12 the suffolk lawyer – october 2015 …

12 THE SUFFOLK LAWYER – OCTOBER 2015

________________By Vesselin Mitev

The most likely culprit for why matri-monial trials get a bad rap for beingtedious is the affidavit of net worth, or networth statement, a form designed to givethe court a “snapshot” of a party’sfinances, but which in reality seems to pro-vide more fodder for cross-examinationthan any other document in the matrimoni-al trial lawyer’s quiver, if used properly.

Financial disclosure in matrimonialactions is “compulsory”1 and theDomestic Relations Law specificallyrequires that a party shall provide a“sworn statement of net worth” either 20days after a demand for such or file onewith the court within 10 days of issuehaving been joined.

Section 202.16 (k) of the UniformRules for the Supreme and County courtsprovides that motions for alimony, main-tenance, interim counsel fees and childsupport in a pending action must include acopy of the net worth statement (unlesswaived by the court for good causeshown). Parenthetically, this requirementdoes not apply to motions seeking counselfees under DRL § 237 (c) (counsel feesare mandatory in an action or proceedingfor failure to obey an order compellingpayment of support or maintenance, if thecourt finds the failure was willful) or DRL§ 238 (an action or proceeding to enforceor modify any provision of a judgment ororder in a matrimonial action).

The standard net worth form providestwo dates that are important and useful forcross-examination. The first is the date towhich the party swore, according to theform itself, that its net worth affidavit wastrue and accurate (usually at the end); thesecond date is the date purporting to reflect

the assets and liabilities as theyexisted, i.e., “Plaintiff herein,being duly sworn, deposes andsays that the following is an accu-rate statement as of November23, 2015, of my net worth…”

It is common for “updated”net worth statements to be filed,with an updated so-sworn date atthe end, but the “as of” date isnever changed. By its terms,such a document is not “updated” since itgives the court the assets and liabilities asthey existed (usually) many months, or evenyears ago. Thus, it can be cogently argued,a party who failed to file an updated networth, should be precluded from offering orcontesting financial information at trial,especially if it is seeking counsel fees, asthe failure to file an updated net worth hasbeen held fatal to a counsel fee application2.

Omissions, gross exaggerations andinflated expenses are usually par for thecourse in any net worth; but going line byline at trial may quickly sap the attentionof the triers of fact, who often quietly warnthat they will “bust” what is essentiallyturning into a deposition at trial. Instead,using the net worth to attack the credibili-ty of the witness is best done by hitting afew major points and saving the rhetoricfor summation.

Q: You told the court the truth on yourdirect examination, correct?

A: Yes.Q: And you’ve told the court the truth

throughout this litigation even if youweren’t on the witness stand, am I correct?

A: Yes.Q: And all the papers and documents

that you have signed and put in to thecourt, no doubt those were all true, am Icorrect?

A: Yes.Q: That’s because you would

never sign anything that wasn’ttrue, am I correct?

A: Of course.Q: And you carefully

reviewed each document beforeyou signed it to make sure youweren’t putting in false claimsto the court, am I correct?

A: Yes.Q: With that thought in mind, take a

look at page six of your net worth; youclaim you spend $1,000.00 a month onclothes for your husband; that’s not true,am I correct? You folks haven’t livedtogether in three years?

A: That’s a mistake…Q: Mistake or not, can we agree, that

the $1,000.00 per month you claimed tospend on clothes for your husband in thissworn affidavit is simply not true?

A: That’s correct.Every once in a while (whether out of

best-intentioned yet misguided puritani-cal adherence to the rules of evidence orjust to shake things up) an adversary willobject to the net worth statement beingput in on a party’s direct case, under astrict (framer’s intent?) construction ofthe hearsay rule: an out of court statementoffered for its truth; and secondarily, asunnecessary cumulative bolstering.

While technically true, since a partycan simply tell the court its expenses, lia-bilities and assets, the statute (DRL §236B(4)) and the Uniform Rules § 202.16et seq. both explicitly require that networth statements be prepared and filedwith the court, as part of the compulsoryfinancial disclosure mandated by theLegislature. Thus, the technical hearsayand bolstering objection is improper and

should be summarily overruled.In the unlikely, yet not-unheard-of

event that it is sustained, an exceptionshould be taken, then permission soughtto take the opposing party out of turn ona brief issue. The opposing party, onceseated, can be asked:

Q: Sir, do you agree that your wifeshould be awarded maintenance?

A: What? No, I don’t think so at all.Q: How about counsel fees? Do you think

you should have to pay my counsel fees?A: Absolutely not.Q: And do you believe you should be

required to pay for the marital debt,which is around $60,000.00?

A: No. Not one cent.Q: And therefore it’s your position that

your wife’s claims are not true, am I correct?A: Yes.Q: Because if they were true, we

wouldn’t be here, correct?A: You got it.Q: And in fact you filed an answer to the

complaint, denying all of her claims, andfurther seeking a dismissal of this actionand all the requested relief, am I correct?

A: Yes.Now, the other side has put the amounts

sought in issue; and, parenthetically,raised a claim of recent fabrication byyour client which can be rebutted by theintroduction of the affidavit of net worth.

Note: Vesselin Mitev is a partner at Ray,Mitev & Associates, a New York litigationboutique with offices in Manhattan and onLong Island. His practice is 100 percentdevoted to litigation, including trial, of allmatters including criminal, matrimonial/fam-ily law, Article 78 proceedings and appeals.

1 DRL § 236 B(4)(a)2Bertone v. Bertone, 15 AD3d 326 (2d Dept. 2005)

MATRIMONIAL/FAMILY LAW

What’s the Net Worth to You? Avoiding Pitfalls Before and During Trial

______________By Cory Morris

The Supreme Court held that noConfrontation Clause violation occurredwhen the statements of a three-year-oldchild, who did not testify, were admittedinto evidence against a defendant. Thecourt held that these statements by a childto a teacher were made to address anongoing emergency: child abuse.Criminal defense attorneys beware. SinceCrawford v. Washington, courts havestruggled with what is barred by the SixthAmendment’s Confrontation Clause.

This article discusses the recent

Supreme Court case Ohio v.Clark and concerns for crimi-nal defendants moving for-ward.

The Sixth Amendment’sConfrontation Clause providesthat, “[i]n all criminal prosecu-tions, the accused shall enjoythe right … to be confrontedwith the witnesses againsthim.” Like any good rule, thereare exceptions. In Ohio v.Clark, 135 S.CT. ___ (June 18, 2015), theSupreme Court of the United Statesreversed, holding that the introduction at

trial of statements made by athree-year-old boy to his teach-ers identifying his mother’sboyfriend as the source of hisinjuries did not violate theConfrontation Clause, whenthe child did not testify at trial,because the statements werenot made with the primary pur-pose of creating evidence forprosecution. To understandwhat happened here we need to

look back at recent Supreme Court deci-sions discussing the ConfrontationClause.

In Ohio v. Roberts, the Supreme Courtinterpreted the Confrontation Clause topermit the admission of out-of-courtstatements by an unavailable witness, solong as the statements bore “adequate‘indicia of reliability.’” Such indicia arepresent if “the evidence falls within afirmly rooted hearsay exception” or bears“particularized guarantees of trustworthi-ness.” Crawford v Washington, 541 U.S.36 (2004) overruled Ohio v. Roberts, 448U.S. 56 (1980), holding that theConfrontation Clause generally prohibits

the introduction of “testimonial” state-ments by a non-testifying witness, unlessthe witness is “unavailable to testify, andthe defendant had had a prior opportunityfor cross-examination.” Writing for themajority, Justice Scalia indicated that thisnew rule would be one that would curethe uncertainty of a judicial determina-tion of reliability.

In a lengthy opinion, Justice Scaliareviewed the history of the SixthAmendment and how the test of cross-examination was a vital constitutionalprotection. Justice Scalia explained that astatement qualifies as testimonial if the“primary purpose” of the conversationwas to “creat[e] an out-of-court substitutefor trial testimony.”1 One of the majorcritiques of Crawford was the failure toelaborate and define what is “testimoni-al.” Although interrogations by lawenforcement would fall within thisscheme, the situation occurring in Ohio v.Clark was not contemplated.

Later decisions would clarify what wasand what was not testimonial. TheSupreme Court made clear that “if an out-

CRIMINAL /CONSTITUTION

(Continued on page 31)

Confrontation Clause Concerns after Clark

Vesselin Mitev

Cory Morris

What is Freeze Frame and how canSCBA members be included

They say a good picture tells a story. Why not share your good news withyour colleagues at the Suffolk County Bar Association. Send photos of theimportant events or people in your lives to The Suffolk Lawyer. Did you have ababy? Are you a new grandparent? Did your child graduate? Was there a mar-riage celebration in your family? These are but a few examples of the types ofphotos that can be included in Freeze Frame. Get the word out by sending pho-tos and captions to Editor-in-Chief Laura Lane at [email protected].

THE SUFFOLK LAWYER – OCTOBER 2015 13

The 15th Annual Ira P. Block Memorial Golf Classic, Par for the CourseThe Lawyer Assistance Foundation sponsored

its 15th annual golf outing named for theHonorable Ira P. Block, under sunny skies onMonday Sept. 21, 2015 at the WesthamptonCountry Club, Westhampton Beach, NY.Managing Director David Besso, who encour-aged many of his golf enthusiast buddies andcolleagues to participate in this annual fund rais-ing event, deemed it a big success.

This year our honored guest was theHonorable John J. Toomey, Jr. who is in charge,among his other duties as a County Court Judgeand an Acting Surrogate Judge, of the VeteransCourt, with court appearances every two weeksin the Central Islip courthouse. Cheering JudgeToomey on at the awards dinner were theVeterans Court Mentors (who are all veteransthemselves) Ron Pacchiana (who also was ourphotographer for the evening), Frank D’Aversa,Adam Jankowski, Ralph Zanchelli, ClarenceSimpson and Dan Eagan. The Mission of theVeteran’s Mentoring Program is to support theveteran through their readjustment to civilian lifeand to act as a friend and ally through this diffi-cult time. The vision of the Veteran’s MentoringProgram is that “No Veteran is left behind.”

A special thank you to our sponsors LongTuminello and Fred Johs. Thank you MikeCapasso who won the raffle and graciouslydonated his winnings back to the Foundation.

And the winners are: Mr. Dougherty won firstLow Net with a 70; first Low Gross with a 74 waswon by M. Romeo; Closest to the Pin winner wasRob Meraldi and the Longest Drive winner wasJohn Erra. Our highest score winner was IraWeissman. – Sarah Jane LaCova

Photoby

Ron

Pacchiana

FREEZE FRAME

Walter Donovan, Jr. and SCBA member Annamarie Donovan, at the wedding of their son, WalterDonovan, III.

Happy BirthdayCooper!

Cooper Block, son of SCBASecond Vice President JustinBlock and his wife Sheila,celebrated his first birthday.

Welcome to theWorld, TJ

Travis James, “TJ,” Nader, wasborn on Sept. 24, weighing 8 lbs.13 oz., at 20-1/2 inches. SCBAmember Mara Harvey couldn’tbe prouder.

Wedding bells for Walter Donovan, IIISCBA member Annamarie and husband Walter Donovan couldn’t have been hap-pier than they were at the wedding of their son Walter Donovan, III, who marriedthe lovely Jennifer last spring.

______________________By Lisa Renee Pomerantz

Benihana of Tokyo, LLC (Licensee)operated a restaurant in Hawaii pur-suant to a 1995 license agreement withBenihana, Inc. (Licensor) giving theLicensor control over the Licensee’smenu offerings. Without the Licensor’sconsent, Licensee began serving ham-burgers and other unapproved items.Licensor sent Licensee a notice of ter-mination, effective if Licensee failed tocure within 30 days.

Prior to expiration of the cure period,Licensee filed a claim with theAmerican Arbitration Association underthe License Agreement’s arbitrationclause seeking declaratory relief that itwas not in violation of the agreementand, in the alternative, for an extensionof the cure period. Contrary to its assur-ances, Licensee continued to servehamburgers and other forbidden items.

Licensor then filed suit in New YorkState Supreme Court for injunctiverelief in aid of arbitration pursuant toN.Y.C.P.L.R. §7502(c) which providesas follows: “The supreme court in thecounty in which an arbitration is pend-ing or in a county specified in subdivi-

sion (a) of this section, mayentertain an application foran order of attachment or fora preliminary injunction inconnection with an arbitra-tion that is pending or that isto be commenced inside oroutside this state, whether ornot it is subject to the UnitedNations convention on therecognition and enforcement of for-eign arbitral awards, but only upon theground that the award to which theapplicant may be entitled may be ren-dered ineffectual without such provi-sional relief. “ Licensor sought toenjoin Licensee from (1) continuing toserve hamburgers and other forbiddenmenu items; (2) using the licensedtrademarks in a manner not permittedby the License Agreement; and (3)arguing to the arbitrators for an exten-sion of the cure period.

Licensor removed the action to fed-eral court on diversity grounds whichgranted the requested injunctive relief,observing that “[w]here the partieshave agreed to arbitrate a dispute, a dis-trict court has jurisdiction to preservethe status quo pending arbitration” and

that the usual standards forissuance of such reliefapplied. Licensee appealed.

In Benihana, Inc. v.Benihana of Tokyo, LLC(2d Cir. 2015), the Court ofAppeals affirmed the grantof injunctive relief as to themenu and trademark issues,but reversed the grant of the

injunction prohibiting the Licenseefrom making certain arguments tothe arbitrators. Finding that theLicense Agreement provided forarbitration as to the termination deci-sion and permitted either party to optfor arbitration of “any other dispute”under the agreement, the court con-cluded that it was for the arbitratorsto decide whether the claim for anextended cure period was arbitrable.Even though the parties appeared toagree that the arbitrability questionwas for the court to decide, the courtnevertheless held that since the deter-mination of arbitrability depended onthe interpretation of the contract, thatissue as well as the merits of theclaim should be left to the arbitrator.

Prior to 2013, parties to an AAA

arbitration agreement had to includethe Optional Rules for EmergencyMeasures of Protection to grant thearbitrator authority to issue injunctiverelief. In 2013, the AAA revised therules, and Rule 37 now grants arbitra-tors the authority to grant such reliefunless the parties agree otherwise.However, the rule also preserves theparties’ ability to sue for preliminaryinjunctive relief, providing that “[a]request for interim measures addressedby a party to a judicial authority shallnot be deemed incompatible with thisrule, the agreement to arbitrate or awaiver of the right to arbitrate. “Giventhis provision, it will be interesting tosee whether courts may be less likely toconclude that preliminary injunctiverelief is necessary or appropriate wherethe parties either have not sought reliefunder Rule 37 or their request for suchrelief has been denied by the arbitrator.

Note: Lisa Renee Pomerantz is anattorney in Suffolk County. She is amediator and arbitrator on the AAACommercial Panel and serves on theBoard of Directors of the Associationfor Conflict Resolution.

ADR

Injunctive Relief in Aid of Arbitration

____________________By Sarah Jane LaCova

Justice C. Randall Hinrichs issued aclarion call to commemorate the 14thanniversary of the tragic events ofSeptember 11, 2001, both at theRiverhead and Central Islip courthouses.

The ceremonies included a specialinvocation by Sgt. Frank Barry who wasassigned to the Court Officers Academyon September 11, 2001 and was a firstresponder that day. Sgt. Barry is also theChaplain for the Fraternal Order of CourtOfficers. On Sept. 11th, Sgt. Barry wasassigned to the Court Officer’s Academyin lower Manhattan and responded to theWorld Trade Center along with CaptainWilliam Harry Thompson, who perishedon that day as did senior court officersMitchel Wallace and Thomas Jurgens.Both men were promoted to Sergeantposthumously.

Justice Hinrichs said this ceremonyprovides us with an opportunity topause and reflect as we move forward14 years later. He mentioned that thelosses continue to touch all of us asthe people who worked on the recov-ery efforts succumb from sickness.

In his concluding remarks, JudgeHinrichs’ thanked all who had attendedboth the Riverhead and Central IslipSept. 11th observance and added special

appreciation to the bagpipers from theSuffolk County Police DepartmentEmerald Society Pipe Band and DarleneReis for her outstanding rendition of theStar-Spangled Banner. He also added aspecial thank you to Captain DavidSantiago, the Color Guard and to JudgePhil Goglas and his friends from theKnights of Columbus who worked withBill Dobbins and the Court EmployeesAssociation in sprucing up the memori-al. Judge Hinrichs added, “The passageof time seems to only magnify the extentof the heroism and sacrifice displayedby so many on September 11, 2001.

