O LAWYER - Pace University · 2019-07-15 · lunches will resume September 11, 2019 featuring Family Court Judge Nilda Morales Horowitz. The words of Judge Colleen McMahon, presented

THE WESTCHESTER COUNTY BAR ASSOCIATION’S MONTHLY MAGAZINE JULY 2019 | VOL. 6 | NO. 7

westchester

LAWYER WCBA

W

ESTCHESTER COUNTY

B A R A S S O C I AT I O N

20191896

Inside ...Facts Are Stubborn Things 6

Update 2019: Elder Law/Trusts & Estates 10

The Courthouse Barber Shop 12

Member Spotlight 16

What’s Going On: Membership News 18

CLE Center 20

From the Back Bench 22

... and more!

THE PRACTICE PAGEThe Hudson Valley Rent Riot Trials of 1766p. 15

Monday July 22, 2019 p. 3

GOLF OUTING DINNER&

Gender and

Salary Equity

in 2019p. 8

2 | JULY 2019 | WESTCHESTER LAWYER

Published by the Westchester County Bar Association 4 Westchester Park Drive, Suite 155White Plains, NY 10604Tel.: 914.761.3707 | Fax: 914.761.9402Email: [email protected] | www.wcbany.org

Officers and StaffHon. Linda S. Jamieson PRESIDENTWendy M. Weathers, Esq. PRESIDENT-ELECT James L. Hyer, Esq. VICE PRESIDENTDolores Gebhardt, Esq. VICE PRESIDENTDenise P. Ward, Esq. SECRETARY Robert C. Hertman, Esq. ASSISTANT SECRETARYAndrew P. Schriever, Esq. TREASURERJulie Cvek Curley, Esq. ASSISTANT TREASURERRichard M. Gardella, Esq. EDITOR-IN-CHIEFStephanie L. Burns, Esq. MANAGING EDITORIsabel Dichiara EXECUTIVE DIRECTORFern Richter DIRECTOR OF CLE, MEMBERSHIP & EVENTSBrittney Moore DIRECTOR OF GRIEVANCE, LRS AND ASSIGNED COUNSELMary Ellen McCourt DESIGN & COMMUNICATIONS COORDINATOR

Board of DirectorsKaren Beltran Michael H. FriedmanKyle-Beth HilferJames K. LandauNelida Lara Hon. Michael J. McDermottPaul M. Millman John Pappalardo Sherry Levin Wallach

LAWYERWESTCHESTER

THE WESTCHESTER COUNTY BAR ASSOCIATION’S MONTHLY MAGAZINE

Submission of material to the WCBA for inclusion in the Westchester LAWYER, Westchester Bar Journal, website or other WCBA publication, grants the WCBA limited copyright and full permission to reprint the material in any WCBA publication, on the WCBA website, or with LexisNexis or Westlaw at any t ime without addit ional consent. Please note that any opinions expressed in the articles contained herein are solely those of the author(s) and do not constitute positions taken by the WCBA.

IN THIS ISSUE…

SAVE THE DATE

3 July 22: Golf Outing & Dinner at the Whippoorwill Club, Armonk, NY

FEATURES

6 Facts Are Stubborn Things

By Hon. Colleen McMahon

8 Gender and Salary Equity in 2019 By Jill A. Backer, Esq.

10 Update 2019: Elder Law and Trusts and Estates By Anthony J. Enea, Esq.

12 The Court House Barber Shop By James L. Hyer, Esq.

FREE ONGOING EVENTS

19 Wednesdays 12:30 pm–Meditation for Lawyers ProgramNOTE: Lunch with the Judges with Hon. Linda S. Jamieson resumes in September

SECTION/COMMITTEE REPORTS

19 REPORT: Appellate Division Second Department Meeting with Associate Justices

By James K. Landau, Esq. and Jeanna M. Alberga, Esq.

DEPARTMENTS

1 From the President By Hon. Linda S. Jamieson

15 The Practice Page By Hon. Mark C. Dillon

16 Member Spotlight By Tejash V. Sanchala, Esq.

18 What’s Going On: Membership News

20 CLE Center

22 From the Back Bench By Richard M. Gardella, Esq.

24 Classifieds and Advertising Rates

Back Cover: Call for Submissions for the Westchester Bar Journal

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10 12

REPORT: Appellate Division Second Depart-ment Meeting with Associate Justices

By James K. Landau and Jeanna M. Alberga

19

WESTCHESTER LAWYER | JULY 2019 | 1

FROM THE PRESIDENT | By Honorable Linda S. Jamieson

The below normal temperatures and the rains of this past Spring have diminished and plans for the construction of an ark have been shelved, for now, and so we can begin to enjoy the high days of summer and all they offer.

June presents us every year with the very moving WCBA Memorial Service for deceased members held on June 20. We all enjoyed the 10th Annual Goin Cajun Barbeque & Blues Networking Event at the Bayou Restaurant in Mt. Vernon on June 18, presented by the Westchester County Bar Association’s Diversity Committee in conjunction with the Westchester Black Bar Association, the Westchester Women’s Bar Association and the American Hispanic Business and Professional Association of Westchester.

Many of us are also anxiously polishing our golf games as we look forward to our Golf Outing to be held on July 22 at the lovely Whippoorwill Club in Armonk. I look forward to seeing as many of you there as possible (I’m hoping that my ankle will behave). It is a beautiful and challenging course in a wonderful setting, providing us with a day to relax, renew friendships, make new friendships and gather around for the post golf tennis tales of greatness or woe!

Please know that we will not be having our “Lunch with the Judges” during the months of July and August, but our lunches will resume September 11, 2019 featuring Family Court Judge Nilda Morales Horowitz.

The words of Judge Colleen McMahon, presented to us so eloquently at our Banquet at Brae Burn Country Club on May 1st, still resonate for me as she reminded us of the role we attorneys have

now in times of significant legal struggles, when seemingly both sides of any political or even legal issue is often presented with wildly contrary and contradicting facts. It is up to our profession to meet the challenge of preserving the record, so to speak, of our personal and professional lives with the real facts, not altered or alternative facts.

Some facts in our past have been self-evident. 243 Julys ago, a significant number of attorneys gathered together with others to help deal with a set of facts that had become unacceptable to them. A significant number of those attorneys were quite young, and a significant number of them have remained somewhat anonymous. Samuel Chase of Somerset County, Maryland was 35; Thomas Heyward Jr. of St. Helena Parish, South Carolina was 30; William Hooper of Boston, Massachusetts was 34; Thomas Lynch, Jr. of Prince George’s Parish, South Carolina was 26; William Paca of Abington, Maryland was 35; John Penn of Carolina County, Virginia was 36; George Walton of Cumberland County, Virginia was 35, and James Wilson of Pennsylvania was 33.

That cadre of young attorneys felt the call of duty to our Country in perilous social and legal times and partnered with more senior individuals, many of whom were also attorneys, to advance the cause of freedom. These referenced young men were the less well-known signers of a certain document that found certain things “to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Our Association’s purposes are to

promote the ends of justice, to cultivate jurisprudence, to afford access to the Courts to all who seek redress, to facilitate the administration of justice, to elevate the standard of integrity, honor, confidence and courtesy in the legal profession, and to participate with all members of society in seeking and perfecting the common good —not quite as lyrical as the Declaration of Independence, but compelling words nonetheless.

The pressures on young attorneys today are great. Student debt, responsibility for producing billable hours, the pressures of raising a family, are all reasons why they may not want to be heavily involved in promoting the furtherance of our profession, as set forth in our Mission Statement, as committed members of our Association. Already many young and new attorneys have become leaders in our Association, and I call on anyone reading this article, especially those newer attorneys, to take the same risks that young attorneys did in 1776. Take the risk to further the causes of our profession and support our Association in an even more committed fashion as we move deeper into the 21st Century, when the need for the clear-eyed evaluation of facts under the Rule of Law becomes more self-evident.

Please enjoy your summer months and take the time to relax with friends and loved ones. Remember that I want to hear from you—ideas, needs, suggestions. I can always be reached at [email protected] and/or by mail or appointment at WCBA Headquarters, 4 Westchester Park Drive, Suite 155, White Plains, NY 10604.

