LI Life Calendar · Benefit 1 in 9: The Long Island Breast Cancer Action Coalition & The Prostate Cancer Foundation 25th Anniversary Celebration of the Suffolk County Women’s Bar

_________________

By Craig D. Robins

Many consumer debtors learn the hardway that they get what they pay for whenhiring someone to prepare their bankrupt-cy petition.

The law is very clear that only an attor-ney can give legal advice, and this is toprotect the public. Yet there are manynon-attorneys who offer to prepare bank-ruptcy petitions for a fee, and many hor-ror stories that go along with this.

There are strict rules about offeringbankruptcy legal advice. When Congressgave the Bankruptcy Code a minor over-haul in 1994, it added several consumerprotection requirements aimed at non-attorneys who prepare bankruptcy peti-tions.

The code labels a non-attorney whoreceives compensation to prepare a bank-ruptcy petition as “bankruptcy petitionpreparer” (BPP) and forbids BPPs fromoffering legal advice, defined as advisingthe debtor: whether to file bankruptcy,which chapter to file, whether the debtorwill be able to keep his or her home, howto characterize the debtor’s assets ordebts, and about bankruptcy proceduresand rights.

My first experience with a non-attorneybankruptcy petition preparer was in theearly 1990's. A Long Island bankruptcydebtor came to me, literally crying, thathe had filed a bankruptcy petition on hisown, and the Chapter 7 trustee was aboutto take his house.

The client had used a “bank-ruptcy paralegal” to prepare hisbankruptcy petition after seeingan ad in a local PennySaver. Theparalegal incorrectly advised thedebtor about New York bank-ruptcy law, and as a result, thedebtor did not realize that hishome was not totally protectedby the New York homesteadexemption.

As a result of that situation, I brought aclass action proceeding against this para-legal who had prepared several hundredbankruptcy petitions on Long Island.

When I filed the class action suitin bankruptcy court, the clerk’soffice at first did not know whatto do with it as they had neverencountered a class action suit inbankruptcy court before.

As a result of that litigation,the paralegal was assessed finesexceeding $100,000 and waspermanently enjoined from everpreparing petitions again.

St. John's law student ThomasSzaniawski, in an American BankruptcyInstitute Law Review article that was justpublished last week, discussed a case of

first impression that addressed the inter-section of cyberspace and bankruptcy.

The United States Court of Appeals forNinth Circuit, in Reynoso v. United(Frankfort Digital Services v. Kistler)held that a provider of web-based bank-ruptcy software was a BPP under theBankruptcy Code and that, under statelaw, the features of the petition prepara-tion software constituted the unauthorizedpractice of law.

The defendant had a website thatoffered to prepare bankruptcy petitionsfor consumers. A consumer could use the

(Continued on page 21)

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Vol. 25 No 7March 2009website: www.scba.org

SUFFOLK LAWYERTH

E

THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

The Saga of Nine Male Grumps............................3

ABA in Boston ........................................................4

Moving away from business as usual ...................6

Hot Picks - Michelle Shocked..............................18

Confidentiality on court ordered treatment ........5

Freeze Frame.........................................................14

Restaurant review.................................................20

Book review...........................................................18

Future Lawyers Forum........................................11

_________________________________________

Legal ArticlesADR........................................................................16American Perspectives .........................................19Animal Law...........................................................13Bench Briefs ............................................................4Commercial Litigation ...........................................8Court Notes .............................................................9DMV.......................................................................17Entertainment & Media Law ................................6Pro Bono ................................................................12Real Estate.............................................................14Second Circuit Briefs ...........................................10Trusts and Estates (Cooper)................................12Trusts and Estates (Harper)................................16

__________________________________________

Academy News ......................................................28Among Us ................................................................7Calendar: Academy..............................................28Calendar: SCBA .....................................................2Letters ....................................................................18Secretary’s Message .............................................19

INSIDE…MARCH 2009

The FutureAin’t What

It Used To Be__________________

By James R. Winkler

The title of this column is, of course, from the famous YogiBerra. But we all know what he was trying to say and the sen-timent is no truer than with the legal profession today.

Over the 30 plus years that I have been practicing law wehave all witnessed changes in the substantive law and volumesof new rules and regulations designed to make the system moreefficient and move cases along. Changes in the substantive law,many designed in good faith to remedy perceived wrongs, haveoften made the law more complex and the outcome of a caseless certain. The regulatory changes have often added moreexpense to litigation, thereby denying access to the legal sys-tem to many.

The growing belief that the court system is overburdened andoften inefficient, among other things, has led to the growth ofAlternative Dispute Resolution (“ADR”). Several years ago theSuffolk County Bar Association formed a Task Force to studyADR and warned of its many dangers and impact on the legalprofession. Today the Bar Association has an active ADRCommittee with a growing membership and its members areamong the most committed members of our Association. This

(Continued on Page 21)

PRESIDENT’S MESSAGE

DLWP Dinner - Dinner Libations Without PomposityFriday, March 20 from 6 to 11 p.m.Crest Hollow Country Club, WoodburyBenefit 1 in 9: The Long Island Breast Cancer Action Coalition &The Prostate Cancer Foundation

25th Anniversary Celebration of the Suffolk County Women’sBar Association Monday, March 30 at 6 p.m.The Watermill, Smithown. $95/personKeynote speaker: Honorable M. Kunin, Ambassador and Former Vermont GovernorFor further information call Joan McNichol (631) 265-1355.

SCBA presents Prostate Health Program Thursday, April 2, 6 to 7:30 p.m.Bar Center, FreeDr. David B. Samadi, Chief of the Division of Robotics andMinimal Invasive Surgery at Mount Sinai School of Medicine inNY will speak about prostate health and the importance of testingin men. RSVP by calling the Bar Center.

Women’s Health SymposiumTuesday, April 21, 5:30 to 9 p.m.Bar Center, $25 light dinner includedHeld in conjunction with the SCBA, the Women’s Bar and theNorth Shore LIJ Health System, Katz Women’s Hospital/Women’sHealth Institute. For further information, call Jane LaCova at the Bar Center.

Annual MeetingMonday, May 4Location to be announcedElection of officers, directors and members of the NominatingCommittee, Awards presentation.

BAR BRIEFS

Internet Bankruptcy: Illegal Practice Of Law?Petition preparation website engaged in unauthorized practice of law

James R. Winkler

Craig D. Robins

Suffolk County Legislator Ricardo Montano, Honorable John M. Czygier, Jr., Amistad LI Black Bar Association President GhenyaGrant, Suffolk County District Administrative Judge H. Patrick Leis III, Judge William Ford, Honorable Toni A. Bean, and SCBAPresident Jim Winkler at the Black History Month celebration. More photos on p. 14.

Ph

oto

by: A

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ulm

an

Black History Month Celebration

THE SUFFOLK LAWYER — MARCH 20092

SCBA

OF MEETINGS AND EVENTS

All meetings are held at the Suffolk County Bar Association Bar Center,unless otherwise specified. Please be aware

that dates, times and locations may be changedbecause of conditions beyond our control.

For any questions call: 631-234-5511.

MARCH 200923 Monday Board of Directors, 5:30 p.m., Board Room.24 Tuesday Insurance & Negligence - Defense Counsel Committee,

5:30 p.m., Board Room.Health & Hospital Law Committee, 6:00 p.m., E.B.T. Room.

31 Tuesday Grievance Committee, 5:30 p.m., Board Room.

APRIL 20091 Wednesday Surrogate’s Court Committee, 5:30 p.m., Board Room.2 Thursday SCBA’s Prostate Health Information Program, 6:00 p.m. to 8:30 p.m.,

Bar Center. Call Bar Center and let us know you’re attending. 6 Monday Executive Committee, 3:00 p.m. Board Room.14 Tuesday Education Law Committee, 12:30 p.m., Board Room.15 Wednesday Elder Law Committee meeting, 12:15 p.m., Great Hall.20 Monday Board of Directors, 5:30 p.m., Board Room.21 Tuesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room.

Insurance & Negligence - Defense Counsel Committee, 5:30 p.m., E.B.T. Room.SCBA’s Women’s Health Symposium: “The Doctors are In”, join us for an enlightening and empowering evening and discover how to makeknowledgeable decisions and take control of your health. $25 per person, 6:00 p.m. to 9:00 p.m., Great Hall, Bar Center. Call Bar Center for reservations.

22 Wednesday New Members Committee, 5:30 p.m., E.B.T. Room.28 Tuesday Professional Ethics & Civility Committee, 6:00 p.m., Board Room.

May 20094 Monday SCBA’s Annual Meeting, 6:00 p.m., Bar Center.

Further information to follow.11 Monday Executive Committee, 3:00 p.m., Board Room.12 Tuesday Education Law Committee, 12:30 p.m., Board Room.

Insurance & Negligence - Defense Counsel Committee, 5:30 p.m., E.B.T. Room.

13 Wednesday Elder Law Committee, 12:15 p.m., Great Hall.Animal Law Committee, 6:00 p.m., Board Room.

18 Monday Board of Directors, 5:30 p.m., Board Room.19 Tuesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room.21 Thursday Appellate Practice Committee, 6:30 p.m., Board Room26 Tuesday Professional Ethics & Civility Committee, 6:00 p.m., Board Room.

Calendar

Important Information from the Lawyers Committee on Alcohol & Drug Abuse:

Thomas More GroupTwelve-Step MeetingEvery Wednesday at 6 p.m., Parish Outreach House,

Kings Road - Hauppauge

All who are associated with the legal profession welcome.

LAWYERS COMMITTEE HELP-LINE:631-697-2499

The Suffolk LawyerUSPS Number: 006-995) is published monthly except July and August by Long Islander, LLC, 149 MainStreet, Huntington, NY 11743, under the auspices of the Suffolk County Bar Association. Entered as peri-odical class paid postage at the Post Office at Huntington, NY and additional mailing offices under theAct of Congress. Postmaster send address changes to the Suffolk County Bar Association, 560 WheelerRoad, Hauppauge, NY 11788-4357.

James R. Winkler PresidentIlene S. Cooper President ElectSheryl L. Randazzo First Vice PresidentMatthew E. Pachman Second Vice PresidentArthur E. Shulman TreasurerDennis R. Chase SecretaryPatricia M. Meisenheimer Director (2009)Ted M. Rosenberg Director (2009)Richard L. Stern Director (2009)Richard Alan Weinblatt Director (2009)Lynne M. Gordon Director (2010)Maureen T. Liccione Director (2010)Hon. Peter H. Mayer Director (2010)Daniel J. Tambasco Director (2010)Hon. W. Gerard Asher Director (2011)Annamarie Donovan Director (2011)Joseph A. Hanshe Director (2011)George R. Tilschner Director (2011)Robert F. Quinlan Past President Director (2009)John L. Buonora Past President Director (2010)Barry M. Smolowitz Past President Director (2011)Sarah Jane La Cova Executive Director

Suffolk County Bar Association

560 Wheeler Road • Hauppauge NY 11788-4357Phone (631) 234-5511 • Fax # (631) 234-5899

E-MAIL: [email protected]

Board of Directors 2008-2009

SUFFOLK LAWYERLAURA LANEEditor-in-Chief

DOROTHY PAINECEPARANOAcademy News

Eugene D. BermanJohn L. BuonoraDennis R. ChaseIlene S. CooperJustin Giordano

David A. MansfieldCraig D. Robins

Frequent Contributors

The articles published herein are for informational purposes only. They do not reflect the opinion of The Suffolk CountyBar Association nor does The Suffolk County Bar Association make any representation as to their accuracy. Advertisingcontained herein has not been reviewed or approved by The Suffolk County Bar Association. Advertising content doesnot reflect the opinion or views of The Suffolk County Bar Association.

TH

E

PublisherLong Islander Newspapers

in conjunction with The Suffolk County Bar Association

The Suffolk Lawyer is published monthly, except for the months ofJuly and August, by The Long Islander Newspapers under the auspicesof The Suffolk County Bar Association.© The Suffolk County BarAssociation, 2009. Material in this publication may not be stored orreproduced in any form without the express written permission of TheSuffolk County Bar Association. Advertising offices are located at TheLong Islander, LLC, 149 Main Street, Huntington, NY 11743, 631-427-7000.

Send letters and editorial copy to: The Suffolk Lawyer

560 Wheeler Road, Hauppauge, NY 11788-4357Fax: 631-234-5899

Website: www.scba.org E.Mail: [email protected]

or [email protected]

THE SUFFOLK COUNTY BAR ASSOCIATION

PRESENTS A PROSTATE HEALTH PROGRAM

THURSDAY, APRIL 2, 2009 6:00 P.M. - 7:30 P.M.

560 WHEELER ROADHAUPPAUGE, NY

Prostate cancer is the second leading cause of cancer death in American men. Morethan 30,000 men die from this cancer each year. One in six men will get prostate can-cer and yet it is a very treatable disease if detected at an early state through a simpleblood test.

The Suffolk County Bar Association is pleased to have Dr. David B. Samadi,Chief of the Division of Robotics and Minimal Invasive Surgery at the Mount SinaiSchool of Medicine in New York speak about prostate health and the importance oftesting for men. Dr. Samadi is an internationally renowned urologic surgeon trained inoncology, open, laparoscopic and robotic surgery and is a specialist in the diagnosisand treatment of urologic diseases including prostate cancer. He has performed morethan 1500 robotic laparoscopic prostate surgeries.

Please come and join us on Thursday, April 2, 2009 at 6 p.m. for coffee, desertand information about this very important topic. RSVP to the Bar Center at (631)234-5511.

— LaCova

To Advertise in

The Suffolk Lawyer

Call

(866) 867-9121

SCBA Foundations NeedYour Support

The Suffolk County Bar Association is comprised of several foundations. Theyinclude the Pro Bono Foundation, Lawyer Assistance Foundation, CharityFoundation, Scholarship Foundation and Academy of Law.

These foundations rely on your generosity. Won’t you help us to keep these foun-dations viable? Please consider making a tax-deductible gift to the foundation ofyour choice. For further information, call SCBA headquarters at (631) 234-5511.

THE SUFFOLK LAWYER — MARCH 2009 3

__________________

By John L. Buonora

This is the Saga of Nine Grumpy OldMen or the story of this year’s activitiesof the Suffolk County Bar Association’sNominating Committee. There are ninemembers of the Nominating Committeeand I am one of those nine. If you’re reallyinterested in who the other eight are youcan look it up in the Association’sMembership Directory.

In looking around the Board Room aswe deliberated who would be nominatedfor positions on the ExecutiveCommittee, Board of Directors and eventhe Nominating Committee itself, I wasreminded of some of the great scenes inthe movie classic Twelve Angry Men.You know the one. It had Henry Fonda,

Lee J. Cobb, Jack Klugman, JackWarden, E.G. Marshall and a few othergreat character actors that I’m not recall-ing at the moment. It was oh so dramaticas that jury gravely deliberated the fate ofa young man charged with murder. On acertain level I considered our delibera-tions to be no less solemn.

I looked around the Board Room a sec-

ond time and this time anothermovie came to mind. It wasGrumpy Old Men starring twoother great actors, Jack Lemmonand Walter Matthau. Youremember it don’t you; the twogrumpy old men vying for theaffections of Anne- Margaret?Amazingly, this year the mem-bers of the NominatingCommittee all shared many sim-ilar qualities. We were all men! Just abouteveryone had gray or white hair or alter-natively had lessening amounts of hair.One member seemed to take mildumbrage over the fact that none of us,including him, were what you would call“spring chickens.” This member wasreminded that he had been eligible forAARP membership for several yearsalready. The members of the NominatingCommittee for the most part had some-what similar physical characteristics thatyou wouldn’t consider included “six packabs” (for you traditionalists, that means aflat stomach). As for the grumpy part…,well more about that later. There were nowomen members on the committee (obvi-ously, if we were all men (supra) thatwould mean there were no women). Ohand one other thing, our complexions var-ied from white to pale white to ashenwhite. No member was African-American, Hispanic, Asian, or any ethnicother than Caucasian.

So is there a point to all this? I bet youthought that I would never get to it. Somepeople like to say that each president ofthis Association should strive for at leastone significant accomplishment thathe/she can point to. President Jim

Winkler has made the issue ofstriving for diversity a majorfocus if not the centerpiece of hispresidency. At least in my viewhe has. I believe that theSymposium on Diversity thattook place this past February wasone of the most significantevents that this Association hassponsored in years. While somemay have been a bit disappointed

that the audience was not greater, whatwas encouraging was that the participantsincluded leaders of the bench, bar, acade-mia and local government. Among thepanel and audience were members of theHispanic, African-American and Asiancommunities. Jim deserves enormouscredit for making this program a reality.

Also well represented were women. Letme say a word about that. While somewould not consider women attorneys to bein a minority or part of the diversity dis-cussion, as more than half of all graduat-ing law students these days are women,there are still disparities. The percentageof women in leadership positions in pri-vate practice is not proportionate to theirnumbers in the profession generally.Women appear to fare better in terms ofadvancement to leadership positions ingovernment service (as one example, D.A.offices) and on the bench. The same is truefor bar leadership. While it is true that ourincoming president and president-elect arewomen, this is a bit of an aberration sinceoverall the number of women in leader-ship positions in the Association is notreflective of the number of female practic-ing attorneys. While it is true that in thepast, over the years, we have had directors

of diverse ethnicities, this has been therare exception rather than the rule. This isa situation that various of us grumpy oldmen have discussed from time to time and

The Saga of Nine Grumpy Old Men

John L. Buonora

…a concerted effort must be made to makeour Association more representative of our profession and of oursociety in general.

“

”


SAVE THE DATEInstallation Dinner and Judiciary Night

Thursday Evening, June 4, 2009

Oheka Castle

6:00 p.m.

For Information Contact: Ilene S. Cooper (516) 227-0736

Jane La Cova (631) 234-5511

��

Thank you to Our Generous Sponsors and Underwriters

Bob Dennis & Roseann Keiles/Long Term Care Planners;

Steve Ellis/Prudential Long Term Care

Citi Private Bank

Colleen West

Farrell Fritz, P.C.

First American Title Insurance

Company of New York

Hofstra University School of Law

Spizz & Cooper, LLP

The Kalikow Group

Twomey, Latham, Shea, Kelly,

Dubin & Quartararo, LLP

A Typical Member of This Year'sNominating Committee?


Honorable Elizabeth Hazlitt Emerson

Motion to amend complaint denied; lossof services claim time barred

In Barbara Leach v. King KullenGrocery Co., and Coca-Cola Enterprises,Inc., Index No. 22132/05, decided on April17, 2008, the court denied plaintiff’smotion for leave to amend the complaint toadd a derivative cause of action to recoverdamages for loss of services. The courtnoted that the Second Department followsthe rule that a spouse’s derivative cause ofaction to recover damages for loss of ser-vices cannot be added to a pending actionthrough the relating back provisions ofCPLR 203 (f) by a motion to amend thecomplaint when, as here, the statute of lim-itations has run in the action and the origi-nal complaint gave the defendants nonotice that the plaintiff would assert acause of action to recover damages for lossof services. The court further reasoned thatthe Third Department case which the plain-tiff relied upon was not binding on thiscourt.

Honorable Peter H. Mayer

Grand Jury transcript ordered unsealed;where an individual commences a civilaction and affirmatively places the infor-mation protected by CPL §160.50 intoissue, the privilege is effectively waived

In Michael Grucci v. Christine Grucci,Index No. 7422/02, decided on October 16,2008, the court ordered the Grand Jurytranscript of Christine Grucci unsealed. Inopposing the application the DistrictAttorney argued that since plaintiff’sindictment had been dismissed, the recordswere sealed in accordance with CPL §160.50. The court reasoned that where anindividual commenced a civil action andaffirmatively placed the information pro-tected by CPL §160.50 into issue, the priv-ilege was effectively waived. The courtfurther noted that while requests for GrandJury minutes are uniformly denied to pri-vate litigants in civil actions, such minutesmay properly be used not only forimpeachment, but also to refresh recollec-tion or lead a hostile witness at a civil trialand a court may make such parts of theGrand Jury minutes available to the attor-neys for the respective parties as witnessesare called to testify. Accordingly, the courtdetermined that the Grand Jury minutescould be submitted to the court immediate-ly prior to trial.

Honorable Emily Pines

Motion for summary judgment denied;affidavit in support of the motion waswholly conclusory and had failed to meetinitial burden of showing an absence of


Suffolk CountySupreme Court

_________________

By Scott M. Karson

At the American BarAssociation’s 2009 midyear meet-ing in Boston, the 555-memberABA House of Delegates voted226 to 191 to amend Model Ruleof Professional Conduct 1.10 toease the rule of imputed disqualifi-cation. The vote followed a vigor-ous debate that was carried overfrom the ABA’s 2008 annual meeting inNew York.

Pursuant to former Model Rule 1.10(a),a conflict of interest of a potential newlawyer being considered for hiring by afirm would be imputed to all of thelawyers of that firm. That would, ofcourse, make the hiring of the lawyerimpossible.

Under the revision approved by theHouse of Delegates in Boston, the conflictof interest will be imputed to the otherattorneys of the new firm unless, interalia: (i) the disqualified lawyer is timelyscreened from any participation in thematter (a procedure commonly referred toas the creation of a “Chinese Wall,” a

term which has fallen into disfa-vor) and is apportioned no partof the fee; and (ii) written noticeis promptly given to the affectedformer client. If these condi-tions are met, the conflict willnot be imputed to the otherlawyers in the new firm.

For example, assume thatlawyer A is an associate of firmB, which represents client C.

Lawyer A is considering a lateral movefrom firm B to firm D, which representsan adversary of client C. Under the formerModel Rule 1.10, lawyer A could not behired by firm D because of the conflict ofinterest created by his former representa-tion of client C, a conflict which wouldhave been imputed to all of the lawyers atfirm D. However, under Model Rule 1.10as revised, lawyer A could be hired byfirm D so long as lawyer A is timelyscreened from participation and therequired notice is given to the formerclient C.

New York lawyers should take note ofthis amendment because, as of April 1,


ABA 2009 MidyearMeeting in Boston Ethics rule on hiring of lawyers with conflicts modified

BENCH BRIEFS

Scott M. Karson

Frederick Eisenbud THE ENVIRONMENTAL LAW FIRM SM

Frederick Eisenbud, Esq.

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Environmental Law and Litigation Since 1984

Civil • Criminal • Administrative • Municipal

Law Office of Frederick Eisenbud6165 Jericho Turnpike

Commack, New York 11725-2803www.eisenbudlaw.com

E-Mail: [email protected]: (631) 493-9800 Fax: (631) 493-9806


_______________________

By Neil S. Grossman, Ph.D.

Occasionally a judge may order or rec-ommend that a party in a legal actionreceive psychotherapy. Should this treat-ment be confidential? What are the bene-fits and liabilities of confidentiality ornon confidentiality?

When the court orders an evaluation,such as a child custody evaluation, it isclear that the information obtained by theevaluation is for the use of the court and,therefore, the court has privilege andthere is no confidentiality. In the case oftreatment, is the psychotherapy ordered toprovide information for the court or tobenefit the client? This distinction maynot always be clear. The court may wantinformation about the party to help makea decision and/or determine whether theperson is complying with a court order,for example, undergoing anger-manage-ment treatment, substance-abuse treat-ment, co-parenting therapy, etc. Thejudge’s decision regarding the amount ofvisitation a parent has with a child, orwhether the visitation is supervised orunsupervised may be contingent on thatparent being in treatment or successfullycompleting a course of treatment.