Note: Sarah Jane LaCova is theexecutive director of the SuffolkCounty Bar Association.

Photoscourtesy

ofthe

courts

District Administrative Judge C. Randall HinrichsCommemorates the 14th Anniversary of Sept. 11

Lisa Pomerantz



____________________By Hillary A. Frommer

As a general rule, thedegree of an expert’s particu-lar expertise or skill goes tothe weight of the expert’s tes-timony, and not the admissi-bility. Thus, courts have con-sistently held that an expert,whose particular qualifica-tions, knowledge, or skill may belacking, can still testify at trial.1

However, regardless of an individual’sskills, or lack thereof, qualifying totestify as an expert is not absolute.The party offering the expert testimo-ny must still lay a foundation for theparticular testimony the expert willgive.

The need to lay a foundation forexpert testimony, and thus qualify anexpert witness is discussed in twodecisions involving an expert in theuse and operations of the Intoxilyzer5000 EN breathalyzer machine. First,in People v Ivasyuk,2 the DistrictCourt of Nassau County refused toqualify a criminal defendant’s expertwitness, and precluded him from tes-tifying. The defendant was accused ofdriving while intoxicated and varioustraffic violations. At trial, the prosecu-tion offered evidence that, followinghis arrest the defendant was broughtto the police precinct where he wasgiven a breathalyzer test that meas-ured 0.11. The defendant testified thatdue to his employment earlier thatday, he had been exposed to acetoneand toluene; and he sought to presentthe testimony of an expert in the oper-ation of the particular breathalyzermachine as to the effects of acetoneand toluene in the defendant’s breath.The District Court refused to qualifythat expert, however, finding that thedefense failed to lay the proper foun-dation for his testimony. Specifically,the defendant’s expert was not compe-tent to testify that the defendant had infact inhaled acetone and/or toluenevapors at work on the day of hisarrest; that such chemicals could beabsorbed through the breath or skin;or that they would in fact be presentwhen the breathalyzer was adminis-tered 11 hours later. The court alsodetermined that because the defendantnever challenged the machine’s opera-tions, the reliability of the breathalyz-er reading, or the procedures offeredby the prosecution to detect acetone ina breath sample, there was no basis forthe expert to testify as to them.

In People v Burnet,3 thedefendant charged withdriving while intoxicatedmoved to preclude the courtfrom qualifying the policeofficer who administered thebreathalyzer test to thedefendant as an expert in thescientific operation of theIntoxilyzer 5000 EN. The

people sought to argue that alcoholvapors caused the machine to experi-ence “ambient air failure.” This testi-mony was critical because when theofficer (seeking to testify as an expert)determined that there was ambient airfailure, he directed the defendant tostep away from the machine and thenhe recalibrated it. The defendant’s sec-ond attempt to blow did not register asufficient sample, and so he wasdeemed to have constructively refusedthe test.

The court granted the defendant’smotion and refused to qualify the offi-cer as an expert witness. It found thatwhile the officer was trained and qual-ified to operate the machine, he pos-sessed none of the skills, experience,or knowledge necessary to support theprosecution’s unique theory regardingambient air failure. Indeed, the officercould testify only that the machineexperienced the ambient air failure.Thus, the court found that the prose-cution was required, yet failed to pres-ent any evidence of the scientific reli-ability of the supposed ambient airfailure, and could not rely solely oncommon sense.

Note: Hillary A. Frommer is coun-sel in Farrell Fritz’s Estate LitigationDepartment. She focuses her practicein litigation, primarily estate mattersincluding contested probate proceed-ings and contested accounting pro-ceedings. She has extensive trial andappellate experience in both federaland state courts. Ms. Frommer alsorepresents large and small businesses,financial institutions and individualsin complex business disputes, includ-ing shareholder and partnership dis-putes, employment disputes and othercommercial matters.

1 Rojas v Palese, 94 AD3d 557 (1st Dept.2012); Stanley Tuchin Assoc., Inc. vGrossman, 2002 NY Slip Op 50428(U) (SupCt, Nassau County 2002).2 2012-1640 N CR, NYLJ 1202731804981, at*1 (App. Tm, 2nd, Decided June 22, 2015).3 NYLJ 7/17/09 at 26 [col. 3] (Criminal CourtBronx County).

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_________________By Allison C. Shields

Business development is an importantskill for lawyers to learn, but one thatisn’t taught in law school. While theseskills do not come naturally to alllawyers, in an era in which there areoften more lawyers available than jobsto be filled, it is increasingly importantfor lawyers to develop their businessdevelopment muscles.

Often, when lawyers have foundthemselves unemployed due to cuts ordownsizing at their firms, they are baf-fled that they were let go; they had expe-rience and were good lawyers who didtheir work well, kept their noses to thegrindstone, made sure the work theywere given by their practice groups orsupervising partners got done, and mettheir billable hour requirements. Theydidn’t waste time socializing and keptout of the way, focusing on their billablework. But the very things that theselawyers thought should have kept thememployed may have put them first in linewhen the firm needed to downsize.

These lawyers made the classic mis-take of focusing completely on doingtheir legal work and not cultivating rela-tionships or business development skills,which may have made them more valu-able to their firms. Ironically, as these

lawyers enter the job marketor seek to open their ownpractices, it is these very skillsand relationships that maydetermine their success orfailure.

But the blame for lack ofbusiness development skillscannot be placed entirely onthe shoulders of the lawyersthemselves; some of the blame must beshared by the firms who failed to helptheir lawyers cultivate business genera-tion skills. These firms have been sofocused on leveraging associate time andmaximizing billable hours that they havefailed to build a culture of businessdevelopment within their firms.

What can firms do to foster a cultureof business development?

Law firms that want their attorneys togenerate business must develop a busi-ness development culture. Marketing andbusiness development must be a way oflife for the entire firm; they must be partof the day-to-day fabric of the firm.Unfortunately, too many firms leavebusiness development to a rarified few,the “rainmakers” who seem to have beenborn with magical powers. The messageto young lawyers is, “you either have itor you don’t,” as if business development

isn’t a skill that can be learnedand nurtured, but instead isbestowed from above upon alucky few. If that is the case,why try to develop business ifyou don’t already have it?

Advance a new mindset. Thefirst step to fostering a cultureof business development is to

change the approach to rainmaking andbusiness development in general. Dispelthe notion that rainmakers are a secretsociety whose practices are a closelyguarded secret. Make business develop-ment a part of everything the firm does,and something that is the responsibility– and part of the job description – ofeveryone in the firm (including staff).

Set clear expectations. Each individualwithin your firm must understand whatthe firm expects from them with respect tobusiness development, just as they mustunderstand what is expected of themwhen it comes to their substantive legalwork. Merely saying that all lawyers areexpected to make efforts to develop andcultivate business is not enough.

Create expectations for each individ-ual lawyer based upon their strengthsand weaknesses. Develop a plan forthem to follow with benchmarks to be

reached and consistent monitoring tokeep them on track and accountable.Make this a part of everyone’s jobdescription and periodic reviews.

Reward effort, not just outcome.Business development is a process thattakes time, particularly when you arestarting out, whether you are a new lawyeror an experienced one marketing to a newindustry or target audience. Results do notcome overnight, which makes it evenmore important to reward those who con-tribute to the firm’s marketing and busi-ness development efforts, not just out-come. The lack of immediate results willbe less discouraging if the lawyer under-stands that it is expected and understoodthat results will take time – and if there isan incentive to continue with the behav-iors that will ultimately bring results.

It isn’t enough for the lawyer to lookahead to some unknown time in the futureand continue working for some vaguenotion that business will come and bringcompensation with it – there must berewards in the shorter term in order to fos-ter additional business development efforts.Rewarding those efforts will also encour-age innovation and testing of new methodsor ideas to generate or retain business.

PRACTICE MANAGEMENT


Creating a Business Development Culture in Your Firm

Allison C. Shields

_________________By George Pammer

There is a class that is not offered atany law school, no law firm specializesin it, and everyone will tell you, youhave to do it. Networking. One of themost important parts of your lawschool career will involve an inordi-nate amount of time and really requiresyou to be proactive, outgoing andsocial. It is not about whom you know,but who knows you!

Most law school students have threeyears to complete their degree pro-gram. Law schools have been lookingto vary programs and have introducedprograms that can take as little as twoyears and as much as five years. Theoverwhelming majority of law studentsstill complete their degree plan in threeyears, and in the scheme of things, isnot a lot of time.

Being in class all day and maybeattending some school functions doesnot qualify as networking. This is theproactive part. Many of the bar associ-ations, such as the Suffolk County BarAssociation and the New York BarAssociation offer free membership forlaw students. This is a good place to

start. You can even joinonline, a couple of clicks andyou are registered. Once youjoin these associations, youwill be able to select differ-ent divisions or sections youwant to be involved with.The Suffolk County BarAssociation has several dif-ferent areas that you can joinand are usually areas that you are inter-ested in practicing in. After you sign upfor different divisions, you will receiveemails of different events for that spe-cific area. Practitioners and judgesattend these events and frequentlythese events will be at no cost or a low-ered cost to law students.

You will also hear about ContinuingLegal Education Classes (CLE) forpracticing attorneys. Of course, beinga law student you will not receive theCLE credit if you attend, but you willcertainly learn new information, usu-ally about an area of law you haveinterest in, and you may possibly beone of only a handful of law studentsin attendance. This provides you theopportunity to engage in the secondcomponent, being outgoing. It is as

simple as walking up tosomeone on a break andintroducing yourself. Alwaysmake sure you have your stu-dent business cards and cer-tainly always request a busi-ness card with whom youhave spoken. Most practi-tioners, whether they areattorneys or judges, are more

than willing to spend a few minutestalking to a law student. As a rule, youshould always send an email (or evensnail mail) to the individual you metand thank them for their time. Try torecall something from their conversa-tion with you; it will help themremember who you are.

Yes, there is an app for that.CamCard is an app on all phone oper-ating systems. It will allow you to takea picture of the business card, save it inyour contacts and allows you to edit ormake notes. A simple note of whereyou met the individual, and if anyoneintroduced you, will make it much eas-ier to recall and send a “nice to meetyou” email.

Which brings about the third com-ponent, be social. Once you start to

know a couple of people in the barassociations, you may start receivinginvitations to bar association events.These are normally larger gatheringswith a purpose, whether it is anawards dinner or installation of offi-cers, these events are top notch andare the perfect time to introduce your-self. In fact, someone that alreadyknows you may want to introduce youto others. The bar association willeven subsidize the cost for a numberof law students to attend these typesof events where they can costupwards of $200 a plate

Touro Law School, the only lawschool in Suffolk County, has severalstudent organizations directly linked todifferent bar associations. The SuffolkCounty Bar Association –StudentCommittee, The Federal BarAssociation and the American BarAssociation all have a presence at Touro,holding meetings and planning events,and invite you to become active in theseorganizations. These student organiza-tions are unique in their access to theassociations and their physical proximi-ty to the school. There are endless net-

FUTURE LAWYERS’ FORUM

Do You Even Network Bro?

George Pammer



____________________By Robert J. Flynn, Jr.

The doctrines of merger, single andseparate and the back-to-back split aresome of the most confusing theoriesin the field of land use. The land usepractitioner must be knowledgeableon the subject and careful in guidinghis or her client, especially when thepurchase involves vacant lots.

Recently, in the case of Matter ofPatrick v. Village of Russell Gardens,the Appellate Division, SecondDepartment, upheld the denial by theZoning Board of Appeals of theVillage of Russell Gardens for areavariances for lots in a back-to-backformation.1 The court found that thelots had been merged, used in con-junction with one another, and, thatthe requested variances in this uniqueneighborhood were substantial, andtherefore properly denied.

The merger doctrine recognizes thatadjoining substantial parcels ownedby a common owner merge by opera-tion of law to form a standard parcel.It is well settled that there cannot be amerger of parcels in absence of a spe-cific merger clause in the ordinance.2

A back-to-back split occurs when acommon rear boundary line joins twolots with frontage along parallelstreets.3 Parcels with frontage on sep-arate public streets are separate anddistinct plots where they substantiallymeet the depth characteristics of thearea as it has developed notwithstand-ing their common ownership and rearcontiguity.4 Lots in a back-to-backsplit formation are deemed not to havemerged where it is shown that, duringthe period of common ownership, theparcels were never used in conjunc-tion with one another and neither par-cel materially enhances the value orutility of the other.5

Prior to 1996, the back-to-backsplit of parcels that were not used inconjunction with one another and didnot materially enhance the value ofone another benefitted from the singleand separate ownership doctrine. Thelower courts of the state recognizedthat where it was demonstrated thatadjoining lots held in common owner-ship with a common rear boundaryline enjoyed a single and separate sta-tus at the time the zoning ordinancewas adopted or an up-zoning amend-ment to the zoning ordinance enacted,the owner was entitled to an area vari-ance.6 In fact, the denial of the vari-ance was deemed to be a constitution-al deprivation resulting in a virtualconfiscation of property.7

The routine recognition ofcommon law single and sep-arate ownership came to anabrupt halt in 1996 when theNew York Court of Appealsruled on the subject. InMatter of Khan v. Village ofIrvington, the court stated ithad never recognized thecommon law single and sep-arate doctrine and would not do so.8

The court reasoned that if a munici-pality wished to provide for anexemption in the ordinance recogniz-ing the single and separate status oflots, it could exercise its police pow-ers and do so. Alternatively, the ownerstill had the right to apply for an areavariance.

While the courts have held that amerger is not effected merely becauseadjoining parcels come into commonownership,9 certainly a zoning codecan provide for a merger under suchcircumstances.10 Furthermore, themere fact that parcels are contiguousonly in the rear, and, front on separatestreets does not preclude a merger.Each case must be decided upon itsown peculiar facts.11

The land use practitioner mustalways examine the applicable munic-ipal zoning code to see if a mergerclause exists, what constitutes a merg-er, and whether exemptions andexceptions to the merger clause apply.In Matter of Sakrel v. Roth,12 the courtwas faced with a back-to-back split ofparcels where the applicant main-tained he was entitled to a variance asof right based on the single and sepa-rate ownership doctrine. The courtfound that while the parcels wereindeed in a back-to-back formation,the owner failed to establish its singleand separate ownership. Further, therewas no proof in the record as to theuse of the two parcels during the yearsthe parcels were commonly owned.Finally, notwithstanding the above,the lots involved did not meet theminimum frontage or area require-ments of the ordinance. The courtupheld the denial of the variance.

If there is a merger clause in theordinance, read the clause carefully.Since zoning regulations are in dero-gation of the common law, the regula-tions must be strictly construedagainst the municipality, which hasenacted the ordinance. Any ambigui-ty must be construed in favor of theproperty owner. Whether the lots willbe deemed merged, will depend onthe ordinance before you and the factsand circumstances of the case.

Presuming a merger clausedoes exist, determinewhether the ordinanceinvolved provides anyexemptions. An example ofan exemption would be thatlots held in single and sepa-rate ownership prior to theenactment of the ordinancewould be exempt from the

merger clause.In a back-to-back split of lots,

merger will be found where the lotshave been used in conjunction withone another or one lot materiallyenhances the value or utility of theother.13 This was the result in Matterof Patrick v. Zoning Board of Appealsof Village of Russell Gardens.14

There, the court recognized that sepa-rate parcels of land in common own-ership which have frontage on parallelstreets and a common rear boundaryline are deemed not to have mergedwhere it was shown that during theperiod of common ownership, theparcels were never used in conjunc-tion with one another and neither par-cel materially enhanced the value orutility of the other. However, the courtin Patrick found the variance wasproperly denied where substantial evi-dence demonstrated the parcels werein fact used in conjunction with oneanother for over 60 years.

Here are some suggestions to con-sider in determining whether a lot hasbeen used in conjunction with the lotin common ownership to the rear orwhether the lot has materiallyenhanced the value of the other lot;

1) Has one lot been improved witha dwelling while the other lot is land-scaped and used as a backyard for theimproved lot?

2) Is there a shed, patio, outdoorbarbeque grill, playground, septicsystem, etc. on the lot adjacent to theimproved lot?

3) Is the vacant unimproved lotwooded, overgrown with trees andother brush, or used by neighbors as adumping area for grass clippings?

4) Is there a fence along the com-mon rear yard line, which separatesthe lots?

5) Has there been a common sourceof funding in the purchase and/ormaintenance of the lots?

