi rst of VMM and Northwell President of NCBA. Law Group was honored to present “What Are the Courts Doing During the Health’s joint LGBTQ Health & Life Please email your submissions to estate planning information to the Pandemic? A Look at Creditors Rights, Planning Webinar Series. Upcoming [email protected] with subject line: Eastern Farm Workers, a non-for- Bankruptcy, and Workouts During These webinars are scheduled throughout IN BRIEF profi t organization helping low-income Challenging Times.” Cohen’s session June—Pride Month—followed in July working families, in English with is entitled “California and New York The Nassau Lawyer welcomes submissions by a joint Medical-Legal Trans Clinic, to the IN BRIEF column announcing news, Spanish translation. In addition, Ms. Federal Licensing and Disclosure,” while the fi rst of its kind. VMM is proud to events, and recent accomplishments Franchina proudly announces her top Gavrilov will present on the topic “Does announce that Milizio has been named a of its current members. Due to space limitations, submissions may be edited for rating by Super Lawyers. Also, at the Your Contract Work Across State Lines?” 2021 Power Lawyer by Schneps Media, length and content. fi rm,Elisa S. 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SIGN UP NOW AT libn.com Nassau Lawyer May 2021 21 Separate Property… Forensic Accountant Analysis in this case, you prefer the forensic In situations where there may be gap Continued From Page 8 One way a forensic accountant can accountant’s analysis and calculation. periods in the analysis and supporting assist you is preparing an allocation of Cash/Investment Accounts account statements cannot be provided, held or acquired. Also, are there other the changes in the retirement account alternative analyses may be considered documents such as corporate filings and/ If a separate property claim relates to by the forensic accountant to support the based on a separate property/martial or operating or shareholder agreements? cash and/or investment accounts as of argument that the source of funds could property ratio analysis. The account’s the date of commencement, the forensic not have come from any other source but Retirement Assets value as of the date of marriage is accountant will first need to understand separate property. If there is a separate property the starting point. Utilizing account “the story” relating to the cash and/or Of course, a slew of other issues can claim relating to retirement assets, the statements throughout the marriage, the investment accounts. “The story” should arise, which is why it is crucial for the forensic account will want to review all forensic accountant can recalculate the include which current assets/accounts attorneys and forensic accountants to retirement account statements from the separate property/marital property ratio are being claimed, how those accounts know as much of “the story” as possible date of marriage though the current after each contribution made during the were funded and can it be traced back to help diffuse potential problems and date. A review of the statements will marriage. That contribution would be to a separate property source such as troubleshoot from the beginning. Some assist in identifying the value of the deemed 100% marital as earned during inheritance, personal injury award, or common issues that could complicate the account(s) as of the date of marriage. the marriage. Thereafter, all other assets held prior to the date of marriage. analysis might be refinancing proceeds, It will also help follow the money to see activity in the account, such as interest, Thereafter, the forensic accountant active management, or using an account if there are other retirement accounts dividends, and changes in market will need to obtain all documents and to receive “marital” funds for short-term or roll-over accounts that may not have value are allocated based on that new statements to trace all funds back to the been disclosed. The statements will also identify all contributions and/or withdrawals that occurred throughout the marriage. For example, parties are married on March 31, 2015, and the Wife has a retirement asset worth $500,000 as of the date of marriage. During the marriage, she contributes $20,000 per year until an action for divorce is commenced on December 31, 2019 ($100,000 during the marriage). As of December 31, 2019, the Wife’s retirement asset is now worth $800,000. This presents several questions. Is only $500,000 preserved as the Wife’s separate property? What about appreciation of the $500,000 as of the date of commencement? Did the contributions each year comingle the assets in the account? Should 1/5th of the account’s value be considered marital ($100,000 contributed divided by original separate property source. The calculated ratio, as detailed in Example convenience purposes. $500,000 separate property value)? forensic analysis will need to demonstrate 1 below. We all want the client that has The answer is not that simple, that no marital funds were deposited As detailed in Example 1, the separate property assets that are not especially if the positions held (stocks, into any of the accounts where separate separate property value can be argued only easily identifiable but easy to trace mutual funds or other assets held in the property is being claimed. Issues arise as $680,537 or 85.1% of the account’s and document. For the clients where account) at the date of marriage in the current value and only $119,463 or for the forensic accountant depending Wife’s retirement account are not the the analysis seems to be more akin to 14.9% as a marital asset. Is this fair? on the length of the marriage and if all same positions held currently. If the opening up Pandora’s Box, discussing That is ultimately up to the trier of supporting documents can be provided positions in the account did not change, the issues with a forensic accountant will fact. Absent such analysis, if the simple to complete the tracing. the analysis could be as simple as carving In a perfect trace world, all statements help navigate the issues and potentially 1/5th calculation was used as mentioned out those specific assets and ascribing the are provided for all years, and everything give you a basis to assert a separate above, the value of the retirement current value as separate property. If the is packaged nicely. However, this is property claim you might not otherwise account deemed marital could be argued positions have changed, then the second rarely the case, especially in long- be able to establish. as $160,000 (1/5th of $800,000 current option is utilizing the Marital/Separate term marriages and where assets value). If you are representing the Wife 1. DeJesus v. DeJesus, 90 N.Y.2d (1997). property ratio analysis. have been moved numerous times. 2. Embry v. Embry, 49 A.D.3d 802 (2d Dept. 2008).

Clearly, a surrogate child without access given the statutory protections and Gestational… We Welcome the following to a donor’s health and medical history prohibitions of the CPSA, time will tell. Continued From Page 3 New Members is at a grave disadvantage without any 1. Fam. Ct. Act § 581. history of either donor’s biological child. Certainly, it is not unforeseeable 2. Thinkagain, The Center for Bioethics and Attorneys background. Under such circumstances, Culture Network 2010–2019. for a surrogate child born in gestational Dina Epstein would compulsory disclosure of the ova 3. New York became the first U.S. State to fund egg surrogacy to be diagnosed with a harvesting with tax dollars. donation registry be warranted? What if 4. There are medical cases in which the Aditi B. Pascual disease for which the genetic history the participant had withdrawn consent? mitochondria of one female is substituted in the of the donor(s) is critical to the child’s ova of another female to create a viable specimen Will a court step in and flex its power as for IVF; what are the rights of the mitochondria Students survival. Leukemia, for example, is just parens patriae9 and save the child? donor if any, in a surrogacy arrangement given the Jennifer Theresa Champey such a disease which afflicts millions This new law brings long awaited CPSA? 5. Fam. Ct. Act § 581-402 Danielle Jacobs of children, some of whom may only benefits to those who may not naturally 6. CPSA Article 6. survive with a bone marrow transplant. conceive; it also portends unintended 7. Fam. Ct. Act § 581-602 Rawson Jahan 8. 10 NYCRR 69-11.15 The search for a match often begins consequences. To the extent a surrogacy 9. The court is the “supreme parent” in matters Gissel Marquez with the child’s biological relatives. contract may address such consequences relating to children in New York. 22 May 2021 Nassau Lawyer