From the President

Honorable Linda S. Jamieson

Summer Greetings!


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n Tee Sponsorship (in the tee box) $ 250n Green Sponsorship (at the hole) $ 250n Dinner (Reserved) n CocktailReception $1000n BBQ Lunch $ 650n BeverageStations $650n Closest to the Pin Contest & Prize $ 650n Longest Drive Contest & Prize $ 650n PuttingGreenContest&Prize $650n Hole in One Contest & Prize $ 650

n Raffle items:Golfbags,clubs,balls,restaurantgiftcertificates,golflessons,etc.Pleasecalltoletusknowwhatyouwishtodonate.Donated items are due on or before July 15th.

n Individual Golfer Fee ($395) Includes:Golf,PuttingContest,

BBQ Lunch (10:30 am–12:30 pm), Beverages on Course, CocktailReception(5:30pm), HorsD’Oeuvres,AwardsDinner, Greens Fees, Golf Carts, Ranger, LockerFacilities&Prizes

n Dinner Only $130 Members

$200 Non-members

Co-Sponsorships are welcome!

For information please contact: Fern Richter at 914-761-3707, ext. 20; or [email protected] see page 4 for Reservation & Payment Form

Monday, July 22, 2019

Sponsorships are available!Sponsor a tee, green or part of the event. Donate a raffle prize.

Thank you to our Event SponsorsDinner: Enea, Scanlan & Sirignano, LLP | The Charles J. Newman Company, LLCBBQ Lunch: Worby Vecchio Edelman LLP

Thank you to our Annual Sponsors: Platinum: Sterling National Bank Silver: BodnarMilone LLP | Cuddy Feder | Kurzman Eisenburg Corbin & Lever, LLP Bronze: McCarthy Fingar LLP

NOTE:ContributionsorgiftstoWCBAarenottaxdeductibleascharitablecontributions;however,theymaybetaxdeductibleasordinaryandnecessarybusinessexpenses.

Golf Outing Dinner Whippoorwill Club

Armonk, NY

Please join us at the Westchester County Bar Association’s Annual

&Begin your day with a luncheon buffet. Play 18 holes with friends and colleagues. End the day with an elegant sunset dinner and awards presentation.


Whippoorwill ClubArmonk, New York

Monday, July 22, 2019

Team up with Bar members, Judicial members, clients, friends and colleagues for an enjoyable day of golf, cocktails and dinner.

___ Golf & Dinner @ $395 each $ ________ Dinner @ $130 Member each $ ________ Dinner @ $200 Non-member each $ ________ Tee Sponsorship @ $250 each $ ________ Green Sponsorship @ $250 each $ ________ Dinner (Reserved)___CocktailReception $1000___ BBQ Lunch $ 650___BeverageStations $650___ Closest to the Pin Contest/Prize $ 650___ Longest Drive Contest/Prize $ 650___PuttingGreenContest/Prize $ 650___ Hole in One Contest/Prize $ 650TotalEnclosed $ _____

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REGISTER ONLINE by going to the Calendar on our website at www.wcbany.org, or fill out this form with payment information and: MAILformandcheckmadeoutto“WCBA”TO:WCBA,4WestchesterParkDrive,Suite155,WhitePlains,NY10604EMAIL thisformto:[email protected] OF PAYMENT: CHECK ENCLOSED $_________ OR CHARGE $ _______ o MASTERCARD o VISA o AMERICAN EXPRESS o DISCOVER CARD CARD NUMBER: _________________________________________________________ EXP. DATE: _____________ SEC. CODE: _________________________CREDIT CARD BILLING ADDRESS: ____________________________________________________________ ZIP CODE: ______________________________NAME ON THE CARD: ____________________________________________________________________________________________________________

For more information please contact: Fern Richter at 914-761-3707, Ext. 20; or [email protected]:ContributionsorgiftstoWCBAarenottaxdeductibleascharitablecontributions;however,theymaybetaxdeductibleasordinaryandnecessarybusinessexpenses.

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99 Court St., White Plains, NY 10601 / 914-946-8900 / www.cgmlaw.com

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SERVING THE INJURED SINCE 1907


I am not at all amused by what has come to be called The Post-Truth Society.

And since truth is the beating heart of the law, I have been thinking about how our profession might be impact-ed by a world in which there are things called “alternative facts”—as opposed to opinions or, worse, lies—and where everyone is free to decide for himself what is real and what is “fake news.”

Facts are stubborn things.Those words were uttered by my

favorite among the Founders, John Adams—a man who was way ahead of his time where women were concerned, and a public man of unimpeachable integrity, who was, according to his peers, utterly incapable of telling a lie to anyone, including himself.

Facts are stubborn things.I had forgotten the context in

which Adams said this, but one of my law clerks knew. He sent me a link to the speech given at his Stanford Law School graduation by Dean Elizabeth Magill. I give credit where credit is due, and Dean Magill can certainly take a good deal of the credit for these re-marks, because she seems to have been thinking about the very things that are troubling me. And she, too, found in-spiration in John Adams.

Adams, like all of us in this room,

was a lawyer. He said, “Facts are stub-born things,” during the closing argu-ment in what is undoubtedly his most famous case, the one for which he is most revered by the members of our profession. I refer, of course, to the so-called Boston Massacre case.

In his award-winning biography of Adams, historian David McCullough brought the evening of March 5, 1770, vividly to life. The streets of Boston were covered with snow. A British sentry standing outside the Customs House was being taunted by a band of men and boys. Suddenly, and for no apparent reason, a church bell rang out, and several hundred unruly citizens poured into the streets. The crowd pelted the sentry, and eight sol-diers who came to his aid, with sundry items—some of them, like snowballs, not particularly dangerous, but some of them, like chunks of ice and stones, potentially lethal. One of the soldiers was clubbed, and then clubbed again when he tried to rise after absorbing the first blow. And the crowd shouted, “Kill them! Kill them!”

Not surprisingly, the beleaguered soldiers opened fire. And five Bosto-nians died.

Men of stature in the community condemned the incident as an example of British tyranny. Some of those men,

like Samuel Adams and Paul Revere, were pursuing a political agenda— independence—and they seized on the firing of muskets and the death of their fellow citizens to stoke public outrage against the British. Things got so tense that, when the soldiers and their cap-tain were charged with murder, no Boston lawyer would take their case. That is, no lawyer would take their case until John Adams was approached. He understood that representing such unpopular clients might endanger his reputation. But Adams was a lawyer, and as McCullough said, “His duty was clear.”

In crafting his defense, Adams took his cue from a treatise by an Italian pe-nologist, Cesare Marchese di Beccaria, who had written that even the con-tempt of mankind would be bearable if recourse to “invincible truth” saved an innocent victim from tyranny—or from ignorance, which was even worse.

The truth that Adams used to save the redcoats from the tyranny and ig-norance of the Bostonians was that the soldiers, attacked by a mob bent on vio-lence, had reacted in self-defense. After using the evidence to paint that picture —just as so many of you do in our court-rooms every day—Adams concluded his argument with the peroration that has come down to us today: “Facts are stub-

By Honorable Colleen McMahonChief District Judge of the U.S. District Court of the Southern District of New York

Facts Are Stubborn ThingsKeynote Address at the 121st Annual Banquet of the Westchester County Bar Association


born things, and whatever may be our wishes, our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence.”

In John Adams’ world, facts were indeed stubborn things. He and the other Founders placed bet after bet on the proposition that facts would, in the end, win out.

They submitted their case for inde-pendence to a candid world by listing, one by one, the facts that demonstrated England’s prolonged mistreatment of her colonies.

They founded a new society on the basis of principles they believed to be self-evident—which they could do be-cause, as Men of the Enlightenment, they held to a consensus about what was so obvious that it must be fact.

And when they identified freedom of speech and of the press as the most fundamental of their God-given rights, they were expressing their conviction that, if falsity were confronted by truth, falsity would be recognized for what it was and rejected.

Everything the Founders built was predicated on their belief that facts were stubborn things.

