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NewsletterDecember 2014
President’s Message
Hon. Peter G. Crummey
“And what have we done, another year over, and a new one just begun” John Lennon - 1972
Many faiths and cultures prioritize gifting at this time of year.
Francis X. Wallace, Jr., Esq., my first year property law professor at Albany Law School, taught that a gift requires intent, delivery and acceptance. Typically, happi-ness is found anywhere in that sequence. One symbol of gifting at this time of year is Santa Claus. Someone once wrote that there are four (4) stages of Santa Claus: when one believes in Santa Claus, where one does not believe in Santa Claus, where one becomes Santa Claus and fi-nally, when one resembles Santa Claus. At every stage, though, there remains giv-ing and receiving, which can be a source of happiness. Gifts come in many ways, and attorneys, as facilitators and representatives, are
often gifting to clients and to their com-munities.
December begins in the darkest days but nears its end with the winter solstice which subsequently introduces the prom-ise of new light and is often symbolized by birth and rebirth. It is probably not a coincidence that this moment of the year has been celebrated by some as the Birthday of the Sun and yet, by others, as the Birthday of the Son. December ends with an opportunity to evaluate the preceding year and make commitments to take positive actions in the year to fol-low. Gifting is often highlighted during this month and often becomes a commit-ment for the future.
Delivering a gift sometimes involves hu-mility and in many professions and vo-cations, gifts are generated utilizing that virtue. Humility can be found in many forms. I served as lector in my parish for twenty-eight (28) years until I realized I should give the parishioners their long awaited break from my reading during services. I learned many things serving as a lector including observing countless homilies from my close proximity to the lectern. One Sunday, twelve (12) years ago, a priest, who served as President of a local college, was celebrating the service and served as the homilist. He used humble, self deprecating humor to get the atten-tion of his audience and deliver the gift of his message. He presented a fictional story of a priest who had been contacted by a neighbor who was inquiring whether the priest would perform a memorial ser-vice for the neighbor’s recently deceased dog. The holy man responded that the church does not perform such services but that possibly a non-denominational church in town would perform such a ser-vice. The parishioner then asked, “Well, do you think an offering to the non-de-nominational church of $5,000.00 for the service would be too low?” The priest re-sponded, “My God, man, why didn’t you tell me your dog was Catholic”.
In order to continue to gift the value of lawyering to our community and society, attorneys recognize their own human frailty which includes refraining from tak-ing oneself too seriously. This does not mean that we do not represent our clients zealously but it may mean that we do not put ourselves, or our emotional construct, before the needs of our clients. As attorneys, we have received the spe-cial gift of the authority to practice law. We show our thanks by gifting the prac-tice to those we serve. Thank you for serving our community and ensuring the stability of civilization made possible by devotion to and respect for law. As we know, many of the greatest gifts are given and received without ac-knowledgment or notoriety but nonethe-less remain vital to both the donor and donee. May you enjoy this season and the peace that you have provided to so many through your practice as a lawyer. Peter can be reached at 518-426-9648.
What’s inside
Executive Director.........................2Classified .................................... 2Small and Solo Attorneys ........... 3YLC ............................................. 3Pro Bono Corner ......................... 4Attorneys in the Public Service ... 4Bench & Bar ............................... 6Appeals ....................................... 7Health ......................................... 8Labor & Employment Practice .....9Practicing Law and Wellness .....10Tax Traps ...................................11Immigration Law Update ........... 12Matrimonial Law Update ........... 13Torts & Civil Practice ................. 14Clarence Darrow ........................16CLE ........................................... 19
ClAssifiedATTORNEY - Bond, Schoeneck & King PLLC, is currently seek-ing an associate for our 60+ attorney, Northeast and Regional Labor & Employment Law practice in our Albany, NY office. Can-didates must have outstanding academic credentials, excellent communication skills, and three to six years of experience in employment, discrimination, or labor relations law. We are an EEO Employer. Please send a letter of application, resume and law school transcript to [email protected].
SENIOR ASSOCIATE/LATERAL PARTNER - Nolan & Heller, LLP, a preeminent business law firm in Albany, NY, is seeking a senior associate/lateral partner with experience in transactional matters, and in the representation of banks and other institu-tional lenders in structuring, negotiating and documenting com-plex commercial lending transactions, including commercial real estate, asset-based lending and other financing transactions. The successful candidate will also have creditors’ rights experi-ence. Excellent academic credentials and communication skills required. Apply: [email protected] or mail to 39 N. Pearl St., Albany, NY.
ALBANY OFFICE SPACE - Prime Space in Great Oaks (West-ern Ave. & Northway). Ample parking and storage. Reasonably priced. 518-464-1700
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PiCtoriAl direCtoryDon’t forget to stop by our office, 112 State St., Suite 1120, to pick up your Directory. The fee is $20 to pick it up, or add an additional $6 to have it mailed to you. This is a great desktop reference!
The end of my first year at the ACBA is fast approaching. It’s been amazing on so many levels. In the past year, we’ve done quite a number of really great things, all of which supported our members or provided servic-es for the community. Here are some of the
events and projects the ACBA has been involved in this past year:
• The Honorable Peter G. Crummey’sinauguration as ACBA President in January,
• a successful winter coat drive,• Albany County Mock Trial Tournament,• The Court of Appeals dinner,• Annual Law Day Run,• Attorneys in Public Service Spring Fling,• grand opening of the Albany County Family
Court Help Center,• hiring a dedicated staff person for Lawyer Referral,• Barb Davis’s retirement party,• Young Lawyers Habitat for Humanity day,• ACBA’s Staff Habitat for Humanity day,• ACBA’s Track Day,• Judge Teresi’s portrait dedication,• Inaugural Founders Day Luncheon,• Foundation Wine Tasting,• hiring a new staff attorney for Pro Bono work,• the development and launch of a new website,• Annual Memorial Service,• Young Lawyers Food Bank volunteer day, and• the Annual Holiday Party.
Let’s not forget the dozens of CLEs the ACBA has hosted or co-hosted, the happy hours, and the educational fairs and commu-nity events the ACBA has been involved in. It’s been a whirlwind for sure, and it wouldn’t have been possible without the support and work of the Membership, the Board, the Past Presidents, the Committee Chairs. A huge thank you to all of you. And of course, the ACBA staff were vital to ensuring all of these projects and events got up and running. Saying goodbye to Barb and Rosie this year was difficult, but they were fantastic in helping ensure a smooth transition and their enduring legacy is apparent in the long running events we continue to hold.
It has been incredible meeting and working with so many people and getting so much done this past year. Now that I have this “newbie” year done and under my belt, I can’t wait to see what we will accomplish in 2015.
Happy Holidays and thank you for your continued membership!
Stacey WhiteleyExecutive Director
The views expressed in the letters and columns reflect the opinions of the au-thors and may not reflect the views of the Association, its Officers, Directors or Members. Opposing viewpoints are always welcome and can be emailed to: [email protected].
Change of sCene Brian W. Devane, Esq. has relocated his practice to his newly renovated office building at 125 Adams Street, Delmar, NY 12054. Brian’s practice focuses on plaintiff’s personal injury law and criminal defense.
SEEKING INFORMATION
REGARDING WILLSThis is a general notice that Charles Craig passed away on 10/12/14. Scott Craig, 518-528-8568, is seeking information re-garding the will that he believes was drafted in Albany County.
This is a general notice that David S. Dunn of Oswego, NY, passed on September 27, 2014. A family member is requesting that the firm that is currently holding the will to please turn it over to Oswego County Probate Court.
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Co-Chair, Daniel Coffey, Esq.Bowitch & Coffey, LLC,
sMall and solo Attorneys unite!
On December 18, 2014 at 8:30 am, Neil O’Connor (a Small/Solo Member) and Patricia Spataro, LMHC, Lawyer Assistance Pro-gram Director, will be presenting a one-hour ethics CLE entitled “Doing Nothing is Not an Option.” The session will discuss how unmanaged stress in an attorney’s practice can lead to mental health and dependency problems and will identify effective strat-egies for confronting the problems facing attorneys with stressful practices. The event will be at Bowitch & Coffey, LLC, 17 Elk Street, Albany. Cost of $20 includes one hour CLE plus coffee and bagels. Register through www.albanycountybar.com.
On January 22, 2015, the Small/Solo Committee is co-sponsor-ing (with the Committee of Attorneys in the Public Service and Young Lawyers) a post-holiday giving event to support commu-nity service in Albany County (i.e. collecting and delivering dona-tions). The event will support the Focus Food pantry (on State Street in downtown Albany). The event will be dedicated to col-lecting toiletries as they need these items most, especially post holidays! If you are a member of one of these three committees and can lend a hand, please RSVP to Lisa Harris at [email protected].
On November 10, 2014 Cliff Rhode and Sarah Gold presented a one-hour CLE regarding Ethics on Social Media and Market-ing for Attorneys at Bowitch & Coffey, LLC. Thanks to Cliff and Sarah for an informative presentation.
