E SUFFOL K L AWYER TH - land title la · 2019-09-04 · DEDICATED TO LEGAL EXCELLENCE SINCE 1908...

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 Vol. 28 No. 4January 2013website: www.scba.org

SUFFOLK LAWYERTH

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THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

______________________By Lance R. Pomerantz

A recent Florida case caused quite a stiramong the land title bar nationwide. Thecourt held that documents that appearedin the public records for only 73 minutes

afforded constructive notice to a subse-quent buyer and lender, even though theirtransactions occurred more than threeyears later. Mayfield, et al. v. First CityBank Of Florida, 95 So.3d 398 (2012).

The Mayfield CaseIn 2006, BluewaterReal Estate conveyedproperty to Wright &Associates. In connec-tion with the purchase,Wright & Associatesgave a mortgage toFirst City Bank. Thedeed and the mortgagewere soon delivered tothe County Clerk’soffice where they each were endorsed with a“register number,” and entered into the com-puterized recording system. Shortly afterentering the documents in the computer, theclerk independently realized that she hadmade an error in the recording process and“voided” the deed and mortgage from theofficial records. After being voided, theywere not discoverable by a search of the pub-lic records. The clerk intended to re-recordthe documents after correcting the error, butfailed to do so and mistakenly recorded sim-ilar instruments concerning another parcelof property instead. As a result, the Wright& Associates documents appeared in the

PRESIDENT’S MESSAGEBAR EVENTSSCBA reaches out to

victims of Sandy____________________By Arthur E. Shulman

As I write this article in the beginning of December,there are less than six months to go for my term ofoffice.I recall the 2011 summer into autumn when Long

Island was visited by Hurricane Irene, an earthquakeand October snow squalls. So not to be lulled into complacency by themild winter that ensued, as summer 2012 segued into autumn, Long Islandand the entire tri-state region were pummeled by an unusually late-seasontropical storm followed by a freak early November snowfall.The Bar Association and many of our members suffered through the

devastation which left many of us at the very least without power, heat,telephone and internet service and long lines at gas stations, and at theworst, with destroyed or damaged homes, businesses and cars, fallingtrees and flooding, leaving many unable to live in their homes and workat their offices and facing financial distress. In response to this devasta-tion, the Bar Association partnered with Touro Law School as well as theNew York State Bar Association (NYSBA), to arrange for attorneys to betrained in the various legal practice areas that many of our own membersas well as the public need to be counseled in to deal with problems thatarose as a result of the storm.Our bar arranged for two clinics to be held at our center in December to

give advice to the public in dealing with such issues as landlord-tenant,FEMA, insurance law and other areas that needed to be addressed by bothour members and the public. These clinics were staffed by volunteer mem-bers who obtained training through a free seminar put on by the NYSBA.

Voiding recorded instruments

(Continued on page 21)

PhotobyBarry

Smolow

itz

Suffolk County Administrative Judge C. Randall Hinrichs, left, Allison Shields, JudgeVincent Martorana, Judge William Rebolini, and SCBA President Arthur Shulman atthe annual SCBA Holiday Party. (See more photos on page 14)

Arthur Shulman

Lance Pomerantz

FOCUS ON

CRIMINALCOURTS

SPECIAL EDITION

INSIDE…JANUARY 2013

FOCUS ONCRIMINAL COURTS

Ct must follow counsel’s directions..6

When handcuffing is an error ...........5______________________________

Get involved with lawyer referral.....3Meet your SCBA colleague ..............3

Restaurant Review ..........................18Book Review ..................................19

SCBA photo album .........................14Freeze Frame...................................15______________________________Legal Articles

American Perspectives....................20Bench Briefs......................................4Commercial Litigation ....................17Consumer Bankruptcy.....................13Court Notes .......................................6Education.........................................12Intellectual Property..........................9Landlord Tenant ................................8Practice Management......................10Pro Bono .........................................16Real Estate.......................................12Trusts and Estates (Cooper) ............10Trusts and Estates (Harper).............16Vehicle and Traffic Law..................17Views from the Bench.......................4Who’s Your Expert............................8______________________________

Academy News ...............................28Among Us .........................................7Calendar: Academy.........................28Calendar: SCBA................................2CLE offerings..................................24Future Lawyers Forum....................18

Judicial Swearing In and RobingCeremonyMonday, Jan. 7, 9 a.m.Touro Law CenterJudges to be robed include:Supreme Court Justice Elect – Richard Ambro,John J. LeoCounty Court Judges Elect – John Rouse,Hon. John IliouFamily Court Elect – Hon. Denise MoliaDistrict Court Judges – Hon. James McDonaugh,Hon. Derrick J. Robinson, Hon. Karen KerrDistrict Court Judge Elect – Richard Dunne,Janine Barbera-Dalli

Meeting of Committee Co-ChairsTuesday, Jan. 8, 6 p.m.At the bar center


THE SUFFOLK LAWYER — JANUARY 20132

SCBA

OF ASSOCIATION MEETINGS AND EVENTS

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

times and locations may be changed because of conditionsbeyond our control. Please check the SCBA website (scba.org) for

any changes/additions or deletions which may occur.For any questions call: 631-234-5511.

JANUARY 20132 Wednesday Appellate Practice Committee, 5:30 p.m., Board Room.7 Monday Annual Judicial Robing & Swearing-In Ceremony, 9:00 a.m.,

Touro Law School. District Administrative Judge C. RandallHinrichs will preside.Surrogate’s Court Committee, 6:00 p.m., Board Room.

8 Tuesday Council of Committee Chairs, 6:00 p.m., Great Hall.9 Wednesday Education Law Committee, 12:30 p.m., Board Room11 Friday Labor & Employment Law Committee, 8:00 a.m., Board Room.14 Monday Executive Committee, 5:30 p.m., Board Room.16 Wednesday Elder Law & Estate Planning Committee, 12:00 p.m., Great Hall.

Professional Ethics & Civility Committee, 6:00 p.m., BoardRoom.

28 Monday Board of Directors, 5:30 p.m., Board Room.29 Tuesday Solo & Small Firm Practitioners, 4:30 - 6:00 p.m., Board Room.

FEBRUARY 20134 Monday Executive Committee, 5:30 p.m., Board Room.6 Wednesday Appellate Practice Committee, 5:30 p.m., Board Room.11 Monday Surrogate’s Court Committee, 6:00 p.m., Board Room.13 Wednesday Education Law Committee, 12:30 p.m., Board Room.20 Wednesday Elder Law & Estates Planning Committee, 12:00 p.m., Great

Hall.Professional Ethics & Civility Committee, 6:00 p.m., BoardRoom.

25 Monday Board of Directors, 5:30 p.m., Board Room.26 Tuesday Solo & Small Firm Practitioners Committee, 4:30 p.m., Board

Room.

MARCH 20136 Wednesday Appellate practice Committee, 5:30 p.m., Board Room.8 Friday Labor & Employment Law Committee, 8:00 a.m., Board Room.11 Monday Executive Committee, 5:30 p.m., Board Room.12 Tuesday Surrogate’s Court Committee, 6:00 p.m., Board Room.13 Wednesday Education Law Committee, 12:30 p.m., Board Room.18 Monday Board of Directors, 5:30 p.m., Board Room.19 Tuesday Solo & Small Firm Practitioners, 4:30 p.m., Board Room.20 Wednesday Elder Law & Estate Planning Committee, 12:00 p.m., Great Hall.

Education Law Committee, 12:30 p.m., Board Room.Professional Ethics & Civility Committee, 6:00 p.m., BoardRoom.

Calendar

Our Mission“The purposes and objects for which theAssociation is established shall be cul-tivating the science of jurisprudence, promoting reforms in the law, facilitatingthe administration of justice, elevating the standard of integrity, honor andcourtesy in the legal profession and cherishing the spirit of the members.”

Arthur E. Shulman .............................................................................................PresidentDennis R. Chase .......................................................................................President ElectWilliam T. Ferris III ..........................................................................First Vice PresidentDonna England .............................................................................Second Vice PresidentJohn R. Calcagni................................................................................................TreasurerPatricia M. Meisenheimer .................................................................................SecretaryMichael J. Miller .....................................................................................Director (2013)Hon. William B. Rebolini........................................................................Director (2013)Wayne J. Schaefer....................................................................................Director (2013)Thomas J. Stock.......................................................................................Director (2013)Hon. Andrew A. Crecca...........................................................................Director (2014)Diane K. Farrell .......................................................................................Director (2014)Hon. John Kelly.......................................................................................Director (2014)William J. McDonald...............................................................................Director (2014)Hon. James P. Flanagan ...........................................................................Director (2015)Allison C. Shields ....................................................................................Director (2015)Harry Tilis................................................................................................Director (2015)Glenn P. Warmuth....................................................................................Director (2015)Ilene S. Cooper ................................................................Past President Director (2013)Sheryl L. Randazzo..........................................................Past President Director (2013)Matthew E. Pachman .......................................................Past President Director (2013)Sarah Jane LaCova .............................................................................Executive Director

Suffolk CountyBarAssociation

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

E-MAIL: [email protected]

Board of Directors 2012-2013

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

Thomas More GroupTwelve-Step Meeting

Every 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 Newspapers,LLC, 149 Main Street, Huntington, NY 11743, under the auspices of the Suffolk County BarAssociation. Entered as periodical class paid postage at the Post Office at Huntington, NY and addi-tional mailing offices under the Act of Congress. Postmaster send address changes to the SuffolkCounty Bar Association, 560 Wheeler Road, Hauppauge, NY 11788-4357.

To Advertise inThe Suffolk Lawyer

Call

(631) 427-7000

SUFFOLK LAWYERLAURA LANEEditor-in-Chief

DOROTHY PAINE CEPARANOAcademy News

Leo K. Barnes, Jr.Maria Veronica BarducciAlison Arden BesunderGene BolmarcichJohn L. BuonoraDennis R. ChaseElaine ColavitoIlene S. Cooper

James G. FouassierJustin GiordanoCandace GomezRobert M. HarperDavid A. MansfieldPatrick McCormickLance R. PomerantzCraig D. RobinsAllison C. Shields

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.

PublisherLong Islander Newspapers

in conjunction withThe Suffolk County Bar Association

The Suffolk Lawyer is published monthly, except for the months of Julyand August, by The Long Islander Newspapers under the auspices ofThe Suffolk County Bar Association.© The Suffolk County BarAssociation, 2011. 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

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

Website: www.scba.org

E.Mail: [email protected] forAcademy news: [email protected]

TH

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Join Our LeadershipThe Nominating Committee of the Suffolk County Bar Association is seek-

ing involved leaders interested in running for the following positions: presi-dent elect; first vice president; second vice president; treasurer; secretary; four(4) directors (terms expiring 2016) and three (3) members of the NominatingCommittee (terms expiring 2016). The Nominating Committee is acceptingrésumés from that interest in these leadership positions. Résumés may be sentto the Executive Director at the SCBA, marked for the NominatingCommittee.The members of the Nominating Committee are: John L. Buonora, Ilene S.

Cooper, Hon. John M. Czygier, Jr., Annamarie Donovan, Scott M. Karson,Hon. Peter H. Mayer, Matthew E. Pachman, Sheryl L. Randazzo and Ted M.Rosenberg.

-- LaCova

THE SUFFOLK LAWYER — JANUARY 2013 3

_____________By Laura Lane

How did you end up in Vietnam? Wereyou drafted? No. I enlisted in the NavyReserves while a sophomore in collegebecause my Dad wanted me to be in theNavy as far back as I can remember. WhenI graduated from college in 1968 I alsograduated from officer candidates’ school.I’ll never forget that Vice Admiral Clearysaid he was proud that seven of us hadenlisted.

Why did you enlist? I wanted to driveswift boats and I had to volunteer to go toVietnam first. I went through amphibioustraining, then onto language school whereI learned to speak Vietnamese and then tosurvival school.

Were you wounded while in Vietnam?I was caught in crossfire while on theBode River with 51 caliber machine gunfire on both sides and rocket fire. Wewere sitting ducks. I was injured andhospitalized in Japan. I went backthough.

Why? I didn’t want my Navy career toend that way. I was not ready to leave. If Iwas going to leave it would be on my con-ditions. I went back in 1970 and workedon the USS Hoel, a guided missiledestroyer, and that’s when I decided tobecome an attorney.

What led you to make that decision? Iwas concerned about what was going onin our country and the decisions made byour government and all of the protestsagainst the war. I wanted to contribute,

and realized that the best way was to goto law school.

But you didn’t go into government.How did you end up becoming a crimi-nal attorney? After law school I did civilwork for a firm in Queens and liked litiga-tion. I decided that the way to go was towork for the District Attorney’s office andwas hired in 1978 in Queens and SuffolkCounty.

You were still in the Navy during thistime, right? I stayed in the reserves andretired in the mid 1990s as a captain.

Do you believe that your experiences inthe Navy contributed to how you workas an attorney? Yes I do. It helped melook down the road to where I want to beand know how to develop a strategy to getthere. I always have a plan.

Criminal law has changed over theyears with technology. DNA technologyhad a dramatic impact on criminal lawwhile I was in the DA’s office and itbecame imperative to understand it and itsapplication to criminal law especially withrespect to identification of individualswhether by blood, saliva or other cells. Itwas exciting.

What do you like about being an attor-ney? I like people and I enjoy the chal-lenge of assisting them in the legal processwhether it be as a prosecutor or defenseattorney.

You worked for the Suffolk CountyDistrict Attorney’s office from 1978 to

2001 and then went over to the otherside accepting a job with BrackenMargolin Besunder, LLP. What’s thatlike for you after so many years of beingthe prosecutor? I am representing thekinds of people I used to prosecute. Onerole of a defense attorney is to challengethe prosecutor on every level of a case. Ienjoy challenging them.

What have you enjoyed in your role oftraining others as a prosecutor and alsoat the SCBA Academy? I was chosen totrain others because I’ve tried a lot ofcases and I’ve always liked it. I like shar-ing what I know and I think it is importantto share my experience and knowledgewith my colleagues. I enjoy trainingthrough the Academy both prosecutorsand defense attorneys.

Is there anything else you enjoy as anattorney? I enjoy being creative. I learneda long time ago that if you know the rulesof what you are doing, you are limitedonly by your imagination and creativity. Ibelieve you should not be limited by justone theory. If there is more than one theo-ry, use it.

Why would you recommend that some-one join the SCBA? You get to share.One thing I’ve enjoyed is asking questionsof each other on legal issues and helpingeach other professionally. You may getanother question in another area of lawand it’s nice to have someone you can call.The SCBA facilitates professional rela-tionships.

You are active in different committees

at the SCBA right? I was just appointedfor my second year term on the GrievanceCommittee. I work with some wonderfulattorneys in Suffolk. Our responsibility isto review actions by lawyers and deter-mine if they should be sanctioned or disci-plined. It has been an eye-opener.

Do you have any ideas on how attorneyscan avoid being in this terrible posi-tion? This feeds into my desire to providetraining to avoid some of the problemsattorneys can have if they are not familiarwith rules in practicing. I’m also on the18B Panel. We’ve increased the number ofattorneys eligible to represent individuals.

_______________By Rory Alarcon

A new firm faces the harsh reality thatfinding a good source of clientele is not aseasy as “hanging a shingle.” Fortunately,as SCBA members, we are entitled toenroll in the Lawyer Referral andInformation Service (“LRIS”) program,new and experienced alike.Thanks in no small part to the efforts ofadministrator Edith Dixon, the LRIS isbetter than ever, thanks to the effort of itsnew administrator, Edith Dixon.

LRIS program rulesFor the uninformed, the Lawyer Referraland Information Service is a service of theSuffolk County Bar Association wherebyclients are referred to participating attor-neys based upon their need and location inthe county. To be enrolled as a participat-ing attorney, a Bar Association membermust register annually, pay a nominal fee,and demonstrate that they are competentto handle matters that they are referred.All potential clients are screened througha program Administrator at the BarAssociation’s office in Hauppauge. Saidadministrator determines the client’sneeds, their location, and whether theclient can be assisted by a participatingattorney. If there are attorneys capable ofhandling the matter, the client is given anattorney’s name and phone number. If theclient cannot be assisted by an attorney,they are referred to a local agency or ser-

vice organization that can provide assis-tance.If the client calls the attorney and makesan appointment for a consultation, the par-ticipating attorney charges the client $25for a half hour consultation. At the end ofevery month, the participating attorney issent a list of all clients referred to them bythe LRIS. The attorney notes the clientswho consulted with them and forwards $25for each client to the BarAssociation. If theparticipating attorney does not consult withany referred clients, then that attorney doesnot send any fee to the Bar Association. Aparticipating attorney only pays the ‘con-sultation fee’ if the attorney actually has aconsultation with a referred client.Having researched various marketingmethods, I have come to the firm conclu-sion that no other form of ‘attorney adver-tising’ is as cost-effective. Enrollment feesare determined by years in practice ($50for those practicing five years or less,$100 for those practicing longer) and thenumber of practice areas that you wish toreceive clients from ($30 for each catego-ry / practice area). For the equivalent of$21 per month, a veteran attorney can belisted in five areas of law. An attorney inthat situation is likely to recover their costby retaining one client per year. I dare youto find any paid form of advertising that isless expensive.

New opportunities for a better LRISAs chair of the LRIS Committee, I am

often asked “What’s going on with LawyerReferral?” I am quite happy to answersuch questions by referring to EdithDixon.Edith was hired as the new administratorof the LRIS a few short months ago, andwas eager to improve the program. Duringour first meeting, Edith was happy to showme a list of ideas and proposals that shewants to discuss with the Bar Association’sBoard of Directors, all aimed at increasedattorney enrollment, marketing of the ser-vice to potential clients, and more even dis-tribution of referrals to all attorneys.Having worked for years as a paralegal inboth Manhattan and Suffolk, she under-stands how clients are retained and how todiscuss their concerns.Within a few months Edith and theSCBA administrative staff have institutedchanges that have made the program betterthan ever:• All lawyers who did not re-enroll in theprogram were contacted to discuss whythey did not continue to enroll.Discovering that many lawyers cited“lack of referrals,” Edith committed totracking the distribution of referrals toensure that the number of referrals perattorney is balanced throughout thecounty.• Edith personally contacted attorneysdelinquent in paying their registrationfees and has now ceased makingreferrals to those attorneys.

The LRIS also provides a listing ofattorneys that can be used for more thanjust referrals requested by the clientsthemselves. For example, Pro Bono orga-nizations often have clients whose incomeor circumstances preclude them fromreceiving pro bono representation. Uponrequest, those organizations are referred toLRIS attorneys.Recommendations have been made tothe SCBA Board of Directors forincreased exposure of the service:

• An LRIS flyer is being created for dis-tribution. It is our intention to distributesaid flyers to all local judges for distri-bution to pro se litigants seeking repre-sentation.• Targeting those most inclined to requirean attorney referral we are also seekingto have the flyers displayed in the localcourthouses.

If you are not already enrolled in theLRIS, now is the time to do it. Edith and Ireviewed the numbers together, and thesheer number of referrals has increased dra-matically. If you are not already a memberof the LRIS, or just want to talk with Edithabout the program, please give her a call atthe Bar Association during the week.

Note: Rory Alarcon is an attorney withoffices in Hauppauge in Bohemia. Hepractices Matrimonial Law, ForeclosureDefense and Consumer Law.

Meet Your SCBAColleague Willam Ferris,an Islandia criminal attorney, practices in state andfederal courts and also handles guardianships. In the Navy, he was on a guidedmissile destroyer in Vietnam when he decided to become an attorney.

William T. Ferris

New administrator establishes a renewed lawyer referral & information service


________________By Elaine Colavito

Suffolk County Supreme Court

Honorable Jerry Garguilo

Motion to dismiss complaint granted;tort of negligent entrustment requires thata party give or supply another person witha dangerous instrument; no duty owed bythe county beyond that owed to the publicat large.

In Viedya Sabrina Ferguson, as theAdministratrix of the Estate of RaymondFerguson, Jr., deceased and ViedyaSabrina Ferguson, individually v. DavidLaffer, Melinda Brady, Suffolk CountyPolice Department, Stan Xuhui Li, EricJacobson, Eric Jacobson, M.D., P.C., MarkC. Kaufman and Family Medical Practiceof Bay Shore, P.C., Index No.: 18641/12decided on November 21, 2012, the courtgranted the motion by defendants Countyof Suffolk and Suffolk County PoliceDepartment for an order dismissing thecomplaint.The court noted the relevant facts as fol-

lows: on June 19, 2011 the defendant DavidLaffer shot and killed four people, includ-ing plaintiff’s decedent, during the courseof a robbery in which he stole prescriptiondrugs from a pharmacy in Medford. Thegun used by Laffer was apparently licensedby the defendant Suffolk County PoliceDepartment.The plaintiff commenced this action for

wrongful death against the moving defen-dants alleging that in January of 2011, apolice officer investigated the defendantfor the crime of grand larceny, based upona complaint that he had stolen money fromhis mother. The defendant admitted that hehad stolen the money and admitted that hewas addicted to prescription drugs. Theofficer notified the pistol license bureaubut the complaint alleges that the countyfailed to take any steps to revoke the

license or confiscate the gun.Here, the plaintiff contendedthat she was proceeding on atheory of negligent entrustmentbased upon the county entrust-ing the defendant with a danger-ous instrument and granting hima pistol license. In granting thedefendants’ motion, the courtpointed out that the tort of neg-ligent entrustment required thata party give or supply anotherperson with a dangerous instrument. Here,the court found that the plaintiff had notcited any case, and none had been found inwhich this theory had been applied solelyupon the issuance of a license or permit.The court reasoned that it had been heldthat the failure of the Department ofMotor Vehicles to revoke a motor vehicleregistration could not provide a basis forliability against the sate after a motorvehicle accident. Since the gravamen ofplaintiff’s complaint was that the countyfailed to revoke the pistol license or con-fiscate the weapon, which is a governmen-tal function, and plaintiff had not alleged aspecial relationship, there was no dutyowed by the county beyond that owed tothe public at large. Further, the courtpointed out that the decision whether toissue or revoke a license to possess afirearm was discretionary and may notform a basis for liability against a munici-pality.