And for two centuries and more, through political contretemps and vicissitudes that include a civil war, devastating economic recession, two worldwide conflagrations, a battle against prejudice for the civil rights of every citizen, even the prospect of nuclear annihilation, this country has operated on the assumption -- best and most plainly articulated by the man for whom my courthouse is named, Daniel Patrick Moynihan—that: “Everyone is entitled to his own opinion, but not to his own facts.”

Today, however, we live in a world where it seems like everyone’s opinion is treated as though it were a fact.

And in such a world, facts do not seem so terribly stubborn.

Let me offer two examples from this week’s news. I chose these exam-ples because they involve precisely the sort of fact-finding in which we judg-es and lawyers engage in the ordinary course of our work.

There is overwhelming consensus among the world’s doctors about the safety of vaccinations—so overwhelm-ing that, after a Daubert or Frye hear-ing, no judge would permit any so-called “expert” to testify otherwise.

Almost 99 percent of the world’s scientists agree that carbon emissions caused by human beings are altering our climate, which is changing life as we know it on this planet, at a rap-id and increasing rate. That is to say, those whom we would permit to testi-fy in a court of law on this subject are statistically unanimous about what is going on.

In our world, tested by the stan-dards we employ in our profession, these things are facts.

But because enough people are of the opinion that these are not facts— either on the basis of evidence that has been repeatedly proven false, or on the basis of no evidence at all—we as a so-ciety don’t seem able to take the steps that are necessary to protect the public health today, or the future of our chil-dren and our grandchildren tomorrow.

To this conflation of opinion and provable fact, let us add something else: technologies that were unthink-able to men like John Adams can actu-ally render facts malleable.

We used to say, “A picture is worth a thousand words.” By that, we meant that a photograph could capture the truth of a scene or an event more ac-curately than the fallible memories of human beings.

But today it is possible to edit the content of a picture with a few clicks of a mouse—erasing what is true and creating what only appears to be true, but what will be accepted as true be-cause we are conditioned to believe what we see.

It’s not that there were no lies, no doctored evidence, no rank injustices predicated on appeals to emotion and prejudice, in years past. Such things have always been with us.

But today’s technological devel-opments make it uniquely difficult to know whether we can believe our own eyes and ears. As Dean Magill told her graduating class, “In an age of social media, bots, artificial intelligence, dig-ital manipulation of voices and video, hacking, and hijacking of personality . . . we are vulnerable to being convinced that something that has no basis in re-ality is in fact true.”

That, ladies and gentlemen, is a

Everything the Founders built was predicated on their belief that facts were stubborn things.

And for two centuries and more, through political con-tretemps and vicissitudes that include a civil war, devastating economic recession, two world-wide conflagrations, a battle against prejudice for the civil rights of every citizen, even the prospect of nuclear annihilation, this country has operated on the assumption—best and most plainly articulated by the man for whom my courthouse is named, Daniel Patrick Moynihan—that: “Everyone is entitled to his own opinion, but not to his own facts.”

Today, however, we live in a world where it seems like every-one’s opinion is treated as though it were a fact.

(continued on page 14)


Gender and Salary Equity in 2019

In January 2019, Citibank revealed that female employees earned 29 percent less than its male employees.

A 2018 study of the 100 largest law firms found that 93 percent of the highest compensation earners were men, despite zero differences between men and women in billable hours overall.

The Institute for Women’s Policy Research believes that it will take until 2059 to achieve pay parity in the United States (longer for minority women). On a global level, it is estimated that pay parity may not happen until 202 years from now, that is in the year 2221. Pay disparity is real, pervasive and widespread.

What is shocking is that most women don’t believe that pay disparity exists at their company. The statistics

on pay disparity are so large that every woman must consider that it is happening where they work. Knowing for a fact that the ubiquitous and institutionalized Citibank was engaging in pay disparity to the tune of 29% proves how pervasive this issue is in our economy.

T h e s e s t a t i s t i c s a n d f a c t s are disheartening for women who experience the compounding effects of pay disparity over the lifetime of their employment. How can it be that we are still experiencing this in 2019 after generations of women’s rights efforts? Despite systemic and historic pay discrepancies, we are now seeing an increase and traction in laws and movements gaining momentum, to move the needle on pay parity. There

are aggressive statutes in places like New York City, Philadelphia and San Francisco that strive for pay equity between genders. Some of these statutes disallow any potential employer to ask for a salary history to combat and set right the systemic continuation of lower salary for women. In April 2018, the New York State assembly passed an equal pay law for women to address and that hopefully will bridge the pay gap between men and women performing the same job.

One of the ways women can personally combat pay disparity is actually negotiating a raise or a higher initial salary for themselves. Asking for more money can be a sticky situation for anyone, and it may cause the employer/ employee relationship to sour. Women

By Jill A. Backer, Esq.

When asking for a raise at your current employer ... It is important to come to the table with data and facts about what you do for your employer and highlight what more you have taken on.


in particular can pay a social cost for asking for a raise or promotion. Where men are considered forthright in asking for a raise, women can be considered more “demanding”. However, when deserved, asking for a promotion or raise is a critical component of career development and satisfaction as well as an important step in pay parity.

When asking for a raise at your current employer, you should come to the table with your original job description along with your current job description, what you currently do. It is important to come to the table with data and facts about what you do for your employer and highlight what more you have taken on. Then, when you have completed your analysis of what you were hired for and what you actually do, state an actual number you feel you deserve as a raise based on the information you have provided. Make “the ask” in specific and concrete numbers.

You may be turned down. If that

happens you should be prepared to ask two follow up questions. The first one is “what will it take for me to get this raise?” The answer to this question will give insight into your value at your employer and your professional development path or lack thereof. The second question should be to ask your supervisor to level with you about your prospects for your future at this employer.

If your supervisor cannot carefully and respectfully answer these questions in an affirmative and positive way, you may need to reconsider your employment and perhaps launch a job search. (Side note: Do not ever threaten to leave to get your desired outcome unless you will follow through with that threat. Making a threat to an employer that does not hold water will immediately sour the relationship and will lower your personal credibility and professionalism.) There is such a thing as career stagnation and you may be staying too long at the party without moving forward.

Without a doubt, equal pay for women is a sensitive and nuanced issue. Individual women can make inroads for pay parity, but law firms and companies can also make huge strides. There is a strong business case for law firms and companies to close the pay gap to ensure more equitable and diverse work environments. Law firms and legal employers of all kinds should be on the forefront of the movement to end gender pay disparity.

Jill A. Backer, Esq., has been the Assistant Dean at Pace Law School’s office of Career and Professional Development since 2014. She began her legal career as a criminal de-fense attorney in Chicago before going into legal sales. Upon return to her native New York in 2002, she took a job at Brooklyn Law School where she built one of the first em-ployer outreach programs in the nation at a law school. Jill spent 12 years at Brook-lyn Law School. She has been the Chair of the NALP employer outreach section. Jill is a graduate of Marquette University and Quinnipiac University School of Law.

GARY E. BASHIANJAMES L. HYERANDREW R. FRISENDA DANIEL J. GILLIS CHRISTINA M. RUBINOGENEVIEVE PHELPS SCHMIDTSTEVEN M. STIEGLITZ

OF COUNSEL

MICHAEL G. HANRAHAN SHERRY LEVIN WALLACH

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As we rang in 2019 some important changes became effective which are of partic-

ular importance to seniors and their health care, elder law, and estate plan-ning needs. Some of the most notable follow.

Medicare Advantage PlansThe Trump administration issued

new rules affecting more than 21 mil-lion seniors who are enrolled in Medi-care Advantage (MA) Health Plan. (Medicare program: contract year 2019 Policy and Technical change to Medi-care Advantage). The changes result in plan participants (approximately 36 percent of the total Medicare popula-tion) receiving new and more flexible supplemental benefits, which are es-pecially beneficial to seniors suffering from chronic illnesses.

Medicare Advantage (MA) is an available option for seniors eligible for Medicare that allows them to choose private health coverage that purported-

ly helps promote innovative treatment options. The new rules issued by the Trump administration permit the ex-pansion of the MA plans and the tai-loring of the available coverage to the specific needs of the patient, especially those with chronic illnesses.