6) Where one lot is improved and the

other vacant, does the certificate ofoccupancy for the structures on theimproved lot actually identify bothlots?15

If there is a question as to whetherthe lots have been used in conjunctionwith one another, or have materiallyenhanced one another, an interpreta-tion of the ordinance as applied to thefacts will be required from the ZoningBoard. Of course, if the back-to-backsplit of lot requires a variance to over-come some other dimensional defi-ciency, a variance will be required.The nature of that variance is an areavariance and the applicant must meetthe balancing test set forth in TownLaw Section 267-b. The decision bythe board will be sustained if it isrational, not arbitrary or capricious.16

Note: Robert J. Flynn, Jr. is a prac-ticing lawyer in Huntington, NY spe-cializing in municipal and real estatelaw and land use appeals. He is the co-author of the book “Zoning Board ofAppeals Practice in New York” pub-lished by the New York State BarAssociation.

1 Matter of Patrick v. Zoning Board of Appealsof Village of Russell Gardens, 2015NYSlipOp 0595 [Second Dept. July, 2015].2 Allen v. Adami, 39 NY2d 275.3 Matter of Matherson v. Scheyer, 20 AD3d425 [Second Dept. 2005]; Matter of Martino v.DeChance, 2009 NYSlipOp 32731 [Sup. Ct.Suff. Co., Cohalan, J. 2009].4 Matter of Guazzo v. Chave, 59 Misc.2d 1050[Sup. Ct. Nass. Co. 1969, Harmett, J].5 Matter of Matherson v. Scheyer, supra;Matter of Barretto v. Zoning Board of Appealsof the Village of Bayville, 123 AD2d 692[Second Dept. 1986].6 Matter of Morin v. Zoning Board of Appealsof the Village of Irvington, 163 AD2d 389[Second Dept. 1990]; Matter of Barretto v.Zoning Board of Appeals of the Village ofBayville, surpa.7 Matter of McDermott v. Rose, 148 AD2d 615[Second Dept. 1989].8 Matter of Kahn v. Village of Irvington, 87NY2d 344.9 Allen v. Adami, supra.10 Mecca v. Kern, 193 AD2d 746 [SecondDept. 1993].11 Hemlock v. McGuire Development Corp.,35 AD2d 567 [Second Dept. 1970].12 Matter of Sakrel v Roth, 176 AD2d 732[Second Dept. 1991].13 Matter of Matherson v. Scheyer, supra.14 Matter of Patrick v. Zoning Board ofAppeals of Village of Russell Gardens, supra.;Matter of Barrett v. Rose, 152 AD2d 525[Second Dept. 1989].15 Matter of Matherson v. Scheyer, supra.16 Matter of Ifrah v. Utschig, 89 NY2d 304.

LAND USE/APPELLATE

Merger, Single and Separate, and the Back-to-Back Split

Robert J. Flynn, Jr.

To Advertise inThe Suffolk Lawyer

Call 631-427-7000


______________________By Ilene Sherwyn Cooper

Discovery of AssetsIn Matter of Perelman, the Appellate

Division, First Department, unani-mously reversed an Order of theSurrogate’s Court, New York County(Anderson, S.), which, inter alia,denied the respondents’ motion to dis-miss the executor’s amended petitionto the extent it sought discovery, pur-suant to SCPA §2103, of the decedent’sownership interests, if any, in family-owned businesses.

The court held that the amendedpetition, insofar as it sought the fore-going discovery, should have been dis-missed on the ground that the executor“failed to demonstrate the existence ofany specific personal property ormoney which belong[ed] to the estate”(citing Matter of Castaldo, 180 AD2d421 (1st Dept 1992), or even a reason-able likelihood that such specificproperty or money might exist.Significantly, the court noted that, insupport of their motion to dismiss, therespondents offered contemporaneousdocumentary evidence indicating that,in 1990, the decedent had sold herinterest, in the family-owned HudsonCounty News Company, for $28,500cash, and a $200,000 promissory notepayable in installments over five years.Following that sale, the recordrevealed that the decedent had nointerest in that entity, or its successors,or in any other family enterprises.

In the face of this proof, the courtfound that the executor had failed tocome forward with any evidence sug-gesting that, aside from a 401(k) accountnot at issue on the appeal, the decedentmay have held any interest in the familybusinesses after 1990. The court opinedthat, notwithstanding the executor’s sug-gestion of the possibility that the dece-dent may not have been paid in full forher interest in Hudson, his claims that thedecedent might have held some interest

after the 1990 sale transactionwere speculative. Moreover,the court held that any allegedcause of action based on abreach of contract or fraud inconnection with the sale trans-action would not confer a rightto possession of specific per-sonal property or money asrequired by the provisions ofSCPA §2103.

Additionally, although the executoralleged that the respondents’ convertedthe decedent’s interest in the familybusinesses, and that the estate had theright to inquire into any such conver-sion, the court found that any suchcause of action would have accruedlong before the decedent’s death in2007, and thus was barred by the three-year statute of limitations set forth inCPLR 214(3). Finally, the court con-cluded that any claim for breach of con-tract based on the 1990 sale transactionwas subject to the six year statute oflimitations for breach of contract, andthus became time barred in 2001, i.e.six years after 1995, the year in whichthe last installment payment for dece-dent’s interest in Hudson was due.

Matter of Perelman, 123 AD3d 436(1st Dep’t 2014), mot. for lv. to app.denied with costs, 2015 NY Slip Op72200 (2015).

Reformation of TrustBefore the Surrogate’s Court,

Suffolk County, was an uncontestedapplication by the petitioner, the dece-dent’s niece, as successor trustee/bene-ficiary of the Victor Larson RevocableTrust, the trustee/beneficiary of theVictor Larson Irrevocable Trust, andbeneficiary of the decedent’s will for aconstruction of certain enumerated dis-positions of the three instruments.

The record revealed that pursuant tothe terms of his Revocable Trust, creat-ed on July 1, 2008, the decedent direct-ed that $25,000 of the trust funds be

distributed to each of his twograndsons, and the remainderthereof be distributed to hisniece and nephew. It alsoappeared that the same dayhe executed the RevocableTrust, the decedent executedhis will, wherein he directedthat the residue of his estatepour over and be distributed

in accordance with the terms of hisRevocable Trust, or, in the event thetrust could not be located, in accor-dance with the same dispositivescheme as set forth in the RevocableTrust instrument.

Several years after the execution ofthe foregoing documents, the petition-er, acting under decedent’s power ofattorney, met with counsel to discussMedicaid planning on the decedent’sbehalf. As a result of that meeting, thepetitioner created the Irrevocable Truston behalf of the decedent, the terms ofwhich mirrored the terms of theRevocable Trust and will.

Unfortunately, the decedent died onemonth later, without all of his assetshaving been transferred into theIrrevocable Trust. The unintendedresult thereof was the existence ofassets remaining in the decedent’sname for disposition under both theRevocable and Irrevocable Trusts, anda duplication of the bequests to thedecedent’s nephews; i.e. pursuant tothe terms of the Revocable Trust, aswell as the terms of the IrrevocableTrust. Accordingly, the petitionerrequested that the Irrevocable Trust beamended to delete the bequests there-under to the nephews.

The court opined that while it may bereluctant to construe a trust instrumentwhen the language is unambiguous, itwould be within its purview to reform theinstrument in order to effectuate the sett-lor’s intent. Towards that end, the courtobserved that it was required to reviewthe dispositive scheme set forth in thedecedent’s will and trust instruments, andall the facts and circumstances surround-ing the preparation of those documents.With this in mind, the court held that itwas clear that the Irrevocable Trust wasintended to maintain the integrity of thedecedent’s testamentary plan, and assuch, to insure that the decedent’snephews receive bequests of only$25,000 each from the decedent’s estate.

Accordingly, in order to effectuatethe settlor’s intent, the court held thatthe Irrevocable Trust should bereformed in order to delete the specificbequests to the decedent’s nephews.

In re Larson Irrevocable Trusts,NYLJ, June 26, 2015, at p. 43 (Sur.Ct. Suffolk County).

Revocation of willIn Matter of Powers, the Surrogate’s

Court, Oneida County, was confronted

with objections by the decedent’s sur-viving spouse, who alleged that thepropounded instrument had beenrevoked by the decedent prior to hisdeath. Simultaneous with the filing ofher objections, the decedent’s spousemoved for summary judgment denyingthe will probate, and the proponentcross-moved for summary judgmentstriking the objections.

The propounded will was a typewrit-ten instrument, but at the top of the firstpage, there was handwritten and dated,in red, by the testator, the words: “ThisWill is no longer valid.” In addition,the testator indicated that after twoyears of consideration, she handwrotea new will, which she requested be“honored,” until she was able to get theinstrument “officially changed” andtyped. Attached to the instrument, were12 sheets of paper containing the testa-tor’s handwriting and signed by her.Notably, these handwritten sheets werenever re-done in typed form prior to thetestator’s death. Moreover, none of thewords of the testator on the top of thepropounded instrument touched orobliterated any part of her will.Nevertheless, the objectant maintainedthat the testator revoked her will pur-suant to the provisions of EPTL 3-4.1,which allows a will to be revoked by anact of burning, tearing, cancelling, orobliteration by the testator.

The court opined that when wordsof revocation and the signature of thetestator are written directly across theface of a will, it obliterates the wordson the instrument, thereby reflectingthe intent of the testator to revoke it.However, in view of the fact that noneof the words written by the testator atthe top of the instrument defaced thesubject will, it could not be concludedthat she revoked the instrument byphysical act in conformity with thestatute. Further, in response to theobjectant’s claim that the instrumenthad been cancelled by a writing, thecourt held that in order to be effective,such writing had to be executed inaccordance with the statutory formali-ties of a duly executed will. Inasmuchas those formalities had not been com-plied with, objectant’s argumentfailed.

Accordingly, based upon the forego-ing, the proponent’s motion for sum-mary judgment was granted, and theobjections to probate were dismissed.

In re Powers, NYLJ, July 14, 2015,at p. 29 (Sur. Ct. Oneida County).

Note: Ilene S. Cooper is a partnerwith the law firm of Farrell Fritz, P.C.where she concentrates in the field oftrusts and estates. In addition, she ispast-Chair of the New York State BarAssociation Trusts and Estates LawSection, and a past-President of theSuffolk County Bar Association.

TRUSTS AND ESTATES

Ilene S. Cooper

SAVE THE DATE

Celebrate the seasonwith friends andcolleagues at theSCBA’s annualholiday get togetheron Friday, Dec. 11from 4 to 7 p.m.

SCBA’s Holiday Party


____________________By Frederick Eisenbud

Newsday reported on Aug. 27, 2015that Baykeeper, an environmentalgroup, intends to commence a lawsuitagainst the New York State Departmentof Environmental Conservation(“DEC”) and National Grid becausethe effluent from the Northport powerplant is killing millions of fish eachyear. The article notes that the DEC’spermit for the power plant expired in2011, “but under state rules it can oper-ate while its application is reviewed.”

The referenced “state rules” are thesubject of this article, but the focus ison clients you may have who requirepermits from the DEC, not the poten-tial lawsuit discussed in the Newsdayarticle. If your clients have such per-mits, they are issued for finite periodsof time and require renewals or theylapse. Whether the renewal applicationis timely filed and sufficient may be ofcritical importance to your client.

Section 401(2) of the StateAdministrative Review Act (“SAPA”)states:

2. When a licensee has made timelyand sufficient application for therenewal of a license or a new license

with reference to any activ-ity of a continuing nature,the existing license doesnot expire until the appli-cation has been finallydetermined by the agency,and, in case the applicationis denied or the terms ofthe new license limited,until the last day for seek-ing review of the agency order or alater date fixed by order of thereviewing court, …. “License”includes permits.1

Why is it important that your client’sDEC permit continue until a determina-tion is made? First, of course, is theobvious reason that the permit willlapse upon the expiration date of thepermit if renewal has not been granted.If DEC does not promptly make adetermination, the old permit will con-tinue to authorize the permit holder tooperate if a timely and sufficient renew-al application was filed.2 More impor-tantly, however, is that the DEC’sUniform Procedures permit theDepartment to suspend permit review ifthere is an outstanding enforcementaction. See 6 NYCRR §621.3(e). Thus,

if your client has made “time-ly and sufficient” applicationfor renewal of the DEC per-mit, the expiring permit willcontinue in effect even if theenforcement action is notresolved until after the expira-tion date of the permit.3

An enforcement hearing iscommenced by service of a

Notice of Hearing and Complaint. 6NYCRR §622.3. For a period of years,Region 1 of the DEC took the positionthat service of a Notice of Violationcommenced an enforcement action forpurposes of invoking its right to suspendpermit review. This position left permitholders in an impossible negotiatingposition when they tried to resolveDEC’s alleged violations. Without aNotice of Violation and Complaint, theyhad no administrative vehicle to chal-lenge the validity of the violationsalleged in the Notice of Violation, andtheir permit would expire unless theyhad filed a timely and sufficient renewalapplication.4

“Timely renewal” turns on the type ofDEC permit in question. Permits forHazardous Waste ManagementFacilities, Solid Waste Management

Facilities, Air Permits, and RemedialAction Plans require that the renewalapplication be submitted 180 days beforepermit expiration in order to be timely.All other permit renewals must be sub-mitted at least 30 days before expiration.5

The protection of SAPA §401(2) alsorequires that the application be “suffi-cient.” DEC defines a “sufficient appli-cation for renewal” to mean “properlycompleted application forms, supple-mental information and plans requiredby specific program regulations forrenewing permits, and identification ofany material changes in regulated oper-ations or environmental conditions atthe permitted facility or site.”6 NYCRR §621.2(ad). Requirementsfor specific DEC permit applicationscan be found at 6 NYCRR §621.4.

Failure to provide all required infor-mation does not necessarily deprivethe applicant of the protection againstthe permit lapsing while renewalapplications are being considered. TheDEC is required to notify the applicantwhether the application is complete orincomplete within 60 days for permitsdelegated by the Federal Government(generally, RCRA, Clean Water Act,

ENVIRONMENTAL

SAPA and Timely and Sufficient DEC Permit Renewal Applications

Frederick Eisenbud



________________By Craig D. Robins

Before Congress drastically modi-fied the Bankruptcy Code in 2005, anumber of debtors abused the bank-ruptcy system by filing serial Chapter13 cases, always on the eve of foreclo-sure, to stay the foreclosure sale.

This placed the burden on the lenderto bring a motion for relief from thestay. However, some debtors learnedthat they could game the system by fil-ing again and again, causing greatanguish to the lenders, some of whomhad to wait years to get relief.

BAPCPA addressed this problem byshifting the burden to the debtor whenthere are repeat filings. Now, pursuantto section 362(c)(3), if a debtor files asecond Chapter 13 petition within ayear, the automatic stay only lasts for30 days. The debtor then has the bur-den of bringing a motion to extend theautomatic stay and must demonstrateto the court that he or she is entitled tohave the stay continued.

However, the requirements for suc-cessfully bringing this motion can bequite tricky, and many a practitioner haslearned this the hard way. If counseldoes not bring the application correctly,then the stay will not be extended.

In order to extend the 30-day stay,section 362(c)(3)(B) requires thedebtor to bring a motion, which isheard and granted before the expirationof the 30-day period.

If the debtor neglects to do that, thenaccording to the statute, the stay auto-matically terminates with respect to thedebtor on the 30th day after filing. Aswill be seen, these highlighted wordshave great significance.

The statute creates tremendous pres-sure on debtor’s counsel, who mustessentially file such a motion withindays of filing the petition. In addition,counsel must obtain a hearing date thatis within the 30-day period, and cannotadjourn the hearing date unless the newdate is also within that 30-day period.

At the hearing, counsel must demon-strate that the debtor filed the currentbankruptcy in good faith. This usuallyinvolves showing that there has been achange in circumstances such that thedebtor has overcome whatever theproblems were that caused the priorcase to be dismissed.

If the debtor does not bring the 30-day motion in a timely manner, even ifit is unopposed, the court will not grantthe requested relief. That was the les-son that counsel recently learned in apending Central Islip BankruptcyCourt case. Counsel must have beenmost upset – if there is no stay, then a

foreclosing mortgagee cancontinue a foreclosure pro-ceeding and the bankruptcybecomes for naught.

However, it was not the endof the world, as counsel sawin the written decision fromJudge Louis A. Scarcella, sit-ting in the Central IslipBankruptcy Court, who decid-ed that motion. In re Hale, (U.S.B.C.E.D.N.Y., Case No. 15-71021-las,August 3, 2015).

In the Hale case, the debtor had aprevious Chapter 13 petition dismissedin the one-year period prior to filing.Debtor’s counsel filed his motion toextend the stay about six weeks afterfiling. This was clearly two weeks toolate. Thus, the automatic stay hadalready expired on the 30th day afterthe petition was filed.

