albany county bar association · john’s office. the remaining “rowley survivors” still gather...

Who Were your Mentors?

I moved to Albany in 1992 from Wash-ington DC at the tender age of 29. I knew a lot about CERCLA but absolutely noth-ing about the CPLR. I was hired as an associate at Rowley Forrest O’Donnell & Hite at 90 State Street. My first week on the job, senior partner Richard R. Row-ley handed me a copy of Siegal’s NY Practice and gruffly commanded me to read it cover to cover. Terrified, I tried to do just that (but only made it to about page 10). John Beaumont ran a week-ly football pool during the NFL season where the “loser” owed bottles of beer to the winner – payable each Friday in John’s office. The remaining “Rowley Survivors” still gather for lunch around the holidays.

In 1997, I escaped down Pearl Street and up Columbia Street to Bouck Hol-loway Kiernan & Casey, a venerable

insurance defense firm founded in the 1940s by former Judge Bouck who was still coming into the office for his jelly do-nut every Friday in his 90s while I was at the firm. The firm was run by the “Big Three” of John Casey, Tom O’Connor, and Mark Sonders, who were a tremen-dous source of information and guid-ance. During my interview, I lied that I had considerable trial experience, when I really didn’t. I was handed a tattered and neglected file and told to pick a jury and try a subrogation case in Saratoga Supreme. I was somewhat re-assured when Bill Foster told me: “Don’t worry – no one expects you to win.” I didn’t.

The Bouck firm was “acquired” by Hiscock Barclay (n/k/a Barclay Damon) in 2004. We went from being a small boutique firm to being part of one of the largest firms in upstate New York with every practice group imaginable. For-tunately, the Big Three were still around for guidance and advice as were my new partners.

My first and greatest mentors were, of course, my parents. Raised on a farm in Redford, NY, my father served in the Navy in WWII, obtained his account-ing degree at Rider College on the GI Bill, and eventually founded the largest accounting firm in Plattsburgh. While we lost Dad in 2001, he continues to be a motivating presence to me every day. My mother’s father was a correc-tions officer and Mom had to move and change schools multiple times between Auburn and Dannemora. Fortunately, she is still with us at age 87 and keeps a full schedule, including volunteering at CVPH hospital and instructing a se-nior aerobics class. Both of my parents taught me the importance of not only working hard to achieve your goals, but

of relaxing and enjoying life while it goes whizzing by.

Your bar association is active in pro-viding many mentoring opportunities. Recently, I and five other ACBA mem-bers participated in a panel discussion at Albany Law School entitled “Transi-tion to Practice” where we discussed our career paths and answered ques-tions posed by law school students and recent graduates. On November 8, several ACBA members and I spoke at Albany High School about careers in the law, in the hopes that one or more of these inner-city youths might consid-er becoming an attorney.1 Each spring, your bar organizes a mock trial compe-tition which provides high school stu-dents an opportunity to prepare for and provide oral argument in a court setting. This year, we initiated a mock oral argu-

PRESIDENT’S MESSAGE

NEWSLETTER

ALBANY COUNTY BAR ASSOCIATION

WHAT’S INSIDE:

Pro Bono Corner ......................... .. 3Labor and Employment Practice ... 4What You Get for $2.8 Billion ........ 5Fruitcakes, Dummies, Whiners, and Weasels ................................ 7 Immigration Law Update .............. 8Practicing Law & Wellness ............ 10Attorney Marketing & Business ... . 12Matrimonial Law Update ............... 14Surrogate’s Court Proceedings and Updates.................................. 16Bench & Bar ................................ . 18Classified .... ................................. 19Calendar of Events ......................... 22CLE Calendar ............................... . 24

December 2016 | A Publication of the Albany County Bar Association

Continued on page 2

DANIEL COFFEY, ESQ.Bowitch & Coffey, LLC

dcoffey@ albanycountybar.com

2 | Albany County Bar Association Newsletter | December 2016

EXECUTIVE DIRECTOR’S MESSAGE

For Thanksgiving this year, I was with 43 of my sister’s closest friends in Oregon. In the midst of gravy and cranberry sauce chaos, there was no discussion of football. In fact, the tele-vision was not even on. Instead, con-versations held an intentional focus on board games, the Project Runway series, careers and family.

On the plane ride home, I thought about the interesting mix of tradition-al and nontraditional elements that were melded together by the different generations at the holiday event. It was an elegant example in connectiv-ity, listening and respect. When done

The purpose of the Albany County Bar Association is to promote professional collegiality among the bench and bar; facilitate public service and access to justice for all; and offer programs, benefits and services to enhance the skills of its members.

MISSION STATEMENT

creatively, the demographics disap-peared and the results were effective. All 43 of us were well overfed and hap-py to be with one another.

At the ACBA, we are listening intent-ly to our membership and using gath-ered feedback to drive strategic plan-ning. It has been interesting, creative and overall enlightening interacting with association members. We can all be proud of our commitment to contin-ue to be one of the largest and most active bar association in upstate New York.

I encourage you to not only renew

MARQUITA JO RHODESExecutive Director [email protected]

your 2017 ACBA membership, but call or email me with your ideas.

Please keep it coming!Marquita

ment program where veteran attorneys and retired judges give a “test run” of attorneys’ arguments and provide feed-back.

Doctors go through internships, resi-dencies and board certifications before they become accredited physicians. Attorneys can hang a shingle the year after law school and “practice” law re-gardless of whether or not they are tru-ly capable of doing so. Our profession does not have a formal mentorship or training program. It is incumbent, there-fore, that more “seasoned” attorneys impart whatever pearls of wisdom we have acquired over the years to the next generation of lawyers. Contrary to the image of cut-throat attorneys who stab each other in back, in my 26 years of practicing law I have always been amazed at how giving attorneys are of their time and how willing others are to take my phone calls and answer my questions about an area of law in which I do not have expertise.

Who were your mentors? Have you been a mentor to a younger attorney lately? ●

1 The funniest question posed to me was “Have you ever unburied a dead body?”

PRESIDENT’S MESSAGE (continued)Continued from page 1 Appellate Moot Court Program

Do you have an appellate oral argument or any court argument presently scheduled?

Whether you’ve never argued an appellate case before, you feel rusty, or you have a difficult issue, this is a process for you.

Visit albanycountybar.com for an argument request form or to volunteer to sit on a panel.

Albany County Bar Association Newsletter | December 2016 | 3

PRO BONO CORNER

December. In my mind, I picture a month filled with flannel pajamas, hot chocolate with marshmallows and toasty fireplaces. Then reality whacks me over the head. The pro bono world is not filled with visions of sugar plums. Instead, our world is filled with tenants worried about keeping a roof over their heads while also worrying about giving their families the appearance of a holiday season. It is filled with family members in custody and support disputes made all the more pressing by the upcoming holidays. It is filled with Albany County’s indigent pop-ulation trying to manage a season of gift-giving and spending, in which they can only minimally participate.

But, we try to make it better. We try to infuse what we do with holiday cheer. We try to reassure our clients and we try to ensure that their problems will be alle-viated, at least briefly, so they can enjoy the holiday season. How? If we spend early December negotiating settlements and payment plans for tenants facing eviction, they can stay in their apart-ments for the holidays and beyond. If we spend our time working with clients to encourage them to plan ahead re-garding custody arrangements over the holidays, we can make sure children’s holidays are not marred by disputes.

In order to do this, to allow our cli-

ents a brief respite from concerns about money, housing and family law disputes, we can use your help. If you attended a landlord-tenant training, come help at attorney for the day. Or come volunteer for one shift at the Help Center.

Missed the holiday party? No problem – we are still accepting donations of un-wrapped toys and gifts for the children of St. Catherine’s. Anything you can do or donate helps out.

Happy holidays to you and yours. May your holidays be filled with flan-nel pajamas, hot chocolate and toasty marshmallows. ●

Eileen Bonesteel Pro Bono [email protected]

Lianne Pinchuk Pro Bono [email protected]

Jessica Backer Brand Pro Bono [email protected]

Hon. Daniel P. McCoy kicks off the Juvenile Delinquency Conference.

Eileen Bonesteel and Lianne Pinchuk celebrate at The Legal Project’s Award Ceremony and Luncheon.


LABOR AND EMPLOYMENT PRACTICE

Glen P. Doherty, Esq.McNamee, Lochner, Titus & Williams, P.C.