Honorable Arthur G. Pitts

Motion to dismiss based upon lack ofpersonal jurisdiction denied; due dili-gence was satisfied for the purposes ofCPLR §308(4) with three visits on differ-ent occasions and at different times;defendant’s bare denial of service wasinsufficient to rebut the prima facie proofof proper service.

In Melva Otero v. Town of Islip, Marie

Carranza and Jose Romero,Index No.: 28659/08, decidedon February 7, 2012, the courtdenied the defendant’s motionfor an order pursuant to CPLR§3211(a)(8) dismissing plain-tiff’s complaint as against himfor lack of personal jurisdictionor, in the alternative, for anorder pursuant to CPLR §317and CPLR §5015 vacating theorder granting leave to enter a

default judgment against him, and forleave to serve and file an answer. Thecourt noted that according to the processserver’s affidavit dated Aug. 15, 2008revealed that she made three attempts, onFriday, Aug. 1, 2008 at 7:40 p.m.,Saturday, Aug. 2, 2008 at 7:13 a.m. andTuesday, Aug. 5, 2008 at 3:33 p.m., to per-sonally serve the summons and complainton defendant Romero at the subjectaddress pursuant to CPLR §308(1) orCPLR §308(2), then affixed the summonsand complaint to the door and mailed acopy on August 12, 2008 to the subjectaddress. The affidavit of service containedthe statements that the address was con-firmed with a neighbor and that servicewas made in that manner after the depo-nent was unable, with due diligence, toserve the witness/defendant in person, andan attempt to locate the defendant’s placeof employment. Here, the court found thatdue diligence was satisfied for the purpos-es of CPLR §308(4) with three visits ondifferent occasions and at different times.The defendant’s bare denial of service wasinsufficient to rebut the prima facie proofof proper service pursuant to CPLR§308(4) created by the process server’saffidavit.

Cross-motion to dismiss the complaintgranted; subject accident occurred afterthe enactment of the Graves Amendment.

In Thomas C. Romero v. Concrete

Accessories, Inc., The Hertz Corporationand Victor W. Brockstader, Index No.:45286/10, decided on Sept. 26, 2012, thecourt grant defendant The HertzCorporation’s cross-motion to dismiss thecomplaint. In granting the application, thecourt noted that it was undisputed that thedefendant, The Hertz Corporation was theleasor of the vehicle operated by thedefendant, Brockstader at the time of thesubject accident. The court noted that pur-suant to 49 U.S.C. Section 30106 (GravesAmendment) vicarious liability claimsbased upon ownership as to leased or rent-ed automobiles regarding any action com-menced after the enactment date of thesection, Aug. 10, 2005 were barred. Here,the court found that the subject accidentoccurred after the enactment of the GravesAmendment and accordingly, the Hertz’sCorporation’s motion to dismiss the com-plaint was granted.

Motion for summary judgment denied;action commenced within statute of limita-tions; statute of frauds was inapplicable;and no prima facie showing of entitlementto judgment as a matter of law.

In Cruz Angel Vega v. Brian Pizetzky,Kevin Pizetzky, and Paul Pizetzky, IndexNo.: 10846/10, decided on September 12,2011, the court denied the defendantsmotion for summary judgment. Here, thedefendants moved for summary judgmentalleging that the within action was timebared pursuant to CPLR §213(2), barredpursuant to the statute of frauds and theplaintiff’s claim was without merit andunsupported by clear evidence. The defen-dants further moved for dismissal on thegrounds that the plaintiff had failed tomeet the evidentiary threshold supportinga cause of action for a constructive trust.With regard to that portion of the motionthat sought summary judgment, the courtpointed out that it was well settled that

Elaine Colavito

_________________________By: Hon. Stephen L. Ukeiley

During your next visit to your primarycare physician (“PCP”), you may noticesome significant changes. For example,mandatory electronic medical recordkeeping has been implemented in manyoffices. As a result, your PCP may spend asignificant portion of your visit looking ata laptop computer.Your PCP may also be less inclined to

discuss apparently innocuous ailments notscheduled for the day’s visit. With theadvent of electronic medical records, PCPshave relinquished significant control overbilling and reimbursements. In other words,whether you discuss the scheduled ailmentor your entire list of ailments, the PCP’sreimbursement for a routine physical willbe the same. Business acumen, however,may only scratch the surface for the reluc-tance to engage in such discussions.

Medical Malpractice Claims in NewYorkRising health care costs, which include

malpractice claims, have obviously gar-nered increased attention over the past fewyears. NewYork has the highest number ofmedical malpractice cases and claims paidwithin the country. See Med MalLitigation in New York: Time to Change

the Status Quo, Hon. Ann Pfau,N.Y.L.J., at 3 (June 14, 2012). In2011, approximately $627 mil-lion was paid on 1,379 medicalmalpractice claims in NewYork,for an average of $454,726 perclaim. Id.1It is well established that a

duty of care is required for aphysician to be liable for med-ical malpractice. Cregan v.Sachs, 65 A.D.3d 101 (App.Div., 1st Dep’t 2009). This is a questionfor the court and generally an impermissi-ble topic for expert opinion. McNulty v.City of New York, 100 N.Y.2d 227 (2003);Dallas-Stephenson v. Waisman, 39 A.D.3d303 (App. Div., 1st Dep’t 2007). Thepatient must also demonstrate the physi-cian departed from good and acceptedstandards of practice and that such depar-ture was the proximate cause of the result-ing injury. Koeppel v. Park, 228 A.D.2d288 (App. Div., 1st Dep’t 1996).The critical issue is whether the physi-

cian treated the patient for the ailment,and, if so, the “[e]xtent to which the[physician] advised, and the plaintiffrelied on the advice.” Burtman v. Brown,97 A.D.3d 156, 161 (App. Div., 1st Dep’t2012). In other words, although there maybe a general duty of care, a physician’s

duty may be limited to the spe-cific functions performed by thephysician and the patient’sreliance. Id., at 161-62.

Duty of CareThe issue in Burtman was

whether the PCP was partiallyliable for an ailment treated byanother physician, a specialist.The facts of the case, althoughrelatively straightforward, are

indicative of the difficulties many PCPsencounter during a brief office visit.In August 2005, the plaintiff, Dr. Ruth

Burtman, a licensed psychologist, visiteddefendant PCP Dr. Elizabeth Beautymanfor a physical exam. Plaintiff was threemonths pregnant at the time and under thecare of an obstetrical practice group. Id., at158-59. Approximately six weeks later, amass, which was neither present nor dis-cernible during the initial visit, was detect-ed in the upper left quadrant of plaintiff’sabdomen. Id., at 160-62. The radiologicalreport suggested the mass was a benignfibrolipoma, and, as a result, the obstetri-cal practice opted to take a “wait andwatch” approach.In January 2006, plaintiff again visited

defendant but this time for a sprainedankle. Although a copy of the radiological

report had been sent to the PCP, the PCPdid not discuss the report or the mass withthe plaintiff. Id., at 158-59. A few monthsafter giving birth, plaintiff visited anotherphysician due to a tick bite. Several monthslater, the mass, which had grown to 10 cm(approximately 4 inches), was diagnosedas a malignant liposarcoma requiring a“[w]ide radical excision”. Id., at 159.Following commencement of the

patient’s malpractice lawsuit, several ofthe defendant physicians moved for sum-mary judgment. The trial court denied thePCP’s motion because the “thoroughness”of her examination and whether a biopsyor other testing should have been orderedposed questions for the trier of fact. Id.The trial court further concluded the PCPhad, at minimum, a duty to discuss thereport with plaintiff and suggest a follow-up biopsy. Id., at 160.

Duty of Care where another physicianis treating the same ailmentOn appeal, the issue was whether Dr.

Beautyman, as plaintiff’s PCP, had a dutyto recommend additional testing despitethe fact another physician was treating themass. The Appellate Division, FirstDepartment answered in the negative.The Appellate Division held that the

Stephen L. Ukeiley

BENCH BRIEFS

VIEWS FROM THE BENCH



Primary Care physicians – limiting the duty of care


____________

A court conducting a bench trial may notkeep the defendant shackled or handcuffedwithout a particularized on the record find-ing justifying the use of restraints. This rul-ing which draws on cases involving hand-cuffs and security measures in jury trials,therefore, raises some questions about howcriminal cases proceed in the criminalcourts in Suffolk County.In People v. Best,1 the Nassau County

District Court held a bench trial beforewhich defense counsel object-ed to his client, charged withendangering the welfare of achild, was handcuffed in back.The court ordered the defen-dant handcuffed in front toaddress the defense objection.After the District Court con-victed defendant for offering atwelve-year-old victim $50 toexpose himself to defendant,2 defendantappealed.The Appellate Term affirmed. In refer-

ence to defendant’s argument on appealabout the handcuffing in front, theAppellate Term noted, “There was noobjection by the defense that such contin-uing restraint violated” defendant’s rights.In other words, the Appellate Termrequired that defense counsel objectionnot only to the handcuffing in back, butalso, after the trial court ruled that thedefendant should be handcuffed in front,to the handcuffing in front. Then, theAppellate Term held that no inherent prej-udice existed because a judge would notbe swayed by the handcuffs the same waythat a jury might be.3The Court of Appeals reached the merits

of the issue without comment regardingpreservation, therefore suggesting thatdefense counsel’s objection — whatever itwas, and neither decision reports what itwas — was sufficient to preserve the issue.The Court of Appeals held that trial courterred saying, “We hold that the rule govern-ing visible restraints in jury trials applieswith equal force to non-jury trials and thatthe District Court erred in failing to state abasis on the record for keeping defendanthandcuffed throughout these proceedings.”4

This holding is consistentwith the United StatesSupreme Court’s holding inDeck v. Missouri5 which setforth three principles thats h a c k l i n g / h a n d c u f f i n goffends: 1) preserving thepresumption of innocence; 2)ensuing defendant can mean-ingfully participate; and 3)

maintaining the judicial process’ dignity.6The Court of Appeals found these threeprinciples equally offended in a bench trialsetting of a restrained defendant as in ajury trial, and requires, as do Deck and theNew York State jury trial handcuffingcase, People v. Clyde, 7 that defendants beunrestrained in the absence of a clear, casespecific, on the record determination ofneed for restraints.While Deck refers to the “guilt phase”

of a criminal proceeding, the three princi-ples underlying Deck, Clyde and Beststand equally applicable during confer-ences and more importantly, arraignmentswhere a common and permissible argu-ment centers about the prosecution’s like-lihood of success on the merits.8 Becausea particularized case-by-case justification

for the restraints must be made on therecord under these cases, a generalizedstatement about shortage of court officersto provide adequate security for anunhandcuffed arraignment would seem tofall short of the Constitutional mark.

Best is also noteworthy because theCourt of Appeals disagreed with theAppellate Term’s holding regardingjudges’ ability to overlook and remainunaffected by the restraints, be they infront or in back. The Court ofAppeals saidthe handcuffing could even “unconscious-ly” affect the judge.This reasoning stands in sharp contrast

to People v. Moreno9 where a judgewarned that, as a fact finder in a benchtrial, he would know more than would ajury because of a Sandoval hearing,Despite that and other warnings from thebench and Mr. Moreno’s attorney’s advice,the defendant proceeded to waive a jury;conviction followed. The Court of Appealsaffirmed because “a Judge ‘by reasons of…learning, experience and judicial disci-pline is uniquely capable of distinguishingthe issues and of making an objective

determination.’”10 Best seems to acknowl-edge that the presumption of Moreno andsimilar cases11 that judges can distinguishin a way lay juries cannot may have lessvitality than once thought which furthersuggests that Best points toward a reduc-tion of physically restraining measures inthe absence of case-by-case particularizedfindings of need.

1. — NY3d —-, 2012 NY Slip Op. 7855[November 20,2012].2. —- Misc.3d —-, 2012 NY Slip Op.50826[U] [App. Term, May 9, 2011].3. Id.4. —-NY3d —-, 2012 NY Slip Op. 7855, at*1-2 [November 20, 2012].5. 544 US 622 [2005]6. 544 US at 630-1; People v. Best, —-NY3d ___, 2012 NY Slip Op. 7855, at *3.7. 18 NY3d 145 [2011].8. CPL 510.309. 70 NY2d 403 [1987]10. 70 NY2d at 406, quoting People v.Brown, 24 NY2d 168, 172.11. For example, People v. Kozlow, 45 NY3d913 [2d Dep’t 2007].

Handcuffing defendant during bench trial ruled error

Thanks!!Thank you SCBA member for sending us every yearthe gorgeous Christmas wreath which adorns ourheadquarters. We hope our members enjoyedHanukkah, Christmas, Kwanzaa and wish you all avery happy and healthy NewYear!!

Thank you SCBA member, and you know who youare, for donating the flag pole and providing us witha fresh new flag, the symbol of freedom, every year.

FOCUS ON

CRIMINALCOURT

SPECIAL EDITION


The Court of Appeals in People v.Colville,1 divided the world of decisionsin criminal defense into two pigeonholes:fundamental decisions, reserved to theclient; and strategic decisions, reserved tothe lawyer. Decisions about whether tosubmit lesser included offenses to the juryfall within the strategic category accord-ing to Colville, and a trial court’s failure tofollow the lawyer’s desire to so submit,even in the face of defendant’s objections,denies the defendant “the expert judgmentof counsel to which the Sixth Amendmententitles” the defendant.2Colville, however, gives nothing to

enable counsel, client or court to classifyparticular decisions arising in the courseof criminal cases as either fundamental orstrategic. Thus, much like Crawford v.Washington3which established a categoryof testimonial hearsay without definingthe characteristics of “testimonial,”Colville reinforces or creates a dichoto-mous taxonomy of decision-making allo-cation, fundamental and strategic, withoutgiving any indication of what facts control

the classification of a particular categoryof decisions.Colville clearly puts a layer of higher

ranking, judge-made terms over the pri-vately ordered contract for legal servicesthat a lawyer and client may make. Giventhe fundamental/strategic dichotomy, andthe reversal in Colville, thedefendant/client’s right to self-determination is all but oblit-erated, a point Judge Jonesraises in dissent. Because thedefendant has the most to lose,he should “have the ultimateauthority regarding the choic-es he/she makes (even ifagainst the advice ofcounsel).4 The lawyer, meanwhile, can nolonger duck behind the rationale, “Theclient went against my advice.”Moreover, Colville requires judges to

make more inquiry into the lawyer-clientrelationship to insure that lawyers are notfolding to client desires when strategic, asopposed to fundamental, decisions areinvolved. Colville, significantly, does not

hold that defense counsel failing tocause/insist on the lesser included offensesbeing submitted was “ineffective.” Instead,Colville holds that “the Court, by deferringto the defendant,” denied the defendant the“expert judgment” of counsel. This lan-guage suggests that where the record

reflects disagreement betweencounsel and client as therecord did inColville, the courtmust intercede to insure thatthe desire of the lawyer con-trols for all strategic decisionsand that the desire of the clientcontrols for all fundamentaldecisions. Presumably, then,the court would be involved in

a second-level analysis on strategic deci-sions to insure that the now-judicially-enforced strategic decision is not ineffec-tive assistance of counsel.Colville, stands clothed in Sixth

Amendment fabric but reveals the nakedtruth that the Court of Appeals recognizesthat jury verdicts in criminal cases do notnecessarily comport with the evidence,and, instead, reflect jury bargaining in acomplex negotiation to arrive at a unani-mous verdict. The dissent calls out thepossibility that submission of lesserincluded offenses “signal[s] that defen-dant is seeking a compromised [sic] ver-dict.”5 The dissent also remarks that in thiscase, the signal may shift the jury’s focusoff the justification defense (completeexoneration) and onto mens rea (lessersentence/culpability) leading to a higheroverall conviction rate, a point that overforty years of social science research intothe dynamics of plea bargaining also con-

tends is a grave illness in the criminal jus-tice system.6 The majority also acceptsthat the lesser included offenses may shiftthe jury’s focus and gives no reason whythis undisputedly liberty-affecting deci-sion is not “fundamental.” The dissentleaves us with the weak outcome-determi-native test of “the defendant has the mostto lose,” a legal framework as unsatisfac-tory here as it was in Hanson v. Denckla7with the substantive/procedural dichoto-my in civil cases.Colville therefore encourages greater

judicial involvement in policing the attor-ney-client relationship in criminal cases,just as prosecutorial misconduct oversightencourages greater judicial involvementin policing the prosecutorial function, allof which, together provide insight into thejudiciary’s views of the overall quality ofcriminal court advocacy, particularlywhen the appellate judiciary chooses notto share the controlling factors by whichthe day-to-day players can guide conduct.

1. —- NY3d—-, 2012 NY Slip Op. 07047[October 23, 2012]2. Id. at *9 at n. 1.3. 541 US 36 [2004].4. 2012 NY Slip Op. 07047 at * 11.5. 2012 NY Slip Op. 07047 at * 11.6. See, e.g., Blumberg, Abraham S., The

Practice of Law as a Confidence Game:Organizational Cooptation of a Profession,1 Law & Soc’y Rev. 15 (1967); Bar-Gill,Oren & Ben-Shahar, Omri, The Prisoners’(Plea Bargain) Dilemma, 1 J. of LegalAnalysis 737 (2009).7. 357 US 235 (1958).

Court must follow counsel’s directions even when client disagrees

______________________By Ilene Sherwyn Cooper

Attorney resignationsThe following attorneys, who are in goodstanding, with no complaints or chargespending against them, have voluntarilyresigned from the practice of law in theState of NewYork:Harvinder Singh AnandNadia AsancheyevMary Virginia BartaEileen CourtneyVirginia M. CoyneCarol Anne ElewskiColin A. FiemanLeonard GrunsteinLauren M. HandHugh J. HelfensteinHarry C. Jones IIIWallace M. KainPaul C. KaufmanIrving D. KrawetJudith LewisDavid Eugene LovejoyRonald H. MandelClaire Lasky PelleritoStephen PriceGerald ReichDon William SchmitzLoretta TownsendJanee Woods WeberTracey Beth WollenbergElliot Zemek

Attorney reinstatementsgrantedThe application by the follow-ing attorneys for reinstatementwas granted:

Avi J. KastenScott M. Zucker

Attorney resignations grant-ed/disciplinary proceedingpending:

Frederick G. Meyer: By motion, therespondent sought to voluntarily resign.The record revealed that he was the sub-ject of a disciplinary proceeding againsthim that the court had authorized theGrievance Committee to institute. Therespondent currently resides in Coloradoand last practiced law in New York in orabout December 1978. He has not prac-ticed law in any jurisdiction since or aboutJuly 2005. The Grievance Committee tookno position with respect to the application.In view of the foregoing, the respondent’sresignation was accepted and his namewas removed from the roll of attorneys inthe State of New York, without prejudiceto an application for reinstatement.

Attorneys Suspended:Steven Machat: Application by theGrievance Committee to discipline the

respondent based upon discipli-nary action taken against him bythe State of California. The Stateof California placed the respon-dent on probation for a period ofthree years, on condition that hebe suspended for a period of twoyears and submit satisfactoryproof of his rehabilitation. Thediscipline imposed was based ona finding that respondent hadwillfully failed to maintain funds

entrusted to his charge. Respondent wasnotified of the application but failed todefend or submit a verified answer.Accordingly, under the totality of circum-stances, respondent was suspended from thepractice of law for a period of two years.

Howard M. Sklar: By order of the court,dated November 29, 2012, the applicationby the Grievance Committee to suspendthe respondent and for authorization toinstitute a disciplinary proceeding againsthim was granted and the matter wasreferred to a Special Referee to hear andreport based on respondent’s failure tocooperate with the Grievance Committee,the committee’s investigation into respon-dent’s professional misconduct, therespondent’s substantial admissions underoath, and the uncontroverted evidence inthe record of professional misconduct.

Attorneys disbarred:Robert I. Oziel, admitted as RobertIsrael Oziel: On January 26, 2012, therespondent pled guilty to three counts ofgrand larceny in the third degree, a class Dfelony, and was sentenced to five yearsprobation and restitution. The GrievanceCommittee moved to strike the respon-dent’s name from the roll of attorneysbased upon his felony conviction. Byvirtue of his conviction of a felony, therespondent ceased to be an attorney andwas automatically disbarred from thepractice of law in the state of NewYork.

John Arnold Reynolds: On January 4,2012, the respondent pled guilty to thecrime of scheming to defraud in the firstdegree, a class E felony. The GrievanceCommittee moved to strike the respon-dent’s name from the roll of attorneysbased upon his felony conviction. Byvirtue of his conviction of a felony, therespondent ceased to be an attorney andwas automatically disbarred from thepractice of law in the State of NewYork.

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 is pastpresident of the Suffolk County BarAssociation and a member of the AdvisoryCommittee of the Suffolk Academy of Law.

Ilene S. Cooper

COURT NOTES

FOCUS ON

CRIMINALCOURT

SPECIAL EDITION

The Suf folk Lawyer wishes to thankCriminal Court Special Section EditorHarry Tilis f or contributing his time,ef f ort and expertise to our January issue.

Harry Tilis

Advertise inThe Suffolk LawyerCall 631.427.7000


On the Move…Paul F. Millus joined Meyer, Suozzi,

English & Klein, P.C. Of Counsel to thefirm’s Litigation and Dispute Resolutionand Employment Law practice groups.

CongratulationsTo SCBA Members David R. Okrent,

Nancy Ellis and SCBAHonorary MemberAnthony V. Curto who were recognizedby Long Island Business News LeadershipIn Law Awards.

To Jennifer Cona, managing partner atGenser Dubow Genser & Cona (GDGC),Melville, who was recently honored withthe Long Island Business News“Leadership in Law” Award.

To Deborah Post, Associate Dean forAcademicAffairs and Faculty DevelopmentProfessor of Law, Touro Law Center andour dear friend Barbara Kraut, ExecutiveAssistant/Paralegal of Nassau County BarAssociation who were also recognized forthis prestigious award.

To he WWII Veteran Judges of theEastern District of New York who werehonored on December 5 by the FederalBar Association Eastern District, at theAmerican Airpower Museum at RepublicAirport – Hon. I. Leo Glasser, Hon.Arthur D. Spatt, Hon. Thomas C. Platt,Hon. Jack B. Weinstein and Hon.Leonard D. Wexler.

To Nancy Burner who has been namedby New York Super Lawyers Magazine,

published by Thomson ReutersLegal, as one of the top womenattorneys New York.