The new MA rules addressed two significant problems with the plans. Prior to the new rules being imple-mented, an overly restricted “unifor-mity” requirement limited a plan’s ability to target benefits and cost sharing for beneficiaries with specific medical conditions. Additionally, a restricted definition and application of the “primarily health related stan-dard” limited the scope of benefits the MA plan could offer.

The old rules were originally in-tended to foster uniformity of the ben-efits available so as to help ensure all participants would be treated the same by providing the same supplemental benefits at the same cost level. Thus, when offering a special benefit, the

plan had to offer it to all individuals enrolled at the same level of cost shar-ing. This unfortunately undermined innovation in care delivery and dis-couraged patient centered care.

For example, if a patient needed a grab bar in the shower because of a physical infirmity or because of a chronic illness, such as diabetes, and/or needed more frequent foot exams or a tailored supplemental benefit, un-der the old rules he would not be able to receive said benefit because of the restrictive interpretation of the “uni-formity” requirement and “primarily health related” standard.

Under the new rules a class of per-sons who all experience a certain dis-ease may be offered a benefit specific to that disease, so long as all other persons in the same class receive the benefit at the same level of cost sharing. Bene-fits can now be targeted to a patient’s health status or disease state and ap-plied to services that are medically re-lated to each disease.

Elder Law and Trusts and Estates By Anthony J. Enea, Esq.

Medicare AdvantageFederal Estate & Gift Tax

New York State Gift Tax ExemptionDurable Power of Attorney

2019 UPDATE


Federal Estate & Gift TaxEffective January 1, 2019, the Fed-

eral Tax Act increased the Federal estate and gift tax exemption from $11.18 million dollars per person to $11.4 million dollars per person ($22.8 mil-lion dollars per couple). This Federal exemption sunsets on December 31, 2025, thus, returning the exemption to $5.6 million per person with adjust-ments for inflation after 2018. It should be noted that the federal exemption is portable between spouses. Thus, on the death of the first spouse the surviving spouse can elect portability and pre-serve the exemption available to the deceased spouse, irrespective of wheth-er or not he or she had assets in their name alone or with another at the time of their death.

New York State Estate Tax Exemption

The New York estate tax exemption increased to $5.74 million per person for 2019. There is no portability avail-able in New York, thus, it is important for married couples with a taxable or potentially taxable estates to have assets in his or her name alone on the date of death so that part or all of their New

York exemptions can be utilized on the death of the first spouse or it will un-fortunately be otherwise forever lost.

NYS Gift Tax Exemption

New York has also enacted N.Y. Tax Law § 945 (a) (3) which for decedents dying on or after January 1, 2019, re-moves from inclusion in the decedent’s gross taxable estate, gifts made by the decedent within three years of his or her death, even if the gift was made be-fore January 1, 2019. With the size of the current federal tax exemption, uti-lizing one’s credit to make gifts should be strongly considered.

Durable Power of AttorneyIt is now even more important that

one have a General Durable Power of Attorney that gives the agent greater powers, including the power to create and fund a Pooled Income Trust.

If one is applying for Medicaid home care, there is the ability to protect and utilize the income one has above $879.00 per month (the dollar amount one is allowed to keep and be eligible for home care Medicaid), by enrolling in a pooled community trust. However, if one is utilizing a power of attorney

to enroll the applicant into the pooled community trust, Medicaid is now re-quiring that the power of attorney spe-cifically authorize the agent to create and fund the pooled trust.

Thus, reviewing one’s power of at-torney to ensure said language is con-tained therein is of significant impor-tance so as to avoid the need to have a guardian appointed to enroll in and fund the trust, which is an expensive and time-consuming proposition.

Anthony J. Enea, Esq., is a member of the firm of Enea, Scanlan & Sirignano, LLP of White Plains, New York. His office is cen-trally located in White Plains and he has a home office in Somers, New York. He can be reached at (914) 948-1500.

Mr. Enea is the President of the West-chester Bar Foundation and a Past Presi-dent of the Westchester County Bar Asso-ciation.

He is the Past Chair of the Elder Law and Special Needs Section of the New York State Bar Association (NYSBA). He is cur-rently the Chair of the Senior Lawyer Sec-tion of NYSBA.

Mr. Enea is the Past President and a founding member of the New York Chap-ter of the National Academy of Elder Law Attorneys (NAELA) and is a member of the Council of Advanced Practitioners of the NAELA.

Elder Law and Trusts and Estates By Anthony J. Enea, Esq.

THE WESTCHESTER COUNTY BAR ASSOCIATION’S MONTHLY MAGAZINE FEBRUARY 2019 | VOL. 6 | NO. 2

westchester

LAWYER WCBA

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ESTCHESTER COUNTY

B A R A S S O C I AT I O N

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THE PRACTICE PAGEp 15

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... page 10

Thursday, March 7, 2019

Slate of Officers 2019-2020 and Absentee Voter Proxy Form ... inside front cover

Annual Meeting Registration Form ... 1

and past presidents’ dinner

Annual Meeting

2019

The Expected Legalization of Cannabis for Adult Use

in New York Will Bring New Challenges for Attorneys

CANNABIS

Inside ...Save the Date: May 1: WCBA’s Annual Banquet and Induction of Officers ... 3

Report: Appellate Division 2nd Dept. Criminal Practice Bar Leaders Symposium ... 5

Common Business Valuation Report Errors ... 6

CLE Center ... 20

Annual Sponsorship Program ... back cover

The Westchester Lawyer magazine is always looking for articles of interest to our members. If you are an attorney, affiliate, paralegal or student member— we are interested in what you have to say!

We are interested in articles that are newsworthy and informative, such as descriptions of important developments in, or unique perspectives on, areas of the law.

Submissions should be 600-1200 words and preferably an original article that has not been published elsewhere.

Email articles or letters of inquiry to [email protected].

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In the early 1920s, when the Court House Barber Shop opened its doors, some horse drawn carriages still tra-

versed the streets of White Plains and the Keith-Albee Theatre, designed by architect Thomas W. Lamb, entertained residents with vaudeville and movies. While cars have long replaced horses as the common mode of transportation in White Plains, the Court House Barber Shop remains a stalwart fixture in the community and a loyal friend to the legal community throughout the County of Westchester.

Memories often can be triggered by any of our senses. A smell, a taste, a sound, even a texture may trigger a memory that was long ago submerged deep within our subconscious. One of my earliest and fondest memories is of my dad taking me to the barber shop in my hometown of Suffern, New York.

There was something magical about the place. Like many other barber shops, my dad’s was essentially a living museum where old photographs of the town and its people adorned the walls, trophies and other memorabilia filled the shelves and the barbers who worked there were proud of the generations of barbers in their fam-ilies before them. It was a special place for us, and to this day the smell of aftershave and Pinaud Clubman After Shave Lotion brings me back to those days and I find myself yearning for a lollipop.

It was my fondness for barber shops that always had me interested in the Court House Barbershop, located in the Northcourt Building in White Plains, which until recently, I only knew exist-ed due to the sign in the lobby inform-ing readers that the shop was located in the basement. Over the years closings,

depositions, and other meetings have brought me to the building, and while I was always unable to stop for a haircut, I regularly promised myself that one day I would find out more about the shop and its history.

This brings me to a conversation I had with this Magazine’s Editor-in-Chief, Richard Gardella, several years ago when I mentioned the Court House Barber and my idea to write an article about the shop, and its connection to the West-chester legal community. He told me it was a great idea and every few months since then he reminded me that I should write it, which finally drove me to get my long awaited haircut there last May.

Entering the Northcourt Building that day I looked up at the sign and felt as if I was finishing a task I had started over a decade ago. Finally, I was getting a haircut from the mysterious basement barbershop. I climbed down the stairs and entered a long hallway leading to the one open store on that level, the Court

House Barber Shop, identified only by a barber pole—an icon of barbers dating back to medieval times. As I approached the open door I peeked into the shop. No bigger than twenty feet square, the shop has but one barber chair, where cus-tomers are serviced by owner Tony Gil-berti, who I found reading a paper when I arrived.