Accordingly, Judge Scarcella deniedthe motion because it was not filed norheard within the 30-day period.

Yet all was not lost. Judge Scarcellapointed out that there is controversy,based on the wording of section362(c)(3)(A), whether termination ofthe stay applies to property of the estateas well as to the debtor. He found thatthe automatic stay only terminates withrespect to the debtor and his property,but not property of the estate.

Consequently, a mortgagee wouldstill be required to bring a motion forrelief from the stay, as a debtor’s homeis property of the estate.

In reaching this holding, JudgeScarcella noted that even though theSecond Circuit has not yet addressedthis issue, there is an emerging majori-ty view that termination of the auto-matic stay under section 362(c)(3)does not extend to actions against theproperty of the estate, which, as a prac-tical matter, encompasses the lion’sshare of assets in play.

This is all due to the wording of thestatute, which states, “the stay auto-matically terminates with respect to thedebtor on the 30th day after filing.

Judge Scarcella and other judgesanalyzing this statutory language findthis wording clear, plain and unam-biguous. “We have stated time andagain that courts must presume that alegislature says in a statute what itmeans and means in a statute what itsays there ...”

This flies in the face of the minority view,which seeks to preserve the congressionalintentbehind thestatuteofdeterringandpre-venting abusive serial filings.

However, Judge Scarcella comment-ed that at first blush, the minority viewhas some appeal, given the objectives

of the 2005 Amendments toabusive serial filings.However, he observes thatBAPCPA’s drafting was inart-ful and the frameworklabyrinthine. Accordingly, hewent with the view that placesgreater importance upon theplain meaning of the statutorylanguage.

The decision is clearly a win fordebtors as it essentially preserves thestay regardless of whether counselbrings the 30-day motion properly andperhaps acts as an indictment of thepoorly worded BAPCPA statute.

Thus, in Hale, even though counselfailed to bring the 30-day motion in a

timely manner, there is still a stayagainst property of the estate, whicheffectively prevents a mortgageefrom continuing a foreclosure pro-ceeding without first bringing amotion for relief.

Note: Craig D. Robins, Esq., a regularcolumnist, is a Long Island bankruptcylawyer who has represented thousands ofconsumer and business clients during thepast 29 years. He has offices in Melville,Coram, and Valley Stream. (516) 496-0800. He can be reached [email protected]. Visit hisBankruptcy Website: BankruptcyCan-Help.com and his Bankruptcy Blog:LongIslandBankruptcyBlog.com.

CONSUMER BANKRUPTCY

Bankruptcy Stays and the Chap 13 Repeat FilerRecent decision helps debtors who neglect to reinstate stay

Craig Robins

Confidentiality Obligations for Real EstateBrokers and Attorneys (Continued from page 6)

estate attorneys and real estate bro-kers is customary in the professionalcommunity, the disclosure will likelyfail the second prong because of abroker’s affirmative disclosure obli-gations.

Real Property Law §443(4)(a)states:

In dealings with the buyer, aseller’s agent should … (c) dis-close all facts known to the agentmaterially affecting the value ordesirability of property, except asotherwise provided by law.

In dealings with the seller, abuyer’s agent should … (c) dis-close all facts known to the agentmaterially affecting the buyer’sability and/or willingness to per-form a contract to acquire seller’sproperty that are not inconsistentwith the agent’s fiduciary duties tothe buyer.Consequently, a real estate broker

must disclose facts affecting the valueand desirability of real estate, plus thebuyer’s ability and willingness to closea transaction. Further, the term“known” is not limited to “actualknowledge,” as such a term is definedin attorney’s ethics at Rule 1.0(k).Instead, the Department of Statedefines “known” in the context of realestate brokerage to include facts that abroker “knew or should have known,”or constructively knowing. See DOS v.Yearsley and Weeks, 683 DOS 08. Infact, the Civil Court, RichmondCounty, recently defined “should haveknown” by holding that “salespersonsare charged with knowledge andresponsibility to check the public

records to confirm any information thebroker is conveying to the potential pur-chasers” in creating an ever expansiveunderstanding of what a broker mustdisclose. McDermott v. Related Assets,LLC, 45 Misc.3d 1205(A) (2014); Seealso by Andrew Lieb, “Real EstateBrokers and Disclosure Requirements,”The Suffolk Lawyer, May 2015, page 17and 25. In contrast to the obligations ofa real estate broker, a seller and the sell-er’s attorney are not liable for non-dis-closure absent active concealment. SeeSchomaker v. Pecoraro, 237 A.D.2d424 (2nd Dept., 1997).

It should now be understood thattransactional real estate attorneyshave a duty to screen the informationthat they share with an aligned realestate broker within the context of atransaction. In fact, real estate attor-neys would be best served by provid-ing an informed consent letter to theirclient that explains a broker’s affirma-tive disclosure obligation before suchattorney discloses anything at all tothe real estate broker, except the clos-ing date. More so, should attorneysand brokers have diverging disclosureobligations in this context where analignment could benefit their mutualclients?

Note: Andrew M. Lieb is theManaging Attorney at Lieb at Law,P.C., a law firm with offices in CenterMoriches and Manhasset. Mr. Liebserves as a Co-Chair of the RealProperty Committee of the Suffolk BarAssociation and has been the SpecialSection Editor for Real Property in TheSuffolk Lawyer for several years.


__________________By Leo K. Barnes Jr.

Dissolution of a domesticcorporation can be achievedby the shareholders on con-sent, via judicial order pur-suant to Business CorporationLaw § 1104-a, or in accor-dance with Tax Law § 203-awhen the New York Secretaryof State effectuates a dissolution byproclamation, and annuls the corpora-tion’s authority to conduct business, as aresult of the corporation’s failure to filetax returns and/or pay franchise taxes.No matter the means of dissolution, thecorporation is nonetheless entitled towind up its affairs and sell its assets.More specifically, BCL § 1005, entitled“Procedure After Dissolution” provides:

(a) After dissolution:(1) The corporation shall carry on nobusiness except for the purpose ofwinding up its affairs.(2) The corporation shall proceed towind up its affairs, with power to ful-fill or discharge its contracts, collectits assets, sell its assets for cash atpublic or private sale, discharge orpay its liabilities, and do all other actsappropriate to liquidate its business.

However, despite the fact that a cor-poration is legally entitled to sell itsassets, the authority to act does notserve to undermine a shareholderagreement, which provides that major-ity vote is required to act. Indeed,Business Corporation Law § 614,1

entitled “Vote of Shareholders” pro-vides as follows:

(b) Whenever any corporate action,other than the election of directors, isto be taken under this chapter by voteof the shareholders, it shall, except asotherwise required by this chapter or

by the certificate of incorpora-tion as permitted by this chap-ter or by the specific provi-sions of a by-law adopted bythe shareholders, be author-ized by a majority of the votescast in favor of or againstsuch action at a meeting ofshareholders by the holders ofshares entitled to vote there-

on. Except as otherwise provided inthe certificate of incorporation or thespecific provision of a by-law adopt-ed by the shareholders, an abstentionshall not constitute a vote cast[underlining added].

Indeed, the BCL confirms that dis-solution of a corporation does notaffect the majority vote requirement ofa Shareholders’ Agreement or theBusiness Corporation Law § 614requirements. More specifically, BCL§ 1006(a)(2) provides:

(a) A dissolved corporation, itsdirectors, officers and shareholdersmay continue to function for thepurpose of winding up the affairs ofthe corporation in the same manneras if the dissolution had not takenplace, except as otherwise providedin this chapter or by court order. Inparticular, and without limiting thegenerality of the foregoing:…(2) Dissolution shall not changequorum or voting requirements forthe board or shareholders, or provi-sions regarding election, appoint-ment, resignation or removal of, orfilling vacancies among, directors orofficers, or provisions regardingamendment or repeal of by-laws oradoption of new by-laws.

Assume that post-dissolution, a corpo-

COMMERCIAL LITIGATION


Court Supervision of a DissolvedCorporation Pursuant to BCL 1008

Leo K. Barnes

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complaints involve escrow violations. Mr.Krinsky urged that the Commission notrevamp the entire disciplinary system toaddress the less frequent occurrences butrather, that the existing safeguards inplace such as self-reporting and mandato-ry bank reporting are sufficient to addressthose situations. He noted that the SecondDepartment accounts for 20-25 percent ofall attorneys in the state and 50-56 percentof all allegations of escrow violations.Noting that empirical data, he empha-sized that the Academy would oppose anyplan that would represent mechanistic anduniform rules throughout the state,because each disciplinary matter is sepa-rate, unique, and considers mitigating fac-tors, and there is no “one size fits all” dis-ciplinary process. Since there is a certainpattern of conduct in certain geographicallocations but not others, having separatedepartmental discretion allows the takinginto account of issues facing lawyers inthat geographic area.

Many of those who testified agreedthat we could improve upon the systemwe already have, for example, by invest-ing more money in the budget to pro-vide resources.

One very hot button issue was thequestion of whether there should bepublic disclosure of disciplinary pro-ceedings at the charging stage. TheAcademy opposed such public disclo-sure to protect the attorney’s reputationfrom unsubstantiated claims.

Daniel Morotta and Allyn Crawford ofthe Richmond County Bar Associationaptly noted, “It is a tough job to be anattorney.” He noted that while it is impos-sible for an honest attorney to “competewith lawyers who treat escrow accountslike their own personal piggy banks,” that“we need to make sure that we have asystem that is fair and balanced to everyone involved and to increase the efficien-cy of this system and achieve disposi-tions more quickly. Any complaints thatare false or unfounded on their face mustbe weeded out and discouraged fromclogging the system.”

The panel also noted the ability ofclients to leverage threats of making acomplaint if made public, particularly infee disputes, and that “there are manyclients that are much more powerful thanthe lawyer [..]” that will threaten a griev-ance if the lawyer pursues the fee that heor she has earned. Mr. Marotta addressedthe problem of making the complaintspublic before the committee has had anopportunity to determine whether theheart of the complaint is really a fee dis-pute that should be referred to the arbi-tration panel, at which point the damagewill have already been done to the attor-ney over what is really a fee dispute andnot a substantive grievance.

The Committee on ProfessionalDiscipline for the Association of the Barof the City of New York (of which I am

a member) urged that only the procedur-al rules for the grievance process shouldbe uniform. The Committee proposedimproving the system by adopting newrules to obtain discovery and non-privi-leged information for the respondent. Italso recommended mediation for com-plaints, particularly where the gravamenof the complaint was a failure to com-municate.

For reform Karen Winner, Esq., who said that she

was instrumental in drafting the “Client’sBill of Rights,” testified in favor ofreform. She claimed that consumers oflegal services are impacted by “secrecy”surrounding the disciplinary process, andthat the current system fails to protect thepublic from unscrupulous attorneys. Shesaid that the public is “held captive to thevested interests of lawyers who have nointerest in disrupting the status quo.” Shedenied that the public would use theprocess to retaliate saying, “most peopleare sincere.” When pressed by JudgeSkelos for empirical evidence about thepattern of recidivism among attorneysand the likelihood of an attorney com-mitting further unethical acts or violationwhile under investigation, she concededthat it was only anecdotal. Judge Skelosasked again if she had any empirical evi-dence from other states that had an opensystem that she had previously cited, likeOregon and West Virginia. Muchapplause and shouts erupted from theAmericans for Legal Reform when sheretorted that she “can’t collect empiricaldata because the system is secret,”3 eventhough the question was directed at stateswith open systems.

Mr. Marotta aptly noted followingMs. Winner’s testimony that “a greatmajority of [the complaints] are simplyunfounded,” and that “I have been aNew Yorker my whole life [and] I don’tthink any one here is naïve to think thatpeople will not file complaints that arenot true or have allegations that are justfalse.” He proposed a minimum filingfee in an effort to weed out some of theunfounded complaints.

What was most disturbing as anobserver of the proceedings was thedearth of attorneys in the audience. Thequestion of procedural and substantivechanges to our disciplinary systemstrikes at the heart of lawyers’ liveli-hoods. In this day and age of theInternet, one unsubstantiated complaintto a grievance committee that is madepublic could destroy, if not significantlydilute, our reputation and ability toobtain clients. It can also perpetuatemore unsubstantiated complaints by dis-gruntled clients who are merely unhap-py about the outcome of the matter, orabout the fee charged.

Ms. Wenner testified that opening theprocess is needed because the “unsus-

pecting client won’t know of any disci-pline and think it is perfectly safe to hirean attorney,” and that the attorney cankeep practicing during the pendency of acomplaint. Yet, that seems to be the veryreason for keeping the process confiden-tial unless and until public discipline isimposed – to do otherwise would be toconvict the attorney before due processwas ever fulfilled, preventing her or himfrom generating business simply becausea complaint was brought, whether or notit had merit in the first instance. It wouldalso give unscrupulous clients leverageover lawyers with the threat of a baselesscomplaint, knowing that it would bemade public. And, in this day and agewhere social media allows information tospread like wildfire, the risk to a lawyer’sreputation and livelihood far outweighsthe perceived harm to the public, espe-cially in light of the empirical data.

Although written testimony was sup-posed to be submitted to the Commissionby late August, it is not too late to voiceyour opinion on this very importantissue. Anyone may do so by sending a

written submission to [email protected] or by mailing toThe Commission on Statewide AttorneyDiscipline, 25 Beaver Street, EleventhFloor, New York, NY 10004-2310.

Note: Alison Arden Besunder is thefounder of Arden Besunder P.C., a lawfirm focusing in the areas of trusts, estateplanning, and surrogate’s court practiceand litigation. She advises clients inManhattan, Brooklyn, and Suffolk, Nassauand Queens Counties. Follow Alison onTwitter @estatetrustplan and on her blogestatetrustplan.wordpress.com.1 Press Release, May 30, 215,www.nycourts.gov/press/pdfs/pr15_03.pdf. 2 Materials relating to the commission, togetherwith transcripts of the three public hearings, areavailable online at www.nycourts.gov/attor-neys/discipline/resources.shtml3 The statement is not entirely accurate since theOCA website now includes a statement on eachattorney’s registration search as to whether thatattorney has been publicly censured or suspended.In addition, the American Bar Association con-ducts an Annual Survey on Lawyer DisciplineSystems (S.O.L.D.) which is accessible at no coston the ABA website.

Commission Holds Downstate Hearing on Grievance Process (Continued from page 1)


Court Supervision of a Dissolved Corporation (Continued from page 21)

ration is working to “wind up” its affairsby selling assets, but is unable to achievea majority (or super-majority) vote inaccordance with BCL § 614(b) or aShareholders’Agreement? As a practicalmatter, any conduct of the corporationthat was achieved without a majorityvote would likely be subject to attack. Insuch an instance, the shareholder (orshareholders) may petition the SupremeCourt to supervise the liquidationprocess. For example, BCL § 1008(a)permits the Supreme Court to supervisethe liquidation of a corporation and makeOrders in connection with the windingup of the corporation’s affairs:

(a) At any time after the filing of acertificate of dissolution under thisarticle the supreme court in the judi-cial district where the office of thecorporation was located at the date ofits dissolution, in a special proceed-ing instituted under this section, uponthe petition of the corporation, or, in asituation approved by the court, uponthe petition of a creditor, claimant,director, officer, shareholder, sub-scriber for shares, incorporator or theattorney-general, may suspend orannul the dissolution or continue theliquidation of the corporation underthe supervision of the court and maymake all such orders as it may deemproper in all matters in connectionwith the dissolution or the winding upof the affairs of the corporation…[underlining added].

Indeed, BCL § 1009 confirms thatthe supervision mechanism is availablefor a Tax Law § 203-a dissolution:

1009. Applicability to dissolutionunder other provisions.The provisions of sections 1005(Procedure after dissolution), 1006(Corporate action and survival ofremedies after dissolution), 1007(Notice to creditors; filing or barringclaims) and 1008 (Jurisdiction ofsupreme court to supervise dissolutionand liquidation) shall apply to a cor-poration dissolved by expiration of itsperiod of duration or under sectiontwo hundred three-a of the tax law.

Upon dissolution, the BCL providesa pragmatic means to effectuate, interalia, the liquidation of a corporation’sassets in a court-supervised manner,thereby shielding shareholders, andtheir counsel, from allegations thatdecisions were made, and conduct per-formed, in an ultra vires manner.