Karen J. Halpern, RN, Esq.,Of Counsel to the firmLawrence, Worden, Rainis &Bard, PC was presented with theOutstanding Advocate Award atthe 31st Annual Conference ofThe American Association ofNurse Attorneys [TAANA] onOctober 26, in New Orleans, Louisiana.The award was based upon Ms. Halpern’srepresentation of nurses and other health-care professionals involved in the licensureand disciplinary process, and her mentor-ship of other Nurse Attorneys in the orga-nization. Ms. Halpern currently serves asthe President of the New YorkMetropolitan TAANA Chapter and is co-chair of the National LitigationCommittee.

SCBA member Lawrence Raful whohas been appointed Director of the NewYork State Courts’ Pro Bono Initiative.The East Islip resident is a past dean andprofessor at Touro Law Center in CentralIslip.

Announcements, Achievements,& Accolades…SCBAArthur E. Shulman attended the

recent retirement party of SupervisingJudge of the District Court, the HonorableMadeleine A. Fitzgibbon at the IrishCoffee Pub in Central Islip.

Lance R. Pomerantz judgedthe final round of the 17th annualYale Mock Trial InvitationalTournament held at YaleUniversity on December 1st and2nd. The trial pitted a team fromWellesley College against animpressive team from tinyCornellCollege (Iowa). The Yale tourna-ment is the largest intercollegiateinvitational mock trial tournamentin the United States.

Ruskin Moscou Faltischek, P.C.announced today that Founding PartnerMichael L. Faltischek has been electedVice Chair of the Long Island Association(LIA).

Richard K. Zuckerman, of Lamb &Barnosky, LLP, co-presented with ThomasVolz, Esq. on the topic “UnderstandingEmployment Discrimination - ExpandedLas and Emerging Issues” at the WinterLaw Conference sponsored by the NewYork State School Boards Association onDecember 11th in Albany and December13, in Rochester. They will also co-presentthis topic on January 13, on Long Island.

Sharon N. Berlin, was a panelist in aprogram entitled “Public EmploymentRelations Board Update;” Robert H.Cohen was a panelist in a program enti-tled “Living with the Tax Levy Limit - TaxCap Part II;” and Robert E.Waters, Esq.,was a panelist in a program entitled“Annual Professional PerformanceReview: The Saga Continues,” at the 2012Annual School Law Conference spon-sored by the Education Law Committees

of the Suffolk and Nassau County BarAssociations’ Nassau and SuffolkAcademies of Law.

Sharon N. Berlin, and Richard K.Zuckerman, of Lamb & Barnosky, LLP,will participate on a panel about the topic“Getting Your Employees Back To Work:Municipal Employee Alphabet SoupIssues In a Nutshell (FMLA, ADAAA,GINA, HIPAA, GML & §207-a and c,CSL §§71-73)” at the NYSBA MunicipalLaw Section Annual Meeting, which willbe held on January 24, 2013 at the HiltonNew York in New York City.

To Scott M. Karson who was nominat-ed to serve as Vice President of the TenthDistrict, effective June 1, 2013.

Condolences….To SCBA member David Mansfield

and his family on the recent passing of hisbrother-in-law Steven Kane.

To SCBA member Richard J.Kaufman on the passing of his mother,Elizabeth.

New Members…The Suffolk County Bar Association

extends a warm welcome to its newestmembers: Johnathan N. Cartelli, Carl J.Copertino, Mauro D’iapico, JosephDeJesu, Paul Devlin, DeborahFairbrother, Darin Finkelstein, PeggyA.Foy, Kyle Thomas Lynch, Donna Maio,Susan McLaughlin and Peter Tufo.

Jacqueline Siben

SYDNEY SIBEN’S AMONG US

EMINENT DOMAIN

EDWARD FLOWER

HELPING YOUR CLIENTS MAXIMIZE JUSTCOMPENSATION FOR 50+ YEARS

FLOWER, MEDALIE & MARKOWITZAttorneys At Law

24 East Main StreetSuite 201

Bay Shore, New York 11706P: 631-968-7600F: 631-665-4283


___________________By Hillary A. Frommer

To most lawyers and clients, the “expert”is the individual who persuades a jury of aparty’s position with his or her superiorknowledge and stature in the professionalcommunity, be it in medicine, engineering,accounting, or any other technical area.That is not the only role of an expert.

There are two types of experts in litiga-tion: the trial expert and the litigation con-sultant. The trial expert is, by virtue of hisor her education, training, skill or experi-ence, believed to have proficiency andspecialized knowledge in a particular sub-ject beyond that of an average person.Utilized by both sides to advocate theirrespective positions, the trial expert pre-pares a written report and testifies at trial.

The litigation consultant, on theother hand, does not issue areport or testify at trial. Rather,the consultant provides advisoryservices to the lawyer and helpsprepare a case for trial. Definedas “an adjunct to the lawyer’sstrategic thought process”,1 thelitigation consultant assists inthe litigation from its earlieststages by identifying importantfacts and issues, or the strengthsand weaknesses of the case.

The distinction between the two typesof experts is critical for purposes of pre-trial discovery. In both the state and fed-eral courts, discovery is generally per-mitted of the trial expert only. In statecourt, expert discovery is governed by

CPLR § 3101(d)(1), whichmandates disclosure of: (1) thename of the expert the partyintends to call at trial; (2) thesubject matter “in reasonabledetail” on which the expert isexpected to testify; (3) the sub-stance of the expert’s facts andopinions; and (4) the expert’squalifications. On its face,CPLR § 3101(d)(1) does notapply to the litigation consul-

tant who does not testify at trial.However, the consultant is not always (orautomatically) immune from discovery.CPLR § 3101(d)(2) allows for discoveryconcerning the litigation consultant incertain, narrow circumstances, stating:

Subject to the provisions in paragraphone of this subdivision, materials oth-erwise discoverable under subdivision(a) of this section and prepared inanticipation of litigation or for trial byor for another party, or by or for thatparty’s representative (including…consultant) may be obtained onlyupon a showing that the party seekingdiscovery has substantial need of thematerials in the preparation of thecase and is unable without unduehardship to obtain the substantialequivalent of the materials by othermeans.

Because the materials are disclosed

The trial expert v. the litigation consultant

Hillary A. Frommer

LANDLORD TENANT

WHO’S YOUR EXPERT

____________________By Patrick McCormick

Two appellate courts recently rendereddecisions discussing landlord/tenantissues. The decisions, while breaking nonew ground, do point out what can happenwhen parties fail to properly memorializetheir landlord/tenant relationship and whena landlord fails to act to correct defectiveconditions in commercial premises.The first case is Joylaine Realty Co.,

LLC v. Samuel1 in which the AppellateDivision affirmed the dismissal of land-lord’s complaint holding that repeatedflooding of the commercial premises com-bined with the landlord’s failure to takeany action to correct the condition sus-pended tenant’s obligation to pay rent.The Appellate Division decision is short

on facts and analysis, but does clearly hold“the repeated flooding of the subjectpremises substantially and materiallydeprived the defendant of the beneficialuse and enjoyment of the premises, andthe plaintiff failed to take any steps to cor-rect the condition.”Without engaging in substantive analysis

of the facts or applicable law, the AppellateDivision simply relied upon well settledlaw that “[A] commercial tenant may berelieved of its obligation to pay the fullamount of rent due where it has been actu-ally or constructively evicted from eitherthe whole or part of the leasehold”2 and “Aconstructive eviction occurs where ‘thelandlord’s wrongful acts substantially and

materially deprive the tenant ofthe beneficial use and enjoymentof the premises.”3 Thus, findingthat a constructive evictionoccurred, the court confirmedthat the tenant’s obligation to payrent was suspended.The next appellate decision

comes from the Fourth Depar-tment in Peak Development, LLCv. Construction Exchange4 andinvolved a claim related to com-mon area maintenance (CAM). In Peak,the landlord sued to collect from tenantadditional rent consisting of common areamaintenance charges for snow removal,janitorial services and lavatory mainte-nance. The Fourth Department reversedsummary judgment granted in favor of ten-ant. The tenant’s lease extension expired inOctober 1997 and a new lease was not exe-cuted. Thus, tenant remained in possessionof the demised premises as a holdovermonth-to-month tenant. The express termsof the lease provided for CAM charges andthat such charges were to be “pro-rated ona monthly basis according to the amount ofspace occupied by [defendants] to the totalbuilding space.”Plaintiff purchased the property in 2003.The month-to-month tenancy continueduntil April 1, 2006 when a “letter lease”became effective. The specific terms con-tained in the “letter lease” were not dis-cussed by the court. Defendant/tenant inmoving for summary judgment relied on

the lease, the lease extensionand an affidavit from defen-dant’s executive vice presidentthat CAM charges under thelease and lease extension werenot paid between September1987 and October 1997 andargued that plaintiff waived theright to collect such chargesbecause plaintiff’s predecessordid not collect the CAM underthe lease and lease extension.

The court found that the “issue ofwhether waiver has occurred is generallyone of fact [citation omitted] and, here,defendants failed to establish as a matterof law that plaintiff’s predecessor waivedhis entitlement to CAM charges.”As part of its decision, the Appellate

Division cited to the well settled law that“a successor-in-interest to real propertytakes the premises subject to the conditionsas to the tenancy, including any waiver ofrights, that [its] predecessor in title hasestablished if the successor-in-interest hasnotice of the existence of the leasehold andof the waiver”[Citations omitted]. Thecourt also found that the plaintiff in thiscase “had notice of the leasehold withdefendants and, in any event, possession ofthe premises constitutes constructivenotice to purchaser of the rights of the pos-sessor [citation omitted].The practical impact of this decision and

the facts presented is significant. If, in fact,there was a waiver of the right to collect

CAM, the tenant now must locate the sell-er of the premises (the sale occurred about8 years before the lower court decision)and, even if located, hope that seller orsomeone on behalf of the seller if the sellerwas a business entity, even remembers theterms of the lease and lease extension andwhether there was any thought given to theright to collect CAM charges and whethersuch right was affirmatively waived.

Note: Patrick McCormick litigates alltypes of complex commercial and realestate matters. These matters include busi-ness disputes including contract claims;disputes over employment agreements andrestrictive and non- compete covenants;corporate and partnership dissolutions;mechanics liens; trade secrets; insuranceclaims; real estate title claims; complexmortgage foreclosure cases; lease dis-putes; and, commercial landlord/tenantmatters in which Mr. McCormick repre-sents both landlords and tenants.

1. —-N.Y.S.2d—-, 2012 N.Y. Slip Op.07634 (2d Dep’t 2012), decided November14, 20122. Johnson v. Cabrera, 246 A.D.2d 578,578-579 (2d Dep’t 1998)3. Id at 579, quoting Barash v. PennsylvaniaTerm. Real Estate Corp., 26 NY2d77,83(1977)4. —-N.Y.S.2d—-, 2012 N.Y. Slip Op.07458 (4th Dep’t 2012) decided November9, 2012

Recent appellate cases

Patrick McCormick


CChhoooossee TToo BBee HHaappppyy!!


__________________By Gene Bolmarcich

Starbucks may have been shaken andstirred after its third trip to the U.S.District Court for the Southern District ofNew York, via two temporary layovers atthe 2nd Circuit Court of Appeals andanother one pending over the course ofover 11 years.In December 2011, Judge Laura Swain,

for the third time, ruled in favor of Wolf’sBorough Coffee (dba Black Bear Micro-Roastery), a tiny Lake Winnipesaukee,New Hampshire coffee brewer (a husbandand wife team plus one part-time employ-ee), and against the plaintiff Starbucks, inwhat might be referred to as Goliath’smarathon legal battle against David to pre-vent Black Bear from using the word“Charbucks” to designate one of its coffeebrews.The nearly burnt coffee flavor reminded

owner Jim Clark of the famously dark-roasted taste of Starbucks coffee, so hewanted a name that would serve as a warn-ing to his customers. Along with the word“Charbucks”, the label comes with thewarning “You want it dark, you got itdark.” Starbucks, determined to fight tothe bitter end, claims that this constitutestrademark dilution, both by “blurring” and“tarnishment,” under Section 43(c) of theLanhamAct, the federal trademark statute.By way of background, there are two

types of trademark dilution. The first is“blurring,” defined as an “association aris-ing from the similarity between a mark ortrade name and a famous mark thatimpairs the distinctiveness of the famousmark,” while the second is “tarnishment,”defined as an “association arising from thesimilarity between a mark or trade nameand a famous mark that harms the reputa-tion of the famous mark.”While this might appear to be a rare

case, a fair number of trademark cases areas notoriously long and unbalanced interms of the might of the opposing parties.The reason for this is clear – the value ofa brand to most companies is often thelion’s share of the value of the companyitself. Failing to protect it can erode itsvalue over time, regardless of the size ofthe defendant. It’s the “death by a thou-sand cuts” theory of trademark protection.A good example of this is the 14 yearlegal battle between Victoria’s Secret anda small sex shop in Kentucky named“Victor’s Little Secret,” owned by oneVictor Moseley. After being enjoined atthe District Court and then losing anappeal to the 6th Circuit, Moseley took itscase to the Supreme Court, which reversedthe 6th Circuit and remanded the caseback to the District Court.Meanwhile in response to the Supreme

Court’s ruling, Congress passed theTrademark Dilution Revision Act of 2006,which amended the Lanham Act so that itnow clearly favors plaintiffs in dilutioncases - by eliminating the Supreme Courtcreated requirement that a plaintiff prove“actual economic injury” to its trademark,and instead only prove a “likelihood ofdilution.” On remand the court ruled infavor of Victoria’s Secret and the decisionwas upheld on appeal in a 2 to 1 ruling.Thus the 14 year saga ended. Victor’sLittle Secret is now “Cathy’s LittleSecret.”In a very similar legal setting involving

the same law and the amendment theretoduring the course of litigation, comes theStarbucks case. While the TDRA seemed

as though it would make it easi-er for plaintiffs to win dilutionby blurring claims, as was seenin the Victoria’s Secret case, thishas turned out not to be the casefor Starbucks. In round one,which took place soon after theMoseley case, the District Courtruled against Starbucks becauseit failed to prove actual econom-ic harm. After the TDRA, the2nd Circuit remanded the caseback for round two. This time, onceagain, the District Court ruled againstStarbucks, finding that “Starbucks” and

“Charbucks” were not similarenough to cause dilution. The2nd Circuit found much faultwith the District Court’s reason-ing, especially the requirementthat the marks at issue be “sub-stantially similar” as this lan-guage was nowhere in therevised statute (rather “degreeof similarity” is simply one fac-tor to consider). The court alsothought that much more empha-

sis should have been placed on the defen-dant’s intent which was admittedly (andquite blatantly according to the evidence

of record) to poke fun at and to remindconsumers of Starbucks.Now we go back to Judge Swain for her

third crack at this case. This time, JudgeSwain went methodically through the non-exclusive six-factor statutory “blurring”test. Of the six factors, five were found tobe in favor of Starbucks. Only the “simi-larity of the marks” factor was found tofavor the defendant, yet the court ruledonce again in its favor. As the factors arenon-exclusive, this gives judges muchflexibility to decide a case as they see fitto, regardless of the way the factors may

Starbucks v. Wolf’s Borough Coffee – Charred, Not Diluted

Gene Bolmarcich

INTELLECTUAL PROPERTY



__________________By Allison C. Shields

Lawyers can improve their client ser-vice by recruiting technology to help inthe effort, not just to improve internal effi-ciency (much of which is invisible toclients), but to provide direct, observablebenefits to clients. These include:

Client PortalsMost lawyers hate when clients call and

ask them the same questions over andover, or when clients are impatient andwant answers immediately, even if thelawyer is in court or otherwise unavail-able. But a client waiting for a responsehast the potential to become a dissatisfiedclient very quickly.A client portal is a secure place where

clients can go online to obtain informationabout their matter without having to callyour office. Clients can track the progressof their matter, view a calendar withupcoming dates related to their case, sendmessages to the lawyers and staff workingon their matter, and receive updates orreview documents. Clients log in withtheir own individual password to the siteand they can view whatever documents,messages or upcoming dates the lawyerallows them access to. The client can getinformation or answers about what is hap-pening on their case at any time, from any-where (as long as they have an internet

connection), relieving theclient’s anxiety and improvingsatisfaction.Some client portals are stand-

alone services such as Basecamp(basecamp.com), and others areincorporated directly into prac-tice management software, suchas MyCase (mycase.com).

Collaborating with Clients onDocumentsPut an end to endless rounds of emails,

trying to keep track of versions of docu-ments or forgotten email attachments.Instead, collaborate directly with clients ondocuments either through a dedicatedclient portal (see above) or through themany document and file sharing programsavailable. All parties with access to thedocument will always see the most updat-ed version of the document, or you canwork together in real time and makechanges as you talk; both parties will seethe changes as they are made.

Eliminating Unnecessary ClientMeetingsWhen clients have to travel to your office

to meet with you, it costs them time andmoney (and it costs them on your bill if youtravel to them). But if you don’t both needto be physically in the same room to get thesame benefit from the meeting, consider

using technology to allow yourclient to meet with you fromtheir home or office by holding a‘virtual meeting. Use a webcam,services like Skype, Facetime orGoogle+ Hangouts if you needto see one another, or use ascreen-sharing program if youwant your clients to see what yousee on your computer screen.

Making Meetings CountSometimes in-person meetings can’t be

avoided. In that case, be sure your clienthas your full attention for the duration ofthe meeting. Instead of meeting in youroffice, where distractions from telephonecalls, email and other work can interruptthe flow of the meeting, go into a confer-ence room where you are cut off fromeverything else. If you must meet in youroffice, hold your calls, turn off your email,and do not allow interruptions fromcoworkers. Turn off all audible alarms onyour computer. If you can, get out frombehind your desk.Make sure you have access to all of the

information you might need during themeeting at your fingertips so you do nothave to leave the room or ask your assistantfor help. Whether you use a laptop, smart-phone or tablet connected to your system,having available technology that allowsyou to reach your calendar, files, or the

internet (for a quick check of the court’scalendar for example) right there with youin the meeting can save time and demon-strate to clients that you’re on top of yourgame – and your client’s legal matter.

Streamlining Client PaymentsEvery lawyer hates chasing clients for

money. Use technology to make that taskless onerous by setting up automated elec-tronic payment systems. If you have notdone so yet, be sure your firm cantake credit cards with a merchant accountthrough your bank, or, if you travel toclients at their location, get a device thatallows you to accept credit card paymentsright through your iPad or smartphone.Send clients invoices via email with a

link to click to allow them to pay directlyfrom the email.Client service means finding ways to

make the legal process and working withyou easier for your clients. The easier it isto work with you, the more satisfied yourclients will be. How will you know if theyare satisfied? They’ll show their apprecia-tion by referring other clients.

Note: Allison C. Shields is the President ofLegal Ease Consulting, Inc., which offersmanagement, productivity, client service,business development and marketing con-sulting services to law firms. Contact her [email protected], visit her

Technology and client service

Allison C. Shields

______________________By Ilene Sherwyn Cooper

DisclosureIn In re Cugini, the objectant in a con-

tested probate proceeding filed a motionto compel the examination of two non-party witnesses, a physician. The objec-tant maintained that the physician exam-ined the decedent in connection with anArticle 81 guardianship proceeding and

therefore, had informationregarding her competency. Thecourt held that generally thetest for disclosure is whetherthe information sought is mate-rial and necessary. When dis-closure is sought from a non-party witness, the party seek-ing disclosure must either sat-isfy the requirements of CPLR3101(a)(3) and (4), regarding,inter alia, the availability of thewitness and a showing of special circum-stances, respectively. The court notedthat although a showing of special cir-cumstances is no longer a prerequisitefor the examination of non-parties in theSecond Department, they should still beconsidered in making a determination.To this extent, the court found, in viewof the objection as to the testamentarycapacity of the decedent, that the exami-nation of the physician was material andnecessary to the proceeding. Further, thecourt found that the evidence to begleaned from the witness was not avail-able from any other source. Finally, thecourt noted that the physician had beennamed as an expert witness by the peti-tioner. The court opined that while theexamination of an expert witness is notgenerally permissible, when that witnessis also a factual witness with personalknowledge relevant to the proceeding,the examination of the witness is autho-rized. Accordingly, the motion to deposethe witness was granted.In re Cugini, NYLJ, Aug. 20, 2012, at 19(Sur. Ct. Richmond County)

Sealing of court recordsBefore the court in In re Rappa, NYLJ,

Oct. 23, 2012, at 23 (Sur. Ct. KingsCounty), was an ex parte application foran order confirming the confidentialitycondition of a Release and Stipulation toDismiss, and sealing the records of theestate, including any proceeding to com-

promise the cause of action forthe decedent’s wrongful death.

In support of the appli-cation, the petitioners assertedthat the cause of action forwrongful death had beenresolved, and that the confiden-tiality provisions of the releaseagreement were a “vital compo-nent” of the settlement.The court opined that the

sealing of court records canonly be ordered upon a showing of goodcause. Such a determination must beassessed against the backdrop of thebroad presumption that the public is enti-tled to access to judicial proceedings andcourt records. Accordingly, because con-fidentiality is the exception and not therule, a party seeking an order to sealbears the burden of demonstrating com-pelling circumstances which justifyrestricting the public’s right to open courtproceedings.Considered within this context, the

court found no basis for sealing the courtrecord. The court found that the petition-ers had not demonstrated that a failure toseal the court record would inhibit the res-olution of concurrently pending or relatedproceedings, nor had petitioners shownthat the parties’ reliance on the confiden-tiality of the file had induced changes oftheir position, and was essential to the set-tlement. Although petitioners maintainedthat certain aspects of the terms of settle-ment could disclose some unspecifiedstrategic path to defendants in futureactions, the court found this claim insuffi-cient to sustain sealing of the record.Therefore, the petitioners’ applicationwas denied.