When treatment is ordered by the court,the context of the litigation impacts thecourse of psychotherapy. The therapist,the client (and parents when the client is achild), are affected by this context as arethe court and the attorneys. A client mayconsider what is revealed in psychothera-py since it can impact the litigation. This

is unfortunate since it is believedthat people are more likely tobenefit from psychotherapy whenthey are honest and open and lessconcerned with what they revealand the image they present.

Judges can attempt to neutral-ize the influence of the litigationcontext when parties are orderedor recommended to participate inpsychotherapy. This usually isattempted by specifying who hasprivilege and whether the treatment isconfidential. What is gained and what islost when the treatment is confidential?(The confidentiality of treatment is alsodiscussed as treatment being “sealed” andas “safe harbor” treatment).

Pros of confidentialityThe main “gain” when psychotherapy

is confidential is that the client is morelikely to benefit from the treatment andthe issues and conflicts surrounding thelitigation are less likely to influence thetreatment, e.g., in a custody battle.

Cons of confidentiality When treatment is confidential, the

court may lose a valuable source of infor-mation that it could utilize in makingdecisions. Additionally, accountability ofthe client in treatment may also be lost.Accountability is especially important inhigh conflict cases and in cases wherethere have been many failed attempts attreatment. At a minimum it is useful toknow that the client is attending sessions

regularly and making a goodfaith effort to benefit fromtreatment. When a child is intherapy we also want to knowwhether each parent is cooper-ating. When treatment is confi-dential, also lost is the ability toreview the adequacy of treat-ment, information aboutwhether the client is benefitingfrom the treatment, andwhether the therapist is neutral

(unbiased in terms of the litigation). Confidentiality is not absolute, i.e.,

there are exceptions to confidentiality.Even when the treatment has been struc-tured as confidential there are limitationsand exceptions. For example, if there areallegations of sexual child abuse or when

treatment started before a custody battlebegan there may not be confidentiality.The discussion of accountability illus-trates that there may be degrees of confi-dentiality, i.e., it may exist regardingsome issues and not others. There can belimits on what information is to be dis-closed and under what circumstances itcan be disclosed. In some jurisdictionscontingency factors are discussed. Forexample, information can be disclosed ifthe parties re-litigate.

It could be argued that the court shouldorder people for evaluations but not fortreatment. A court may need specificinformation that can be obtained byordering a litigant to undergo an evalua-tion. However, will “ordering” litigants to


Confidentiality in Court-Ordered Treatment: Pros and ConsImpact on psychologist, court, attorneys and clients

The Honorable Jonathan Lippmanhas begun a new challenge in his judi-cial career serving as the 23rd ChiefJudge of the New York State Court ofAppeals, the highest court in the state,succeeding Judith S. Kaye, who steppeddown from her post due to mandatoryretirement rules.

We also congratulate the Honorable

Judith S. Kaye, as she joins the presti-gious firm Skadden, Arps, Slate,Meagher & Flom LLP. Judge Kaye hasserved longer than any other chief judgein New York’s history and leaves animpressive legacy. We are delighted towish her well as she enters a new chap-ter in her professional life.

-Winkler

Neil S. Grossman,Ph.D.

Heartiest Congratulations From TheSCBA To Two Jurists Who Begin NewAnd Challenging Careers


__________________________________

By Cindy J. LeClaire and Natalie Silva

In the September 2008 issue of LawPractice, David Bilinsky and LauraCalloway profoundly noted that “Many ofus live our lives, and manage our lawpractices, as if every day will be the sameas the last – into infinity. But nothing lastforever. Turbulent financial times remindus, once again, that the only thing that’sconstant is change.”

This economic wake-up call is drivingthe legal community to look at their prac-tices in a different way. Strategic plan-ning to develop new business models - nomore ‘business as usual’ - is key. Someof the elements that differentiate success-ful and strategic law firms from their lesssuccessful counterparts include strategicplanning, including the major elements ofmarketing and effective cash flow man-agement. This is what separates success-ful and strategic law firms from their lesssuccessful counterparts.

Website DesignYour website is the key component of

your marketing efforts to attract and drawprospective clientele. Now is the time totake a closer look at your website to be sureit reflects an evolution of your business andpromotes flexibility in your purpose, talentsand content. Does it effectively communi-

cate the strengths of your business intoday’s economy? Make sure your websiteis not just a number of pages stuffed withkey words to capture search engines. Thiswon’t work. Content and visuals are vital toattract attention for your practice – theycommunicate what separates your practicefrom the rest of the pack. You can even cre-ate a personality connection with a poten-tial client through video. If you’re tentativein these key areas, hire a professional.Remember, your website represents whoyou are. Its significance is indisputable.

DirectoriesDirectories are another key marketing

element. There are many legal directoriesout there that are displayed prominently onthe Internet. A directory provides informa-tion and will create inbound links to yourwebsite, and, in turn, help index you in thesearch engines. It’s a good idea to list your-self in prominent legal directories but stayclear of “link farms.” Think about a freeprofile in both the Google and Yahoo localbusiness directories. Have you ever won-dered how your colleagues display them-selves in the Google Map Area? Well, thisis it. Very cost effective.

BlogsBlogs usually facilitate communication


Moving Away from‘Business as Usual’

ENTERTAINMENT AND MEDIA LAW

______________________

By Glenn P. Warmuth

In April 2006 freelance photojournalistMannie Garcia snapped a photograph ofBarack Obama and George Clooney sittingside by side at an event at the NationalPress Club. Garcia was working for TheAssociated Press when he took the photo-graph and therefore the AP became theowner of the copyright. The photographgained little attention.

Two years later artist Shepard Faireyused the photograph as a “visual reference”for his now famous Obama Hope andObama Progress posters. Mr. Fairey didnot obtain permission from the AP to usethe photograph and did not give them anycredit. Mr. Fairey sold his posters on theinternet where they were well received.Obama Hope became the more popular ofthe two and Mr. Fairey reports sellingapproximately 4,000 copies at $45 each.He did not give the AP a share of the prof-

its.Over time the AP learned that Mr. Fairey

had used the photograph as the basis for hisObama works. On February 4, 2009 theAP issued a statement that “The AssociatedPress has determined that the photographused in the poster is an AP photo and thatits use required permission.”

The purpose of copyright law is toencourage the creation of creative works


Perils of Relying OnFair Use Exception

NEED SOLUTIONS

?

ATTORNEYS AT LAWNancy Burner, Esq., CELACERTIFIED AS AN ELDER LAW ATTORNEY*

Eric D. Cherches, Esq.Kim M. Smith, Esq.

ELDER LAW AND ESTATE PLANNING• Medicaid Eligibility• Estate Planning• Trusts & Estates Litigation• Nursing Home Placement• Guardianships

• Last Wills & Testaments• Trusts, Irrevocable & Revocable• Strategies for Saving Estate Taxes• Long Term Care Insurances• Supplemental Needs Trusts

46 Route 25A, Suite 4 • Setauket, NYPhone 941-3434 • Fax 941-3443

82 Main St. • Westhampton Beach, NYPhone 288-5612 • Fax 288-5618

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BC&SBURNERCHERCHES SMITH, LLP&

The National Elder Law Foundation is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in the field of law.

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46 Route 25A, Suite 4 • Setauket, NYPhone 941-3434 • Fax 941-3443

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• Medicaid Eligibility• Estate Planning• Trusts & Estates Litigation• Nursing Home Placement• Guardianships

• Last Wills & Testaments• Trusts, Irrevocable & Revocable• Strategies for Saving Estate Taxes• Long Term Care Insurances• Supplemental Needs Trusts

ELDER LAW AND ESTATE PLANNING

ATTORNEYS AT LAWNANCY BURNER, ESQ.,KIM M. SMITH, ESQ.


On the Move…SCBA member David Besso has

announced that Kevin R. Johnston &William M. Sullivan have become part-ners. The firm will now be known as Long,Tuminello, Besso, Seligman, Werner,Johnston & Sullivan LLP.

Twomey, Latham, Shea, Kelley, Dubin& Quartararo is pleased to announce thatLaura I. Sguazzin has been named a part-ner of the Riverhead based law firm.

The law firm of Glynn Mercep andPurcell, LLP is pleased to announcethat Hon. Howard M. Bergson, formerlySuffolk County District Court Judge andActing County Court Judge has joined theFirm. Glynn Mercep and Purcell, LLP andJudge Bergson are willing to act as "trialcounsel" or "special counsel" for membersof the bar.

Congratulations…To SCBA member Catherine DeSanto

who received the 2009 Public ServiceAward presented by the Suffolk CountyDr. Martin Luther King, Jr. Commission ata ceremony held on January 17 at the HyattRegency in Hauppauge.

Touro Law Center has named Robin G. Steinberg, Executive Director of TheBronx Defenders, as the 2009 DistinguishedPublic Interest Lawyer in Residence. OnMarch 5, Ms. Steinberg met with studentleaders, guest lecture in classes and interact-ed with students and faculty. And there wasa community lecture and reception to honorher at the Law Center.

Announcements, Achievements, & Accolades…

SCBA member, Karen AnneO'Donnell will exhibit one ofher architectural photographs atGuild Hall in East Hamptonfrom April 25 to May 30.Opening Wine and CheeseReception to be held on April 25 from 4-6p.m. is open to the public. Guild Hall islocated at 158 Main Street in EastHampton (631)324-0806. For furtherinformation, call Ms. O’Donnell at (631)421-2386.

Nassau County District AttorneyKathleen M. Rice will speak at the March26 meeting of the Huntington Lawyers’Club and Suffolk County Surrogate JohnM. Czygier will speak at the April 16meeting. For further information, call(631) 385-1746.

Bruce J. Bergman, Chair of theCommercial Mortgage ForeclosureDepartment at Berkman, Henoch, Peterson& Peddy, P.C., in Garden City, New York,will be a featured presenter at the CardozoSchool of Law Real Estate AlumniAssociation April 20, 2009 Seminar onRepresenting Parties in ForeclosureActions to be held at the law school. Mr.Bergman recently completed the first 2009Supplement to his three volume treatise,Bergman on New York MortgageForeclosures, LexisNexis MatthewBender, and was named for 2009 listing in

Best Lawyers in New York andSuper Lawyers.

Farrell Fritz partner, LouisVlahos, was appointed to theLong Island City BusinessDevelopment Corporation Boardof Directors.

The Brehan Society ofSuffolk County will hold its19th Annual Dinner on

Wednesday, March 25 at the Irish CoffeePub, Central Islip, honoring John B.Collins, Esq. Cocktails at 6 P.M. Dinner &Entertainment 7 P.M. $75 per person -Open Bar. R.S.V.P. Patrick Gunn(631)219-5565 or [email protected] checks to P.O. Box 418, Riverhead,New York, 11901.

SCBA member Kathryn NicoleAndreolli, of Rubin & Rothman, LLC,will be participating in the Leukemia &Lymphoma Society's Team In TrainingMontauk Century Bike Ride to raisemoney for the society. The 100 mile ridetravels from Babylon to Montauk. Tomake a donation either email her at [email protected] or call her at(631) 234-1500 x142.

Penny B. Kassel, an elder law attorney,will be presenting the following seminars:Estate Planning on Tuesday, March 24 at8:30 a.m., at AXA, 1111 Marcus Avenue,Lake Success; Elder Law & EstatePlanning on Tuesday, March 24 at 12:00p.m. at Queens College, Flushing. For fur-ther information call her at (516) 294-8300or e-mail at [email protected].

Cathleen D. Allen, of Lamb &Barnosky, LLP, was selected to appear inthe "Who's Who in Commercial andResidential Real Estate Law", Long IslandBusiness News, December 12-20- 08, edi-tion. Ms. Allen was featured in this articleregarding commercial and residential realestate transactions.

Erica B. Garay, a partner in the lawfirm of Meyer, Suozzi, English and Klein,P.C., has been appointed to the Commerce& Industry Council, a group of dedicatedbusiness professionals and communityleaders who raise funds to support thestate-of-the-art health care programs andservices provided by North ShoreUniversity Hospital.

In February, 2009, Robert H. Cohen, ofLamb & Barnosky, LLP, was elected asa member of the Board of Directors of theNew York State Association of SchoolAttorneys.

Jennifer Cona, Esq., managing part-ner and Melissa Negrin Wiener Esq.,senior associate, from Genser DubowGenser & Cona (GDGC), a Melvillebased elder law and estate planning firm,have recently passed the requirements tobecome accredited by the Department ofVeteran's Affairs. They can now prepare,present and prosecute claims for veter-ans’ benefits before the Department ofVeterans Affairs (VA).

Lisa A. Azzato, of Lamb & Barnosky,LLP, participated as a judge in the semi-


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By: Leo K. Barnes Jr.

One of the cornerstone plead-ing tenets of commercial practiceis that a plaintiff may not pursuea fraud cause of action simulta-neously with a breach of contractcause of action as the fraud causeof action, when it is premisedupon the same facts and circum-stances as the breach cause ofaction, is simply duplicative. Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70N.Y.2d 382, at 389, 521 N.Y.S.2d 653, at656 (1987) (a breach of contract is not tobe considered a tort unless a legal dutyindependent of the contract itself has beenviolated). Merely alleging scienter in acause of action to recover for breach ofcontract (unless the representationsalleged to be false are collateral or extra-neous to the agreement), does not converta breach cause of action into one soundingin fraud. See Lo v. Curis, 29 A.D.3d 525,815 N.Y.S.2d 131 (2nd Dep’t 2006). Inthat same vein, even an allegation that adefendant maintained an unexpressedintention not to perform a contract is perse insufficient to state a prima facie causeof action for fraud. See, e.g., Meehan v.Meehan, 227 A.D.2d 268, 642 N.Y.S.2d664 (1st Dep’t 1996); Hudson v.Greenwich I Assocs., 226 A.D.2d 119,640 N.Y.S.2d 46 (1st Dep’t 1996);Hadari v. Leshchinsky, 242 A.D.2d 557,662 N.Y.S.2d 85 (2nd Dep’t 1997).

But it is equally well settled that "a mis-representation of material fact, which iscollateral to the contract and serves as aninducement for the contract, is sufficientto sustain a cause of action allegingfraud." Deerfield Communications Corp.v. Chesebrough-Ponds, Inc., 68 N.Y.2d954, 956 (1986); First Bank of Americasv. Motor Car Funding, 257 A.D.2d 287,690 N.Y.S.2d 17 (1st Dep’t 1999). Thus,a fraud claim may be based on allegationsthat the defendant fraudulently inducedthe plaintiff to enter into a contract and a

party who is fraudulentlyinduced to enter into a contractmay join a cause of action forfraud with one for breach of thesame contract where the misrep-resentations alleged consist ofmore than mere promissorystatements about what is to bedone in the future. Where aplaintiff alleges misrepresenta-tions of present facts, rather than

merely of future intent, that were collater-al to the contract and which induced theallegedly defrauded party to enter into thecontract, a fraudulent inducement claim isnot duplicative of a breach of contractclaim (see W.I.T. Holding Corp. v. Klein,282 A.D.2d 527, 724 N.Y.S.2d 66 (2nd

Dep’t 2001)). The same set of circum-stances giving rise to a breach of contractclaim may also form the basis of a causeof action for this type of fraud and, thus, afraud claim which is not duplicative of acontract claim may be maintained (seeFresh Direct v. Blue Martini Software, 7A.D.3d 487, 776 N.Y.S.2d 301 (2nd

Dep’t 2004). The key to a concurrent successful

pleading is an allegation that fraudulentmisrepresentations were made by defen-dant prior to, and as an inducement for itto enter into the subject contract.Plaintiff's fraudulent inducement claim isnot premised upon the alleged breach of aduty arising under the contract, but,rather, is based upon representations thatare extraneous to the terms of the parties’contract. The fraud allegedly perpetratedby defendant must have occurred prior tothe plaintiff’s entering into the contract,and must have arisen from circumstancesseparate and distinct from plaintiff'sbreach of contract claim (see DeerfieldCommunications Corp., supra, at 956). Inthose circumstances, plaintiff’s claim isbased upon a legal duty distinct from andindependent of the privity claim whichfounds the breach of contract cause of


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APPEARANCES IN QUEENS COUNTY

E-mail: [email protected]

______________________

By Ilene Sherwyn Cooper

Attorney Reinstatements Granted The application by the following attor-

neys for reinstatement was granted:

David C. KobrinJohn C. LopesScott F. SaidelDaivery Taylor

Attorney ResignationsGranted/Disciplinary Proceeding Pending:

Dorothy Baratta: By affidavit, respon-dent tendered her resignation, indicatingthat she was aware that she is the subject ofan ongoing investigation by the GrievanceCommittee concerning allegations that shemisused funds entrusted to her charge.Respondent acknowledged that she wouldbe unable to defend herself against suchcharges on the merits. She stated that herresignation was freely and voluntary ren-dered, and affirmed that it was subject toan order directing that she make restitutionand reimburse the Lawyers’ Fund forClient Protection. In view of the foregoing,Ms. Baratta’s resignation was acceptedand she was disbarred from the practice oflaw in the State of New York.

Devon F. Clarke: By affidavit, respon-dent tendered his resignation, indicatingthat he was aware that he is the subject ofan ongoing investigation by the GrievanceCommittee concerning allegations regard-ing irregularities involving his attorneyescrow account based upon a dishonoredcheck report from the Lawyers’ Fund forClient Protection. Respondent acknowl-edged that he would be unable to defendhimself against such charges on the merits.He stated that his resignation was freelyand voluntary rendered, and affirmed thatit was subject to an order directing that hemake restitution and reimburse theLawyers’ Fund for Client Protection. Inview of the foregoing, Mr. Clarke’s resig-nation was accepted and he was disbarredfrom the practice of law in the State ofNew York.

Attorneys Suspended

Edward A. Christensen: Motion by theGrievance Committee to suspend therespondent from the practice of law grant-ed and the Committee was authorized toinstitute a disciplinary proceeding againsthim, based upon the respondent’s failure tocomply with the lawful demands of theGrievance Committee and other uncontro-verted evidence of professional miscon-duct, including but not limited to neglect ofclient matters and misuse of escrow funds.

Attorneys Disbarred:

Michael S. Feit: On February 27, 2006,the respondent entered a plea of guilty inthe Supreme Court, Kings County, togrand larceny in the second degree, a classC felony, falsifying business records in thefirst degree, a class E felony, and attempt-ed grand larceny in the second degree, aclass D felony. The respondent was sen-tenced to a conditional discharge of threeyears. Accordingly, by virtue of his con-viction of a felony, the respondent ceasedto be an attorney and was automaticallydisbarred from the practice of law in theState of New York.

David A. Gross: On July 13, 2007, the

respondent entered a plea of guiltyin the United States District Courtfor the Eastern District of NewYork to conspiracy to commitmoney laundering, a federal classC felony. The respondent wassentenced to a term of imprison-ment of 33 months, a $100 fine,and a forfeiture of specified prop-erty. The respondent’s federalfelony conviction is essentiallysimilar to the New York felony ofconspiracy to commit moneylaundering in the second degree, a class Efelony. Accordingly, by virtue of his con-

viction of a felony, the respondentceased to be an attorney and wasautomatically disbarred from thepractice of law in the State of NewYork.

Laurence S. Jurman: Therespondent tendered his resigna-tion to practice law in which heacknowledged the existence of29 pending investigations beingconducted by the GrievanceCommittee. On February 5, 2008,the respondent entered a plea of

guilty in the Supreme Court, SuffolkCounty, to possession of a forged instru-

ment in the second degree, a class Dfelony. An attorney ceases to be competentto practice law based upon his convictionof a felony. Accordingly, respondent’sproffered resignation was rejected, and theGrievance Committee’s motion for disbar-ment of the respondent was granted.

Note: Ilene Sherwyn Cooper is a partnerwith the law firm of Farrell Fritz, P.C.where she concentrates in the field oftrusts and estates. In addition, she isPresident Elect of the Suffolk County BarAssociation and a member of the AdvisoryCommittee of the Suffolk Academy of Law.


Appellate Division-Second DepartmentCOURT NOTES

Ilene S. Cooper

___________________

By Eugene D. Berman

This month we discuss two decisionsthat the United States Court of Appeals forthe Second Circuit issued in February2009. The first concerns attorney’s feesand the second, administrative exhaustion.

Fees AvailableIn Ericksson v. Commissioner of Social

Security, _ F.3d _, 2009 WL 398719,Docket No. 07-4009-cv, decided February19, 2009, the Second Circuit reviewed adistrict court’s denial of an Equal Accessto Justice Act (“EAJA”) attorney’s feeapplication. Ericksson, who suffered fromnon-Hodgkin’s lymphoma, receivedSocial Security disability benefits fromMay 1994 until January 1998. Thereafter,the Commissioner found that Erickssonwas capable of performing light work andterminated her benefits when, afterchemotherapy, Ericksson’s lymphomawent into full remission.

Ericksson urged at her administrativeappeal that she was eligible for continueddisability payments because she sufferedfrom severe back pain. A DisabilityHearing Officer and an AdministrativeLaw Judge (“ALJ”) upheld theCommissioner’s decision that – in spite ofher back pain – Ericksson was capable ofreturning to work. When Ericksson chal-lenged the agency’s determination, theDistrict of Connecticut remanded theCommissioner’s decision to the agency forfurther consideration.

On remand, a different ALJfound that Ericksson sufferedfrom “chronic back pain syn-drome secondary to advanceddegenerative disc disease at L3-4and L4-5 with facet sclerosis andnarrowing, osteopenia and severescoliosis of the lumbar spine.”Ericksson, 2009 WL 398719*1.As such, that (second) ALJ deter-mined that Ericksson remaineddisabled and eligible for disability bene-fits.

Ericksson, as the prevailing party, thenapplied to the district court for attorney’sfees pursuant to the EAJA. The districtcourt denied Ericksson application, agree-ing with the Commissioner that attorney’sfees were unavailable because the agency’soriginal denial was substantially justified.

In this regard, the EAJA provides that:… a court shall award to a prevailing

party other than the United States fees andother expenses … incurred by that party inany civil action (other than cases soundingin tort), including proceedings for judicialreview of agency action, brought by oragainst the United States … unless thecourt finds that the position of the UnitedStates was substantially justified or thatspecial circumstances make an awardunjust.

28 U.S.C. § 2412(d)(1)(A) (emphasisadded).

As used in the EAJA, the term “‘positionof the United States’ means, in addition tothe position taken by the United States in

the civil action, the action or fail-ure to act by the agency uponwhich the civil action is based.”28 U.S.C. § 2412(d)(2)(D). Also,an agency’s action is “substan-tially justified” when a reason-able person would consider thatthe agency was justified in actingas it did. Pierce v. Underwood,487 U.S. 552, 565, 108 S.Ct.2541, 2550, 101 L.Ed.2d 490

(1988) (“We are of the view, therefore, that… the word ‘substantially’ … conveyed bythe phrase before us here is not ‘justified toa high degree,’ but rather ‘justified in sub-stance or in the main’ – that is, justified toa degree that could satisfy a reasonable per-son.”).

