NOVEMBER/DECEMBER 2008 VOL. 80 | NO. 9 JournalNEW YORK STATE BAR ASSOCIATION Judith S. Kaye We take the opportunity to recognize Chief Also in this Issue Judge Judith Kaye with a tribute to her many Medical Malpractice and accomplishments and the imprint she leaves the Modern-Day Athlete upon the Court. 2008 Article and Author Index by Skip Card BESTSELLERS FROM THE NYSBA BOOKSTORE November/December 2008 Construction Site Personal Injury New York State Physician’s FFormsorms NEW! Litigation — New York Labor Law HIPAA Privacy Manual (2007) oonn CCDD §§ 200, 240(1), 241(6) (2008 Revision) A hands-on tool for health care providers Collections and the Enforcement of and their legal counsel, this publication Perhaps no single scheme of statutory causes of action Money Judgments, Second Edition provides guidance for a physician’s office has initiated more debate. 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This edition has been expanded to James M. Pedowitz, Esq., a nationally renowned New York Lawyer’s Deskbook, include comprehen sive information on employment expert in real estate law and title insurance, and opportunities with the various levels of government Second Edition (2007–2008) authored by some of the most distinguished practitio- in New York State. WINNER OF THE ABA’S CONSTABAR AWARD ners in the field. This is an essential guide to the many PN: 41298 / Member $30 / List $45 / 264 pages The Second Edition consists of 25 chapters, each complex subjects surrounding real estate law. Includes covering a different area of practice with practical the new ALTA policies and TIRSA endorsements. advice in that particular area of law. 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December New York Municipal Formbook, PN: 42158 / Member $160 / List $200 / 1,588 pages New York Lawyer’s Deskbook, FFormsorms 2008–2009 Third Edition (2006) oonn CCDD A rich resource for attorneys dealing * Free shipping and handling within the continental New York Lawyer’s Formbook, U.S. The cost for shipping and handling outside the with local government procedures. Over 1,100 forms continental U.S. will be added to your order. Prices 2008–2009 covering all aspects of municipal law. do not include applicable sales tax. PN: 41606C / Member $150 / List $185 / 3,318 pages Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0362 JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Elissa D. Hecker Irvington Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Gary D. Spivey Albany Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside PUBLISHER Patricia K. Bucklin Executive Director NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org ADVERTISING REPRESENTATIVE Network Media Partners Chris Martin Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS NOVEMBER/DECEMBER 2008 JUDITH S. KAYE BY SKIP CARD 10 18 Smith, 1984 BY GARY HOPPE AND DARREN O’CONNOR 20 Immuno AG., 1989–1991 BY LAURA JOHNSON 22 Jacob, 1995 DEPARTMENTS BY ROBERTA A. KAPLAN 5 President’s Message 24 Jamaica Public Service Co., 1998 8 CLE Seminar Schedule BY JEREMY R. FEINBERG 32 Burden of Proof BY DAVID PAUL HOROWITZ 26 Kihl, 1999, and Its Progeny 44 Book Review BY JENNIFER G. SCHECTER BY ALBERT ROSENBLATT 45 Editor’s Note Campaign for Fiscal Equity, 2003 30 46 Index to Articles 2008 BY MATTHEW J. MORRIS 48 Index to Authors 2008 34 A Whole Different Ballgame . Or Is It? 51 Language Tips Medical Malpractice and the BY GERTRUDE BLOCK Modern-Day Athlete 52 Attorney Professionalism Forum BY TARA R. DI LUCA 54 New Members Welcomed 58 Index to Advertisers 58 Classified Notices 63 2008–2009 Officers 64 The Legal Writer BY GERALD LEBOVITS CARTOONS © CARTOONRESOURCE.COM The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2008 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. NYSBA Journal | November/December 2008 | 3 PRESIDENT’S MESSAGE BERNICE K. LEBER Honoring 25 Years of Devoted Public Service ome jurists stand in a league of tory death penalty for killers already their own. That is why we are serving a life term of imprisonment Shonoring Chief Judge Judith S. was cruel and unusual punishment. Kaye with this special issue of the Former clerks Gary Hoppe and Darren Journal, in which we pay tribute to O’Connor relate how Judge Kaye one of New York’s most distinguished methodically addressed every factual public servants.