Paving… will share her extensive knowledge of attorneys see themselves as problem through my recovery, choosing when Continued From Page 1 yoga, meditation, and mindfulness solvers and find it difficult to be the one and how to disclose my story, submitting to teach participants how to increase with a problem. Sometimes speaking to my character and fitness materials as feelings of well-being and resilience in another attorney who understands the part of my application for admission to virtual Town Hall meetings, wellness their day-to-day lives. unique challenges that attorneys face can the bar, and helping other law students programs, and Continuing Legal Additionally, in honor of National be the very assistance they are looking and lawyers in recovery who I met both Education and outreach programs on Mental Health Month, LAP will hold for. The Lawyer Assistance Committee inside and outside of LAP. I’ve regularly coping and survival skills. LAP has also a four-week Wellness Wednesday is the backbone of LAP, and committee attended LAP meetings since getting increased the frequency of recovery sober almost five years ago, and I would meetings from monthly to weekly. These program. This program will be held members are dedicated to providing peer each Wednesday at 6:00 P.M. during support to attorneys who struggle with not be where I am today—clerking for weekly virtual recovery meetings have a judge in the Southern District of New been consistently well attended and have the month of May and will focus on substance use or mental health issues. wellness, mental health, stress reduction, LAP is available to members and York, a job that previously was well provided a safe and supportive place for beyond my wildest dreams—without the attorneys in all stages of recovery. LAP increasing motivation and resilience, non-members of the NCBA. Many wellness, nutrition, and women’s health. people do not know that LAP also help of the LAP and its members.” has also increased its supportive services The rates of substance use, mental to law schools. The Lawyer Assistance Program has provides assistance to family members of several programs available to lawyers, attorneys who may be struggling with a health issues, and even suicide are One of the tragic outcomes as a result higher among attorneys than most of the pandemic is that many attorneys judges, law students, and their immediate wellness issue, substance use disorder, or family members. LAP Director a mental health issue. other professions. LAP is committed to have found themselves unemployed reaching out and educating members Elizabeth Eckhardt provides individual, To date, LAP has helped thousands or underemployed. In response, LAP of the legal profession about why professional supportive counseling to of attorneys. “The Lawyer Assistance has restarted its Un/Underemployed lawyers often struggle more than other help attorneys through difficult times. Program has supported me throughout Support Group. This group is currently professionals, and what services are Dr. Eckhardt provides needs assessments law school and my legal career. I took being held virtually at 6:00 P.M. on the available. LAP conducts presentations to assist in determining what services medical leave from law school to seek second Tuesday of each month. This and workshops in large and small law are needed and can provide referrals to treatment for my alcoholism and drug group provides support and guidance firms, to solo practitioners, law schools, to attorneys struggling to find or and legal departments. Programs can maintain work as a lawyer. The Un/ Sometimes speaking to another attorney who understands be tailored to Managing Partners and Underemployed Group provides an Human Resource departments to opportunity for attorneys to discuss their the unique challenges that attorneys face, can be the very discuss topics such as how to address difficulties and support one another. LAP impairment, information about LAP’s intends to gain feedback from group assistance they are looking for. The Lawyer Assistance Attorney Monitoring Program, what to members to determine what additional look for in an attorney struggling with assistance can be provided, e.g., LAP Committee is the backbone of LAP, and committee members substance use or mental health issues, may invite attorneys to present to the are dedicated to providing peer support to attorneys who and when and how to intervene. Other group on topics like networking, resume programs are directed to partners, writing, job searches, and transitions. struggle with substance use or mental health issues. associates, and staff and include LAP is also happy to announce that information about mental health Melissa Del Giudice, founder of Yoga for and substance use among lawyers, outside treatment for mental health and addiction. When I got home and was Health Long Island, will be facilitating coping skills, resiliency, well-being, and substance use services. In some cases, Dr. faced with what came next, LAP was LAP’s Mindfulness Mondays series to information about LAP services. begin April 12, 2021 at 6:00 P.M., and Eckhardt provides supportive counseling there for me. Through LAP, I met will run the second Monday of each for just one session whereas others may lawyers in recovery who helped guide To register for any of the previously month thereafter. Melissa participated in see Dr. Eckhardt for up to 6 supportive me every step of the way—applying mentioned LAP programs/services or for additional information, please contact LAP’s six-week Wellness Series last year counseling sessions. Lawyers often find it to restart law school, dealing with the Elizabeth Eckhardt at and participants wanted more! Melissa very difficult to reach out for help. Many stresses of law school and a legal career [email protected] or (526) 512-2618.

Marital Savings… increased by over 1000% to $60,000. deferring the decision under DRL §237 court at every Preliminary Conference Continued From Page 10 Unfortunately, the lower court’s abuse until the end of the case also tends to the where the issue of interim counsel of discretion probably cost the parties concerns raised by Manhattan Supreme fees exists should be, “Show me the about $50,000 in additional counsel fees Court Justice Matthew Cooper’s now money.” If it’s there, it should be used This pragmatic approach avoids famous “skin in the game”8 objection to to pay counsel fees; if not, then counsel depleting a good portion of the parties’ fighting over the lower court’s shockingly the non-monied spouse’s presumptive may have to wait until the end of the savings on counterproductive motion stingy interim counsel fee award. entitlement to an interim award of case to get paid, like a personal injury practice, helps level the playing field counsel fees. In the parties’ best interests, attorney. As a referendum going forward, for the needy spouse, and ensures that To avoid such chaos, the the Court needs to take affirmative steps divorcing litigants must stop wasting the totality of the parties’ financial to defer all counsel fee applications to the their marital savings on interim counsel circumstances and the parties’ conduct mantra of the court at every 9 conclusion of the case. fee applications. Working together, the during the litigation can be assessed Judiciary and the Bar can help them when the attorney fee issue is ultimately Preliminary Conference Conclusion achieve that goal. addressed. For all concerned, this is a where the issue of interim Some may argue that this approach is win-win-win solution. The Court avoids all fair and good when the parties have 1. 189 A.D.3d 31 (2d Dept. 2020)(citation omitted). wasting its valuable judicial resources counsel fees exists should 2. DRL§ 237 Amendments, 10 Years Later: Interim Counsel savings to invade. But that observation Fee Awards, NYLJ (Dec. 14, 2020). The author deciding pendente lite motion practice be, “Show me the money.” If simply begs the question. If no marital seems to press for a judicial declaration that the over funding the parties’ divorce, savings exist to allocate to counsel fees, 2010 amendment to Section 237 was intended to limit interim counsel fee applications to funding counsel for both parties get paid, and it’s there, it should be used to then any motion practice seeking an the needy spouse’s legal representation as opposed the parties’ dramatically reduce their award of counsel fees would be ill- to determining whether that legal representation is overall counsel fees. pay counsel fees. conceived, an effort in futility, and even being wisely employed. 3. 58 Misc.3d 1209(A) (Sup.Ct., Monroe Co. 2018). The highly impractical and inherently borderline frivolous. In essence, an As Straub illustrates, the variance in 4. Id. at *3.. unpredictable alternative to this attorney “make-work” project, an ugly 5. 39 A.D.3d 465 (2d Dept. 2007)(emphasis added). attitudes among the members of the 6. See Havell v. Islam, 288 A.D. 160 (1st Dept. 2001). approach has festered far too long in the tendency that also needs to be soundly bench over funding the needy spouse’s 7. 155 A.D.3d 919 (2d Dept. 2017). matrimonial halls of justice. Consider rebuked. An ostensibly unpayable award 8. Sykes v. Sykes, 43 Misc.3d 1220(A) (Sup.Ct., New the case of Straub v. Straub,7 where now- representation can also act to prevent a under such circumstances only leads to York Co. 2014). truly level playing field from ever being 9. The one exception to this rule against interim retired Suffolk County Supreme Court a motion to hold the alleged monied counsel applications is where one spouse has a Justice Carol Mackenzie, in response achieved. By forcing divorcing couples spouse in contempt, a hearing, and a substantial separate property estate but where no to motion practice, awarded the wife’s to allocate marital savings to enable the possible appeal, all over a miscalculated marital savings exist. Under such circumstances, it would behoove the “monied” spouse to agree to attorney a whopping $5,000 in interim parties to pay their attorneys, litigation interim counsel fee award. contribute toward the non-monied spouse’s interim counsel fees. On appeal, that award was costs will necessarily contract. Moreover, To avoid such chaos, the mantra of the counsel fees paid to the monied spouse’s attorney. Nassau Lawyer May 2021 23