NOTE: Leo K. Barnes Jr. IS a memberof BARNES & BARNES, P.C. in Melville,practices commercial litigation and canbe reached at [email protected] It is important to take into account, however,that BCL § 614 makes an exception to themajority vote required where corporationaction is governed by specific provisions in thecertificate of incorporation or by the bylawsadopted by the shareholders (i.e. a super-major-ity provision).

not understand. In 1991, David Besso and a handful

of leaders from the Lawyers’Committee on Alcohol and DrugAbuse created the Lawyer AssistanceFoundation, (the Foundation) as afundraising entity to continue in theirquest to provide assistance to lawyersin need.

The Foundation and our committee,now called “Lawyers HelpingLawyers,” deal with substance abuseand the ramifications associated withthose issues, which now include mentalhealth, depression, and stress and gam-bling among its issues.

For many years the GrievanceCommittee for the Tenth JudicialDistrict has used the Foundation, withthe approval of the Appellate Division,Second Department, and together withthe NYSBA Lawyers’ AssistanceProgram to monitor diversion andalternatives to discipline dealing withmatters involving alcohol and sub-stance abuse. I was often told that ourmembers, including Eugene O’Brienand Gus Ginocchio, were known toanswer the call for help no matter thetime of day or night. They wouldspeak about 90 days 90 meetings andchecking in everyday. This was thediversion program where someone washaving a substance problem and hadcomplaints made by clients. If they

made it thought the 90 days and main-tained sobriety, the Appellate Divisionwould order that the person continuedto be monitored and their complaintswould be resolved. The lawyer waspermitted to maintain their license aslong as they maintained their sobriety.

The program exists in total confiden-tially. So if I knew who was successfulI could not tell you. But I can tell youthat there are more successful personsthen you would think. The success wasdue to the mentors who spent countlesshours week after week to help a fellowcolleagues get through the most diffi-cult time of their life.

The volunteers of the LawyerAssistance Foundation help in manyother ways. It was and is for alllawyers in need. The cause is notimportant. The volunteers determinewhat help is needed and then proceedto put help into place. One example isthe situations where a lawyer, put onbed rest at six months due to a troubledpregnancy found that the bed rest inter-fered with the daily demands of herpractice. Volunteers went to her officeand took care of her files as per herdirection until the attorney could putinto place a permanent replacement.More than once an attorney suddenlydied and the immediate family neededhelp to close the practice and distributefiles to clients. Also attorney’s who

had been suspended or disbarred need-ed help to distribute files. An attorneydied suddenly and his children did nothave any money to bury their father.Volunteers helped to make arrange-ments and make a contribution to thelawyer’s burial. Another example isthe attorney who died suddenly and leftover 300 executed wills to be distrib-uted to the testators.

As time went on, I proudly took overthe reins as Managing Director of theLawyer Assistance Foundation andfound the satisfaction that Judge Blockpromised it would be.

With the small amount of funds ourLawyer Assistance Foundation haswe’ve managed to use these monies tohelp attorney’s pay their most urgentbills, help pay for a lawyer to go intorehab, help a lawyer pay for medicalinsurance and many other life threaten-ing needs.

The only fundraising the LawyerAssistance Foundation does is at theannual golf tournament at theWesthampton Country Club (and wehave to thank Gair Betts for this won-derful location). The people who playknow what the Lawyer AssistanceFoundation does for their profession.

This year Judge Jack Toomey isbeing honored for the wonderful serv-ice he performs at the Veterans Court.It is all in the spirit of Lawyers Helping

Lawyers. Dave Besso serves as the cur-rent Managing Director and this is thesecond time around that David has beenits Director. He works and has workedextremely hard to make the golf outinga success since its beginning. Mostpeople know how Dave loves to playgolf and know that the golfers whocome year after year are not all lawyers,but they are friends of David and thistoo is indeed a tribute to him.

Judge Ira Block never spoke aboutwhat he did for lawyers and neither didGene O’Brien, or Gus Ginocchio orany of the members on the Committeeor the Foundation. Judge Toomey andDavid Besso and the band of volun-teers quietly do whatever has to bedone in the moment.

Now that our best kept secret is outthere we have to ask for your help if theFoundation is to continue. There aremany ways to participate in the LawyerAssistance Foundation. You can be avolunteer and give of your time work-ing on the golf outing or you can go tothe outing and enjoy a wonderful dayof playing golf at a premier golfcourse. Please consider making a con-tribution. All contributions are taxdeductible. Perhaps your donation willmark a special occasion or memorial-ize a particular person. Whatever themotivation, any help you can providewould be greatly appreciated.

President’s Message (Continued from page 1)


otherwise unblemished career span-ning 30 years, his volunteer service,and the substantial evidence of therespondent’s good character.Accordingly, under the totality of cir-cumstances, the respondent was pub-licly censured for his professional mis-conduct.

Attorneys suspendedLinda Marie Cronin: By decision andorder of the court, the GrievanceCommittee was authorized to institutea disciplinary proceeding against therespondent and the matter was referredto a Special Referee. The referee sus-tained all four charges against therespondent and the GrievanceCommittee moved to confirm. Therespondent cross-moved to disaffirmthe report or in the alternative, request-ed that if a violation was found thesanction be limited so as to authorizeher to continue to practice law. Thecharges alleged, inter alia, that as anexperienced trial attorney and the part-ner in charge of the litigation practicefor her firm, the respondent, wasresponsible for engaging in a concertedeffort to circumvent a court orderedtemporary restraining order, and for fil-ing an affirmation containing a false

statement with the court, with theintent of misleading the court. Basedon the evidence adduced, and therespondent’s admissions, the courtgranted the motion by the GrievanceCommittee and denied the cross-motion by the respondent. In mitiga-tion, the respondent asked the court toconsider, inter alia, her unblemisheddisciplinary history, as well as the evi-dence of her charitable endeavors, probono legal service and good character.Nevertheless, the court expressed con-cern with the serious misconduct inwhich the respondent engaged, includ-ing her acts of dishonesty, fraud anddeceit. Accordingly, under the totalityof circumstances, respondent was sus-pended from the practice of law for aperiod of one year.

Attorneys disbarredMatthew B. Kogan: On July 18,2014, the respondent pled guilty in theSupreme Court, Nassau County, to onecount of grand larceny in the thirddegree, a class D felony. Thereafter, onDecember 3, 2014, the respondent pledguilty in the Supreme Court, NassauCounty to one count of criminal pos-session of a forged instrument in thesecond degree, a class D felony. He was

sentenced to five years probation onboth convictions, the terms to run con-currently. The Grievance Committeemoved to strike the respondent’s namefrom the roll of attorneys based uponhis felony conviction. The respondentfailed to oppose the relief. By virtue ofhis conviction of a felony, the respon-dent ceased to be an attorney and wasautomatically disbarred from the prac-tice of law in the State of New York.

Joel C. Schneider: By decision andorder of the court, the GrievanceCommittee was authorized to institutea disciplinary proceeding based upon10 charges of professional misconductagainst the respondent and the matterwas referred to a Special Referee.Following a hearing, the SpecialReferee sustained the charges and theGrievance Committee moved to con-firm. The respondent did not opposethe motion. The charges against therespondent included allegations, interalia, that the respondent misappropri-ated funds entrusted to him, violatedhis fiduciary duties as an escrow agentby abdicating control over his escrowaccount to a non-attorney, failing tomaintain required bookkeepingrecords, and commingling personal

funds with funds entrusted to hischarge. Based on the respondent’sadmissions and the evidence adduced,the court found that the SpecialReferee properly sustained charges 1through 6 and 8 through 10, but thatcharge 7 was duplicative of anothercharge. In mitigation, the respondentclaimed that he never intended to prej-udice a client, that the charges did notinvolve client funds incident to thepractice of law, and that he intended topay back the balance of funds owed athird party with whom he had no pro-fessional relationship as counsel.Notwithstanding same, the court foundthat respondent demonstrated an utterdisregard for his fiduciary obligations,and determined that disbarment waswarranted. Additionally, the court heldthat any future application for rein-statement was to be accompanied byproof that he repaid the balance due.

Note: Ilene Sherwyn Cooper is a part-ner with the law firm of Farrell Fritz,P.C. where she concentrates in the fieldof trusts and estates. In addition, she ispast President of the Suffolk CountyBar Association and past Chair of theNew York State Bar Association Trustsand Estates Law Section.

Court Notes (Continued from page 4)

Motion seeking class action statusdenied; application was untimely.

In Delfina Urias, as the Guardian ofthe Person & Property of Manuel Uriasand Delfina Urias, individually v. DanielP. Buttafuoco & Associates, PLLC, DanielP. Buttafuoco, LLC, Daniel P. Buttafuoco,Esq. and John Newman, Esq., Index No.:7186/2011, decided on June 24, 2015, thecourt denied the motion of plaintiffs seek-ing class action status. The court notedthat pursuant to CPLR §902, within 60days after the time to serve a responsivepleading expired for all persons named asdefendants in an action brought as a classaction, the plaintiff shall move for anorder to determine whether it is to be somaintained. This filing was mandatory.Herein, the court found that it appearedthat the defendants were served on oraround June 9, 2011 although no affidavitof service had been proffered in support ofeither the within motion or cross motion.After a decision and order was renderedon a pre answer motion to dismiss, issuewas joined by the defendants answer on orabout December 3, 2012.

The plaintiffs now moved, over twoyears after that, for an order grantingclass status. The court concluded thattheir argument that the application astimely was without merit. The court fur-ther noted that an appeal of this court’sprior decision and order, which dismissedsome of the causes of actions of the com-plaint did not extend their time to seekclass status.

Motion to compel denied; motion forprotective order granted to the extentprovided in the decision; defendantsfailed to proffer anything other thanspeculation that the plaintiff ’s injuries

may be related to a hereditary conditionof migraines; no showing that therequested personnel file was in any waymaterial and necessary.

In Emily Watson, Olivia Cunninghamand Douglas Cunningham v. SouthamptonBrick d/b/a Southampton Masonry andAugust Bouker, Index No.: 18327/2011,decided on April 16, 2015, the defendants’motion to compel was denied and theplaintiff’s cross motion for a protectiveorder was granted to the extent providedfor in the decision.

The case at bar was one sounding innegligence, which arose from a motorvehicle accident. The court noted the rel-evant facts as follows: by Stipulations ofdiscontinuance dated August 29, 2012and November 3, 2012, Laurie andJoseph Watson discontinued their deriva-tive claims. On September13, 2013, thedefendants served a Notice for Discoveryand Inspection on Joseph Watson andLaurie Watson. The defendants nowmoved for an order directing them tocomply with said Demands and theplaintiff cross moved for a protectiveorder. Here, in rendering its decision, thecourt noted that for disclosure purposes aparty was distinguished from a non-party, usually referred to as a witness.CPLR §3010 (a) (1) and (2) allow fulldisclosure against a party, a party’s agentor a person who previously possessed acause of action or defense asserted in theaction. Consequently, Joseph Watson andLaurie Watson, as former parties to thewithin action were, accordingly, subjectto full disclosure. The plaintiff objectedto the defendants’ demand for a copy ofJoseph Watson’s personnel file as well asfor authorizations for physicians thattreated him for migraines. In issuing a

protective order, the court noted that thedefendants failed to proffer anythingother than speculation that the plaintiff’sinjuries may be related to a hereditarycondition of migraines from her father.The court further stated that clearly suchspeculation did not warrant directing ofdiscovery of Mr. Watson’s medicalrecords. The court also denied defen-dants’ demand for Mr. Watson’s person-nel file, finding that there had been noshowing that the requested file was inany way material and necessary to thedefense of the within action.

Honorable Joseph C. Pastoressa Motion to compel discovery denied;

from submissions, impossible to deter-mine what discovery was outstanding.

In Robert Nalewajk and SusanNalewajk v. Kolbe & Kolbe Millwork, Co.Inc., Dimensional Millwork, Inc.,Millwork Solutions, FlorenceCorporation d/b/a Florence Corporationd/b/a Florence Building Materials, Kolbeand Kolbe Millwork, Co., Inc. v. AmpleContracting Inc., Jim Makarius, JimMakarius d/b/a Ample Contracting, J.Z.Woodworks, John Zotos d/b/a J.Z.Woodworks, Synergy Concrete Corp.,Vince Capogna and Vince Capogna d/b/aSynergy Concrete, Index No.:37842/2011, decided on April 17, 2015,the court denied motion by defendantKolbe & Kolbe for dismissal of the com-plaint.

In rendering its decision, the courtnoted that counsel’s good faith affirma-tion asserted that on May 4, 2012, defen-dant required that plaintiffs respond to adiscovery demand dated, March 9, 2012,which was long overdue. No other goodfaith efforts to communicate and resolve

the discovery dispute was set forth andthe movant had not outlined what discov-ery was currently outstanding. Moreover,the court found that after May 4, 1012, asecond amended complaint was served onSeptember 23, 2013 and the court hadnow addressed a total of nine motions bythe parties. Finally, the court pointed outthat substantial discovery was providedby CD rom and file review at plaintiff’soffice. Without the CD rom, it was impos-sible to determine from the parties’ sub-missions what discovery had been pro-vided and what remained outstanding.The motion was denied.

Please send future decisions to appearin “Decisions of Interest” column toElaine M. Colavito at [email protected]. There is no guarantee thatdecisions received will be published.Submissions are limited to decisionsfrom Suffolk County trial courts.Submissions are accepted on a continualbasis.

Note: Elaine Colavito graduated fromTouro Law Center in 2007 in the top 6%of her class. She is an Associate at SahnWard Coschignano, PLLC in Uniondale,a full service law firm concentrating inthe areas of zoning and land use plan-ning; real estate law and transactions;civil litigation; municipal law and leg-islative practice; environmental law; cor-porate/business law and commercialtransactions; telecommunications law;labor and employment law; real estatetax certiorari and condemnation; andestate planning and administration. Ms.Colavito concentrates her practice inmatrimonial and family law, civil litiga-tion and immigration matters.

paid in satisfaction of such a claim is nota taxable distribution from the ABLEaccount. Further, the amount is to bepaid only after the payment of all out-standing payments due for the qualifieddisability expenses of the designatedbeneficiary and is to be reduced by theamount of all premiums paid by or onbehalf of the designated beneficiary to aMedicaid Buy-In program under thatstate’s Medicaid plan.”1

This provision makes it less attractiveto gift to an ABLE account. It is recom-mended that any family member and/orthird party wishing to gift any substan-tial assets to an individual with a dis-ability use a Third Party SNT, whichdoes not have a contribution limit anddoes not require a payback upon thebeneficiary’s death.

One significant advantage, however, isthat these new accounts can be openeddirectly by the individual with a disabili-ty as compared to a First Party SNT (akaPay Back), which requires a parent,

grandparent or court order to establish.An ABLE account can be used over thelifetime of the individual beneficiary andthe 529A account is not limited to educa-tion or medical expenses. “Qualified dis-ability expenses” are more broadly inter-preted as expenses that relate to the indi-vidual’s disability and are for the benefitof that designated beneficiary in main-taining or improving his health, inde-pendence, or quality of life. Among theexpenses that qualify are housing,employment training and support, trans-portation, assistive technology, personalsupport services, health prevention andwellness, financial management, legalfees, administrative services and funeraland burial expenses. Furthermore, theaccount owner, or a person appointed tomake decisions on his or her behalf, canselect from the plan’s investment options.

As a rule of thumb, an ABLE accountis best suited to those individuals withdisabilities who are able and want to savesome of their SSI payments or their

wages to accumulate assets over $2,000in order to purchase and/or use thesefunds for an individual goal, such as buy-ing their own automobile. The ABLEaccount allows those disabled individu-als to control some amount of assetsthemselves without jeopardizing theirgovernment benefits.

The accounts are also ideal when fam-ilies, who are applying for SSI with adisabled son or daughter, realize theyhave assets greater than $2,000 – whichcan be a simple solution for those peskysavings bonds or Grandma’s forgottencustodial savings account that are in thedisabled individual’s name. In such acase, they can now transfer those fundsto an ABLE account (up to $14,000)without having to spend down or scram-ble to open a First Party SNT.

The ABLE Act is an important piece oflegislation and a good example of legisla-tors working to directly address the realworld needs of the disabled. The result isa pending law that will impact many fam-

ilies in our state by presenting newoptions to a population that is too oftendeprived of them. When GovernorCuomo puts pen to legislative paper, NewYorkers with disabilities will have anotherimportant program to save for their ownfuture without penalizing their govern-ment benefits.

Note: Regina Brandow of BrandowLaw concentrates her practice on ElderLaw, Special Needs Planning, and Trustand Estates and is an advocate for fam-ilies and individuals with disabilities.Based ina Stony Brook, NY, she can becontacted at (631) 675-2540 or [email protected].