I introduced myself, explained why I was there, and he responded, “Yeah, I know Gardella, I cut his hair years ago, he wrote articles for the paper didn’t he?” And with that my interview and haircut began. Eager to start, I sat down in the chair and was asked to take my jacket off so I could get comfortable for my cut. I did as I was told and when I sat back in the chair the second time, I was given the long anticipated opportunity to finally hear the story behind the Court House Barber Shop.

When he first started cutting my hair, I asked Tony how long he had been in the business and he took a step back and said 59 years and with a quick fol-low-up told me that he loves his job, and wouldn’t want to do anything else. Tony then told me how the Court House Bar-ber Shop had originally opened in the early 1920s, with the Northcourt Build-ing being its fourth location.

When I asked why the shop had so many locations, Tony informed me that as White Plains grew and continued to transform over the years, the shop con-tinued to be pushed from one location to the other. When Tony had started cut-ting hair in 1960, his father Nunzio had his own shop two blocks from the Court House Barber Shop on Court Street. In 1966, the city came to his father and told him and many other store owners they

The Court House Barber Shop A Friend of Westchester’s Legal Community for Nearly 100 Years

By James L. Hyer, Esq.


would have to move because the urban renewal was coming through. Nunzio then rented a store on Main Street, di-rectly across from the Courthouse Barber Shop which he then purchased when the owner retired. At the time Nunzio had purchased the Court House Barber Shop, Tony recalled, “It was truly a great and beautiful barber shop with a lot of equip-ment dating back several decades.” Then in 1977, the city came to Nunzio again and told him he must relocate because the city was tearing half the block down, which resulted in the Court House Bar-ber Shop moving to its current location.

During this conversation about the multiple relocations of his shop, Tony was kind enough to bring me a binder with historical photographs of White Plains, which included each of the loca-tions where the shop once stood. When somebody truly loves a place you can see it in their eyes when they speak about it and when Tony talks about White Plains, he has that look.

Tony’s connection with White Plains goes back to his childhood. He was raised in White Plains and started his career as a barber with his father, with whom he shared the shop in the Northcourt Build-ing, when it had two chairs until his fa-ther finally retired.

When I asked him how it worked with his father he joked about the size of the shop, “Well we used to bump ass-es a lot, but we had a good time, I liked working with my dad.” I asked if any of his children would be taking over the family business and he told me that his kids had chosen other career paths and

he would be the last to run the shop.When the conversation turned to

the connection between the legal com-munity and the shop, Tony was quick to tell me that many of his customers are at-torneys, court officers, judges and staff at the courthouse. Almost as if he was pre-senting exhibits at a trial to support his case, he made his way around the shop pointing to mementos of the past.

He first pointed to an autographed photograph of the late Hon. Samuel Fredman, who served as a justice of the Supreme Court of the State of New York, Ninth Judicial District. Justice Fred-man passed away last year at the age of 94. Tony recalled, “The first time I cut Judge Fredman’s hair, I must have been 17 years old.” He then picked up a frame with court officer patches that had been given to him by some grateful customers.

Sitting in the chair finishing my hair-cut, I began to think about all the judges and attorneys who must have sat in that very chair, when I hear someone enter the room. I turned and saw Richard E. Grayson, a noted legal ethics attorney. It turns out that Grayson had been getting his hair cut at the shop for years and af-

ter watching them both catch up as old friends do, I urged him to take a seat and pose with Tony for a photograph. After a short protest that he wasn’t in a suit, I believe he was convinced to take the photo because Tony reminded him that his red flannel shirt would be covered by the apron, I was able to get my photo-graph of Mr. Grayson with the man who will likely be the last courthouse barber.

In a society that has become increas-ingly fast paced, where people often ap-pear more comfortable communicating with others electronically rather than in person, we need to appreciate places like the Court House Barber Shop and the camaraderie that it brings. The shop is a special place and while I missed out on the experience of a great haircut and interesting conversation for nearly two decades, next time you are in the area, take a half hour to treat yourself to a cut, shave and good conversation.

James L. Hyer, Esq., is a Vice President of the Westchester County Bar Association; recipient of Leading Attorney Under 40 by Pace Law School, Westchester County Bar Association, Westchester Women’s Bar Association; and recipient of the New Law-yers Leadership Award of the Westchester County Bar Association. Hyer handles liti-gation, estate planning and transactional matters. PHOTOS: p. 12: Court House Barber Shop Door p. 13 from top left: Tony Gilberti cuts Richard Grayson’s hair Portrait of Justice Samuel Fredman Antique sign in the shop


dangerous development. And yet it remains the firm foun-

dation of our profession that facts are stubborn things.

When a lawyer signs a document before filing it with a court, he or she attests to the truth of the facts stated therein.

At trials, we subject our witnesses to cross examination in the belief that ferreting out lies will help us prove the facts.

We test the credentials of so-called experts against the consensus of those learned in various arts and sciences before we allow them to influence the finding of facts by testifying.

We require our public companies, as a condition of doing business, to dis-close, accurately and completely, their earnings and other facts pertinent to a rational person’s evaluation of their in-vestment potential.

Full and accurate disclosure of the facts is also the basis on which we bor-row money, buy insurance, pay our taxes, end marriages, provide for the support of children—all those legal matters that touch on every aspect of our lives.

Facts, ladies and gentlemen, are our stock-in-trade.

And that being so, we know, as perhaps others do not, that the rule of law cannot exist in the absence of a consensus that there are true and dis-coverable facts—facts that, whether we find them palatable or not, cannot be gainsaid.

We lawyers cannot function in a world of “truthiness,” to use Stephen Colbert’s once-but-no-longer-so-funny noun. “Truthfulness” must remain the measure of what we collectively believe.

So how do we lawyers get—and keep—our bearings in a world where facts may not be quite as stubborn as

they used to be?I wish I could tell you that I had a

good answer to that question. I am old, and I am a self-confessed

Luddite. I fear how these new tech-nologies, which are so intoxicatingly addictive, can undermine the value of evidence and prevent the triumph of truth.

And I am concerned that, as a pro-fession, we have been slow to grapple with this brave new world of truthiness and fake news and “alternative facts.”

But we had best buckle down and start thinking about the implications of a paradigm shift as radical as the in-vention of the printing press was 500 years ago.

I am sure of one thing: We lawyers will have to be extraordinarily vigilant guardians of facts.

We will have to work harder than our predecessors in order to detect what is real and what is really not.

We may have to devise new proce-dures, the better to probe the veracity of what is offered at trial or across a negoti-ating table. Perhaps we will need to craft new rules of evidence—and certainly invent new and cost-effective ways to sift through the massive amount of use-less information that can be used to hide the facts that truly matter.

You, the members of the Bar, need to be acutely sensitive to the inde-pendence of the judiciary, and firmly committed to rebuking those who in-sist that judges are deciding cases on the basis of their own predilections—a task that is admittedly made more dif-ficult by the increasing, deplorable and non-partisan politicization of the judi-cial nomination process.

And all of us must recommit our-selves to the ethical precepts that ulti-mately wed us, as lawyers, to the truth at all costs—even when a client’s inter-

est may seem to lie in a world of alter-native facts.

John Adams counted his represen-tation of the soldiers accused of the Boston Massacre as, “. . . one of the best pieces of service I ever rendered for my country.” In an atmosphere of pub-lic outrage and mistrust, where respect-ed leaders, including his own cousin, espoused some individual version of the truth in order to further a cause, he insisted on bringing the stubborn facts to light.

As lawyers, we are peculiarly and particularly equipped to be his heirs in that task.

For when we were called to the Bar, we made a promise—of loyalty, of citizenship, of our office—a promise so fundamental to this nation that it was prescribed in a law passed by the first Congress that ever sat, the Senate over which John Adams presided.

We raised our right hands and swore to preserve, protect and defend the Constitution of the United States —not the country, or its leaders, or its people, or any political party—but the supremacy of the rule of law.

And we swore to protect the Con-stitution against ALL its enemies, for-eign and domestic.

I have never believed that the rule of law in this country could be brought down by any foreign power. But if we lawyers are not vigilant for the truth, we could very well see it brought down around us by our own inaction.

So on this day, let us rededicate ourselves to our oath—to the suprem-acy of the rule of law, and to the stub-born facts that are necessary to its con-tinuation. The fate of the Republic lies in the balance. May we not fail her.