In its review, the Second Circuit focusedon the agency’s full record to determinewhether the original ALJ was substantiallyjustified in upholding the Commissioner’sdecision that Ericksson was capable ofreturning to work. Finding that “the recorddemonstrates that the first ALJ improperlydisregarded or mischaracterized evidenceof Ericksson’s continuing disability, andthat the second ALJ awarded Erickssonbenefits based, in substantial part, on aproper assessment of this very evidence,”Ericksson, 2009 WL 398719*2, theSecond Circuit reversed and remanded theaction to the district court “with instruc-tions to award EAJA fees because the gov-ernment’s position was not substantiallyjustified,” Ericksson, 2009 WL 398719*5.

Exhaustion FoundIn a case of first impression, the Second

Circuit in Espinal v. Goord, _ F.3d _, 2009WL 224496, Docket No. 07-0612-pr,decided February 2, 2009, examinedwhether the exhaustion requirement setforth in the Prison Litigation Reform Actof 1995 (“PLRA”) precludes a New YorkState prisoner from naming a particularofficial as a defendant in a Section 1983civil rights action when that official wasnot identified in the prisoner’s initialadministrative grievance. Espinal was aninmate of the New York State Departmentof Correctional Services (“DOCS”) whocommenced an action under 42 U.S.C.§ 1983 against fourteen defendants, alleg-

ing that in retaliation for his prior litiga-tion, the defendants violated his EighthAmendment rights by using excessiveforce against him and denying him med-ical treatment.

Before he commenced the litigation,Espinal brought a grievance under theDOCS’ Inmate Grievance Program, 7NYCRR §§ 701.1, et seq. (“IGP”), inwhich he only named two of the 14 litiga-tion defendants. The district court, findingthat Espinal had not exhausted his admin-istrative remedies, dismissed all claimsagainst the 12 defendants that Espinal hadnot named in the grievance.

Congress enacted the PLRA in responseto increasing prisoner litigation in the feder-al courts. Woodford v. Ngo, 548 U.S. 81, 84,126 S.Ct. 2378, 2382, 165 L.Ed.2d 368(2006). In order to reduce the quantity ofprisoner suits, 42 U.S.C. § 1997e(a) pro-vides that “[n]o action shall be brought withrespect to prison conditions under [42U.S.C.] section 1983 …, or any otherFederal law, by a prisoner confined in anyjail, prison, or other correctional facilityuntil such administrative remedies as areavailable are exhausted.” (Emphasisadded). Moreover, proper exhaustion underthe PLRA requires prisoners to complywith “an agency’s deadlines and other criti-cal procedural rules.” Woodford, 548 U.S.at 90, 126 S.Ct. at 2386.

After the district court’s decision, theSupreme Court, in Jones v. Bock, 549 U.S.199, 200, 127 S.Ct. 910, 913, 166 L.Ed.2d798 (2007), recognized that inasmuch as42 U.S.C. § 1997e(a) refers to exhaustionunder “such administrative remedies as areavailable” in the prison grievance process,issues concerning the exhaustion ofadministrative remedies must be deter-mined under the prison’s regulations. Id.,549 U.S. at 218, 127 S.Ct. at 922. In Jones,the Michigan Department of Corrections’available grievance process regulations atissue “[did not] support[] the conclusionthat the grievance process was improperlyinvoked simply because an individual laternamed as a defendant was not named at thefirst step of the grievance process,” Id., Assuch, the failure to have named a Section1983 action defendant at the first step of


Fees and ExhaustionSECOND CIRCUIT BRIEFS

Eugene D. Berman

SCBA Connects Working ParentsA list serve has been created for Suffolk County Bar Association members who

are working parents and interested in connecting with one another. The idea behindthis most recent member benefit is that many attorneys in Suffolk County, bothmale and female, are working parents who face the daily challenges of handling thesignificant responsibilities of being an attorney while simultaneously having theeven more significant responsibilities of being a parent. Childcare alternatives, flex-ible schedules, integrating work and family life effectively, networking within par-ticular time limitations, and career development are just some of the potential top-ics of discussion for participants.

Ideally, the list serve can provide an opportunity for members to feel connectedto other similarly situated parent-attorneys, which may reduce feelings of stress andisolation. At the same time, participants can make a true contribution to peers andcolleagues by offering practical suggestions and meaningful assistance based upontheir own experience as attorney-parents.

There is no obligation once you are a member of the list serve – you may stay onthe periphery and observe the members’ exchanges or you can become an activeparticipant. Either way, the Working Parents List Serve is a member benefit of theSCBA that you are welcome and encouraged to join. To do so, please send a briefe-mail expressing your interest to SCBA 1st Vice President Sheryl Randazzo [email protected]. Your working parent colleagues are looking forward toyour involvement.

— Randazzo


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In the beginning, networking was sim-ple. You had to go and make connectionsthe old fashioned way—start real conver-sations, swap business cards, or evenshare your juice box with someone atrecess. When we laughed out loud, weactually did it, we didn’t scribble down“LOL.” And then came Facebook.

Five years ago, the website was noth-ing more than a medium in which IvyLeague students could stalk each otherfrom the comforts of their own dorm, allwhile passing it off as “networking.” Ihave to admit, I drank the punch aboutfour years ago, and created a profile, andit has been a wild ride ever since. I havebeen able to reconnect with old friends,kept unnecessary tabs on friends andacquaintances, and saw pictures whichwould make even the manager of a mallkiosk weary of employing such individu-als.

Now Facebook has over 140 millionsubscribers worldwide, racking in morethan 5,000,000 visits to the website perday. Facebook’s reception has been sowidespread that a judge in Australiarecently ruled it was an appropriateforum for serving notice of repossessionto a defendant.

With the success of Facebook, otherssites have emerged in hopes of capturinganother target audience (my apologies to MySpace, who actually predatedFacebook). LinkedIn was one of the firstto capture the “professional networking”market. With LinkedIn, members canadvertise themselves to friends andpotential employers in a forum that isseemingly more mature, without subject-ing everyone to pictures that may becommonly found on Facebook orMySpace. Now a prospective employerdoesn’t have to see the picture of you dri-ving a Zamboni through the drive-thru ofWendy’s or the time you wrote “Call thisnumber if lost” on your forearm onebooze-filled weekend in the Caribbean.Finally, we now are able to network withour professional friends and keep intouch with our college friends who neverseemed to have taken that next step.

The legal profession is no differentwhen it comes to networking, andindeed, that dreaded concept of “net-working” is engrained into our souls asearly as our first day of law school. In

fact, at Touro Law Center, theCareer Service Office createdvarious groups on Facebook andLinkedIn to enable people tostay in touch and meet others inthe legal community.

Thanks to these beloved socialand professional networkingsites, some people end up get-ting great opportunities foremployment. And what aboutthe story of the person who lost his jobon a Thursday, only to have a better,higher paying job the following Monday,all because he and his new employerwere both in the “Fans of Ol’ Blue Eyes”group on Facebook. Heartwarming, espe-cially in this uncertain job market, wereemployers are adjusting their workforceas if it was a fantasy baseball roster.

Unfortunately, these feel-good storiesare trumped by the all-too-common talesof professionals getting fired or publiclyshamed because of content on their pro-file. We have heard of the horror storiesof what can happen when people neglectto use common sense when it comes toposting content. Recently, a member of ahighly renowned marketing firm statedon Twitter, “I would die if I had to livehere” before presenting to a large groupof FedEx executives in their hometownof Memphis, TN. All it took was oneFedEx employee to read the tweet, sendan e-mail to corporate, and this guy wasroasted before he even gave his speech. Ican’t imagine his reception was verywarm when he did take the stage.

Better yet, a judge pro tem in LasVegas lost his job when the county pros-ecutor noticed hostile remarks towardsprosecutors on his MySpace page. Iguess pro tem was an understatement. Iwonder how you say “unemployed” inLatin.

There is no such thing as a whisper incyberspace, and people are starting torealize this. Now there is a consciouseffort not to make accounts viewable toanyone. Being conservative with yourprivacy settings could possibly save youfrom the embarrassment of your employ-er seeing pictures of you at your cousin’swedding, but there are reports out thatemployers are still bypassing these “pri-vate” profiles. How? For starters, yourresume contains enough informationwhere you can easily be searched by anemployer. From there, they can ask the

administrators at Facebook for apeek inside, all without youknowing. The privacy policy onFacebook’s website brieflyaddresses this by stating “Wemay be required to disclose userinformation pursuant to lawfulrequests” and follows “we mayshare account or other informa-tion when we believe it is nec-essary….This may include shar-

ing information with other companies,lawyers, agents or government agen-cies.”

Asking Facebook for this informationmight seem like too much hassle for anemployer, so why not ask the candidatedirectly for their username and pass-word? Indeed this sounds absurd, but ithappens. As a student at Touro, theCareer Service Office warned us aboutthese employers who not only are takingthis route, but are demanding access toyour social networking sites.

This seems ironic. The same employerthat is going to entrust an employee withconfidential information is going todemand from that same person their ownconfidential information just to gethired. What does this say about theemployer? Better yet, what does this sayabout the potential employee, who iswilling to reveal anything just to be con-sidered for employment?

This questionable conduct is happen-ing with greater frequency every day,and while everyone is worrying about

their own profiles, I caution the employ-er. “Facebook stalking” may give youinsight on the caliber of person you arethinking about hiring, but it also may dis-close information that could get anemployer in hot water. Just looking at acandidate’s profile picture you may beable to come to some conclusions abouthow old they are, their race, if they aremarried, have kids—all things which are

protected by federal discriminationstatutes if you make an employmentdecision based on those factors. If youare prohibited from asking certain thingsin a job application, odds are you shouldnot be looking for those answers on anapplicant’s profile.

Suffice to say the warning can go bothways here. Everyone should take thisopportunity to do some “spring cleaning”with their profiles, and make sure theyare rated PG. Limit the pictures to ofyour child’s first steps, or your dogs


Networking Websites - Job Opportunities or Kiss of Death?FUTURE LAWYERS FORUM

Andrew Van Singel

Everyone should take thisopportunity to do some“spring cleaning” withtheir profiles, and makesure they are rated PG.

“

”


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TRUSTS AND ESTATES UPDATE______________________

By Ilene Sherwyn Cooper

CommissionsIn an uncontested proceeding pursuant

to SCPA 2311, the executor of the estaterequested, inter alia, an order, withoutnotice, awarding him a payment onaccount of executor’s commissions, anddispensing with the filing of a bond. Insupport of the application, the petitioneralleged that the advance payment wasnecessary for income tax planning andpotential income tax savings. The peti-tioner further alleged that all specificbequests under the Will had been satis-fied; that the federal and state estate taxreturns had been filed, and that while thetax had been partially deferred pursuantto I.R.C. 6166, the undeferred portion duehad been paid.

The decedent’s will prohibited the pay-ment of executor’s or trustee’s commis-sions for services rendered by any execu-tor or trustee, including an attorney.Nevertheless, all the beneficiaries underthe will, and the trustees of the trusts cre-ated thereunder, had consented to the pay-ment of the commissions requested.

The court opined that when the will ofa decedent specifically provides that anexecutor is to serve without compensa-tion, the executor has the option of eitherdeclining to serve, or serving withoutcommissions. In the present case, howev-er, the court found dispositive the fact thatall interested parties knowingly consentedto the advance payment sought. The courtnoted that while it had found no precedentgoverning such a situation, courts hadallowed full commissions to an executorunder SCPA 2307- a when all the benefi-ciaries have consented.

Accordingly, under the circumstances,the court granted the relief requested by

the petitioner. In re Goldberg, N.Y.L.J.,

January 15, 2009, p. 28 (Sur.Court Nassau County)(Sur.Riordan).

Disclosure RequirementsPursuant to SCPA 2307-

In an uncontested probate pro-ceeding, the issue before the courtwas whether the disclosurerequirements of SCPA 2307-awere applicable to the proponent, an out-of-state attorney named as fiduciary.

The decedent’s will, which had beenprepared by proponent, had been execut-ed in New Jersey and named proponent’sNew Jersey firm as the executor. Pursuantto the terms of the instrument, the dece-dent left 20 percent of her estate equallyto her brother and his wife, and 80 percentof her estate in trust for the benefit of herdaughter-in-law, with remainder to chari-ty. Approximately two years after theexecution of her will, the decedent exe-cuted a codicil in which she named theproponent as fiduciary of her estate ratherthan the law firm.

In petitioning for probate of the dece-dent’s will, proponent failed to file a dis-closure statement pursuant to SCPA2307-a with the court. Hence, the ques-tion arose as to whether she was subjectto the provisions of the statute.

In determining that the statute appliedto non-domiciliary attorney-fiduciaries,the court examined its legislative historyand noted that it was designed to curb thepossible abuses that can be part of thedrafting of a will. Towards this end, thelegislature mandated disclosure to theclient concerning the choices available inthe selection of an executor and the finan-cial implications of naming an attorney to

serve in such capacity. Thecourt determined that there wasnothing in the language of thestatute which exempted out-of-state attorney/fiduciaries fromthe scope of its provisions.Rather, the court held that thestatute apparently applies inany case in which the client forwhom a will is being preparedis domiciled in New York.

Accordingly, the courtadmitted the decedent’s will to probateand limited the commissions of the attor-ney-fiduciary to one-half the amount thatwould otherwise be allowable underSCPA 2307.

In re Estate of Deener, 2008 N.Y. SlipOp 28470, N.Y. Sur., Nov. 28, 2008(Sur. Roth).

Timeliness of ObjectionsIn a contested probate proceeding, the

proponent moved to dismiss the objec-tions on the grounds that they were fileduntimely. The objectants cross-movedrequesting their objections not be stricken.

The record revealed, inter alia, thatprior to the filing of objections the partiesentered a stipulation scheduling examina-tions pursuant to SCPA 1404. The stipu-lation specifically provided that objec-tions were to be filed within ten days aftercompletion of the examinations.Objections to probate were timely servedupon the proponent, however, they werenot timely filed with the court, but rather,they were filed one day late.

The court noted that, unless the court,in its discretion, authorizes otherwise, afailure to timely file objections pursuantas set forth in SCPA 1410 may constitutegrounds for their rejection. The exerciseof the court’s discretion in this regard

requires consideration of whether the pro-posed, albeit untimely, objections raisevalid concerns regarding the validity ofthe propounded will. In addition, thecourt recognized that it was empoweredto extend the time to file objections pur-suant to the provisions of CPLR 2004.

In support of their cross-motion, theobjectants maintained that the objections,while timely mailed, were untimely filed,because the courts were closed on the fil-ing date established by the stipulation ofthe parties. Hence, they were one day late.Moreover, the objectants argued that theproponent had not shown any prejudiceby their delay.

Accordingly, the court granted the cross-motion, finding that the delay was not will-ful, did not cause any demonstrable preju-dice to the proponent, and the objectionswere not conclusory. However, the courtfound that the motion and cross-motion hadcaused considerable time and resources ofthe court and of the proponent that wouldnot have otherwise been incurred had theobjections been filed as required.Additionally, it noted that this was not thefirst time that the objectants had failed toadhere to stipulated deadlines.Accordingly, the relief granted to objec-tants was conditioned upon objectants’counsel paying $500 to the proponent,together with the costs of the application.

In re Savino, N.Y.L.J., December 26,2008, p. 34 (Sur. Court, KingsCounty)(Sur. Torres).

Note: Ilene Sherwyn Cooper is a partnerwith the law firm of Farrell Fritz, P.C.,where she concentrates in the field oftrusts and estates. In addition, she isPresident-Elect of the Suffolk County BarAssociation and a member of the AdvisoryCommittee of the Suffolk Academy of Law.

Ilene SherwynCooper

_______________

By Rhoda Selvin

Since the last time Christena M. Wardwas Pro Bono Attorney of the Month (inApril 1995) she has had at least one ProBono Project (PBP) case as part of herworkload at all times. For the 289 hoursshe spent concluding cases for eight mat-rimonial clients during these nearly 14years, the Pro Bono Project names her ProBono Attorney of the Month for March2009. In addition to the concluded cases,Ms Ward has an open case.

Ms. Ward said she enjoys working withPBP clients adding, “I feel like it’s a wayof giving back. Most people have reallyappreciated the help so they can go onwith their lives.”

On divorce case was complicated dueto a marital residence problem and a mostuncooperative husband. Ms. Ward spentextensive time trying to help her clientrefinance her mortgage to prevent fore-closure. Because the husband refused tosign the refinancing documents by thebank’s deadline, they lost this opportuni-ty. All of her clients other attempts torefinance failed, so her only choice was tofile a Chapter 13 bankruptcy. The client’shusband objected, thinking that somehowit would affect his equity interests. Ms.

Ward, however, convinced the court thathis interest was not jeopardized by allow-ing her to proceed with the bankruptcy,because her client would be responsiblefor whatever arrears were not paid backaccording to plan. And, indeed, therewere arrears, for her client ultimatelydefaulted in the bankruptcy and wasforced to put the house on the market.Just as all matters seemed to have beensettled, the client mentioned that hermother had contributed substantially tothe purchase of the marital residence.This led to another hearing, as the hus-band refused to acknowledge that hismother-in-law had helped them financial-ly. The result after testimony from thehusband, the wife, and the wife’s motherwas a credit to the wife for one half of herhusband’s premarital income taxes thathad been paid during the marriage.

A totally different, wonderful changefrom her legal work recently entered Ms.Ward’s life. She adopted a two-year-oldboy from Russia. This entailed three tripsto Moscow: the first, to meet and acceptthe child; the second, by law requiringthree weeks till a court date; and the third,because a national holiday postponed thecourt date, so she had to return to theU.S.A. (and her law practice) for a while.

All-in-all, however, she had a niceexperience. “I got lots of respect in thecourt,” she said. “Whether that was due tothe judge and that the other parties wereall women or to a kind of professionalcourtesy or to standard practice, one canonly speculate.”

A divorcee, Ms. Ward is raisingAlexander by herself. “Boy, does it changeyour life,” she exclaimed, and laughinglyadded, “It certainly has cramped my style.Golf has gone by the wayside.” Judging bythe delight in her voice, a toddler for golfwas an excellent exchange.

Ms. Ward majored in accountancy atVillanova University, graduating in 1982and received her law degree from PaceUniversity School of Law in 1985. Shewas admitted to the New York State Bar in1986. The combination of accountancyand law served her well in her first twojobs after she finished law school. Afterworking as a tax consultant at her first firmjob for two years, she moved to anotherfirm as an international tax associate. Twoyears later in 1990, she opened her owngeneral practice in Rocky Point.

Her professional memberships includethe Suffolk County Bar Association and itsElder Law and Bankruptcy Committeesand the New York State Bar Association

and its Elder Law Section. She also serveson the Board of Directors of Options forCommunity Living, an organization basedin Smithtown dedicated to housing for thehomeless, people with HIV/AIDS, and thementally challenged.

The Pro Bono Project appreciatesChristena M. Ward’s quietly consistentand empathetic dedication to her indigentclients and is honored to honor her as ProBono Attorney of the Month for the sec-ond time.

Christena M. Ward Attorney of the MonthFinding a way to give back

PRO BONO

Christena M. Ward and her son, Alex.


__________________

By James F. Gesualdi

Note: The attached essay is a brief pre-liminary excursion on Lincoln and animalson the bicentennial of his birth. It notesLincoln’s love of animals as well as thediversity of his interactions with animalsand closes with a few words of his wisdomespecially appropriate for meshing the com-mitment to animals and professional devel-opment in Animal Law in our efforts to makea difference for animals and people.

Nearly a century and a half after his assas-sination, examination of Abraham Lincoln’slife continues to provide illuminatinglessons. A recently published and beautiful-ly illustrated children’s book, EllenJackson’s Abe Lincoln Loved Animals (illus-trated by Doris Ettlinger), sympatheticallyweaves together accounts of Lincoln andanimals. This storybook and the underlyingreports, many of which can be discoveredonline (see, e.g., http://home.att.net/~rjnor-ton/Lincoln17.html and http://www.abra-hamlincolnsclassroom.org/Library/newslet-ter.asp?ID=126&CRLI=174), provide anopportunity of learning more aboutLincoln’s love of animals (and his interac-tions with them) as well as how those expe-riences and his wisdom generally can beviewed through the context of the growing

field of Animal Law today.Beyond Lincoln’s immeasurable

greatness and well-documentedcompassion for fellow humans, thisreview is worthwhile because of thediverse experiences and interac-tions Lincoln had with animals.During his abbreviated lifetime,Lincoln was exposed to animals inthe wild, including those he and hisfamily hunted (though he apparent-ly refused to hunt again after witnessing thedeath of the first turkey he shot), many thathe observed, and some that he rescued.

Lincoln’s family apparently had someanimals on their farm. Lincoln “used” andprovided great care for his beloved horse“Old Bob” as he rode circuit to visit hisclients. After Lincoln married and raised hisown family, the Lincoln household (includ-ing the White House) was filled with petsincluding cats, kittens, dogs and later aturkey and even goats. In short, Lincoln’sexperiences with animals were more variedas imaginable and broader-ranging than themanner most people relate to animals today.

The experiences in “Abe LincolnLoved Animals”

As noted, Lincoln and his family made“use” of animals for food, transportationand companionship. For the most part,

these animals were apparentlywell cared for and treatedhumanely. Lincoln was certainlyconcerned about animal welfare.He was also moved by animalsuffering such as the death of thefirst turkey he shot, and engagedin anti-cruelty measures whenhe intervened to remove hotcoals fellow students had placedon a turtle’s shell.

Lincoln is also reported to have rescuedbaby birds while horseback riding, and tohave asked troops to care for orphaned kit-tens he encountered while visiting GeneralGrant during the Civil War.

The Lincoln family’s many pets wereoften treated as family members. Uponbeing elected President, Lincoln placed thedog Fido in a neighbor’s custody on con-dition that they provide good care. Thiswas supposedly occasioned by concernsabout Fido not being able to withstand therigors of transport to Washington, D.C.(and all the luggage the Lincolns had tohandle themselves). Fido is also a histori-cally significant animal in that he was thefirst presidential pet ever to be pho-tographed.

During his presidency, Lincoln’s sonTad adopted a turkey he named “Jack”.Upon hearing Jack might be used for food,

Tad apparently interrupted Lincoln whoeventually issued the first presidential par-don of a turkey.

Other recent writings on Lincoln and animals

An almost accidental look at a few dif-ferent publications from the recent wave ofbicentennial-timed Lincoln volumesshowcases some other aspects or complex-ities of his interactions with animals.William Safire’s article, “LincolnMonuments,” in the February 8, 2009issue of The New York Times Book Review,notes:

A publishing industry chestnut is thatthe three fields readers are most interestedin are: (1) Lincolnmania; (2) medicalbooks and (3) books about the care of pets;therefore, one surefire best seller would be“Lincoln’s Doctor’s Dog.”