In November, the Third Department reminded the New York State Depart-ment of Labor and its Unemployment Insurance Appeal Board (“Board”) that not every worker is an employee, and that it is still possible for individuals to function as independent contractors. The Court also criticized the Board for making misleading assertions in its initial decision – and continuing to ad-vance same on appeal.

In Eiber Translations, Inc. v. Commis-sioner of Labor (521187), Eiber Transla-tions, Inc. supplies language interpreta-tion and translation services to its clients performed by interpreters and transla-tors (hereinafter collectively referred to as “interpreters”) selected from its com-puter database. Following an audit, the Department of Labor (“DOL”) issued a determination finding that Eiber owed additional unemployment insurance contributions due to remuneration it had paid to the interpreters from 2007 to 2009. Eiber objected upon the ground that the interpreters were independent contractors and, after a hearing, an Ad-ministrative Law Judge sustained the objection. The Unemployment Insur-ance Appeal Board (“Board”) found that the interpreters were employees and re-versed. Eiber appealed.

In reversing the Board, the Appellate Division initially noted that whether an employer-employee relationship exists is a question of fact for the Board, and its determination will be upheld if sup-ported by substantial evidence in the record. An employer-employee relation-ship ordinarily exists where the putative employer exercises control over the results produced or the means used to achieve the results, with control over the latter of more importance. That being

said, “incidental control over the results produced without further indicia of con-trol over the means employed to achieve the results will not constitute substantial evidence of an employer-employee re-lationship.”

Here, Eiber would place any individu-al on its list of interpreters, so long as his or her resumé indicated that he or she had experience in the industry. Eiber did not enter into a written contract with the interpreters, did not supervise them or evaluate their work, and did not forbid them from working for competitors. The interpreters were not required to attend any training or meetings, nor were they provided with any materials or equip-ment. They were not given fringe bene-fits or reimbursed for expenses. Eiber’s involvement was limited to forwarding the resumés of qualified interpreters to clients for selection purposes or, if time did not permit, a client review, to direct-ly gauge an interpreter’s availability. The selected interpreter was notified of the time and place that the client expect-ed him or her to work, and the selected interpreter was free to decline the as-signment. The interpreter was also free to perform an accepted assignment in whatever manner he or she saw fit, in-cluding by walking out if he or she had issues with a client, retaining assistants or substitutes to do the work, or leaving it unfinished in the event of a scheduling conflict. The interpreter would then send an invoice to Eiber on his or her own form that charged an hourly rate of his or her own choosing, and Eiber would bill the client for the invoice amount plus a fee to account for Eiber’s involvement in arranging the services.

Given the foregoing record evidence, the Court held that that the interpreters

were autonomous, and that Eiber act-ed as little more than an intermediary between them and the clients. “Thus, while the Board cited factors such as Eiber’s practice of paying ‘bust fees’ to interpreters if their assignments were canceled and its fielding of client complaints, such evidence of ‘inciden-tal control over the results produced without further indicia over the means employed to achieve the results’” was insufficient to establish an employ-er-employee relationship.

In so ruling, the Court openly criti-cized the Board for making misleading assertions, both in its initial decision and on appeal.

The Board misleadingly asserted in its decision, and continues to suggest upon appeal, that Eiber was free to de-termine that the hourly rates charged by the interpreters were too high. The record instead reveals that Eiber would try to avoid billing disputes by referring interpreters who charged hourly rates that were acceptable to the specific client. Eiber would only take action if it were unable to charge the client the full amount sought by the interpreter, and the nature of that action was not speci-fied in the record. The hearing testimo-ny indicated, in fact, that Eiber would “accept whatever fee [the interpreters] submit[ted].” ●


What You Get for $2.8 Billion

“It’s clearly a budget. It’s got a lot of numbers in it.” George W. Bush

In the opening lines of his 2015 State of the Judiciary address Chief Judge Jonathan Lippman said, “Access to justice is the defining principle of our court system. It manifests itself in so many diverse ways in over four mil-lion civil, criminal, and family proceed-ings in court houses across New York State.” We now have Chief Administra-tive Judge Lawrence Marks’ first Annual Report of the Chief Administrator which, although undated, covers the court sys-tem for 2015 and hit the OCA website on October 17, 2016.

Know what we learned? There were NOT over four million proceedings in New York in 2015. There weren’t in 2013 or 2014 either. In fact there has been a steady significant decrease in filings since 2010, the first full year Jonathan Lippman was Chief Judge of the Court of Appeals. Want the numbers, the real ones? In 2010 there were 4,532,513 fil-ings. In 2015 there were 3,510,348 fil-ings, a 22½% decrease. It looks like

this since Judge Lippman became Chief Administrative Judge:

By the way, if you exclude parking tickets you can lop another million off that number. So, with ever declining cases you’d expect to see less money needed by the court system. Guess again. The first year Jonathan Lippman was Chief Administrator the Judicial

Budget was $952.2 million. For 2015-2016 it was $2.8 Billion. Nice. Next year it will be much higher thanks to the sala-ry increases of our judges, among other reasons.

So, why is this? New York is far and away the most expensive court system per capita in the world. We spend over $14 per citizen to run the court system. Florida has about as many citizens as New York State. Its judicial budget for 2016-2017 is a tad shy of $522 million. Texas, the Lone Star State, has 27.27 million people, over 7 ½ million more than New York. It’s Judicial Budget for 2016-2017? $753 million.

How did this come about, other than Judge Lippman saying we had far more filings than he knew there were, an ex-aggeration by about half a million. Re-member last year when the Court Sys-tem had a bogus report that said that New York judges were underpaid when “adjusted for inflation” as though living in Malone, New York was as expensive as, say, Monte Carlo? They successful-Continued on page 6

Michael P. Friedman, Esq. 77770 Concha CourtLa Quinta, CA 92253(518)225-7636 [email protected]


ly raised the salaries of Supreme Court Justices to $193,000 which made them number three on the hit parade of all states after Illinois and Hawaii. Congrat-ulations. And remember in 2015 when they added 25 new Family Court Judges that were absolutely required because of the onslaught of filings at a cost of a million dollars per judge per year? That passed with flying colors. In case you are wondering, here are the numbers of Family Court filings per year:

Yep. We reached an all-time low for 2015 of 640,658 and remember each kid gets his own docket number for each petition filed. If you want to break that down it gets even worse. Albany re-ceived a fourth Family Court Judge in 2015. From 2012 to 2015 it experienced an 11% decline in filings. Schenecta-dy received a third Family Court Judge in 2015. From 2012 to 2015 it had a 13.6% decline in filings. Just to put this in perspective, there were 5,012 filings per Schenectady County Family Court Judge in 2012. In 2015 there were 2,886 per judge, a decline in 42% per judge. In Albany the decline was 33%. That’s what you get for your one million dollars per year.

So, does anyone care about this? Nope. The Judicial Budget is virtually unchallenged every year, and now the improper, unjustified Civil Legal Ser-vices awards total $100 million per year.

In the grand scheme of things, that’s just a drop in the bucket, as are the chauf-feurs and cars for the top judges, the coloring books, something called Legal Hand, Pro Bono Scholars, Poverty Jus-tice Solutions, the Partnership for Youth Justice, child care centers, Volunteer Advocate Training, Family Treatment Courts, the Collaborative Family Law Center, Agricultural Mediation Con-tracts, Substance Abuse Counseling, a Public Affairs Office, a Judicial Institute

and whole slew of other million dollar programs that have nothing to do with the operation of the courts. No one in the Legislature or the Governor’s Office really cares. So, just thought you’d like to know where your tax money is being

spent, at least by the court system.

Vox Clamantis in deserto, y’all.

Post Script: The OCA car picture be-low was taken by my friend and ACBA member Paul Goldman. He was in NYC to give a lecture during the annual meet-ing of the NYS Bar Association. After he took the picture, the driver of the car followed him into the coffee shop and demanded to know why he was pho-

tographing the car. Paul said, “Look buddy I’ve paid for a lot more of that car than you have. How many Index Num-bers and RJI’s have YOU bought in the past few years?” That ended the inter-rogation. ●

WHAT YOUR GET FOR $2.8 BILLION (continued)Continued from page 5

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Former ACBA President and NYSBA’s Immediate Past President David Miranda speaks at the Past President’s Dinner.