In re Rappa, NYLJ, Oct. 23, 2012, at23 (Sur. Ct. Kings County)

HIPAA authorizationsIn In re Bellante, the court directed the

petitioner to execute HIPAA authoriza-

tions so that the objectant could obtain themedical records of the decedent. At issuein the contested accounting before thecourt was the validity of a transfer madeby the decedent of her home prior to herdeath. The objectant maintained that thedecedent’s mental incapacity and physicallimitations made her incapable of execut-ing the deed to the premises, and causedher to be subject to undue influence perpe-trated by the petitioner and her brother inconnection with the transfer. The courtheld that in the case where a patient isdeceased, a physician shall be required todisclose records either in the absence ofobjection y a party to the litigation, orwhen the privilege has been waived. Awaiver can be affected by a personal rep-resentative, or by any party in interest tothe litigation were the court deems theinterest of the personal representative tobe adverse to those of the decedent’sestate. (CPLR 4504(c) (2). In this contextthe court held that inasmuch as the capac-ity of the decedent at the time of the sub-ject transfer was an issue of fact to bedetermined at trial, the medical records ofthe deceased were material and necessaryto the pending litigation. Moreover, giventhe allegations that the petitioner was aparty to the undue influence perpetratedupon the decedent, the court found that herinterests were adverse to the estate.Accordingly, the court held that the physi-cian-patient privilege could be waived bythe objectant and that she was entitled tothe records in issue.

In re Bellante, NYLJ, July 19, 2012,at 29 (Sur. Ct. Suffolk County).

Note: Ilene S. Cooper is a partner withthe law firm of Farrell Fritz, P.C. whereshe concentrates in the field of trusts andestates. In addition, she is Chair of theNew York State Bar Association Trusts andEstates Law Section, and a member of theBoard of Directors and a past-president ofthe Suffolk County Bar Association.

Ilene S. Cooper

PRACTICE MANAGEMENT

TRUSTS & ESTATES

New CountyCourt PartSuffolk County District

Administrative Judge, C. RandallHinrichs announced that a newCounty Court part is being set up inCentral Islip and will begin hearingcases on January 15, 2013. The newpart will be located in what is nowCourtroom D31. The HonorableFernando Camacho (Court of Claims,Acting Supreme Court), the formerCriminal Administrative Judge inQueens County, will preside.

The part will focus on:• cases with indicted defendantswho are eligible for YouthfulOffender treatment and arecharged with C, D, or E Felonies(except cases involving SexOffenses or Gun Possession) –Co-defendants who are Y.O. eli-gible will also be taken into thispart to keep these matters togeth-er;

• all indicted cases handled by theDistrict Attorney’s OfficeInsurance and Economic CrimesBureau;

• some of the older cases in otherCounty Court Parts.


___________________By Candace J. Gomez

Many teachers, administrators, schoolboard members and school district attorneyshave been brought up to speed regarding thefirst phase of the Dignity for All StudentsAct (“DASA”), the legislation which tookeffect on July 1, 2012. DASA explicitly pro-hibits the harassment or discrimination ofstudents with respect to certain non-exclu-sive protected classes, including, but not lim-ited to, the student’s actual or perceived race,color, weight, national origin, ethnic group,religion, religious practice, disability, sexualorientation, gender or sex.However, it is important for us to be pre-

pared for the second phase of DASA. OnJuly 9, 2012, Governor Cuomo signed leg-islation which expands the scope of DASAby requiring schools to take action when

students experience cyberbully-ing. This legislation goes intoeffect on July 1, 2013. Schoolpolicies, procedures and codes ofconduct should be reviewed toensure that they are in full com-pliance on or before the effectivedate. The legislation contains thefollowing requirements:

• Schools required to actwhen cyberbullying occurson or off campusSchools must act in cases of cyberbully-ing whether it occurs on or off campus,when it creates or would create a sub-stantial risk to the school environment,substantially interferes with a student’seducational performance or mental,emotional or physical well-being, or

causes a student to fear for his orher physical safety.

• Requires proper protocols arein place to deal with cyberbul-lyingThe legislation requires schools toput protocols in place to deal withcyberbullying, harassment, bully-ing and discrimination, includingassignment of a school official toreceive and investigate reports;prompt reporting and investiga-

tion; responsive actions to preventrecurrence of any verified bullying;coordination with law enforcementwhen appropriate; development of abullying prevention strategy; and noticeto all school community members ofthe school’s policies.

• Sets training requirements for schoolemployees to id & prevent cyber-bullyingThe law sets training requirements forcurrent school employees, as well asfor new teachers and administratorsapplying for a certificate or license,on the identification and mitigation ofharassment, bullying, cyberbullyingand discrimination.

Note: Candace J. Gomez is an attorneywith the law firm of Lamb & Barnosky,LLP in Melville, NY. She practices in theareas of education law and civil litigation.Ms. Gomez is a member of the SuffolkCounty Bar Association and also serves asa member of the New York State BarAssociation President’s Committee onAccess to Justice.

Amendment to the Dignity for All Students Act

Candace Gomez

______________By Andrew Lieb

You are the buyer’s attorney in a fullyexecuted purchase contract for a propertylocated in Sayville, New York. The originalclosing date was set for November 15, 2012.An extension of the closing date wasrequested for December 15, 2012 and grant-ed. Thereafter, and due to a multitude of fac-tors such as a boundary line issue requiringaffidavits from neighbors, and then, a floodin the basement requiring a re-inspection,there was a further extension of the closingthat was agreed to by the seller’s attorneyfor January 15, 2013.As, you are all aware, real estate agents get

extremely aggressive at pushing everyone toclose their deals. So, the seller’s real estateagent has been calling everyone, the seller,buyer, attorneys and lender hourly to get“their” closing date scheduled. Now, the sell-er’s real estate agent said that they are goingto renew their listing on the multiple listingservice and start showing the house again.This is in the face of the fact that we are incontract and the contract has not been termi-nated pursuant to its terms.This deal does not involve a buyer’s real

estate agent. The agent is not a dual agentand there are no broker’s agents involved.

RulesThe Code of Ethics and Standards of

Practice of the National Association ofRealtors (Effective January 1, 2012) is asfollows:

• Standard of Practice 1-6: REALTORS®shall submit offers and counter-offersobjectively and as quickly as possible.(Adopted 1/93, Amended 1/95)

• Standard of Practice 1-7:When acting as listing bro-kers, REALTORS® shallcontinue to submit to the sell-er/landlord all offers andcounter-offers until closing orexecution of a lease unless theseller/landlord has waivedthis obligation in writing.REALTORS® shall not beobligated to continue to mar-ket the property after an offerhas been accepted by the sell-er/landlord. REALTORS® shall recom-mend that sellers/landlords obtain theadvice of legal counsel prior to accep-tance of a subsequent offer except wherethe acceptance is contingent on the ter-mination of the pre-existing purchasecontract or lease. (Amended 1/93)

• Standard of Practice 1-8: REAL-TORS®, acting as agents or brokersof buyers/tenants, shall submit to buy-ers/tenants all offers and counter-offers until acceptance but have noobligation to continue to show prop-erties to their clients after an offer hasbeen accepted unless otherwiseagreed in writing. REALTORS®, act-ing as agents or brokers of buyers/ten-ants, shall recommend thatbuyers/tenants obtain the advice oflegal counsel if there is a question asto whether a pre-existing contract hasbeen terminated.

• Standard of Practice 1-15: REAL-TORS®, in response to inquiries frombuyers or cooperating brokers shall,with the sellers’ approval, disclose theexistence of offers on the property.Where disclosure is authorized, REAL-

TORS® shall also disclose, ifasked, whether offers wereobtained by the listing licensee,another licensee in the listingfirm, or by a cooperating broker.(Adopted 1/03, Amended 1/09)• Standard of Practice 3-6:REALTORS® shall disclose theexistence of accepted offers,including offers with unresolvedcontingencies, to any brokerseeking cooperation. (Adopted5/86, Amended 1/04)

• Pre-Preamble: While the Code ofEthics establishes obligations that maybe higher than those mandated by law,in any instance where the Code ofEthics and the law conflict, the obliga-tions of the law must take precedence.

Regulations Affecting Brokers andSalespersons: §175.9 Inducing breach ofcontract of sale or lease: No real estate bro-ker shall induce any party to a contract ofsale or lease to break such contract for thepurpose of substituting in lieu thereof a newcontract with another principal.

ApplicationSo, there is a regulation expressly on

point, which precludes the inducement of abreach of contract. Nonetheless, real estateagents, which pursuant to Real PropertyLaw §443(1)(a) means “a person who islicensed as a real estate broker, associatereal estate broker or real estate salesperson”often see themselves as realtors before theysee themselves as real estate agents and mis-takenly believe that the Code of Ethicstrumps New York State Laws and

Regulations and further have not read theirown Code of Ethics, but instead heard theStandards of Practice discussed at a trainingby a realtor organization. They are wrong inthinking that the Code of Ethics trumps thelaw as it merely has the control of a contractthat cannot modify express laws and regula-tions and moreover, the Code of Ethics, ifread expressly states to in the Pre-Preamblesection that “in any instance where the Codeof Ethics and the law conflict, the obliga-tions of the law must take precedence”.The property should not be shown until

the contract is formally terminated. If the realestate agent shows the property, the buyer’sattorney should place a call to the real estateagent’s broker-of-record, the individualresponsible for the agent’s license pursuantto the Department of State, and request thatsuch wrongful activities are stopped imme-diately. Should the conversation not be fruit-ful, a formal cease and desist letter would beappropriately directed to the broker-of-record followed by an application for aTemporary Restraining Order in our Courtsand a complaint to both the local board of theNational Association of Realtors and to theDepartment of State concerning the realestate agent’s acts of untrustworthiness pur-suant to the regulation. Do not be pressured,know your client’s rights and protect them.

Note: Andrew M. Lieb is the ManagingAttorney at Lieb at Law, P.C., a law firmwith offices in Center Moriches andManhasset. Mr. Lieb serves as Co-Chair tothe Real Property Committee of the SuffolkBar Association and served as this year’sSpecial Section Editor for Real Property inThe Suffolk Lawyer.

Listing a house post-contract, what gives?

Andrew Lieb

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_________________By Craig D. Robins

For eight years leading up to2005, the banking and creditcard industries lobbiedCongress incessantly, urgingthem to believe that Americanconsumers who sought bank-ruptcy relief were essentiallydeadbeats. That year, Congressbought into this perception andpromulgated a great number ofstrict changes to the Bankruptcy Codewhich made it much harder for the typi-cal consumer to discharge debt obliga-tions in bankruptcy. Consequently,Congress enacted BAPCPA — TheBankruptcy Abuse Prevention andConsumer Protection Act.

This bankruptcy reform was designedto pull every last dollar out of hardwork-ing but suffering middle class familieswho appeared to have an extra dollar ortwo to spare — at least on paper, accord-ing to a series of controversial calcula-tions called the bankruptcy Means Test— a new eligibility requirement for thoseseeking Chapter 7 relief. This law was amajor victory for the banks, and unfortu-nately created an inequitable situation formany consumers.

A respected Harvard University bank-ruptcy law professor at the time, who Ideemed a hero to the typical middle classfamilies I usually represent in my LongIsland bankruptcy practice, was a veryoutspoken critic of these proposed laws.That was Elizabeth Warren, who was thiscountry’s foremost authority on the soci-ology of Americans who file bankruptcy.

Warren became known for her criticalopinions of the practices of the bankingand credit card industries, and I havewritten about her previously in this col-umn. In 2000 she co-authored a book,The Fragile Middle Class and The Two-Income Trap: Why Middle-ClassMothers and Fathers Are Going Broke,in 2003.

In the latter book, she stated, “Thisyear, more people will end up bankruptthan will suffer a heart attack. Moreadults will file for bankruptcy than willbe diagnosed with cancer. More peoplewill file for bankruptcy than will gradu-ate from college. And, in an era when tra-ditionalists decry the demise of the insti-tution of marriage, Americans will filemore petitions for bankruptcy than fordivorce.”

Some commentators have said Warrenhas become the countries most respectedand resonant voice on consumer issuessince Ralph Nader’s zealous quest to pro-tect consumers in the 1970s.

Warren Goes to WashingtonNow it looks like the Senate Banking

Committee is about to get a serious doseof bankruptcy expertise from the protectorof the middle class. Ms. Warren defeatedher Republican rival last month in one ofthe most expensive and most watchedSenate campaigns of the year – for theMassachusetts seat previously held by thelate Ted Kennedy. It is expected that

Warren will land a seat on thehigh-profile Senate BankingCommittee.

More importantly, as astaunch advocate of protectingthe consumer, an ardent criticof the banking industry and anoutspoken critic of BAPCPA,there is a high likelihood thatMs. Warren, now as a lawmak-er, will take the initiative tointroduce legislation to reform

the problems and inequities created bythe Bankruptcy Reform Act of 2005.There is no doubt that Ms. Warren willbring her liberal, pro-consumer views tothe Senate.

Warren created the U.S. ConsumerProtection Bureau, a federal agencyestablished in 2010, not only to preventrisky mortgage practices, but also to stopcredit card companies from continuing toengage in unfair and predatory businesspractices.

A great many bankruptcy judges acrossthe country, including several in our owndistrict, have officially and unofficiallyexpressed their frustration with manyaspects of the new bankruptcy laws.Sometimes their personal opinion is thatmany parts of the law are a disaster.

In addition to making it harder for themiddle class to get bankruptcy relief,BAPCPA is flawed and poorly drafted.This has resulted in many decisionswhich have caused judges to stray from astrict interpretation of its hastily draftedwords, which can result in an absurdresult and instead, focus on a more com-monsense analysis. BAPCPA was draft-ed primarily by lobbyists, rather thanbankruptcy professionals. A significantproblem continues to be a lack of consis-tency among courts in different jurisdic-tions for enforcing its provisions.

Warren has pledged to stand up for thelittle guy against the financial forces ofWall Street. I predict that when Warrengoes to Washington, the likelihood is thatwe will see her introduce some substan-tive pro-debtor legislation to amend theBankruptcy Code, in which she will seekto reform some of the ill conceived andpoorly drafted aspects of BAPCPA. Shewill also likely address issues concerningstudent loan debt relief, mortgage debtrelief, as well as the debt burden on con-sumers.

Ms. Warren’s election to the Senate iswonderful news for bankruptcy attorneysand middle-class Americans alike.

Editor’s Note: Craig D. Robins, Esq., aregular columnist, is a Long Island bank-ruptcy lawyer who has represented thou-sands of consumer and business clientsduring the past twenty years. He hasoffices in Coram, Mastic, West Babylon,Patchogue, Commack, Woodbury andValley Stream. (516) 496-0800. He can bereached at [email protected] visit his Bankruptcy Website:www.BankruptcyCanHelp.com and hisBankruptcy Blog: www.LongIslandBank-ruptcyBlog.com.

Is another wave of bankruptcyreform ahead?Senator-elect Elizabeth Warren may push for change

Craig D. Robins

CONSUMER BANKRUPTCY

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SCBA celebrates the holidays in stylePhotos

byB

arrySm

olowitz


FREEZE FRAME

Thanking retiring judges for their dedication and serviceSCBA President ArtShulman thanked retir-ing Judge Madeleine A.Fitzgibbon for her ser-vice to Suffolk County ata retirement party heldin her honor at the IrishCoffee House.

The retirement party at the Oar was also for retiringJudge Gary Weber, center, who was joined by SCBAPresident Art Shulman, left, and SCBA First VicePresident Bill Ferris, III, who thanked Judge Weber forhis service.

There was a retirement party held at the Oar in Patchogue for JudgeJames F.X. Doyle. Enjoying the evening with Judge Doyle, third fromleft, were SCBA President Art Shulman, Judge James Quinn, andThomas O’Rourke.

SCBA member Alan Costello and hiswife Sibyl are proud to announce theirfirst grandchild, Thomas James Czech,born Nov. 20, at 4:31 a.m., 9 lbs. 12 ozs.,21 3/4 inches. Mom and baby are fineand thriving.

FREEZE FRAME

Photocourtesy

Alan

Costello


___________________By Robert M. Harper

As articulated by the Court of Appealsin Riggs v. Palmer, the so-called “slayerrule” provides that “[n]o one shall be per-mitted to profit by his own fraud, or totake advantage of his own wrong, or tofound any claim upon his own iniquity, orto acquire property by his own crime.”1Although forfeiture does not occur incases involving accidental killings, self-defense, and disabilities that negate a cul-pable mental state, the maxim articulatedin Riggs has been utilized to preclude aperson who intentionally kills anotherfrom taking as a beneficiary of his or hervictim’s estate. Additionally, relying uponRiggs, at least two Surrogate’s Courts haveheld that, under the slayer rule, intentionalkillers forfeit their rights to inherit notonly from the estates of their victims, butalso the estates of people who were nottheir victims in certain circumstances.This article discusses the circumstances

in which the expanded application of theslayer rule to preclude intentional killersfrom taking as beneficiaries of the estates ofpeople other than their victims is justified.There are only two reported cases in

which New York courts have referencedthe slayer rule as a basis for denying anintentional killer the right to inherit fromthe estate of someone other than his or hervictim. In each of those two cases,Matterof Edwards and Matter of Macaro, theSurrogate’s Court was confronted withcircumstances in which an intentionalkiller (or someone acting on his behalf)sought to receive his deceased victim’sproperty, indirectly, as a beneficiary of theestate of one of the victim’s legatees ordistributees. Noting that Riggs generallyis utilized to preclude an intentional killerfrom inheriting directly from his or her

victim’s estate, the Surrogate’sCourts held that the slayer ruleprecluded an intentional killerfrom taking his or her victim’sproperty, both directly as a ben-eficiary of the victim’s estateand indirectly through theestates of the victim’s legateesand beneficiaries.Suffolk County Surrogate

John M. Czygier, Jr.’s recentdecision in Matter of Edwards ishighly instructive. There, after chokinghis mother-in-law Dianne Edwards(“Dianne”) to death, Brandon Palladino(“Brandon”) was convicted ofManslaughter in the First Degree and, ulti-mately, sentenced to prison for a term of25 years.2 Adding insult to injury (or,more accurately, death), however,Brandon’s relatives took steps to ensurethat he received a substantial portion ofDianne’s estate, as a beneficiary of hisdeceased wife Deanna Palladino’s(“Deanna”) estate.Dianne died, testate, bequeathing her

entire estate to her daughter, Deanna.Although Deanna survived Dianne, shedied of an accidental drug overdose inFebruary, 2010, leaving no will. Undernormal circumstances, Brandon, asDeanna’s surviving spouse (with noissue), would inherit Deanna’s entireestate, including any bequests that shereceived from Dianne.3Of course, the circumstances in Edwards

were not normal, and Dianne’s surviving rel-atives argued that, under the slayer rule,Brandon forfeited any interest in Dianne’sestate that he otherwise might have had.Since Brandon killed Dianne, the criticalquestion in Edwards was whether the slayerrule precluded Brandon from inheritingDianne’s property, not as a direct beneficia-

ry of Dianne’s estate, but, indi-rectly, through Deanna’s estate.Surrogate Czygier answered

that question affirmatively, find-ing that Brandon could not inher-it from Dianne, even indirectly asa beneficiary of Deanna’s estate.In doing so, the Surrogateexplained that “one who takes thelife of another should not beallowed to profit from his wrong-doing[.]” But for Brandon’s

wrongdoing, there “would be no inheritanceto be obtained through his wife Deanna.”As a result, considering Brandon’s wrong-doing and his conviction for Manslaughterin the First Degree (“intentionally causingserious physical injury to an individualresulting in such individual’s death”),Brandon forfeited any right he otherwisemight have had to inherit Dianne’s propertyas Deanna’s sole distributee.Former Westchester County Surrogate

Albert J. Emanuelli reached a similar con-clusion in Matter of Macaro. In Macaro,the decedent died, intestate, survived byeight nieces and nephews, including therespondent.4 Prior to the decedent’s death,the respondent had been convicted ofManslaughter in the First Degree andMurder in the Second Degree in connec-tion with the deaths of his father, RayMacaro, Sr. (“Ray”), and a paternal aunt,Regina Deine (“Regina”). The convic-tions were affirmed on appeal.Following the decedent’s death, the

fiduciary of the decedent’s estate sought tohave the respondent disqualified as one ofthe decedent’s distributees. The fiduciaryargued, among other things, that the slay-er rule precluded the respondent from tak-ing as a beneficiary of the decedent’sestate, as Ray and Regina would havebeen distributees of the decedent’s estate

had the respondent not killed them andhad they survived the decedent.Although Surrogate Emanuelli acknowl-

edged that Riggs and its progeny “have gen-erally been applied only where the killerwas seeking a share . . . of his victim’sestate,” the Surrogate held that the respon-dent could not inherit from the decedent’sestate. “Indeed, [Surrogate Emanuelli con-cluded that] to hold otherwise would sub-vert the long-standing public policy of thecourts in New York ... ‘simply . . . that heshall not acquire property by his crime, andthus be rewarded for its commission.’”The application of the slayer rule has

been extended beyond those situations inwhich intentional killers seek to take as ben-eficiaries of their victims’ estates. Indeed,as Edwards and Macaro demonstrate, theslayer rule has been utilized to deny inten-tional killers the right to inherit propertybelonging to their victims, whether directlyas beneficiaries of the victims’ estates orindirectly through the estates of the victims’legatees or distributees. The extension ofthe slayer rule is consistent with standardsof common sense and decency.

Note: Robert M. Harper is an associate atFarrell Fritz, P.C., concentrating in estate andtrust litigation. Mr. Harper serves as Co-Chair of the Bar Association’s MemberBenefits Committee and a Vice-Chair of theGovernmental Relations and LegislationCommittee of the New York State BarAssociation’s Trusts and Estates Law Section.

1. Riggs v. Palmer, 115 N.Y. 506, 511(1889).2. Matter of Edwards, NYLJ, Apr. 13, 2012,at 35 (Sur. Ct., Suffolk County).3. EPTL 4-1.1(a)(2).4. Matter of Macaro, 182 Misc.2d 625 (Sur.Ct., Westchester County 1999).

The slayer rule

Robert M. Harper

_______________By Maria Dosso

The motivation for and benefits of doingpro bono work is commonly advocated bythe attorneys who get involved in the ProBono Project. In addition to helping tomake a difference, this month’s honoree,Jessica D. Sparacino, credits her pro bonocontribution with helping her to gain prac-tical skills and valuable legal experience.A graduate of Villanova University,

Sparacino worked full time as anAffirmative Action Analyst at JacksonLewis LLP, while attending Touro CollegeJacob D. Fuchsberg Law Center earningher J.D. in 2008.After her admission to the bar, she con-

tinued at the firm working in the area ofemployment law and then joined a firmwhere her work involved lobbying and acriminal law practice. Finding that thiswas not her calling, she set out to take the“leap of faith” and launched a family lawpractice, with her husband’s moral support.After attending a CLE Matrimonial

“Boot Camp” sponsored by the SuffolkCounty Bar Association and the Pro BonoProject, Sparacino agreed to accept a probono matrimonial case. She is very posi-tive about the training she received throughthe Bar Association and feels that as aresult, she was prepared to take on pro bonocases and bolster her professional experi-ence in her private practice. “I encouragenew attorneys to get started this way, get-ting the necessary training and the practical

experience of taking on a pro bono casewith the help of a mentor,” she said.