Fred Kaplan’s critically acclaimedLincoln: The Biography of a Writer, seemsto have a number of references to animalsin Lincoln’s life. In one passage Kaplanwrites that Lincoln “… was attracted toanimals: cats and dogs, for whom he had aspecial tenderness; farm animals, whoselabor and blood helped make crops growand satisfied stomachs …” Kaplan pre-sents a Lincoln penned poem of the men,

Lincoln, Animals, Books and Animal LawANIMAL LAW

James F. Gesualdi

___________________

By Michael S. Brady

The term “like-kind” in the context of anIRC §1031 like-kind exchange has beenconstrued broadly when it comes to inter-ests in real estate. Treasury Regulation §1.1031(a)-1(b) provides that “the words‘like kind’ have reference to the nature orcharacter of the property and not to itsgrade or quality,” and both the InternalRevenue Service (“Service”) and theTreasury have issued rulings that permitthe exchange of a fee interest for a varietyof other lesser interests in real property.

In Private Letter Ruling (PLR)200901020, the Service was asked todetermine whether the sale of residentialdevelopment rights recorded underrestrictive covenants (“DevelopmentRights”) would be considered like kind tothree different property interests: (1) a feeinterest in real property, (2) a leaseholdinterest in real property with a remainingterm in excess of 30 years, [which is con-sidered like kind to a fee interest pursuantto Treasury Regulation §1.1031(a)-1(c)(2)], and (3) land use rights to con-struct hotel units (which the taxpayerplanned to construct on land it alreadyowned).

The taxpayer who requested the PLRhad a put option involving a sale ofDevelopment Rights associated with theTaxpayer’s land. In return, the buyeragreed to transfer to the Taxpayer certainother development rights to constructhotel units that were approved for anoth-er parcel the Taxpayer was selling to thebuyer, plus cash which the taxpayerwould presumably use to acquire otherproperty replacement property.

In it’s ruling, the Service noted thatunder state law, Development Rights con-stituted an interest in real property butpointed out, as it tends to do in thesecases, that it will generally consider statelaw in determining whether propertyrights are real property interests, but thatthe ultimate determination is “a matter offederal, not state, law.” In analyzing theissue, the Service, referred to earlierRevenue Rulings (largely based on statelaw) that considered the following realestate interests:• Perpetual water rights (Rev. Rul. 55-

749, 1955-2 C.B. 295)• Easement of indefinite duration for the

construction of a dam (Rev. Rul. 59-121, 1959-1 C.B.212)

• Easement and right-of-way granted to electric power company (Rev. Rul. 72-549, 1972-2 C.B.472)

• Producing oil leasehold interest whoseterm extended until the deposit wasexhausted (Rev. Rul. 68-331, 1968-1C.B. 352)In concluding that he Development

Rights at issue were like kind to the realproperty interests the Taxpayer plannedto acquire, the Service found it determi-native that, similar to the interests in theaforementioned Revenue Rulings, theDevelopment Rights were perpetual induration and were “directly related andrequisite to Taxpayer’s interest, use, andenjoyment of the underlying land.”

Read in conjunction with PLR200805012, where the Service ruled thatcertain Development Rights could be pur-chased as Replacement Property inexchange for a fee interest in real estate, itwould appear that the Service is receptiveto exchanges involving Development

Rights that are both:(1) considered realproperty under statelaw, and (2) are per-petual in nature.

Of course, PrivateLetter Rulings maynot be relied uponby a taxpayer, socaution is warrantedand competent taxadvice should be obtained in connectionwith any such transaction.

Note: Michael S. Brady is a VicePresident for Asset Preservation, Inc., aNational Qualified Intermediary for IRC§1031 Tax Deferred Exchanges. He isalso a Certified Exchange Specialist®and he is the Treasurer of the SuffolkAcademy of Law.

On Tuesday, April 21, 2009, TheSuffolk County Bar Association, theSuffolk County Women’s BarAssociation and the North Shore LIJHealth System Katz Women’s Hospital/Women’s Health Institute will jointogether for an evening devoted towomen’s health issues. The programentitled AThe Doctors Are In@ willbring together an eminent panel of physi-cians from the North Shore LIJ HealthSystem, leaders in their fields of practice,to discuss the most recent findings inwomen’s health. Moderated by NeetaShah, MD, FACP - VP Women’s

Health Services, the topics to be dis-cussed will include: Hypertension,Diabetes, UV Radiation and SkinCancer, Migraine Update 2009 andAging Parents. Dr. Shah oversees theKatz Women’s Hospital/ Women’sHealth Institute project, with the purposeto empower women with the informationand tools needed to make enlightenedhealth care decisions for herself and herfamily.

The goal of “The Doctors Are In”program is to inform the audience on dis-ease prevention and present the mostupdated health care information avail-

able. After the panel discussion, thephysicians will be available to answerquestions and will also make time fornetworking to meet attendees.

We express our gratitude to theSymposium Co-chairs Ilene S. Cooper,Janessa M. Trotto and Ivy J. Algazy. Wealso thank Monarch Graphics andFireside Caterers for partially underwrit-ing the symposium which enables us tocharge a nominal fee of $25.00 per per-son.

For further information please contactSCBA Executive Director Jane LaCovaat (631) 234-5511, ext. 231.

Women’s Health Symposium

1031 Exchanges of Development Rights REAL ESTATE

Michael S. Brady



FREEZE FRAME

Celebrating Black History Month

Honorable John M. Czygier, Jr., Suffolk County District Administrative Judge H. Patrick LeisIII, and SCBA President Jim Winkler. Honoring our country.

Ghenya Grant, President Amistad LI Black BarAssociation.

Lewis Johs Celebrates Wear Red Day

Students from the Vanetts Cultural Workshop.

Red-clad employees of Melville-basedlaw firm Lewis Johs Avallone AvilesLLP recently celebrated National WearRed Day to raise awareness for and sup-port the American Heart Association’songoing research and education effortson women and heart disease. “Go Redfor Women,” the association’s umbrellaprogram, celebrates the energy, passionand power of women to band together tofight heart disease and stroke. Beginningthis spring, Lewis Johs will implementthe Association’s Start! Walking for aHealthy Lifestyle program, which isdesigned to encourage employees towalk for exercise and will recognize andreward firm employees who switch froma sedentary lifestyle to a more active one.

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The evening was also a social event. SCBA Director Annamarie Donovan and a student.

SCBA member Richard L. Stern spoke to a student.

First Vice President Sheryl L. Randazzo

Many enjoyed the law school student reception.


Law School Student Reception

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Students had a chance to mix and mingle.


Very carefully _____________

By Alan Finkel

The most important thing about runninga mediation business is to know that with-out the couple retaining you all thatoccurred in your office with the couple isconversation. Convincing both husbandand wife to reach into their pocket or purseto pay for your time is a serious considera-tion.

If you mediate couples going through adivorce or legal separation, sooner or lateryou’re bound to encounter this type of pro-file. The earner (typically the husband),owns a deli, construction company, paint-ing business, hot dog truck, restaurant, orsome other type of business that consistsprimarily of cash dollars.

Now I know this might come as a shockto some of you reading this article, butsome residents of Nassau and SuffolkCounties do not report all of the incomethey earn. Of course, as attorneys, wewould never do such a thing (it is after alla crime not to report income earned), but

after you have recovered from theshock of the above statement,please stay with me.

On occasion, I have encoun-tered such a couple, and the jointtax returns filed indicates some-where between $35,000.00 ofcombined income, to anywhereup to $100,000.00 of combinedincome. (In the 15 years I havebeen mediating, I have yet to seesuch a couple report over a $100,000 ofcombined income). Yet their lifestyle indi-cates actual income far in excess of whathas been reported. When questioning themabout their lifestyle you find they own sev-eral parcels of real property, some asinvestment, and some as vacation. Andthey have taken lavish vacations to exoticplaces -- you get the idea.

Let’s assume it’s the husband who ownsa successful restaurant in Manhattan. Therestaurant has a full bar, and probablygrosses well over a million dollars.However, the bank account of the restau-rant shows little or no cash deposits. Whenasked whether cash is ever paid by the cus-

tomers, the husband gets uncom-fortable, and usually asks mewhat business it is of mine as amediator. After all, he maintains,he and the wife have “worked outa deal,” and he just wants me towrite it up, so he can getdivorced.

My typical response to thattype of colloquy, is that in orderfor me to properly guide the cou-

ple through the mediation process, it isessential to get a true picture of the financesof the couple; that without a full under-standing of the income and expense ratio, Ican not give any financial advice, or sharemy years of experience and knowledge tohelp the couple decide what to do.(Remember, the job of the mediator isnever to make decisions for the couple, norto tell them what to do. Our job is to facili-tate communication between them; to offeralternative solutions to given issues; toshare experience and knowledge, legal andpractical, to draft a proposed agreement).

Now, at this point of the mediation,either the husband trusts me or he doesn’t.

Since the mediation business is after all abusiness (meaning you want to get paidfrom this couple), I would rarely have thisdiscussion during the first session. It isessential to develop a rapport with the cou-ple, assure them that you care about themand their children (if any), and give them asense of relief that you, as a professional,will help them get through this most diffi-cult time in their lives.

Obviously, if that trust is not properlydeveloped, the husband might get up andleave. That mediation is now over.Regardless how much the wife might wantto continue, without both parties present,the ability to mediate has ended. I assureyou that this is not the result you want.You want to continue the process until youare able to draft a proposed agreement forthe couple to sign.

So how is this under reported incomeissue properly handled? Ask about theirlifestyle. Ask the wife if she knows aboutthe unreported income. Ask whether thewife signed the joint tax returns. Ask thecouple to fill out a verified net worth state-


How a Mediator Handles a Couple Under Reporting Income

ADR

Alan Finkel

___________________

By Robert M. Harper

In In re Kalikow, the Appellate Division,Second Department, recently held that thedecedent’s agreement to arbitrate wasenforceable against the representative ofher estate. The Kalikow decision is note-worthy because arbitration decisions andprovisions are not universally enforced inestate-related proceedings, especially incases concerning the admission of a will toprobate and the distribution of an estate.This article discusses the public policy-based considerations, which militateagainst the arbitration of estate-related dis-putes, and the circumstances in which arbi-tration provisions will be enforced.

In In re Berger, the decedent wrote aletter, directing that any company inwhich he had an interest “come under thesole direction of his ‘four children’ and[that] all benefits due him . . . be dividedequally among the four children.” Thedecedent also directed that his son “do allthat is necessary to fulfill [his] wishesexpressed in this Will[,]” apparentlyintending that the letter be treated as hislast will and testament.

Upon the decedent’s death, a disputeconcerning the decedent’s interests incompanies arose between the decedent’sson and son-in-law, the petitioners andthe proponents of the letter as the dece-dent’s will, and the respondent, anotherone of the decedent’s sons. The partiesthen sought to have the decedent’s letterinterpreted by a Rabbinical Tribunal,

which rendered a “Decision andVerdict” with respect to thedecedent’s “interests and prop-erties . . .”

Shortly thereafter, the peti-tioners commenced a proceed-ing in the Supreme Court,Kings County, to confirm theRabbinical Tribunal’s decision,presumably for the purpose ofcompelling the respondent’scompliance with the arbitration-like deci-sion. The Supreme Court declined to con-firm the Tribunal’s decision for publicpolicy reasons. On appeal, the SecondDepartment affirmed.

As the Appellate Division explained,“[i]t [was] clear that . . . the [decedent’sletter did] indeed purport to be the lastwill and testament of the deceased and toprovide for the distribution of his estate.”That conclusion, when taken in conjunc-tion with the Appellate Division’s findingthat the Tribunal’s interpretation of theletter was “an attempt to determine thedistribution of a decedent’s estate[,]” pre-cluded the court from enforcing theTribunal’s decision. The AppellateDivision reasoned that “[t]he probate ofan instrument purporting to be the lastwill and testament of a deceased and thedistribution of an estate cannot be thesubject of arbitration . . . and any attemptto arbitrate such issue is against publicpolicy[.]” Accordingly, the SecondDepartment affirmed the SupremeCourt’s decision not to confirm the

Rabbinical Tribunal’s decision. More recently, in In re

Kalikow, the decedent owned a 1percent general partnership inter-est and a 50 percent limited part-nership interest in a partnership.1The respondents, the decedent’stwo children, owned the otherinterests in the partnership.

The decedent died, leaving alast will and testament, in which

she bequeathed her ownership interests inthe partnership to a charity. Following thedecedent’s death, the respondents serveda demand for arbitration against the peti-tioner. They sought to arbitrate whetherthe decedent violated the partnershipagreement by bequeathing her interests inthe partnership to the charity. The respon-dents based their demand on two partner-ship agreement provisions, which prohib-ited partners from pledging, encumber-ing, selling, mortgaging, hypothecating orassigning their interests in the partnershipwithout the express written consent of allother partners and directed that any dis-pute arising from the partnership agree-ment be resolved through arbitration.

The petitioner responded by commenc-ing a proceeding in the Surrogate’s Court,Nassau County, to stay the arbitration. Insupport of his petition, the petitionerargued that the arbitration concerned thedistribution of the decedent’s estate and,therefore, violated public policy.Notwithstanding the petitioner’s con-tentions, however, the Surrogate’s Court

denied the petition and the petitionerappealed.

On appeal, the Second Department heldthat the arbitration provision was enforce-able and affirmed the Surrogate’s deci-sion. As the court opined, “[a] decedent’sagreement to arbitrate a controversy isbinding on the representative of the dece-dent’s estate.” In contrast to Berger, thecourt was not concerned that the arbitra-tion clause violated public policy becausethe arbitration concerned a subject otherthan “the construction of the decedent’swill or the administration of her estate.”

In sum, arbitration decisions and pro-visions are not universally enforceable inestate-related proceedings. On the onehand, arbitration decisions and provisionswill be deemed unenforceable, as againstpublic policy, where they implicate theconstruction of wills or affect the admin-istration of estates. On the other hand,where neither one of those policy-basedconcerns is called into question, courtslikely will conclude that arbitration provi-sions are enforceable against the repre-sentatives of decedents’ estates. Bergerand Kalikow make these points clear.

Note: Robert M. Harper is an associatein the Trusts and Estates Department atFarrell Fritz, P.C.

1 In re Berger, 81 A.D.2d 584 (2dDep’t 1981).

2 In re Kalikow, 2009 WL 202461 (2dDep’t Jan. 27, 2009).

Enforcing Arbitration Decisions andProvisions in Estate-Related Litigation

TRUSTS AND ESTATES

Robert M. Harper

_______________________

By William E. McSweeney

Readers of The New Yorker are familiarwith the magazine's notables, some quick,many dead: Harold Ross, the founding edi-tor; William Shawn, Ross's successor andthe most famous, longest-tenured, stewardof the magazine's reputation for excel-lence; Katherine White, nurturer of fictionwriters for the magazine; and, to do somemore name-dropping, an assembly of con-tributors second to none in talent: RogerAngell, Truman Capote, Rachel Carson,Janet Flanner, Henry Louis Gates, Jr., A.J.Leibling, John McPhee, Joseph Mitchell,Alice Munro, Vladimir Nabakov, CalvinTrillin, Kenneth Tynan, John Updike, andE.B. White.

The magazine is justly noted for its pro-files, word-pictures of interesting people.Of course, the subjects alone don't formthe complete interest; the profiled and theprofilers--the happy unions of subjects andartists--are what create the delight for thereader. In other words, it's not JohnnyCarson, it's the urbane Kenneth Tynan'sperception of Johnny Carson; it's not theunprincipled "Prince," Mike Romanoff, it'sAlva Johnston's uproarious take onRomanoff; it's not Marlon Brando, it's thewicked Truman Capote's skewering ofBrando--and to read Capote anew is torealize again what a keen observer and car-ing craftsman he was. The 25 essays thatform Life Stories: Profiles From The NewYorker are nothing less than a string of cul-

tured pearls. Herein is a sampling.Wolcott Gibbs's essay on Time maga-

zine's Henry Luce, written in 1936,remains hilarious. Drawing from thevocabulary of ‘Timespeak'--his neologismfor the language that Luce coined, or moreaccurately, cobbled--Gibbs writes in thebreathless manner of the magazine(Timestyle), collapsing words into oneanother, inverting sentences with abandon,and otherwise maddening the reader. (In"Timespeak" the reader is designated as"fellowman".) Of the magazine's beingsolidly in the black, Gibbs notes: "Sittingpretty are the boys," of an extended essay--too extended--in Timestyle:

"Backward run sentences until reels themind," and of the ever-expanding empire--Time, Life, Fortune--and its threat to ourprecious language: "Where it all will end,knows God!"

__________________________________Life Stories: Profiles from The New Yorker By Jeremy BlachmanEdited by David Remnick624 pp. Modern Library

ISBN # 9780375757518 __________________________________

In "Man Goes To See A Doctor," AdamGopnik writes of that which impelled himto see the pseudonymous Max Grosskurth,

the writer's aged and wise old-world thera-pist:

"Why was I there? Nothing interesting:the usual mixture of hurt feelings, confu-sion and incomprehension that comes toearly-arriving writers when the thirties hit.John Updike once wrote that, though thenewcomer imagines that literary NewYork will be like a choir of angels, in factit is like the Raft of the Medusa--and hewas wrong about this only in the people onthe Raft of the Medusa still have hope. InNew York, the raft has been adrift now foryears, centuries, and there's no rescue boatin sight. The only thing left is to size up theothers and wait for someone to becomeweak enough to eat."

When Grosskurth hears Gopnik speak ofhis feuds with other writers, the analysttells his analys of an earlier, famous battlebetween two of Gotham's most famous artcritics. Six months after the feud, when ata social function the good doctor's wifereferred to it, no one caught the reference,no one remembered the feud. "‘And this,'"the doctor said, according to Gopnik,"‘was when ARTnews was something!'"

Gopnick concludes:"Eventually, abruptly, as the clock on

the wall turned toward seven-thirty, hewould say, ‘So you see...this demonstratesagain what I always try to tell you aboutdebates among intellectuals.'

I leaned forward, really wanting to know.

‘What is that,Doctor?' I said ‘Noone cares. Peoplehave troubles of theirown. We have to stopnow.'"

Truman Capote's1957 visit to Japan,where Marlon Brando is making Sayonara,is recorded as an amalgam of profile, travel-ogue, and treatise on Nipponese culture andmores. In "The Duke in His Domain," "TheDuke's (Brando's) interminableness ofspeech sets a glaze over Capote's eyes.Finally, the nose of the Navel-Gazer-in-Chief prods Capote's curiosity, acts as ananti-soporific:

"...manuevering a word in edgewise, Iasked, ‘How did you break your nose?'”

“by which I don't mean that I'm alwaysunhappy. I remember one April I was inSicily. A hot day and flowers every-where. I like flowers, the ones that smell.Gardenias. Anyway, it was April and I wasin Sicily, and I went off by myself. Laydown in this field of flowers. Went tosleep. That made me happy. I was happythen. What? You say something?”

“I was wondering how you broke yournose."

When the megalomaniacal Brandospeaks of doing it all--writing, producing,directing, acting--Capote draws on hisrural roots to gently express skepticism,opining that the actor "might be loading


___________________

By David A. Mansfield

Attorneys will be confronted with aseries of recurring issues when represent-ing clients in Vehicle & Traffic Law mat-ters. The practitioner should try to antici-pate the collateral consequences of anyconviction and promptly advise theirclient.

The Driver Responsibility Assessment,which is assessed either under §1199 or§503(4) for either the accumulation of sixor more points within an 18-month period,or as a result of a Chemical Test Refusal,or a conviction for an alcohol-related dri-ving conviction can be particularly trou-blesome for the defense lawyer.

The lawyer should always fully informtheir client at the initial interview and any exit or disposition letter as to therequirement that the mandatory DriverResponsibility Assessment must be paid.Your client will be notified by DMV at theaddress on file. The fee may be paid on linehttp://www.nydmv.state.ny.us/drp.htm#paydra.

My office always referred to it as the mandatory Driver ResponsibilityAssessment in our correspondence. Therecommendation should be that the fee bepaid in a single installment if your clientis in a financial position to do so in orderto avoid the possibility of having theirlicense suspended at a later date for fail-ing to make timely payments.

Defense counsel wants to avoid a situa-tion where their client is unaware of theassessment and then is eventually stopped

for aggravated unlicensed opera-tion in the third degree. When rep-resenting a client whose licensehas been revoked for non-alcoholrelated reasons, they may be eligi-ble under §530 and 15 NYCRRPart §135 for a restricted uselicense. Your client will beinformed by the Department ofMotor Vehicles as to their eligi-bility. A factor that influences theissuance of a restricted use license arewhether they were previously issued arestricted use license for the previousthree years, which would render themineligible as per §530(2) and 15 NYCRRPart §135.7.

The Department of Motor Vehicles willreview their driving record for the previ-ous three years and score it under 15NYCRR Part §136.1 on the same basis asa driver license application. This meansthat if your client has a poor drivingrecord than the Department of MotorVehicles may not grant them a restrictedlicense even if it is their first request.

Additionally, the Department maydecline to grant a restricted license if yourclient has two or more suspensions otherthan failing to appear or failing to payfines. These suspensions could be foreither too many points or revocation forthree speeds.

The best position that the defenselawyer can take is that your client willreceive a letter from the Department ofMotor Vehicles, which will determinetheir eligibility for a restricted use license.

Conditional licenses for alco-hol related offenses are gov-erned by VTL §1196 and 15NYCRR Part§134.7 that formost first offenses provide theclient not be sentenced to courtordered probation. It should beroutine for them to receive aconditional license from theDepartment of Motor Vehicles.

When your client is sen-tenced to court ordered probation itdepends on the conditions of probation.Should the conditions of probation con-tain a clause that your client may not pos-sess or apply for a driver’s license with-out the permission of the court or proba-tion then your client will not be granted apost conviction conditional license.(Please read special condition number 2in the Suffolk County ProbationDepartment Order and Conditions ofAdult Probation.)

The issues confronting DefenseCounsel when they represent holders ofcommercial drivers licenses or CDLClass A and B become more complexwith respect to mandatory one year revo-cations of the commercial drivers licensefor certain convictions while operatingany vehicle.

You have to make it clear to your clienteven though the violation was not com-mitted while operating a commercialmotor vehicle that certain convictions willresult in a mandatory one-year revocationof their commercial driver’s license.

The holder of a CDL who is convicted

of §1192(1) or §1192(2) or §1192(3) or(4) for operation of any vehicle will facea mandatory one-year revocation of theircommercial drivers license.

A commercial drivers license will berevoked for one year if your client is con-victed of leaving the scene of a personalinjury accident which carries a six monthmandatory revocation of the regular dri-ver’s license but more importantly a vio-lation of §600(1) leaving the scene of aproperty damage incident while operatingany vehicle.

It is very important to make your clientunderstand the mandatory nature of thisvery serious sanction. Defense counselshould log onto to http://www.nysdmv.com/press/pr092705htm for a completelist of offenses and consequences forCDL licensed clients.

The minimum period of revocation fora first chemical test refusal is one-year§1194(2)(d)(1)(a) and a $500 civil penal-ty §1194(2)(d)(2). Chemical test refusalhearings on the walk in calendar after atemporary suspension pending a hearingat arraignment can only be adjourned bythe respondent/defendant with a contin-ued driver license suspension as per 15NYCRR Part §127.7(d)(2).