Volunteers are needed to judge the American Legion Oratori-cal Contest. The contest exists so that students can develop a deeper understanding and appreciation of the US Constitution. This contest provides students with an academic speaking chal-lenge that teaches leadership qualities and the history of our na-tion’s laws as well as the responsibilities, rights and privileges of American citizenship. Two judges are needed for the local con-test to be held December 6, 2014 at Lisha Kill Middle School in Colonie. (inclement weather date December 13, 2014). Three judges are needed for the district level competition to be held January 10, 2015 at Emma Willard School in Troy. (location may change but will be in Albany-Troy area) (inclement weather date January 17, 2015). Three judges are needed for the statewide competition to be held February 28, 2015 in Colonie. (inclement weather date March 7, 2015) If you are interested in volunteer-ing for this worthwhile competition, please contact Chris Timber (phone 518-505-4244; email: [email protected])
Statistics of the month. We all know that technology and the inter-net have drastically changed the way we attorneys practice law. Did you know: In 1994, 25 million people worldwide used the in-ternet. This figure grew to 910 million in 2004. This figure grew to 2.9 billion users in 2014. Every minute: 204,000,000 emails are sent, $272,000 is spent on online shopping, 48,000 apps are downloaded from iTunes, and 100 hours of videos are uploaded to YouTube. 62% of people grab their phones immediately after
Co-Chair, Sarah Gold, Esq., Gold Law Firm
they wake up in the morning. The typical person checks his/her smartphone 150 times throughout the day! (Source: The Week magazine, 11/21/14, page 12 (citing Billboard, Forbes, IACP Center for Social Media, Instagram, www.internetlivestats.com/internet-users, Mashable, Radicati, YouTube).)
Small and solo website of the month. Check out: http://mysh-ingle.com. Thanks to Cliff Rhode for recommending. If you’re aware of a good website tailored to small and solos, please email to Dan or Sarah to be posted in a future newsletter column.Hope to see many of you at ACBA’s holiday party December 18 (see details in this newsletter). Best wishes for the holidays and the new year.
We’d love to meet even more of you in 2014. If you’d like to add to the conversation, join us on LinkedIn at: http://tinyurl.com/m2w8odv
Young laWYers CoMMittee
Amanda K. Kuryluk, Esq.Co-Chair
Maguire Cardona, [email protected]
James R. Barnes, Esq. Co-Chair
Burke, [email protected]
The Young Lawyer’s Committee would like to wish everyone Happy Holidays! We invite all members to attend the Albany County Bar Association’s annual holiday party. Please see this month’s newsletter and the ACBA’s website for further details.
The YLC is also hosting a volunteer night at the Regional Food Bank on December 11, 2014, from 5pm to 7pm. If you are able to volunteer your time, please RSVP to Stacey Whiteley at [email protected]. This opportunity is open to everyone in the Association.
We are also looking forward to more community involvement activities this year. Arrangements are being made for attorneys to volunteer as mentors with local youth courts. Please stayed tuned as we are in the process of planning an informational meeting on how attorneys can get involved. We will also be holding a future habit for humanity outing. Planning for the AC-BA’s Run for Domestic Violence is another way to get involved. Please consider volunteering to support the needs of our local communities.
We would also like to congratulate all of those who recently passed the bar exam! A cocktail party honoring our newest members, who recently passed the New York State Bar Exam is being planned for late January, early February. Please continue to check the website for further information.
4Pro bono Corner
Lianne S. Pinchuk, Esq., Pro Bono Attorney
Eileen Guinan, Pro Bono Coordinator
Ever walk into the office on a Monday morning and find that work has somehow piled up? Here at the ACBA pro bono department, we have that feeling all the time! Albany County residents with-out means to pay for a private attorney are calling and need our help. Our small staff, and many volunteers, are able to assist many pro bono clients in a variety of areas where help is need-ed. We prevent evictions, assist in family law cases and provide advice on everything from avoiding collection actions to how to navigate small-claims court.
We just looked back over the 6 months ending September 30, 2014, and, boy, did we do good work! Sometimes a pat on the back is necessary. We managed to provide assistance – and prevent eviction – to almost 50 tenants. In each instance, this helps not only the tenant but all residents of the apartment. And we like to think it helps the landlords too – we work with landlords and tenants with workable payment plans and come up with ami-cable solutions. The ACBA pro bono coordinator shepherded 43 individuals to completed pro se divorces. This is no small feat, as the pro se divorce packet is long and complex, and the ACBA’s success rate of almost 100% is a testament to the work we do here. We have also provided service to many other individuals in the form of brief advice. The ACBA pro bono department re-ceives frantic calls from individuals when deadlines and trials are looming. The staff is always willing to give brief advice and help clients through a stressful period.
These efforts and numbers pale in comparison to the number of individuals seeking family court assistance. Albany Law School students, volunteer attorneys, the ACBA pro bono coordinator and the ACBA staff attorney provided information and advice to approximately 525 individuals in Albany County Family Court over a 6-month period. Many of these individuals needed more help than we were able to provide. Some were referred to our partner agencies, but a number of individuals left frustrated and with the impression that no attorney was available to provide the full representation they needed. These individuals do not qualify for public defenders.
Seeing this void in service, the ACBA has decided to do what it can to help these individuals. To that end, we are excited to announce that we have hired another attorney. Jessica Backer Brand joins the ACBA pro bono staff starting December 1, 2014. Her hiring provides us with increased depth in our family law practice and provides us with the ability to represent individuals in family court. Stop by the office or come introduce yourself to her at our next event.
Is the Do-Not-Call Law Dead?By Lisa R. Harris-Eglin
The New York State Do-Not-Call Law went into effect in April 2001. At the time, it was hailed as one of the most popular con-sumer laws passed in the State. Consumers flocked to fairs and other outreach events where state agency staffers were waiting with laptop computers to put consumer telephone numbers on the Do-Not-Call Registry (Registry). Consumers sent in their pa-per (it was 2001) registration forms by the thousands and busi-ness began signing up to receive their quarterly list of prohibited numbers. The quarterly lists were distributed via a CD (again it was 2001) and mailed using the U.S postal service. Hundreds of calls were made to consumers whose handwriting was not quite legible to make sure their numbers made it on the Registry. At the time, the electronic age had not quite dawned and it was a scramble to get the program up and running.
Immediately consumers started to complain that they were still receiving calls even though their number was “on the list.” Thou-sands of complaints were received in New York in those first weeks and months after the program went live. It was amazing to realize the importance of this simple objective, to reduce the number of telemarketing calls consumers received. Some con-sumers ignored the 31 day waiting period for most calls; stated exemptions or that the registry was designed for personal and not business numbers and complained anyway. As the agency sifted though and discarded invalid complaints, valid complaints were compiled to start enforcement. In the beginning, business-es rebuffed notices of apparent violation as they tested the valid-ity of the new Do-Not-Call environment. Although the concept of a centralized Registry was new, prohibitions on unsolicited tele-marketing calls was not and businesses began to awaken to the ding-ding-ding of paying Do-Not-Call penalties.
Prior to the enactment of the New York State law, the federal Telephone Consumer Protection Act (TCPA) enforced by the Federal Communications Commission (FCC) and its companion the Telephone Sales Rule (TSR) enforced by the Federal Trade Commission (FTC) had been protecting consumers from fraud and unwanted telemarketing sales calls since the 1990’s. Back then there was no state-wide Do-Not-Call Registry nor was there a National Registry. Consumers were required to make and busi-nesses were required to comply with Do-Not-Call requests made directly to the business during the unsolicited phone call. Over the years, the TCPA, the TSR and State law have been amended
Attorneys in the PubliC serviCe CoMMittee
Co-Chair: Daniel J. Hurteau, Esq.,
Nixon Peabody, LLP, [email protected]
427-2650
Co-Chair: Lisa R. Harris-Eglin, Esq.
Senior Counsel to the Senate Majority Republican Conference,
5to recognize the technological advancements of the unsolicited telemarketing industry. These amendments include a prohibition on prerecorded or “robo”1 telemarketing calls made to wireless devices without prior express written consent, allowing consum-ers to file a complaint even if their number is not on the Do-Not-Call Registry. Further, new rules eliminated the ability of busi-nesses to make these calls based on an established business relationship. (See, 47 U.S.C. §227; 47 C.F.R. §64.1200)
Enforcement of this popular law continues with the FTC settling its largest Do-Not-Call case to date in 2013 against Mortgage Investors Corporation. The FTC levied a fine of 7.5 million dol-lars against the company for in part, calling consumers on the Do-Not-Call list and failing to remove consumers from their call list. Since 2012, the FTC has also filed several cases against alleged “robocall” violators.2
Business has taken an active role in pushing back against the Do-Not-Call law. In 2003, the telemarketing industry3 filed an un-successful lawsuit to block the creation of the National Registry claiming the National Program was an unconstitutional restric-tion on commercial speech. In September of this year, the Elev-enth Circuit heard a landmark “robocall” case, Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D. Fla. 2013). Plaintiff’s wife provided her husband’s cell phone number upon admission to the hospital and eventually that number was sent to a debt collector. Although in 2008 the FCC issued an Order, clarifying that “the provision of a cell phone number to a credi-tor, e.g., as part of a credit application, reasonably evidences pri-or express consent by the cell phone subscriber to be contacted at that number regarding the debt,” the court refused to apply the interpretation provided for in the FCC Order. 4 The lower Court ruled in plaintiff’s favor and the question before the Eleventh Circuit was whether or not providing the consumer telephone number to one creditor (the hospital) gave another creditor (debt collector) express consent under the law. The transference of consent and what constitutes consent has been a long stand-ing issue for enforcement entities. This case is significant for New York because in the same month Mais was being heard, Federal Judge Jed S. Rakoff, U.S. District Court, Southern Dis-trict of New York agreed with the lower court in Mais and stat-ed, “[t]he FCC’s construction is inconsistent with the statute’s plain language because it impermissibly amends the TCPA to provide an exception for “prior express or implied consent.” ( Zyburo v. NCS PLUS, Inc., 12-cv-6677, p. 6.) In October 2014, the Eleventh Circuit ruled on Mais and reversed the lower court stating in part that the court overstepped by refusing to apply the FCC interpretation of express consent.