Sparacino believes this professionalpath helped her to network with otherattorneys and gave her the self confidenceshe needed to start her own firm.Sparacino’s firm, Sparacino & SparacinoPLLC, located in Northport, focuses onmatrimonial and real estate law, includingdivorce and family mediation, matrimoni-al and family law, real estate transactions,foreclosures, small claims, estate planningand administration, and general practice.Jessica is also a real estate broker, animpartial hearing officer for the New YorkState Education Department (ACCES-

VR), and a certified divorce mediator.Although a family law practice can be

emotionally exhausting, Sparacino thor-oughly enjoys the practice and wouldn’thave it any other way. Her pro bono matri-monial cases have all been different interms of the clients’ circumstances and thecases’ complexity, but she observes, “Ialways found the clients I have workedwith to be extremely appreciative. Oneclient still sends me friendly updates onhow she’s doing. It’s so rewarding to knowyou made a difference in someone’s life.”Sparacino has been so inspired by doing

pro bono work that she has applied hervaluable background in real estate to hermost recent pro bono contribution. We arefortunate to have Sparacino on the dedi-cated panel of attorneys serving on the ProBono Foreclosure Settlement Project. Shehas also found this work to be interestingand rewarding while expanding her gener-al knowledge and legal practice.When asked what she would say to her

colleagues about doing pro bono work,Sparacino enthusiastically recommendsthe experience. “Absolutely do it!” shesays. “It’s been a great experience givingback, especially working for people whosome of the most appreciative.”And there’s been a collateral benefit to

her practice as her satisfied pro bonoclients have referred paying clients to her.“Especially for new attorneys, there is nobetter way to get the experience, buildrelationships, and network with other

attorneys,” she added.Sparacino is a member of the Suffolk

County Bar Association, the New YorkState Bar Association, and the SuffolkCounty Women’s Bar Association. She isalso the Philanthropy Chair of the LongIsland Villanova University AlumniChapter. She especially enjoys working inthe firm with her husband and partner,Frank J. Sparacino, Jr. They reside inNorthport with their two dogs, enjoy trav-eling, and are avid cruisers.For her dedication and generosity to

people in need, we are proud to awardJessica D. Sparacino the honor of beingnamed Pro Bono Attorney of the Month.

For more information on how you canserve your community in one of our probono initiatives, please call Maria Dosso,Esq, Director of Communications andVolunteer Services at Nassau Suffolk LawServices (631) 232-2400 x 3369.

Note: Maria Dosso, Esq. is the Directorof Communications and Volunteer Servicesat Nassau Suffolk Law Services. She hasworked at Law Services for over 25 years,first practicing in the areas of disability,consumer debt, public benefits and hous-ing law. Currently she manages the LegalSupport Center for Advocates, a communi-ty education and advocates’ consultationservice, and coordinates the agency’s pub-lic relations initiatives and pro bono/vol-unteer projects.

Pro bono attorney of the month - Jessica S. Sparacino

Jessica S. Sparacino

TRUSTS AND ESTATES

PRO BONO


____________________By David A. Mansfield

The Department of Motor Vehiclesintention to enact the emergency regula-tions discussed in the previous articleregarding re-licensing or restoring drivingprivileges for clients previously convictedof multiple alcohol and drug related dri-ving conviction incidents under 15NYCRR Part §136.5(a)(3) and§136.5(b)(2) will result in a permanentdenial of the application LETTER. Yourclient will receive a Part §136.5 Letterwhich will set forth the reason for theaction of the Department of MotorVehicles.The commission of a revocable offense

causes the commissioner to review theapplicant’s entire lifetime driving record.This is a revolutionary approach where the

previous scope of review wasfar more limited. The lifetimedriving record equates to thelifetime motor vehicle recordpreceding the date of the revo-cable offense under 15 NYCRRPart §136.5(b)(2). Lifetimereview is applied to those clientswho are currently revoked andhave three or four alcohol ordrug related driving convictionsor incidents. A finding of achemical Test Refusal without a criminalconviction for an alcohol or drug relateddriving offense (arising out of the sameincident and zero tolerance §1192-a find-ings), count toward meeting this thresh-old.The permanent denial letter was issued

after the expiration of a five year perma-nent revocation imposed as a result of themost recent conviction of driving while

intoxicated. The Department ofMotor Vehicles terminology forindividuals in this category is a“persistently dangerous driver”under Parts §136.5(a) and§136.5(b)(3).Your client has an option: If

he/she has unusual, extenuatingand compelling circumstances,they may file a letter with theDriver Improvement Bureau ofthe Department of Motor

Vehicles within 30 days of the date of thedenial letter. The Driver ImprovementBureau will review it and advise you ofthe results. The preferred method is to filean appeal with the Appeals Board within60 days of the date denial letter. You maysubmit unusual or extenuating or com-pelling circumstances as part of theappeal.The unusual or extenuating and com-

pelling circumstances would have to bebeyond a mere hardship of the denial of adriver’s license or privilege.You may want to document the exten-

sive efforts of rehabilitation, change in cir-cumstances, and that the client may havepreviously served a five year revocationwithout incident.Should your client be denied by the

Appeals Board, their option is to seekjudicial review by filing a CPLR Article§78 litigation in State Supreme Courtwithin four months of the date of theadverse determination.Future articles will deal with the “TVB

cliff” scheduled for April 1, 2013, and fur-ther discussion of impact of the regulationsregarding relicensing of repeat offenders.

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

Appeal of permanent denial of license/privilege application letter

David A. Mansfield

_________________By Leo K. Barnes Jr.

In our June 2009 column entitledCaveat Broker: Avoiding UnenforceableAgreements to Agree, we reviewed theprerequisites to a viable and enforceablebrokerage commission agreement.This month we explore the scope of

exclusivity owed by a broker to a seller inlight of the recent decision by the Court ofAppeals in Douglas Elliman LLC v.Tretter, 2012 WL 5833609 (2012).In Douglas Elliman LLC v. Tretter,

plaintiff Douglas Elliman Real Estate(Douglas Elliman) brought suit against

defendants Franklin and SheilaTretter (the Sellers) for failure topay a broker commission on thesale of their cooperative apart-ment. According to the decision,the Sellers retained PrudentialDouglas Elliman Real Estate tosell their apartment located inManhattan, wherein BarbaraLockwood served as the brokerfor the listing. The brokerageagreement stated that the Sellerswould be required to pay a 6 percent com-mission on the sale of the apartment. Afterthe brokerage agreement was signed,

Lockwood prepared the listingand began to show the apart-ment at open houses and byappointment. In November2008, a potential purchasermade an offer on the apartment,which was accepted by theSellers, subject to the coopera-tive board’s approval.During one of the open hous-

es at the seller’s apartment,Lockwood met Taurie Zeitzer.

After the initial bidder’s offer was accept-ed, and while the bidder was providing therequired information to secure the cooper-ative board’s approval, Lockwood com-municated with Zeitzer and her husbandvia email and showed the Zeitzers fiveother properties, including four propertieslisted through other agencies. In addition,Lockwood discussed 12 other apartmentswith the Zeitzers.Ultimately, the Sellers’ deal with the

initial bidder fell through in lateNovember 2008. A few weeks later,Lockwood again showed the apartment tothe Zeitzers. Subsequently, the Zeitzersmade an offer of $1.4 million, and inDecember 2008 the Sellers accepted theoffer and entered into a contract with theZeitzers (the Buyers) for the purchase ofthe apartment.Prior to the Sellers and the Buyers

reaching an agreement, Lockwood sentthe Sellers a deal sheet which listed a$70,000 brokerage commission (5 percentof the $1.4 million). Douglas Elliman laterconfirmed in writing that the brokeragefee on the deal sheet was correct and thatit would reduce its brokerage commissionfrom 6 percent to 5 percent if the Sellerssold the apartment to the Buyers, whichultimately occurred. Further, the contractbetween the Sellers and the Buyers listed“Prudential Douglas Elliman (BarbaraLockwood)” as the broker, and stated thatit was the Sellers’ sole responsibility topay the broker’s commission.The $70,000 commission was due and

payable at closing, however, Lockwoodwas unable to attend the closing and the$70,000 was placed in escrow. After the$70,000 was not turned over, DouglasElliman filed suit against the Sellers torecover its broker commission on the sale.In their Answer, the Sellers alleged thatDouglas Elliman was not entitled to acommission because Lockwood hadbreached her fiduciary duty to the Sellersby acting as a dual agent of the buyers.The Sellers moved to dismiss the

Complaint, and Douglas Elliman cross-moved for summary judgment on its claimto obtain the commission. The trial courtdenied both motions finding that there

Latest from Court of Appeals - Scope of Duty Owed by a Realtor to a Seller

Leo K. Barnes

VEHICLE AND TRAFFIC LAW

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_________________By Dennis R. Chase

Sometimes, you are inexplicably, yet quitenearly forced to throw caution to the wind . . .to celebrate the exuberance of an as yet unde-finable sublime moment and forget you cannotjust grab a reservation at Daniel (even on aThursday night) but with amere telephone call.We were experiencing such a moment havingjust thoroughly enjoyed opening night of TheNewYork Philharmonic inAvery Fisher Hall atLincoln Center reeling from the transcendentperformance of the inimitable Itzhak Perlman.Perlman, led by an ever spirited Alan

Gilbert, Conductor, performed selectionsfrom Rimsky-Korsakov, Massenet,Tchaikovsky,Williams, and Sarasate. Whilststill savoring the once in a lifetime opportu-nity to meet the humble genius that is ItzhakPerlman, we were apprehensive, nervous,and, truth be told, downright giddy.Perlman, intent on making us feel at ease,regaled us with some of his favorite jokeswhile we attempted to praise him on his per-formance. We left the “green room” wellafter the balance of the crowd left the build-ing, but the Main Plaza was still packed withcompletely enthralled revelers dressed intheir best formal attire.The night was clear, the stars bright, and

the weather warm as we drifted through thePlaza perplexed as to why we had not previ-ously made dinner reservations for this per-fect of perfect evenings.As we stepped acrossBroadway, we phoned Daniel with extremelylimited expectations and unsurprisingly, not atable was to be had. As we nonethelessGoogled one of the premier restaurants in theCity, we stumbled across another one ofDaniel Boulud’s creations . . . Bar Boulud.Asif destiny were a beacon to the awestruck andcompletely famished, we happened to bestanding directly in front of the famed estab-lishment. While seemingly ridiculous, weagain phoned ahead for reservations and weremore than willing to wait at the bar for anhour to secure a table. Upon entrance, how-ever, a few kind and courteous words to ourhostess rewarded us with immediate seating.One has to wonder, did Itzhak call ahead?Please allow for the delusional thinking;nothing but magic was in the air.Although touted as a casual bistro, the

design of Bar Boulud is nothing short ofbreathtaking. The tunnel-shaped room, muchlonger than wide, with a dramatic vaultedceiling, evokes the sheer essence of a winecellar. On one wall, above honey-coloredwood booths hang framed crimson blots thatrepresent wine stains. Boulud describes them

as follows, “It is made by my Brazilian friendVik Muniz. The concept arose one day whenI went to visit him in his studio and broughtmany prized wines to share with him. After adrink or two he began to experiment with thepatterns wine forms when it stains a linennapkin.” The results Boulud calls “tâches devin,” and only begin to describe the avant-garde nature of the interior’s design. All thefurniture is handcrafted with white oak, thesame materiél from which wine barrels aremeticulously produced. The backlit gravelwall harkens the “terroir” of the vineyard.(Terroir can be very loosely translated as “asense of place,” which is embodied in certaincharacteristic qualities, the sum of the effectsthat the local environment has had on the pro-duction of the agricultural product, here,wine) while the flooring is a rough-hewnBurgundian farmhouse stone.We are here, however, for the food.Boulud wanted to create a relaxed atmos-

phere where diners could enjoys the bestCharcuterie has to offer. Charcuterie is thebranch of cooking devoted to prepared meatproducts, such as bacon, ham, sausage, ter-rines, galantines, pâtés, and confit, primarilyfrom pork. Charcuterie is part of the gardemanger (literally, “keeper of the food”)chef‘s repertoire. Originally intended as away to preserve meats before the advent ofrefrigeration, they are prepared today fortheir flavors derived from the preservationprocesses. Make a selection from one of thefour choices of jambon (ham) Boulud has tooffer, although recommended is d’italie pro-sciutto san daniel or d’hongrie, a free rangeEuropean Mangalista ham.If terrines are your preference, then a nod

to Frank Bruni of The NewYork Times is quitein order. Bruni describes Bar Boulud as “aterrine machine, a pâté-a-palooza, dedicatedto the proposition that discerning NewYorkers aren’t getting nearly enough concen-trated, sculptured, gelatinous animal fat, atleast not of a superior caliber.” Highly recom-mended is boeuf pot au feu, a delectable beefcheek terrine, prepared with leek, confit, car-rot, mustard, and wonderfully crunchy andtart cornichons. Be very tempted by thechef’s signature pâté grand-père, a coarselyground country pâté, foie gras dressed withtruffle juice and port.If soups or salads are your fancy, nothing

here disappoints. The soupe de potiron is asteaming bowl of locally grown roastedsquash soup with crispy farro, spaghettisquash, and pumpkin oil. Equally satisfyingis the garbure a hearty “gascon style” soupprepared with savory duck consommé, duckconfit, root vegetables, and colza oil. Salad

quick picks are easy with betteraves et cres-son with freshly roasted red beets, crispywater cress, blue cheese, and walnut creamanointed with delicate banyuls vinaigrette.Or a simple, yet elegant, salade d’automnecombining crisp endives, pear, celery,shaved market chestnuts and dressed withwhite balsamic vinaigrette. Garnituresinclude pommes frites, cauliflower gratin,super green spinach, mushroom fricassee,vegetable jardinière, and, never to bemissed, bacon roasted Brussels sprouts.Main courses include traditional bistro fare

such as, steak frites, a black angus New Yorkstrip steak with heavenly french fries and acreamy laitue au fromage blanc, but also sur-prise withmore interesting dishes like venaisonroti, with roasted Cervena venison, cranberrybraised red cabbage, glazed pumpkin drizzledwith apple Ceylan cinnamon jus.Also differentand appealing is the daurade, a sautéed whitesea bream served with roasted baby artichoke,wilted dandelions, and glazed celery.The menu at Boulud is endless and this

review cannot even begin to scratch its quiteformidable surface. Try, however difficult itmay be, to save a bit of time and room for animpressive wine list and a tantalizing dessertmenu. Recommended are the pomone withconcord grape poached apples, granny smithmousse, peanut praliné biscuit, and peanut but-

ter-green apple ice cream or the grenadillewith abinao chocolate sabayon, raspberry con-fit, cookie dough, and passion fruit-raspberryice cream.Bar Boulud is not Daniel, but it is also not

at all pretentious. While slightly more costlythan other local fare, the food, atmosphere,and incredibly friendly, knowledgeable ser-vice make the experience very well worthyour time. Try not to rush your way throughthe incredibly enormous menu, take yourtime, enjoy the wonderfully crunchy Frenchbread and a bottle of wine, and rememberyou can always return . . . and you will.

Note: Dennis R .Chase is the currentPresident Elect of the Suffolk County BarAssociation and the current President of the St.John’s University School of Law AlumniAssociation-Suffolk County Chapter. Mr.Chase is the managing partner of The ChaseSensale Law Group, L.L.P. The firm, withoffices conveniently located throughout thegreater metropolitan area and Long Island,concentrates their practice in Workers’Compensation, Social Security Disability,Short/Long TermDisability, Disability PensionClaims, Accidental Death andDismemberment, Unemployment InsuranceBenefits, Employer Services, and RetirementDisability Pensions.

When a reservation at Daniel is impossible (like . . . always)go to Bar Boulud, Daniel Bouloud’s casual bistro

Bar Boulud1900 Broadway (between 63rd & 64th Streets)

New York, New York 10023212.593.0303

www.danielnyc.com/barboulud.htmlExecutive: Olivier Quignon

________________________By Maria Veronica Barducci

In the aftermath of hurricane Sandy,Touro Law Center opened its doors to itsHurricane Emergency Assistance andReferral Team Center (TLC-HEART).Comprised of disaster-relief trained stu-dents and volunteer attorneys, the centeroffers assistance to members of the com-munity, including students and staff mem-bers, who are in need. It offers assistancein assessing eligibility and completingapplication forms for the wide range ofemergency assistance available to stormvictims, such as food stamps, governmentloans and grants. The Center also offersreferrals for free consultation and providesadvice on storm-related legal issues,including: unemployment, insurance, con-sumer complaints and landlord-tenant

matters.Additionally, Touro Law has a

Public Advocacy Center whichhouses a dozen not-for-profitinterest law groups. They pro-vide assistance with issuesinvolving senior citizens,employment, disability, familylaw and domestic violence. Theagencies within the PublicAdvocacy Center have agreed tohelp provide additionalresources and support for thevictims of hurricane Sandy.In conjunction with the PublicAdvocacy

Center, Touro Law has joined forces withother associations on Long Island and NewYork. They are coordinating with the NewYork State Bar Association, the SuffolkCounty Bar Association and federal, state

and local officials in Nassau andSuffolk County. CongressmanSteve Israel has also joined theefforts of Touro Law byannouncing that he will call onthe Consumer FinancialProtection Bureau to appoint aFederal Insurance OversightMonitor to ensure that con-sumers are not being takenadvantage of.Dean Patricia Salkin outlined

in a press conference held a fewdays after the storm, that “based on theexperiences from other natural disasters inthe state and across the county, the imme-diate pro bono assistance of trainedlawyers and supervised law students is inimmediate demand and will be a neces-sary component of rebuilding for many

months to come.” Hopefully TLC-HEARTcan be a valuable resource for anyone inthe affected community who is in need,might that be now or in a few months.If you or anyone you know is in need of

assistance you can contact TLC-HEARTat (631) 761-7198 or at [email protected]. The telephone hotline will beanswered live Monday through Thursdayfrom 9:00am to 6:00pm and on Fridayfrom 9:00am to 3:00pm.A voicemail mes-sage can be left 24/7.

Note: Maria Veronica Barducci is athird-year, full-time student at TouroCollege Jacob D. Fuchsberg Law Centerwith an interest in International Law. Shegraduated from St. John’s University in2010 with a Bachelor of Arts in Englishand Italian.

Pro Bono Storm Relief Center at Touro Law Center

RESTAURANT REVIEW

FUTURE LAWYERS FORUM

Maria VeronicaBarducci


______________________By William E. McSweeney

“As the sole object of Government inChartering this Vessel in our Service at avery considerable expense is to furnish theWest Indian Islands with the Bread-Fruit& other valuable productions of the East,the Master & Crew of her must not thinkit a grievance to give up the best part ofher accommodations for that purpose.”(Italics added.)