The defense practitioner should be con-versant with these issues to set properexpectations to effectively represent theirclients.

Note: David Mansfield practices inIslandia and is a frequent contributor tothis publication.

Recurring VTL Issues DMV

David A. Mansfield


Forming a String of Pearls BOOK REVIEW

William E.McSweeney


_________________

By Dennis R. Chase

While I can’t say I’ve been a fan ofMichelle Shocked (nee, Michelle Johnston,1964) since her first LP in 1986, The TexasCampfire Tapes, I’ve certainly been onboard since If Love Was A Train (ShortSharp Shocked, 1988) hit the top 20 onlytwo years later. The singer's name datesback to the one she gave when arrested in1984 at a protest called "The War ChestTour" during the Democratic NationalConvention in San Francisco, California.The demonstration challenged the practiceof U.S. corporations giving campaign con-tributions to both Democratic andRepublican parties, thus benefiting frompolitical favors regardless of which party iselected. "Michelle Shocked" was a play onwords intended to resemble the phrase"shell shocked." The front cover of one ofher best-known albums, Short SharpShocked, shows her restrained by the choke-hold of a San Francisco policeman in afront-page photograph published by the SanFrancisco Examiner the following day.

It’s hard to imagine this now, legendaryfolk super star, has written and produced13 superbly amazing releases culminatingwith her most recent live gospel recording,in 2007, ToHeavenURide. Like the icono-clastic artist’s first release, this releasecontains recordings Shocked didn’t knowwere being made while she was putting onthe show that each documents. She may bethe only artist in history with not one buttwo inadvertent live albums in her body ofwork. Her Texas Campfire Tapes, whichignited the artist’s career, was actuallyreleased without Shocked’s authority,recorded at the Kerrville Folk Festival

campfire on a Sony Walkman.This is not the end of the story,however. The new studio album,Soul of My Soul, is finished! Atentative release date is set forApril 15, 2009. Fortunately,Michelle graced the audience inattendance with a few gems fromthis as yet to be released CD.

To quote Michelle, herself,from her 1992 release, ArkansasTraveler, featuring collaborationswith several other artists, including TajMahal, The Band, and Uncle Tupelo, she’s[c]ome a long way, come a long way,[she] drove 500 hundred miles today! Ifeel as though I’ve enjoyed every part ofthe trip.

Michelle did not disappoint those fortu-nate enough to see her blistering perfor-mance in Port Washington opening with asmoldering, soulful version of When IGrow Up leading seamlessly into a crowdfavorite, If Love Was A Train, withoutmissing a beat. Shocked sampled many atune from her Short Sharp Shockedrelease, including Memories of East Texas,Graffiti Limbo, and Anchorage.

After enjoying some of the new stufffrom her as yet to be released CD, includ-ing, Other People, Liquid Prayer, andPompeii, we both anxiously await therelease of this new CD.

Michelle is a singer-songwriter whosemusic and performances are influenced byher Texas roots, her political activism, and aself-assured style that her first major-labelproducer likened to troubadours such asJoni Mitchell, Spider John Koerner, andDave Van Ronk. She’s talented, she’s inter-esting, and she’s just plain fun. I suggest

you give her a listen, visit her onthe web at www.michelleshocked.com, check out her musicand videos at www.youtube.com,or simply become one of her 4,649friends at www.myspace.com. Ican promise you won’t be disap-pointed.

New venues are always soexciting. My wife, Sheri, and Ihad been hearing nothing butwonderful things about The

Jeanne Rimsky Theater at Landmark fromnone other than the husband of the the-ater’s General Manager Phyllis Joseph, thevery Honorable Joel Joseph. I’ve had thedistinct pleasure of appearing before JudgeJoseph for many more years than either ofus care to remember, however, my wifewas the first to introduce me to this won-derful, historic, acoustically magnificenttheater. Used from 1916-1985 as the MainStreet School auditorium in PortWashington, the Jeanne Rimsky Theaterhas been magnificently renovated to pro-vide 425 extremely comfortable seats, atruly state-of-the-art sound system, and anintimate setting to connect with the per-formers from anywhere in the theater.

The Landmark has hosted sold-out per-formances from world-renowned artistssuch as The Bacon Brothers, JoanOsborne, opera legend Marilyn Horne,composer/musician extraordinaire MarvinHamlisch, violin prodigy Sarah Chang,Broadway's Brian Stokes Mitchell, Latin-Pop star Raul Malo, Rock and Roll Hall ofFame inductee Jorma Kaukonen, and folkicons Judy Collins, Richie Havens, JanisIan, Lucy Kaplansky, The Kingston Trio,Tom Paxton, Jean Ritchie, and Dar

Williams. The Landmark’s mission state-ment, simply put, is [for the theater to be]a not-for-profit community center dedicat-ed to strengthening the spirit of communi-ty by presenting and promoting opportuni-ties for cultural, educational, recreational,social and civic activities for the benefit ofthe people of Port Washington and neigh-boring communities. Mission accom-plished!

Note: Dennis R. Chase is the currentSecretary of the Suffolk County BarAssociation, a frequent contributor of TheSuffolk Lawyer, and a partner with TheChaseSensale Law Group, L.L.P. Thefirm, with offices in Suffolk, Nassau, andQueens Counties, concentrates their prac-tice in Workers’ Compensation, SocialSecurity Disability, Long Term Disability,Short Term Disability, DisabilityRetirement, and Accidental Death andDismemberment Benefits.

Michelle Shocked Still Short Sharp Shocked Packing the house at The Jeanne Rimsky Theater at Landmark on Main Street

HOT PICKS

Dennis R. Chase

Attorney commended once again

To the Editor:Thank you for your September 2008 pro bono article

honoring Karen G. Silverman. She is 'an attorney withintegrity'.

Patricia McKiernan

Help returning vets

To the Editor:I had the pleasure of attending the Suffolk Academy of

Law program entitled “Representing Veterans.” Thisprogram was coordinated by the Honorable Peter Mayerand Ted Rosenberg.

The program was presented by the Suffolk Academy ofLaw and the Suffolk Bar without a tuition fee for the pur-poses of educating attorneys as to the issues involvingreturning veterans and trying to encourage attorneys tovolunteer to undertake pro bono work for the returningveterans.

One of the speakers at the program was Daniel J.Murphy, Esq. Many of you know Mr. Murphy as the

principal law clerk to the Honorable Peter Cohalan. Inever had the opportunity to meet Mr. Murphy before butafter listening to him, he is an extraordinary individual.He earned a purple heart and a bronze star as a war vet-eran. His son Lt. Michael P. Murphy, a U.S. Navy Seal,was tragically killed in action in Afghanistan on June 28,2005.

None of us can probably imagine any greater sacrificethan the loss of life in serving your country and the agonythat each parent, brother, sister, or relative of a soldierkilled in action must endure on a daily basis. The sacri-fices made by our returning soldiers are monumentalcompared to the small efforts that each of us as attorneyscould do to volunteer some of our time to try to help ourreturning veterans.

It is a relatively simple task for each of us to consideroffering pro bono legal services to our returning veterans,regardless of what your area of practice may be. Ourefforts, as attorneys, to assist the returning veterans palein comparison to their service to our nation.

This is not a political issue or whether or not youbelieve a war is justified. It is simply a matter of helpinga veteran in need. Please think about adding your name tothe list of our colleagues who have offered to render pro

bono legal services on behalf of the extraordinary andunselfish men and women who have valiantly served ourcountry. It is the least we can do.

Richard L. SternMacco & Stern, LLP

LETTERS

Letters policyThe Suffolk Lawyer welcomes letters, which should be no longer than 300 words and must contain the name of

the writer and phone number for verification.Anonymous letters will not be published, but names may be withheld upon request if the editor deems it appro-

priate. Letters should be sent to [email protected].

Michelle Shocked at a Protest.


_________________

By Justin Giordano

This column is dedicated to the vari-ous opinions of SCBA members.Submissions will be accepted from allmembers of the SCBA.

Emulating our northern neigh-bors?

The recent election of Barak H. Obamahas the potential for transforming theAmerican societal landscape in more waysthen we might imagine or even care to. Inall fairness one cannot deny that the themeof “change” permeated throughout the

new president’s two year long, ultimatelysuccessful campaign. One of the promisesmade in that campaign and reiterated sincehis victory in November pertains to healthcare issues and particularly in terms ofproviding what has generally been termeduniversal care. In many circles that supportand advocate for universal health carethere is often talk that we should emulatethe Canadian or European approach. Itthus seems quite paradoxical and ironicthat north of the border recent develop-ments indicates movement in the oppositedirection.

Healthcare, the Canadian Way

The Canadian universalhealth care system is based on aprovincial system where eachof the country’s 10 provincesprovides free health care for allof its citizens and residents. Allthat is needed to receive healthrelated service is the presenta-tion of a social insurance card.Naturally, there are some drawbacks tothis utopian system, the most preeminentbeing that the medical services andhealthcare provided has its limitation.This is attested by the fact that Canadianswait an average of 17.9 weeks forsurgery and other therapeutic treatments(according the Vancouver-based FraserInstitute). For example, the comparativeratio of MRIs per capita between theUnited States and Canada is approxi-mately 10 to one. In other words thereare 10 MRI machines for every one citi-zen and resident in the United States asopposed to one in Canada. Lately therehave been some allowances for privateproviders of MRI services that can bepaid on an out of pocket basis bypatients. These are strictly monitored bythe controlling governmental agenciesbut face stern opposition from manyquarters the principle being, that this isunfair to the population as a whole in thatthis only benefits patients with means.

Under the Canadian health care systeman assumed unintentional, if seeminglyabsurd, by-product of the system is that itis perfectly legal to pay for private med-ical/veterinarian services for a pet but notfor oneself or a relation. Comparatively,the Canadian healthcare system is evenmore restrictive vis-a-vis its requirementsfor conformity than even the French orBritish systems that allow to a limiteddegree for private non-governmentalhealthcare providers. In fact Canada isarguably the only nation other than Cubaand North Korea that bans private health

insurance. Obviously, for such ahealthcare apparatus to be func-tional or even feasible, the legalframework within which it oper-ates must fully support it. Forexample, if a patient in Canadacould have prevented a seriousillness or even fatal medical con-sequence if an MRI exam wouldhave been administered but dueto rationing a six month delay

ensued, that patient would have for allintents and purposes no recourse. Thesame occurrence transpiring in the UnitedStates would almost certainly result in alawsuit for malpractice culminating witha large financial settlement or jury awardfor the patient or his/her estate. It couldthus be said that based on the Americanlegal system and 200 plus years of tradi-tion placing value on the individual at itscore, in theory at least, rationing health-care could not pass constitutional muster.

It is further argued that the Canadianhealthcare system can afford adherenceto its egalitarian approach premised in

great part to Canada’s proximity to theUnited States and its ample healthcareresources. Many Canadians who canafford the expense will not hesitate tocross the border and avail themselves ofAmerican medical services if and whenthey deem their health concerns cannotbe addressed at home or cannot afford tobe delayed. This is particularly so whenit pertains to preventive procedures andrelated issues. After all, this does notnormally constitute a significant incon-venience, given that the overwhelmingmajority of the Canadian populationlives within an hour’s drive of theAmerican border.

A slight change of course, courtesyof the Canadian Supreme Court

In June of 2005, the Supreme Court ofCanada issued a ruling that essentiallysaid that Canada's vaunted public health-care system produces intolerableinequality. The high court's decisionstrikes down a province of Quebec law

Private Medical Care - Canadian Style AMERICAN PERSPECTIVES/OPINION

Notice To The BarOn April 6, 2009, the Village of Thomaston Village Justice Court, 100 E. Shore

Road, Thomaston, New York, will terminate its operations.

Effective that date, or such other date as may be established by court order, alltraffic and parking matters pending in that court will be transferred to the NassauCounty Traffic and Parking Violations Agency, 16 Cooper Street, Hempstead, NewYork, and all matters involving Village Code violations will be transferred to theNassau County First District Court, 99 Main Street, Hempstead, New York. Noticesof new return dates will be given by the Agency or the District Court.

Attorneys who have matters pending in the Village Justice Court and who wishto dispose of them prior to the transfer date should contact the Village Justice CourtClerk at 516-482-3110 as soon as possible, and in any event no later than March 15,2009.

Village of ThomastonA. Thomas Levin, Village Attorney

It could thus be said thatbased on the Americanlegal system and 200plus years of traditionplacing value on the individual at its core, intheory at least, rationinghealthcare could not passconstitutional muster.

“

”


Justin Giordano

_______________

By Dennis Chase

The following announcement is notsolely directed to male attorneys . . . or forthat matter, not just directed at men. TheSuffolk County Bar Association is pre-senting an important Prostate HealthInformation Program on Thursday, April2 from 6:00 to 7:30 p.m. at the SCBA BarCenter.

Many, most assuredly, will be surprisedto learn that prostate cancer is the secondleading cause of death among Americanmen, with more than 30,000 dying fromthis dreaded disease each year. One in sixmen will get prostate cancer and yet thedisease is treatable, if detected at an earlystage with a simple blood test. Stop andconsider that even if you are fortunateenough to avoid the disease, the odds arehigh, you know someone who will not bequite so fortunate . . . a family member,friend, or colleague. That’s why this pro-gram is so vital to all our members, youngand old, male and female. The program,coordinated by Vincent C. Berger, Jr.Louis C. England, and Hon. William B.

Rebolini, will feature David B. Samadi,Chief of Robotics & Minimal InvasiveSurgery at the Mount Sinai School ofMedicine. This is an opportunity and aprogram no one can afford to miss.

Similarly, the SCBA, together with theWomen’s Bar Association, North ShoreLIJ Health System, and the KatzWomen’s Hospital/Women’s HealthInstitute will be presenting the Women’sHealth Symposium on Tuesday, April 24from 5:30 to 9:00 p.m. at the SCBA BarCenter. Again, this is a program so impor-tant, no matter what your gender.

If you haven’t already done so, kindlytake a few minutes out of what is sure to bea very busy day (aren’t they all) and com-plete the electronic membership surveyforwarded to your e-mail address recently.The completion of this survey will allowevery voice to be heard on issues that mat-ter to members most. Your answers willhelp shape the future of our BarAssociation by identifying your key issuesfor strategic planning. If you have notreceived the survey, it may be because weat the bar don’t have your current and/or

correct e-mail address. There is no betterway to say connected to the bar and fellowcolleagues than through the internet . . .which, I’m told, is like a series of tubes.

On a more serious note, almost 700 ofthe e-mails sent, were returned to us asundeliverable. I’m fairly certain thesemay be the same individuals who haveyet to explore EZ-Pass, the Metro Card,or even an ATM machine for that matter.You know who you are. After you pro-vide us with your correct e-mail address,not only will we be better able to serveyou in an ever challenging economicatmosphere, we’ll provide super secretinformation never before released thatwill stop your VCR from flashing 12:00.Snail mail is slow, unreliable, and incred-ibly costly when considering not onlypostage, but the use of paper when weshould all be considering its impact on theenvironment. It’s easy to be green.

Mark your calendar now, as the AnnualMeeting is scheduled for May 4 at 6:00p.m. at the SCBA Bar Center.Traditionally, not only the new slate ofOfficers and Directors are elected at this

meeting, moreover, special awards ofrecognition will be presented to deservingmembers. This is an excellent opportuni-ty to not only meet and/or interact withthe leadership of your Bar Association,moreover, this is an opportunity to net-work with fellow colleagues and theevent is FREE! That means free food, freenetworking opportunity, and the chancefor a one million dollar door prize! Okay,the door prize is not quite a million dol-lars, but you will be able to see the mostrecent and unbelievable renovations madehere at your Bar Center.

Note: Dennis Chase is the currentSecretary of the Suffolk County BarAssociation, a frequent contributor of TheSuffolk Lawyer, and a partner with TheChaseSensale Law Group, L.L.P. Thefirm, with offices in Suffolk, Nassau, andQueens Counties, concentrates theirpractice in Workers’ Compensation,Social Security Disability, Long TermDisability, Short Term Disability,Disability Retirement, and AccidentalDeath and Dismemberment Benefits.

SECRETARY’S REPORT


__________________

By Dennis R. Chase

Never let it be said that I am a restau-rant snob. There are restaurant snobs outthere, trust me. I’ve been told, pointblank, “[t]here are simply no greatrestaurants on Long Island.” Thesesnobs often support their contention withthe premise there are no Michelin ratedrestaurants on Long Island. For the non-snob, The Michelin Guide is a series ofannual guide books published byMichelin for over a dozen countries. Theterm refers, by default, to the MichelinRed Guide, the oldest and best-knownEuropean hotel and restaurant guide,which awards the Michelin stars. Theguide uses a three-star system for recom-mending restaurants with one star refer-ring to a very good restaurant in its cate-gory; two stars denoting a restaurantwith excellent cooking, worth a detour;and three stars awarded for exceptionalcuisine, worth a special journey. Theguide also recognizes many restaurantswithout any stars or Bib Gourmands,however, any listing in the guiderequires a relatively high standard forthe kitchen.

I do believe there are many greatrestaurants on Long Island and a greatmeal can be had without completely dev-astating one’s bank account. If onechooses, however, to go the pricey route,they should expect really great food,friendly and competent service, and awarm, comfortable atmosphere.

For an incredibly great meal, and thebest breakfast on the Island, head over toMaureen’s Kitchen on Terry Road inSmithtown. For an equally great meal,following local theater, visit Campari onMain Street in Northport. For my wifeand me Restaurant Mirabelle (formerlyof St. James) always guaranteed anunbelievably wonderful dining experi-ence. In the past year, however, friendsand colleagues alike strongly urged us toforego our special place, head up thestreet a ways, and enjoy a far superiormeal at Kitchen A Bistro, prepared byowner and chef, Eric Lomando, the for-mer sous-chef from Mirabelle.

Well, last Friday night, together withsome very close (and dear) friends, wefinally had the opportunity to visit “theKitchen” (as it’s called by their loyalclientele). This was no easy feat as reser-vations must be booked well in advance.Oddly enough, our first Kitchen experi-

ence would take place in theold home of RestaurantMirabelle. Chef Guy Reuge hasdecided to relocate Mirabelle towhat is now the Three VillageInn in Stony Brook, where therestaurant will enjoy an inter-esting dichotomy. MirabelleTavern will be more casual andopen in mid-March andMirabelle Restaurant will re-open in the late spring. We anxiouslyawait the revival. So, how was this longawaited, much ballyhooed meal? We’llget there soon enough.

Kitchen A Bistro can best be describedas both the pinnacle of mediocrity and acomplete contradiction. The contradic-tion chiefly lies in its self-description asa casual dining experience while offer-ing its diner none of those charms. Avisit to their website boasts, [the restau-rant] will continue to serve the samedaily changing menu at the same fairprices. [the restaurant] will also contin-ue to offer the BYO policy and casualatmosphere [they] hope you have grownto love. [They] welcome you to come join[them] in [their] new Kitchen.

Okay, this sounds good . . . casual din-ing, an adventurous menu, and fair prices.This may, however, be the very first casu-al dining experience, to employ a reser-vationist. Does such a position actuallyexist . . . apparently it does, and just try toget her on the phone as the reservationistis only available during select hours. Forthose of you at home keeping score, scorethe Kitchen one snob star on our newlydevised restaurant snob scale. Havingsecured a much sought after Friday, 8:00p.m. reservation, we arrived at 7:58 p.m.Upon arrival, I quickly (and deftly, mightI add) recognized the hostess as the ownerof the vehicle whose tires I had justslashed in the parking lot. Of course, thatmust be the reason for her endearinglycharming smile. We were promptly berat-ed by this oh so friendly staff memberthat our table was not as yet ready,because we were so early, a statementmade with such unbearable affect, oneoverhearing the comment would certainlyassume we had arrived more than a weekahead of schedule. Second star earned,and that one is easy. While coincidentally,the entire staff was dressed casually (someof them, perhaps a bit too casually . . . Tip#1: dirty white t-shirt, jeans, and sneakersdo not equal casual), very little else about

the staff suggested the warmfriendly atmosphere identified ontheir website. While we waitednearly twenty five minutes forour table to be made ready, wewere treated to some pre-appetiz-er appetizers described by a staffmember in terms requiring thequite extensive services of anexperienced U.N. interpreter.Allow the non-restaurant snob to

translate: a small sampling of overly spicysquash-like soup served in a shot glass(how incredibly darling), bland ricottacheese rolled in an equally bland outershell (and messy, don’t forget messy sincewe were provided neither napkins, plates,nor any type of utensils whatsoever toenjoy these treats), and what amounted toa chewy, salty slab of oyster delicately,err, ah, situated on an overly stale cracker.

After finally being shown to our tableand somewhat ravenous at this point, wewere presented with an admittedly adven-turous menu. Where are those U.N. inter-preters when you really need them? Ourwaiter seemed almost bothered whenposed questions. Do you know what quer-cia coppa is? How about crisp tete decochon? That, my friends deserves anoth-er snob star! Don’t worry, we didn’t knoweither. While we understood that weneeded to BYOB, perhaps one of thecourteous, friendly staff members couldassist in the un-corking and pouring ofour wine? Not a chance. Perhaps we wereignored because of our selection of, dare Isay, domestic wines? Fortunately we weresincerely treated to a glorious petite syrahdiscreetly smuggled by our friends from arecent trip to Napa Valley. We followedthat with a Long Island Cabernet Franc.Oh what the staff must have thought . . .actually daring to bring to the Kitchen notonly domestic wines, but one actuallyfrom Long Island. We were, however,treated to a basket of slightly stale breadsans butter, olive oil, or even plates forthat matter. As mentioned earlier, sincewe were at this point quite ravenous, wequickly made short work of the scant pro-visions. Although a staff member quicklyreplaced the basket with a refill afterrepeated requests, as soon as our replace-ment basket arrived at our table, said bas-ket was quickly whisked away only to bebrought to an adjoining table. Eventually,however, another basket of bread arrivedand we quickly realized just how stalethat first basket of bread actually was. Tip#2: Stale does not equal crispy.

Having reviewed the menu (which issupposed to change daily but a visit totheir website confirmed what we learnedupon arrival; how extremely fortuitous itwas for the Kitchen to be serving essen-tially the same menu it had served nearlythree weeks before. In fact, as this articlegoes to press, their website continues toidentify their daily changing menu asthree weeks old), my wife finally settledfor field salad a roast beets with goatcheese that amounted to little more than atremendous mound of lettuce with per-haps a teaspoon of finely diced (canned?)beets and an equal measure of goat cheese

fabulously dressed with, how you say,vinegar. I fared not much better with thewild boar ragu with papardella whichconsisted of the tiniest heap of pastatopped with two pieces of finely dicedwild boar. Yum . . . hey, I learned thiskind of sarcasm from our truly delightfulhostess. While our friends enjoyed thebutternut squash ravioli appetizer (andmy wife enjoyed this as her main course),the portions were incredibly small. Scoreanother half snob star here.