Over 223 million5 active consumer telephone numbers including 13 million New York numbers have been registered for protec-tion from most unsolicited telemarketing sales calls. New York State operated its own Do-Not-Call Registry until 2003 when the FTC and the FCC collaborated to create one National Registry. Billed as free and more efficient, most states transferred their consumers’ telephone numbers to the National Registry opting out of the expense and administrative burden of supporting a separate state registry.
Consumers still complain about receiving unsolicited telemar-keting calls. In 2013 over 18 million complaints (up from 15 mil-lion in 2012) were filed with the federal government.6
Today, unlike the CDs for purchase in 2001, business can pur-chase e-downloads of the Registry from the FTC. Businesses are able to download the prohibited numbers directly to their networks to sync them with their current call lists. As technology evolves business will continue to create innovative and more
immediate ways to direct market products and services to us.
The Do-Not-Call law is alive and well. The comment period to review the costs and benefits of the FTC’s Telephone Sales Rule ended in November 2014. Businesses and consumers should stay tuned for how the law and rules will evolve to meet our changing global market.
For Do-Not-Call business compliance information visit https://www.donotcall.gov/faq/faqbusiness.aspx. To file a complaint or register a consumer telephone number visit https://www.donot-call.gov/default.aspx.
Endnotes:1 http://www.consumer.ftc.gov/media/video-0028-what-do-if- you-get-robocall2 http://www.ftc.gov/news-events/press-releases/2013/06/mort gage-broker-targeting-us-servicemembers-will-pay-record-753 Mainstream Marketing Services, Inc. et al v. FTC, 358 F.3d 1228 (2003)4 In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 564.5 National Do Not Call Registry Data Book 20136 Id.
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Justin V. deArmas, Esq., an Associate for seven years, has be-come a partner in the Albany law firm now known as Ackerman, Wachs and deArmas, P.C., located at 90 State Street, Suite 911, Albany, New York 12207. Mr. deArmas will concentrate on criminal defense, landlord/tenant law and all aspects of personal injury law.
Honorable Peter G. Crummy, Senior Colonie Town Justice, on October 27 and October 31, 2014 served as guest lecturer to three (3) Business Law Classes at Shaker High School concern-ing the Court and legal system.
John R. Dunne, Senior Counsel with Whiteman Osterman & Hanna LLP was recently honored with the New York Law Jour-nal’s Lifetime Achievement Award at a reception held in New York City on Tuesday, October 14. The Lifetime Achievement Award recognizes lawyers each year who have built stellar reputations as advocates and used their positions to expose injustice and help bring about reforms making lasting impacts. John Dunne played a key role during the 1971 siege at Attica Correctional Facility, listening to prisoners’ demands for better living condi-tions and more rights. Although Mr. Dunne was an original spon-sor of the Rockefeller drug laws in 1973, he evolved his thinking and later argued for changes to the strict New York sentences. Additionally, Mr. Dunne sponsored the New York law protecting the confidentiality of HIV/AIDs test results. As Senior Counsel at Whiteman Osterman & Hanna, Mr. Dunne concentrates his practice on Environmental, Government Relations, Litigation, Ar-bitration and Mediation.
In addition, John R. Dunne was honored at the Prisoners’ Legal Services of New York’s 40th Anniversary Celebration on October 24, 2014. Other honorees include: Jeffrion Aubry, Assembly Speaker Pro Tempore; Professor Daniel Moriarity; and the Ap-pellate Division, Third Department in Honor of Hon. Clarence Herlihy, posthumously.
Hinckley Allen is bolstering its IP and Litigation practices with the addition of Scott & Bush, a boutique intellectual property and business litigation firm in Providence. “By combining the capabilities and expertise of the lawyers in both firms, Hinckley Allen has further strengthened its ability to serve clients facing complex IP and litigation matters at the local, national and inter-national level,” said David Rubin, Managing Partner at Hinckley Allen. “We are delighted to welcome them to the firm.”
LaMarche Safranko Law PLLC announces inclusion in the 2015 “Best Law Firms” List for the second year in a row. Firms included in the 2015 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal exper-tise. To be eligible for a ranking, a law firm must have at least one lawyer listed in the 20th Edition of The Best Lawyers in America© list for that particular location and specialty. Andrew Safranko has been named to The Best Lawyers in America© list for 6 con-secutive years.
In addition, for the second consecutive year, firm principals George LaMarche III and Andrew Safranko have been named to the Upstate New York Super Lawyers List as top attorneys in Upstate New York for 2014. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who
benCh & bAr in the newsNews to share? Please e-mail us at [email protected].
have attained a high-degree of peer recognition and professional achievement. The selection process includes independent re-search, peer nominations and peer evaluations.
James D. Linnan and Charlene S. Fallon of the firm of Linnan & Fallon, LLP have again been selected to be honored by Best Lawyers in America. Mr. Linnan has over 40 years of trial ex-perience and has been recognized by Best Lawyers in America for many years. Charlene S. Fallon has utilized her experience as a registered nurse and attorney to bring a unique knowledge and understanding of the medical field to the courtroom. The firm has focused its practice on the representation of severely injured victims of accidents and medical negligence. The firm was recently named number one by the New York Law Jour-nal’s “New York Verdicts & Settlements Hall of Fame” in the area of Medical Malpractice. Linnan & Fallon maintains offices at 61 Columbia Street, Albany, New York, 48 Dietz Street, Oneonta, New York, 27 Pearl Street, Glens Falls, New York and 329 Main Street, Catskill, New York. For follow up questions, please con-tact James Linnan at 518-449-5400
The Honorable Stacy Pettit will be sworn in on December 31st at 2pm. All are invited to attend the ceremony at Surrogate Court, reception to follow in the rotunda.
Wilson Elser is pleased to announce that Peter A. Lauricella has again been recognized in the 2014 edition of “Super Law-yers” in the category of Business Litigation. Lauricella is a Part-ner with Wilson Elser and this past year assumed the role of chair of the Litigation Practice for the Albany Office of the firm.
7APPeAls
Dispelling Appeals Myths
There are many myths about appeals, among litigants and trial attorneys alike. Two misconceptions often expressed are that the selection of the appellate judge to author a given decision is not random and that the job of the judges is easy. Some appel-late realities, at least in our own Appellate Division, Third Judicial Department, were brought home to me last month when I joined Justices Rose and Garry on a CLE panel. Their insights that day inspired a desire to dispel some myths.
For one thing, justices do not pick the cases they want. Instead, they are randomly assigned to appeals by the Clerk’s Office. As far as notions about a “cushy” job, consider this: with the depar-ture of Justice Stein, the Third Department will have only nine justices. It has been several years since the court had its full complement of 12 justices. For about a year, they labored with only seven justices, while waiting for the Governor to fill vacan-cies.
Given the current appeals, each justice has primary responsibil-ity for about 200 decisions a year, and many of the cases involve enormous records and complex issues. Further, the justices must each participate in deciding several times that many ap-peals in cases where other panel members will author the deci-sions. (To help accomplish all that, the justices have only one law clerk each.) On top of everything, the court decides thousands of motions each year. No wonder the judges urge us to be concise and clear in our briefs and to crystallize the facts and arguments to their essence.
That the members of any given panel know the cases is evi-dent from the “hot benches” we face. (In the 26 years since I clerked there, the Third Department has gotten “hotter” at oral arguments.) That careful consideration is given to each case is evident from the depth and detail of the decisions issued—something that sets the Third Department apart. Further, despite the demands of their jobs, many justices routinely participate in CLEs and other legal community events. That is pretty amazing.
In the face of the high volume of appeals, confused attorneys, and needy pro se litigants, the Third Department Clerk’s Office is unfailingly friendly, patient, and helpful. That is also pretty amaz-ing and sets the Third Department apart. Perhaps we Albany-area appellate attorneys are biased toward our “home court.” But my colleagues and I who appear in many different appellate tribunals do think our Third Department is special and would like to spread the word and dispel the myths.
Think twice before you cry about your next appellate loss. Maybe that was the appropriate outcome. Maybe you had unrealistic expectations. Maybe you did not do an effective job. Maybe the dissent favoring your position will become tomorrow’s majority
opinion, if the case facts are right, perspectives have changed, and you are creative enough. In any event, no system can prom-ise perfect results; and misunderstanding or disrespecting the system can undermine the effectiveness of your appellate repre-sentation. Rather than feeling cynicism or despair in defeat, lick your wounds and then learn from it. Regroup and then, in appro-priate cases, exercise your client’s right to seek reargument and/or further appeal as of right or by permission.