FRUITCAKES, DUMMIES, WHINERS, AND WEASELS:To Plead or Not to Plead—That is Always the Question

Shakespeare’s pitch for not commit-ting suicide made Hamlet face reality by reminding him that we “…rather bear those ills we have than fly to others that we know not of.” “Plea bargaining”, the phenomenon that dictates the life and death of almost every criminal case isn’t ever mentioned in the CPL. The choice of pleading guilty or going to trial is the tragic conundrum of every criminal de-fendant. In a system for dispensing jus-tice designed to culminate in a jury trial, why does everybody ignore the reality that only a handful of cases are resolved by trials? We pretend that arraignments really inform the defendant of the charge against him or her. Like obedient sheep we hop to a “conference” a week after the arraignment where the prosecutor presents his or her unilateral take on the case to a judge who knows next to noth-ing about the evidence or the accused. In less time than Hamlet takes to con-sider whether “to be or not to be,” the die is cast.

If every case were tried before a jury, perhaps the tedious hurdle jumping required of every defendant and his or her attorney might make sense, but not when plea bargaining is the mech-anism of resolving virtually all criminal charges. Article 220 of the CPL, enti-tled “The Plea”, says absolutely nothing about the ingredients or standards of arriving at a fair plea.

Time clearly is the means of exchange in the criminal justice system. The Leg-islature puts numbers next to crimes with absolutely no criteria to indicate why they chose those numbers or where within the range of penalties a particu-lar sentence should be imposed. If you

can’t do the time, don’t do the crime. But how much time is the right amount of time? And where does the inquiry be-gin? Do prosecutors throw a bunch of numbers in a hat, put on a blindfold, and pick one out? No. Does an A.D.A. go around the office and ask all the other A.D.A.s what they think? No. The numer-ical expression of the time demanded by the prosecution is more impressionistic than anything Monet, Manet, or Renoir every painted.

Defendants are penalized for mak-ing the justice system expend energy and time to convict them. Prosecutors preach that how much time they have or plan to devote to a case is a factor in calculating the lengths of plea offers. Frequently prosecutors or even judges will significantly increase the offer on the table because your client deigned to make the prosecution respond to your motions, or even worse, conduct a suppression hearing. Yet if defendants are to assess the strength of the cases against them, shouldn’t they be afforded the decency of examining the prosecu-tion’s evidence against them? Insisting on doing so may cost your client a more severe sentence.

Technique for negotiation takes prac-tice. If you live in Mexico or lots of oth-er places where price tags don’t mean much, you learn to “hondel” from child-hood. The checkout clerk at Walmart would laugh or call security if you of-fered half of what came up on the regis-ter. Going to garage sales, not reading a book on the subject, is the best way of mastering negotiating skills. If you and your client don’t like the first number tossed out, be willing to walk away. Let

everyone know that you are willing and prepared to try the case.

Defendants go to trial for one of two reasons: 1.) because they think they can win, or 2.) because they have no incentive not to. Faced with a maximum sentence of 25 years, who will plead guilty to 24? Yet faced with 25 years, an offer of 1 year will give even the most “innocent” defendant pause. Consider-ing a plea bargain from the defendant’s perspective, what do we know? Does every client want to get the best deal possible? Obviously. When a person gets arrested and is locked up in jail, his or her world gets much smaller. Their fo-cus is on getting the best deal.

So, what’s a “good” deal? Who can say? Many factors go into this analysis. A pitfall that frequently arises is when a client asks your opinion or what the odds of success are. We can give ad-vice about the risks/benefits of continu-ing to trial or taking an offer, but it’s a huge mistake to tell a client what you would do if you were in their position. You’re not the one who has to live with the consequences, and cannot possibly understand their perception of a plea or prison sentence’s intangible impact on their kids, families, or careers.

Defendants grouse about plea bar-gain offers constantly, both to you and amongst themselves. How often have you heard defendants tell you that the first offer should never be taken, in the hope that later offers will be more palat-able? That’s how drug dealers and oth-ers negotiate in the inner city, so why would their approach to dealing with a criminal case be any different? You must learn to recognize and accommodate these attitudes in your discussions with the client about the feasibility of taking a plea and assessing a plea offer. Clients who have experienced the process on a number of occasions may have a bet-ter idea of what lies ahead, but because of their substantial criminal history and

Michael A. Feit, Esq.Law Offices of Michael A. Feit, [email protected]

Rebekah B. Sokol, Esq.Law Office of Michael A. Feit, [email protected]

Continued on page 9


I saw an interesting article the other day in the Connecticut Law Tribune. The premise of the article related to institu-tions of higher education using “creative solutions” to deal with the lack of avail-able H-1B nonimmigrant worker visas for their graduates who wish to remain in the United States as entrepreneurs. A little background (or refresher for some of you) is probably in order.

The H-1B nonimmigrant visa (or sta-tus) may be granted to foreign nationals who will perform services in a “special-ty occupation.” A specialty occupation requires the theoretical and practical application of a body of highly special-ized knowledge and the attainment of a bachelor’s or higher degree, or its equiv-alent, as a minimum requirement for entry into the occupation in the United States. Examples of speciality occupa-tions include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, educa-tion, business specialties, accounting, law, theology, and the arts.

The U.S. government operates on a fiscal year basis that begins each year on October 1 and runs through the fol-lowing September 30. For those em-ployers who wish to hire foreign nation-als as H-1B workers, unless the position is “exempt”, a key concept here, there is an annual cap of 65,000 nonimmi-grant visas that are available in each fiscal year (and an additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education). In recent years, the H-1B cap has been reached with-in days of April 1 (which is the first day that cap-subject employers can file a petition with USCIS for the non-exempt H-1B visa numbers). Because of the in-credible popularity of the H-1B worker program, which has resulted in the H-1B cap being reached within days of April 1 each and every year in recent memory, not every cap-subject employer is able participate in the H-1B program in a giv-en fiscal year.

Consequently, employers, and yes, now even institutions of higher educa-tion, are trying to think outside the box so they can retain some of the best and brightest minds from having to leave the United States after they’re educat-ed in the United States. In doing so, these institutions of higher education are partnering with states and cities across the country to create programs that take advantage of an exemption to the H-1B cap for foreign nationals that are employed (or have received an offer of employment) by or from an institution of higher education or a related or affil-iated nonprofit entity, or a nonprofit re-search organization or a governmental research organization.

Being employed by an institution of higher education is a wonderful ex-emption, and I am able to use it in my practice for clients every day. But in ad-dition to that, entities affiliated or related to institutions of higher education and nonprofit and governmental research organizations (that is, not the actual institutions of higher education them-selves) are also eligible to petition for eligible foreign nationals. According to the Adjudicator’s Field Manual (which is what USCIS examiners use as a refer-ence when they are adjudicating H-1B petitions):

Congress deemed certain institutions worthy of an H-1B cap exemption be-cause of the direct benefits they provide to the United States. Congressional in-tent was to exempt from the H-1B cap certain alien workers who could pro-vide direct contributions to the United States through their work on behalf of institutions of higher education and re-lated nonprofit entities, or nonprofit re-search organizations, or governmental research organizations. In effect, this statutory measure ensures that qualify-ing institutions have access to a contin-uous supply of H-1B workers without nu-merical limitation. ... Congress chose to exempt from the numerical limitations… aliens who are employed ‘at’ a qualify-ing institution, which is a broader cate-gory than aliens employed ‘by’ a quali-

fying institution. This broader category may allow certain aliens who are not employed directly by a qualifying insti-tution to be treated as cap exempt when needed to further the essential purpos-es of the qualifying institution.”

AFM ch. 31.3(g) (13), H-1B Classifi-cation and Documentary Requirements.

So, one scenario that employers can consider to use this exemption is by having a “third-party petitioner” file the H-1B petition to employ a foreign nation-al who will perform all or a portion of his or her job duties “at” a qualifying institu-tion of higher education (e.g., basically, a private company sponsors a foreign national, and some of the job duties are performed “at” the institution of higher education). There are other possibilities as well. The third-party petitioner must establish that there is a logical nexus between the work predominately per-formed by the foreign national and the normal mission of the qualifying spon-soring entity. Specifically, the third-par-ty petitioner must demonstrate how the foreign national’s duties are directly and predominately related to, and in furtherance of, the normal, primary or essential purpose, mission, objectives or function of the qualifying institution, namely, higher education or nonprofit or governmental research. There are plen-ty of ways to accomplish this.