Thus writes the independently wealthyJoseph Banks to the British Admiralty. Inearly 1787 the renowned and influentialnaturalist sets forth preconditions to hisunderwriting of a projected expeditiondevoted to the gathering of flora, principal-ly Artocarpus incisa, breadfruit, fromPacific Islands, this for the purpose ofintroducing them to the west, where it washoped they would propagate. Banks’s let-ter makes clear that, of taxonomist CarolusLinnaeus’s two Kingdoms, Animalia andVegetabilia, the healthy arrival of the latterwas to be given preeminence.Dubious preeminence aside, such trans-

plantation would appear to be a noble goal— our own premier agriculturist ThomasJefferson wrote that “…no greater servicecan be rendered any country than to intro-duce a new plant to its culture” — were itnot that the Admiralty’s real hope was thatcheap high-energy food sources, repre-sented by the breadfruit, could serve anignoble purpose: the nourishment ofAfrican slaves on colonial plantations inthe Caribbean.___________________________________________________________________________________

The Bounty: The True Story of the Mutinyon the BountyBy Caroline Alexander.Charts, illustrations, and photographs.491 pp., Viking, New York, NY.ISBN: 0-670-03133-X.___________________________________________________________________________________

While this hope was patently evil, acompanion evil, this one insidious,inhered in the project — an evil whosegestation occurred at the time of ElizabethI. In the seventeenth century she hadgranted royal charters to private tradingcompanies, these to serve principally thestate’s interests — the setting up andadministering of colonial governments,the organizing of fair trade agreementsbetween nations, the controlling of cus-toms duties; by dint of these operations,the trading companies in effect made for-eign policy. But the inevitable desire tomaximize profits soon enough trumped

the desire to serve governmentinterests, to the point wherethese ever-expanding, essential-ly state-sanctioned, monopoliesconsidered any public responsi-bilities as being merely inciden-tal. Worse, these sovereign-chartered corporations weresteadily approaching in terms ofpower the sovereign who hadgranted them their charters.Thus was begun the nationalgovernments by corporations.By the time, then, that Banks wrote his

letter, not only did corporations imposeinfluence over government, wealthy indi-viduals did. But the Admiralty was eitherignorant or heedless of the letter’s impli-cation. Always with an eye toward defray-ing the crown’s costs — that which hadmotivated Elizabeth’s granting of charters— the governing board of the world’smost powerful navy therefore acceded to aprivate citizen’s terms and conditions;thus, even before the ship assigned to theexpedition had stood out to sea, its masterand crew had preemptively been strippedof the “best part of her accommodations.”This meant, among other things, that theship’s commander would be deprived ofthe great after-cabin, this to be given overto the stowage of breadfruit, and would berelegated to a humble bunk abeam of theship’s pantry, a relegation unlikely to con-fer dignity or authority on the commander,one unlikely to inspire respect from hiscrew. In effect, then, the Admiralty, in anact virtually guaranteeing the devastationof ship’s morale, had itself imperiled thevoyage.The ship’s master chosen for this

already-compromised expedition was a33-year-old Lieutenant, a career Navyman, a fore thinker, one who understoodthe especial importance at sea of a dietrich in citrus fruit and green vegetables;one who humanely did away with the pun-ishing alternate of four hours on, fourhours off, instead institutingthree watches, thereby assuring each

man a full eight hours’ sleep; one who, ina final health measure, insisted that eachof his 46-man ship’s company keepimmaculate his vessel, his clothing, andhis person — all to be done as a means ofpreventing deadly infection. (In this lasthe was in advance of medical doctors ofthe time, who autopsied in the morning,operated in the afternoon, with no inter-vening scrubbing of their hands with car-bolic or soap.)The skipper was a superior navigator,

ever-generous with his time and knowl-

edge when instructing youngable-bodied seamen; on the pas-sage to the Pacific, he wouldprove to be generous as wellwith what little money he had,advancing as needed sums to themaster’s mate. The Lieutenantconsidered flogging proof ofcommand failure, and would useit only as a last resort. Who wasthe Lieutenant? If the sailorsamong you guessed the enlight-

ened James Cook, you’re close. The manchosen by the Admiralty to command theTahitian expedition of 1787 was CaptainCook’s ablest protégé, William Bligh.To those of us brought up on the Bligh

of Nordhoff and Hall, and, derivatively,the Bligh of Metro-Goldwyn-Mayer, theman revealed in Caroline Alexander’sexcellent The Bounty: The True Story ofthe Mutiny on the Bounty is a surprisingfigure. Even our most basic knowledge ofhim, our unseverable conjoining of theman’s rank and surname, has been wrong;he wasn’t “Captain Bligh,” he wasLieutenant Bligh.And what a world of difference this one-

grade inferiority in rank was to hold! Hadthe mercantile undertaking been instead astrategic one, had priority or prestigeattached to the voyage, then His Majesty’sShip given over to it would have beenmajestic, a formidable, heavily armedsloop of war, a ship whose measurementwould have far exceeded the 85-footlength-over-all of the humble cutter, mea-gerly armed, that was the Bounty. Had theship been a warship, then it would per-force have been skippered by a captain. Acaptain would have been entitled to,assigned, a detachment of Marines, itselfto be berthed within the waist of the ship,thus serving belowdecks as a firewallbetween command quarters and the fore-castle; abovedecks, it would have servedas the captain’s bodyguard, and altogetherwould have imposed power on a comman-der’s orders. A long list of would-have-beens! In the event, the lowly, ultimatelyluckless, lieutenant could look to noMarines. The voyage enjoyed no prestige;the skipper possessed no power. Indeed,vis-à-vis his crew, Bligh’s position wasanalogous to that of today’s bus-driver:real responsibility, titular authority.On December 23, 1787 the Bounty

weighed anchor off Spithead, Portsmouth,and made sail for Tahiti. The passage wasan arduous one, with the little ship contin-ually blown off course by unfavorablewinds, ever-battered by mountainouswaves, its pumps manned constantly

throughout all watches. Yet greater troublelay ahead, upon the ship’sraising of the storied island, that which

Bligh poetically characterized as “theParadise of the World.”Tahiti — ever the delight to sailors, with

its beckoning Palms; gentle lagoons;abundance of fish, fruit, and game; unin-hibited native women: all collectivelyforming a sirens’ chorus, encouragingdesertion among ship’s crew.And a choruswhich has proven irresistible to some,timelessly unto our own day: in the 1930sand 1940s the realistic Irving Johnson,skipper of the brigantine “Yankee,” andalert to the island’s temptations, wiselyheld layovers at Tahiti to a strict timelimit, thereby keeping ship’s companyintact. In the late 1950s the romanticSterling Hayden, skipper of the schooner“Wanderer,” unwisely allowed a long lay-over, thereby losing some of his crew tothe island’s enchantments.Ominously, Bligh’s layover, from the

time the Bounty dropped anchor inMatavai Bay on October 27 to the time itweighed anchor from that same bay onApril 5, was to exceed five months. Thesemonths were spent in the overhauling andre-fitting of the ship; the gathering of woodand water to be stowed in its hold; the har-vesting of breadfruit and other plants, theseultimately numbering 1015, to be stowedprincipally in the great after-cabin.That many among the crew now and

again frolicked and detoured from theirlabors was manifested by their wistful gazeshore-ward, on the eve of their leave-tak-ing, to a point beyond the moon-reflectingsea. “Some of the Bounty’s men,” writesAlexander, “looked up from their work onthe ship…across the water to the rustlingskirt of palms and the dense canopies offragrant trees they now knew so well…anddreaded the day of departure. Not just a lifeof ease, but friends, lovers, common-lawwives, in some cases their future childrenwould be left behind.”As against the open, paradisiacal exis-

tence the men had known was the prospectof their returning to sea, on a ship withscant rations; a ship whose already-cramped quarters were being furthercramped by the ever-expanding spacegiven over to accommodate breadfruit; aship whose abovedecks scope of move-ment averaged a mere two linear feet perman; a ship, finally, the service to which,as to all ships, imposed on its commonseamen those eternal concomitants of lifeat sea, celibacy and discipline. Small won-der it was said among sailors of the time

Bligh, Reconsidered

William E. McSweeney

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________________By Justin Giordano

The First Amendment’s free speechand its significance

The U.S. Constitution’s first 10 amend-ments are known as the “Bill of Rights.”The importance of these first ten amend-ments lies in their objective, namely toprotect the individual from their govern-ment. More specifically, the individual isto retain all rights that the constitutiondoes not specifically grant to the state. Allother rights remain with the “people” andwith the individual.Lest one forget the American constitu-

tion was framed at a time when govern-ments, whatever their forms (be theymonarchies or other centrally controllednation-states) essentially retained controlover the individual granting him/her onlythe morsels that it chose to dispense interms of individual rights. The averageindividual, especially not one in the privi-leged class, was thus considered no morethan one of the faceless, lacking in rightsmembers of the masses, which constitutedtheir nation’s populace and whose primarypurpose was to serve the nation-state.To a great extend these remains the case

in many modern day, so-called developednations. For example the foundation ofFrench law still holds to the principle thatan accused individual is guilty until he isproven innocent, while the Americanfoundational counterpart clearly affirmsthat the accused in innocent until provenguilty. Needless to say, that the modernday French legal system has seen a torren-tial infusion of modifications since itsNapoleonic Civil Code was introducedover two centuries ago. The result is that,in its effective application, almost thesame amount of safeguards protecting thewrongfully accused individual are in placeunder French criminal law as there areunder American criminal law.

The overarching point beingmade in the above paragraphshould be obvious - the firstamendment of the U.S.Constitution is the first amend-ment for a reason. The framersconsidered it vital. One of therights that the first amendmentprotects is the right to freespeech as well as free expres-sion, although free expression ofideas can be more easily restrict-ed than free speech per se. For example, ifone believes that taking hallucinogens is acomponent of that individual’s religious orother beliefs the expression of that belief oreven speech can be restricted if state or fed-eral law makes it illegal.The American embassy in Benghazi,

Libya, was attacked on Sept. 11, 2012 bywhat is now been confirmed as terroristsaffiliated directly or indirectly with AlQaeda or other Libyan based affiliates.The reports that have come out indicatethat a terrorist group claimed responsibili-ty for the attack that killed the Americanambassador to Libya along with threeother Americans including two formerNavy Seals. However, the Obama admin-istration claimed for a number of weeksfollowing the attack that the assault inBenghazi was the result of a spontaneousreaction by a mob to an internet video clipthat defamed Islam and its prophet. TheU.S. Ambassador to the United Nations,Susan Rice, went on no less than fivemajor networks Sunday morning newsshows the week following the attackclaiming in no uncertain terms that theBenghazi assault was the direct result ofthe video clip in question.The President himself, while correctly

underscoring that the content of the videowas repugnant to Americans, also alludedto the incident as being a consequence ofthe video clip in his address at the U.N.approximately three weeks after the

September 11, 2012 event.There is no question from all

accounts that the video in ques-tion was repulsive in terms of itscontent, defamatory and wasmade with the intent to causeinjury to one of the world’s majorreligions. The video in questionwas produced by an individualnamed Mark Basseley Youssef,an elusive, rather shady characterwho may have run afoul of the law

in the past and even currently.However, Youssef’s character is not at

issue in so far as the First Amendment.Youssef, under the orders of the JusticeDepartment, was arrested literally in themiddle of the night in September 2012. Hewas subsequently indicted on a number ofapparently minor charges including usinga false name and procuring false identifi-cation, which enabled him to presumablyget involved in other nefarious activitiesthroughout his allegedly not always lawabiding career, and on November 7, 2012he pleaded guilty to four charges and willbe incarcerated for one year.The issue is not whether Youssef should

have received a year of jail time. After all,procuring and using false identificationshould not be considered a light matter andthus his sentence could be validly arguedto be equitable and not out of the norm.However, what is disturbing here is

whether selective enforcement is on dis-play vis-à-vis the procurement of falseidentification. There are approximately11,000,000 or more individuals that arecurrently residing and/or working in theUnited States that have no proper docu-mentation, or plainly put are here illegally.Many of them have procured social secu-rity cards under false pretences, as well asother documents along those lines.Similarly many underage individuals oftenobtain false identifications intended tomake them pass as old enough to enter

nightclubs, purchase liquor, and for othersuch purposes.It’s plainly obvious that the intensity

with which the Justice Department pur-sued this case stands in stark contrast, toput it mildly, to how the department hasdealt with the vast majority of other fla-grant cases involving the procurement offalse Ids.This invariably raises the question of

whether this is case of the government try-ing to cover for its mistake(s) by tramplingon the first amendment? The assistant pros-ecutor in charge of prosecuting Youssefstated that the defendant “was not herebecause of the content of the movie.” Fairenough, however the same prosecutor alsoadded at the sentencing hearing that thedefendant betrayed the actors that played inthe infamous movie by not informing themabout his past, as well as dubbing oversome of the lines that they spoke. Againthis is all fine and good as it goes to thecharacter of the defendant, which is all partof due course in a sentencing hearing, butthe question that beckons is why was theso-called movie brought up if the defendanthad just pleaded guilty to procurement offalse identifications and related crimes?The First Amendment is not merely a

lofty principle to be lauded when it’s polit-ically convenient. In fact it’s intended tocome into play in the exact opposite situa-tion, namely to protect odious (as was thecase here), highly unpopular speech.Simply put, if the average citizen is giventhe impression that the government willcavalierly deal with matters that may havefirst amendment implications then the Billof Rights itself will be severely dimin-ished in its efficacy, to the detriment ofevery inhabitant in the nation.

Note: Justin A. Giordano is a Professorof Business & Law at SUNY Empire StateCollege and an attorney in Huntington.

First Amendment Games?

Justin Giordano

AMERICAN PERSPECTIVES

NYSBA President Seymour Jameswas proactive in assisting not only ourbar but all of the downstate bar associ-ation presidents as well in coordinat-ing our response to this disaster.Thanks are also due to BarrySmolowitz, Jane LaCova and TouroLaw School for their efforts in assist-ing me and the SCBA in responding tothe needs of our members and the com-munity at large. Many of our Academyof Law programs had to be canceledduring this period of disruption but weare resilient and fortunately we havebeen able to reschedule most of theseprograms.I sent a letter prepared by our Real

Property Committee in Nov. on behalf ofthe SCBA to many of our elected offi-cials requesting that the governmentextend the Mortgage Debt Relief Act of2007 beyond its then scheduled expira-tion date of Dec. 31, 2012. I receivedpositive responses from some of ourelected officials, including Sen. ChuckSchumer, who indicated that such anextension is included in the Senate TaxExtender Package and that they wouldsupport such legislation. As this exten-sion is crucial to our clients as well asthose of our members who handle real

estate short sales, bankruptcies, mort-gage foreclosures and other related areasof the law, and because of the impact thatfailure to extend would cause, I am hope-ful that this extender bill will receivebipartisan support.On Nov. 20, 2012, NYSBA Pres.

Seymour James sent a letter, which wassigned by myself and many other localBar Association presidents, to our U.S.Senators and 29 members of the Houseof Representatives from New York,requesting that our congressional delega-tion protect the public’s access to justicewhich would be harmed if sequestration,capping spending in this vital area, isimplemented in the new year. Hopefullymembers of both political parties willreach a bipartisan agreement on this mat-ter.On November 28, 2012, I had the privi-lege of sending out a letter to theNational Council of Bar Presidents(NCBP), nominating our very own pastpresident Scott Karson for the presti-gious 2013 NCBP Fellows Award whichis presented by the ABADivision for BarServices to a past president of a local BarAssociation. This award has been in exis-tence since 2006 and no one from NewYork has ever won before. Based upon

Scott Karson’s qualifications, his exten-sive involvement in our bar, the NYSBAand the ABA, I cannot think of a bettercandidate for such an award and hopeful-ly the NCBP agrees with me.On Friday, Dec. 7, the SCBA held its

annual holiday party and as usual, a largecrowd attended to take part in the merri-ment with many past bar presidents andmembers of the judiciary joining us. Aspecial thank you to our fabulous caterer,Fireside, in providing the great food anddrink that evening and to our DJ LennoxBernard in creating the ambience thatonly a great mix of music playedthroughout the evening can deliver.All of you are invited to join me at

the SCBA Judicial Swearing-In andRobing Ceremony which will be heldon Monday, Jan. 7, 2013, at 9 AM inthe auditorium of Touro Law Center atwhich time all of our new or reelectedjudges will receive either their firstrobes or plaques commemorating theirreelection. For the past 12 years or so,I have had the pleasure of attendingthese ceremonies overlooking from thebalcony while videotaping the event sothat the SCBA could produce a DVD tobe provided to each of the judgessworn in. This year my view of the

event will be significantly different inthat I will be on the dais presenting ournew or reelected judges with theirrobes or plaques.The judges in Suffolk County are amongthe most qualified and distinguishedmembers of the judiciary anywhere inNew York State and have always beenstrong supporters of the Suffolk CountyBar Association, as demonstrated bytheir participation in many of our eventsand serving on our various committees,and deserve our support.At a recent Board of Directors meet-

ing, approval was given for the expendi-ture of funds necessary to completelyredecorate the attorney’s lounge locatedon the second floor in the Central IslipCourthouse. I asked Donna England andBill Ferris of our Executive Committeeto move as soon as possible with thepurchase of the new furniture for thelounge. Once done, the attorney’slounge will be a welcome place for ourmembers to repose between courtappearances.I hope everyone was able to have a

warm, safe and happy holiday season.May we all be blessed in the New Yearwith good health, prosperity and fairskies.

President’s Message (Continued from page 1)


Bligh Reconsidered (Continued from page 19)

that serving before the mast, with all itsdemands and deprivations, was like beingin jail, with additionally, a fair chance ofdrowning.On April 28, 1789, as dawn broke,

mutiny erupted. Bligh was seized, bound,and brought up on deck, there to face theleader of the mutineers, master’s mateFletcher Christian. At the mate’s com-mand, Bligh and 18 men loyal to him wereput aboard a launch, a deckless launch of23 feet length-over-all, a beam of sevenfeet, a draft of three feet. When fullyloaded, with Bligh and his loyalists, withbread, pork, rum, wine, and water, thelaunch displayed a scant seven inches offreeboard and this in a calm morning sea.From his humble craft, Bligh shouted aconditional reassurance to those men heldagainst their will: “Never fear, my lads; I’lldo you justice if I ever reach England!” Indivergent directions, both craft made sail.Justice would be delayed. Courts-mar-

tial and the judicial weighing of disputa-tious accounts from scores of “evidences”(read witnesses), these would occur insome indefinite future. For now, Bligh’sbig “if,” the attaining of England began.What’s never been in dispute, the timelesssource of admiration among all of theworld’s sailormen, is Bligh’s unexampledseamanship and leadership in the after-math of the mutiny.Quickly summarized, but long endured,

the launch’s journey measured 3,618miles and took 48 days — these miles, thistime-span, covered in an open boat withstarvation rations. From Tofua, in theFriendly Islands, to Coupang, Timor, aDutch settlement, Bligh navigated flaw-lessly, losing none of his men to the sea.The only casualty was quarter-masterJohn Norton, killed by natives while for-aging on Tofua in the early days of theeastward passage; after this incident, thepragmatic Bligh decided the launch wouldmake no more landfalls.Bligh would return to England, where

he would proffer ship’s log and deposi-tions to the Admiralty, and thereafter be

assigned to another breadfruit expedition,this one to be successful. Ten accusedmutineers would soon enough be cap-tured, in their turn be brought to England,and would face court-martial. The cap-tains who presided were themselves veter-an sea-goers, all of them understandingthat a sailing ship is no democracy. Theyweren’t swayed by those few of theBounty’s crew who spoke of outbursts oftemper, intemperate language, and a strictaccounting of foodstuffs on the part of acommander, himself solitarily responsiblefor the safety of his ship and those whoserved her.Though they didn’t voice his words, the

captains were governed by the spirit ofLord Byron. As always, the succinctness,the accuracy, the truth of poetry encapsu-lates all. The romantic poet gave the lie tothe pretext of shoddy treatment by theircommander as reason for his crew’smutiny:

“Young hearts, which languish’d forsome sunny isle,

Where summer years and summerwomen smile;

Men without country, who, too longestranged,

Had found no native home, or found itchanged,

And, half uncivilized, preferr’d the caveOf some soft savage to the uncertainwave.”

Four among the accused would beacquitted; six convicted; three of thesehanged.Bligh would be adjudicated as faultless,

not seen by the Admiralty as the cruelmartinet otherwise portrayed in the con-temporary press, but indeed seen as a duti-ful commander worthy of respect by all, aconclusion which would be ratified inyears to come. In the spring of 1797 theinfamous Nore mutiny occurred, wherein

“…mutineers…demanded that certainunpopular officers be removed from

thei ships…they peremptorily sentashore a stream of disfavored com-manding officers…in varying degreesof popular disgrace…William Blighwas not among these ‘offenders.’”

To the contrary, Rear Admiral Bligh hadbeen among those officers delegated tourge the seamen to return to duty, and theeffort was successful. Concessions madeby the Admiralty included the removal ofmore than one hundred officers whom theseamen most resented. Tellingly, Bligh’sname was not included on the list.At age 64, he would die, ashore, on

December 7, 1817. The inscription on hisheadstone would pay tribute to

“…the celebrated navigator who firsttransplanted the Bread Fruit Tree…tothe West Indies, bravely fought thebattles of his country; and diedbeloved, respected, and lamented…”

Two decades after the mutiny, by hap-penstance an American sealer, the Topaz,raised a mischarted Pitcairn Island. Therethe ship’s captain and crew met the soleunadjudicated survivor of the mutiny,

John Adams, and met as well numerousmutineers’ widows and their children.Among these last was Thursday OctoberChristian, son of the mutiny’s leader.Clearly, the sins of his father hadn’t beenvisited upon him. The young man wasrobust, handsome, living in abundanceand tranquility with his own wife and fam-ily. FromAdams, the captain heard of thatshort life subsequently lived ashore by theprincipal mutineer, the former deep-watersailor whose days on Pitcairn were to bebound, as Shakespeare would have it, “inshallows and in misery.”After taking aboard the Bounty many

of their Tahitian wives, as well as manynative men, the mutineers raised Pitcairn,purposely wrecked the ship upon itscoastal rocks, and, aboard small launches,gained the island. Though the colony ulti-mately prospered, within a year its leader

descended into madness. “Christian him-self,” Alexander writes,

“was never the same after the mutiny.He was sullen and morose and (accord-ing toAdams) ‘having, by many acts ofcruelty and inhumanity, brought onhimself the hatred and detestation ofhis companions, was shot by a blackman whilst digging in his field, andalmost instantly expired.’”

So ended the lives of Bligh andChristian. And of that which formed thematrix within which their dual story orig-inated? The breadfruit? NotwithstandingBligh’s ultimate success at transplanta-tion, those trees introduced to the WestIndies would produce only one-sixth theamount of fruit of those indigenous toTahiti; even had the transplants provenmore fecund, it would not have mattered.TheAdmiralty would witness a reversal ofexpectations — fittingly, given the igno-bility of its goal. Subsumed within thegreater cruelty of slavery was a lesser cru-elty. For, in the event, the sufferingendured aboard the Bounty, as well as thatendured aboard subsequent ships similarlyEmbarked, would count for nothing: the

slaves refused to eat the hard-won prod-ucts of all these hazardous voyages. To theslaves, a bland fruit; to the voyagers, a bit-ter irony.Exhaustively researched, elegantly

written, The Bounty: The True Story of theMutiny on the Bounty is a compelling nar-rative.

Note: William E. McSweeney, a memberof the SCBA, lives in Sayville, hard byGreat South Bay. His written work hasappeared in “Sail” magazine and “LongIsland Boating World.” In 1963 he fell inlove with sailing, having been introducedto it by his beloved father-in-law, JackShortell: warrior in the China-Burma-India theater; electrician; carpenter;mason; reader; writer; raconteur; sailor-man extraordinary.

Voiding recorded instruments (Continued from page 1)

county land records for only 73 minutes.In 2009, Bluewater Real Estate con-

veyed the same property to Mr. and Mrs.Mayfield. In connection with the pur-chase, the Mayfields gave a mortgage toOld National Bank.First City Bank commenced foreclosure

proceedings against Wright &Associates in2010. The Mayfields and their lender werealso named as defendants. The Mayfieldsclaimed bona fide purchaser status andmoved for summary judgment on that basis.The relevant Florida recording statute

provides that instruments delivered to theclerk for recording “shall be deemed to havebeen…officially recorded, at the time she orhe affixed thereon the consecutive officialregister numbers and at such time shall benotice to all persons” (emphasis supplied).Based on this unambiguous language,

the court felt constrained to find in favorof the foreclosing lender. Mindful, howev-er, of the harshness of this result, the courtpointed out that the appellants may have a

remedy against the clerk, who could notclaim sovereign immunity.