Adoption… and medical background information; Continued From Page 7 (2) ascertain if the biological father’s consent or notice is required;9 (3) comply with laws regarding consents media, advertising or word of mouth. and expenses to the birth parents;10 and The adoptive parent’s attorney’s role then (4) file the adoption documents is to file the petition with the Court and finalize the adoption. If a child is for certification as qualified adoptive born outside the state of New York, parents, along with their client’s and placed with a family that resides financial, medical, criminal, and marital in New York or if a child is born in the 7 information. A home study is filed state of New York and is placed with a directly by a licensed social worker family outside New York, then Interstate to verify the information filed in the Compact for Placement of Children Petition for Certification as Qualified (“ICPC”) must be observed.11 Adoptive Parent. Here in Nassau County, all private Once “certified” as a qualified adoptions are filed in Nassau County adoptive family, the family must do Surrogate’s Court. In Suffolk and their own outreach to connect with Queens Counties, the adoptions are an expectant parent. At first, this may filed in Family Court. Whereas, Family seem to be a daunting task for many and Surrogate’s Court have concurrent prospective adoptive parents, but there jurisdiction over adoptions,12 it is are now many avenues for adoptive County specific as to where one would parents and expectant mothers to make file the adoption. Note, in Nassau connections, including via the number County all foster care adoptions are filed one source: social media (i.e., Facebook, in Family Court. Instagram, Google Ad Words). There 1. Family Court Act §581-303. are also many online platforms available Many states have laws that regulate been construed by those in the adoption 2. Family Court Act § 1011. online that can help birth parents and the use of advertising in adoption.8 community as permissible to place ads. 3. Family Court Act §§1017, 1035(f). 4. Matter of Bennett v. Jeffreys, 40 N.Y.2d 543 (1976). adoptive parents connect by allowing Some laws permit both birth parents and The days of an adoption ad stating 5. Social Services Law §374. adoptive parents to advertise their adoptive parents to publish their interest “loving happy family” published in the 6. Social Services Law §374. profiles enabling pregnant women the in placing a baby or their interest in back section of a newspaper has been 7. Domestic Relations Law §115-d. 8. bit.ly/3cJtsGY opportunity to visit these adoption site adoption, while other laws limit the use replaced by hyperlinks to a website about 9. Domestic Relations Law §111a. platforms and viewing the profiles of of advertising to attorneys or agencies. a family on the Internet. 10. Social Services Law §374(6); Domestic Relations Law §115(8). families hoping to adopt a child in the In New York, the issue of advertising is Once the connection is made, the 11. Social Services Law §374-a. privacy of their own home. not addressed in any statute. This has attorney’s role is to (1) request social 12. Family Court Act §641.

Wasteful… maintenance under the guidelines. a whole. In the hypothetical example be considered a wasteful dissipation in Continued From Page 9 However, based on proof that the presented at the start of this article, the the context of a pandemic economy. husband spent hundreds of thousands of closing of the construction business was Scale and context are crucial to these dollars of his income on strip clubs, his arguably a wise decision and necessary determinations. appear to be more punitive in nature girlfriend (e.g. hotels, trips, dining out, consequence of the economic pause than compensatory. For example, in a direct payments), and other personal that was implemented at the onset of 1. See Willis v. Willis, 107 A.D.2d 867 (3d Dept. Supreme Court, Kings County case,10 1985). expenses without the wife’s knowledge, the pandemic. Of course, the business- 2. See Lowe v. Lowe, 123 A.D.3d 1207 (3d Dept. 2014). Justice Jeffrey S. Sunshine deviated from the Court deviated from the guidelines owner’s failure to take appropriate steps 3. See McCaffrey v. McCaffrey, 107 A.D.3d 1106 (3d the temporary maintenance guidelines and awarded the wife $7,500/month in to save the business by, for example, Dept. 2013). and reduced the husband’s temporary 4. See Carl v. Carl, 58 A.D.3d 1036 (3d Dept. 2009). temporary maintenance. taking PPP loans or reducing payroll, 5. See Burnett v. Burnett, 101 A.D.3d 1417 (3d Dept. maintenance award upon a finding If nothing else, the caselaw could weigh in favor of a dissipation 2012). that he engaged in wasteful dissipation addressing wasteful dissipation claims claim. 6. See Mizrahi-Srour v Srour, 138 A.D.3d 801 (2d Dept. by concealing his unemployment from 2016); Scala v. Scala, 59 A.D.3d 1042 (4th Dept. are consistent in reminding us that Stock trading losses, to the extent 2009); Brzuszkiewicz v. Brzuszkiewicz, 28 A.D.3d 860 his wife for more than seven years and context is crucial. The likelihood of that they did not exceed the investment (3d Dept. 2006). misled her regarding the filing of the success when seeking a deviation from of marital funds, may fall into the 7. See Owens v. Owens, 107 A.D.3d 1171 (3d Dept. parties’ joint tax returns which resulted the maintenance guidelines based on a category of a bad financial decision 2013). 8. See E.R.S. v. B.C.S., 51 Misc.3d 1210 (Sup. Ct., in past due taxes and penalties. wasteful dissipation claim will depend not necessarily amounting to a wasteful Westchester Co. 2016). Similarly, in Allison B. v. Edward A.,11 on the magnitude of the dissipation dissipation of assets. On the other hand, 9. See Epstein v. Messner, 73 A.D.3d 843 (2d Dept. where the husband earned $1,284,000 relative to the marital estate, and the the wife’s continued spending at pre- 2010). 10. See H.G. v. N.K., 40 Misc.3d 1242 (Sup. Ct., Kings and the wife earned $177,000, the current financial circumstances of the pandemic levels, while the family’s Co. 2013). wife was not entitled to any temporary particular parties and the economy as income was reduced, could arguably 11. 54 Misc.3d 1226 (Sup. Ct., New York Co. 2017).

bit.ly/3mdKCjf. Social Media… 3. Patricia Reaney “Rise in divorce evidence from Continued From Page 5 social websites.” Reuters, (February 10, 2010), https:// reut.rs/3udJP4H. 4. Gatto v. United Air Lines, Inc., Civil Action No. perhaps no, but between the algorithms 10-cv-1090-ES-SCM, 2013 U.S. Dist. LEXIS 41909, at *4 (D.N.J. Mar. 25, 2013). and allegories, metaphors and made-up 5. Romano v. Steelcase Inc., 30 Misc. 3d 426, 434 (Sup. stories, it is evident that “big brother” Ct., Suffolk Co. 2010). 6. See n.1, supra. is always watching. One would do well 7. See n.2, supra. to proceed cautiously and be careful 8. N.Y. Rules of Professional Conduct R. 4.1 (2020). 9. Bramble v. Bramble, No. 2011-CA-000461-ME, 2011 what one posts online, as social media Ky. App. Unpub. LEXIS 873, at *1 (Ct. App. Dec. has become a complete blueprint of an 2, 2011). 10. Dexter v. Dexter, 2007-Ohio-2568, ¶ 1 (Ct. App. 2007). individual’s life. 11. Sisson v. Sisson, 2012 Ark. App. 385, ¶ 2, 421 S.W.3d 312, 313 (Ct. App. 2012). 1. Marcia Canavan & Eva Kolstad, Does the Use of 12. Theodore Sliwinski, Esq., “Social Media and the Social Media Evidence in Family Law Litigation Matter? 15 Family Court.” Divorcesource.com, (March 14, 2021), Whittier J. Child & Fam. Advoc. 49, 62 (2016). https://bit.ly/39CO3uV. 2. John G. Browning, “Social Networking for 13. B.M. v. D.M., 927 N.Y.S.2d 814, 814 (Sup. Ct., Lawyers: Necessary Weapon or Ethical Minefield?” Richmond Co. 2011). FamilyLawyerMagazine.com, (Dec. 17, 2019), https:// 14. See endnote 11. 24 May 2021 Nassau Lawyer