Also important for this creative law-yering example, and highlighted by the article in the Connecticut Law Tribune, is that once the foreign national is em-ployed by the cap-exempt employer, a cap-subject employer can then con-currently file their own H-1B petition on behalf of the same foreign national to

IMMIGRATION LAW UPDATE

David W. Meyers, Esq.Meyers and Meyers, [email protected]

Continued on page 9


statutory constraints, options that might have been available the first time around, aren’t now. And clients will rarely show appreciation or gratitude when a trip “up north” is in the offering. Like legal schol-ars they will invoke the principle of stare decisis—“hey, a guy on my tier got pro-bation or half the time I’m looking at!”

Before you begin to discuss a plea offer with your client, you need to thor-oughly understand the best and worst case scenario sentence-wise and ev-erything in between. Is your client a predicate or potential persistent offend-er? Is he or she eligible for shock or some other type of program? Are there any lesser included offenses to pitch to the prosecutor? Where multiple charges are involved, you need to know if sen-tences might be consecutive. Do you really understand post release super-vision? Even if you don’t have absolute command of all sentencing provisions, make sure to iron out all of the wrinkles in the areas affecting your client. You also need to evaluate the case given what limited discovery you may have. For instance, bringing flaws in the case to the prosecutor’s attention may be enough to convince him or her to come up with a better offer.

Because whatever plea might be tak-en will have an impact on sentencing, you need to know the consequences of a plea to a particular crime, both for the instant case and to see if any collater-al issues might be impacted. Lawyers convicted of felonies lose their licenses, but doctors don’t necessarily. Even for misdemeanors, a criminal conviction will derail your client’s next deer hunting trip. Will your client’s driving privilege be altered by a plea to a DWI, DUI, or DWAI? Will this affect their public hous-ing? And what if you client is not a citi-zen and the plea might suddenly place them on ICE’s radar?

The open-ended nature of plea bar-gaining puts defendants in a position of uncertainty and dismay, but the lack of standards can actually work for the de-fendant under a variety of circumstanc-es. On occasion a client may approach

you with insider information from the jail or the street, thinking that in the right hands it might help his or her situation. Since many defendants find themselves in the slammer because someone threw them under the bus, doesn’t the pros-pect of flipping or cooperating with the police in some way have some appeal? Here, in many situations, the answer is very complicated. Probably the best way of broaching the subject with your client is to take the position that you personally oppose snitching on a fellow miscreant, but that you understand as a professional that it’s sometimes a factor you have to discuss. Never make it ap-pear that you are doing a favor for the DA or the cops, but that your purpose is helping your client find his or her way out of a jam. Defendants, either out of fear of reprisals or code, will generally not be willing to go this route. Coughing up a gun or two will probably be an easier sell, though not always the most alluring tidbit for the cops to receive. Remem-ber: never attempt or allow your client to negotiate cooperation with the police directly, as the cops can say whatever they want and not deliver. Make your deals with the A.D.A. and, when neces-sary, get the judge on board.

Most defendants will tell you that they don’t want to “blow trial” (be found guilty). They have some concept of the notion that the farther you take the sys-tem, the greater the penalty if convicted. Fear of a draconian sentence if found guilty at trial versus plea bargaining that forces them to roll the dice with years of their lives is frequently the dynamic. Many times we hear from defendants with criminal records that on earlier oc-casions of “catching a charge”, they’ve “copped out”, but in this case, they won’t accept an offer because they’re “innocent” or they feel that the wrong they’ve suffered at the hands of the po-lice somehow makes them “innocent.” The prospect of probation or a program versus prison will make many defen-dants want to go that route.

Sometimes defendants will consult friends and family, and allow their own opinion about an offer to be swayed by

others. It may help for you (with your client’s permission) to speak with the relative, and explain why the client isn’t eligible for a particular program or why a certain sentence isn’t applicable here. On other occasions, you may have to use the friend or relative to help you per-suade your client that a particular offer is in his or her best interest. Preparing clients for the plea allocution in front of a judge often requires you to make sure that they are making a decision be-cause they think it is in their best inter-est, and not because, say, their parents are forcing them.

To plead or not to plead is the sin-gle-most compelling decision in any criminal case. A major component of the plea bargaining process is selling the deal. You try to sell to the judge, the prosecutor, and, most significantly, your client. The choice is his or hers, but don’t leave him or her hanging out to dry. If the chance of success at trial is pretty good, sell that. If there’s abso-lutely no way to achieve dismissal after hearing or acquittal at trial, sell that. Don’t ever forget that even though you may feel you and your client are in the same boat, remember—you get to get out before it goes up the river. ●

FRUITCAKES, DUMMIES, WHINERS, AND WEASELS (continued)Continued from page 7

allow them to also work for the cap-sub-ject employer part-time. Because these foreign nationals are already working at least part-time for a qualified institution, this concurrent petition is also exempt from the H-1B cap (despite being filed by an employer that is otherwise sub-ject to the cap).

Until there is an expansion of the H-1B program specifically, and reform to our immigration system in general, immi-gration lawyers are being forced to be more creative to accomplish the goals of their clients. This is just one example of what’s possible. ●

IMMIGRATION LAW UPDATE (continued)

David W. Meyers, Esq.Meyers and Meyers, [email protected]

Continued from page 8


LAW AND WELLNESS

MAKING DECEMBER HEALTHIER

I am not sure it matters what reli-gious or ethnic group you are affiliated with. December is cookie month. They show up everywhere- in volume -in all flavors: chocolate, vanilla, raspberry, peanut butter, walnut, ginger and, and, and……… And, many people end up gaining weight over the holiday season. Cookies don’t help. If you are making your own dessert here are a few alterna-tives. Trust me, people love the alterna-tives and appreciate your effort. None of these recipes are that hard. Here goes:

POACHED PEARS

These have the flavor of the season without being a cookie!

4 firm (but not hard) pears (Note –if they are too soft, they will turn into mush. If they are too hard, they won’t be soft enough to eat. Use local pears!)

2 cinnamon sticks1 one-inch piece of fresh ginger4 whole cloves4 cups water¾ cup sugarVanilla greek yogurt

Peel pears, slice in half and remove cores. Combine water, sugar, cinnamon stick, ginger and cloves in a saucepan. Add pears and bring to a boil. Reduce heat and simmer 10-15 min, until pears begin to soften. Let cool in cooking liq-uid. (The pears will cook more as they cool.)

When liquid is cool, remove pears and place in individual bowls. Serve topped with greek yogurt.

BAKED APPLES

6 large apples (Cortland work well for this)

3 Tbsp. brown sugar

1 tsp. cinnamon½ cup water4 Tbsp. raisins or dried apricots cut in

small pieces4 Tbsp. chopped walnuts or pecans

Preheat oven to 350 degrees. Mix brown sugar, cinnamon, raisins and nuts. Core apples and peel a slice of the skin off the top and bottom of each ap-ple. Stuff apples with raisin nut mixture. Pour water into the bottom of a baking dish. Add apples. Bake until apples are soft – 45 minutes or so. Serve warm. Yum. ●

Ann Lapinski, Esq.NYS Dept. of Environmental [email protected]

Youth Law Day at Albany High School was a Success!The ACBA Committee on Attorneys

in Public Service (CAPS), working in collaboration with the Capital District Black and Hispanic Bar Association, organized a Youth Law Day (YLD) held at Albany High School on November 8, 2016, Election Day. CAPS initiated the YLD program at Albany High School in 2011. The YLD provides a wonderful opportunity for high school students to meet public service attorneys, private practitioners, and judges, and to learn about the pathways to a career in the law. The following attorneys and judges participated in this year’s YLD: Alina Bu-cella, Daniel Coffey, Paul Collins, Hon. Helena Heath, Linda Johnson, Caitlin Monjeau, Jennifer Richardson, Jorge Rodriguez, Hon. Christina Ryba, and William Toomey. Many of the students were excited to learn about the path-ways to becoming a lawyer and how the law is a way to help others and to remedy the wrongs people may experi-ence in society. The presenters planted

Judge Christina Ryba poses with students at Albany Law Day.

President Dan Coffey engages with students at Albany High School during Law Day, answering all their serious and amusing questions.