Some antidotes to myths about appeals are the wonderful CLEs offered by ACBA, as well as other associations. Bench/bar pan-els can be especially illuminating as to how things really work in the appellate realm. After participating, you may conclude that few of us would welcome the workload of appellate judges or the responsibility of making decisions that will seal the fate of appellate litigants and often have far-reaching implications. You may also be struck by the seriousness of purpose with which the judges approach their collective decision-making mission. But the process can only work if we practitioners do our part in com-petently presenting arguments to appeals courts in our briefs and our oral arguments.
So in this holiday season, add our “home court”—Presiding Jus-tice Peters, the other Third Department justices, Clerk Mayberg-er, and his fantastic staff—to your list of things to be thankful for. And make a New Year’s resolution to learn more about appeals in 2015 and to find out about the valuable appellate resources available, such as the State Bar’s Pro Bono Appeals Program and its Moot Court Program for Court of Appeals oral arguments. Finally, resolve to create realistic expectations for your clients (especially appellants!) and to do an outstanding job on your next appeal.
Cynthia Feathers is an appellate attorney in Glens Falls.
Cynthia Feathers, Esq.Cynthia Feathers Attorney At Law
The Honorable Helena Heath with the Albany High School Law Day Ambassadors on November 14, 2014 as part of the AHS Youth Law Day event co-ordinated by Judge Heath and Ms. Emily Lawyer of AHS. Twenty attorneys volunteered to speak to classes throughout the day at the high school re-garding the legal profession. Thank you to all the vol-unteers, the teachers, students, and to Judge Heath and Ms. Lawyer for their work on this event!
YOuTH LAW DAY AT ALBANY HIGH SCHOOL
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CONNECTICuT SuPREME COuRT DE-CISION HIGHLIGHTS CuRRENT ISSuES IN HEALTH PRIVACY LITIGATION
Individuals who seek relief for the im-proper disclosure of their protected health information (“PHI”) do not have a private
right of action for damages against health care providers under the federal Health Insurance Portability and Accountability Act (“HIPAA”) or most state health care privacy laws. As an alterna-tive, many plaintiffs have sought relief under a variety of state common law theories, such as breach of contract or negligence, and the number of reported outcomes involving these types of claims is growing1. A decision issued in early November by Con-necticut’s highest court demonstrates that courts are willing to entertain common law negligence claims based on HIPAA viola-tions and even utilize HIPAA’s privacy rule to inform the stan-dard of care owed to a patient. It also serves as a reminder for health care providers to ensure that appropriate procedures are in place to deal with PHI disclosures made in response to sub-poenas and other court proceedings.
In Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 314 Conn. 433, --- A.3d --- (Ct. Nov. 11, 2014), the plaintiff, Em-ily Byrne, began a personal relationship with Andro Mendoza in May 2004. Byrne ended the relationship in September 2004, apparently around the time she learned she was pregnant. By-rne moved out of state and instructed the Avery Center not to release her medical records or any medical information to Men-doza. In May 2005, Mendoza filed a paternity action against By-rne and served the Avery Center with a subpoena duces tecum to produce Byrne’s medical record. The provider complied with the subpoena by mailing the records to the court. The Avery Center “did not alert [Byrne] of the subpoena, file a motion to quash it, or appear in court.”2 Mendoza later obtained the court file, reviewed the Avery Center records, and allegedly harassed Byrne and made extortion threats.3
Byrne sued the Avery Center, alleging (1) breach of contract, based on the provider’s alleged violation of its own privacy poli-cy; (2) negligence, due to the unauthorized disclosure allegedly in violation of HIPAA and a Connecticut health privacy statute; (3) negligent misrepresentation, for promising that Byrne’s “med-ical file and the privacy of her health information would be pro-tected in accordance with the law”; and (4) negligent infliction of emotional distress.4
After cross-motions for summary judgment, the court dismissed the second and fourth claims finding that these claims were pre-empted by HIPAA. The trial court rejected Byrne’s position that she merely used HIPAA as “‘evidence of the appropriate standard of care’ for claims brought under state law, namely, negligence.”5 The court instead concluded that the negligence claim was es-sentially a claim for a violation of HIPAA and because HIPAA did not supply a private right of action, the negligence claims fell squarely within HIPAA’s preemption provision. However, the trial court denied summary judgment motion on the breach of contract and negligent misrepresentation claims, concluding that “genuine issues of material fact existed with respect to contract formation through the defendant’s privacy policy, and whether the plaintiff had received and relied upon that policy.6
Byrne appealed and the Connecticut Supreme Court7 reversed the trial court’s decision, finding that HIPAA did not preempt By-rne’s negligence claims. First, the Court looked at the regulatory history of HIPAA, its emphasis on the need for patient privacy, and its regulations implementing patient privacy rules, and con-cluded that “neither HIPAA nor its implementing regulations were intended to preempt tort actions under state law arising out of the unauthorized release of a plaintiff’s medical records.”8 The Court also took particular note of commentary in the federal Health and Human Services Centers for Medicare and Medicaid Services final rule implementing the privacy regulations, which stated that “the fact that a state law allows an individual to file [a civil action] to protect privacy does not conflict with the HIPAA penalty provi-sions.”9
Second, in addition to finding that HIPAA does not preempt negli-gence claims, the Court also declared that HIPAA could be used to help define the standard of care for such types of claims. After surveying a number of federal and state court decisions, the Court declared that “to the extent it has become the com-mon practice for Connecticut health care providers to follow the procedures required under HIPAA in rendering services to their patients, HIPAA and its implementing regulations may be utilized to inform the standard of care applicable to such claims arising from allegations of negligence in the disclosure of patients’ medi-cal records pursuant to a subpoena.”10 The court declined to ad-dress other issues and remanded the matter to the trial court.11
While the avoidance of preemption is surely a victory for Byrne, the long term impact of this decision remains unclear. First, the trial court must determine whether the Avery Center’s response to the subpoena was proper under the applicable law. The By-rne decision does not supply much information about the sub-poena itself, and no information is provided about the scope of the subpoena. Providers should always scrutinize the scope of any subpoena to ensure that disclosures of PHI are appropri-ately limited.12
Similarly, a provider must also know its obligations under HIPAA depending on the issuer of the subpoena. In Byrne, it appeared that Mendoza’s attorney had issued the subpoena, as opposed to obtaining a court order for the records, or presenting the sub-poena to be “so ordered” by the judge in the paternity action.13 Although not expressly discussed by the Court, it can be inferred that the subpoena did not include a HIPAA-compliant authoriza-tion or release signed by Byrne permitting disclosure.
HIPAA’s privacy rule has particular requirements for providers to follow when a subpoena is served without an order by a court or administrative tribunal. The provider must receive “satisfactory assurance” from the party seeking the PHI that “reasonable ef-forts” have been made to either notify the individual whose PHI is sought that a subpoena has been issued, or to secure a quali-fied protective order limiting the use of the PHI and requiring its destruction after the litigation.14 The “satisfactory assurances” of the individual must include a written statement that the party seeking the PHI attempted written notice to the individual that included sufficient information to allow the subject of the PHI to raise an objection, and that the time for objection has passed or the objections of the subject have been resolved consistent with the information sought.15
The analysis should not stop there. Providers and their attor-neys should be on the lookout for state laws that have even stricter requirements. In New York, for example, a subpoena for medical records must include a written authorization from the patient who is the subject of the records; otherwise a provider need not even respond to the subpoena.16 Other state law re-
heAlthDavid Nardolillo, Esq.
O’Connell & Aronowitz, P.C. [email protected]
9quirements may apply to certain providers or types of records. For example, providers licensed by the Office of Mental Health must analyze whether a disclosure to a third party would be det-rimental to the patient or others prior to releasing records, even if the patient has authorized the release.17 These laws fall within an explicit exemption to preemption under HIPAA because they are “more stringent” than the HIPAA privacy rules.18 Of course, subpoenas that are accompanied by court orders do not require patient authorization,19 although under some state laws a court must make specific findings that disclosure outweighs the need for confidentiality.20
Another likely issue for the trial court in Byrne will be to decide whether the plaintiff suffered concrete injury as the result of the allegedly improper disclosure. Several courts that have enter-tained negligence actions based on HIPAA breaches have re-quired that the plaintiffs demonstrate “concrete, particularized, and actual” injury in order to have standing to assert negligence claims.21 Accordingly, the Byrne trial court may need to analyze the precise nature of the alleged harassment and extortion suf-fered by the plaintiff. Other considerations may also be relevant to this analysis, such as whether the medical records at issue would have been required to be disclosed in a paternity action, and whether the Avery Center’s production included PHI that would have even been outside the scope of a proper subpoena. Providers and their attorneys should monitor how the damage issue is analyzed if the case proceeds to trial.
Even though the final lessons of the Byrne case have yet to be written, providers who are regularly called upon to produce re-cords in response to subpoenas should use the experience of the Avery Center as a timely reminder of the need to consult the applicable health privacy laws before disclosures are made.