The policy debateMuch of the ensuing debate framed the

issue as if it were merely an indexingerror: shouldn’t the earlier lender bear theresponsibility of ascertaining that its mort-gage is properly indexed? This analysismisses the point.Assuming, arguendo, that such a policy

makes sense when an instrument is mis-indexed, the earlier lender in Mayfieldwould have carried this burden had it ver-ified that its mortgage was indexed duringthe 73 minutes it appeared of record.Moreover, the outcome would have beenno less unfair.Clearly, the analytical framework

should focus on the authority of the clerkto “void” or otherwise remove statutorilyrecorded instruments from the recordand its obligations to the various stake-holders in the process. The Mayfield

opinion does not address this aspect.

Can it happen here?Faced with an identical fact pattern, a

New York court might follow the Floridalead and rely on RPL §317 to validate therecording (every instrument is consideredrecorded from the time of delivery to therecording officer). However, there is noNew York statute or regulation of generalapplication that authorizes “voiding” orremoval of land records. Likewise, noreported case directly addresses the issue.The New York State Attorney General

has opined that the county clerk mayremove erroneously recorded documentsfrom the record (Inf. Op. No. 95-45). Thescenario presented to theA. G. involved theinadvertent recordation of a document thatwas not tendered to the clerk for that pur-pose. Nevertheless, the cases cited in theInformal Opinion concern internal clericalerrors made by adjudicative administrativeagencies. Hence, their applicability to the

public record-keeping function of theCounty Clerk is questionable.Suffolk and Nassau Counties are subject to

separate statutory provisions setting out proce-dures for correcting indexingerrors.Bothdirec-tives require the preservation of the originalentry and the notation of the correction along-side (seeRPL§316-A, ¶9 (Suffolk) andNassauCountyAdministrative Code §19-24.0).While authority to remove properly

recorded documents lacks clear definition,any removal in Nassau or Suffolk should,at a minimum, trigger the obligation to“correct” the index. Such correctionshould alert a subsequent purchaser thatsomething is amiss.

Note: Lance R. Pomerantz is a sole prac-titioner who provides expert testimony,consultation and research in land title dis-putes. He is also the publisher of the wide-ly-read land title newsletter ConstructiveNotice. For more information, please visitwww.LandTitleLaw.com.

Advertise in The Suffolk LawyerCall 631.427.7000


constructive trust claims were governedby CPLR §213(1)’s six year statute of lim-itations, which begins to run upon theoccurrence of the wrongful act giving riseto the duty of restitution and not from thetime the facts constituting fraud were dis-covered. The subject property was pur-chased in 1999, and the decedent died onNov. 19, 2009. The alleged wrongful con-duct occurred after her death when defen-dants sought possession of the property.The instant action was commenced onMarch 23, 2010, which according to thecourt was clearly within the time restraintsof CPLR §213(1). The defendant furthersought dismissal alleging that the plaintifffailed to proffer a written instrument inviolation of the statute of frauds.However, the court noted that such groundwas without merit as the statutes of fraudsdid not bar a cause of action for a con-structive trust, since by its very nature aconstructive trust did not require a writing.With regard to defendant’s contention thatplaintiff failed to meet their evidentiarythreshold to support a cause of action for aconstructive trust, the court reminded thedefendants that on a motion for summaryjudgment it is the movant who must firstmake a prima facie showing of entitlementto judgment as a matter of law prior to theplaintiff being required to present evi-dence raising a triable issue of fact. Thecourt found that defendant failed to meetsuch burden.

Honorable William B. Rebolini

Motion to dismiss denied; plaintiff to be

afforded opportunity to proceed throughdiscovery.

In Miranda M. Malone and Kaitlyn P.Malone, infants, by their father and naturalguardian, James P. Malone v. County ofSuffolk, Richard Dormer, former Commis-sioner of the Suffolk County PoliceDepartment, Haven Drugs, Inc., VinodaKudehadkar, as Owner, Chairman and/orChief Executive Officer, Stan Xuhui Li,M.D., and certain doctors who prescribednarcotics to David Laffer, currentlyunknown but identified as John Does 1-5,Abbott Laboratories and John Does 6-10,manufacturers and distributors of prescrip-tion narcotics, including hydrocodone, andRalph Taccetta, Index No.: 4112/12, decid-ed on Nov. 6, 2012, the motion by defendantStan X. Li., M.D., for an order dismissingthe amended verified complaint was denied.The court noted that the plaintiff sought torecover damages of pain and suffering ofthe decedent and wrongful death, againstDr. Li upon allegations that he prescribedapproximately 2,500 narcotics pills toDavid Laffer between 2009 and 2010 andthat Dr. Li knew or should have known thatprescribing narcotics to a drug addict wouldincrease David Laffer’s dependency on saidnarcotics and therefore result in drasticattempts to procure said narcotics by DavidLaffer, including robbery of pharmacies/drug stores and the murder of those insideand that Dr. Li recklessly disregarded hisobligation and duty not to over prescribenarcotics to a narcotics abuser. The courtnoted that it appeared that the plaintiff madeno claim that Dr. Li was liable in medical

malpractice, and to the extent that such aclaim was asserted, however, the absence ofa doctor patient relationship between plain-tiffs and defendant precluded a cause ofaction based on medical malpractice. Indenying the motion, the court noted that atthis stage in the proceedings, plaintiffsshould be afforded the opportunity to pro-ceed against Dr. Li to explore through dis-covery proceedings the level of his allegedinvolvement, if any, in Laffer’s addictionand whether Dr. Li knew or had reason toknow that Laffer presented a risk of harm tohimself or others.

Motion to dismiss granted; no showingof special duty owed

In Antonio Mejia, as the Administratrixof the Estate of Jennifer Mejias, deceasedand Antonio Mejias, Individually v. DavidLaffer, Melinda Brady, Suffolk CountyPolice Department, Stan Xuhui Li, EricJacobson, Eric Jacobson, M.D., P.C.,Mark C. Kaufman and Family MedicalPractice of Bay Shore, P.C., IndexNo.:10778/12, decided on November 16,2012, the court granted the motion bySuffolk County Police Department for anorder dismissing the complaint against it.In granting the motion, the court notedthat to establish that there existed a specialrelationship between plaintiff’s decedentand the police sufficient to supply the req-uisite special duty of care, plaintiff wasrequired to allege facts sufficient to showthat there was (1) an assumption by theSCPD, through promises or actions, of anaffirmative duty to act on behalf of the

plaintiff’s decedent; (2) knowledge on thepart of the SCPD’s agents that inactioncould lead to harm; (3) some form ofdirect contact between the SCPD’s agentsand the injured party; and (4) that party’sjustifiable reliance on the SCPD’s affirma-tive undertaking. Here, absence of factualallegations in the complaint addressing theforegoing factors demonstrated that, as amatter of law, plaintiff could not demon-strate that SCPD owed a special duty tothe plaintiff’s decedent.

Please send future decisions to appear in“Decisions of Interest” column to ElaineM. Colavito at [email protected] is no guarantee that decisionsreceived will be published. Submissionsare limited to decisions from SuffolkCounty trial courts. Submissions areaccepted on a continual basis.

Note: Elaine Colavito graduated fromTouro Law Center in 2007 in the top 6% ofher class. She is an Associate at Sahn WardCoschignano & Baker, PLLC in Uniondale,a full service law firm concentrating in theareas of zoning and land use planning; realestate law and transactions; civil litigation;municipal law and legislative practice;environmental law; corporate/business lawand commercial transactions; telecommu-nications law; labor and employment law;real estate tax certiorari and condemna-tion; and estate planning and administra-tion. Ms. Colavito concentrates her prac-tice in matrimonial and family law, civil lit-igation and immigration matters.

trial court erred by imposing a duty on thePCP to examine the mass or, alternatively,to speak with plaintiff regarding the con-dition. Id. at 161. Relying on precedentfrom multiple judicial departments, theAppellate Division unequivocally con-cluded that a PCP has no duty to “over-see” the treatment of another physiciantreating the same condition. Id., 97A.D.3d at 160-62.In fact, the Burtman Court highlighted

the risks of taking a proactive approach, orcreating the appearance of such, regardingan illness treated by another physician. Forexample, in Maggio v. Werner summaryjudgment was denied because it wasunclear whether defendant physician“[u]ndertook to advise plaintiff” about amass found in the patient’s breast. 213A.D.2d 883 (App. Div., 3d Dep’t 1995).More recently, the Appellate Division,

Third Department denied summary judg-ment after the PCP, who had been active-ly treating the patient for 13 years, reliedon the patient’s statements that his chestpains had diminished and assumed thepatient’s cardiologist would refer thepatient to a gastroenterologist. Daughartyv. Marshall, 60 A.D.3d 1219 (App. Div.,3d Dep’t 2009).Primary care physicians may avoid dis-

cussing and treating ailments under anoth-er physician’s care. Otherwise, the PCPmay be liable for another physician’s mal-practice should it be demonstrated thePCP had a duty to care and failed to act inaccordance with good and accepted stan-dards of practice. Accordingly, notwith-standing a PCP’s instincts to treat and

inquire regarding all of the patient’s ail-ments, other than recommending thepatient visit a specialist, less may clearlybe more when it comes to liability.

Note: The Honorable Stephen L. Ukeileyis a Suffolk County District Court Judge.Judge Ukeiley is also an adjunct professor atthe New York Institute of Technology and amember of the Board of Directors of theSuffolk County Women’s Bar Association

and the Executive Committee of theAlexander Hamilton American Inn of Court.Judge Ukeiley is a frequent lecturer andauthor of numerous legal publications,including The Bench Guide to Landlord &Tenant Disputes in NewYork©. Beginning inJanuary 2013, he will be joining the facultyat the Touro College Jacob D. FuchsbergLaw Center as an adjunct professor.

Note: The information contained herein

is for informational and educational pur-poses only. This column should in no waybe construed as the solicitation or offeringof legal or other professional advice. Ifyou require legal or other expert advice,you should consult with an attorneyand/or other professional.

1 The national average payment per claimfor the same time period was $334,559. Id.

Bench Briefs (Continued from page 4)

Views from the Bench (Continued from page 4)

Scope of Duty Owed by a Realtor to a Seller (Continued from page 17)were triable issues of fact whetherLockwood was acting as a dual agent forboth the Buyers and Sellers. Both partiesappealed, and theAppellate Division, FirstDepartment modified the order by granti-ng Douglas Elliman’s motion for summa-ry judgment holding that “the evidencedemonstrated ‘as a matter of law that Ms.Lockwood did not act as a dual agent’withthe concomitant ‘duty to disclose herdivided loyalties and obtain the parties’consent thereto’” because

Ms. Lockwood had a signed exclu-sive agency agreement with the[sellers]. She had no similar agree-ment with [the buyers], and shereceived no remuneration fromthem. Ms. Lockwood’s actions indi-cate that she wanted this transactionto close, and Douglas Elliman’s sub-missions support the conclusion that

she ultimately obtained permissionto reduce her own commission tobring the parties to an agreement.The negotiated contract was signedby both [parties], it listed Ms.Lockwood as the agent, and itexplicitly stated that the sellers wereexclusively responsible for her fee.1

On appeal, the court rejected theSeller’s argument that Lockwood was notpermitted to show the Buyers any otherapartments because the parties enteredinto an exclusive seller’s agreement andaffirmed, holding that absent a specificagreement to the contrary, Lockwood hadno duty to refrain from offering otherproperties to the Buyers. The court elab-orated that “A contrary holding would‘unreasonably restrain’ brokers from cul-tivating potential clients at open housesfor their principals.” The court found that

such a narrow interpretation runs counterto the holding in Sonnenschein v.Douglas Elliman-Gibbons & Ives, 96N.Y.2d 369 (2001) “which sought to for-mulate a rule consistent with the natureand fundamental requirements of the realestate marketplace in New York (internalquotations omitted).” The court conclud-ed that Douglas Elliman established itentitlement to the commission as a matterof law, and the statements and conductcited by the Sellers did not raise any tri-able issue of fact.

Note: Leo K. Barnes, Jr. is a member ofBarnes & Barnes, P.C. in Melville, and canbe reached at [email protected].

1. Douglas Elliman LLC v. Tretter, 2012 WL5833609 (2012), quoting Douglas EllimanLLC v. Tretter, 84 A.D.3d 446, 448-449, 922N.Y.S.2d 74 (1st Dep’t 2011).


under CPLR § 3101(d)(2) only pursuantto a court order, the statute instructs thecourt ordering the disclosure to “protectagainst the disclosure of the mentalimpressions, conclusions or legal theoriesof the representative concerning the liti-gation.”The Federal Rules of Civil Procedure

similarly limit discovery to the trialexpert. Rule 26(b)(3)(A) exempts fromdiscovery “documents and tangible thingsthat are prepared in anticipation of litiga-tion or for trial by or for another party orits representative (including the otherparty’s … consultant…)” unless: (1) thematerials are otherwise discoverableunder FRCP § 26(b)(1), the general ruleaddressing the scope and limits of discov-ery; or (2) the requesting party demon-strates a substantial need for them to pre-pare its case, and cannot obtain their sub-stantial equivalent without undue hard-ship.2 If a court orders discovery of a lit-igation consultant’s materials then, underRule 26(b)(3)(B), it must “protect againstdisclosure of the mental impressions, con-clusions, opinions, or legal theories” ofthat consultant.Discovery disputes frequently arise

when parties seek documents prepared byor sent to a litigation consultant as suchmaterials are rarely produced withoutopposition. In those circumstances, courtsengage in a fact-based inquiry to deter-mine whether a litigation consultant’smaterials are in fact discoverable under

the applicable rules. Indeed, CPLR §3101(d)(2) and FRCP 26(b)(3) raisenumerous factual questions: was the liti-gation consultant’s work product pre-pared solely in anticipation of litigation orfor trial? Do the materials sought containthe litigation consultant’s mental impres-sions, conclusions or any legal theories?Is the requesting party’s need for thatmaterial substantial? Can the requestingparty obtain substantially the same infor-mation from other sources? What consti-tutes undue hardship?For example, inOakwood Realty Corp. v.

HRH Constr. Corp., the Appellate Divisionaffirmed the trial court’s decision orderingthe plaintiff to return a report prepared bythe defendant’s litigation consultant, uponfinding that it had been prepared in antici-pation of litigation and thus, was exemptfrom disclosure under CPLR § 3101(d)(2).Similarly, in Skolnick v. Skolnick,3 therespondent was alleged to have forged cer-tain checks that were the subject of thatturnover proceeding. The respondentsought to obtain documents that the peti-tioner had provided to a handwritingexpert, and communications between peti-tioner’s counsel and the handwritingexpert. The court denied that discovery,concluding that the handwriting expert wasretained as a litigation consultant and thesubject materials were prepared in anticipa-tion of litigation. In Christie’s, Inc. v.Zirinsky,4 the plaintiff sought from thedefendants’ engineer, who had been the

defendants’ “long-time consultant,” certainletters between the defendants, defensecounsel, and the engineer. The defendantsargued that the materials were immunefrom discovery because the engineer was anon-testifying litigation consultant. Thecourt found, however, that merely namingthe engineer as a litigation consultant didnot automatically render the materialsimmune from discovery. The court alsostated that the fact that letters between theengineer and the defendants were routed tothe defendants’ counsel did not protectthem from discovery, because the docu-ments must be prepared “primarily if notsolely for litigation” in order for suchimmunity to attach.5 Importantly, the courtordered an in camera inspection of the doc-uments at issue—and the documents werethus potentially exposed to the plaintiff -because it could not determine on therecord before it, whether the letters hadbeen prepared in anticipation of litigation.Although the statutes recognize a clear

distinction between the expert as litiga-tion consultant and as trial expert, can thesame individual wear both hats? Staytuned.

Note: Hillary A. Frommer is counsel inthe commercial litigation department ofFarrell Fritz, P.C. She represents largeand small businesses, financial institu-tions, construction companies, and indi-viduals in federal and state trial andappellate courts and in arbitrations. Her

practice areas include a variety of com-plex business disputes, including share-holder and partnership disputes, employ-ment disputes, construction disputes, andother commercial matters. Ms. Frommerhas extensive trial experience in both thefederal and state courts. She is a frequentcontributor to Farrell Fritz’s New YorkCommercial Division Case Compendiumblog. Ms. Frommer tried seven casesbefore juries in the United States DistrictCourt for the Southern and EasternDistricts of New York and in all of thosecases, received verdicts in favor of herclients.

1. Oakwood Realty Corp. v HRH Constr.Corp., 51 AD3d 747 [2d Dept 2008].2. Fed R Civ P §§ 26(b)(3)(A)(i) and (ii).3. 2010 NY Slip Op 33074(U) [Sur CtNassau County 2010]; see also ConcordeArt Assoc., LLC v Weisbrod Chinese Art,Ltd, 17 Misc3d 1124[A] [Sup Ct NYCounty 2007] [court denying the defen-dant’s request for a report prepared by theplaintiff’s expert upon finding that it wasprepared in anticipation of litigation,because it was done before the action com-menced and on counsel’s recommendation,and because the defendant failed to show asubstantial need for the report or that itcould not obtain the same information fromother sources].4. 17 Misc3d 1123[A] [Sup Ct NY County2007].5. Id.

Who’s your expert?(Continued from page 8)

Over 8,000 patents grantedOver 15,000

trademarks obtainedOver 45 years of experience or e-mail us at [email protected]


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 the Suffolk CountyBar Association, provides a comprehensive curriculum of continuing legaleducation courses. Programs listed in this issue are some of those thatwill be presented during December 2012 and January and February2013.

RREEAALL TTIIMMEE WWEEBBCCAASSTTSS:: Many programs are available as both in-per-son seminars and as real-time webcasts. To determine if a program willbe webcast, please check the calendar on the SCBA website(www.scba.org).

RREECCOORRDDIINNGGSS:: Most programs are recorded and are available, after thefact, as on-line video replays and as DVD or audio CD recordings.

AACCCCRREEDDIITTAATTIIOONN FFOORR MMCCLLEE:: The Suffolk Academy of Law has beencertified by the New York State Continuing Legal Education Board as anaccredited provider of continuing legal education in the State of New York.Thus, Academy courses are presumptively approved as meeting theOCA’s MCLE requirements.

NNOOTTEESS::Program Locations: Most, but not all, programs are held at the SCBACenter; be sure to check listings for locations and times.

TTuuiittiioonn && RReeggiissttrraattiioonn:: Tuition prices listed in the registration formare for discounted pre-registration. At-door registrations entail higherfees. You may pre-register for classes by returning the registrationcoupon with your payment.

RReeffuunnddss:: Refund requests must be received 48 hours in advance.

NNoonn SSCCBBAA MMeemmbbeerr AAttttoorrnneeyyss:: Tuition prices are discounted for SCBAmembers. If you attend a course at non-member rates and join the SuffolkCounty Bar Association within 30 days, you may apply the tuition differ-

ential you paid to your SCBA membership dues.

AAmmeerriiccaannss wwiitthh DDiissaabbiilliittiieess AAcctt:: If you plan to attend a program and needassistance related to a disability provided for under the ADA,, please letus know. DDiissccllaaiimmeerr:: Speakers and topics are subject to change without notice.The Suffolk Academy of Law is not liable for errors or omissions in thispublicity information.

TTaaxx--DDeedduuccttiibbllee Support for CLE: Tuition does not fully support theAcademy’s educational program. As a 501©)(3) organization, theAcademy can accept your tax deductible donation. Please take amoment, when registering, to add a contribution to your tuition payment.

FFiinnaanncciiaall AAiidd:: For information on needs-based scholarships, paymentplans, or volunteer service in lieu of tuition, please call the Academy at631-233-5588.

IINNQQUUIIRRIIEESS:: 631-234-5588.