Valuations… If the change was due to economic Spousal Manipulation in a matrimonial action, to present Continued From Page 6 forces beyond a party’s control, the of Business Value evidence regarding its effects upon the courts generally use a date of trial Courts also will examine whether a business being valued, so the court may valuation date. Recovery from Major Economic Event spouse intentionally tried to manipulate select an appropriate valuation date. The Second Department, in Sagarin the value of the business post- Courts have examined various factors 1. See Daniel v. Friedman, 22 A.D.3d 707, 708 (2d Dept. v. Sagarin, held that a date of trial commencement and will not permit a in selecting a valuation date. If a valuation of the husband’s business was 2005) (citing Grunfeld v. Grunfeld, 94 N.Y.2d 696, 707 spouse to benefit from that manipulation. (2000); see also N.Y. Dom. Rel. Law § 236(B)(4)(b) business has recovered from the impact a provident exercise of discretion as, It is significant that in Wegman, not (McKinney 2020); McSparron v. McSparron, 87 N.Y.2d of a major economic event, then courts “adverse economic forces outside of the only was the increase of the value of 275, 288 (1995). have selected a date of commencement 2. Id. husband’s control caused the decline in the business not due primarily to the valuation. Recovery generally means the value of the corporation.”13 Similarly, in 3. Id. efforts of the husband, but in addition, 4. Mesholam v. Mesholam, 11 N.Y.3d 24, 28 (2008) economic impact was short-term. Schacter v Schacter, the First Department the husband intentionally tried to (“Once property is classified as marital or separate, In Daniel v. Friedman, the Second held that the trial court should have used manipulate the marketing date of the trial court has broad discretion to select an Department held that a date of ‘appropriate date for measuring the value of [the] the date of trial, rather than the date of Collagenase, in order to deprive the wife commencement valuation was a property’”)(quoting McSparron, 87 N.Y.2d at 287 commencement, as the date of valuation of the post-commencement increase (internal quotation marks omitted) (bracketed provident exercise of discretion, as of the husband’s partnership interest in value.19 The Second Department language added). the husband’s business had recovered 14 in a law firm. The First Department therefore held that a date-of-trial 5. Mesholam, 11 N.Y.3d at 28 (“[T]he valuation date from the negative impact of market must be between ‘the date of commencement of reasoned that the trial court failed to give valuation was proper so the wife would forces and the evidence demonstrated the action [and] the date of trial’”)(quoting Dom. due consideration to the impact of the not be deprived of the benefit of this Rel. Law § 236(B)(4)(b) (McKinney 2020) (bracketed that the business would continue to 2007-2008 financial crisis on the value increase.20 language added). recover.9 The Second Department of the husband’s partnership, as well as Similarly, in Schacter v. Schacter, the 6. Daniel, 22 A.D.3d at 708 (2d Dept 2005) (quoting reached a similar result in Finch-Kaiser Grunfeld, 94 N.Y.2d at 707 (2000); see also Dom. Rel. to the impact of the wife’s conduct in court would not permit the wife to v. Kaiser and affirmed the trial court’s Law § 236(B)(4)(b) (McKinney 2020); McSparron, 87 creating negative publicity in regard to benefit from her misconduct.21 The N.Y.2d at 288). valuation of the husband’s real estate 15 the husband. wife tried to manipulate the value 7. Wegman v. Wegman, 123 A.D.2d 220, 234 (2d Dept. investment company as of the day of Arguably, the 2007-2008 financial of business of the titled spouse by 1986). commencement, rather than at the time 8. Id. crisis is analogous to COVID-19 in that intentionally generating negative of trial.10 9. Daniel, 22 A.D.3d at 708. both of these circumstances created a publicity regarding the business and 10. See generally Finch-Kaiser v. Kaiser, 104 A.D.3d 906, Therefore, even if a business has broad impact on the overall economy compounding the detrimental impact 907 (2d Dept. 2013) (reasonably inferring from the been affected by a broad market beyond the control of an individual. An of the financial crisis.22 Thus, the First court’s holding that a date of commencement is force, such as COVID-19, if that reasonable in situations where a rebound can be important distinction, though, is that the Department held that a date-of-trial business has rebounded, then a date of anticipated. This is akin to the court’s reasoning in financial crisis generally had a negative valuation was proper, so the value of Rich-Wolfe v. Wolfe, 83 A.D.3d 1359, 1359–60 (3d commencement valuation is appropriate. impact on the overall economy, while the business would reflect the post- Dept. 2011)). Cyclical Businesses the impact of COVID-19 varies greatly commencement decrease in revenues, 11. Rich-Wolfe, 83 A.D.3d at 1359–60. depending on the type of business. 23 12. Id. Another relevant factor in the caused, in part, by the wife’s conduct. 13. Sagarin v. Sagarin, 251 A.D.2d 396, 396 (2d Thus, an analysis of the impact of selection of a valuation date is whether Forensic evidence is essential in Dept.1998). COVID-19 demands a close look at 14. Schacter v. Schacter, 151 A.D.3d 422, 422–23 (1st the business has a history of being assessing the impact of COVID-19 on a the data for the particular business and Dept 2017). cyclical. In Rich-Wolfe v. Wolfe, the Third particular business. About one year has industry involved. 15. Id. Department affirmed the trial court’s elapsed since we learned of COVID-19 16. Wegman, 123 A.D.2d at 238 determination that the husband’s Spousal Efforts and its effects are continuing, so forensic 17. Id. at 237. 18. Id. construction businesses should be valued accountants have data available. This In selecting a valuation date, courts is critical, as forensic accountants may 19. Id. as of the date of commencement, rather additionally have examined whether the 20. Id. 11 only make predictions based upon what 21. Schacter, 151 A.D.3d at 422–23. than the date of trial. The Third efforts of the titled spouse contributed Department reasoned: is known or knowable at the time of the 22. Id. to the increase in value of a business. If valuation.24 23. Id. [T]he profitability of the parties’ the increase in the value of the business, 24. AICPA Statements and Standards for Valuation businesses had declined after the post-commencement, did not result Conclusion Services, AICPA (June 2007), https://www.aicpa. org/interestareas/forensicandvaluation/resources/ date of commencement due to primarily from the efforts of the titled COVID-19 has affected the economy standards/downloadabledocuments/ssvs_full_ the deterioration of the broader spouse, then courts have selected a date- dramatically. Therefore, it is essential, version.pdf. economy, but the defendant did of-trial valuation date. not dispute that the construction In Wegman v. Wegman, the Second industry is a cyclical one that is Department remitted the matter to Committee Reports strongly affected by economic the trial court to value the husband’s conditions.12 business as of the date of trial.16 The ELDER LAW, SOCIAL SERVICES care and planning, and related Second Department reasoned that the AND HEALTH ADVOCACY practice tips. Topics of interest If a business has been cyclical, included long-term care insurance increase in the value of the husband’s Co-Chairs: Katie A. Barbieri, the negative impact of the broader considerations, use of trusts and economy is less likely to be permanent business was not due solely to the efforts Patricia A. Craig complete and incomplete gifts and the business will rebound, as it has of the husband, but to the successful This committee addresses legal for preservation of assets, and done in the past. Therefore, a date of marketing of a product, Collagenase, issues related to health, mental expected changes to community hygiene, and social services for commencement valuation date is more which took years to develop and was Medicaid as the community look- the public and special population appropriate. developed during the marriage.17 The back phases in. groups, including the poor, the Note from the Committee: Second Department also considered aged and the disabled. Forces Beyond Spousal the wife’s substantial contribution to the There is a program still running On March 5, 2021, a that allows contested guardianship Control Impacting Revenue Michael J. Langer economic partnership of the marriage committee meeting was held by (Article 81 or 17A) matters to be A further factor examined by the during the years while the product was videoconference. After farewell court-referred to a pre-existing courts in the selection of a valuation being developed and stated, “[the wife] remarks to and from now- panel of qualified mediators. The date is whether forces beyond the parties’ should not be deprived of a share of retired Nassau County Supreme Court Justice NCBA contact for more information about this Arthur Diamond, topics discussed included an control caused the post-commencement the wealth eventually generated by that program is Stephanie Pagano. Either a party or introduction to New York’s Medicaid Buy-in the court evaluator can request mediation from business revenue to increase or decrease. substance merely because her husband Program for people with disabilities to earn the court, who can refer parties following its chose to abandon her in the same year additional income without the risk of losing determination on capacity as the primary issue. For Information on that the S.J. Wegman Company began to coverage, virtual notarizations, changes to 18 LAWYERS’ market it.” Medicaid laws, and available resources for The Committee Reports column is compiled by In Wegman, the post-commencement Medicaid budgeting. It was also discussed Michael J. Langer, a partner in the Law Offices of Michael J. Langer, P.C. Langer is a former AA MEETINGS growth of the business was not due to about the use of mediation in Nassau County contested guardianships under a pilot program law clerk in the United States Court of Appeals for the Second Circuit, and a former Deputy Call the efforts of the husband, but rather to operating at no cost. the parties’ joint efforts made during the County Attorney in the Office of the Nassau On March 24, 2021, the committee County Attorney. Langer’s practice focuses (516) 512-2618 marriage. Thus, a date-of-trial valuation hosted guest speaker, Elizabeth Forspan who on matrimonial and family law, estate and was more equitable. delivered a lecture on issues related to elder commercial litigation, and criminal defense. Nassau Lawyer May 2021 25