Continued on page 11



1 tsp. cinnamon½ cup water4 Tbsp. raisins or dried apricots cut in

small pieces4 Tbsp. chopped walnuts or pecans

Preheat oven to 350 degrees. Mix brown sugar, cinnamon, raisins and nuts. Core apples and peel a slice of the skin off the top and bottom of each ap-ple. Stuff apples with raisin nut mixture. Pour water into the bottom of a baking dish. Add apples. Bake until apples are soft – 45 minutes or so. Serve warm. Yum. ●

Caitlin Monjeau makes points about her law experiences in Albany High School’s moot courtroom.

Paul Collins shares his passion for the law with students at Albany High School.

President Dan Coffey engages with students at Albany High School during Law Day, answering all their serious and amusing questions.

Alina Buccella and Hon. Helena Heath shared stories of their mentors who shaped the direction of their careers and the profession.

William Toomey reflects back on his tenure as an attorney in hopes of inspiring the next generation of law experts.

seeds of encouragement for students to actively set goals for themselves such as pursing college, emphasized the val-ue of seeking out and having support from mentors along their academic and career journey, and provided advice on how students can best accomplish their goals and make a positive difference in their community.

We look forward to holding a YLD annually, and welcome ACBA member involvement to expand the number of participating schools and presenters for this program. The YLD is a truly wonder-ful day of community service! ●

YOUTH LAW DAY AT ALBANY HIGH SCHOOL WAS A SUCCESS! (con-tinued)



ATTORNEY MARKETING AND BUSINESS

How to Get Your Best Cases to TrialThere are 12 simple steps to moving a

new lawsuit from discovery to the desired goal: A TRIAL DATE. The steps are not self-executing—you need to continually train your staff and reinforce and improve the processes. The best way to start is a “Litigation Checklist” that is signed, re-viewed and electronically filed in the case management system, as each step of the process is completed.

#1: “Pre-Litigation Checklist”

Begin by creating a checklist for every new personal injury case. Your “Pre-Liti-gation” checklist should include:

All medical records (pre and post inci-dent),

Employment records for the last 10 years,

Tax returns and W-2 statements for the last 5 years,

Criminal background search,Social medical search (i.e., Facebook,

Instagram) for damaging content,Photographs and video of injured per-

son or decedent, andNames and addresses of lay witnesses

re: liability and damages.

Your secretary should check every box on the Pre-Litigation Checklist, sign it and submit it for your review and signature be-fore every new lawsuit is filed.

When This Should be Done: Your sec-retary should prepare the “Pre-Litigation” checklist as soon as you accept the case for litigation.

Purpose of Doing This: Once you re-ceive the defendants’ answers, you will al-ready have all of the records you need to serve a complete set of medical and em-ployment records upon defense counsel.

#2: Serve Medical Records and Re-lease Authorizations

You should serve a complete set of medical records and release authoriza-tion as soon as they defendants’ lawyers serve an answer.

When This Should Be Done: As soon as you receive the initial set of the defen-dants’ discovery demands, you should serve a complete set of release authoriza-tions and medical records upon defense counsel.

Purpose of Doing This: The service of medical records and release authori-zations upon defense counsel will get the case moving while you prepare the plain-tiff’s discovery responses, bill of particu-lars and discovery demands.

#3: “Deposition” Letter

The “Deposition” letter asks defendants’ lawyers to provide alternative dates for the depositions of the parties and non-party witnesses.

When This Should Be Done: You should fax, email or mail this letter to de-fense counsel as soon as the preliminary scheduling conference has been sched-uled.

Purpose of Doing This: The biggest obstacle posed by defense counsel is scheduling the depositions. More often than not, defense counsel will have their secretary tell you that they refuse to even schedule the defendants’ depositions until after the plaintiffs’ depositions have been completed. For this reason, you should always get alternative dates for depositions from defense counsel before the preliminary scheduling conference.

#4: “Discovery” Letter

The “Discovery” letter asks defendants’ lawyers whether they claim there is any discovery that they claim is owed by the plaintiff before the preliminary scheduling conference.

When This Should Be Done: The “Dis-covery” letter should be mailed to defense counsel as soon as we are notified of the date for the preliminary court conference.

Purpose of Doing This: You need to know whether there are any outstanding discovery issues before the preliminary scheduling conference. This will allow us to be prepared address any discovery is-sues at the preliminary conference or we can hand-deliver the requested discovery responses at the preliminary scheduling conference.

#5: “Original Chart Review” Letter

The “Original Chart Review” letter asks defendants’ lawyers to provide alternative dates for the inspection and copying of the original medical records.

When This Should Be Done: In a pre-liminary scheduling order, you should in-sist upon a specific date for the hospital or physician to comply with your demand to produce the original medical records for inspection, and that the original records are to be produced at least 2 weeks be-fore any depositions are conducted.

Purpose of Doing This: The worst thing in the world is to be confronted with medical records at a deposition that you’ve never seen before. The only way to make sure this does not happen is to insist that the defense lawyer provide you with an opportunity to inspect the original medical records.

#6: “Discovery Owed” Letter

The “Discovery Owed” letter reminds defendants’ counsel that there is out-standing discovery owed to the plaintiff.

When This Should Be Done: This let-ter should be mailed to the defendants’ lawyers on the 35th day after the plaintiff’s combined discovery demands have been served upon defendants’ lawyers.

Purpose of Doing This: If we do not

John H. Fisher Esq.John H. Fisher, [email protected]

Continued on page 13


possess the defendants’ discovery re-sponses before depositions, I will not be able to prepare for the depositions.

#7: Schedule Meeting with Client to Pre-pare for EBT

You should call our client to schedule a face-to-face meeting at her home, or our office (client’s choice), in order to prepare for her deposition.

When This Should Be Done: You should call our client to schedule this meeting as soon as a date for her depo-sition has been confirmed with defen-dant’s lawyers. The meeting with our client should be held seven (7) days before her deposition.

Purpose of Doing This: I need to meet with our client at least one week before her deposition in order to give us enough time to prepare for potential “danger points”, i.e., criminal convictions, sub-stance abuse, etc.

#8: Schedule Meeting with Expert Witness

A face-to-face meeting with our med-ical expert/physician is crucial for the preparation of the deposition of the “tar-get” defendant.

When This Should Be Done: Once you have a confirmed date for the deposi-tion of the “target” defendant (typically the first named defendant in the caption), you should contact our medical expert/physi-cian to schedule a meeting for me at least seven (7) days before the deposition.

Purpose of Doing This: This meeting will help me prepare for the “target” de-fendant’s deposition, so the right ques-tions are asked.

#9: Schedule Stenographer and Vid-eographer for EBT

We always videotape the depositions of the defendants and non-party witnesses.

When This Should Be Done: Once you have a confirmed date for the defen-

dants’ depositions, you should call a ste-nographer and videographer to confirm their availability for the deposition.

Purpose of Doing This: We videotape all adverse and non-party depositions, as this shows the witnesses’ body language, facial mannerisms, pauses and changes in voice inflection which otherwise would not be captured.

#10: “Original Chart to Deposition” Letter

The “Original Chart to Deposition” letter reminds the defendants’ lawyers to bring the original medical records to the defen-dants’ depositions.

When This Should Be Done: At least one week before the defendants’ depo-sition, you should call defendants’ lawyer to confirm that she will bring the original medical records to the deposition. You should confirm by email and remind defendants’ lawyer one day before the deposition.

Purpose of Doing This: I cannot con-duct an effective deposition of the de-fendants without the original medical records—this just makes my job much easier.

#11: “Additional Discovery” Letter

The “Additional Discovery” letter asks defendants’ lawyers to advise us wheth-er there is any “additional discovery” that they need before we file the note of issue.

When This Should Be Done: This let-ter should be served within five (5) days after the plaintiff’s deposition. Following the plaintiff’s deposition, the defense law-yers should have enough information to decide whether they want to depose the non-party witnesses.

Purpose of Doing This: It is very common that the defense lawyers will ob-ject to the filing of the note of issue, and scheduling of a trial date, by claiming that they need extra time to depose non-party witnesses.

#12: “Materials to Expert” Letter

While it makes sense to orally tell an ex-pert what documents she might want to focus on, it is never appropriate to send her anything short of ALL the available documents that are relevant to her testi-mony.

The expert witness should receive: the complete underlying file, including:

All pleadings and discovery in the case; Deposition Transcripts of all persons in

the case,Medical Records,Expert responses,DME reports, andBills of Particulars.

You should keep an itemized list of what was sent to the expert, so we can make certain that any expert who may be asked to testify on any of the same or related is-sues will receive identical materials.