(Endnotes)1 Certain providers may also be subject to professional discipline or other enforce-ment actions against licensure as a result of improper disclosures of PHI. Those issues are outside the scope of this article.2 Id. at *1.3 Id. at *2.4 Id.5 Id.6 Id. at *3.7 The Supreme Court assigned itself the appeal via a right granted to it by statute. See Id. at *3 n.3.8 Id. at *79 Id.10 Id. at *8.11 Id. at *10.12 See, e.g. 45 C.F.R. § 164.512(e)(1)(i).13 See Byrne at *8. 14 See 45 C.F.R. § 164.512(e)(2)(ii)-(v).15 45 C.F.R. § 164.512(e)(2)(iii).16 See C.P.L.R. § 3122.17 N.Y. Mental Hyg. Law § 33.13(c)(7).18 45 C.F.R. § 160.203(b)19 See N.Y. Pub. Health Law § 18(1)(e); 45 C.F.R. § 164.512(e)(1)(i).20 N.Y. Mental Hyg. Law § 33.13(c)(1); see also In re Evan E, 114 A.D.3d 149 (3d Dep’t 2013) (requiring court order to include specificfindingthat“interestsofjusticesignificantlyoutweighthe needforconfidentiality”inordertocompelproductionofrecords governed by Mental Hygiene Law) .
21 See Tabata v. Charleston Area Med. Ctr., Inc., 759 S.E.2d 459, 464 (W. Va. 2014). In addition, my colleague Danielle Holley and law clerk Kathleen Evers recently analyzed several 2014 published decisions on this issue in an article entitled “IMightBeInjured, Someday…Maybe?”CourtsQuestionPlaintiffs’Standingin HIPAABreachSuitsAllegingFutureHarm, available at http:// healthlawsidebar.com/?p=1264
labor and eMPloYMent PraCtiCe
Glen P. Doherty, Esq.McNamee, Lochner, Titus & Williams, [email protected]
December presents the perfect opportunity to update our mem-bers with respect to a recent employment law development in the Commonwealth of Massachusetts.
Effective July 1, 2015, employers in Massachusetts must pro-vide up to 40 hours of sick time per calendar year to each and every employee. Employers with 11 or more employees must provide paid sick time. Employers with 10 or fewer employees may provide unpaid sick leave.
Sick leave may be used for the following reasons: (1) to care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse; (2) to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or (3) to address the effects of domestic violence on the employee or the employee’s dependent child.
Under the law, employees will earn a minimum of one hour of leave for every 30 hours of work (regardless of full-time or part-time status). Leave shall start to accrue on July 1, 2015 or from the date of hire (whichever is later).
Employees may carry over up to 40 hours of unused sick time to the next calendar year, but are not entitled to use more than 40 hours of such time in any one calendar year. Unlike other accrued time (e.g., vacation), employers are not required to pay employees for unused sick leave upon termination of employ-ment.
Under the new law, employers that already provide paid time off to employees under a paid leave policy are not required to provide additional sick leave, provided they permit employees to use at least 40 hours per calendar year for sick leave.
Under the statute, employers may not interfere with an employ-ee’s right to earn sick leave or retaliate against an employee for using such time. Employers are also prohibited from retaliating against an employee because of the employee’s support of an-other employee in the exercise of her sick leave rights.
The statute can be enforced by Massachusetts Attorney Gen-eral, who may seek injunctive relief and penalties. There also exists a private cause of action under which an employee may recover mandatory triple damages as well as attorneys’ fees.
Members that practice in Massachusetts are well advised to re-view their clients’ current policies to confirm compliance with the new law, or draft specific new policies to meet the statutory re-quirements.
10PraCtiCing laW and Wellness
LIGHTENING uP DECEMBER
The month of December can bring more than the darkest days of the year. It’s a time many of us dread because of eating too much of our most indulgent food of the year. The result can be an unwanted weight gain along with not feeling our best. My suggestion to help you through this tough month: Make the time to stop at a farmer’s market. There are two in downtown Albany (Plaza on Wednesday and SUNY Central on Thursday.) Here are 12 things you can buy at the market make the twelfth month one to celebrate:
1. A bunch of carrots. There are no better carrots than locally grown, recently harvested ones. I love the multi-colored ones! Take the bunch home, peel and wash them all and bring back to the office. Nibble as many as you want. Pass by the cookie platter and eat a carrot. Hopefully, the craving will go away. Your stomach will thank you;
2. Apples. Be brave and try some new varieties of old apples. One of my favorites “new” heirloom apples is Arkansas Black. Theses can go right to the office and sit in a bowl on your desk. Let them tempt you. Offer them to co-workers and clients;
3. Turnips. If you have a memory of awful tasting boiled turnips from your childhood, try this: Slice the turnips into slivers and saute’ in olive oil until brown. You will be shocked at the sweet mild flavor. My kids used to fight over the last of the pan. (They would still be fighting if they had not grown up and moved out.) You can also dice turnips, toss with oil and roast in a 375 degree oven until brown (flip them over to cover all sides). Yum;
4. Celeriac. This largely unknown vegetable is great for eating raw but can also be diced and thrown into the oven with their friends the turnips above. It is also good in soup. As the name implies, it has a mild celery- like flavor;
5. Nuts. Many vendors sell plain or flavored nuts. They are great for taking the edge off your appetite if you are heading to a holiday event and are afraid of gorging yourself on the little treats out to tempt you;
6. Nut butters. Make sure you taste the non-peanut butters. They have a sophisticated flavor that will surprise you. Spread some almond or cashew but-ter on one of the apples at your desk;
7. Beets. Please do your beets a favor and do not boil them. Wash, wrap in foil, tuck in a few pieces of whole spice (cloves, cinnamon stick, star anise) and
bake in the oven (usually 45 min. to an hour). I bake a batch on the weekend and eat them all week.
8. Seckel pears. These are one of the best hidden trea-sures of local markets. These pears are tiny, easy to transport and taste wonderful. I call them baby pears. Don’t wait until they are soft to eat because they can get mushy.
9. Garlic. Toss some whole cloves with their skin into the turnips or celeriac that you are roasting. Squeeze out of the skins onto the vegetables for serving.
10. Brussel sprout stalks. Admire the beauty of these little trees before you indulge in their flavor. Cut off the stalk, wash, slice in half, parboil (till tender but still green) and then stir fry with some of the garlic you bought.
11. Mushrooms – stuff them with something wonderful like cooked spinach mixed with cooked brown rice, egg white, some dried herbs and salt and pepper and bake. Forget the buttery, cheesy, bread crumby ones.
12. Kale – Kale salad is in “in” food of 2014. Make your own by washing the kale, removing stems and cut-ting into small pieces. Add a few teaspoons of olive oil and use your hands to rub it vigorously into the leaves. The bowl of kale should reduce by about half. Add a flavored vinegar and indulge.
Since everyone is busy with the holiday season, I won’t spend a lot of time on the all the benefits of taking advantage of your trip or trips to the market. Suffice it to say that all the choices provide something good for your body like antioxidants, good fat, nutrients of all kinds without being calorie laden. Even the walk to the market will do your body good.
Ann Lapinski has a Master’s Degree in nutrition and practiced in the area of nutrition and wellness for 4 years before attend-ing law school. Ann has continued her involvement in the field of nutrition/wellness as an avocation throughout her law career by writing articles, doing presentations and teaching cooking classes.
Ann Lapinski, Esq.NYS Dept. of
Environmental [email protected]
11tAx trAPs
Richard V. D’Alessandro, Esq.Professional Corporation
The Mailbox RuleIt’s Monday, December 15th - the last day to file the federal es-tate tax return for the Smith Estate. The return and check are in the envelope, it’s properly addressed, with the sufficient postage using the office private postage meter. For added protection, Julie prepared certified mailing receipts. John just needs to mail it at the post office. John likes to go to the post office himself. He knows the clerks who will stamp the envelope and give him the stamped certified mailing receipt. The estate tax is large and if filed late, John knows the IRS will assess a late filing penalty, a late payment penalty, and interest.
At 4:00 p.m. John heads off for the post office. There’s a long line to the counter when he gets there. The line seems end-less and he fears he’ll be late for an important appointment with a new client. Instead of waiting, John spots a mail receptacle along the wall where he could just as easily deposit the enve-lope for mailing. He realizes he won’t get the certified mailing receipt, but he could take a photo of the envelope and a selfie mailing the envelope, as proof. After all, he’s already inside the post office, why not deposit it, avoid the long line and timely meet his new client.
What should John do?
John knows the mailbox rule: if it’s timely mailed - it’s timely filed. IRC § 7502. It applies to tax returns, tax payments, even filing a petition in the U.S. Tax Court, simply by using the U.S. mails. It›s timely even if it is received after its due date. But, what if it›s deposited in a mailbox (even one located in the post office) on the last day, at the last hour, but the U.S. Postal Service post-marks it on the next day?
It’s late. Never mind you say, John used his office private postage meter showing a timely date. The private service even keeps a log. It’s still late. The “U.S. Postal Service postmark trumps a private meter mark”. Malekzrad v. Commissioner, 76 T.C. 963; Sanchez v Commissioner, T.C. Memo 2014-223 (2014). But wait you say, John took a photo of the envelope and a selfie mailing it.