WWIINNTTEERR CCLLEE

UUPPDDAATTEESSANNUAL DMV UPDATE

Wednesday, January 9, 2013 on the East End(Rescheduled Date)

This program is a must-attend for all attorneys who representmotorists on issues related to license revocations and suspensionsand similar matters.Presenter:David MansfieldTime: 5:00–7:30 p.m. (Sign-in from 4:30 p.m.)Location: Seasons of Southampton Refreshments: Light supper

ANNUAL BANKRUPTCY LAWUPDATE

Thursday, January 10, 2013 Prominent faculty covers key issues:

• Filing of a Single Real Estate Asset Case in Bankruptcy Court• Issues Involving Chapter 7 Bankruptcies• The Role of the Chapter 7 Trustee• Case Law Update

Faculty: Christine Black, Esq.; Kenneth P. Silverman, Esq.; MarcPergament, Esq.Program Coordinator: Richard SternTime: 6:00 – 9:00 p.m. Location: SCBA Center – HauppaugelRefreshments: Light supperMCLE: 3 Hours (2.5 professional practice; 0.5 ethics)

ANNUAL FAMILY COURT UPDATEPart Two: Wednesday, February 5, 2013

Topics to be covered in this segment include:• Custody and Visitation• Basic Pleadings and Analysis• Custody and Visitation from the Judicial Perspective• Custody and Visitation from Attorney for the Child’s Perspective• Reunification of Families Involved with Sexual Abuse• Special Findings in Proceedings Dealing with Immigrant Youth• Determination of Objections of Child Support Orders;

Confirmation Proceedings; Incarceration in Child SupportCases

Faculty: Hon. John Kelly; Hon. Caren LoGuercio; Hon. RichardHoffman; Jennifer Mendelsohn, Esq.; Danielle Schwager, Esq.;Michael T. Fitzgerald, Ph.D.Coordinators: Hon. John Kelly; Hon. Isabel Buse; Hon. JohnRaimondiTime: 6:00 – 9:00 p.m. Location: SCBA Center – HauppaugelRefreshments: Light supperMCLE: 3 Hours (2 professional practice; 1 ethics)

MatineeANNUAL ELDER LAW UPDATE

Thursday, February 14, 2013 Gain insight into all the developments affecting the practice of elderlaw in this annual presentation by SCBA’s own guru on the topic.Presenter: George Roach (Grabie & Grabie, LLP // Former SCBAPresident)

Appreciation for Underwriting Support: St. Charles Cemetery Time: 2:00 – 5:00 p.m. Location: SCBA Center – HauppaugelRefreshments: Valentine’s Day SnacksMCLE: 3 Hours (2.5 professional practice; 0.5 ethics)

Presented in Conjunction with the SCBA District Court Committee

LANDLORD-TENANT PRACTICEUPDATE

Tuesday, February 26, 2013 (Rescheduled Date)Recent changes in landlord-tenant law and their impact on mattersinvolving both residential and commercial properties will be covered.Hon. Stephen Ukeiley generously donated copies of his book, TheBench Guide to Landlord & Tenant Disputes in New York, to theAcademy, a 501c-3 organization; the book may be purchased fromthe Academy at the discounted price of $25 for as long as the supplylasts. Purchasers may have their copies signed by Judge Ukeileyprior to the program. Presenters: Hon. Stephen Ukeiley (Suffolk District Court); Hon. ScottFairgrieve (Nassau District Court); Victor Ambrose, Esq. (Nassau-Suffolk Law Services); Warren Berger, Esq.; Marissa Luchs Kindler,Esq. (Nassau-Suffolk Law Services); Michael McCarthy, Esq.; PatrickMcCormick, Esq. (Campolo, Middleton & McCormick, LLP); DeputySheriff Sargent David Sheehan (Suffolk County Sheriff’s Dept.)Coordinator: Hon. Stephen Ukeiley (Academy Advisory Committee)Time: 6:00 – 9:00 p.m. Location: SCBA Center – HauppaugelRefreshments: Light supperMCLE: 3 Hours (professional practice)

ANNUAL MATRIMONIAL LAWUPDATE

Monday, March 4, 2013Gain insights into the developments and challenges facing matrimo-nial lawyers at this annual update featuring a foremost practitioner inthe area..Presenter:Vincent F. Stempel, Jr., Esq. (Garden City)Coordinators: Linda Kurtzberg, Arthur Shulman, Debra RubinTime: 6:00 – 9:00 p.m. Location: SCBA Center – HauppaugelRefreshments: Light supperMCLE: 3 Hours (2.5 professional practice; 0.5 ethics)

SSEEMMIINNAARRSS &&CCOONNFFEERREENNCCEESS

Evening SeminarBEHIND THE CURTAIN? – Advanced

Standing Issues in SecuritizedMortgage Foreclosure – Part Two

Monday, January 14, 2013 This program continues the discussion of how securitized mortgagetransactions have affected the real estate world and the ramificationsfor foreclosure actions...when it is unclear who owns the defendant’s

loan. You will gain from the discussion even if you did not attend PartOne of the program. Topics include:

• Overview of Structured Finance• What Is a Securitized Mortgage Transaction?• Document Flow in a REMIC ((Real Estate Mortgage

Investment Conduit) Transaction• Document Flow in a GSE (Government Sponsored Entity)

Transaction• The Polling and Servicing Agreement• Recordable & Possessory Interests in the Loan• Statutory and Case Law Requirements for Foreclosing a

Mortgage in New YorkFaculty: Hon. Jeffrey Arlen Spinner (Suffolk); Hon. Peter Mayer(Suffolk);Charles Wallshein, Esq. (Macco & Stern)Coordinator: Richard Stern, Esq. (Macco & Stern) Appreciation for Underwriting Support: Title Resources GuarantyCompanyTime: 6:00–9:00 p.m. (Sign-in from 5:30 a.m.) each eveningLocation: SCBA Center Refreshments: Light supperMCLE: 3 credits (2 professional practice; 1 ethics)

Evening SeminarREPRESENTING VETERANS

Thursday, January 17, 2013This important program will be presented FREE (optional donation tooffset costs). Instruction will cover some of the key legal issues – e.g.,debt, family matters, criminal charges, the need for services – thatactive military personnel and returning veterans may face. Topicsinclude:

• Overview of the Soldiers & Sailors Relief Act and USERRA• Matrimonial & Family Law Actions• Foreclosures and Evictions• Advocacy in Veterans Court (Criminal)• Services Available to Veterans

Faculty: Hon. Allan Mathers; Hon John J. Toomey, Jr.; Louis England,Esq.; Hon. John Raimondi; John Gresham, Esq.; Thomas RonayneCoordinators: Hon. Peter Mayer and Ted Rosenberg, Esq.Time: 6:00–9:00 p.m. (Sign-in from 5:30 a.m.) each eveningLocation: SCBA Center Refreshments: Light supperMCLE: 3 credits (professional practice)

Evening SeminarCHOOSING A TRUSTEE

& RELATED TOPICSWednesday, January 23, 2013

(Rescheduled Date)This program will provide attorneys with valuable strategies for coun-seling families on managing and sustaining monetary and otherpotential estate assets. Post “fiscal cliff” ramifications, if any, will alsobe addressed. Topics include:

• How to Choose a Trustee (potential candidates; trustee quali-ties; trust objectives, etc.)

• Fiduciary Liability (Prudent Investor Act; standards of conduct;investment strategies, etc.)

• Family & Wealth Sustainability (wealth trends; defining wealth;family dynamics; children and philanthropy, etc.)

Presenters: Charles J. Ogeka, Esq. (Ogeka Associates, LLC); Kevin

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 MUSTATTEND A CLE PROGRAM OR A SPECIFIC SECTION OF ALONGER PROGRAM IN ITS ENTIRETY TO RECEIVE CREDIT.

THE SUFFOLK LAWYER —JANUARY 2013 25

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 PA U G E , N Y 1 1 7 8 8 • ( 6 3 1 ) 2 3 4 - 5 5 8 8

H. Rogers (BNY Mellon Wealth Management) David J. DePinto, Esq.(Of Counsel–Lazer Aptheker Rosella & Yedid, PC)Coordinator: Eileen Coen Cacioppo, Esq. (Academy Curriculum Co-Chair)Appreciation for Underwriting Support: BNY Mellon WealthManagement (Daniel Shaughnessy, Senior Director)Time: 6:00–9:00 p.m. (Sign-in from 5:30) Location: SCBA CenterRefreshments: Light supperMCLE: 3 credits (2.5 professional practice; 0.5 ethics)

Evening SeminarTHE PJI: INSIGHTS & STRATEGIES

Wednesday, January 30, 2013Any lawyer whose practice involves jury trials – from the relativelysimple to complex litigation – will not want to miss this information-packed seminar on the use of Pattern Jury Instructions and verdictsheets. The program will cover general considerations and practicalaspects of a civil jury charge and delve into such matters as:

• Missing Witnesses/Documents• Emergency Situations• Assumption of Risk• Proximate Cause

Coordinator: Hon. James Flanagan (Academy Officer)Time: 6:00–9:00 p.m. (Sign-in from 5:30) Location: SCBA CenterRefreshments: Light supperMCLE: 3 credits (1.5 professional practice; 1.5 skills)

Extended Lunch ‘n LearnMANAGING HIGH CONFLICT FAMI-

LIES AFTER A DIVORCEFriday, February 1, 2013

Some parents who have engaged in high conflict litigation over cus-tody and visitation issues have difficulty implementing their parentingplan. They continue a pattern of acrimony and dissension that ispotentially detrimental to their own self interests and to the interestsof their children. This program will focus on parenting coordinationand other approaches to resolving conflicts. Topics will include:

• The Legal Basis for These Approaches• Current Case Law• The Need for Judicial Review• When Various Approaches are Appropriate and When CautionShould Be Used

• The Role of Parenting Coordinators and When They OverstepTheir Bounds

Faculty: Robert Cohen, Esq.; Hon. John B. Collins; Neil S. Grossman,Ph.D.; Jeannemarie Mansetti, CSW; Steve Schlissel, Esq.Time: 12:30–3:10 p.m. (Sign-in from Noon)Location: SCBA Center Refreshments: LunchMCLE: 3 credits (2 professional practice; 1 ethics)

Lunch ‘n LearnE-Discovery: RECENT DEVELOP-MENTS IN LAW & TECHNOLOGY

RELATED TO PREDICTIVE CODINGWednesday, February 6, 2013

(Rescheduled Date)Predictive coding takes electronic-discovery to a new level. It is amethod whereby a human identifies whether or not a random selec-tion of documents are responsive to an e-discovery demand; thecomputer program then takes these responses, “learns” what tosearch, and gives each document a “relevance score.” The endresult is the identification of the documents that need to be produced.This seminar will shed light on the use of predictive coding, whichhas been adopted as an acceptable method of obtaining ESI (elec-tronically stored information), and examine the ground-breaking deci-sion by Judge Peck in Monique Da Silva Moore v. Publicis Groupe.Presenters: Experts from DOAR Litigation ConsultingGlenn P.Warmuth, Esq. (Stim & Warmuth, PC)Coordinator: Glenn P.Warmuth, Esq. (Academy Officer)Appreciation for Underwriting Support: Doar Litigation ConsultingTime: 12:30–2:10 p.m. (Sign-in from noon)Location: SCBA Center Refreshments: LunchMCLE: 2 credits (professional practice)

Lunch ‘n LearnA MOCKERY OF A CLOSING

Friday, February 8, 20132 (Rescheduled Date)

This “Closings 101” course features a skilled faculty who will conducta hypothetical real estate closing where things go awry. The demon-stration will include stop-action tips for how to have prevented theproblems from arising and, when necessary, how to do quick fix-its tostop setbacks and keep the deal intact. It’s a must-attend for thenovice – and even the experienced – real estate lawyer!Presenters: Lita Smith Mines, Esq.; Audrey Bloom, Esq.; JosephO’Connor, Esq.; Gerard McCreight, Esq.; Peter Steinert, Esq.; PeterWalsh, Esq.Coordinator: Lita Smith-Mines, Esq. (Academy Officer)Time: 12:30–2:10 p.m. (Sign-in from noon) Location: SCBA CenterRefreshments: Lunch

MCLE: 2 credits (1.5 professional practice; 0.5 ethics)Evening Seminar

ACCIDENT RECONSTRUCTIONWednesday, February 13, 2013

Learn how to more effectively investigate a vehicular accident in thisthorough program covering• Accident Reconstruction Techniques• Hardware Design Analysis Techniques• A Review of and Methodology for Selecting the Lead Area ofExpertise

Faculty: Representatives of ARCCA; Others TBACoordinator: Hon. James Flanagan (Academy Officer)Time: 6:00–9:00 p.m. (Sign-in from noon) Location: SCBA CenterRefreshments: LunchMCLE: 3 credits (1.5 professional practice; 1.5 skills)

THE SUFFOLK LAWYER —JANUARY 201326

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Silverman, and March Pergament willdiscuss, among other things, filing a sin-gle asset real estate case in bankruptcycourt, Chapter 7 issues, and case law

developments. This program is a truemust-attend for our times.

Litigation

Litigators will find a bonanza of cut-ting-edge offerings in the Academy’sWinter Syllabus. Just a few are “ThePJI: Practical Insights & Strategies” onthe evening of January 30; “CrossExamination (Civil and Criminal)” onthe evening of February 28; VehicularAccident Analysis on the evening ofFebruary 13; and “Handling a MotorVehicle Case” on the evening of March14. Hon. James Flanagan coordinates thefirst three of these offerings; PatMeisenhimer, the March 14 program.Also of importance is a luncheon pro-

gram on “Recent Developments in Lawand Technology Related to PredictiveCoding” scheduled for February 5.Attorney Glen Warmuth and representa-tives of DOAR will explain how newcomputer applications can aid in thequick and efficient identification of keydocuments in the e-discovery process.

Other programs scheduled this winterare the SCBA Labor & Employment LawCommittee’s ambitious Annual Law inthe Workplace Conference (March 9 at

Touro Law Center); RepresentingVeterans (free, with optional donation,on January 17) coordinated by Hon. PeterMayer and Ted Rosenberg; CloudComputing (a law practice managementlunch ‘n learn on March 12) featuringAllison Shields, Barry Smolowitz, GuidoGabriele III, and Glen Warmuth; the EastEnd version of David Mansfield’s DMVUpdate (January 9, 5:00 p.m. at Seasonsof Southampton); and the Academy’sannual Bridge-the Gap Weekend forNew Lawyers (March 22 and 23) chairedby Bill Ferris and Steve Kunken.

Various publicity pieces, including theCLE Spread in this publication, provideprogram details, and practitioners arealways welcome to call the Academy(631-234-5588) for information. SCBAmembers are also urged to let theAcademy know of other CLE topics theywould like to see covered.

Note: The writer is the executive directorof the Suffolk Academy of Law.

Starbucks vs Wolf Borough Coffee (Continued from page 9)

Winter CLE (Continued from page 28)

point. The case is now on appeal yet againat the 2nd Circuit.Starbucks brief in this appeal focuses on

the fact that the District Court found that“the distinctiveness, recognition and exclu-sivity of use factors weigh in Plaintiffs[’]favor.” Nevertheless, Starbucks argues, theDistrict Court expressly disregarded thosefactors after mistakenly concluding thatthey were relevant only to the thresholdinquiry of whether the Starbucks mark issufficiently famous to be eligible for pro-tection against likely dilution and down-played them as factors used to determinethe likelihood of dilution.The doctrine of trademark dilution has

had a very tortured history. Courts havebeen unable to find common ground onwhich to provide much guidance if any to

trademark owners. There seems to bereluctance on the part of many judges toapply the law as it is written. The radicaldeparture of dilution, which focuses onthe weakening of a mark’s selling power,from traditional trademark law, which isgrounded in consumer protection fromconfusion in the marketplace, is possiblyto esoteric a notion for most jurists.Needless to say, the final outcome of thislong saga is highly anticipated.

Note: Gene Bolmarcich, Esq. is a trade-mark attorney and Principal of the LawOffices of Gene Bolmarcich in Babylon,NY, with a national clientele. He operatesa virtual trademark registration service atwww.trademarksa2r.com. He can be con-tacted at [email protected].

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By Dorothy Paine Ceparano

The economy, changes in legislation,new case law, and myriad other factorscan make a lawyer’s practice thrive or fal-ter. One moment, it can be hard to serveall the potential new clients, and the next,the lack of new business can be depress-ing and unsettling. But the one positivething, in good times or bad, is that – witha little learning – lawyerly skills are trans-ferrable. This winter, why not use CLE tore-imagine your practice buffered withenhanced skills and expanded areas ofexpertise?

The Academy’s Winter Syllabus(January through March) holds numerousopportunities for “re-imagination.” We

invite practitioners to peruse our syllabusfor practice enhancement opportunities.

Elder LawThe piece de resistance in the field of

elder law CLE remains George Roach’sAnnual Elder Law Update. New andexperienced attorneys alike flock to thisprogram for access to Mr. Roach’s on-point tips and insights accumulated andfine-tuned over the course of the preced-ing year. The 2013 program will takeplace, as always, on February 14, from2:00 to 5:00 p.m.Those seeking elder law instruction

should also keep in mind the January 23(6:00–9:00 p.m.) seminar on “Choosing aTrustee & Family WealthSustainability” featuring the always well-

received David DePinto and skilledlawyers from BNY Mellon. Topics willinclude fiduciary responsibility, talking tofamily members about wealth, planning forcharitable giving, investment strategies,and much more.Finally, a lunch program on March 21

features financial planner Henry Montagand elder law attorney Robert Barnett in adiscussion of Post -MedicaidRegulations and Trusts in Elder LawPlanning.

Matrimonial & Family LawThe Academy’s winter syllabus is

replete with classes on matrimonial andfamily law.Part Two of this year’s Annual

Family Court Update is scheduled forthe evening of February 5; Hon. JohnKelly and Family Court MagistratesIsabel Buse and John Raimondi haveorganized a program covering domesticviolence, perspectives of the attorney forthe child, JD’s and PINs petitions, andother issues for family court lawyers.On February 1, an extended lunch ‘n

learn class will deal with “ManagingHigh Conflict Families After aDivorce.” Organized by psychologistNeil Grossman, Ph.D., the program willfeature Robert Cohen, Steve Schlissel,Hon. John Collins, and JeanmarieMansetti, CSW, in a discussion of thedifficulties that can affect implementa-tion of parenting plans; topics willinclude parenting coordination and simi-lar approaches, current case law, the needfor judicial review, and similar issues.Finally, as always, March brings the

Academy’s Matrimonial MondaysSeries. This year’s series includes anUpdate by Vincent Stempel on March 4and three focused seminars: “AnAdvanced Look at the LanguageRequired in Divorce Stipulations forQDROs and Other Retirement Plans,”featuring Bill Burns and Tom Campagna,on March 11; “Direct and CrossExamination of a Forensic Accountant,”featuring Louis Carcone, CPA, DavidGresen, CPA, Garry Tabat, and PeterGalasso, on March 18; and “CrossExamination: A Primer for the FamilyLawyer,” featuring Stephen Gassman, onApril 1. Linda Kurtzberg, Arthur Shulman,and Debra Rubin are the series coordina-tors. All of the programs run from 6:00 to9:00 p.m.

Real EstateA diverse assortment of real property

programs are offered this winter.On February 8, a lunchtime program

entitled “A Mockery of a Closing” fea-tures an experienced faculty in a hypo-thetical closing at which everything that

can go wrong does. Employing a stop-action format, the instructors will explainhow advanced planning or quick thinkingcan stop the deal from falling apart.Presenters include Lita Smith-Mines,Audrey Bloom, Gerard McCreight,Joseph O’Connor, Robert Steinert, andPeter Walsh.The annual Landlord-Tenant Update,

organized by Hon. Stephen Ukeiley, isscheduled for the evening of February 26(6:00–9:00 p.m.). Speakers, in addition toJudge Ukeiley, are Hon. Scott Fairgrieves,Hon. Andrea Schiavanni, Victor Ambrose,Marissa Luchs-Kindler, Wanye Berger,Michael McCarthy, Patrick McCormick,and Deputy Sheriff Sargent DavidSheehan. A limited number of JudgeUkeiley’s book on Landlord-TenantPractice will be available for purchase(reduced cost) at the program, and theinstructional portion of the evening willbe preceded by a book signing.On February 27, an extended lunch ‘n

learn will feature Peter Walsh in a treat-ment of Asset Purchase Agreements.You will gain insights, strategies, newconcepts, and key language for youragreements.Finally, on March 7, another extended

lunch ‘n learn will focus on “1031Exchanges and Other Tax DeferralStrategies.” The faculty for this program– the always popular Michael Brady andJoseph Insalacco, CFP – will bring youup to date on these exchanges and showyou how they can serve the interests ofthose you represent.

Foreclosure & Bankruptcy LawDespite minor improvements in the

real estate world, foreclosures stillabound. Part Two (evening of January14) of “Behind the Curtain: StandingIssues in Securitized MortgateForeclosures” continues the discussionof securitized transactions and explainsthe mechanics of document transfers instructured finance mortgage-backedsecuritizations. The program will addresshow securitization has made the plain-tiff’s lack of standing a viable defenseand identify the transactional mistakes tolook for. The audience is invited to jointhe presenters – Charles Wallshein, Hon.Peter Mayer, Hon. Jeffrey Arlen Spinner,and others TBA – in an open discussionof vital and complicated issues.Attendance at Part One of the program,presented in November, is not a pre-req-uisite for participation in this segment.Bankruptcy law is given a cutting edge

treatment in the Academy’s AnnualBankruptcy Update scheduled for theevening of January 10. PresentersRichard Stern, Christine Black, Kenneth

ACADEMY OF LAW NEWS

ACADEMY

CCaalleennddaarrof 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 of condi-tions beyond our control. CLE programs involve tuition fees; see the CLE Listings pages in this pub-lication and the SCBA online calendar for course descriptions and registration details. For informa-tion, call 631-234-5588.

JANUARY4 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00 a.m.

Breakfast buffet. All SCBA members welcome.9 Wednesday DMV Update–East End Presentation. (David Mansfield,

Presenter). 5:00–7:30 p.m. at The Seasons in Southampton.Light supper from 4:30 p.m.

10 Thursday Bankruptcy Update. 6:00–9:00 p.m. Light supper from 5:30.14 Monday Advanced Standing Issues in Securitized Mortgage

Foreclosures. Part II. 6:00–9:00 p.m. Light supper from 5:30.15 Tuesday Academy Curriculum Planning Meeting. All SCBA mem-

bers welcome. RSVP if you plan to attend.17 Thursday Representing Veterans. Presented by the SCBA Military

Law Committee. 6:00–9:00 p.m. Light supper from 5:30.23 Wednesday Choosing a Trustee; Fiduciary Liability; Family & Wealth

Sustainability. 6:00–9:00 p.m. Light supper from 5:30.30 Wednesday The PJI: Strategies for Trial Lawyers. 6:00–9:00 p.m.

Light supper from 5:30.FEBRUARY1 Friday Meeting of Academy Officers & Volunteers. 7:30–9:00

a.m. Breakfast buffet. All SCBA members welcome.1 Friday Managing High Conflict Families After a Divorce.

Noon–3:00 p.m. Lunch from 11:45 a.m.5 Tuesday Family Court Update–Part Two. 6:00–9:00 p.m. Light

supper from 5:30.6 Tuesday E-Disclosure: Recent Developments in Law &

Technology Related to Predictive Coding. 12:30–2:10p.m. Lunch from noon.

8 Friday Real Estate: A Mockery of a Closing. 12:30–2:10 p.m.Lunch from noon.

13 Wednesday Accident Reconstruction. 6:00–9:00 p.m. Light supperfrom 5:30.

14 Thursday Elder Law Update (George Roach, Presenter). 2:00–5:00p.m. Snacks and sign-in from 1:30.

26 Tuesday Landlord-Tenant Update (with book sighing). 6:00–9:00p.m. Light supper from 5:30.

27 Wednesday Asset Purchase Agreements. Noon–3:00 p.m. Lunch from11:30 a.m.

28 Thursday Cross Examination. 6:00–9:00 p.m. Light supper from 5:30.

Check On-Line Calendar (www.scba.org) for additions, deletions and changes.

Re-Imagine Your Practice with CLE

CLE Course Listings on pages 24-25


ACADEMY OF LAW OFFICERS

Robin S. AbramowitzBrian DugganGerard J. McCreightDaniel J. TambascoSean E. CampbellAmy Lynn ChaitoffHon. James P. Flanagan

Jeanette GrabieScott LockwoodLita Smith-MinesWilliam J. McDonaldHarry TillisPeter C. WalshGlenn P. Warmuth

Hon. Thomas F. Whelan Sima Asad AliBrette A. HaefeliRobert M. HarperJennifer A. MendelsohnMarianne S. Rantala

DEANHon. John Kelly

Executive DirectorDorothy Paine Ceparano

The color of springtime is in the flowers;the color of winter is in the imagination.

– Terri Guillemets (The Quote Garden)

E SUFFOL K L AWYER TH - land title la · 2019-09-04 · DEDICATED TO LEGAL EXCELLENCE SINCE 1908...

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