Bar Association of Erie County Noonday CLE

January 29, 2014 Frank Housh, frank@houshlaw.com

3rd Annual Statutory Update: What Came Out of Washington and Albany in 2013

Bar Association of Erie County

www.eriebar.org

American Constitution Society, WNY Lawyers Chapter

www.acslaw.org

Public Laws of the 113th Congress

Least productive in history. Comparison with last year.

New York Chapter Laws of 2013

SAFE ACT of 2013

Bans possession of any "high-capacity magazines" regardless of when they were made or sold. The maximum capacity magazine is 7 rounds for pistols (overturned). .22 caliber tubular magazines are exempt from this limit. Previously legal "pre-1994-ban" magazines with a capacity of 30 rounds are not exempt, and must be sold within one year to an out-of-state resident or turned in to local authorities.

SAFE ACT

Ammunition dealers are required to do background checks, similar to those for gun buyers.

Requires creation of a registry of assault weapons.

SAFE ACT

Requires designated mental health professionals who believe a mental health patient made a credible threat of harming others to report the threat to a mental health director, who would then have to report serious threats to the state Department of Criminal Justice Services. A patient's gun could be taken from him or her.

SAFE ACT

Stolen guns are required be reported within 24 hours.

Broadens definition of "assault weapon" from two identified features to one.

Def: semi-automatic firearms with a detachable magazine and one or more cosmetic, ergonomic, or safety features, such as a flash suppressor, pistol grip, or Barrel shroud, respectively

SAFE ACT

Semi-automatic firearms, when fired, automatically extract the spent cartridge casing and load the next cartridge into the chamber, ready to fire again. They do not fire automatically like a machine gun. Rather, only one round is fired with each trigger pull.

SAFE ACT

Requires background checks for all gun sales, including by private sellers - except for sales to members of the seller's immediate family.

SAFE ACT

Guns must be "safely stored" from any household member who has been convicted of a felony or domestic violence crime, has been involuntarily committed, or is currently under an order of protection.[11] Unsafe storage of assault weapons is a misdemeanor.

Bans the Internet sale of assault weapons.

SAFE ACT

Increases sentences for gun crimes, including upgrading the offense for taking a gun on school property from a misdemeanor to a felony.[12]

Increases penalties for shooting first responders (Webster provision) to life in prison without parole.

Limits the state records law to protect handgun owners from being identified publicly

SAFE ACT

Requires pistol permit holders or owners of registered assault weapons to have them renewed at least every five years.

Allows law enforcement officials to pre-emptively seize one's firearms without a warrant or court order when there is probable causethe individual is mentally unstable or intends to use the weapons to commit a crime.

SAFE ACT

Skretny suit: 7 round limit struck down.

Provides that local criminal courts shall treat and retain persons aged 16 and 17 who commit certain prostitution offenses as PINS proceedings.

Chapter 556

Chapter 546A public adjuster is an insurance claims adjuster who advocates for the policyholder

in appraising and negotiating a claimant's insurance claim.

(s) (1) Every public adjuster shall have an affirmative duty to act on behalf and in the best interests of the insured when negotiating for or effecting the settlement of an insurance claim for the insured or other- wise acting as a public adjuster. (2) (A) No public adjuster shall receive any compensation, either directly or indirectly, for a referral of the insured to an individual or entity for services, work or repairs, relating to any insurance claim for which the public adjuster represents the insured or has negotiated or effected a settlement, unless the compensation is prominently and clearly disclosed to the insured in the written memorandum described in subsection (p) of this section.

Chapter 538(c) Disposition to surviving spouse who is not a United States citi-

zen. In the case of an estate where a federal estate tax return is not required for federal estate tax purposes, a disposition to a surviving spouse that would qualify for the federal estate tax marital deduction under section 2056 of the internal revenue code if not for the limita- tion imposed by subsection (d)(1) of such section shall nonetheless be treated as qualifying for the federal estate tax marital deduction for purposes of computing the tax imposed by section nine hundred fifty-two of this part, without requiring that such disposition pass to the surviving spouse in a qualified domestic trust as required for federal purposes by internal revenue code section 2056(d)(2).

Chapter 531

If asked by the impounding organization (SPCA) DA can ask for bond in animal cases.

Chapter 526

Adds identity theft, larceny and coercion to those offenses over which criminal and family courts have concurrent jurisdiction when involving family or household members

Chapter 480

Provides that communications or contact between protected parties with a party against whom an order of protection is issued shall not affect the validity of such order.

The order of protection shall also contain the following notice: "This order of protection will remain in effect even if the protected party has, or consents to have, contact or communication with the party against whom the order is issued. This order of protection can only be modified or terminated by the court. The protected party cannot be held to violate this order nor be arrested for violating this order.".

Chapter 467

Prohibits the unsolicited mailing of convenience checks to consumers without the express consent of the consumer.

Chapter 427, The Uniform Guardianship and Protective Proceedings Act

Establishes a uniform set of rules for determiningjurisdiction between multiple states in guardianship cases. Oftentimes, guardianship or protective proceedings must be initiated in a second state because of the refusal of financial institutions, care facilities, and the courts to recognize a guardianship or protective order issued in another state. Before the creation of the Act, guardians appointed in another state had to commence a second action in a New York state court to re-establish incapacity and the need for the appointment of a guardian.

This often was a lengthy, expensive and emotional process. New York state courts are now permitted to recognize a guardianship order from another state, including that court’s determination of incapacity and the appointment of the guardian. The Act establishes a mechanism by which New York state courts can accept guardianship or conservatorship transferred from another state as well as transfer guardianship or conservatorship to another state without a separate action.

Chapter 388: Hannah’s LawAmends New York’s medical insurance law to cover the cost of enteral formulas.

Eosinophilic esophagtis is an inflammatory condition where the esophagus becomes filled with eosinophils, a type of white blood cell. Children with this disorder can only obtain nourishment from expensive enteral formulas or feeding tubes.

Previous insurance law covered the cost of enteral formulas only under conditions that require tube feeding. The law amends the requirement that the formula to be covered with or without tube feeding.

Chapter 372: Land Banks

Land banks are not-for-profit corporations created to take control and redevelop vacant

or abandoned properties to where they can better serve the public interest.

Chapter 372 Provides that a land bank may tender a bid on sales of property made pursuant to public sale, county charter, city charter, administrative code or special law, when no municipality elects to do so.

Chapter 371

Creates a rebuttable presumption that visitations by rapists who conceived child by their crime is not in the best interests of the child.

Chapter 306In a residential foreclosure action, Chapter 306 requires that the

complaint shall be accompanied by a certificate, signed by the attorney for the plaintiff, certifying that the attorney has reviewed the facts of the case and that, based on consultation with representatives of the plaintiff identified in the certificate and the attorney's review of pertinent documents, including the mortgage, security agreement and note or bond underlying the mortgage executed by defendant and all instruments of assignment, if any, and any other instrument of indebtedness including any modification, extension, and consolidation, to the best of such attorney's knowledge, information and belief there is a reasonable basis for the commencement of such action and that the plaintiff is currently the creditor entitled to enforce rights under such documents.

Chapter 202

Provides new telephone numbers without charge for certain victims of domestic violence.

Chapter 174: The Upstate New York Gaming Economic Development Act of 2013

Establishes our destination gaming resorts in Upstate New York and boost tourism and economic development in communities across the region

Chapter 172

Provides that an assault of a child where the defendant has a previous conviction for an assault of a child shall be aggravated assault.

Assault 1st Degree.

Chapter 162

Increases penalty for killing or injuring a police animal from class A misdemeanor to class D felony