Entrees brought me sauté duck breastwith autumn squash caponata. Yes, it wasa big hunk’a duck breast, but its exquisitechewiness was only interrupted by inter-mittent fat and gristle, who wouldn’t cryfowl? I soon learned caponata is a Frenchculinary term used to describe vegetablessliced by one first learning to use a chef’sknife. To be fair our friends enjoyed theirentrees consisting of cod, clams, andmussels in chorizo gravy (again, with anincredibly small portion) and braised beefshort ribs with mashed potatoes. I foundthe braised short ribs to be portionedrather small, as well, but my friend, whoeats much like a bird, brought her left-overs home in un sac de chien.

The dessert menu was equally formida-ble. The desserts, however, were not.Much of the desserts were lay wasted onour plates when the check arrived shortlyafter the desserts arrived . . . VERYSHORTLY. Tip #3: Casual does notequal only cash as an accepted method ofpayment, especially when dinner for four,inclusive of gratuity for service (or acomplete lack thereof) totaled $240.00.Add that final half snob star. While to thecasual observer, this price may seemmodest, need I remind you we broughtour own wine? Had we not done so, thebill could’ve easily exceeded $400, yeseven with, dare I again say, domesticwines.

I am the first to admit our opinion ofthe Kitchen was not completely andequally shared by our friends, however,they have not as yet read this review. Ithink they’d be hard pressed to denymuch of what is detailed above, especial-ly when we arrive at our final tally. TheKitchen may not be Michelin rated, but itreceived three snob stars, nonetheless.More than anything else, I believe manysuggesting this restaurant to us soemphatically may have confused trendywith good. We were not so inclined.There are a lot of really great restaurantson Long Island, my experience theKitchen, however, has me believing thisis just not one of them.

Note: Dennis R. Chase is the currentSecretary of the Suffolk County BarAssociation, a frequent contributor of TheSuffolk Lawyer, and a partner with TheChaseSensale Law Group, L.L.P. Thefirm, with offices in Suffolk, Nassau, andQueens Counties, concentrates theirpractice in Workers’ Compensation,Social Security Disability, Long TermDisability, Short Term Disability,Disability Retirement, and AccidentalDeath and Dismemberment Benefits.

Mirabelle . . . we miss you!Kitchen A Bistro reopens in February

RESTAURANT REVIEW

Dennis R. Chase

birthday party; not your weekend inTijuana. Kindly remind friends thatyou’re a big boy or girl now, and if yourget fired because they posted commentson your wall that you wouldn’t even sayat confession, it will be their couch youwill be sleeping on while you are unem-ployed.

As for employers, we know times aretough, and you are trying to select the bestemployees, but we all have our vices.Some people have alcohol, while others

knit sweaters for their cats. Instead ofjudging us based on what we do outsideof work, judge us based on what we do (ordon’t do) while we are at work.

Note: Andrew Van Singel is a secondyear student at Touro Law School, amember of TouroLaw Review, and trea-surer for the New York DemocraticLawyers Council, Touro Chapter. He canbe reached at [email protected].

Future Lawyers Forum (Continued on page 11)


browser-based software to prepare a bank-ruptcy petition based on information theconsumer provided. The product's websiteexplained that the software would choosewhich bankruptcy exemptions to apply forand remove any need for the petitioner toindividually select which schedule to usefor the various pieces of informationinvolved.

The court reasoned that providing per-sonalized guidance in selecting specificexemptions or schedules constituted theunauthorized practice of law. Thus, theowner of the website, by providing soft-ware that held itself out as offering legaladvice, projected an aura of expertise,and provided specific advice tailored toeach customer’s situation. This led thecourt to conclude that the defendant had,

in fact, engaged in the unauthorized prac-tice of law.

This case is significant because it estab-lished that the mere act of providing soft-ware may qualify an individual as a BPP.This means that such software providersare subject to the strictures of theBankruptcy Code and must obey the strictlimitations on permissible BPP conduct.Thus, any conduct beyond mere typeset-ting can result in liability for the unautho-rized practice of law. The fact that suchconduct occurs by way of a software appli-cation, instead of traditional interpersonalinteraction, is not a defense.

One jurisdiction is warning the publicabout BPP’s. The problem with bankruptcyparalegals rendering bad and incompetentlegal advice became especially acute in the

Southern District of California, one of thebusiest in the nation. There, the U.S.Trustee, who has since become a judge,took the extraordinary step of warning con-sumers about the perils of discount adviceby issuing a report about the dangers ofusing bankruptcy petition preparers.

Bankruptcy is an involved practice andshould not be done by non-attorneys.Although courts have expressed sympathywith indigent debtors who may have diffi-culty paying legal fees, numerous judicialopinions clearly state that this is no justifi-cation to turn a blind eye to the unautho-rized practice of law by bankruptcy peti-tion preparers, especially as they oftentend to cause far more harm than good.

An experienced bankruptcy attorney hasyears of legal training; is bound by profes-

sional ethics requirements; is licensed bythe state; and is familiar with local rulesand procedure. That is no comparison to astreet-corner paralegal who thinks thatwhatever a lawyer can do, he can do.When that happens, there will ultimatelybe unfortunate consequences and theirclients will pay the price.

Note: Craig D. Robins, Esq., a regularcolumnist, is a Long Island bankruptcylawyer who has represented thousands ofconsumer and business clients during thepast 20 years. He has offices in Medford,Commack, Woodbury and Valley Stream.(516) 496-0800. He can be reached [email protected]. Pleasevisit his Bankruptcy Website: BankruptcyCanHelp.com.

is in large part because many lawyersnow recognize the opportunities availableto them in this arena and the fact thatADR is here to stay.

Here is Suffolk County we are off to alate start. It is not, however, from a lackof trying. Recently, a group of matrimo-nial litigators, at the request of JusticeLeis and the Administrative Judge of theMatrimonial Part, Hon. Marion T.McNulty, engaged in a mediation trainingprogram through the Office of CourtAdministration design to kick-off a pilotprogram of mediation in the MatrimonialParts of the Supreme Court. Theselawyers agreed to donate a few hours ofmediation services to the courts followingthe training. This program has yet to getoff the ground in any serious way but theeffort has begun.

In Riverhead, it appears that the experi-

ment taking place with “mini-trials” is offto a good start and greeted favorably bymany lawyers anxious to move their cases.This is but one form of ADR tailored tomeet the needs of disputants looking foralternatives to litigation. Make no mistakeabout it. Many cases are more suited to lit-igation. But the world is changing and as itbecomes more complex we, as lawyersmust embrace different opportunities forwork or, simply put, we will be left behindand work for which we are better suitedwill be left to non-lawyers.

In fact, the failure to embrace theinevitability of ADR is denying lawyersnumerous opportunities to expand in anew direction in these difficult economictimes and we are missing the chance toalleviate the huge backlog in our courts.As importantly, the explosion of ADR inthe resolution of corporate disputes will

open an entirely new area of practice forour members. As increasing litigationimposes more and more cost on privatecitizens, government and businesses,lawyers, if they are smart, will embraceADR and be in the forefront of a changingworld. If not, they will be left out of a verylucrative new industry. That would be ashame as lawyers are best suited by train-ing to provide effective ADR services,including mediation, non-binding arbitra-tion, early neutral evaluation and the like.

I believe that, inevitably, as ADR takeshold there will be a move to credentialingADR professionals in a more meaningfulway. Now, anyone can hold himself orherself out as a mediator, for example, andthe public is not necessarily aware of theirexpertise. Lawyers have the opportunityto flourish in this new world of ADRbecause they understand the need to be an

expert in their area of endeavor and under-stand the substantive law in a way inwhich a non-lawyer does not. After earn-ing the proper credentials a lawyer will benaturally suited to move to the head of theline in this arena and our profession willhave expanded in its endeavors, adaptingto and embracing a new opportunity.

Some have said that litigation will bethe alternative dispute resolution of thefuture. I am not smart enough to know.What I do know is that, as a BarAssociation, we have a duty to our mem-bership to expand opportunities forlawyers. In a dramatically changingworld our Association must be open toembracing every opportunity that offerswork to our members. And lawyers willhave longer careers if they adapt theirskills to the services demanded by thepublic in a more complex world.

questioned why there are not more womenmembers of the Suffolk County BarAssociation and why not more women inleadership positions. What we found ofequal, if not even greater concern is theabsence of African-Americans, Hispanicsand Asians from Association events and inAssociation leadership.

With respect to women, the answer tothese questions perhaps could be in part thatwomen are in the process of rising to lead-ership positions and eventually will fillthese roles in greater numbers. But some ofus have found that what some women attor-neys have said is similar to what those attor-neys who are from ethnic minorities havesaid and that is that sometimes they do notfeel welcome! There are various ethnic andspecialty bars that emphasize interests oftheir particular memberships and it is easyto say that people are more comfortablewith those who are similar to them or havesimilar interests. With respect to lawyerswho are of ethnic minorities, one could alsoargue that it may also be a function of geog-raphy; that they do not exist in large num-bers in suburbia. Those are too easyanswers. Whatever the numbers are, a con-certed effort must be made to make ourAssociation more representative of our pro-fession and of our society in general.

Do you ever wonder what it feels like tobe the only woman in a room with ninegrumpy old men judging your leadership

qualities? Do you ever wonder what itfeels like to have a complexion differentfrom that in a roomful of your colleagues?Do you ever wonder what it feels like tobe the only person in a crowded room whospeaks with a noticeable accent?(Obviously, some of you do know whatthese things feel like). Do you ever won-der what it must feel like to be a Hispanicor African-American defendant in a crim-inal case and see that you are the only per-son of color in the courtroom? To para-phrase that Native-American proverb, youneed to “walk a mile in my shoes.” It ismore of an issue than some members of“the old boys club” think it to be. To trulyunderstand what another person feels youhave to have those same experiences inthat situation. It should not be a case of awhite establishment versus a defendant ofcolor. It should be a case of “the People,”all of “the People,” versus this person whois accused of a crime. Color or ethnicityshould be removed from the equation. It isimportant that those who are parties in thejudicial process, and yes including crimi-nal defendants, believe that they are beingtreated or judged fairly. One of the mostsignificant ways to accomplish that is topromote diversity.

Many organizations engage in “sensitiv-ity training” which is viewed by some dis-missively as being “warm and fuzzy” orpolitically correct with little true value.

Most of us do not consider ourselves to bebiased, whether we’re talking about race,gender, politics, religion, or our favoritesports team for that matter. But we are allshaped by our experiences and upbringing.Many preconceptions are not malicious butthey are often subtle or unconscious.

I’m not here to advocate for any warmand fuzzy or politically correct sensitivityprograms. What I am saying is that there isa situation in our society, in our profession,and in our Association that we should all beaware of that needs to be addressed.

It takes a special effort to make someonewho is seemingly different feel welcomeinto a perceived inner circle. It is all themore difficult when one runs the risk ofappearing patronizing. We all should makethat special effort, not to patronize butrather to reach out and truly welcome thosewho on the surface may seem a little dif-ferent. By doing so we may find out thatwe are all not as different as we might atfirst seem to be.

As for the nine grumpy old men, theynominated three women to fill the threeexisting vacancies on the Board ofDirectors. They also nominated an African-American and a woman to fill the twovacancies on the Nominating Committee.Additionally, most if not all of the nomineeswere significantly younger than the mem-bers of the Nominating Committee. Thesepeople were not selected because of gender,

race or ethnicity but rather because they willbe playing a major role in the future leader-ship of this Association while being excel-lent representatives of our membership andprofession. At this time and place they werethe deemed to be the best choices of manyqualified candidates. I hope and expect thatthis will be a trend where we continue to seegreater diversity in our membership and inour leadership, especially if we put ourminds and hearts to it.

Oh by the way, we also nominated grayhaired but well qualified Bill Ferris to theExecutive Committee. After all, you can’thave everything.

We nine grumpy old men have heard theclarion call of our President Jim Winkler,without the help of hearing aids, and hopethat in some small way we have assistedJim’s aspiration of greater diversity in ourprofession and in our Association. We con-gratulate and thank Jim for his leadership,particularly on this all important issue. As forour service on this year’s NominatingCommittee, we also might say in a momentof self indulgence, (which can be a character-istic of advancing age), not too bad for abunch of grumpy old men…not too bad at all.

Note: John L. Buonora is the ChiefAssistant District Attorney for SuffolkCounty, the past president director of theSCBA and an adjunct professor at TouroLaw School.

Internet Bankruptcy: Illegal Practice of Law? (Continued on page 1)

The Future Ain’t What It Used To Be (Continued on page 1)

The Saga of Nine Grumpy Old Men (Continued on page 3)


SUFFOLK ACADEMY OF LAW5 6 0 W H E E L E R R O A D , H A U P P A U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8

The Suffolk Academy of Law, the educational arm of theSuffolk County Bar Association, provides a comprehensivecurriculum of continuing legal education courses. For themost part, CLE courses listed here will be presented fromlate March through mid-April; a few take place later on inthe year. For information on other courses to be offeredduring Spring 2009, watch for publicity fliers and see theAcademy’s Spring Catalog and Academy calendar on theSCBA website.

ACCREDITATION FOR MCLE:The Suffolk Academy of Law has been certified by the NewYork State Continuing Legal Education Board as an accred-ited provider of continuing legal education in the State ofNew York. Thus, Academy courses are presumptivelyapproved as meeting the OCA's MCLE requirements.

NOTES:Program Locations: Most, but not all, programs are held atthe SCBA Center; be sure to check listings for locations

and times.

Tuition & Registration: Tuition prices listed in the registrationform are for discounted pre-registration. At-door registrationsentail higher fees. You may pre-register for classes byreturning the registration coupon with your payment.Refunds: Refund requests must be received 48 hours inadvance.

Non SCBA Member Attorneys: Tuition prices are discounted forSCBA members. If you attend a course at non-memberrates and join the Suffolk County Bar Association within 30days, you may apply the tuition differential you paid to yourSCBA membership dues.

Americans with Disabilities Act: If you plan to attend a pro-gram and need assistance related to a disability providedfor under the ADA,, please let us know.

Disclaimer: Speakers and topics are subject to change with-out notice. The Suffolk Academy of Law is not liable forerrors or omissions in this publicity information.

Tax-Deductible Support for CLE: Tuition does not fully supportthe Academy's educational program. As a 501©)(3) orga-nization, the Academy can accept your tax deductibledonation. Please take a moment, when registering, to add acontribution to your tuition payment.

Financial Aid: For information on needs-based scholarships,payment plans, or volunteer service in lieu of tuition, pleasecall the Academy at 631-233-5588.

INQUIRIES: 631-234-5588.

EARLY SPRING CLE

UPDATESMATRIMONIAL LAW UPDATE

Monday, April 6, 2009The program those in the field wait for, the 2009 update willhighlight all the important developments in decisional and statu-tory law. It’s not to be missed.Faculty: Stephen Gassman, Esq. Time: 6:00–9:00 p.m. (Registration from 5:30p.m.) Location: SCBA Center Refreshments: Light supperMCLE: 3 Hours (professional practice)[Non-Transitional and Transitional]Coming Soon (Dates TBA):AUTO LIABILITY (Jonathan Dachs & Professor Michael Hutter)EVIDENCE (Professor Richard Farrell)

SEMINARS & MULTI-PART

PROGRAMSAfternoon Practice Management Series

GUIDED BOOK DISCUSSION BASEDON COVEY’S 7 HABITS OF HIGHLY

EFFECTIVE PEOPLEBuilt around Stephen Covey’s 1990 publication, this guidedbook discussion aims to help lawyers achieve meaning andeffectiveness in their professional and personal lives. You mayopt in at any point.Topics & Dates (Wednesdays)Habit 6 - Synergize..............................................March 25, 2009Habit 7 - Sharpen the saw .....................................April 22, 2009Conclusion & Recap ...............................................May 13, 2009Discussion Leaders: Sheryl L. Randazzo (Randazzo & Randazzo // SCBA First Vice President); Gail Blasie (Academy Officer)Each SessionMCLE: 1 ½ Hours (practice management)[Transitional/Non-Transitional]Location: SCBA Center Time: 4:00–5:15 p.m. // Registration:3:30 p.m. Refreshments: Afternoon Snacks

MASTERING THE PJITuesday, March 24, 2009

Any lawyer whose practice involves jury trials – from dog bitesto complex litigation – will not want to miss this information-packed seminar on the subtleties of the Pattern JuryInstructions. You will gain insight into when to use the instruc-tions verbatim and when to modify them. Instruction will coverrequests to charge, verdict sheets, inconsistent verdicts, etc.,etc. Faculty: Hon. Emily Pines (PJI Committee); Hon. ThomasWhelan; Hon. James Flanagan; Daniel Tambasco, Esq.;Others TBACoordinator: Hon. James FlanaganMCLE: 3 Hours (Skills OR Professional Practice )[Transitional/Non-Transitional]Time: 6–9 p.m. // Registration from 5:30 p.m. Location: SCBA Center Refreshments: Light supper

Lunch ‘n LearnEXIT RIGHTS & RESPONSIBILITIES OF

EMPLOYEES UPON TERMINATIONWednesday, March 25, 2009

This timely program, featuring four experienced employment lawattorneys, covers a variety of severance issues, includingwages, health benefits, vacations, bonuses, non-compete andnon-solicitation; return of employee property, and arbitrationagreements.Faculty: Lawrence Monat, Esq.; Scott Michael Mishkin, Esq.;W. Matthew Groh, Esq.; Howard Gilbert, Esq.MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch

Presented with the SCBA Animal Law CommitteeANIMAL LAW IV: Representing Clients

with Disabilities, Seniors, and TheirService/Therapy Animals

Thursday, March 26, 2009This fourth annual Animal Law seminar focuses on the impor-tance of service and companion animals to individuals in manysituations and the legal battles that such individuals must some-times wage with resistant home owner associations, condoboards, or schools. The experienced faculty will review the dif-ferences between the Americans with Disabilities Act and theFair Housing Act; the role of Senior Companionship PetPrograms; and relevant state and local laws that may be utilizedto protect people’s rights to maintain their service, therapy, orcompanion animals. Faculty: Martin J. Coleman, Esq. (Woodbury); Karen Copeland, Esq. (NYC); Roxane Tena-Nelson, JD, MPH(Executive V.P.–Continuing Care Coalition); Marsha Flowers,LMSW (Director of Professional Relations, SeniorBridge)Moderator: Amy. L. Chaitoff, Esq. (Chair–SCBA Animal LawCommittee)Academy Liaison: Eileen Coen Cacioppo (Academy AdvisoryCommittee)MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional]Time: 6:00–9:00 p.m. (Registration from 5:30)Location: SCBA Center Refreshments: Vegan and Vegetarian Supper

Presented with the Suffolk County Psychological Association

THE TREATING PSYCHOLOGISTTESTIFYING IN COURT

Friday, March 27, 2009This seminar looks at the information a treating psychologistprovides attorneys and the court, with an emphasis on a courtcase involving issues of visitation and custody. The program willinclude a mock trial and will address such questions as how toneutralize pressures on treating psychologists and other profes-sionals in high conflict cases; what information a treating psy-chologist should and should not provide to the court; and howattorneys can counter biased information.Faculty: Neil S. Grossman, Ph.D.; Gary Tabat, Esq. with Hon. John C. Bivona; Robert Cohen, Esq.; Janis Noto,Esq.; Wendy B. Doret, Ph.D.MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional]Time: 1:30–4:30 p.m. (Registration from 1:15 p.m.)Location: SCBA Center Refreshments: Coffee and light refreshments

Presented with the Brehon Society of Suffolk County

UNDERSTANDING THE PEACEPROCESS IN NORTHERN IRELAND:

LESSONS IN CONFLICT RESOLUTIONWednesday, April 1, 2009

The prestigious faculty gathered for this program will examinethe history of the conflict in Northern Ireland and the ultimateGood Friday Agreement with an eye toward extrapolatinglessons for any attorney engaged in the resolution of a dispute.

Topics & SpeakersA Brief History of the Conflict and Lessons for the Lawyer as Peacemaker................Brian P. O’Keefe, Esq..President–Brehon Society of Suffolk County; Grey & Grey, LLPConflict Resolution and the Good Friday Agreement....................................................................................Dean John D. Feerick

Fordham University School of LawExecutive Director of the Feerick Center

for Social Justice and Dispute ResolutionThree of the Most Difficult Issues in the Peace Process:Decommissioning of Arms; Policing; and Power Sharing (from a Judicial Perspective) ..................Hon. Michael F. Mullen

Ret. Justice, NYS Supreme Court (Suffolk)Counsel, Lamb & Barnosky, LLP; Founding Member–BrehonSociety of Suffolk CountyMCLE: 3 Hours (Professional Practice)[Non-Transitional and Transitional]Time: 6:00–9:00 p.m. (Registration from 5:30)Location: SCBA Center Refreshments: Irish Supper (Courtesy of Daniel Shaughnessy, Bank of New York Mellon)

Presented with the Education Law Committees of the SCBA and NCBA

ETHICS ISSUES IN REPRESENTINGMUNICIPALITIES

Tuesday, April 14, 2009This lunch ‘n learn program will utilize examples of real issuesand cases to provide practical advice regarding the applicationof ethics rules to the representation of school districts and othermunicipalities. As any attorney who has provided legal adviceor advocacy for a municipality knows, ethics questions (confi-dentiality, boundaries of representation, defining who is theclient, etc., etc.) can elude easy answers. Gain the insights youneed at this important program. Faculty: Robert H. Cohen, Esq. (Lamb & Barnosky, LLP);Richard J. Guercio, Esq. (Guercio & Guercio)MCLE: 2 Hours (Ethics) [Non-Transitional and Transitional]Time: 12:30–2:10 p.m. (Registration from Noon)Location: SCBA Center Refreshments: Lunch

THE NEW ETHICS RULESThursday, April 16, 2009

Effective April 1, a new set of “Attorney Rules of ProfessionalConduct” will take effect. The Disciplinary Rules, as New Yorkattorneys know them, are gone. The new rules have a newnumbering system and are formatted in a style that resemblesthe ABA Model Rules. Important substantive changes are alsoembodied in the new rules, including some that touch on keyaspects of client communications and confidentiality as well ason issues related to conflicts. A prestigious faculty has beenassembled to provide a detailed tour through the rules, high-lighting major changes and sounding alerts on practical matterspractitioners cannot afford to ignore. Introductory Remarks: Hon. A. Gail Prudenti (PresidingJustice, Appellate Division, Second Department)Faculty: Robert P. Guido, Esq. (Special Counsel for GrievanceMatters, NYS Appellate Division-Second Department)Sarah D. McShea, Esq. (Law Offices of Sarah Diane

O F T H E S U F F O L K C O U N T Y B A R A S S O C I A T I O N

N.B. - As per NYS CLE Board regulation, you must attend a CLE pro-gram or a specific section of a longer program in its entirety toreceive credit.