Mental Health… been able to bill for telehealth services Continued From Page 11 as if they were provided in person, significantly expanding access to essential mental health services.16 Even patients The outpatient mental health without a smartphone, computer, or programs and offices that remained access to high-speed internet have been open throughout the pandemic were able to access services with telephone- forced to adjust their enrollment criteria, based, audio-only, treatment.17 denying or delaying admission to those These necessary waivers expanded a with potential COVID-19 symptoms. provider’s ability to initiate or continue Medical offices and outpatient mental health treatment during this facilities implemented COVID-19 unprecedented time. response protocols such as screening questionnaires, taking a patient’s Conclusion temperature before entry, requiring The COVID-19 pandemic triggered a facial mask, and following social drastic changes to the provision of distancing guidelines. Mental health mental health services in both the and healthcare professionals had to inpatient and outpatient settings. The significantly reduce their patient loads to healthcare system quickly adjusted to avoid crowded waiting rooms and often new ways of delivering mental health resorted to appointment-only policies six times per month have been unable Use of Telepsychiatry and related healthcare services. Many rather than permitting walk-ins, even in to safely make these visits in the past During COVID-19 of these temporary changes, such as an urgent-care setting. year. Assertive Community Treatment The COVID-19 pandemic forced the reliance on telehealth, may be here (ACT) Teams that normally provide to stay long after the pandemic ends.18 Court-Ordered many physicians and mental health court-mandated individual and/or professionals to adjust the way they Currently, only time will tell. Outpatient Treatment Services group therapy, were forced to reduce deliver care and embrace the use of 1. Psychiatric Hospitalization, National Alliance on In New York, Assisted Outpatient or eliminate in-person services and telehealth services. Even our very own Mental Illness, https://bit.ly/2R92Xmf. Treatment (AOT) programs in each implement telehealth options.10 ACT 2. N.Y. Exec. Order 202 (Mar. 7, 2020), https:// Lawyer Assistance Program adapted on.ny.gov/3t4nlCQ. county heavily rely on in-person, Teams are encouraged to prioritize and almost immediately began offering 3. In New York, Article 9 of the Mental Hygiene 7 outreach-based practices. AOT is a essential services such as medication confidential professional counseling Law sets forth the legal requirements for voluntary, involuntary, and emergency admission to a hospital, valuable tool for mentally ill individuals assessment and administration as well as sessions via doxy.me, a HIPAA compliant 11 as well as the retention of patients pursuant to a who refuse mental health services in acute crisis intervention. telehealth video platform.13 court order. the community and are frequently Unfortunately, some counties in 4. N.Y. Exec. Order No. 202.6 (March 20, 2020), Before the pandemic, telehealth https://on.ny.gov/3up5BT2. hospitalized. The program has proven New York have delayed acceptance services were generally underutilized 5. See Rivers v. Katz, 67 N.Y.2d 485 (1986). to reduce hospitalization by providing or processing of community referrals by providers and patients due to 6. Bojdani E, Rajagopalan A, Chen A, et al., COVID- for AOT.12 COVID-19 has hindered 19 Pandemic: Impact on psychiatric care in the United support in the community and regulatory and reimbursement issues. States, 289 Psychiatry Res. (July 2020), https://bit. 8 monitoring medication compliance. the AOT investigation process to Unprecedented temporary waivers ly/3upbzUc. AOT providers in the “new normal” determine eligibility for the program 7. Known as “Kendra’s Law” in New York, AOT of federal and state regulations have is court-ordered treatment for the person’s mental have had to adopt new service such as the need to obtain medical allowed for the widespread use of illness and supervision in the community with the modalities in the community, relying records and conduct an in-person telehealth services to safely provide goal of preventing “a relapse or deterioration.” Mental Hyg. Law § 9.60 (a). To be eligible for AOT, upon virtual communications by video psychiatric evaluation of the individual. medical and mental health care during the individual must be at least eighteen years old, conference or telephone call. The AOT In some counties, the only way to gain the pandemic. For example, waiving suffering from a mental illness, unlikely to survive program provides for community- acceptance into the AOT program is safely in the community without supervision, and penalties for certain HIPAA violations have a history of non-compliance with treatment for based case management services, through an inpatient admission wherein enabled medical and mental health mental illness. Mental Hyg. Law § 9.60 (c). medication management, alcohol and/ the treatment team applies for AOT professionals to use virtual platforms 8. Kendra’s Law: New York’s Law for Assisted 14 Outpatient Treatment (AOT), Mental Illness Policy or substance use testing and counseling, as part of the discharge plan from the such as FaceTime or Skype. The Org, https://bit.ly/39FL6JN. and individual and/or group therapy.9 hospital. Throughout the pandemic, loosening of state licensure regulations 9. Mental Hyg. Law § 9.60 (a). There is no punitive Case managers or social workers however, renewal applications for remedy for a patient’s failure to comply with AOT; allowed for telehealth services to be however, the individual can be brought to a hospital 15 who are generally required to make existing AOT clients are still being offered across state lines. for evaluation for involuntary hospitalization. Mental in-person visits anywhere from four to processed when the Court Order expires. Additionally, many providers have Hyg. Law § 9.60 (n). 10. COVID-19 Program & Billing guidance for ACT Programs, (April 13, 2020), https://on.ny. gov/2PW4jA6. Mock Trial… 2021 Mock Trial Tournament Participants 11. Id. Continued From Page 1 12. A family member, or other concerned individual, Hon. Melissa Bekisz Kestenbaum Team Attorney- Kelly McMahon can make a referral to the AOT program in the Mock Trial Hon. Gale D. Berg Hon. Kevin J. Kiley Advisors Christine Mertz county where the individual resides by filling out an application with the Office of Mental Health.See Co-Chairs Joseph Brees Sheryl P. Lerner Liora M. Ben-Sorek* Christopher Mestecky Assisted Outpatient Treatment, https://my.omh.ny.gov/ Hon. Marilyn K. Hon. Maxine S. Hon. Steven G. Brynde Berkowitz** Oscar Michelen analytics/saw.dll?dashboard. Genoa 13. Lawyer Assistance Program, Nassau County Bar Broderick Leventhal Elliot J. Blumenthal Paul F. Millus Association, https://bit.ly/3cODIhq. Peter H. Levy, Esq. Jess A. Bunshaft Melissa Levin Lauren B. Bristol April N. Montgomery 14. Notification of Enforcement Discretion, HHS, https:// Hon. Lawrence M. Neil R. Cahn Gregory S. Lisi Joshua D. Brookstein bit.ly/2RdUaPV. The Office for Civil Rights Michael Roberts (OCR) at the Department of Health and Human Schaffer Melissa Danowski Joseph A. Lo Piccolo Donald Casadonte, Jr. Laura Rosenberg Services (HHS) stated it “will not impose penalties Adam D’Antonio Andrew J. Luskin Karen H. Charrington for noncompliance with the regulatory requirements Lisa M. Rossi under the HIPAA Rules against covered health care Tournament Christopher J. Mili Makhijani Ajay Chheda David Santana providers in connection with the good faith provision Coordinator DelliCarpini Cheryl Y. Mallis James P. Connors of telehealth during the COVID-19 nationwide David M. Schwartz public health emergency.”Id. Jennifer C. Groh Hon. Randall T. Eng Peter J. Mancuso Anne J. Delia Karl C. Seman 15. NY Exec. Order No. 202.5, https://on.ny. Jaime D. Ezratty Michael A. Markowitz Stephen Drummond Hon. Scott H. Siller gov/31TUghv. Presiding Judges 16. See, e.g., Medicare Telemedicine Healthcare Provider Fact Hon. Scott Fairgrieve Kenneth L. Marten Bernadette K. Ford Christopher Shishko Sheet, Centers for Medicare and Medicaid Services, Robert J. Ansell Neil R. Finkston Allen R. Morganstern Lisa M. Gioia Ira S. Slavit (Mar. 17, 2020), https://go.cms.gov/3miskgW; see Richard H. Apat Thomas J. Foley Seth M. Rosner Lisa M. Golden also Telehealth: Delivering Care Safely During COVID-19, Joanne Stevens HHS, https://bit.ly/2PYYVwc. Hon. Leonard B. Hon. Elizabeth Fox- Hon. Norman St. M. Allan Hyman Sandra Stines 17. Telemedicine Coverage Expands in NY Under Bill Signed Austin McDonough George Daniel Kessler by Cuomo, Bloomberg Law, (June 17, 2020), https:// Bruce Varney bit.ly/3wzaP0D. Rosalia Baiamonte Jeffrey C. Gerson Michael A. Scotto Hon. Roy A. Klein Erica T. Yitzhak 18. New York Governor Andrew Cuomo continues N. Scott Banks Alan B. Hodish Hon. Ira B. Hon. David Kirschner to push for regulatory and statutory changes to permanently adopt these waivers and allow for Hon. Steven R. Hon. William A. Warshawsky James A. McGlynn * Attorney-advisor, Hebrew Academy continued flexibility in the use of telehealth.Governor of Nassau County Cuomo Announces Proposal to Expand Access to Telehealth Barnwell Hohauser Omid Zareh Hon. Thomas ** Attorney-advisor, Stella K. Kathryn Beer Hon. Richard S. McKevitt Abraham for All as Part of 2021 State of the State, (Jan. 10, 2021), https://on.ny.gov/3dBiOBz. 26 May 2021 Nassau Lawyer