It’s still late:
“If the postmark on the envelope is made by the U.S. Postal Ser-vice, the postmark must bear a date on or before the last date, or the last day of the period, prescribed for filing the document or making the payment. If the postmark does not bear a date on or before the last date, or the last day of the period, prescribed for filing the document or making the payment, the document or
payment is considered not to be timely filed or paid, regardless of when the document or payment is deposited in the mail. Ac-cordingly, the sender who relies upon the applicability of section 7502 assumes the risk that the postmark will bear a date on or before the last date, or the last day of the period, prescribed for filing the document or making the payment. See, however, para-graph (c)(2) of this section with respect to the use of registered mail or certified mail to avoid this risk. If the postmark on the en-velope is made by the U.S. Postal Service but is not legible, the person who is required to file the document or make the payment has the burden of proving the date that the postmark was made. Furthermore, if the envelope that contains a document or pay-ment has a timely postmark made by the U.S. Postal Service, but it is received after the time when a document or payment postmarked and mailed at that time would ordinarily be received, the sender may be required to prove that it was timely mailed (emphasis added)“. Regs. § 301.7502-1(c)(1)(iii)(A).
And if registered or certified mail is used:
“If the document or payment is sent by U.S. registered mail, the date of registration of the document or payment is treated as the postmark date. If the document or payment is sent by U.S. certi-fied mail and the sender’s receipt is postmarked by the postal employee to whom the document or payment is presented, the date of the U.S. postmark on the receipt is treated as the post-mark date of the document or payment. Accordingly, the risk that the document or payment will not be postmarked on the day that it is deposited in the mail may be eliminated by the use of reg-istered or certified mail (emphasis added)”. Regs. § 301.7502-1(c)(2).
The mailbox rule extends to private delivery services as well - but only as to these services designated by the Treasury Secretary:
“1. DHL Express (DHL): DHL Same Day Service; DHL Next Day 10:30 am; DHL Next Day 12:00 pm; DHL Next Day 3:00 pm; and DHL 2nd Day Service;
2. Federal Express (FedEx): FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2 Day, FedEx International Priority, and FedEx International First; and
3. United Parcel Service (UPS): UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.
* * * DHL, FedEx, and UPS are not designated with respect to any type of delivery service not identified above (emphasis add-ed).” IRS Notice 2004-83, 2004-2 C.B. 1030.
Petitioner Eichelburg learned a harsh lesson. Before its due date, he used “FedEx Express Saver delivery service” to deliver his U.S. Tax Court petition. However, his petition was delivered after the due date. Because FedEx Express Saver is not au-thorized by Notice 2004-83, his petition was late. Eichelburg v. Commissioner, T.C. Memo. 2013-269 (2013).
So, what should John do? He should wait in line, get a date stamped certified mailing receipt and apologize to his new client for being late for their appointment. An apology is much cheaper than penalties and interest.
12 To be honest, I have mixed emotions about President Obama and how effective he has been during his presidency. But the reality is, the New York Times is absolutely correct in say-ing that “[s]ix fruitless years is time enough for anyone to realize that waiting for Congress to help fix immigration is delusional.” It’s actually been longer than six years. President George W. Bush tried for CIR during his presidency, and that fell apart. Oth-ers before him have tried and failed as well.
Our immigration system is broken. Is it really practical to think that we’re going to deport 11 to 13 million aliens who are unlaw-fully present in the United States? No. Does it make sense that we educate foreign nationals at some of our best institutions of higher education, and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that al-lows them to? No. Our immigration system is broken, and our national leaders, with the input of relevant stakeholders, should discuss, debate and implement CIR.
But since a legislative fix does not appear in the offing, President Obama has decided to go it alone.
Those who may benefit from his new policy decision will not be afforded lawful permanent residence (i.e., a Green Card), nor will they be put on a path to citizenship. Only Congress has the ability to make those types of changes (with, of course, the sig-nature of the President).
This is by no means a perfect solution. Those who are impli-cated by the President’s policy are only receiving a temporary reprieve from deportation. Congress could change the law, or a future president could cancel President Obama’s program. If that were to occur, those who participated in the program would be out in the open and thus exposed to removal. Nevertheless, I think it’s a step in the right direction, and worth the risk for those aliens who would participate in it.
As the New York Times stated in its editorial, “[t]here will surely be intense debate when [President] Obama draws the lines that decide who might qualify for protection. Some simple questions should be his guide: Do the people he could help have strong bonds to the United States? Does deporting them serve the na-tional interest? If it doesn’t, they should have a chance to stay.” I agree.
iMMigration laW uPdate
When I recently reflected upon the 2014 midterm election results, I was not particularly hopeful that Congress would get back to work in 2015 and pass meaningful Comprehensive Immigration Reform (“CIR”). So when President Obama recently announced that he would go it alone and use his executive authority to make some meaningful change to our nation’s immigration enforce-ment priorities (among other things), I was pretty darn happy to hear it.
There are two issues here. First, whether the President’s ac-tions are politically wise. Second, whether the President’s ac-tions are lawful. I believe the answers to both questions are yes.
Recently, the New York Times published (in my opinion) an ex-cellent editorial, making the case why President Obama should go it alone and use his executive authority to give temporary protection to millions of aliens unlawfully present in the United States. I am well aware that this is a hotbed issue, and people have legitimately strong arguments on both sides of it. The sim-ple fact is, however, is that a legislative solution was not likely to happen. (Maybe it will now.) As some of the political pundits have recently pointed out, it’s been over 500 days since the Sen-ate passed their version of CIR. During this time, the House of Representatives has done absolutely nothing (even though all indications suggest that the votes were there to pass CIR). Now with Republicans controlling both Houses of Congress, the chance for a legislative solution to CIR seem remote.
Amidst all of the discussion about whether the President should be using his executive authority to effectuate change on the im-migration front is also the question as to whether his actions are lawful. Let’s put that aside for a moment.
History is replete with examples of presidents using the power of their office, without Congress, to regulate the enforcement and implementation of our nation’s immigration laws, including the exercising of “prosecutorial discretion” to defer deportations, among other actions. Indeed, since 1956, every single U.S. president has granted some sort of temporary immigration relief to one or more groups in need of assistance, for any number of reasons, including assisting individuals they felt were in need when the law failed to address their needs.
So are the President’s actions constitutional? I believe they are. Can the President protect individuals or certain classes of indi-viduals from deportation? I believe he can. The issue is one of “prosecutorial discretion.” The notion of prosecutorial discre-tion is grounded in our Constitution, and as noted above, has been used by every president since 1956. Indeed as recently as 2012, the U.S. Supreme Court stated that “[a] principal feature of the removal system is the broad discretion exercised by immi-gration officials…Federal officials, as an initial matter, must de-cide whether it makes sense to pursue removal at all…” Arizona v. United States, 132 S. Ct. 2492, 2499 (2012).
David W. Meyers, Esq.Meyers and Meyers, LLP
13MatriMonial laW uPdate
Bruce J. Wagner, McNamee, Lochner, Titus & Williams, [email protected]
port,” by providing that maintenance continue until such time as the husband retires and the wife begins receiving her portion of his pension benefits. The wife contended that Supreme Court erred by failing to direct that the husband select a particular pen-sion payout option. The Third Department held: “Inasmuch as no request for such a directive was made by the wife — either during the course of the trial or in her posttrial submissions — this issue is not properly before us.” [A trial practice lesson here: be careful what you ask for, so that your client does, indeed, get that which he or she desires. See also Justice Lynch’s dissent.]
Violation of Order of Protection – Standard of ProofIn Matter of Stuart LL. v. Aimee KL, 2014 Westlaw 5365844 (3d Dept. Oct. 23, 2014), respondent appealed from an August 2013 Family Court order, finding her in willful violation of a September 2012 order of protection, which had directed each party to refrain from any communication with the other for 2 years. Respondent thereafter attempted on several occasions to call petitioner at his various phone numbers. Family Court determined that “clear and convincing evidence” (phone records and a witness from the phone company) established that respondent had willfully violated the order of protection and, among other things, ordered a mental health evaluation and sentenced her to 75 days in jail. She served 11 days prior to a stay pending appeal. Respondent argued on appeal that the definite sentence, as a punitive rem-edy, was error, because Family Court did not find willfulness “be-yond a reasonable doubt.” The Third Department noted that the statute may be a source of confusion: Family Court Act §846-a refers to “competent proof”; further, an Article 8 proceeding can involve civil contempt, criminal contempt, or both. The Appellate Division explained that criminal and civil contempt have differ-ent levels of proof: beyond a reasonable doubt, and clear and convincing evidence, respectively. The Third Department held: “Where, as here, a person who has violated an order of protec-tion is incarcerated as a punitive remedy for a definite period — with no avenue to shorten the term by acts that extinguish the contempt — *** [t]he standard of proof *** is beyond a reason-able doubt’ (citations omitted). Our cases indicating otherwise should no longer be followed.” However, the Appellate Division found that the “beyond a reasonable doubt” standard was met, and sentenced respondent to time served, with the remaining days suspended, provided that she complete the ordered men-tal health evaluation and otherwise comply with Family Court’s order.