When This Should Be Done: The complete underlying file records should be sent to the expert witness as soon as the expert has been retained.

Purpose of Doing This: If you do not send all of the documents relevant to the expert’s testimony, the expert will be subject to a devastating cross examina-tion in which defense counsel will make it appear that the plaintiff’s attorney is us-ing the expert as a puppet to espouse the theories developed by the plaintiff’s attor-ney and then sent the material to support that theory.

The Ultimate Goal: 18 Months to Trial

Getting the case to trial is your single most important goal for every case be-cause your client will not get the result ($) she deserves until the trial. A victory for your client is getting the case to trial within 18 months from the filing of the lawsuit. ●


ATTORNEY MARKETING AND BUSINESS (continued)

How to Get Your Best Cases to TrialWhen This Should Be Done: The “Dis-

covery” letter should be mailed to defense counsel as soon as we are notified of the date for the preliminary court conference.

Purpose of Doing This: You need to know whether there are any outstanding discovery issues before the preliminary scheduling conference. This will allow us to be prepared address any discovery is-sues at the preliminary conference or we can hand-deliver the requested discovery responses at the preliminary scheduling conference.

#5: “Original Chart Review” Letter

The “Original Chart Review” letter asks defendants’ lawyers to provide alternative dates for the inspection and copying of the original medical records.

When This Should Be Done: In a pre-liminary scheduling order, you should in-sist upon a specific date for the hospital or physician to comply with your demand to produce the original medical records for inspection, and that the original records are to be produced at least 2 weeks be-fore any depositions are conducted.

Purpose of Doing This: The worst thing in the world is to be confronted with medical records at a deposition that you’ve never seen before. The only way to make sure this does not happen is to insist that the defense lawyer provide you with an opportunity to inspect the original medical records.

#6: “Discovery Owed” Letter

The “Discovery Owed” letter reminds defendants’ counsel that there is out-standing discovery owed to the plaintiff.

When This Should Be Done: This let-ter should be mailed to the defendants’ lawyers on the 35th day after the plaintiff’s combined discovery demands have been served upon defendants’ lawyers.

Purpose of Doing This: If we do not Continued on page 13


MATRIMONIAL LAW UPDATE

Bruce J. WagnerMcNamee, Lochner, Titus & Williams, [email protected]

Agreements - Pension – InterpretationIn Sanders v. Sanders, 2016 Westlaw

6270537 (3d Dept. Oct. 27, 2016), the former husband (husband) appealed from a January 2015 order which grant-ed the former wife’s (wife) motion to vacate a QDRO. On appeal, the Third Department affirmed. The parties’ Octo-ber 2006 stipulation, incorporated into a judgment of divorce, provided that the “the wife shall be entitled to her Ma-jauskas share of the husband’s pension through his union in a sum approximat-ing $450 per month,” starting November 1, 2006. The husband made those pay-ments until November 2013. The hus-band opposed the wife’s QDRO motion, arguing that the pension arose from a disability and was his separate prop-erty. The Appellate Division held that Supreme Court correctly based its deci-sion upon the parties’ clearly expressed intent, namely, that the wife would share in the husband’s disability pension.

Agreement - Prenuptial – Interpretation – Temporary Relief

In Davis v. Davis, 2016 Westlaw 6465520 (2d Dept. Nov. 2, 2016), the Second Department affirmed a $5,000 counsel fee award as a proper exer-cise of discretion and upheld temporary maintenance, noting that the prenuptial agreement “did not expressly preclude an award of pendente lite maintenance, nor did [the wife] expressly waive such an award.”

Counsel & Expert Fees - Defense of Rescission Counterclaim

In Reiner v. Reiner, 2016 Westlaw 5928750 (2d Dept. Oct. 12, 2016), the parties’ October 2004 separation agree-ment contained a “loser pays” counsel and expert fee clause in favor of the par-ty who successfully defends a rescission claim. The wife sought to set aside the agreement, and Supreme Court’s June 2014 judgment of divorce incorporated the agreement and dismissed the wife’s counterclaims. A September 2014 order awarded the husband counsel and ex-pert fees in the sum of $189,293. The Second Department affirmed, holding that the wife “failed to demonstrate that

the burden of proof should have been shifted to the plaintiff to disprove fraud or overreaching ***.” As to counsel and expert fees, given the agreement’s pro-vision therefor, the Appellate Division held that the husband was entitled to the same.

Custody - Modification – Summary Judgment Reversed

In Matter of Robert OO v. Sherrell PP, 2016 Westlaw 6106529 (3d Dept. Oct. 20, 2016), the father appealed from an October 2014 Family Court order, which granted the mother’s motion for summa-ry judgment and dismissed his modi-fication petition. On appeal, the Third Department reversed, on the law, de-nied the mother’s motion and remitted to Family Court. The parties have 4 chil-dren, born 2007, 2008 and 2009 (twins). A February 2013 consent order provided for joint legal custody, primary custody to the mother, and a schedule of time for the father. The father petitioned for mod-ification in March 2014, seeking primary physical custody, alleging improper su-pervision and excessive corporal pun-ishment. The mother moved to dismiss the petition, submitting an “unfounded” letter from the abuse and maltreatment registry and a caseworker letter stating there were no current safety concerns. The father opposed the motion. Fami-ly Court notified the parties that it was treating the mother’s motion as one for summary judgment, and gave them time to submit additional proof. The Ap-pellate Division determined that Fam-ily Court erred in concluding that the mother had met her summary judgment burden, holding that the unfounded let-ter and the caseworker letter related to inquiries distinct from custody modifica-tion. The Third Department noted that the father’s allegations included reports that the mother hits the children with her hand or a belt, and that the mother’s 12 year old daughter from another relation-ship sometimes watches the parties’ 4 children overnight while the mother is working, and, on one occasion, the 12 year old threw one of the children up in the air, causing a broken leg.

Enforcement - Stipulation – Home Equity Loan was Current

In Disanto-Grossman v. Grossman, 2016 Westlaw 5928884 (2d Dept. Oct. 12, 2016), a July 2011 temporary order required the husband to pay the mort-gage and home equity loan on the mar-ital residence. The parties’ March 2013 stipulation: transferred the marital res-idence to the wife; contained the hus-band’s representation that the mortgage and home equity loan were currently paid; and provided that the wife would assume both liabilities after April 2013. Unbeknownst to the wife, beginning in November 2012, the husband used $16,470 from the home equity loan to pay the mortgage and the same home equity loan. Supreme Court’s June 2013 order directed the husband to repay that same sum and granted the wife judgment therefor. The Second Depart-ment affirmed, noting that the husband did not deny that he withdrew the fore-going funds after the commencement of the divorce action, used the same to satisfy his obligations under the tem-porary order, and finding that “he was solely responsible for those funds.”

Family Offense - Harassment 2d – Intent Not Proved

In Matter of Etman v. Adjoor, 2016 Westlaw 6465379 (2d Dept. Nov. 2, 2016), the Second Department re-versed Family Court’s order of protec-tion and dismissed the petition, holding that the wife failed to show the requisite intent to “harass, annoy or alarm” [Penal Law §240.26(1)].

Family Offense - Willful Violation of Order of Protection

Continued on page 15Cathy Morlock from the Office of the Albany County Attorney and Molly Myers from ACBA at the Juvenile Delinquency Conference.


In Matter of Kessiah A., 2016 West-law 5935088 (1st Dept. Oct. 13, 2016), respondent appealed from a Decem-ber 2014 order which, after a hearing, found that he willfully violated a June 2014 2-year order of protection, which prohibited him from having written com-munications with a child, and committed him to jail for a 6 month term. The First Department affirmed, holding that the evidence demonstrated beyond a rea-sonable doubt that respondent violated the order by sending the child 2 letters in June 2014, which were intercepted by ACS before the child could read them. The Appellate Division rejected respondent’s claim that the order was not served upon him, finding that the June 2014 transcript shows that he con-sented to the issuance thereof with his counsel present, and that Family Court ensured that he understood the order’s terms. ●

MATRIMONIAL LAW UPDATEContinued from page 14

Bruce J. WagnerMcNamee, Lochner, Titus & Williams, [email protected]

Agreements - Pension – Interpretation

Enforcement - Stipulation – Home Equity Loan was Current

In Disanto-Grossman v. Grossman, 2016 Westlaw 5928884 (2d Dept. Oct. 12, 2016), a July 2011 temporary order required the husband to pay the mort-gage and home equity loan on the mar-ital residence. The parties’ March 2013 stipulation: transferred the marital res-idence to the wife; contained the hus-band’s representation that the mortgage and home equity loan were currently paid; and provided that the wife would assume both liabilities after April 2013. Unbeknownst to the wife, beginning in November 2012, the husband used $16,470 from the home equity loan to pay the mortgage and the same home equity loan. Supreme Court’s June 2013 order directed the husband to repay that same sum and granted the wife judgment therefor. The Second Depart-ment affirmed, noting that the husband did not deny that he withdrew the fore-going funds after the commencement of the divorce action, used the same to satisfy his obligations under the tem-porary order, and finding that “he was solely responsible for those funds.”