Nixon… United States v. Nixon: A and Solicitor General Robert Bork A criminal charge was still possible. Continued From Page 13 Constitutional Crisis carried out the order. President Ford granted Nixon a pardon The public’s reaction to the ‘Saturday for all Watergate off enses. Ford justifi ed Nixon handily won reelection in 1972. Night Massacre’ forced Nixon to replace his actions citing Burdick v. United States, was the Warren Court’s principled The Watergate scandal would turn the Cox with Leon Jaworski. The battle over a Supreme Court ruling holding the conservative dissenter. tables on the president. Individuals with the tapes continued. A grand jury named acceptance of a pardon supports Nixon chose former ABA President ties to the Committee to Re-Elect the Nixon an unindicted co-conspirator. the imputation of guilt by its very Lewis Powell and Deputy Attorney President were arrested for a burglary Jaworski instructed they couldn’t indict acceptance; in eff ect, it is an admission General William Rehnquist. Powell at the Democratic headquarters in the a sitting President. The Constitution of guilt.17 Ford’s pardon foreclosed any served from 1971 to 1987. He was a Watergate offi ce-complex. provides for impeachment; any criminal legal liability Nixon might have faced. moderate-conservative who became From 1972 to 1974, a litany of charges would have to wait until Nixon Yet Nixon’s legal legacy persisted. All the court’s ‘swing vote.’ He is best clandestine, unsavory activities came left offi ce. four of his appointments would be on to light following the June 17, 1972 remembered for the controlling opinion In 1974, the House authorized the Supreme Court well into the next in Regents of the University of California v break-in. The unraveling of the cover-up the Judiciary Committee to initiate decade. Rehnquist was the last to step 11 Bakke (1978). seized the nation’s attention resulting impeachment proceedings. The Judiciary down, doing so in 2005. He has been Rehnquist joined the court as an in a Constitutional crisis culminating in Committee approved three articles of acknowledged as one of history’s most Associate Justice in 1972 and was Nixon’s resignation. impeachment. Nixon asserted executive infl uential Chief Justices, the conservative named Chief by President Reagan The burglars’ trial before District privilege: the right of the President to counter-weight to Earl Warren. in 1986. Graduating fi rst in his class Judge John Sirica drew the attention of maintain confi dential communications Since Nixon’s resignation, two the Senate. Senate hearings revealed at Stanford Law (1952, Sandra Day on national security grounds. presidents, Bill Clinton and Donald the administration’s inner-workings. O’Connor was third), Rehnquist was It was the Court’s decision in United Trump, have undergone impeachment Most damaging was the revelation of 12 the only genuine conservative among States v. Nixon that forced Nixon’s hand. proceedings. Both were acquitted in an Oval Offi ce voice-activated taping the men Nixon selected. The Court ruled 8-0 (Rehnquist recused the Senate. In Trump’s case, he was system. The battle for the White House acquitted twice. But more than a century Rehnquist possessed a circumscribed himself), ordering the President to deliver tapes would lead to a landmark Supreme the tapes to the district court. Though spanned the 1868 impeachment of view of the Fourteenth Amendment, Court opinion. unanimous, the justices had to determine Andrew Johnson and Watergate. Clearly, considering it misapplied to cases dealing Special Prosecutor Archibald Cox the limits of executive privilege. something has changed. with abortion, criminal procedure, and subpoenaed the tapes. Nixon, citing The Court’s decision held that a As for Richard Nixon, he remains a the death penalty. Believing such matters executive privilege, refused. The impasse president’s need for confi dentiality historical enigma. An intelligent man, are for Congress to resolve, he became came to a head when Nixon ordered cannot be absolute. The Court defi ned well-steeped in the law; he realized too the stalwart Nixon hoped Burger would Attorney General Elliot Richardson to a limited executive privilege in areas of late how much he allowed his inner have been. fi re Cox. Richardson resigned instead, military or diplomatic aff airs. But it did demons to undercut his judgement. At not extend to materials subpoenaed the very end, he came to see how he had in a criminal prosecution, which the ruined his presidency: “always remember, president cannot withhold. others may hate you, but those who hate you don’t win unless you hate them, and then you End of a Presidency, Start of a Legacy destroy yourself.”18 The White House released the June Sound advice for lawyer and layman 23, 1972 tape, recorded six days after the alike. Advice Nixon should have Watergate break-in. The tape contained heeded himself.

conversations which verifi ed the 1. Senator Bob Dole’s Comment at Nixon’s Funeral President directed the CIA to impede the at www.cnn.com. FBI’s investigation.13 The ‘smoking gun’ 2. Irwin Gellman, Richard M. Nixon: Bicoastal Practitioner in America’s Lawyer Presidents (rev. ed. 2009) tape was proof of obstruction of justice at 13. shattering Nixon’s remaining credibility. 3. Id. On August 7, 1974, Congressional 4. Id. 5. Tom Wicker, One of Us (1st ed. 1991) at 3. leaders informed Nixon that his support 6. Brian Smenthkowski, Earl Warren at www. in Congress had evaporated.14 Leaving britannica.com. 7. 347 US 483 (1954). little doubt about the certainty of his 8. 378 US 478 (1964); 384 US 436 (1966). impeachment, the President was told 9. William Honan, Roman Hruska Dies at 94 (April 27, he held the support of only thirty-fi ve 1999) at www.nytimes.com. 15 10. 410 US 113. Best practices for your business? House members. 11. 438 US 265. In the Senate, Nixon was informed 12. 418 U.S. 683 (1974). A subscription to Long Island Business News 13. The Smoking Gun Tape at www.watergate.info. he could count on only fi fteen votes 14. Hella Pick, Nixon resists call to resign (Aug. 7, 2014) for his acquittal, assuring the two- at www.guardian.com. thirds needed for conviction.16 Nixon 15. Id. 16. Martin Waldron, Goldwater Expect ‘Hard Core” announced his resignation on August 8, of Senate Vote to Acquit Nixon (Aug. 8, 1974) at www. 1974. He formally submitted a letter of nytimes.com. 17. 236 US 76 (1915). resignation, eff ective the following day, to 18. Richard Nixon: White House Farewell at www. STAY CURRENT, SUBSCRIBE TODAY! Secretary of State Henry Kissinger. historyplace.com. Don’t miss another issue of the news and analysis that affects you and your business. Subscribe today