Amendment to Family Court Act §451The portion of Family Court Act §451(1) which required a sup-port modification petition to be supported by “an affidavit and evidentiary material sufficient to establish a prima facie case,” is repealed, effective December 22, 2014, but still applies to petitions to vacate or set aside such orders. New subdivision 2 requires a modification petition to allege facts sufficient to meet one or more of the subdivision 3 [formerly subdivision 2] grounds.
Separate Property – Credit Granted; Transfers to ChildrenIn Whitaker v. Case, 2014 Westlaw 5856837 (3d Dept. Nov. 13, 2014), both parties appealed from a September 2013 Supreme Court judgment, which directed equitable distribution. The par-ties were married in 1994 (2 children) and the husband com-menced the divorce action in 2008. The wife argued on appeal that Supreme Court erred in awarding the husband two bank accounts he opened for $100,000, jointly with each child, which the husband contended he funded in large part, with $187,000 in funds received and/or inherited from his aunt. The Appellate Division found that the $100,000 account with the daughter de-rived from marital funds, such that the wife’s distributive share was increased by $50,000, but sustained Supreme Court’s find-ing that the $100,000 account with the parties’ son was the hus-band’s separate property. The wife further contended that Su-preme Court erred in classifying as marital property a $100,000 payment she received from an employment discrimination claim. However, the Third Department noted that “after initially deposit-ing the proceeds into an individual account on July 30, 2003, the wife created a joint account with the husband on August 18, 2003,” and upheld Supreme Court’s transmutation finding. The principal in the account remained intact until 2008 when, with Su-preme Court’s approval, the wife used the $100,000 balance to purchase 2 lots and to construct a home. The Appellate Division held that Supreme Court properly treated the 2 lots and home as marital property, but erred in not giving the wife a credit. The Third Department reasoned that although the settlement funds were placed in a joint account, those funds were not commingled with other marital assets, and, further, the wife replenished the principal balance with other separate property, such that the wife should have received a $100,000 credit for the purchase of the lots and home.
Maintenance Duration Related to Pension & Pension OptionsIn Fisher v. Fisher, 2014 Westlaw 5856373 (3d Dept. Nov. 13, 2014), the wife appealed from a January 2013 Supreme Court judgment, which ordered equitable distribution and awarded her maintenance in the sum of $500 per month for 3 years. The par-ties, married in 1966, have two adult children, and the husband commenced the divorce action in 2011. Both parties were in their early 60s and in good health. Although the husband had been the primary wage earner during the course of the marriage, at the time of trial, the wife had $27,000 per year from salary and Social Security benefits, and the husband earned $40,000 per year as a school bus driver. Supreme Court distributed the par-ties’ marital assets in a nearly equal fashion and also awarded the wife one half of the husband’s school district pension. The Appellate Division modified the duration of maintenance, “in or-der to avoid a potential gap in the wife’s receipt of financial sup-
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14
Physician Affirmation in Support of Motion for Summary Judgment
Howard v Stanger, et al., (Egan, Jr., J., 518207/518208 [11/20/14])
Plaintiff’s decedent died one day after being treated in the emer-gency department at defendant Columbia Memorial Hospital. His death was the result of cardiac tamponade due to ruptured dissecting thoracic aortic aneurysm. Following his death, plain-tiff’s wife started a medical malpractice and wrongful death action against the emergency room physician that treated him the day prior to his death, Dr. Stanger, Dr. Stanger’s employer and the hospital. Dr. Stanger, along with the other defendants, moved for summary judgment dismissing the complaint. In support of defendants’ motions, Dr. Stanger offered an affidavit signed by him. Supreme Court granted defendants’ motions and dis-missed the complaint. Following appeals by plaintiff, the Third Department reversed finding that Dr. Stanger’s affidavit was not sufficient to satisfy defendants’ initial burden on the motions for summary judgment. Of interest was plaintiff’s argument that Dr. Stanger’s affidavit was insufficient to meet defendant’s burden on the motions because his license to practice medicine was under a one-year stayed suspension at the time he tendered his affidavit. While the Court found the suspension alone did not automatically rendered the affidavit insufficient, it did find Dr. Stanger’s failure to disclose the status of his medical license troubling. The Court noted that Dr. Stanger’s first paragraph in his affidavit stated “I am a physician duly licensed to practice medicine in the State of New York” but failed to mention that only two months prior the stay of suspension had been imposed on his license and he was practicing under terms of probation. The Court went on to state that this “glaring omission is entirely inconsistent with Stanger’s ethical obligations as a practicing physician and, in our view, seriously calls into question the medi-cal opinion he has rendered regarding his diagnosis, care and treatment of decedent.” Furthermore, Dr. Stanger’s affidavit and opinions expressed therein were based in part upon his records of treatment of the decedent but the doctor acknowledged that he did not complete his charting of decedent’s emergency room stay until the next day, after he learned decedent had died and after being questioned by another physician regarding the care and treatment he had provided to the decedent the day prior. Given these facts, as well as testimony by Dr. Stanger at his EBT that created questions of fact both on issues negligence and causation, the Court found defendants’ had not met their burden.
Release – Does it Bar Subsequent Claim?
Ford v Phillips, et al., (Garry, J., 517621 [10/16/14])
Plaintiff was injured in a car accident when his vehicle was struck by a vehicle owned by defendant Phillips and insured by Trav-elers Insurance Company. Shortly after the accident, plaintiff spoke with a claims representative from Travelers on two oc-
torts And Civil PrACtiCe
Laura Jordan, Esq.Powers & Santola
casions and met face-to-face with the claims representative on one occasion, during which meeting the plaintiffs signed a general release of all claims in favor of defendants and Travel-ers in exchange for $750. Six months later the plaintiff initi-ated an action against defendants for injuries caused by the accident. Defendants moved to dismiss pursuant to CPLR § 3211 (a) (5) based upon the general release executed by plaintiff. Supreme Court granted the motion and following ap-peal by plaintiff the Third Department reversed. While a clear and unambiguous release signed by parties will ordinarily bind them, a release may be set aside on the basis of fraud or mu-tual mistake. When it comes to general releases for personal injuries, the Court noted a “sharp distinction is drawn between known injuries and mistakes as to the consequences of known injuries; a release may be invalidated if the parties mistakenly believed that an injury did not exist when the release was exe-cuted.” In this case, there is no evidence that when the release was signed by plaintiff that either he or the Travelers’ claims representative knew of plaintiff’s cervical injury or herniated disks, which are the injuries plaintiff is seeking recovery for in his negligence action. The Court found it was unclear whether there was a mutual mistake at the time the release was signed as to the true nature of plaintiff’s injuries and therefore dis-missal of the complaint as a matter of law at this junction of the case was premature.
Medical Records of Non-Party Should not be Disclosed
Perez v Fleischer, et al., (McCarthy, J., 518749 [11/20/14])
In this lead paint exposure case, the defendants requested disclosure of medical and academic records of the injured in-fant plaintiff’s mother and siblings, as well as production of the mother for an IQ test. Over objection by plaintiff, Supreme Court ordered disclosure of the academic and medical records of the plaintiff’s mother, production of the mother for an IQ test and production of the siblings academic and medical records for the court’s in camera review. On appeal by plaintiff, the Appellate Division modified Supreme Court’s determination by further limiting disclosure. Specifically, the Court found as plaintiff’s siblings and mother are non-parties to this action, who did not consent to disclosure of their medical record or waive their doctor-patient privilege, their medical records should not be disclosed. Furthermore, the Court found the mother should not be compelled to take an IQ test, which would focus on information extraneous to plaintiff’s condition, such as all of the factors contributing to the mother’s IQ. The Court did find Supreme Court struck a proper balance in requiring produc-tion of the academic records of the siblings and mother for in camera review as defendants had proffered an expert affidavit establishing the relevance of these records to their defense of the case and these records while private are not privileged.
Insurance Coverage for “Newly Acquired” Vehicle
Nationwide Insurance Company of America v Porter and Parks, et al., (Lahtinen, J.P., 517072 [10/16/14])
Plaintiff Nationwide Ins. Co. brought this action seeking decla-ration that it had no duty to defend or indemnify defendant Por-ter with regard to an automobile accident allegedly caused by Porter’s negligence and resulting in injuries to defendant Parks. Prior to the accident, defendant Porter had a 1994 Chevrolet truck insured by plaintiff Nationwide. While that policy was still in effect, plaintiff sold the Chevy truck and obtained a Dodge
15in trade for an ATV that he owned. Porter took the plates off the Chevy and placed them on the Dodge while he awaited the title for the Dodge to be provided to him by the seller. Shortly after taking possession of the Dodge, Porter was involved in the collision at issue while driving the Dodge. However, Porter had not yet notified plaintiff Nationwide of the change in his vehicle from the Chevy to the Dodge. Nationwide disclaimed coverage, brought this action and subsequently moved for summary judg-ment. Supreme Court granted defendant’s motion prompting this appeal. In reversing, the Appellate Division reminds us that the specific language in the insurance contract will govern but
any ambiguities in the contract would be construed in favor of the insured. In the policy, Nationwide stated it would provide coverage to Porter for the Chevy, as well as “a private passen-ger auto newly acquired by you.” Supreme Court found that as Porter had not yet registered the Dodge or received title as of the accident date, this provision did not apply to provide coverage. However, the Appellate Division noted that as the term “newly acquired” was not defined, and in light of the reasonable expec-tations of the average insured, the Dodge fell within the “newly acquired” provision and therefore was covered under Porter’s policy with Nationwide.