Keynote Address(continued from page 7)


By Hon. Mark C. DillonJustice of the Appellate Division Second DepartmentAdjunct Professor of New York Practice at Fordham School of Law

THE PRACTICE PAGETHE PRACTICE PAGE

A monthly column with a focus on matters of practice and procedure.

The Hudson Valley Rent Riot Trials of 1766

Since it is summer, I would like to invoke the personal privilege of not addressing issues of New York Practice and focus instead on some Hudson Valley legal history—the rent riot trials of 1766.

New York was a British colony. Westchester County’s northern border was at Dutchess County’s southern border, as Putnam County would not be created between the two until 1812. The regional economy was largely agricultural in the 1760s, with many tenant farmers leasing land at favorable rents from the Wappinger Indians. The Philipse family, for whom Philipstown is named in present-day Putnam County, claimed ownership of 250 square miles of land in southern Dutchess County under a long-standing grant known as the Highland Patent.

In 1765, the Phil ipse family commenced a court action against the Wappinger to enforce its rights to the patented land. No one should be surprised that the King’s provincial judiciary rendered a decision in favor of the Philipses and against the indigenous Wappingers. After winning their case, the Philipses raised the rents on their tenant farmers to amounts that many tenants could not afford, and which subjected some of them to debtors’ prison and ejectments from their leased tracts. Fellow tenant farmers organized an armed resistance to prevent the ejectments and forcibly free imprisoned farmers from jail. The circumstances prompted the rent riots of 1766.

On June 20, 1766, New York’s provincial Governor, Henry Moore, dispatched troops from New York City, through Westchester, to Dutchess County, to confront the armed resistance. In the skirmishes that followed, four soldiers and three tenants were killed and many others were injured. Sixty tenant farmers were arrested, of whom 47 were criminally indicted. Many were charged with murder. Some who fired no shots were charged with “constructive murder,” meaning that they could be held accountable for the deaths merely by having been present at the firefights. Governor Moore directed that the criminal trials be conducted before a panel of justices at the provincial Supreme Court of Judicature at the original Dutchess County Courthouse, with Chief Judge Daniel Horsmanden presiding. Only landowners were eligible for jury service in those days, meaning that the jurors were all members of the landed gentry with little sympathy for the rioters.

The leader of the farmer resistance was William Prendergast, who lived in the Quaker Hill section of Pawling. Prendergast was married to a woman named Mehitabel Wing and had six children. Prendergast was charged with unlawful assembly, disturbing the peace, and levying war against the King. His trial, Crown v. Prendergast, commenced on August 6, 1766, lasted 24 hours, and included testimony from 26 witnesses. The trials were closely followed throughout the state and were headlined in the weekly

New York Gazette. Prendergast was convicted of his charges, and as the rioters’ leader, sentenced by Judge Horsmanden to be partially hanged, then castrated, disemboweled, drawn and quartered, and for extra good measure, beheaded. Prendergast and his family wept during his sentencing, and he prayed aloud for his soul.

In those days, death sentences were typically carried out within days. Prendergast’s wife, Mehitabel Wing, commenced her now-legendary 85-mile ride on horseback along the Albany Post Road through Westchester, to find Governor Moore in lower Manhattan as he was readying for bed. She desperately pleaded for her husband’s life. Her efforts paid off as she obtained a stay of the sentence pending an appeal to King George III in London. She then immediately commenced the long horseride back to Poughkeepsie, collapsing from exhaustion upon reaching the jail with the governor’s stay in hand. She returned in time. Ultimately, King George pardoned Prendergast in December.

What is lost in the story is whatever happened to the tenant farmers of northern Westchester and Dutchess Counties. Tilling the fields as tenant farmers in the region in the late 1700s continued to be a difficult means of earning a living, made less profitable under the Philipses than under the Wappingers. Our current spate of residential mortgage foreclosure cases, while unfortunate, at least avoids the violence of 1766.


Tejash: How long have you been a member of the WCBA and what are some of your contributions?

Michael: Although I have been a member for less than five years, I have been very active. I have attended many WCBA events and meetings and written articles for Westchester Lawyer maga-zine on emerging issues in employment law, including, overtime, arbitration, and federal court procedure.

Tejash: What is your current job and practice area?

Michael: In May, I joined White Plains-based Yankwitt LLP as a Counsel. Yankwitt LLP is a boutique litigation firm that handles every kind of litigation except family law. Half of my practice is comprised of employment cases, and the other half is a variety of complex litigation matters ranging from commer-cial to personal injury cases.

Tejash: How did you come to your cur-rent position?

Michael: After working for Kirkland & Ellis and clerking for a federal judge, I worked at a boutique plaintiffs’ firm in Rye Brook that specializes in class actions and collective actions. I was really impressed when I learned about Yankwitt LLP, and I jumped at the opportunity to work there. At Yankwitt, I primarily represent defendants. My time representing plaintiffs provided me with insights that will benefit my defendant clients.

Tejash: What is one of your favorite legal success stories?

Michael: It is hard to pick. Recently, I tried a wage and hour case in arbitra-tion that went on for years. I think a lot of lawyers would have pegged us for defeat, but I had been reading and litigating wage and hours cases for many years so I was looking at it from a different perspective. I decided to focus on a seldom-used provision of the statute, which would give us our best shot to win. The trial featured its share of surprises and I had to react in the moment. Fortunately, we prevailed.

Tejash: Who were some of your legal mentors?

Michael: I would start with Judge William Martini of the U.S. District Court for the District of New Jersey. My two years clerking for Judge Martini were an amazing, inside look at lawyering and judging in the federal courts. Then I would have to say Vickie Reznik and Katherine McDaniel from my days at Kirkland & Ellis. I worked with them on a class action that fought to pre-serve Medicaid services for children in Tennessee. At NYU, my mentors were Professors Helen Hershkoff and Linda Silberman, who taught civil procedure, choice of law, and federal jurisdiction. They made me realize that those subjects, while they might seem dull, are some of the most fascinating and consequential areas of law. My current mentor is Russell Yankwitt, who has helped me balance the compassion necessary to work with individual defen-dants and small business owners, with the aggressiveness to battle the top plaintiffs’ attorneys.

Michael Reed, Esq.

Inthisfeature,TejashV.Sanchala,Esq.,interviewsWCBA membersabouttheirexperiencesandinsights.TejashisCo-ChairoftheEmploymentLawCommitteeandLawDayCommitteeandamemberoftheNominatingCommittee.

Hewelcomesanycommentsandsuggestionsforfuture columns.Tejash’scontactinformationcanbefoundat: http://www.villanuevalaw.com/tejash-v-sanchala.html

Spotlight

member


Spotlight

Tejash: What might people be surprised to learn about you?

Michael: I was a physics major in college. I did theoretical research on the foundations of quantum mechanics and experimental research on a type of matter believed to be the coldest thing in the universe. After college, I studied history and philosophy of science in graduate school.

Tejash: What do you splurge on?

Michael: A few times a year, some friends and I head into New York City for top notch sushi. Recent gems were Sushi Azabu, Sushi Inoue, and Kosaka. We are always on the lookout for new places.

Tejash: What are some of your favorite movies?

Michael: The Shawshank Redemption, Field of Dreams, and Good Will Hunting.

Tejash: What is your favorite meal?

Michael: Pizza. My favorite, for senti-mental reasons (and also because it is the best), is Antonio’s in Amherst, Mas-saschusetts. Closer to home, my vote for best pizza is Burrata in Eastchester.

Tejash: What are some of your favorite vacation trips ?

Michael : Before kids, it was my bar trip to Montana, where my wife and I visited Glacier National Park and rode on the Going to the Sun Road. With kids, it would be our family trips to Stone Har-bor, New Jersey.

Tejash: What is the best advice you have ever received?

Michael: When I worked at Kirkland & Ellis, one of the partners told me that what set Kirkland apart was that clients didn’t come to Kirkland to be told how they would lose, they came to be told how they would win. The mindset that even difficult cases are not hopeless, and that smart, aggressive lawyering can make a difference has stuck with me throughout my career.

Tejash: What advice would you give to new lawyers?

