OCTOBER 2011 VOL. 83 | NO. 8 JournalNEW YORK STATE BAR ASSOCIATION Also in this Issue Planning and the Case Law From Transsexual Client Finding the Mortgagee the Crypt Landlord-Tenant Law 101 The Law of Halloween by Daniel B. Moar T rust The Easiest Way to Get Paid! your transactions Accept all payments in a professional manner. to the only Increase business by accepting cards for retainers. merchant account Control cash flow and reduce collections. recommended by over Separate earned and unearned fees. 60 Reduce fees on credit card processing by 25%. bar associations! The process is simple. Begin accepting payments today. LawPay now offers a secure online payment web link, Call 866.376.0950 or visit www.LawPay.com and a new iPhone option! LawPay.com 866.376.0950 credit card processing AffiniPay is a registered ISO/MSP of Harris, N.A., Chicago, IL BESTSELLERS FROM THE NYSBA BOOKSTORE October 2011 Attorney Escrow Accounts – Rules, Consumer Bankruptcy, 2nd Edition Insurance Law Practice, 2nd Ed. (2010) Regulations and Related Topics, 3rd Ed. This new edition covers consumer bankruptcy from both Completely updated in 2010, Insurance Law Practice is an exhaustive and invaluable reference for attorneys This new edition provides useful guidance on escrow debtor and creditor perspectives. It provides official and who practice insurance law in New York State. funds and agreements, IOLA accounts and the Lawyers’ procedural forms, as well as the local bankruptcy rules PN: 41256 / Member $110 / List $140 / 2 vols. Fund for Client Protection. The greatly expanded for New York’s federal districts. appendix features statutes, regulations and forms. PN: 40456 / Member $125 / List $170 / 770 pages New York Lawyer’s Deskbook PN: 40269 / Member $45 / List $55 / 330 pages and Formbook (2010–2011) With CD of forms, regulations and statutes. Counseling Content Providers Award-winning and packed with new information in the Digital Age and forms for use in over 25 practice areas. Best Practices in Legal Management Written and edited by experienced media law attorneys PN: 4152 / Member $550 / List $710 / 7 vols. The most complete and exhaustive treatment of from California and New York, this book is an invaluable the business aspects of running a law firm available guide for anyone in the field of pre-publication review New York Practice Monograph anywhere. as well as attorneys responsible for vetting their clients’ Series 2010–2011 or firm’s website. Includes forms, checklists and charts This 16-book set comprises chapters excerpted PN: 4131 / Member $139 / List $179 / 498 pages on CD. from the New York Lawyer’s Deskbook and Formbook. Includes CD containing all the forms. PN: 4063 / Member $50 / List $65 / 480 pages PN: 40010GP / Member $500 / List $600 Commercial Leasing, 2nd Ed. NYSBA Practice Forms on CD-ROM Depositions: Practice and Procedure This new edition addresses a multitude of issues critical to 2010–2011 both the tenant and the landlord. Especially useful are the in Federal and New York State Courts, More than 600 of the forms from Deskbook and sample model leases that cover conditions favorable to both 2nd Ed. Formbook used by experienced practitioners in the landlord and the tenant. Includes forms, instructions A detailed text designed to assist young attorneys and their daily practice. and charts on CD. experienced practitioners with all aspects of depositions. PN: 615011 / Member $280 / List $315 PN: 40419 / Member $165 / List $210 / 2 vols. PN: 40749 / Member $75 / List $90 / 738 pages Post-Trial Practice and Procedures Foundation Evidence, Questions Post-Trial Practice and Procedures is the compre- Construction Site Personal Injury and Courtroom Protocols, 3rd Ed. hensive guide to dealing with complex post-trial Litigation (2010) This new edition, along with its collection of forms and issues. The authors – experienced trial attorneys and Newly revised with updated case and statutory law, this protocols, has two new chapters: Direct Examination and an appellate justice – cover everything from chal- book covers all aspects of actions under N.Y. Labor Law Cross-Examination. lenging verdicts before and after the jury has been §§ 200, 240(1) and 241(6). PN: 41070 / Member $55 / List $65 / 238 pages discharged, to post-verdict setoffs, to understand- PN: 4047 / Member $80 / List $110 / 520 pages ing the interest categories on damage awards and money judgments. PN: 4175 / Member $45 / List $60 / 242 pages NEW! Contract Doctrine and Marital New York Antitrust and Consumer Public Sector