1 Proposed regulations under section529A of the Internal Revenue Code asreported in the Federal Register datedJune 22, 2015. Commentary period upuntil September 21, 2015. Public hearingscheduled for October 14, 2015, at 10a.m.

ABLE Act Coming to New York (Continued from page 5)

Bench Briefs (Continued from page 4)


trust will issue a promissory note toyou in exchange for the shares.”

“So let me get this straight, I sell myshares to a trust in exchange for a note?Don’t I own the note? If I die before thenote is paid off, won’t the value of thenote be included in my estate? Am I justsubstituting one asset in my estate foranother?”

After a pause, he continued, “Youknow, I’m no spring chicken, I’ve hadmy share of health issues, some ofthem serious. You may have noticedthat I’m sitting in a wheel chair? Whatwould this note look like?”

The lawyers confirmed that, “with-out more,” the note would be includedin his estate upon his death if it werestill outstanding at that time. Of course,they added, if the shares appreciated ata rate in excess of the interest accruedon the note, the net result would bepositive insofar as removing value fromhis estate was concerned.

Sale to a trust for a Self-CancelingNote

After some further deliberation, thelawyers peppered him with all sorts ofquestions about his health. “I thoughtyou guys were lawyers? You do knowthat it’s illegal to practice medicinewithout a license?”

“Medicine? No. We’re tax lawyers.We answer to a higher authority.”

“What if we told you that there was away to exclude the note from your estateupon your passing?” they asked him.

Picture the cartoon thought bubblethat appeared above his head at thatpoint. “I sure hope the chauffer has thelimo running. These guys have had toomuch Kool-Aid.”

“OK, I’m game,” he humored them,“how does the note disappear?”

“It doesn’t really disappear. It cancelsitself if you die before the end of thenote term. Based on your age, your lifeexpectancy is almost six years. Assumethe note has a term of 5 years (less thanyour life expectancy). You die in thesecond year of the term. The remainingbalance of the note is canceled andnever has to be satisfied. They’re calledself-cancelling installments notes, or‘SCINs.’”

The devil is in the detailsWell, the planning moved pretty

quickly from there. Davidson was stuck,poked, prodded and probed by fourphysicians, each of whom concludedthat he had a greater than 50 percentprobability of living for at least one year.According to the lawyers, this was a keyfactor. With that prognosis, he was notdeemed to be “terminally ill” within themeaning of those IRS regulations thatwould be used to calculate the actuarialfair market value of the notes based

upon his actuarial life expectancy. Theregulations would not have been avail-able otherwise.

The lawyers obtained appraisals forthe shares to be transferred to thetrusts, and prepared the documentationneeded to effect the transfers, includ-ing the five-year SCINs.

Importantly, they also obtained valu-ations for the “premium” that each trustwould have to pay in exchange for theself-canceling feature. After all, whywould a note holder allow a self-cance-lation provision in the note withoutbeing compensated for the actuarial riskof his or her premature death? In thecase of some of the notes, this premiumtook the form of an increased amount ofprincipal. In others, it was reflected asan increased rate of interest.

The notes were secured by theshares being transferred and by otherassets that had been contributed to thetrusts at their creation. They providedfor annual payments of interest and aballoon payment of principal (either incash or in kind) at the end of the five-year term.

Death waits for no oneIn December 2008, the various trusts

were created and “seeded” with someassets. The stock transfers to the trustswere completed in January 2009.Davidson died in March 2009 and asper the terms of the SCINs, the noteswere canceled.

His estate filed his 2009 gift taxreturns (on Form 709), on extension, inMay of 2010. These disclosed thetransfers of stock in exchange for theSCINs. (The Form 709 for 2008 dis-closed the creation of the trusts.) Hisestate tax return was filed (on Form706), on extension, in June of 2010.

Death and taxesThe IRS examined these returns. With

respect to the estate tax return, the IRSdetermined an estate tax deficiency ofover $1.87 billion (not a typo). It alsodetermined gift tax and generation-skip-ping transfer taxes of approximately$846 million for 2009. Over $2.7 billionin the aggregate (plus interest and penal-ties) – did Davidson roll over in hisgrave?

The IRS arrived at this figure, inpart, by challenging (practically agiven) the reported fair market valuefor Davidson’s company.

It also refused to treat the SCINs asbona fide consideration equal in value tothe Company stock he had transferred tothe trusts in exchange for the SCINs.

The IRS asserted that the regulationsutilized to calculate the actuarial fairmarket value of the notes were inappli-cable because Davidson’s lifeexpectancy was less than the terms of

the notes. Instead, the IRS determinedthat his life expectancy was approxi-mately 2.5 years. The IRS asserted thatthe SCINs should have been valuedusing this life expectancy, which wouldhave significantly reduced their value.

According to the IRS, Davidson neverintended or expected to collect all pay-ments due under the SCINs. Moreover,the IRS said, the trusts would not havebeen able to make payments on theSCINs when due. Thus, the IRS conclud-ed, the SCINs were not bona fide debt.

In June 2013, Davidson’s estate fileda petition with the U.S. Tax Court(https://ustaxcourt.gov/UstcDockInq/DocumentViewer.aspx?IndexID=6610435), in which it challenged the IRS’sassertions. Trial was set for April 2014,but was subsequently continued (oftendone where the parties are engaged inserious settlement negotiations) andstricken from the court’s calendar. Thecourt, however, retained jurisdiction ofthe case, and required the parties to filea joint status report with the courtevery three months.

And so I face the final curtainDavidson’s estate and the IRS sub-

mitted a stipulated decision in Julyof 2015, in which they agreed todeficiencies of gift tax for 2009 ofapproximately $178 million, ofestate tax of approximately $153million, and of 2009 GST tax ofapproximately $46 million. A total of$377 million, as opposed to theapproximately $2.7 billion originallysought by the IRS.

Although the basis for the decisionwas not spelled out, it seems reason-able to surmise that the settlement wasbased upon a compromise regardingthe valuation of the shares transferred— not at all unusual — and that theSCINs were otherwise not implicatedin the decision.

The hereafter?The story set out in this post is based

upon a real taxpayer. The narrative, ofcourse, is pure conjecture. It is, howev-er, based upon discussions that I havehad with many clients (except the partabout the Kool-Aid).

There’s a lesson in almost everystory, fictional or not. The take-awayhere is straightforward: know all therules, pay attention to the details,implement and document the plancompletely, and educate the client.Having done this, you will be in astrong position to withstand any IRSscrutiny.

Note: Lou Vlahos, a partner at FarrellFritz, heads the law firm’s Tax PracticeGroup. Lou can be reached at (516) 227-0639 or at lvlahos@farrellfritzcom.

SCIN Alive?! A Tale of Death, Taxes, Doubt, and Redemption. (Continued from page 6)


Do You Even Network Bro? (Continued from page 16)

New Academy Dean (Continued from page 3)

working opportunities once you areinvolved in one of these organizations.

This is your time to make thingshappen. Do not sit by and watchyour classmates shake hands witheveryone and wonder how he or sheknows so many people — be thatperson. The connections that youmake now can last you a lifetimeand may be your path to employ-ment once you graduate. There is

only one chance at this. Leave noth-ing on the table.

Note: George Pammer is a 3L atTouro Law School. He is a part-timeevening student and the President ofthe Student Bar Association. Georgehas also held the position of Vice-President in the SBA as well as in theSuffolk County Bar Association –Student Committee.

Additionally, the strategic planningcommittee is looking at revisingAcademy bylaws to enable theAcademy to have a more continuousleadership development. “We want tolook at formalizing a process to see ifwe should have a dean elect,” Mr.Tilis said.

Basically, the new dean is leading thecharge to explore and test out new ideas,whether or not a decision is made tomove forward. And he is reaching out tomembers for input. “There will beCLE’s that we have not done in therecent past,” said Mr. Tilis with assur-

ance. “We are lining up top qualityspeakers and are more than willing toreach beyond Suffolk to secure speak-ers. The Academy will continue to offerbenefits for all, from the newer mem-bers to those who have been practicingforever.”

Note: Laura Lane is an award-win-ning journalist who has written for TheNew York Law Journal, Newsday andvarious magazine publications. She isthe editor of the Oyster Bay Guardianand the Editor-in-Chief of The SuffolkLawyer.

Helping Lawyers Find the Path to Recovery (Continued from page 8)

mental illness was approximately18.5 percent (about 43 millionpeople), with 6.7 percent havinghad a major depressive episode.

• At least one study has indicated thatlawyers are 3.6 times more likelyto suffer from depression than anyother profession. See W.W. Eatonet al., “Occupations and thePrevalence of Major DepressiveDisorder,” Journal ofOccupational Medicine 32 (1990):

• A study of 801 lawyers inWashington State found that 19percent of the lawyers studiedsuffered from depression. SeeG.A.H. Benjamin, Id.

• It has been estimated by some stud-ies that of the one million lawyersin this country, approximately250,000 suffer from depression.See Daniel Lukasik, Depression isthe Law’s Occupational Hazard,The Complete Lawyer, (March1, 2008).

• It is estimated that one out ofevery four lawyers suffers fromincreased psychological distress,including feelings of inadequacy,

inferiority, anxiety, social alien-ation, isolation and depression.See Benjamin Sells, Facing theFacts About Depression in theProfession, Florida Bar News(March 1995).

• According to the 2013 NationalSurvey on Drug Use and Health:Mental Health, women are morelikely than men to suffer from anymental illness in a given year (23.2percent vs. 14.4 percent for men).

• Suicide is the third leading cause ofdeath among attorneys, after can-cer and heart disease. This is sixtimes as high as the general popu-lation. See Don Carroll, “LawyerSuicide and Resources forManaging Stress,” North CarolinaLawyer Assistance Program,http://www.nclap.org/article.asp?articleid=143 (accessed 9/5/2013).

• According to the Centers forDisease Control and Prevention,alcohol is a factor in over 30 per-cent of all completed suicides.

• According to the Centers forDisease Control and Prevention,substance use is a factor in over

20 percent of all completed sui-cides. (23 percent for antidepres-sants and 20.8 percent for opi-ates, including heroin and pre-scription pain killers).

• Depressive Disorders, AnxietyDisorders, and Substance-Relatedand Addictive Disorders are allclassified under the Diagnosticand Statistical Manual (DSM-5)of the American PsychiatricAssociation as mental disorders.

Given these statistics, it is not hard toimage that there are a significant numberof legal professionals out there who suf-fer in silence. If you are struggling withalcohol, drugs, gambling, depression,anxiety, or any other mental illness, theLHL Committee can help. In mostcases, the LHL Committee can put youin touch with another member of the pro-fession who has struggled with the sameor similar issues that you are facing. Ifyou are currently suffering in silence Ihope you take one thing away from thisarticle – you are not alone and help isavailable. There are people in the profes-sion who have been through what you

are going through and are willing to helpguide you to a path that leads to hope andfreedom, if you are willing to let them.1

Note: Rosemarie Bruno is an attorneyand licensed social worker whose officeis located at 4250 Veterans MemorialHwy, Ste. 165E, Holbrook, NY 11741.Ms. Bruno focuses her legal practice onmediation in divorce and family matters.Ms. Bruno also practices clinical socialwork at Family Service League’s mentalhealth clinic in Mattituck, and she has aprivate counseling and coaching prac-tice that focuses on helping people man-age conflict and navigate life transitionsmore effectively. Ms. Bruno is co-chair ofthe SCBA LHL Committee and a mem-ber of the NYSBA Lawyer AssistanceCommittee. She can be reached at:[email protected].

1 The LHL Committee Helpline Number is(631) 697-2499. The committee holds a 12-step support group meeting every Wednesday at6pm at 119 Kings Highway, Hauppauge. Thecommittee also holds a stress and depressionsupport group meeting the first Wednesday ofevery month at 5 pm at 119 Kings Highway,Hauppauge.


Provide support. Business develop-ment skills can be learned and cultivat-ed, but lawyers need training, feedbackand support in order to develop thoseskills – particularly since they are notskills that are taught in law school.Conduct regular meetings both individu-ally and in groups to provide guidanceand feedback, identify obstacles andbrainstorm ideas, monitor progress andprovide accountability.

Tie compensation to business develop-ment – and not just in the traditionalway of giving a percentage of businessto one who generates or originates thebusiness. As noted above, since generat-ing new business takes a long time and isdifficult to see or predict, rewarding thedevelopment of skills and the reachingof certain goals and benchmarks willhelp keep lawyers on track and motivat-ed to continue their business develop-ment efforts. Measurement, accountabil-ity and rewards must all be in place inorder to reinforce the message andencourage desired behaviors.

Telling lawyers that business develop-ment is part of their job but compensatingthem only on billable hours sends a con-flicting message. What gets measuredgets done; if your firm values businessdevelopment activities and relationshipbuilding, measure it and compensate it.

Walk your talk. Show your commitmentto business development in all things thefirm does. Paying lip service to business

development efforts in an offhand way,commenting on business developmentinfrequently or only as an aside, remindinglawyers that they are “expected” to devel-op business, but failing to follow throughwill negate your message. Show yourcommitment – if you tell associates andstaff that they are expected to participate inspecific activities or behaviors, make surepartners are doing it too. Hold partners,managers and supervisors accountable, notonly for their own business developmentefforts, but also for cultivating businessdevelopment skills and relationship behav-iors and guiding the business developmentefforts of those whom they supervise.

Stop tolerating hoarding behavior.Don’t allow originating partners to hoardwork or keep their clients behind an ironcurtain, protected from others in the firm.This behavior does not foster relationshipbuilding. In addition to potentially hurt-ing the clients’ interests by not allowingclients access to all of those in the firmworking on a client’s matter, the firm maybe hurting itself by failing to create deeprelationships within the firm with partic-ular clients. Instead, let lawyers shadowthe rainmakers to see how they work andhow they build relationships with clientsand referral sources. Require partners toallow others to accompany them to clientmeetings and business generation activi-ties, and require them to share theirefforts and results with others.

Seek client feedback, share it with theteam and act on it. Retaining great

clients is just as important as developingnew client relationships and generatingnew business. Studies have shown thatwhile lawyers think they are deliveringexcellent service, clients don’t alwaysagree – and they won’t necessarily speakup unless they are asked. Just becauseclients aren’t leaving your firm does notmean that they are loyal to the firm orthat they would recommend you to oth-ers or send you additional business.

Any great business development strat-egy should include obtaining regularclient feedback to ensure that you aremeeting clients’ needs and to identifypotential new areas of businesses. Butsimply obtaining that feedback is notenough. It needs to be shared with theteam. Sharing the outcome with thosewho were involved with the matter orworking with that client signals that theircontribution is important and that they arean integral part of the firm’s success. Andyou can’t effectively walk your talk if youdon’t act on client feedback. Get youremployees and attorneys involved duringthis process as well. Let them help brain-storm ideas for improvement, identifynew services that can be provided and putclient suggestions into place. Rewardlawyers and staff who are activelyinvolved in client retention just as youwould reward those who actively seeknew business.

Communicate the firm’s marketingand business development goals andobjectives, and regularly report to thefirm about the progress being made

toward those goals and objectives. Giverecognition to all of those who have con-tributed to the effort. Celebrate successand discuss how improvements orchanges can be made in the areas inwhich the firm has fallen short. Makesure everyone knows the firm’s businessdevelopment plan and their role withinthat plan.

A firm that develops a culture of busi-ness development won’t have to rely ona few “rainmakers” to feed the entirefirm. Instead, each member of the firm,from the receptionist to the equity part-ners, can contribute their unique skillsand insights to constantly improve rela-tionships with existing clients and culti-vate new business. When marketing andbusiness development are an integralpart of the firm’s day-to-day activities,the firm is potentially insulated from theneed to downsize in the future. The firmwill also be more likely to retain talent-ed lawyers and staff by providing themthe guidance and support they need todevelop their skills and build strongclient relationships.

Note: Allison C. Shields, Esq. is theExecutive Director of the Suffolk Academyof Law and the President of Legal EaseConsulting, Inc., which provides productiv-ity, practice management, marketing, busi-ness development and social media train-ing, coaching and consulting services forlawyers and law firms nationwide. A ver-sion of this article originally appeared onthe website, Slaw.ca.

Creating a Business Development Culture in Your Firm (Continued from page 16)

Plan Description “clearly functioned as theplan document required by ERISA”.Examining the SPD, the court found that itunambiguously conferred upon the plan allof the rights of recovery that the planasserted in the action.