Michael: Never give anyone a first draft; think and talk through ideas. Write a lot. Be firm with your adversaries but always be polite. And if you can, try to clerk for a judge. In my opinion there is no better training.

Tejash: What is one of your future ambitions?

Michael: Having just started working for a firm in White Plains, I would like to cultivate more relationships with law-yers in the area. I have been giving CLEs to lawyers for some time, but I would also like to teach law.

Tejash: What is your favorite part of being involved with the WCBA?

Michael: Making new friends and learn-ing new things. It is a pleasure to be part of a community of smart, dedicat-ed lawyers.

Contact WCBA’s Lawyer Assistance Committee Chair Daniel Seymour 914-262-0548 [email protected]

The demands of the legal profession are known to contribute to the substantially greater risk for alcoholism and depression suffered by lawyers over that of the general population.

Shame, fear and stigma often make it difficult to seek help, but it is important to act when the signs of impairment begin.

All LAP services are confidential and protected under Section 499 of the Judiciary Law as amended by Chapter 327 of the Laws of 1993.

LAWYER ASSISTANCE PROGRAMThe WCBA Offers Free Confidential Help For the Problems Lawyers, Judges and Law Students Face

Westchester County Bar Association’s

LAWESTCHESTER COUNTY BARASSOCIATION

PA call can save a career. A call can save a life.

SPOTLIGHT


What's Going On MEMBERSHIP NEWS | COMMITTEES | SECTIONS | AWARDS | UPCOMING EVENTS | UPDATES

For information about our Annual Sponsorship Program please contact:[email protected].

Annual Platinum Sponsor Sterling National Bank

Annual Silver Sponsors BodnarMilone LLP Cuddy & Feder LLP Kurzman Eisenburg Corbin & Lever, LLP

Annual Bronze SponsorMcCarthy Fingar LLP

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AN

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Yankwitt LLP Expands Employment Law Practice with New Hire Michael Reed

White Plains, New York-based law firm Yankwitt LLP has expanded its civil litigation practice with Michael H. Reed.

Mr. Reed, who is joining the firm as coun-sel, has substantial experience in complex litigation and has an established federal law practice. Over the past several years, he has

focused on employment litigation and wage and hour disputes and has lectured throughout the country on overtime law. His earlier experience came from years working at the New York City law firm of Kirkland & Ellis, and as a federal law clerk.

Maura Smith Joins Family Law Offices of Edward Nusbaum

Maura Smith recently joined the Law Offices of Edward Nusbaum P.C. as a partner. Ms. Smith is involved with the full spectrum of client representation, trials, drafting and pros-ecution of pre- and post-judgment motions, conducting and managing discovery and depositions, negotiation and drafting of sep-aration agreements, and other agreements submitted to the court. The Law Offices of

Edward Nusbaum is a Westport-based family law firm dedicated solely to the practice of family law.

Please note: There will not be a Lunch with the Judges with Hon. Linda S. Jamieson and Guest in July and August. The series will resume in September.

S

ee you in September!

LUNCH withthe JUDGES

Save the Date: July 25, 2019 Assessing Your Law Firm Mid-Year 2019: Looking Back and Looking Forward at Your Business Goals

On July 25, 2019, the WCBA’s Business & Commercial Law Committee will present a CLE titled Assessing Your Law Firm Mid-Year 2019: Looking Back and Looking Forward at Your Business Goals

2019 is halfway over. How are you progressing with the business goals you set in January?

Did you set goals in categories such as financials, marketing, sales, team and personal development? Were your goals specific? Upon reflecting, are you finding them broad, more focused on the big picture? Did you create a plan of action to support the achievement of your goals? Has 2019 brought you any obstacles that have gotten you off track?

Create an Action PlanHere is your opportunity to get specific, get on track with an action plan and move the obstacles out of your way. This presentation explores how to set and move toward goals by utilizing a proven system, support and accountability, owning a “what can I do” attitude and taking consistent action at every step of the process.

Speaker: Ivy SlaterIvy Slater is a professionally certified business coach, speaker, best-selling author, podcast host, and owner of Slater Success. She focuses on developing great leaders and facilitating business growth and expansion. Ivy holds masterminds and retreats with her private client base and corporate training on communication, goal achievement, and strategic planning. She speaks nationwide on the topics of leadership, the value of relationships, sustainable growth, and sales.

Time: 12:30 pm Location: WCBA Conference Room, 4 Westchester Park Drive, Suite 155, White Plains, NY 10604

Cost: Free

To register: www.wcbany.org/events

Ourgoalscanonlybereachedthroughavehicleofaplan,inwhichwemustferventlybelieve,anduponwhichwemustvigorouslyact.Thereisnootherroute tosuccess.—PabloPicasso


MEMBERSHIP NEWS | COMMITTEES | SECTIONS | AWARDS | UPCOMING EVENTS | UPDATES

On June 3, 2019, in an effort to foster a continuing discourse between the bench and the bar regarding issues germane to practice before the Ap-pellate Division, Second Department, Associate Justices Jeffrey A. Cohen, Colleen Duffy, Francesca E. Connolly and Linda Christopher met with James K. Landau and Jeanna M. Alberga, co-chairs of the Appellate Practice Committee of the WCBA, at the White Plains courtroom for the Second De-partment.

The Justices were very generous with their time and spoke on a variety of topics of interest. With respect to criminal cases before the Court, the Justices advised that they were work-ing to combat delays in such cases at the appellate level. A common cause of delay in such cases arises from the difficulty counsel have in locating documents for the record on appeal from the trial court, including the trial transcripts. To address this issue, the Second Department is communicating with the various trial courts to encour-age scanning of all documents by clerks of those courts. The Court is also making a concerted effort to calendar criminal cases for oral argument or submission within one month after the appeal is perfected and to render decisions on such cases on an acceler-ated basis, particularly where the Court intends to reverse the decision of the trial court.

At the meeting, we asked if the Court would consider sitting in coun-ties such as Westchester, Putnam, Rockland, Dutchess and/or Orange on a more regular basis than they do currently. The Justices generally were in favor of the request and noted that doing so may increase the number of criminal appeals from such counties that are orally argued, a development that the group of Justices at the meet-ing agreed would be helpful.

A new logo and flag in the lobby of the courtroom has been added in White Plains. In addition, the Justices advised that the courtroom at 140 Grand Street, White Plains would be undergoing some renovations over the next year that should greatly enhance the experience for everyone using the courtroom.

With respect to civil cases, the Justices had a number of suggestions for practitioners. They expressed frus-tration with references in briefs and in the record to deposition transcripts where a document was put in front of a witness and that the document was described only as “Exhibit A”. When taking the deposition, make sure that the transcript contains a full descrip-tion of the document being identified and discussed with the deponent.

The Justices also want to inform the bar of the necessity to notify the Court as soon as a case has been set-tled. The Court spends a great deal of time reading the briefs and the record on appeal and conferencing each case to be decided. If your case has set-tled and you do not notify the court promptly, you are taking up the Court’s time that could be spent on other active cases. Counsel who do not promptly notify the Court when a case has been settled risk having sanctions, in the form of costs, imposed.

The Justices also advised that the Second Department had instituted a Mandatory Civil Appeals Mediation Program aimed at settling appeals that have already been perfected. See 22 NYCRR § 670.3[d]. The purpose of this program is to provide litigants with a confidential alternative dispute resolution process that may result in faster, more convenient, less expensive and less acrimonious settlement than might otherwise be available. Special Masters, designated by the Presid-ing Justice based upon their training,

experience, temperament, character and discretion, shall serve as neutral facilitators of communications to assist the parties in reaching future-oriented solutions that meet their individualized needs. The Special Masters preside over a mandatory ninety-minute initial session, at which the Special Master shall receive compensation as agreed upon by the parties.

The Justices also advise members of the bar that when moving by order to show cause in chambers other than in Brooklyn, the Second Department Clerk’s office must still be notified.

Finally, the Court advised that while motions for stay of trial pending appeal will be entertained, they are disfavored and would likely not be granted absent exceptional circum-stances, as the Court is reluctant to micromanage the calendars of trial court justices.