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“Having a law degree is a privilege, and I PRO BONO ATTORNEY OF THE MONTH estimate that if every attorney took two pro bono cases per year, we could provide representation to nearly everyone who needs but cannot aff ord an attorney. Law services makes the process easy by thorough screening, and frequently allows By Susan Biller you to choose from an array of cases. Sometimes it can be helpful to ask who the attorney is on the other side. If it is someone you know you can work with, you may be able to take and resolve the case relatively quickly. I always assist Jeff Klein at least one pro bono client. These individuals are uniformly grateful, and I feel fortunate to Nassau Suff olk Law Services Volunteer Lawyers Klein humorously recalls: “When I fi rst interviewed be able to eff ectuate such a meaningful change Project (VLP), along with the Nassau County Bar for a staff attorney position at Nassau County Law in their lives.” Association (NCBA), are privileged to recognize Jeff Services, I told the managing attorney, Carl Nathanson, Susan Biller, Pro Bono Coordinator of the Volunteer Klein as our most recent Attorney of the Month. Klein I was interviewing because I fully expected to spend my Lawyers Project, credits Klein with making her job is a partner in the fi rm of Mulhern & Klein, located entire legal career there, which at the time, I was. I was more fulfi lling. “Jeff is part of the core group of our in Wantagh and Manhattan. He focuses his practice certain that either my promise or the fact that I was the volunteer eff ort. His commitment to our program predominantly in matrimonial law. We honor him this only person willing to accept a public interest salary was is inspiring. He is always ready to assist another month for his long-term pro bono legal assistance to the reason I was off ered the position. After I left, and needy client, reaching out to me when he is close to disabled and low-income residents of Nassau County fearful that perhaps my promise had been recorded, I concluding a matter. I know I can count on him to take in divorce proceedings. In fact, since Klein joined the decided that I could remain a law services member, in on a complex case whenever necessary.” VLP panel well over ten years ago, he has made the spirit, by accepting volunteer cases from law services.” When not helping people extricate themselves from commitment to assist at least one pro bono client at any Klein has fulfi lled his vow, and many clients have their marriages, Klein fi nds release in riding a Peloton given time. This has translated to over 100 hours of benefi ted as a result. Ultimately, Klein started his own free legal service. fi rm in 1987 with law school classmate, Pat Mulhern, at his daughter’s apartment while being taught by his When approaching every matrimonial matter, Klein’s and they remain both friends and partners to this day. favorite instructor with a classic rock playlist in the fi rst emphasis is exploring whether the client’s objectives A particularly rewarding volunteer case of Klein’s background. can fairly be achieved through a negotiated settlement. involved a parent who had undertaken a campaign In recognition of his continuous dedication and the However, in those cases where a fair settlement cannot of alienating the children against his client, and outstanding work Jeff Klein has done for the VLP, we be achieved, he works diligently to ensure that the unilaterally moved to Arizona with them. When are very proud to honor him as our most recent Pro clients are prepared to achieve the best possible result Klein eventually compelled that parent to produce the Bono Attorney of the Month. in court. His dedication has enabled many who lack children before a Nassau County Family Court Judge, The Volunteer Lawyers Project is a joint effort of Nassau Suffolk access to the legal system to obtain proper parenting the children would not even greet their mother. After Law Services and the Nassau County Bar Association, who, for arrangements, a fair settlement, and build a new life for the Judge awarded custody of the children to his client, many years, have joined resources toward the goal of providing free legal assistance to Nassau County residents who are dealing with themselves during the most challenging of times. the children grabbed onto their father and started to economic hardship. Nassau Suffolk Law Services is a non- profi t Klein is a graduate of Clark University (1977) and St shriek in horror and protest. Nevertheless, his client civil legal services agency, receiving federal, state, and local funding John’s Law School (1980). He is admitted to the New called him shortly after to assure him that it took the to provide free legal assistance to Long Islanders, primarily in the areas of benefi ts advocacy, homelessness prevention (foreclosure York State Bar, as well as the Eastern and Southern children just two days to reacclimate and that they were and eviction defense), access to health care, and services to Districts of the U.S. Federal Court. He is also a now happy to be back with their mother. Klein felt special populations such as domestic violence victims, disabled, member of the NCBA Matrimonial Law Committee relieved and gratifi ed to have been able to bring about and adult home resident. The provision of free services is prioritized based on fi nancial need and funding is often inadequate in these and the New York Chapter of the American Academy such a lifechanging result. areas. Furthermore, there is no funding for the general provision of Matrimonial Lawyers. Klein feels the rewards of being a volunteer of matrimonial, bankruptcy, 17A Guardianship, and certain Klein’s affi nity for assisting the underserved has deep attorney are both tangible and intangible. Not only do advance directive representation, therefore the demand for pro bono assistance is the greatest in these areas. If you would like to roots. He started his legal career at Nassau Suff olk Law volunteers receive up to ten CLE credits per reporting volunteer, please contact Susan Biller at [email protected] or Services, then known as Nassau County Law Services. cycle, but they also sleep better at night. (516) 292-8100, ext. 3136.

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assistant manager of the to closely held Township Finan companies. He is DAIRY GODMOTHERS cial Center. She a CPA and a graduate of Shippens will cultivate new - burg University. Shindle Jeff Musselman, head brewer at the customer rela lishing. He has a bachelor’s degree tionships, man Millworks in Harrisburg, said the local from Millersville. Specialty cheese biz taps into local dairies ARCHITECTURE/ age the internal - market has struggled to check all three - ENGINEERING sales process, - Bramlitt GOVERNMENT buckets. Most local hop farms are growing with customized financial solu Hills Farm in Chester County. maintain the on one or two acres and not pelletizing. branch’s operational proficiency tions. She has 25 years of banking Harrisburg-based Pennsyl Jones pitched the idea of using the CSA “The vast majority of local hops are vania Public Utility Commis and mentor her financial center and financial services experienceMelfi Kuhn sion named format to develop a new way of selling craft brewed in late summer or early fall for team. Most recently, she was a cor and was a financial adviser with FOOD BUSINESS of Philadelphia and Stefanie Angstadt started making cheese cheese to cheese fans. That led Jones, Ang- wet-hop beers,” he said. “That has been porate social responsibility super Smoker Wealth Management. - Amy S. Goldman Hrivnak as a hobby soon after graduating from col- stadt and Miller in 2016 to create the Collec- the big limitation.” visor and head teller II with First She has bachelor’s and master’s members of of the Cumberland Pennsylvania County tive Creamery CSA, based out of Angstadt’s The Millworks and other breweries said National Bank. She has a bach degrees from Ashford University. Telecommunications Relay SerMatthew After a few years she knew it was some- Oley creamery, with Jones as the operations elor’s degree from York College. - Laura J. Melfi they would like to buy more local hops vice Advisory Board. Goldman thing she wanted to do full time. manager and Angstadt and Miller as the two Craft-beer boom spurs local hops farmersyear round, especially pelletized hops, to - vice president and cash manage Krieger ment officer with was Mid named Penn’s senior First has been a public member of the She opened Valley Milkhouse in a former primary cheese makers. support farmers. Lower Allen Township-based board. She is a speech-language “I think brewers absolutelyLancaster-based want RGSto use Associ Members 1st Federal Credit - Priority Bank division. She will be dairy farm in Oley in 2014 and began to “We thought between the three of us, we ates named pathologist, has conducted - Fauth Union named based in Chester County and con er. He represents could pool our resources and move beyond it,” Musselmanect said, landscape noting architect. the differences He has trainings on the importance of Alma Jimenez tribute to deposit growth through - insurance com in smell anda tastebachelor’s between degree JakeEast from Kriegerand Temple West telecommunications for those farmers markets,” Angstadt said. branch manager business development activities. panies, fraternal Coast hops.University. - with disabilities and has been According to Jones, the trio didn’t invent proj of the location She will also generate fee income benefit societies, But Musselmannamed a computer said he aided expects drafting local - involved with the administra the idea of a cheese-based CSA. But, she Matthew Fauth inside the Gi through cash management prod - insurance pro and design designer. He also is a tion of Pennsylvania’s telecom said, “A cheese CSA is still pretty unique.” hops would cost more than those from ant Foods store ucts and services, and expand and ducers and third- largersergeant West in Coast the National suppliers, Guard. given He the retain customer relationships. She munications device distribution Jones said it also makes sense. was on East Market - party administra go premiumlowerhas an hop associate volumes degree at local from farms. York Nev program. Hrivnak will represent “You can get subscriptions for anything Street, York. She has 43 years of financial services tors in insurance regulatory, trans the PUC’s Bureau of Consum Technical Institute. was a branch experience. - - actional and litigation matters. today — dog products, beauty products — er Services on the board. He manager for PNC Bank. - Upper Dublin Township, Mont Jimenez CONSTRUCTION is manager of compliance and MARKETING gomery County-based McMahon competition in the bureau’s pol

Mike and Sharon Reifsnyder stand in the hop yard of their West Pennsboro Township farm. They began growing the crop in 2017 in a bid to make locally grown hops more