The court then addressed the appropri-ateness of reimbursement in the face ofarguments by the defendant that the“common fund rule” and the “makewhole doctrine” both precluded recoveryin this case. The “common fund rule”allows for reimbursement to be propor-tionally offset by the costs and expensesincurred by the recovering party in secur-ing the corpus out of which reimburse-ment is made, including attorney’s fees,on the theory that but for the efforts ofthe recovering party there would be nofunds from which reimbursement could

be made, hence no benefit to the party tobe reimbursed. The “make whole” doc-trine is a vestige of equity that sought toavoid double recoveries by allowingequitable liens to vest only against somuch of a recovery as exceeded therecovering party’s actual damages.Citing Supreme Court precedent, thecourt made quick work of both argu-ments: neither of these defenses cansupersede the clear terms of a plan thatare to the contrary. The plan set out the“expressed commitments” of the parties— one to pay medical bills and the otherto reimburse on the clear terms and con-ditions stated — and “when partiesdemand what they bargained for in avalid agreement” one of the parties can-not later ignore the plain language of theagreement by applying equitable defens-

es (citing US Airways, Inc. v. McCutchen,569 US ___, 133 S.Ct. 1537, 185 L. ED2d 654 (2013)). (Interestingly, the courtobserved that since it was not being calledupon to address how the plan’s provisionswould be applied if the debt to the planexceeded the amount of the settlementthen it would not. It noted, however, itsconcern over just how such a ruling,depending on how it comes down, mightact to discourage injured parties frompursing compensation claims. I wouldadd the obvious corollary concern: how itwould discourage settlements and compelparties to proceed to verdict?)

The court then addressed the issue ofwhether an equitable lien may vestwhen there no longer is any identifiablecorpus of funds. Out of the $500,000settlement some sums were deductedfor attorney’s fees, costs, medicalexpenses and a satisfaction of a varietyof other liens, and the net was distrib-uted to Mr. Montanile. As of the date ofthe filing of the instant litigation thefunds were “dissipated.” This gave riseto the argument, based on general prin-ciples of equity, that if there were no“separately identifiable” funds therecould be no equitable lien.

The court found that although there isno controlling Eleventh Circuit prece-dent squarely on point, the “overwhelm-ing majority” of circuits addressing theissue interpreted Sereboff to hold that abeneficiary’s dissipation of assets isimmaterial when a fiduciary asserts anequitable lien by agreement. It cited tothe 2013 Second Circuit case of Thurberv. Aetna Life Insurance Company, 712 F.3d 654 for the following:

In the context of an equitable lien byagreement, rather than an equitable liensought as a matter of restitution, all thatmatters is that the beneficiary did, atsome point, have possession and controlof the specific portion of the particularfunds sought by the insurer. (Citationomitted.)

The provisions of the Summary PlanDescription documents put the defendanton clear notice that any third party recov-ery affected by any means first belongedto the plan. This pre-existing agreementgave rise to the equitable lien immediate-ly upon the settlement, and the settlementproceeds constituted the “separately iden-tifiable fund” to which the plan’s lienattached. To hold otherwise not onlywould ignore the very rationale ofSereboff, but also would encourage delib-erate dissipation in order to defeat anERISA plan’s clear right of recovery inany similar situation.

So, summary judgment was granted tothe plaintiff health plan and denied toMr. Montanile.

The court may have engaged in hyper-bole in finding that the “overwhelming”majority of circuits (including ourSecond Circuit) hold accordingly; thefigure was five to two. Upon the appealof Montanile to the Eleventh Circuit thescore became six to two (affirmed, 593Fed. Appx. 903, 2014 US App. LEXIS22438 (11-24-14)). It seems that in the

time between the grant of judgment andthe decision on appeal the EleventhCircuit had decided the same issue in anunrelated case,1 and simply applied itsnewly minted precedent here.

So why is this coming up on the radarscreen now? The US Supreme Courtgranted certiorari to resolve the splitamong the circuits on March 30, 2015.Argument is scheduled for October.

Just as an aside ... in its discussionsthe trial court mentioned the “outra-geous” conduct of the parties and coun-sel that “recently” (i.e. earlier in 2014)was sanctioned by the Seventh Circuitin Central States Etc. Health andWelfare Fund v. Lewis, 745 F. 3d 2832014 US App LEXIS 4660. At thebeginning of the proceeding the plansought a preliminary injunction pro-hibiting any disposal of settlement pro-ceeds pending a resolution on the mer-its. The court granted the order, direct-ing the amount of the plan’s claim to bepaid into the escrow account of the set-tling party’s attorney. There was nocompliance with the order (the reasonisn’t made clear). Upon the subsequentcontempt application the defendantsstated merely that the money was gone.Upon the appeal of the trial court’sfinding of contempt, the SeventhCircuit held that a mere assertion ofinability to pay does not preclude afinding of contempt, and it sustainedthe trial court’s contempt order. It alsofound the appeal to be frivolous andordered a hearing as to why the appel-lants should not be sanctioned for filinga frivolous appeal.

Leaving aside the issue of willful orcontumacious conduct on the part of thesettling party or counsel in violating acourt order, just what is the liability ofcounsel if he or she distributes settlementproceeds with knowledge that a healthplan is asserting an equitable lien byagreement? Will counsel be answerableunder some sort of negligence theory?Must the health plan first pursue the set-tling party before seeking liability againstthe attorney? Will the health plan be ableto state a claim if the US Supreme Courtholds that this equitable remedy is notavailable if, at the time the action is filed,the money has been dissipated? Willsuch a ruling then relegate a health plan toa breach of contract action? If so, how iscounsel exposed if there is no contractualprivity; perhaps on some kind of “tortiousinterference” theory?

Stay tuned.

Note: James Fouassier, Esq. is theAssociate Administrator of Managed Carefor Stony Brook University Hospital andCo-Chair of the Association’s Health andHospital Law Committee. His opinions andcomments are his own and may not reflectthose of Stony Brook University Hospital,the State University of New York or the Stateof New York. He can be reached at,[email protected]

1 AirTran Airways v. Elem, 767 F. 3d 1192(2014)

The Latest on Equitable Liens: What if the Money is Gone? (Continued from page 11)


experiencing unusual distress, bewilling to discuss that delicate topicwith the other lawyer or with a mem-ber of the SCBA’s Lawyer’s HelpingLawyers committee.

Most lawyers in Suffolk County fallinto the “other” category — not ajudge; not a prestigious (large firm)lawyer; not a service (public interest)lawyer — which Krieger and Sheldon’swork show to be the group experienc-ing the lowest degree of well-being, sowe need to make small steps to improvelawyer well-being to begin the self-feeding cycle of well-being promotinggreater professionalism and ethicalbehavior which, in turn, promotesgreater lawyer well-being.

We have the Lawyers HelpingLawyers Committee in place and can and

should use it and these more pedestriansteps to help lawyers achieve greater sat-isfaction.

Note: Harry Tilis is the Dean of theSuffolk Academy of Law, the co-chairof the Lawyers Helping LawyersCommittee and a frequent contributorto the Suffolk Lawyer. The opinionsexpressed in this article belong to himand do not necessarily reflect the opin-ion of any of the organizations withwhich he is affiliated.

1 Lawrence S. Kreiger and Kennon M. Sheldon,Ph.D, What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine ProfessionalSuccess, 83 Geo Wash L Rev 554 (2015).2 Id. at 576-7.3 Id. at 579.4 Id. at e.g. 579, 583.

Fostering Lawyer Well-being (Continued from page 9)

dire situation, but also to recognize thewisdom in reaching out to the help thatis available.

The profession is in crisis. Part ofthe solution is fairly simple. Legal pro-fessionals must view their mental well-being as vital to their competence astheir legal knowledge. Though not apanacea, general information such aswhat is provided by the eLAP websitecan help break down the barriers andreduce the stigma and shame that isfueled by lack of knowledge. TheeLAP staff is dedicated to providinginformation that can educate andempower, and provides a portal fordirect contact with our personal, confi-dential assistance.

Please visit www.nylap.org. Do itright now because: one, things may beworse than you realize and two, help iswithin easy reach.

Don’t save us for an emergencywhen we can possibly prevent one.

Note: Patricia Spataro is Director ofthe New York State Bar Association’sconfidential Lawyer AssistanceProgram (LAP). The purpose of theLAP is to provide educational outreachand confidential assistance to attor-neys, judges, law school students whoare affected by addiction or mentalhealth concerns. Ms. Spataro is alicensed Mental Health Counselor anda certified Employee AssistanceProfessional with more than 20 yearsexperience in the mental health field.As the LAP Director, Patricia worksclosely with the State Bar’s lawyerAssistance Committee and the numer-ous local bars’ Lawyers Helpinglawyers Committees statewide. Inaddition, she collaborates with LAPDirectors throughout New York State todevelop and deliver outreach efforts,educational programs, and compre-hensive assistance services to the legalcommunity.

Help is Closer Than You Think (Continued from page 10)


SUFFOLK ACADEMY OF LAW

The Suffolk Academy of Law, the educational armof the Suffolk County Bar Association, provides acomprehensive curriculum of continuing legaleducation courses. Programs listed in this issueare some of those that will be presented duringthe summer and early fall, 2015.

RREEAALL TTIIMMEE WWEEBBCCAASSTTSS:: MMaannyy pprrooggrraammss aarreeaavvaaiillaabbllee aass bbootthh iinn--ppeerrssoonn sseemmiinnaarrss aanndd aass rreeaall--ttiimmee wweebbccaassttss.. TToo ddeetteerrmmiinnee iiff aa pprrooggrraamm wwiillll bbeewweebbccaasstt,, pplleeaassee cchheecckk tthhee ccaalleennddaarr oonn tthhee SSCCBBAAwweebbssiittee (www.scba.org)..

RREECCOORRDDIINNGGSS:: MMoosstt pprrooggrraammss aarree rreeccoorrddeedd aannddaarree aavvaaiillaabbllee,, aafftteerr tthhee ffaacctt,, aass oonn--lliinnee vviiddeeoorreeppllaayyss aanndd aass DDVVDD oorr aauuddiioo CCDD rreeccoorrddiinnggss..

AACCCCRREEDDIITTAATTIIOONN FFOORR MMCCLLEE:: The SuffolkAcademy of Law has been certified by the NewYork State Continuing Legal Education Board asan accredited provider of continuing legal educa-tion in the State of New York. Thus, Academycourses are presumptively approved as meeting

the OCA’s MCLE requirements.

NNOOTTEESS::PPrrooggrraamm LLooccaattiioonnss:: Most, but not all, programsare held at the SCBA Center; be sure to checklistings for locations and times. TTuuiittiioonn && RReeggiissttrraattiioonn:: Tuition prices listed in theregistration form are for ddiissccoouunntteedd pprree--rreeggiissttrraa--ttiioonn.. AAtt--ddoooorr rreeggiissttrraattiioonnss eennttaaiill hhiigghheerr ffeeeess.. Youmay pre-register for classes by returning the reg-istration coupon with your payment.RReeffuunnddss:: Refund requests must be received 48hours in advance.NNoonn SSCCBBAA MMeemmbbeerr AAttttoorrnneeyyss:: Tuition prices arediscounted for SCBA members. If you attend acourse at non-member rates and join the SuffolkCounty Bar Association within 30 days, you may

apply the tuition differential you paid to yourSCBA membership dues. AAmmeerriiccaannss wwiitthh DDiissaabbiilliittiieess AAcctt:: If you plan toattend a program and need assistance related toa disability provided for under the ADA, please letus know. DDiissccllaaiimmeerr:: Speakers and topics are subject tochange without notice. The Suffolk Academy ofLaw is not liable for errors or omissions in thispublicity information. TTaaxx--DDeedduuccttiibbllee SSuuppppoorrtt ffoorr CCLLEE:: Tuition does notfully support the Academy’s educational program.As a 501(c)(3) organization, the Academy canaccept your tax deductible donation. Please takea moment, when registering, to add a contributionto your tuition payment. FFiinnaanncciiaall AAiidd:: For information on needs-basedscholarships, payment plans, or volunteer servicein lieu of tuition, call the Academy at 631-233-5588. IINNQQUUIIRRIIEESS:: 631-234-5588.

EEvveenniinngg PPrrooggrraammHENRY MILLER – THETRIAL: SUMMATIONSSSeepptteemmbbeerr 3300,, 22001155,, 66::3300--88::3300 pp..mm..

This “can’t miss” program features noted attorney,author and speaker, Henry Miller, discussing tipsand tactics for effective summations.

FFaaccuullttyy:: Henry Miller, Esq., Clark, Gagliardi &Miller, P.C.

TTiimmee:: 6:30 – 8:30p.m. (Registration from 6:00p.m.)

LLooccaattiioonn:: Suffolk County Bar Association, 560 Wheeler Road, Hauppauge, NY

MMCCLLEE:: 22 HHoouurrss (Skills) [Transitional or Non-Transitional]; $75

EEvveenniinngg PPrrooggrraamm RESIDENTIAL REAL

ESTATE PART 1OOccttoobbeerr 55,, 22001155,, 66::0000 --99::0000 pp..mm..

This seminar is part of our two sessionResidential Real Estate series, covering allaspects of residential real estate from inception ofa file in the office to post closing issues. The pro-gram will be a “how to” for beginners and includetips for the advanced practitioner. Attend just onesession or both.

FFaaccuullttyy:: Joseph O’Connor, Esq., Peter C. Walsh,Esq., Lita Smith Mines, Esq., GerardMcCreight, Esq., Peter Tamsen, Esq.

TTiimmee:: 6:00 p.m. – 9:00 p.m. (Registrationfrom 5:30 p.m.)

LLooccaattiioonn:: Suffolk County Bar Association, 560 Wheeler Road, Hauppauge, NY

MMCCLLEE:: 33 HHoouurrss (2 Skills; 1 Professional

Practice) [Transitional or Non-Transitional]; $90

EEvveenniinngg PPrrooggrraamm CIVIL PRACTICE-CPLR

UPDATE WITH PROFESSOR PATRICK

CONNORSOOccttoobbeerr 1133,, 22001155,, 66::0000 --99::0000 pp..mm..

Professor Patrick Connors returns with his annualupdate which will include everything from plead-ing requirements to depositions to obtaining dis-covery outside of the State and more. Learn allthe latest!

FFaaccuullttyy:: Professor Patrick Connors, Albany LawSchool, visiting Professor, Touro Law


LLooccaattiioonn:: Suffolk County Bar Association, 560Wheeler Road, Hauppauge, NY

MMCCLLEE:: 33 HHoouurrss (Professional Practice)[Transitional or Non-Transitional]; $150

EEvveenniinngg PPrrooggrraamm RESIDENTIAL REAL

ESTATE PART 2OOccttoobbeerr 1199,, 22001155,, 66::0000 --99::0000 pp..mm..

This seminar is part of our two sessionResidential Real Estate series, covering allaspects of residential real estate from inception ofa file in the office to post closing issues. The pro-gram will be a “how to” for beginners and includetips for the advanced practitioner. Attend just onesession or both. Session two features a discus-sion of the new TRID rules.

FFaaccuullttyy:: Peter Tamsen, Esq., Mitchell Borkowsky,Esq., Joel Agruso, Esq., Vincent Danzi,Esq., Audrey Bloom, Esq.



MMCCLLEE:: 33 HHoouurrss (1 Skills; 1 ProfessionalPractice; 1 Ethics) [Transitional or Non-Transitional]; $90

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

N.B. - As per NYS CLE Board regulation, you must attend aCLE program or a specific section of a longer program in itsentirety to receive credit.

FALL 2015 CLE

SEMINARS & CONFERENCES

EEvveenniinngg PPrrooggrraamm aanndd RReecceeppttiioonn

AN EVENING WITHCOURT OF

APPEALS JUDGEJENNY RIVERA

OOccttoobbeerr 2266,, 22001155,, 66::0000 --99::0000 pp..mm..

Judge Jenny Rivera of the Court of Appealsvisits the Suffolk County Bar. Join us for areception and dinner followed by a CLEpresentation in which J. Rivera will discussthe transition from legal advocate and edu-cator to the bench. The evening is FREE forSCBA members, however, there is a fee ifyou wish to receive CLE credits.FFaaccuullttyy:: Hon. Jenny Rivera, NYS Court ofAppealsTTiimmee:: 5:30 p.m. (reception); 7:15 p.m.

CLE presentation PPrree--rreeggiissttrraattiioonniiss rreeqquuiirreedd.