Family Offense - Harassment 2d – Intent Not Proved

In Matter of Etman v. Adjoor, 2016 Westlaw 6465379 (2d Dept. Nov. 2, 2016), the Second Department re-versed Family Court’s order of protec-tion and dismissed the petition, holding that the wife failed to show the requisite intent to “harass, annoy or alarm” [Penal Law §240.26(1)].

Family Offense - Willful Violation of Order of Protection

Past presidents, board members, and committee co-chairs at the Past President’s Dinner last month.

Cathy Morlock from the Office of the Albany County Attorney and Molly Myers from ACBA at the Juvenile Delinquency Conference.


SURROGATE’S COURT PROCEEDINGS AND ISSUES (continued)SURROGATE’S COURT PROCEEDINGS AND ISSUES

An Insiders’ ViewHon. Stacy L. Pettit, Surrogate Deborah S. Kearns, Esq., Chief Clerk Alima M. Atoui, Esq., Law Clerk

Albany County Surrogate’s Court

MANDATORY E-FILING HAS BEGUN IN ALBANY COUNTY SURROGATE’S COURT!

As of October 19, 2016, Albany Coun-ty Surrogate’s Court joined a number of other courts across the state in the mandatory electronic filing program. The basic information about the man-datory electronic filing program can be found in Uniform Rule for Surrogate’s Court 207.4-aa (see https://iappscon-tent.courts.state.ny.us/NYSCEF/live/legislation/Rule207.4aa.pdf), which is supplemented by the provisions of Rule 207.4-a (see https://iappscontent.courts.state.ny.us/NYSCEF/live/legisla-tion/Rule207.4a.pdf).

The Basics

E-filing is the electronic filing and service of documents between parties and Surrogate’s Courts through the New York State Courts Electronic Filing (NY-SCEF) program, a website established by the Unified Court System for this purpose (see www.nycourts.gov/efile). At this time, e-filing is only available for Surrogate’s Court proceedings involving decedents. In other words, there is no e-filing for guardianships, adoptions, and living trusts where the grantor is alive.

What does this mean for you? It means that all new, eligible proceedings must be filed electronically. (Proceedings that were pending before October 19th are strongly encouraged to be converted to e-filing.) It also means that you can now file your Surrogate’s Court papers at any time, day or night, from any location where you have access to an internet connection and the appropriate techno-logical equipment!

Getting Started

Now that you know the basics, we bet

you are eager to get started. Here is some good news: if you have renewed your attorney registration online, or par-ticipated in another court’s e-filing pro-gram, you are halfway there! The user ID for the NYSCEF system is your attorney registration number, and the password you used to set up your attorney online services account is also your NYSCEF password. If you do not have an attor-ney online services account established already, you can choose the link to cre-ate a new account from the login page.

Once your account is set up, you may enter the NYSCEF system and either commence a new proceeding or join a proceeding that has already been elec-tronically commenced. You simply up-load PDF versions of your documents to the website, indicate your payment method, and submit your filings to the court.

Limited Hard Copies Still Required

The Court requires that the original last will and testament of a decedent and a certified copy of the death certif-icate be filed. These documents should be filed within two business days of the e-filings. The Court will not be accept-ing any hard (courtesy) copies of e-filed documents. We will continue to provide parties with hard copies of certain nec-essary documents, including Letters Testamentary, Letters of Administration and Letters of Trusteeship.

Payment Options

With e-filing, parties also now have the option to pay filing fees online with a credit card. Payment can still be made in the customary ways, by mailing or bringing a check or cash to the court. Parties shall indicate on the NYSCEF system how their payment will be pro-vided to the court.

Service of Process

One of the most appealing aspects of the e-filing program is the efficiency of service that results. The general ser-vice rules of the SCPA continue to apply

in order to obtain personal jurisdiction over the parties at the commencement of a proceeding. At that time, the pe-titioner must serve respondents with a hard copy notice (Form EFM-1 [see https://iappscontent.courts.state.ny.us/NYSCEF/l ive/forms/notice.of.com-mencement.pdf]) advising the recipient that the proceeding is an e-filed matter. Subsequently, for all parties that have recorded their e-filing consents, service of documents upon them is automat-ic upon filing with NYSCEF. Parties will receive an email notifying them that a document has been filed and providing a link to the document. Accordingly, the parties participating in e-filing do not need to file affidavits of service of e-filed documents.

Who is Exempt from Mandatory E-Filing?

There are three exemptions allowed in the mandatory e-filing program:

(1) Unrepresented litigants may par-ticipate in e-filing; however, they are not required to do so. Unrepresented liti-gants must choose to “opt in” to e-filing if they want to participate and they retain the right to opt out at any time thereafter.

(2) Attorneys who certify in good faith that they (a) lack the required equip-ment to participate in e-filing; or (b) lack the requisite knowledge to participate in e-filing, as do all of their employees. Attorneys must file this certificate in ev-ery proceeding they commence should they wish to continually rely on this ex-ception.

(3) Attorneys who establish good cause for not e-filing.

In all of the above cases including exempt parties, the consenting parties must serve the exempt parties with hard copies of all e-filed documents.

The NYSCEF Resource Center

Your (and our) new best friends are Continued on page 17


located at the E-Filing Resource Cen-ter, which is open from 8:00 am to 6:00 pm on business days. You can speak with the friendly staffers by calling 646-386-3033, or sending an email to [email protected]. While your local Sur-rogate’s Court is always happy to help you, the experts at the Resource Center should be your first stop if you encounter some issues with the e-filing program.

Additional Training: If you would like general training, there are several doc-uments available on the NYSCEF site, including the User Manual for Surro-gate’s Court. In addition, the Resource Center offers live training sessions available online and at various locations throughout the state. For a list of up-coming dates, please see the NYSCEF site at https://www.eventbrite.com/e/surrogate-court-e-filing-online-training-session-via-skype-for-business-tick-ets-27941555946.

Common Procedural Issues

We would like to bring to your attention a few common procedural issues that have arisen since e-filing commenced.

Request for Surrogate’s Court Ac-tion Form: This form (SC-2 [see https://iappscontent.courts.state.ny.us/NY-SCEF/live/forms/request.for.action.pdf]), which, similar to a cover letter, lists all of the documents for filing, as well as payment and contact informa-tion, is currently required to be included with filings in Albany County Surrogate’s Court. We have found that this form is not always included or that it is upload-ed with other filings without having been filled out. With respect to this latter prob-lem, the Resource Center has indicated that parties may not be saving the form as a PDF after completing it, which is why the information is not being trans-mitted. Please note that it is only nec-essary to file this form to commence e-filing (either in an existing or in a new file) – not each time a document is filed thereafter.

Correctly Identifying Proceedings and Documents

Another frequent issue we are see-ing is the failure to properly identify the proceeding and/or document. Instead, parties are selecting “Other Petition” or

“Other Document.” Misidentifying doc-uments often results in the appropriate filing fee not being generated. Please search the drop down menu for the document title that matches your filing. If you are having trouble with this as-pect of e-filing, you should contact the Resource Center for guidance.

Find Your File

Please be careful not to create new files for cases that already exist. We have had a couple of instances where attorneys have created new files for decedents instead of finding the ex-isting e-file case. You can search for a case by either the decedent’s name or the Surrogate’s Court file number. Please confirm both the court file num-ber and the e-filing ID to ensure that you are in the correct file.