GUEST VIEW OPINION GUEST VIEW LIBNTHE WHITEBOARD OPINION

OPINION PRINT & DIGITAL DATA GUEST VIEW GUEST VIEW paid by the safety-net payer, Medicaid, ProposedSUBSCRIPTION tax could harm specialty surgical+ centers Health and wellness communicationswhich can a recent analysis be indicates engaging reim burses at 81 cents on the dollar. In his budget address, Gov. Tom Wolf stated to applause, “This proposal asks for no ers areThe willing problem to pay is has that nothing what buy new taxes. Not one dime. Not one penny.” There are no hospitals or hospital staff to do with the sellers’ costs. You A strong wellness program can be a that treat only the uninsured or patients Yet, as the General Assembly combs through differentiator for recruitment, reduce the don’t believe that? I’ll give you insured by Medicaid, and Pennsylvania the governor’s proposal, we find that there tained the same order of ranking based or 2.0 percent. The cause of growth in percent between 2017 and 2018 (from cost of health care benefits and help build off, DayKeegan and others Flahive said. is a remote pilot for Argos two scenarios. cial operators, said David Day, executive are, in fact, tax increases. adapting to new demands. a team atmosphere based aroundvice healthy president at Keystone Aerial Surveys doesn’t have a public hospital system. As upon population for eight-plus years. For these areas is migration, both domestic 33,395 to 35,350 people). The rapid Unmanned Aerial Solutions based in Lititz. based in Philadelphia. That makes educa - • choices. However, communicating the a result, theWhen hospital the company community was founded in treats 2015, all One specific tax being proposed by the ad tion critical,Keystone he added. does work nationwide and has ministration is a “double tax” on ambulatory example, in 2010 the counties in order of and international, as well as natural growth Williams County experienced was it did a lot of work with real estate compa Mike Kushner is the owner of Omni Realty benefits and program elements of a well patients, regardless of the type of insur surgical centers (ASCs) like nies that wanted aerial views of properties, smallest population to largest were Cum- increase. In Dallas, it was natural in ness initiative can be hard to navigate. Hu found that some officials in states – such as ance they have — and serves as the safetythe ones in my district. New York and New Jersey – are more aware berland, Dauphin, York and Lancaster. crease that served as the largest source of issues facing the drone industry than net for the underinsured and uninsured. ASCs are convenient those in Pennsylvania. The advocacy day Even with the improvement in the insuredhealth care facilities run This is the same ranking we see in 2018, spective.was How an effort will to changethe wellness that, too, he programsaid. It by physicians that provide • Total access to Long Island Business also is hoped that Pennsylvania’s govern same-day surgical and di components benefitment agencies them? will increasinglyWhy should adopt the agnostic care for focused they care? Does it affecttechnologies, their as work agencies life in or other states have, DayThe added. association maintains that 36 out of care needs, such as eye this tax plan, this customer care might no lon - home life? Zero in on key factors affecting News List Database* surgeries, colonoscopies, ger be possible. - employees and highlight the benefitsthe 50 states of have transportation depart spine and joint procedures, ments that fund centers or programs for Another advantage of surgical centers is GUEST VIEW healthy choices. drone operations. PennDOT, it said, is not and more. There are 234 that their nurse-to-patient ratios are generally among those that have initiated outside Medicare-certified ASCs in Pennsylvania. lower than at general hospitals. These nurses • Avoid communicating to staff as if - they are marketing targets. Trust them programs.Alexis Campbell, PennDOT press secre are trained in one or a few specialized surgical • Unlimited downloads from theseThe governorinnovative expects surgical to takecenters, $12.5 which million - procedures. This system ensures that patients and communicate with them as if they tary, said PennDOT has an active internal is income they would otherwise put toward the receive the best care possible with the same are “one of us,” instead of “one of them.” drone program and has been flying drones for several“We’ve years. recently advancedincredible our operator services they provide at lower costs nurses caringECONOMIC for them throughout DEVELOPMENT their treat Use “we” and communicate from a team to patients. ASCs already pay income, sales ment. perspective, rather than a top-down State • PDFs and spreadsheets LIBN.COM and property taxes, as opposed to general hos standpoint. VOLUME 67 NUMBER 4 ■ LN.COM Part of the network JANUARY 24 30,pitals, 2020 ■ 200 which do not pay these same taxes. Greg tals protectSmaller patients facilities from also spreading help surgical infections hospi Rothman among each other. This large reduction in • Talk about the rewards – not only for Rep. are noThe “new” governor taxes in is hiscorrect proposal, when as he he says tried there nosocomial infections is critical Communityin a surgical First Fund their personal lives, but rewards of the • Book of Lists PLUS program. What’s in it for them can be a and was unsuccessful in getting this ASC tax environment. powerful motivator to expand participa passed through the General Assembly last year. It is my hope that the House Republican ASCs,Not but onlythey areface patients lower costs better at caredthese cenfor at tion. That participation, in turn, can build Caucus, along with the Pennsylvania Medical ters than they do at general hospitals. Medic a team atmosphere and lead to higher Society and other medical-service advocates, aid patients face 50 percent lower costs and expanding executive team • Unpublished data engagement. will prove once more that this tax would be patients with commercial insurance plans - • Consider health and wellness ambas detrimental to Pennsylvania surgery patients. pay as low as 25 percent the costs of ,a Cathy hospi Hirko By Jason Scott sadors. Peer-to-peer communication is tal-based visit. GROWTH MODE [email protected] powerful and partnering with passionate As healthcare and technology grow, so do the • Custom data searches team members to communicate can re practitionersIn addition also to save saving Medicare patients $2.3 money, billion these professional service firms that support them. - Expecting a record year for lending and - move the paternalistic factor. ›› Page 4 a year on just the 120 most-common proce dures that Medicare patients receive, accord • Connect the dots for employees to the ing to UC Berkeley. more growth, the Lancaster-based Commu Mariah Chuprinski bigger corporate picture. Participation in nity First Fund has been adding staff and *Please note: the Data portion of the premium wellness programs has the potential to de in 2015,UC Pennsylvania Berkeley noted ASCs in a saved recent Medicare study that TO THE EDITOR crease company health benefit costs over restructuring its executive team. $32.6 million on cataract procedures, $1.3 The nonprofit economic development or subscription is non-refundable. million on upper GI procedures and $6.9 mil all, which in turn could make a difference - in employees’ premium or out-of-pocket &lion on cystoscopy procedures. ganization+ recently hired Michael Carper, the my district, such as those at West Shore En If the Wolf administration’s tax proposal former CEO of the Housing Development PHOTO/SUBMITTED were to be enacted, the Pennsylvania Am - doscopy, I have been amazed at the benefits New Markets Tax Credit program, a federal tax bulatory Surgery Association, along with a of their innovative approach.Corp. MidAtlantic, to be its chief credit officer. Pictured, clockwise from bottom left, is Community First Fund’s executive team: Dan coalition of state medical societies, warn that - credit program operated by the U.S. Treasury Community First Fund also contracted with Betancourt, president and CEO; Mike Carper, chief- credit officer; James Buerger, executive up to 25 percent of these centers may need only minorWe all if can it happens relate to to the someone phrase, else.”“Surgery is Department that helps support large urban to close – pushing thousands of patients into - a finance expert from Chicago to serve as CFO vice president and chief lending officer; and Joan Brodhead, senior executive vice president S S S costly general hospitals and forcing centers to Nobody wants to be told they need surgery - and chief strategic initiatives officer. redevelopment projects. FRESH IDEAS DEVELOPER - and they especially do not want an unpleasuntil it hires someone to the post full-time. withdraw from Medicaid. AUDIENCE DEVELOPMENT Community First is one of two local orga FOR REDESIGNING SEEKING ant surgery experience. “We’re adding and growing dramatically,” - SMALLER OFFICES OK FOR $35M profit has made some internal promotions. nizations that can apply for those federal tax MIXED USE PROJECT vaniansThanks have beento ASCs, given thousands a convenient of Pennsyl and said Dan Betancourt, the organization’s presi COO Joan Brodhead was recently named se For subscription information and questions, please call credits. dent and CEO. nior executive vice president and chief strategic Michele Engle, Carley Lucas, Community First Fund provides financ initiatives officer, while senior vice president of ing for small businesses, affordable housing lending James Buerger was elevated to execu projects and nonprofit organizations located tive vice president and chief lending officer.

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