LLooccaattiioonn:: Suffolk County Bar Association,560 Wheeler Road, Hauppauge, NYMMCCLLEE:: 11 HHoouurr (Professional Practice)[Transitional or Non-Transitional]; $35


EEvveenniinngg PPrrooggrraamm-- EEaasstt EEnnddVTL UPDATE – EAST END

NNoovveemmbbeerr 44,, 22001155,, 66::0000 --99::0000 pp..mm..David Mansfield provides his yearly update on Vehicleand Traffic Law specifically for an East End audience.FFaaccuullttyy:: David Mansfield, Esq.TTiimmee:: 5:30 p.m. – 8:30 p.m. (Registration from

5:30 p.m.)LLooccaattiioonn:: TBDMMCCLLEE:: 22..55 HHoouurrss (Professional Practice)

[Transitional or Non-Transitional]; $75

FFuullll DDaayy PPrrooggrraammHOT BUTTON ISSUES IN

MATRIMONIAL LAWNNoovveemmbbeerr 66,, 22001155,, 99::0000aa..mm.. -- 44::0000 pp..mm..This full day program will discuss the hottestissues and newest cases in matrimonial law.FFaaccuullttyy:: TBDTTiimmee:: 9:00 a.m. – 4:00 p.m. (Registration from

8:30 a.m.)LLooccaattiioonn:: Suffolk County Bar Association, 560

Wheeler Road, Hauppauge, NYMMCCLLEE:: 66 HHoouurrss (TBD) [Transitional or Non-

Transitional]; $159

EEvveenniinngg PPrrooggrraamm VTL UPDATE

NNoovveemmbbeerr 1122,, 22001155,, 66::0000 --88::0000 pp..mm..David Mansfield provides his yearly update on theVehicle and Traffic Law.FFaaccuullttyy:: David Mansfield, Esq.TTiimmee:: 6:00 p.m. – 8:00 p.m. (Registration from

5:30 p.m.)LLooccaattiioonn:: Suffolk County Bar Association, 560

Wheeler Road, Hauppauge, NYMMCCLLEE:: 22..55 HHoouurrss (Professional Practice)


EEvveenniinngg PPrrooggrraammPATENTS, TRADEMARKSAND COPYRIGHTS FORTHE NON-IP LAWYERNNoovveemmbbeerr 1177,, 22001155,, 66 pp..mm..--99 pp..mm..

This program is for all non-intellectual propertylawyers who might encounter intellectual propertyissues in their everyday practice. The program willcover contractual issues, intellectual propertyissues that arise in sale of a business, copyrightissues that arise in non-IP cases, patentability ofcomputer programs and business methods, aswell as trademark issues. FFaaccuullttyy:: Frederick J. Dorchak, Esq., John F.Vodopia, Esq., Robert G. Gingher, Esq., William F.Gormley, esq., Irwin S. Izen, Esq., Martin I.Saperstein, Esq., Thomas A. O’Rourke, Esq.TTiimmee:: 6:00 p.m. – 9:00 p.m. (Registration from

5:30 p.m.)LLooccaattiioonn:: Suffolk County Bar Association, 560

Wheeler Road, Hauppauge, NYMMCCLLEE:: 33 HHoouurrss (3.0 Professional Practice)


EEvveenniinngg PPrrooggrraamm AUTO LIABILITY

UPDATENNoovveemmbbeerr 1199,, 22001155,, 66::0000 --99::0000 pp..mm..

Our annual Auto Liability Update provides insightsinto new cases.

FFaaccuullttyy:: Professor Michael Hutter, Albany LawSchool, Jonathan Dachs, Esq.

TTiimmee:: 6:00 p.m. – 9:00 p.m. (Registration from5:30 p.m.)


MMCCLLEE:: 33 HHoouurrss (Professional Practice)[Transitional or Non-Transitional]; $125

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


_______________By Allison Shields

New rules will go into effect withregard to the continuing legal educa-tion requirements for newly admittedattorneys in the State of New York inJanuary, 2016.

Previously, attorneys admitted tothe Bar of the State of New York fortwo years or less were required tocomplete their continuing legal edu-cation credits in traditional live class-room settings or through attendanceat fully interactive videoconferences.But beginning on January 1, 2016,those rules have been changed to

allow newly admitted attorneys toobtain some of their continuing legaleducation credits through non-tradi-tional formats, including on-demandaudio or video, live broadcast, orwebconference.

The new rules state in part as fol-lows:

• Law Practice Manage-ment and Areas of ProfessionalPractice credit may be complet-ed in any approved format,including nonparticipatory for-mats such as on-demand audioor video, or live broadcast.

• Ethics and Professionalismcredit may be completed in thetraditional live classroom set-ting; by fully interactive video-conference; or by simultaneoustransmission with synchronousinteractivity, such as webconfer-ence, or teleconference, wherequestions are allowed during theprogram.

• There is no change in therequirement for Skills credit,which must be completed in thetraditional live classroom settingor by fully interactive videocon-ference.

Newly admitted attorneys eligible fora prorated CLE requirement mustcomplete the credit in a format per-missible for the category of credit,except that no more than 14 creditsmay be earned through nonparticipa-tory formats, such as on-demandaudio or video, or live broadcast.

These new rules do not affect thenumber or categories of creditrequired, and all credits must contin-ue to be fulfilled by attending accred-ited transitional courses. Thus, newlyadmitted attorneys are still required tocomplete a minimum of 32 credithours of accredited transitional edu-cation within the first two years of thedate of admission to the Bar, sixteencredit hours in each of those years.

The required categories of creditare as follows:

• Three hours of ethics and pro-fessionalism

• Six hours of skills• Seven hours of law practice

management and areas of pro-fessional practice

The Suffolk Academy of Law isalready hard at work in preparing itsannual “Bridge the Gap” training pro-gram — a two day workshop specifi-cally geared toward ensuring thatnewly admitted attorneys obtain the

number and categories of creditsrequired to meet their New York Statecontinuing legal education obliga-tions.

As in past years, the Academy isdeveloping its two-day program-ming to accommodate newly admit-ted attorneys, and this year willincorporate webconference andrecorded elements for those cate-gories of credit permitted by theNew York State CLE Board to betaken in these non-traditional for-mats so that attorneys who do notwish to attend the entire conferencelive may do so by taking advantageof these options. Please watch theAcademy pages for more informa-tion about the Bridge the Gap pro-gram, scheduled to be held this yearon March 18 and 19, 2016.

Newly admitted lawyers shouldalso be aware that the Academy ofLaw offers many pre-recorded pro-grams available on DVD, audio CD,or on-demand online (suitable for lawpractice management or professionalpractice credits), and conducts livewebcasts (suitable for ethics credits)of many of its regular programs,which will now be available fornewly admitted attorneys, beginningin 2016.

No changes have been made tothe requirements for veteran attor-neys, but all attorneys should beaware of the courses available inalternative formats from the SuffolkAcademy of Law. If you have anyquestions about these or othercourse options available from theSuffolk Academy of Law, please donot hesitate to contact the Academyat (631) 234-5588.

ACADEMY OF LAW NEWS

ACADEMY

Calendar of Meetings & Seminars

Note: Programs, meetings, and events at the Suffolk County Bar Center (560Wheeler Road, Hauppauge) unless otherwise indicated. Dates, times, and topicsmay be changed because of conditions beyond our control CLE programs involvetuition fees; see the CLE Centerfold for course descriptions and registrationdetails. For information, call 631-234-5588.

OCTOBER

5 Monday Residential Real Estate, Part 1, 6:00-9:00 p.m., 3 cred-its, $90. Part 1 of a two part series covering all aspectsof residential real estate. A light supper will be served.

13 Tuesday CPLR Update with Prof. Pat Connors, 6:00-9:00p.m., 3 credits, $155. All the latest on civil practice - alight supper will be served

19 Monday Residential Real Estate, Part 2, 6:00-9:00 p.m., 3credits, $90. Part 2 of a two part series covering allaspects of residential real estate, with special emphasison the new TRID rules. A light supper will be served.

26 Monday An Evening with Court of Appeals Judge JennyRivera, 5:30 p.m. (reception); 7:15 p.m. (CLE presen-tation); 1 credit, $35. Evening includes Free winereception and seated dinner for SCBA members.

NOVEMBER

4 Wednesday VTL Update on the East End, 5:30-8:30 p.m.,2.5 credits, $75. A light supper will be served

6 Friday Hot Button Issues in Matrimonial Law – Full DayProgram, 9:00 a.m.-4:00 p.m., 6 credits, $159.Continental breakfast and a light lunch will be served

12 Thursday VTL Update (Hauppauge), 6:00-8:00 p.m., 2.5 cred-its, $75. A light supper will be served

17 Tuesday Patents, Trademarks and Copyrights for the Non-IP Lawyer, 6:00-9:00 p.m., 3 credits, $90. A light sup-per will be served

19 Thursday Auto Liability Update, 6:00-9:00 p.m., 3 credits,$125. A light supper will be served

Please note: Materials for all Academy programs are providedonline and are available for download in PDF format prior to or atthe time of the program. Printed materials are available for an addi-tional charge.

Changes to CLE Rules for Newly Admitted Attorneys

ACADEMY OF LAW OFFICERS

OfficersSima Asad Ali Brette A. Haefeli Associate DeanRobert M. Harper Jennifer A. Mendelsohn TreasurerMarianne S. Rantala Hon. John J. Leo

Gerard J. McCreight Peter D. Tamsen Charles Wallshein Michael G. Glass Patrick McCormick Associate DeanHon. James F. Quinn Debra L. Rubin Curriculum Chair

Arthur E. ShulmanLeonard Badia Vincent Danzi Paul Devlin Jeffrey Horn Cory Morris SecretaryJanna Visconti

DEANHarry Tilis

EXECUTIVE DIRECTORAllison C. Shields

THE SUFFOLK LAWYER – OCTOBER 2015THE SUFFOLK LAWYER – OCTOBER 2015 31

of-court statement is testimonial innature, it may not be introduced againstthe accused at trial unless the witnesswho made the statement is unavailableand the accused has had a prior opportu-nity to confront that witness.”2 InBullcoming, a driving while intoxicated(“DWI”) prosecution, the court evaluatedwhether a blood analysis was testimonialeven though it was made in the regularcourse of DWI prosecutions. Althoughthis occurs quite regularly in criminal tri-als, the Supreme Court held that “[b]usi-ness and public records are generallyadmissible absent confrontation, notbecause they qualify under an exceptionto the hearsay rules, but because — hav-ing been created for the administration ofan entity’s affairs and not for the purposeof establishing or proving some fact attrial — they are not testimonial.”3

Even a forensic laboratory report stat-ing that a suspect substance was cocaineranked as testimonial for purposes of theSixth Amendment’s ConfrontationClause.4 In Melendez-Diaz, the prosecutorattempted to put a surrogate witness totestify to the validity of a drug analysisfinding the substance tested as positive forcocaine. The analyst who tested the sub-stance was unavailable at trial and thedefense attorney objected to the report’sintroduction. Specifically, the defenseattorney alleged that a surrogate witnessto testify as to the procedure of the analy-sis would violate the defendant’s right toconfront the witnesses against him. TheSupreme Court agreed, holding thatbecause the report had been createdspecifically to serve as evidence in a crim-inal preceding the prosecution may notintroduce such a report without offering alive witness competent to testify to thetruth of the statements made in the report.

In the Crawford v. Washington era,“witnesses” under the ConfrontationClause are those “who bear testimony,”and “testimony” is defined as “a solemndeclaration or affirmation made for thepurpose of establishing or proving somefact.” Now the Sixth Amendment, there-

fore, prohibits the introduction of testi-monial statements by a non-testifyingwitness, unless the witness is “unavail-able to testify, and the defendant had hada prior opportunity for cross-examina-tion.” If the primary purpose of thosestatements were to address an ongoingemergency, however, the statementswould not be testimonial and thus couldbe introduced. The inquiry in this casebecomes: were these statements made toaddress an ongoing emergency?

Statements are “testimonial when thecircumstances objectively indicate thatthere is no such ongoing emergency, andthat the primary purpose of the interroga-tion is to establish or prove past eventspotentially relevant to later criminal pros-ecution.”5 Therefore, the Supreme Courtdeemed statements created to be used bylaw enforcement or for the purpose of cre-ating a record, such as ongoing domesticviolence, testimonial. In Ohio v. Clark,the declarant was a child, incompetent totestify under Ohio law, and the questionerwas not a law enforcement officer.

In the concurrence in Ohio v. Clark,Justice Scalia, joined by Justice Ginsburg,stated “[a]t common law, young childrenwere generally considered incompetent totake oaths, and were therefore unavailableas witnesses unless the court determinedthe individual child to be competent.”Although true at common law, there is ageneral consensus among the social sci-ences that infant children, three years old,may not be able to recollect memory orappreciate the circumstances of what hap-pened the way that adults do. Childrenmay need to be questioned in a certainmanner or by a forensic expert. Thechild’s statements here were instrumentalin the arrest and prosecution of Clark —what sort of constitutional protection didClark have and was Clark able to test theveracity of these statements elicited by thechild’s teachers?

Defense attorneys should bear in mindthat a due process challenge might bebrought as a result of the inability of thedefendant to confront the child’s testimony

against him or her. The mental state of thechild may be an issue so should practition-ers question whether there is any test ofreliability available in this scenario? Aquestion as to whether the defendant isafforded expert testify as to the circum-stances of the unchallenged testimony maybe available. Although such testimony didnot violate the Confrontation Clause, theinherent fairness of the criminal trial maybe challenged. Defense counsel shouldnote this exception and prepare to chal-lenge the inherent fairness of the admissionof such untested and, as the Ohio Supreme

Court stated, incompetent testimony.

Note: Cory Morris is a civil rightsattorney and adjunct professor at AdelphiUniversity. He can be reached athttp://www.coryhmorris.com

1 Michigan v. Bryant, 562 U.S. 344, 369 (2011).2 Bullcoming v New Mexico, 131 S.Ct. 2705,2713 (2011).3 Id.4 Melendez-Diaz v. Massachusetts, 557 U.S.305 (2009).5 Ohio v. Clark, 135 S.CT. ___ (June 18, 2015),Pp. 5 (citing Davis v. Washington, 547 U.S. 813(2006)).

Confrontation Clause Concerns after Clark (Continued from page 12)

and certain Clean Air Permits),6 andwithin 15 days for all other permits.7 IfDEC fails to meet these deadlines, theapplication is deemed to be complete.8

While DEC may still require addition-al information from the applicant,9

SAPA §401(2) will preclude the per-mit for which renewal is sought fromexpiring prior to DEC’s determina-tion.10

The moral is, call your clients, findout if they have DEC permits, andmake sure they file timely and suffi-cient applications for renewal.

NOTE: Frederick Eisenbud is OfCounsel to Campolo, Middleton &McCormick, LLP in Ronkonkoma, andheads the Firm’s Environmental PracticeGroup.

1 SAPA §102(4): “‘License’ includes the wholeor part of any agency permit, certificate,approval, registration charter, or similar form ofpermission required by law.”2 See, e.g., Riverkeeper Inc. v. Crotty, 28 A.D.3d957 (3rd Dep’t 2006) (Timely application bypower plant for SPDES permit renewal; DECdid not make a determination. Permit good for

five years. Riverkeeper challenged the DEC’sfailure to make a determination ten years afterthe original application expired. Court ruledSAPA §401(2) authorized the power plant tocontinue operating lawfully, and Riverkeeper’sclaim that the DEC’s failure to make a determi-nation five years after the original renewalwould have expired provided a basis to compelDEC to act was dismissed on statute of limita-tions grounds).3 One exception to this is SAPA§401(3), whichauthorizes the agency to immediately suspend apermit if it finds that “public health, safety, orwelfare imperatively requires emergencyaction” and the agency provides a prompt hear-ing to determine the propriety of the suspension.4 Although beyond the scope of this article,treating a Notice of Violation as commencementof an enforcement action for purposes of sus-pending permit review should be considered anunconstitutional deprivation of the permittee’sright to Due Process.5 6 NYCRR §622.11(a)(1).6 6 NYCRR §621.2(g).7 6 NYCRR §621.6(c)(1 and 2).8 6 NYCRR §621.6(h).9 6 NYCRR §621.6(h) goes on to state:“Nothing in this Section …precludes the depart-ment from requesting additional information inaccordance with section 621.14(b) of this Part.” 10 See, e.g., Jamaica Recycling Inc. v. New YorkState Department of Environmental Conservation,308 A.D.2d 538 (2d Dep’t 2003).

SAPA and Timely and Sufficient DECPermit Renewal Applications (Continued from page 21)

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12 the suffolk lawyer – october 2015 …

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