The meeting was extremely infor-mative and helpful. We were advised that other meetings will be scheduled in the coming months. We are thank-ful to the Justices for taking the time to communicate with the Bar. Their time and attention enables us to enhance our abilities as practitioners.

REPORT: Appellate Division Second Department Meeting with Associate Justices

By James K. Landau and Jeanna M. Alberga

A FREE ongoing wellness series presented by WCBA’s Lawyer Assistance Committee

WEDNESDAYS 12:30 pm–1:00 pmWestchester County CourthouseAttorney Lounge/Front Room111 Dr. Martin Luther King Jr. Blvd. White Plains, New York

Information: Ben Felcher-Leavitt, Esq. [email protected]

MEDITATION for lawyers


CLE Center To register for CLEs and Events visit www.wcbany.org/events

SAVE THE DATESJuly 22 | Annual Golf Outing | all day Whipporwill Club, Armonk, NY, see p. 3

July 23 | Tax Certiorari & Condemnation Committee CLE

October 2 | Meet the Judges Elisabeth Haub School of Law, White Plains, NY

November 7 | WCBF Benefit Knollwood Country Club, Elmsford, NY

Honorees Honorable Brandon R. Sall Westchester Surrogate

Edward F. Beane, Esq. Senior Counsel Keane & Beane, P.C.

WORKERS’ COMPENSATION COMMITTEE New Paradigm for Alternative Dispute Resolution in Representing Undocumented Workers Before the Workers’ Compensation Board Speakers TBD

Location WCBA Headquarters Conference Room 4 Westchester Park Drive, Suite 155 White Plains, NY

Date/Time Thursday, July 18, 2019 5:30 pm–6:00 pm Networking/Registration & Light Supper6:00 pm–8:00 pm CLE Presentation

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FROM THEBack BenchBY RICHARD M. GARDELLA, ESQ.Editor-in-ChiefWCBAPastPresident

Richard M. Gardella, Esq., is counsel toBertine,Hufnagel,Headley, Zeltner,Drummond&DohnLLP. Heisapastpresidentofthe WestchesterCountyBarAssociation andtheWestchesterCountyBarFoundation,theeditor-in-chiefofthis Magazine,andaformerWCBAdelegatetotheAmericanBarAsso-ciationandtheNewYorkStateBarAssociation.

Technological and scientific progress over the years has served to better solve crime.

The first fingerprint evidence was introduced in a criminal trial in India in 1865 leading to a central forensic tool in the fight against crime. One hundred years later the voice print, a scientific recorded voice identification technique was introduced in a Westchester County criminal trial.1 Use of facial recognition technology is now on the horizon.

Rivaling the fingerprint in importance, DNA evidence revolutionized law enforcement after its introduction in the late 20th century. At the same time, that compelling evidence provided a method to free those unjustly convicted. A man convicted of a 1984 rape in Westchester County was exonerated in 1991 by DNA tests, becoming one of the first convicted defendants to be cleared by such evidence.

Advancing technology in electronics has added to and continues to develop further to fill the law enforcer’s toolbox. Such new evidence includes video surveillance as well as phone, computer and other device tracking.

All of which puts me in mind of the first use of an early electronic communication device to apprehend a fleeing murder suspect and his youthful paramour.

One hundred nine years ago this month, the escaping couple was discovered on an ocean liner headed from Antwerp to Canada. An observant ship captain, who had been following the sensational London case of a missing doctor’s wife and the doctor’s apparent flight in the newspaper, became suspicious of a man, who gave his name as “John Robinson,” and his young “son” on board soon after the ship’s departure. Thanks to newly developed wireless telegraphy he was able to report his suspicions to London police officials.

Captain Kendall, of the Montrose, closely watched the “Robinson” couple

during the voyage and regularly reported to law enforcement. Mr. “Robinson” often seemed nervous to the captain and sometimes did not immediately respond to the Robinson name. His “son” generally said nothing and appeared effeminate to the ship commander.

As a result of Kendall’s reports, police traveled to Canada and with a detective posing as a harbor pilot on July 31, 1910, made the arrest of Dr. Hawley Harvey Crippen and Ethel Clara Le Neve on board ship. Within days the couple was extradited from Quebec to England to stand trial.

After a three-day October trial, Crippen was convicted by a jury and sentenced to death. Following the failure of his appeal and the rejection of a commutation request, the doctor was executed a little over a month after his trial ended and just three months from the wireless aided apprehension. Le Neve was acquitted at trial. While never admitting responsibility for the second wife’s disappearance, Crippen maintained his young lover, Le Neve, had no part in his lies and plotting.

A native of Coldwater, Michigan, Crippen obtained a degree as an eye and ear specialist in New York. Following the death of his first wife at the start of the 19th century’s last decade in Salt Lake City, the doctor returned to New York City. There, in 1893 he met a 17-year-old aspiring singer named Cora Turner, who was another man’s mistress. After he married her, he learned her real name was Kunigunde Mackamotzki, the daughter of a Russian father and a German mother.

Crippen moved to England to take a manager’s post with a patent medicine firm in 1900. Four months later, Cora joined him in London perhaps with the hope of reviving her singing career on the Music Hall stage under the name Belle Elmore. It was a dream never fulfilled.

With Cora apparently performing


as a harridan at home and Dr. Crippen suffering wifely ridicule in silence, the marriage was not a happy one. Interested in other men, Cora was approaching a decision to end their relationship.

In his last message before his execution, Crippen wrote:

“… We drifted apart in sympathy; she had her own friends and pleasures, and I was rather a lonely man and rather miserable.”

Miserable, that is, until he met and gained the affection of Le Neve.

His misery and desire apparently came to a breaking point on January 31, 1910. That night Cora ridiculed Crippen over an alleged breach of manners in front of a visiting couple. After the couple left, Cora was never seen again. Less than two weeks later the doctor pawned some of his wife’s jewelry and in March he reported her death. According to his story, Cora left him and went back to America where she later died.

By this time, Dr. Crippen had publicly taken up with his young paramour. Friends of the musical performer were suspicious and, finally, got police to investigate. On July 8, 1910, detectives came to visit the doctor at his home. Crippen admitted he lied about his wife’s death, saying she had

taken off with a lover and was still alive, but he did not know where. He claimed he lied to protect his reputation and avoid embarrassment.

London police seemed satisfied, however, a few days later detectives sought to wrap up their investigation and close the book on Belle Elmore with a few more questions. When they went to the doctor’s office they found he had taken off with his paramour.

Going back to the doctor’s now abandoned home, police conducted a thorough search. Under bricks in the basement they found human torso remains without a head or limbs. The hunt for Crippen followed that discovery.

At his trial the prosecution claimed the remains were Cora’s and that she was poisoned before she was mutilated.

The defense argued that there was no proof that the remains were Cora and that, therefore, there was no proof of her death. They ridiculed the Crown’s identification evidence and its poisoning proof.

Neither the judge nor the jury had much sympathy for the defendant or his evidence, resulting in the death sentence.

Of course, today the doctor would have no defense as a result of DNA evidence. The identity of the remains

would be proved beyond a reasonable doubt.

When we rev iew the rap id advancement of science and technology and look back at this steady progress of crime solving tools, we must exercise caution to make sure those tools are not misused. Crime solving tools, especially the electronic ones, can also serve to evade proper privacy concerns and equip Big Brother type societal control. Continued technological progress in the fight against crime should be thoroughly vetted and appropriately limited to guard against the unintended consequences of the loss of some of liberty’s blessings.

Endnotes 1 The Westchester jury rejected the voice-

print evidence apparently because they felt it was unproven science.

2 The Crippen case recited has was based on The Trial of Hawley Harvey Crippen, originally published by William Hoget Company, LTO, in 1920 and re-published by The Notable Trials Library with an in-troduction by Alan M. Dershowitz in 1991.

PHOTOS: Hawley Harvey Crippen (inset) and the defendants in the dock (far right). Right: lurid headline from a London newspaper. Coutesy of Mirrorpix.


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O LAWYER - Pace University · 2019-07-15 · lunches will resume September 11, 2019 featuring Family Court Judge Nilda Morales Horowitz. The words of Judge Colleen McMahon, presented