McShea–NYC // Member of NYSB’s Committee on Standardsof Attorney Conduct)Marion C. Rice, Esq. (L’Abbate Balkan Colavita and Contini,LLP)Rita E. Adler, Esq. (Chief Counsel for the 10th JD GrievanceCommittee)Moderator: Harvey B. Besunder, Esq. (Past SCBA President// Member–Office of the Committee on Character and Fitness)Program Coordinator: Patricia M. Meisenheimer, Esq.(Bracken & Margolin, LLP // Academy Dean)MCLE: 3 Hours (Ethics) [Non-Transitional and Transitional]Time: 6:00–9:00 p.m. (Registration from 5:30)Location: SCBA Center Refreshments: Light supper

INTRODUCTION TO ELDER LAWMonday, April 20, and Monday, April 27, 2009

This two-part program, presented by an experienced faculty, isdirected toward attorneys with minimal experience in the field ofelder law. Attendees will increase their comfort level in handlingthe various aspects of advocacy for older clients facing issuesrelated to health, capacity, benefits and finances.

Topics & SpeakersPART ONE (April 20)Ethics & the Elder Law Consultation ...............................Sheryl L. Randazzo, Esq.

(Randazzo & Randazzo, LLP // SCBA First Vice President)Guardianships & Capacity ......................Ralph Randazzo, Esq.

(Randazzo & Randazzo, LLP)

Medicare ................................................George Tilschner, Esq.(Huntington // SCBA Director; Academy Officer)

Medicaid Planning, General (Basic Rules/Making Someone Eligible) .Ronald S. Lanza, Esq.

(Futterman & Lanza, LLP)

PART TWO (April 27)Advocacy for Home Care Services .......Jeannette Grabie, Esq.

(Grabie & Grabie, LLP)Nursing Home Placement and Medicaid Applications .......................................Kim Smith, Esq.

(Burner, Smith & Associates, LLP)Trusts in Elder Law...........................Richard A. Weinblatt, Esq.

(Haley, Weinblatt & Calcagni, LLP // SCBA Director)Implementation of the Elder Law Plan & Ethics.............................................Robert Howard, Esq.

(Hampton Bays // Academy Officer)Each NightMCLE: 3 Hours (2 ½ Professional Practice; ½ Ethics)[Non-Transitional and Transitional]Time: 6:00–9:00 p.m. (Registration from 5:30)Location: SCBA Center Refreshments: Light supper

BUYING & SELLING A BUSINESSWednesday, April 22, 2009

A bargain has been struck; now what needs to be done? Thissuccinct program, featuring two highly experienced presenters,will cover key aspects of buying and selling a business:Documents Needed to Facilitatethe Transaction .......................................Thomas Killeen, Esq.

(Farrell Fritz, PC)Valuation and Tax Issues...........................Arnold Haskell, CPAMCLE: 3 Hours (Ethics) [Non-Transitional and Transitional]Time: 6:00–9:00 p.m. (Registration from 5:30)Location: SCBA Center Refreshments: Light supper(Holtz Rubenstein Reminick LLP)

FORECLOSURE SETTLEMENT CON-FERENCES IN SUFFOLK COUNTY

Thursday, April 23, 2009Under recently passed laws, court intervention is mandated inmany (sub-prime, high-cost, etc.) potential foreclosures.Homeowners may participate in a settlement conference andattempt to work out a modification or other deal that allowsthem to keep their homes. Too often, however, such homeown-ers do not have attorneys to advise and negotiate for them. Thisseminar seeks to train attorneys to represent homeowners insettlement conferences on a pro bono basis. Representationwill not extend beyond the conference itself. The program is pre-sented tuition-free for all; those who volunteer to representdefendants at settlement conferences will receive four MCLEcredits.Faculty: Hon. Jeffrey Spinner (Foreclosure Part–Suffolk);Eric Sackstein, Esq.; Others TBAPlanning Committee: Cheryl Mintz (Coordinator); Barry M.Smolowitz; Alan Todd Costell; Eric SacksteinMCLE: 4 Hours (3 Skills; 1 Professional Practice)[Non-Transitional and Transitional]Time: 5:00–9:00 p.m. (Registration from 4:30)Location: SCBA Center Refreshments: Light supper


SUFFOLK ACADEMY OF LAWO F T H E S U F F O L K C O U N T Y B A R A S S O C I A T I O N

5 6 0 W H E E L E R R O A D , H A U P P A U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8

medical malpractice

In Elaina Lucia v. John Kelly, MichaelEgnor, M.D., New York Spine and BrainSurgery, P.C., Susan Guralnick, M.D.,Latha Chandran, M.D., Jignesh Dalal,M.D., Stony Brook Children’s Service,P.C., Max April M.D., Wesley Carrion,M.D. and Alan Baldbridge, M.D., IndexNo. 21649/04, decided on November 25,2008, the court denied defendant’smotion for summary judgment dismiss-ing all the claims asserted against him.In denying the motion, the court notedthat defendant’s affidavit in support ofthe motion was wholly conclusory andhad failed to meet the initial burden ofshowing an absence of medical malprac-tice. Moreover, the court noted thatdefendant’s affidavit failed to addressthe specific allegations of malpractice

set forth in the plaintiff’s verified bill ofparticulars.

Honorable William B. Rebolini

Cross motion for dismissal granted;plaintiff barred by doctrines of res judicataand collateral estoppel

In Rools Deslouches v. MarquiseDesloluches, Index No. 7748/06, decidedon May 5, 2008, the court granted defen-dant’s cross motion for dismissal. The courtnoted that the plaintiff and defendant weredivorced in 1995 in Queens County andstipulated to joint custody of their children,a stipulation which was incorporated by ref-erence into the judgment of divorce. Thecourt found that plaintiff was barred by thedoctrines of res judicata and collateralestoppel from asserting claims in this actionas his claims herein were predicated on the

asserted fact that one of the children wasnot his child.

Honorable Sandra L. Sgroi

Defendant’s motion dismissing the com-plaint granted; individual not bound if con-tract signed in representative capacity

In Long Island Ducks, LLC v. JohnPuccio and Jerry Brandly, d/b/aCambridge/Brighton Budget Planning andJohn Puccio and Jerry Brandly, d/b/aCypress Advertising & Promotions, IndexNo. 33844/07, decided on February 6,2008, the court granted defendant, JohnPuccio’s motion for an order dismissing thecomplaint against him only. In granting themotion, the court noted that an attorney’saffirmation having no knowledge of facts iswithout probative value and cannot defeatthis motion to dismiss based upon docu-mentary evidence. The court noted that anindividual who signs a corporate contractand indicates the name of the corporationand the nature of his representation on thecontract is generally not subject to personalliability. The court further reasoned that themoving defendant, the person who theplaintiff sought to hold liable, had not evensigned the contracts and the contracts didnot indicate that any other person signed theagreement as his agent.

Honorable Thomas F. Whelan

Plaintiff’s motion for summary denied,defendant’s motion for summary judgmentgranted; amount of dispute in excess of$50,000.00, not within the ambit of FeeDispute Resolution Program

In Ricahrd Bartel v. William Moreno,Index No. 11825/08, decided on December23, 2008, the court denied plaintiff’smotion for summary judgment in this actionto recover legal fees purportedly due andowing from the defendant and granteddefendant’s motion for summary judgmentdismissing the complaint. The court notedthat separate rules governing arbitration ofcounsel fees under the Dispute ResolutionProgram, which existed require attorneys tonotify their clients of their right to have dis-puted fees decided by arbitration. In addi-tion these rules impose certain pleadingrequirements in plenary actions to recoverlegal fees. An attorney who fails to complywith the rules may be precluded for recov-ering a fee under any legal theory. In deny-ing plaintiff’s motion for summary judg-ment, the court noted that fatal to plaintiff’sdemands for recovery of counsel fees at

issue in this action under any of the threepleaded claims contained in his complaintwas the fact that the complaint failed toinclude allegations that the dispute involveda fee in excess of $50,000.00 and was thusnot within the ambit of the Fee DisputeResolution Program.

Motion granted dismissing cause ofaction for specific performance; failure toplead plaintiff’s readiness, willingness andability to perform the contract

In Zachary A. Tunick v. TheodoreAlbrecht and David Litter, Index No.3889/08, decided on February 4, 2009, thecourt granted defendant’s motion whereinthey sought dismissal of the plaintiff’s com-plaint pursuant to CPLR 3211(a).Defendants argued that the plaintiff’s firstcause of action for specific performancewas legally insufficient due to the absenceof allegations regarding the plaintiff’sreadiness, willingness and ability to per-form the contract and/or that he fulfilled allof his obligations under the contract. Thecourt noted that here, the plaintiff failed toplead his readiness and ability to performthe contract, a requirement which was unaf-fected by any purported improper cancella-tion of the contract. Moreover, the courtreasoned that the remedy of specific perfor-mance was not available against a defen-dant who had parted with legal title. Thecourt pointed out that the defendants werenot entitled to dismissal of plaintiff’s sec-ond and third causes of action as theysounded in breach of contract and did notrequire plaintiff to plead their readiness,willingness and ability to perform the sub-ject contract.

Please send future decisions to appear in“Decisions of Interest” column to ElaineColavito at [email protected] is no guarantee that decisionsreceived will be published. Submissions arelimited to decisions from Suffolk Countytrial courts. To be considered for inclusionin the May 2009 issue, decisions must bereceived by April 1, 2009. Submissions willbe accepted on a continual basis. All deci-sions sent to previously listed mailingaddress will still considered for inclusion infuture “Decisions of Interest” column.

Note: Elaine Colavito graduated fromTouro Law Center December 2007 in thetop 6 percent of her class. She is an asso-ciate at Heidell, Pittoni, Murphy, & Bach,LLP, in Garden City, New York, concen-trating in litigation defense. She can becontacted at (516)408-1600.

ABA Midyear Meeting


2009, New York’s Code of ProfessionalResponsibility (with its all too familiar“Canons,” “Disciplinary Rules,” and“Ethical Considerations”) will be replacedby the Rules of Professional Conduct,which are based on the Model Rules pro-mulgated by the ABA. However, NewYork’s Rules of Professional Conduct willnot, at least at the outset, contain theamendment approved by the ABA inBoston. Rule 1.10(a) of the New YorkRules will adhere to the rule of imputeddisqualification.

Among other actions taken by theHouse of Delegates was the approval of aresolution sponsored by the New YorkState Bar Association calling on thePresident of the United States to ensurethat Guantanamo detainees who arecharged with crimes be prosecuted infederal district courts unless the AttorneyGeneral certifies that a detainee cannotbe appropriately prosecuted in that man-ner, in which case the detainee shall beprosecuted in a regularly constitutedcourt consistent with due process, thelaws of war, the Geneva Conventions andthe Uniform Code of Military Justice.The resolution also called for release orresettlement of detainees no longer con-sidered enemy combatants, and urgedthat currently detained enemy combat-ants be granted prompt habeas corpushearings with full due process.

The House also approved a series ofcomprehensive resolutions proposed by

the ABA’s Tort Trial and InsurancePractice Section addressing the problemscreated by natural catastrophes such asHurricane Katrina. These resolutionscalled for increased availability of insur-ance protection for storm damage, pro-grams to increase the availability of afford-able insurance and the enactment of feder-al standards for building codes to reducedamage from future storms.

The meeting of the House also featuredremarks by Margaret H. Marshall, theChief Justice of the Supreme JudicialCourt of Massachusetts and President ofthe Conference of Chief Justices. ChiefJustice Marshall reported that our statecourts, which handle 95 percent of the liti-gation in the United States, are in crisis dueto inadequate funding, an inability to pro-vide access to justice and the politicizationof our state judiciaries.

In addition, David Dellinger delivered astirring presentation on “Lincoln asAmerica’s Greatest Lawyer”.

The House also heard from ABAPresident H. Thomas Wells, Jr. ofAlabama and President Elect NomineeStephen N. Zack of Florida, who is slatedto become the ABA’s first HispanicAmerican President.

Note: Scott Karson is a partner at Lamb& Barnosky, LLP in Melville. He concen-trates his practice in municipal, commer-cial, land title and appellate litigation. Heis a former president of the SCBA.

Bench Briefs (Continued on page 4)


dogs and a bear involved in a hunt culmi-nating in the bear’s death and petty humansquabbling over the bear’s remains.

Yet another perspective can be drawnfrom the 1963 Oklahoma Court ofCriminal Appeals case, Lock v.Falkenstine, 380 P.2d 278. The case isfound in the opening chapter of AnimalLaw: Cases and Materials (ThirdEdition) by Sonia S. Weisman, PamelaD. Frasch and Bruce A. Wagman, cur-rently in use in many Animal Law class-es. The Lock case involves gamecockfighting and recites the followingaccount attributed to Lincoln:

This highly controversial subject hasbeen discussed pro and con for centuries.

It is reported that Abraham Lincoln saidto a group of citizens, who wished to wipeout gamecock fighting by Federal Law:“As long as the Almighty permitted intel-ligent men, created in his image and like-ness, to fight in public and kill each otherwhile the world looks on approvingly, it’snot for me to deprive the chickens of thesame privilege.”

Lincoln’s life and words and Animal Law

There are doubtless many more thingsto discover or re-discover about Lincolnand animals. For now, in closing thisvery preliminary foray into the subject,

two wonderful lines from more expan-sive writings from Lincoln himselfoffer a glimpse of wisdom to advanceAnimal Law:

I shall try to correct errors when shownto be errors; and I shall adopt new views asfast as they shall appear to be true views …

I do the very best I know how – the verybest I can; and I mean to keep doing sountil the end.

American Bar Association President H.Thomas Wells’ February 2009 ABAJournal column, “A Lawyer at Heart”,similarly outlined several applicablelessons from Lincoln’s life as practicinglawyer:

“The leading rule for the lawyer … is

diligence … Leave nothing for tomorrowwhich can be done today. Never let yourcorrespondence fall behind.”

“Discourage litigation. Persuade yourneighbors to compromise whenever youcan. Point out to them how the nominalwinner is often a real loser: in fees,expenses and waste of time. As a peace-maker, the lawyer has a superior opportu-nity of being a good man. There will stillbe business enough.”

Note: James F. Gesualdi is a solo prac-titioner in Islip. His practice is concentrat-ed on animal welfare law. He can be con-tacted at (631) 224-4801 or by email [email protected].

Animal Law (Continued on page 13)


banning private medical insurance. Itslong-term effect, although it has not beenprecipitous since the court handed downits decision more then three and a halfyears ago, may ultimately upend similarlaws in other provinces.

This case grew out of an unassumingman from the province of Quebec namedGeorge Zeliotis who in 1997 was told thathe would have to wait a year for a replace-ment for his painful, arthritic hip. Naturallyhe was not pleased when he was placed ona waiting list. His anger grew when helearned that it was against the law to payfor a replacement privately. However,instead of heading south of the border to ahospital in New York, Chicago, or Boston,as many Canadians finding themselves insimilar circumstances would do, he optedinstead to file a lawsuit with JacquesChaoulli, a Montreal doctor. The two menencountered two consecutive defeats in

provincial courts prior to winning inCanada’s high court. In joining the majori-ty four to three holding in favor of Mr.Zeliotis and Dr. Chaoulli, Chief JusticeBeverly McLachlin wrote in her opinion,"Access to a waiting list is not access tohealth care." When Mr. Zeliotis was askedby the Toronto Star whether he was wor-ried about being known as the man whohelped bring down Canada's universalhealth-care system, he responded "No way.I'm the guy saving it."

Canadian Supreme Court ruling did notper se declare the Canadian nationalhealth-care system unconstitutional.However, it’s worth noting that three of theseven judges wanted to do just that. All thatwould have been needed to essentiallydecapitate the Canadian healthcare systemwas one more justice voting the other way.This may yet be in the cards down the lineshould a similar case make its way up to

the Canadian high court. Nonetheless theruling does in effect state: Deliver bettercare or permit the development of a privatesystem. This is underscored by the follow-ing language in the majority opinion, "Theprohibition on obtaining private healthinsurance might be constitutional in cir-cumstances where health-care services arereasonable as to both quality and timeli-ness," but it "is not constitutional where thepublic system fails to deliver reasonableservices." To further underscore the poten-tial for a fundamental shift with regard tothe health care issue, it merits pointing outthat the Justices who sit on Canada'sSupreme Court cannot be considered inany way as being the philosophical kindredof Justice Antonin Scalia, Roberts, Thomasor Allito. One need only remember that in2004 the exact same court that last yearheld by a unanimous vote that gay mar-riage was constitutional in Canada.

Does the Canadian Supreme Court deci-sion provide any guidance or morsel ofwisdom from which we can draw upon?Time will tell, but in an era when asJustice Bryer alluded in one of his speech-es (paraphrasing), namely that the U.S.Supreme Court could and should consultforeign sources of law and/or rulings ifand when a specific situation lend itself toit, perhaps the 2005 Canadian ruling canserve as an object lesson. More specifical-ly reminding us that certain paths are bestavoided from the outset rather than havingto deal with them through legal correctivemeasures at a later date.

Note: Justin Giordano is a Professor ofBusiness & Law at the State University ofNew York—Empire State College and anattorney based in Huntington. He wel-comes commentary and [email protected]

participate in treatment be productive?While participating in psychotherapyunder duress is not ideal there are situa-tions in which this occurs, e.g., people whoas a condition of probation are ordered toparticipate in anger management or a bat-ters program for perpetrators of domesticviolence, etc. Approaches have beendeveloped to conduct treatment withclients who are involved with treatmentunder duress. One way to manage treat-ment with these patients is for the therapistto express empathy with the client’s angeror annoyance about feeling forced orcoerced into treatment. The therapist thenuses this expression of empathy to form atherapeutic alliance and based on thisalliance proceeds with the therapy.Another example is when a parent is court-ordered to participate in a program to learnparenting skills. While the parent underduress may be less likely to benefit fromthe program at least there is the possibilitythat some skills will “sink in” during the

program while the probability of changewithout some intervention is lower.

The presence or absence of confiden-tiality in psychotherapy will affect treat-ment and in turn affect all the profession-als involved with the case - psychologist,court, and attorneys. It affects theamount, quality and type of informationthe court has at its disposal about an indi-vidual or members of a family so the bestpossible decisions can be made. A psy-chologist may not be willing to treat aclient if the professional may becomeinvolved in litigation; or in an attempt tomanage risk, the psychologist may usedifferent interventions when a client iscourt ordered into treatment. If a childtherapist becomes pulled onto one side ofa conflict, then the treatment may bias achild’s report to the law guardian orforensic evaluator (by reinforcing a dis-torted view of reality). An attorney whothinks his or her client will look bad intherapy may be relieved to have the treat-

ment confidential or object to treatmentthat is not confidential.

Distorted information that is revealed intherapy and gets into the litigation processmay harm the resolution of a case. (Manytherapists are naive about the dynamics incourt involved treatment cases.) This isbecause distorted information that is takenas correct may skew an attorney’s case orthe judge’s decision. An extreme exampleof biased information getting into the liti-gation is when a therapist believes falseallegations of sexual abuse and incorrectlytestifies to the validity of these allegations.

From a psychologist’s prospective,when treatment is court ordered, it wouldbe useful to receive direction from thecourt in terms of the following items: thereferral question; how statements, find-ings, and data from the treatment will beused in the court of law; who is to partici-pate in treatment; how long treatment is tolast; to whom the clinician is to reportattendance and progress; the elements of

the treatment not to be held in confidenceand any other limits of confidentiality;how fees are to be paid; and who is to becontacted should either party fail to honorthe court order or therapeutic agreements.

(References for this article can be foundat www.DivorceRecoveryRx.com)

Note: Dr. Grossman is a clinical andforensic psychologist who is chair of theFamily Forensic Psychology Task Force,Division of Family Psychology of APAand the Psychology and Law Committeeof Suffolk County PsychologicalAssociation. Dr. Grossman co-edited aspecial issue of the Journal of FamilyPsychology on Family Psychology andFamily Law and has authored many arti-cles on Family Forensic Psychology. Dr.Grossman has extensive experience con-ducting child custody evaluations and hespecializes in working with families dur-ing and post-divorce.

between the reader and the owner of thesite. The author can write about whatever isinteresting to him or her in a more personalstyle. All comments and discussions areusually made instantly accessible to thepublic. Comments and discussions arearchived with the entries they comeunder. A blog is a chance “to put yourselfout there.” Remember, the main goal of ablog is to create inbound links to your web-site – so be sure it’s personally and profes-sionally reflects who you are. A blog is costeffective. If you are computer savvy, youcan set one up yourself - it’s free. If youwish to have a customer blog to comple-ment your website, call a professional.

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Note: Cindy J. LeClaire has been workingin the legal arena for over 10 plus years. Shestarted working with Thomson West, andthen for Findlaw for the past 7 years sellingwebsites to attorneys. Last February Ms.LeClaire began Web Perseverance Inc, a

marketing and web development company.The company develops marketing strategiesfor attorneys and businesses across LongIsland and New York.

Note: Natalie Silva is the Vice President ofMarketing and Program Management atCapital Payments. She has more than 16years of financial services industry experi-ence.

American Perspectives/Opinion (Continued on page 19)

Confidentiality in Court Ordered Treatment: Pros and Cons (Continued on page 5)

Moving Away from “Business as Usual” (Continued on page 6)

sides over Suffolk’s new Foreclosure Part,Mr. Sackstein, and others with consider-able experience in the fields of real estateand foreclosure law.

The New Ethics Rules seminar providesthree MCLE credits (transitional or non-transitional); tuition is $85 for SCBAmembers, $100 for non-members. TheForeclosure Settlement Conference pro-gram is offered at no tuition cost, withfour CLE credits awarded to those whosign up to represent a homeowner at a set-

tlement conference. To register for either program, please

see the CLE course listings pages in thispublication, go to the Academy Calendaron the SCBA website (www.scba.org), orcall the Academy at 631-234-5588. Alsoconsult these resources for informationon the many other outstanding seminarsthat constitute the Academy’s Spring2009 syllabus.

Note: The writer is the executive direc-tor of the Suffolk Academy of Law.

(Continued from page 28)

Two Programs You Must Attend This Spring (Continued from page 28)


by insuring that those who create them willbe compensated for what they have created.A common law copyright exists the instanta work is created and a more enforceablestatutory copyright can be obtained by reg-istering the work with the U.S. CopyrightOffice (www.copyright.gov). The copy-right protects the holder from any infring-ing use of the work. The AP claims that byusing the photograph without permissionMr. Fairey infringed on its copyright. Mr.Fairey disagrees.

Five days after the AP issued its state-ment, Mr. Fairey filed suit in the U.S.District Court, Southern District of NewYork, seeking a declaration “that Fairey’sObama Works do not infringe any copy-rights held by the AP” and that “Fairey’suse of the Garcia Photograph as a visual ref-erence in creating the Obama Works isprivileged under, and protected by, the FairUse Doctrine.”

The fair use doctrine began as a commonlaw exception to the copyright law and waslater codified, 17 U.S.C. § 107. It is the fairuse exception which allows this paper toprint copies of the photograph and posteralongside this article. The exceptionrequires the court to consider a four partbalancing test. The factors are: 1) the pur-pose and character of the use (what wasdone with the original work and why); 2)

the nature of the original work (creative orfactual); 3) the amount taken and substan-tiality of what was taken (even a smallamount is infringement if it is the essence ofthe work); and 4) the effect on the marketfor the original work. In his complaint Mr.Fairey alleges that each of the factors sup-port his claim of fair use.