Labor and Agreements in New York Protection Law Employment Law, 3rd Ed. A unique, two-volume reference work covering a New York Antitrust and Consumer Protection Law is writ- The leading reference on public sector labor and complex and challenging area of law. ten and edited by attorneys with decades of experience employment law in New York State is completely PN: 4159 / Member $175 / List $225 / 2 vols. in antitrust and consumer protection law. It includes a revised with updated case and statutory law. discussion on the rise of the importance of the Donnelly PN: 42057 / Member $150 / List $185 / 1,670 pages Definitive Creative Impasse- Act, New York State’s Antitrust law, its relation to the Breaking Techniques in Mediation Federal Sherman Act and an overview of multistate litiga- Real Estate Transactions: tion issues. Written by leading practitioners, trainers, academi- Contaminated Property Mitigation PN: 40258 / Member $50 / List $65 / 260 pages cians and judges, this volume is replete with tips, This book covers both sales and lease agreements techniques and tools for breaking impasse in media- in discussing how to resolve the concerns of all tion and negotiation. A resource for lawyers who N.Y. Criminal Practice, 3rd Ed. parties to an agreement; due diligence and reporting This valuable text of first reference has been represent clients in mediation and negotiation, gen- requirements; liability, tax consequences and cleanup reorganized and rewritten to reflect all changes eral practitioners and other professionals interested programs; and types of contamination and recom- in the law and practice since the publication in honing their ADR skills. mendations for remediation. of the second edition in 1998. PN: 41229 / Member $45 / List $60 / 312 pages PN: 4029 / Member $40 / List $50 / 96 pages PN: 41460 / Member $120 / List $140 / 1,168 pages Expand your professional knowledge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB1178 Order multiple titles to take advantage of our low flat rate shipping charge of $5.95 per order, regardless of the number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. will be based on destination and added to your total. JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Marvin N. Bagwell New York City Brian J. Barney Rochester Mary Grace Conneely Monticello Elissa D. Hecker Irvington Jonathan Lippman New York City Eileen D. Millett New York City Gary A. Munneke White Plains Thomas E. Myers Syracuse Gary D. Spivey Colorado Springs, Colorado Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Nicholas J. Connolly Tarrytown PUBLISHER Patricia K. Bucklin Are you feeling Executive Director NYSBA PRODUCTION STAFF ASSISTANT EDITOR overwhelmed? Joan Fucillo DESIGN Lori Herzing The New York State Bar Association’s Erin Corcoran EDITORIAL OFFICES One Elk Street Lawyer Assistance Program can help. Albany, NY 12207 (518) 463-3200 We understand the competition, constant stress, and high FAX (518) 463-8844 expectations you face as a lawyer, judge or law student. www.nysba.org Sometimes the most difficult trials happen outside the court. ADVERTISING REPRESENTATIVE Unmanaged stress can lead to problems such as substance Network Media Partners abuse and depression. Bruce Tackett Executive Plaza 1, Suite 900 11350 McCormick Road NYSBA’s LAP offers free, confidential help. All LAP services Hunt Valley, MD 21031 (410) 584-1960 are confidential and protected under section 499 of the e-mail: [email protected] Judiciary Law. EUGENE C. GERHART (1912 – 2007) Call 1.800.255.0569 Editor-in-Chief, 1961–1998 NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM CONTENTS OCTOBER 2011 CASE LAW FROM THE CRYPT The Law of Halloween by Daniel B. Moar 10 DEPARTMENTS 5 President’s Message 20 Planning Considerations for the 8 CLE Seminar Schedule Transsexual Client 18 Burden of Proof by CARYN B. KEPPLER by David Paul Horowitz 34 E-Discovery 28 The Mortgagee Formerly Known As… by Steven C. Bennett by VINCENT G. DANZI 36 Tax Alert by Robert W. Wood 40 New York Residential Landlord-Tenant 51 New Members Welcomed Law 101 for the Transactional Attorney 60 Classified Notices by MARGARET B. SANDERCOCK and 60 Index to Advertisers GERALD LEBOVITS 61 Language Tips 50 Coming in the November/December by Gertrude Block Journal 63 2011–2012 Officers 64 The Legal Writer by Gerald Lebovits The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2011 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publica- tion of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December.