ClArenCe dArrow Vignettes
“Learning when not to speak is an acquired skill.”
Clarence Darrow
how CAn you defend “those” PeoPle
By: Ray Kelly, Esq.
How can you defend fellow human beings accused of crime? The question comes in many forms and many voices. Some-times from brother/sister lawyers. Sometimes judges. Some-times cops. Always from politicians especially around election time. Sometimes with an air of arrogant intolerance, sometimes with a tinge of anger, rarely with a sense of admiration.
Why did you pick that career? How can you defend “those” peo-ple?
What would happen to America, New York, and the Capital Dis-trict if defenders of fellow human beings did not exist? In the absence of the criminal defense bar, who would fulfill the duty of constant vigilance? Who would ensure that no conviction is obtained unless (1) supported by legally sufficient evidence (2) acquired in a constitutionally acceptable manner?
The power of the police and prosecution and the powers behind the politicians would be absolute. Americans would seldom be angered by a “not guilty” verdict because none would ever occur.
Other nations have adopted systems where prosecutorial ac-cusation equals conviction. Other people have lived under the “protection” of such an infallible system. Those who are in power prefer such a system. The only rule of politics is once you get power, keep it, at any cost. People in power hate constitutions and bills of rights because of the limits placed on their power.
Those who are governed prefer limits on power.
Patriots of our American Revolution had a healthy, justified skep-ticism of people in power. Our Founders believed only fools or slaves gave blind obedience to power. Our Founders under-stood that a citizen left unprotected by a defender of fellow hu-man beings armed with the Bill of Rights must pray that their gov-ernment is righteous, virtuous, perfect. Without guile or malice, slow to anger, tolerant of dissent, racially and ethnically blind.
Our Founders understood that a citizen without rights must pray that they or their loved ones are never accused, for without the protection of an adversary system and a presumption of inno-cence, simple accusation equals conviction.
We are advocates because we understand that while you may be able to guarantee that you won’t commit a crime, you can-not guarantee that you won’t be charged with a crime. We are advocates because if you are charged with a crime, or if your mother, father or loved one were charged with a crime, wouldn’t you want every protection afforded by the Constitution and the Bill of Rights? Or would you feel that you had too many rights? And if you or your loved one was wrongly accused, then who is the victim?
When we walk into the courtrooms of New York, we are not merely defending the person who stands accused. We are de-fending a legal system that guarantees the presumption of in-nocence and every citizen’s right to equal protection under the law. The only way we can be assured of our right to a fair trial is if every citizen in our land is assured of his/her right to a fair trial. When one of us is denied justice, we are all denied justice.
What Thomas Jefferson said over 200 years ago applies today - - trial by jury is the anchor of all of our liberties. By giving power to the people through the jury system, our Founding Fa-thers created roadblocks to police and prosecutorial misconduct and prosecution-oriented power brokers. Our Framers understood all too clearly that control of the police, control of the prosecution, control of the government and control of power takes place in the courtrooms of this Country or it does not take place at all. And they enshrined these principles by providing for the right to counsel in the Sixth Amendment.
The lawyers most critical to protecting the constitutional rights of New Yorkers are not the ones watched and adored by the media. The heroes in the trenches are the devoted criminal defense lawyers who, following the commands of our Founding Fathers, do their work in empty courtrooms, without the press, without an audience and, in far too many instances, without the family of the fellow human being on trial.
On a daily basis in every county of this State, a diminishing num-ber of lawyers for our less fortunate speak on behalf of all of us by championing the rights of those wracked desolate by poverty, circumstance, class, color or hatred.
Let’s be clear and let’s make no mistake about this - - while an in-dictment may be captioned People v. Human Being, each time that a courtroom is brought to order, we are all on trial, every one of us, and we all are the people and we all are entitled to zealous representation by a committed and adequately funded defender of fellow human beings.
We are advocates. We have had many clients but a single cause.
Justice.
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On November 14, 2014 at the Inaugural Founders Day Luncheon, The Honorable Victoria A. Graffeo was honored for her service to the Bench and Bar with the presentation of a resolution by the ACBA President, Hon. Peter G. Crummey. Here Judge Graffeo displays her resolution with Judge Crummey and NYSBA Pres-ident-Elect David P. Miranda.
THANK YOu INAuGuRAL FOuNDERS DAY SPONSORS
HonoraryConstructive CopyCreative Capital
Hilton AlbanyMcNamee, Lochner, Titus & Williams, P.C.
SustainingAlbany Law SchoolThe Legal Project
Wilson Elser Moskowitz Edelman & Dicker LLP
RegularBurke & Casserly, P.C.
New York State Bar Association Dept. of Pro Bono Affairs
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ADDITIONAL CLE PROGRAMS ARE ADDED ON AN ONGOING BASIS CHECK OUR WEBSITE FOR
THE MOST UP TO DATE SCHEDULE
DOING NOTHING IS NOT AN OPTION – ATTORNEY HEALTH CLETransitional: Appropriate for both newly admitted and experi-enced attorneys
Date: December 18
Location: Bowitch & Coffey, LLC, 17 Elk Street, Albany
Time: 8:30 AM Registration
Presenter: Neil O’Connor, Esq. and Patricia Spataro, LMHC
Price: Members: $20.00; Non-Members: $20.00; Non-Lawyers: $20.00
CLE Credit: 1.0 Ethics
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Continuing legal eduCationThe Albany County Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Provid-er of CLE in the NYS and has also been given approval to pro-vide non-traditional CLE format courses. Hardship Scholarships are available. For a list of our CDs, or additions to our programs, please visit our website: http://www.albanycountybar.com.
ADOPT A FAMILY PLEDGE DRIVEHAPPY HOLIDAYS! ACBA is pleased to announce its First Annual “Adopt a Family” Pledge Drive.
A family of five has been adopted. The family includes a moth-er with an 8 year old boy, a 7 year old girl, a 2 year old boy, and a 7 month old girl. They are presently in the Interfaith Partnership for the Homeless program. Their wish list includes socks, shoes, snowsuits, underwear and yes, a Barbie Doll and a bike. (What kid wants underwear for a present? One who doesn’t have any.)
The ACBA and the members do a great job collecting for St Catherine’s at the Christmas Party, but we felt compelled to do just a bit more and adopt this family in need. A recent re-port says 1 out of every 30 children is homeless in the United States. Picture 1 child in every classroom as homeless. WOW!
We are asking the ACBA members and firms to help by mak-ing a monetary pledge in any amount by December 10th. You can email Eileen Guinan at [email protected] to make your pledge and then mail in your pledge amount during the month of December. The contribution will be tax deductible. Our goal is to raise $2500.00 and with the ACBA’s membership help, we are sure we will reach that goal!
This is the time of year when generosity of spirit and sup-port for those less fortunate is most appreciated; let’s work together to share those good feelings with this family and give them a holiday to remember!
Questions about the Adopt a Family program or about your participation please call the office, 445-7691 and ask for Ei-leen Guinan.
ALBANY COUNTY BAR ASSOCIATION CONTINUING LEGAL EDUCATION
LAWYERS AS EMPLOYERSA multi-part CLE series, beginning in March 2015, addressing some of the most common legal issues faced by lawyers as employers: Hiring, Firing and Everything in Between; Hand-books: Discrimination Statutes (including what to do when you receive a Charge of Discrimination); Workers’ Compensation (with particular study of retaliation issues and interaction with other statutes); and Unemployment Insurance (including an analysis under New York law as to who is and who is not an independent contractor).
PROGRAM FACuLTY
GLEN P. DOHERTY, ESQ.McNamee, Lochner, Titus & Williams, P.C.677 BroadwayAlbany, New York 12207ALEX C. DELL, ESQ.Law Firm of Alex C. Dell, PLLC450 New Karner RoadAlbany, NY 12205ROBERT F. MANFREDO, ESQ.Bond, Schoeneck & King, PLLC111 Washington AvenueAlbany, New York 12210
LISA F. JOSLIN, ESQ.Gleason, Dunn, Walsh & O’Shea LLP 40 Beaver Street Albany, New York 12207
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2014 rAtes And deAdlinesAlbany County Bar Association Rates: Member: $50 in our classified section (approximately 30-40 words) additional fees may be incurred as the number of words increase. Non-member: $100 in our classified section (approximately 30-40 words) additional fees may be incurred as the number of words increase. There is an additional $10 charge for Blind Ads. Seminars announced: $60 (approx. 30-40 words).
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Dec 5 Albany County Mock Trial Meeting-ACBA
Dec 8 Memorial Service-Albany County Family Court
Dec 9 Board Meeting
Dec 18 Doing Nothing is Not an Option CLE- Bowitch and Coffey
Dec 18 Annual Holiday Party-Yonos
Jan 13 ACBA Annual Meeting/Swearing In Ceremony
Feb 11 Court of Appeals Dinner-Hilton Albany