Mr. Fairey claims that the purpose andcharacter of his use should be consideredfair use because he did not “create any ofthe Obama Works for the sake of commer-cial gain” and because he transformed thephotograph into something new by provid-ing “new meaning, new expression, andnew messages.” While Mr. Fairey admits toselling at least $180,000 in posters he rea-sons that he wasn’t making a profit becausehe reinvested the monies to manufactureanother 300,000 posters which he allegedlygave away for free in his effort to supportthe Obama campaign. It is not at all clearthat the court will disregard the profits MR.Fairey made just because he reinvestedthem.

Mr. Fairey claims that when he createdthe posters he transformed the photograph“to capture the optimism and inspirationcreated by Obama’s candidacy.” This argu-ment may be Mr. Fairey’s best bet. There isanother case pending in the SouthernDistrict between the heirs of John Lennon

and Ben Stein over Stein’s unlicensed useof Lennon’s song “Imagine” in Stein’s film“EXPELLED: No Intelligence Allowed”which promotes the theory of intelligentdesign. The Lennon heirs sought an injunc-tion barring Stein from distributing the film.In denying the injunction the court held thatthe film transformed the song because it“paired the music and lyrics with imagesthat contrast with the song’s utopianexpression, and placed the excerpt in thecontext of a debate regarding the role ofreligion in public life.” Whether Mr.Fairey’s posters, which consist of silkscreen versions of the photograph togetherwith the addition of the words hope andprogress, constitute transformative use is aquestion of fact but the Imagine decisioncertainly leaves the door open for such aruling.

Mr. Fairey claims that the nature of theoriginal work, the photograph, is factual.He reasons that the photograph had beenpublished two years before he saw it andthat he used it only as a “visual reference.”There is little merit to this argument.Factual works include things such as datesand telephone numbers. The photograph isalmost certainly a creative work and not afactual work.

The amount of the photograph taken by

Mr. Fairey is deeply in dispute and difficultto determine. Mr. Fairey claims that he“used only a portion of the GarciaPhotograph and the portion he used wasreasonable in light of Mr. 0Fairey’s expres-sive purpose.” The AP will no doubt cite thestriking similarities between the photographand the posters.

Mr. Fairey’s posters certainly did not hurtthe market for the photograph. The photo-graph was two years old and had gained nopopularity when he used it. Mr. Faireyclaims that he has “enhanced the value ofthe Garcia Photograph beyond measure.”

The nature of the fair use test makes itdifficult if not impossible to predict a resultin this case. There are issues of fact withrespect to each of the four factors and theweight assigned to each factor is dependenton those factual findings. Those like Mr.Fairey who seek to rely on the fair useexception do so at their peril, and face thepossibility of expensive and uncertain liti-gation.

Note: Glenn P. Warmuth has been work-ing at Stim & Warmuth, P.C. for over 20years and teaches a number of courses atDowling College including Entertainment& Media Law. He can be contacted [email protected].

final round of the ABA Regional ClientCounseling Competition on Feb.8 that was held at the Touro Law Center inCentral Islip.

On January 30, Richard Zuckerman,of Lamb & Barnosky, LLP, was a pan-elist in the program "Public Sector LayoffsUnder New York's Civil Service Law andEducation Law" at the NYS BarAssociation's Annual Meeting of the Laborand Employment Law Section that washeld at the New Yorker in Manhattan.

Virginia Medici Wylly, of Lamb &Barnosky, LLP, recently wrote an arti-cle "Proposal For a Change in The WaySBA Handles Guaranty Purchases" thatappeared in the Coleman Report.

Mark E. Spund, partner and head of theEmployment and Labor Law practice areaat Davidoff Malito & Hutcher LLP, hasbeen named to "Who's Who in IntellectualProperty and Labor Law" by Long IslandBusiness News.

Michael G. Zapson, Managing Attorneyof Davidoff Malito & Hutcher's GardenCity office has been appointed to serve onthe Democratic Judiciary Committee byNassau County Democratic Leader JayJacobs.

Davidoff Malito & Hutcher LLP partnersDavid W. Denenberg and ArthurGoldstein and counsel Michael Dinkespresented "CFO Law School 102 --Intellectual Property, Environmental, TaxLaw and Government Relations" on Feb. 10to the Long Island Chapter of FinancialExecutives International.

Steven P. Block, a partner at RuskinMoscou Faltischek, P.C. has been appoint-ed co- chair of the firm’s Trusts & EstatesDepartment.

Condolences….To Christine Grobe whose father Henry

passed away on February 3.

To SCBA member Gary N. Weintrauband his family on the sudden and tragicpassing of his son, David H. Weintraub.

Condolences to SCBA member JoanneSchlenk McAvey on the sudden passing ofher husband, Brian on February 20.

Expressions of sympathy to the family ofretired Family Court Judge ArthurAbrams who passed away on February 23.For many years Judge Abrams devotedhimself to public service and he leavesbehind many friends and colleagues whoare saddened by his passing.

To the family of SCBA member AlbertV. Caputi who passed away on Feb. 7. Hewas a life long member of the bar associa-tion in New York and retired to WestVirginia in 2006.

To former President Gene O’Brien, hiswife Nancy, and their family on the passingof Gene’s brother, John P. O’Brien.

New Members…The Suffolk County Bar Association

extends a warm welcome to its newestmembers: Shari Braverman, Adam L.Browser, Joseph V. Cozzo, Robert J.Del Col, Brian J. DeSesa, Tim Domanick,Joseph J. Ferrante, Theda Fisher,Richard Guttman, Annette Hader,James J. Herz, Laura J. Interdonati,Alonzo G. Jacobs, Florence Kerner,Nicola Kingham, David Kosakoff, JamesD. Leonard, Eliot S. Levine, Larry R.Martinez, Michelle R. Messina,Christopher L. Miller, James A.Prestiano, Paul H. Rethier, JillSchneider, Selma Shelton and VangelesSkartsiaris.

The SCBA also welcomes its neweststudent member and wish them successin their progress towards a career in theLaw: Theda Fisher, Bernad JamesKito, III and Michael P. Schmitt.

ment (one for each spouse). Ask lots ofquestions about the couple’s finances.Garnering this information is essential tobreaking the barriers down and getting hon-est answers about the finances, which willlead (hopefully) to getting that proposedagreement prepared.

Another way to approach it is to ask whatthe monthly needs of the wife are, and askthe husband whether his intention is to ful-fill them with proper support (CSSA with orwithout spousal maintenance). If the answerto that is affirmative, the problem might beeasily solved. If he insists on the CSSAbeing based on $35,000.00 (after F.I.C.A.and Medicare deductions, and multiplyingthe product by 25 percent for two children,the child support payable would be$8,080.63 per year, or $673.38 per month –hardly enough for the monthly food budgetfor three people), it might be time to advisethe wife to obtain an attorney, and return tomediation only after the support offered (orcourt ordered), is in accordance with the preseparation/divorce lifestyle.

A common disease in matrimonial disso-lution is RAIDS (recently acquired incomedeficiency syndrome). Many a spouse sud-denly has a radical reduction in incomewhen the wife asks for a divorce or legalseparation. Should this disease affect thecouple before you, tread lightly, gain theirconfidence, and advise them about the signthat the Honorable Donald Blydenburg

used to have posted outside his door. Itsaid, in essence, that any litigant who is dis-covered to be secreting and underreportinghis or her income will be reported to theInternal Revenue Service by his Honor.That should be enough of an incentive toencourage such a couple to seek a qualifiedand knowledgeable mediator.

With this economy sinking fast, there areenough things to worry about withoutadding an I.R.S. audit to the list.

Allowing an agreement to be preparedbased on the trust of the wife without hav-ing the terms reflecting the actual needs ofthe children is a mistake. Please do not letthis happen to you. Rejecting a couple isnot what helps you build your mediationbusiness. However, drafting agreementsbased on some fantasy, or basing child sup-port on filed tax returns, knowing theincome is probably triple that reported is amistake far greater than losing this particu-lar couple’s business.

Happy mediating everyone, and be care-ful, it’s a jungle out there.

Note: Alan Finkel, Esq. was admitted tothe New York State Bar in 1985, and con-centrated his practice primarily on matri-monial and family law for the first 10 yearsof his career, and now spends a large por-tion of his time mediating couples throughtheir marital dissolution. His office is locat-ed in Commack.

Sidney Siben’s Among Us (Continued on page 7)

ADR (Continued on page 16)

the grievance process did not violate thePLRA exhaustion requirement.

The Second Circuit then, for the firsttime, analyzed New York’s IGP regula-tions in view of Jones to determine whethera New York prisoner must name particularofficials in a grievance in order to latername them as defendants in a Section 1983action. After its review, the Second Circuitfound that the IGP does not specify an iden-

tification requirement. As such, Espinalhad complied with the PLRA since NewYork state prisoners are “not required toname responsible parties in a grievance inorder to exhaust administrative remedies.”Espinal, 2009 WL 224496*6.

Note: Eugene D. Berman is Of Counsel toDePinto, Nornes & Associates, LLP inMelville.

Second Circuit Briefs (Continued on page 10)

Entertainment And Media Law (Continued on page 6)


the cart with more than the donkey couldhaul."

Capote then shifts his gaze from theridiculous to the sublime, as he looks overthe beautiful night-time city of Kyoto.

"Below the windows, the hotel garden,with its ultra-simple and soigné arrange-ments of rock and tree, floated in the miststhat crawl off Kyoto's waterways--for it is awatery city, crisscrossed with shallowrivers and cascading canals, dotted withpools as still as coiled snakes and mirthfullittle waterfalls that sound like Japanesegirls giggling...Kyoto is surrounded bywater, too; beyond the city's containinghills, thin roads run like causeways acrossthe reflecting silver of flooded rice fields.That evening, despite the gliding mists, theblue encircling hills were discernibleagainst the night, for the upper air had puri-ty, a sky was there, stars were in it, and ascrap of moon. Some portions of thetown could be seen. Nearest was a neigh-borhood of curving roofs, the dark facadesof aristocratic houses fashioned from silkywood yet austere, northern, as secret-look-ing as any stone Siena palace. How bril-liant they made the street lamps appear, andthe doorway lanterns casting keen kimonocolors--pink and orange, lemon and red.Farther away was a modern flatness--wideavenues and neon, a skyscraper of raw con-crete that seemed less enduring, more per-ishable, than the papery dwellings stooping

around it."All 25 of the writers whose work is sam-

pled in Life Stories could be quoted atlength, but then I'd be ruining the delightthat will be yours when you read the book.Capote's essay is representative of, notsuperior to, those of his colleagues. All thewriters in Stories are masters of their sub-jects. No one can better evoke the outdoorsthan John McPhee as, in leisurely, lyricalfashion, he recounts his "Travels inGeorgia." No one can more neatly fusecharacter with locale than Calvin Trillin ashe covers the premier cop-coverer, theMiami Herald's Edna Buchanan. And noone can surpass Henry Louis Gates, Jr. inhis "White Like Me," a perceptive exami-nation of Anatole Broyard, whose passingbrought psychic pain to himself and hisfamily, and likely caused a stunting of artis-tic growth

Life Stories is wonderful. Editor Ross'concept of matching the right person to theright subject still flourishes these 84 yearslater. As Timestyle would admonish: Don'tto the book store walk. Run!

Note: William E. McSweeney is a mem-ber of the SCBA, lives in Sayville, and prac-tices Criminal Law and Family Law. Hiswritten work has appeared in theQuinnipiac Law Review, The ABA Journal,The New York Law Journal, and The NewYork Times.

Book Review (Continued on page 17)

action. But, absent such an independentduty, where the plaintiff is essentiallylooking to enforce the bargain, the remedyis in contract, not in tort. Sommer v.Federal Signal Corp., 79 N.Y.2d 540, at551-552, 583 N.Y.S.2d 957 (1992).

New York County Supreme CourtJustice Fried’s 2008 decision in GothamBoxing v. Finkel, 2008 W.L. 104155 (N.Y.Sup. 2008) provides great guidance on theissue. In Gotham Boxing, the court ruledthat a fraud claim can stand, and is notduplicative of a breach of contract action,when the fraud claim is premised upon anadditional representation, omission orconduct extraneous to the contract. JusticeFried noted insightful observations:

The critical factual distinction betweenGraubard, in which the Court of Appealsupheld a fraud claim that was related to acontract claim, and Coppola, in which theFirst Department dismissed a fraud claim asduplicative, seems to be that in Graubard,the fraud claim was based on a particularoral assurance offered by the defendant, inaddition to the promises recorded in thewritten agreement, and the fraudulent intent“was not asserted in conclusory fashion butwas evidenced by defendant's conductshortly after entering into the agreement.”Coppola, 288 A.D.2d at 42. In contrast, inCoppola, the plaintiff did not refer to anyparticular representation or conduct by thedefendant other than that reflected in theterms of the agreement. …

So the rule, as I understand it, is that acause of action for fraud will not arise ifthe alleged fraud restates the facts of the

breach of contract claim; a fraud claimmust be based on some additional repre-sentation, omission, or conduct, other thanthe contract itself, which was fraudulentwhen performed. To be sure, the distinc-tion is a fine one. It seems to turn onwhether the complaint alleges a particularstatement, omission, or other conduct bythe defendant, in addition to the text orstatements that form the basis of thealleged contract. As Graubard shows, itdoes not seem to matter that the allegedfraudulent representation is virtually iden-tical to the promise contained in the con-tract as long as it is made at a differenttime and place [emphasis added].

The lesson for plaintiffs while drafting aComplaint, or for defendants analyzing aCPLR 3211(a)(7) motion to dismiss a pur-portedly duplicative cause of action, isthis: God is in the details. The detail aplaintiff provides (or fails to provide)regarding representations extraneous to acontract will serve as the keystone to pur-sue a fraud cause of action simultaneouslywith a breach of contract cause of action(or absent sufficient detail, found thedefendant’s motion to dismiss). Draftingthe factual background portion of theComplaint is not the time to be circum-spect; rather, detailing all aspects of thefraud, and how the same was perpetratedupon a plaintiff by a defendant, is impera-tive to found a viable fraud cause of action.

Note: Leo K. Barnes Jr. is a member ofBarnes & Barnes, P.C. and can bereached at [email protected].

Commercial Litigation (Continued on page 8)

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________________________

By Dorothy Paine Ceparano

“Must attend” is a common descriptionin event marketing. Despite the banality ofsuch an oft-used phrase, however, someprograms really do have particular timeli-ness or relevance.

Among the Academy’s information-packed spring offerings, all of which havevalue for attorneys seeking to expand orreinforce their knowledge in given prac-tice areas, two programs stand out as true“must-attends” for almost everyone. Thefirst is a review of the New Legal EthicsRules, which go into effect on April 1.The second covers the new ForeclosureSettlement Conferences in SuffolkCounty.

Scheduled for the evening of Thursday,April 16, the seminar on the NewAttorney Rules of Professional Conductwill dissect alterations in the format and

structure of New York’s ethical guidelinesfor lawyers and delve into selected sub-stantive changes. As described in the NewYork State Court System press releaseannouncing the change, the new set ofattorney conduct rules will “replace theexisting Disciplinary Rules, introduce anumber of important ethics changes forNew York lawyers and are set forth in anew format and numbering system that arebased on the ABA Model Rules.”

Some of the changes in substance, itshould be stressed, touch on importantaspects of client communications and con-fidentiality, as well as on issues related toconflicts.

But form is also important. As the newRules of Professional Conduct are in a for-mat that is unfamiliar to New Yorklawyers and were released without com-mentary, lawyers must take it upon them-selves to learn how the rules are organized,

what they contain, and where to find need-ed instructional information within them.

The Academy’s seminar aims to assistlawyers with both a substantive and func-tional understanding of the rules. Theesteemed faculty organized for thisprocess includes Robert P. Guido, SpecialCounsel for Grievance Matters, State ofNew York Appellate Division (who, notinsignificantly, had a hand in writing thenew rules); Sarah D. McShea, who servedon the State Bar’s Committee onStandards of Attorney Conduct(“COSAC”), which issued most of the rec-ommendations that were incorporated intothe new rules; Marion C. Rice (L’AbbateBalkan Colavita and Contini. LLP), whosewell-known expertise on conflicts will beof particular value to attorneys seeking todecipher relevant changes in the new rules;and Rita E. Adler, who, in her capacity asChief Counsel for the 10th JD GrievanceCommittee, will provide an overview ofthe disciplinary process in light of the newrules. Hon. A. Gail Prudenti, PresidingJustice of the Second Department, willoffer introductory remarks, and PastSCBA President Harvey B. Besunder willserve as moderator. Academy DeanPatricia Meisenheimer is the programcoordinator.

This illustrious group will take attendeesthrough the new rules, from 1.0 to 8.5,shedding light on key changes and impor-tant implications for everyday practice.

As former Chief Judge Judith S. Kayeprepared to leave office last December,she announced the imminent arrival of thenew rules as an “important day for NewYork’s legal profession.” She went on todescribe the rules as “accessible andunderstandable, consistent generally withnational standards, and relevant to emerg-ing practice areas and trends that are trans-forming how lawyers represent and com-municate with clients.” A seminar aboutthese changes, most would agree, is,indeed, a “must-attend.”

Foreclosure Settlement Conferencesin Suffolk County, the second programstrongly recommended to all practitioners,is set for the evening of Thursday, April 23.It, too, responds to recent and significantchanges. Pre-foreclosure settlement confer-ences have been mandated under CPLR§3408 and are available to homeownerswho want them. A recent New York LawJournal article provides background:

“The law [Chapter 472 of the Laws of2008, passed by the NYS legislature lastAugust] covers foreclosures on one-to-four family residences since Jan. 1, 2003.It requires a lender to file a specializedrequest for judicial intervention when ini-tiating a foreclosure summons and com-plaint. Courts then notify property owners

of their right to a resolution conference....”Despite the mandated court intervention,

however, many homeowners do not showup at the conferences and most of those whodo appear do not have counsel to representor negotiate for them. Hence, the Academyprogram’s main intention is to train attor-neys who will represent homeowners inthese conferences on a pro-bono basis.

Peripherally, however, the seminar alsowill provide significant information thatvirtually any attorney needs in these trou-bled economic times. Attorneys who neverbefore handled such matters report thattheir assistance is being sought by existingand potential clients facing the possibilityof foreclosure. Trying to help or evenrefer such homeowners in this new andmalleable world of mortgage meltdownscan be difficult and challenging. While theAcademy program is focused on the settle-ment conference itself – and will provideimportant guidelines and checklists toassist attorneys who represent defendantsin this setting – background informationon predatory loans, distressed propertyconsulting contracts, relevant general busi-ness law provisions, restrictions on mort-gage brokers, contract disputes, and muchmore also will be covered. Even lawyerswho never handle a foreclosure matter willenhance their knowledge of residential realproperty matters, in particular reading anddeciphering a closing statement – informa-tion that will come in handy in the eventu-al recovery of the real estate market.

To prepare attorneys to handle settle-ment conferences, instruction will coverpossible defenses in a foreclosure action,including federal law defenses and coun-terclaims, New York defenses, and truth-in-lending defenses. Participants will betaught how to evaluate loan documents,how to check the relevant math, how toidentify what is and what is not a financecharge, how to spot a civil rights violation,how to recognize a breach of fiduciaryduty, and how to discern, within a sea ofdocuments, other potential items on whichto build a defense.

Whatever the defense or ultimate set-tlement goal, seeking the best for thehomeowner in a settlement conferencerequires strong bargaining skills. Hence,negotiating advice, tips, and strategieswill also be imparted during the course ofthe program.

The information-packed curriculum forthe program has been developed by a com-mittee that includes Past SCBA PresidentBarry M. Smolowitz, Past Academy DeanAlan Todd Costell, Academy DeanPatricia Meisenheimer, Academy OfficerCheryl Mintz, and experienced real estateattorney Eric Sackstein. Instructors willinclude Hon. Jeffrey Spinner, who pre-

ACADEMY OF LAW NEWS

ACADEMY

Calendarof Meetings & Seminars

Note: Programs, meetings, and events at the Suffolk County Bar Center (560 Wheeler Road,Hauppauge) unless otherwise indicated. Dates, times, and topics may be changed because ofconditions beyond our control CLE programs involve tuition fees; see the CLE Centerfoldfor course descriptions and registration details. For information, call 631-234-5588.

March23 Monday Matrimonial Mondays: Trying the Grounds. 6:00–9:00 p.m.

Sign-in and light supper from 5:30 p.m.

24 Tuesday The PJI. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.25 Wednesday Lunch ‘n Learn: Exit Rights & Responsibilities of Employees

Upon Termination. 12:30–2:10 p.m. Sign-in and lunch from noon.25 Wednesday Guided Book Discussion: Covey’s 7 Habits of Highly Effective

People. Session 4 (Habit 6 –Synergy.) 4:00–5:15 p.m. Sign in and snack from 3:30 p.m.

26 Thursday Animal Law IV. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

27 Friday The Treating Psychologist Testifying in Court. 1:30-4:30 p.m. Sign-in from 1:15 p.m.

31 Tuesday Starting a Law Practice. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

April1 Wednesday The Peace Process in Northern Ireland: Lessons in Conflict

Resolution (presented by the Brehon Society). 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

6 Monday Annual Matrimonial Law Update (Stephen Gassman). 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

14 Tuesday Lunch ‘n Learn: Ethics Issues in Representing Municipalities (presented by SCBA & NCBA Education Law Committees). 12:30–2:10 p.m. Lunch from noon.

16 Thursday The New Ethics Rules. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

20 Monday Introduction to Elder Law– Part One. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m. Part Two on Monday, April 27.

22 Wednesday Luncheon Lecture: “Degradation & Perversion of the Rule of Law in Nazi Germany,” featuring Distinguished Professor Harry Reicher. 12:30–2:10 p.m. Sign-in and lunch from noon.

22 Wednesday Guided Book Discussion: Covey’s 7 Habits of Highly Effective People. Session 5 (Habit 7 –Sharpen the saw.) 4:00–5:15 p.m. Sign in and snack from 3:30 p.m.

22 Wednesday Buying & Selling a Business. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

23 Thursday Foreclosure Settlement Conferences. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

28 Tuesday Matrimonial Mediation (presented by the SCBA ADR Committee).6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

30 Thursday East End: Historic Estate Tax Savings Opportunities. Southampton–The Four Seasons. 4 p.m.

30 Thursday Landlord-Tenant Disputes. 6:00–9:00 p.m. Sign-in and light supper from 5:30 p.m.

Two Programs You Must Attend This Spring

CLE CourseListings on

pages 22-23


ACADEMY OF LAW OFFICERS

Robert K. HowardHon. John KellyCheryl F. MintzFelix WienclawGail BlasieMichael S. BradyD. Daniel Engstrand, Jr.

Richard V. RappaportWayne J. SchaeferRobert G. WilkNancy E. EllisDiane K. FarrellRichard L. Filiberto

Allison C. ShieldsJohn C. ZaherHerbert KellnerMarilyn Lord-JamesLynn Poster-ZimmermanGeorge R. TilschnerStephen Ukeiley

DEANPatricia M. Meisenheimer

Executive DirectorDorothy Paine Ceparano