So far, e-filing has been a welcome change for both the Court and legal community. We welcome your feedback as we continue to navigate the e-filing program. ●

SURROGATE’S COURT PROCEEDINGS AND ISSUES (continued)Continued from page 16

An Insiders’ Viewin order to obtain personal jurisdiction over the parties at the commencement of a proceeding. At that time, the pe-titioner must serve respondents with a hard copy notice (Form EFM-1 [see https://iappscontent.courts.state.ny.us/NYSCEF/l ive/forms/notice.of.com-mencement.pdf]) advising the recipient that the proceeding is an e-filed matter. Subsequently, for all parties that have recorded their e-filing consents, service of documents upon them is automat-ic upon filing with NYSCEF. Parties will receive an email notifying them that a document has been filed and providing a link to the document. Accordingly, the parties participating in e-filing do not need to file affidavits of service of e-filed documents.

Who is Exempt from Mandatory E-Filing?

There are three exemptions allowed in the mandatory e-filing program:

(1) Unrepresented litigants may par-ticipate in e-filing; however, they are not required to do so. Unrepresented liti-gants must choose to “opt in” to e-filing if they want to participate and they retain the right to opt out at any time thereafter.

(2) Attorneys who certify in good faith that they (a) lack the required equip-ment to participate in e-filing; or (b) lack the requisite knowledge to participate in e-filing, as do all of their employees. Attorneys must file this certificate in ev-ery proceeding they commence should they wish to continually rely on this ex-ception.

(3) Attorneys who establish good cause for not e-filing.

In all of the above cases including exempt parties, the consenting parties must serve the exempt parties with hard copies of all e-filed documents.

The NYSCEF Resource Center

Your (and our) new best friends are Continued on page 17

At a time when the immigrant community is experiencing a heightened sense of vulnerability, the Third Judicial District Gender Fairness Committee presented a continuing legal ed-ucation program, cosponsored by the ACBA, exploring the issues and nuances regarding language access and domes-tic violence. Domestic violence/sexual assault proceedings are especially stressful for non-English speaking individuals and particularly challenging for interpreters. Advocates, po-lice and courts cannot be fully effective if they are unable to understand what victims are saying—and if victims cannot comprehend what they are hearing. That language barrier

discourages victims from seeking what may literally be life-or-death assistance.

On November 11, a group of panelists explored the prob-lem, and possible solutions for situations where the potential lifeline either doesn’t speak the victim’s language or doesn’t understand the victim’s culture. Participants examined these difficulties from the perspective of victims with low English proficiency, and explored ways to bridge the language bar-rier in their own courts or practices. Over fifty attorneys and judges attended the timely seminar chaired and moderated by Judge Rachel Kretser, and presented by Justice Deborah Kaplan, Statewide Coordinating Judge for Family Violence Cases, Gwen Wright, Executive Director of the NYS Office for the Prevention of Domestic Violence, Ellen Schell, Counsel for the NYS Office for the Prevention of Domestic Violence, and Nida Abbasi, Coordinator for Domestic Violence

Rachel L. Kretser

City Court Judge


BENCH & BAR IN THE NEWS

Lemery Greisler LLC, a leading Capital Region business law firm, has announced the addition of Chelsey T. Lester as an associate attorney. Ms. Lester’s practice focuses on corpo-rate transactions, commercial lending, bankruptcy, creditors’ rights and real estate law. Prior to joining Lemery Greisler, Ms. Lester was an associate at Whiteman Osterman & Hanna, LLP. Ms. Lester graduated from Wesleyan University with a Bachelor of Arts Degree from the selective interdisciplinary program in Economics, History, Government and Philosophy. Contact Chelsey Lester via email at [email protected].

Barclay Damon, LLP has received Tier 1 ranking from U.S. News - Best Lawyers “Best Law Firms” for 2017. Barclay Da-mon has been named a Tier 1 Metropolitan “Best Law Firm” in practice areas across its upstate New York and Boston of-fices. The Tier 1 rankings include Real Estate Law, Eminent Domain and Condemnation Law, Banking and Finance Law, Commercial Litigation, Corporate Law, Employment Law – Management, Environmental Law, Health Care Law, Land Use & Zoning, Products Liability Litigation – Defendants, Per-sonal Injury Litigation – Defendants, Trusts & Estates, and Bankruptcy and Creditor Debtor Rights /Insolvency and Re-organization Law. To be considered for a ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top four percent of practicing attorneys in the United States. More than 12,000 attorneys provided over 330,000 law firm assessments, and almost 7,000 clients pro-vided close to 20,000 evaluations for the survey.

David A. Kubikian, Esq., attorney at the Herzog Law Firm, was selected to Super Lawyer’s 2016 New York Rising Star list. Mr. Kubikian works out of the firm’s Albany, Saratoga Springs and Kingston offices and concentrates in the areas of Estate Planning, Elder Law, Medicaid, Divorce, and Estate Administration. He graduated from New York Law School with a Masters of Law in Taxation, obtained his J.D. from Brook-lyn Law School with a concentration in Trusts & Estates and Tax Law, and completed his undergraduate studies at Hofstra University where he earned a Bachelor’s Degree in Finance. Mr. Kubikian is very involved in the community and teaches continuing education classes throughout the Capital Region.

The personal injury law firm of Powers & Santola, LLP, has again received Tier 1 recognition for the Albany, NY, metro-politan area in the U.S. News & World Report - Best Lawyers “Best Law Firms” rankings. In the 2017 rankings, Powers & Santola, LLP, received top-tier status for Albany in four prac-tice areas: Medical Malpractice Law-Plantiffs, Personal Injury Litigation-Plaintiffs, Product Liability Litigation-Plaintiffs, and Appellate Practice. Every year since 2010, Powers & Santo-la, LLP, has been recognized in the U.S. News & World Re-port - Best Lawyers “Best Law Firms” rankings. The attorneys from the firm who have been included in the Best Lawyers rankings, are founding partners John K. Powers and Daniel R. Santola (Plaintiffs Medical Malpractice Law, Plaintiffs Person-

al Injury Litigation and Plaintiffs Product Liability Litigation), senior partner Laura M. Jordan (Plaintiffs Medical Malprac-tice Law and Plaintiffs Personal Injury Litigation), senior part-ner Margie M. Soehl (Plaintiffs Medical Malpractice Law and Plaintiffs Personal Injury Litigation) and Michael J. Hutter, Jr. (Appellate Practice).

Towne, Ryan & Partners, P.C. is pleased to announce that Courtney M. Schott has joined the Firm. A 2012 graduate of The Ohio State University, Ms. Schott went on to receive her J.D. from Syracuse University College of Law in 2016. Ms. Schott sat for the New York State Bar Exam in July 2016 and is awaiting admission.

Harris, Conway & Donovan, PLLC is pleased to announce that Ryan E. Manley has joined the Firm as an Associate Attor-ney. Mr. Manley is both a former Assistant Attorney General and Assistant District Attorney whose practice will focus on personal injury, commercial litigation and criminal law. Ryan is a member of the New York State Bar Association and cur-rently serves on the Attorneys in Public Service Committee of the Albany County Bar Association.

70 ATTORNEYS NATIONWIDE INCLUDING:• Two former elected family court judges• Former federal and local prosecutors• Certifiedfederal“learnedcounsel”• Former Presidential Appointee• FiveofficesacrossupstateNewYork• OfficesinWashington,DCandSanDiego,CA

Office Locations: •Albany •Syracuse •Binghamton •Rochester •Buffalo

Services for attorneys only

or email [email protected]

Co-counsel, referrals andemployment opportunities available

Call today for more details:

NEW MEMBERS


ADVERTISING POLICY FOR THE ACBA NEWSLETTER

Advertising & articles appearing in the ACBA Newsletter does not presume en-dorsement of products, services & views of the Albany County Bar Association.

2016 Rates and Deadlines: Albany County Bar Association Rates: Member: $50 in our classified section (approximately 30-40 words) additional fees will be incurred as the number of words increase. Non-member: $100 in our classified section (ap-proximately 30-40 words) additional fees will be incurred as the number of words increase. There is an additional $10 charge for Blind Ads. Seminars announced: $60 (approx. 30-40 words).

The rates for all photo ready ads are: full page (8.5” x 11”) = $550; half page (7.5” x 5”) = $375; Quarter page (3.5 “ x 5”) = $300; Business card size (3.5 “ x 2 .5 “) = $200.

Classified Advertising Policy: All ads must be prepaid and in writing. We also hold the right to edit all ads. For display advertising rates and information, please call (518) 445-7691. All ads must contain wording “Paid Advertising” at the top. It shall be the policy of the Albany County Bar Association that no advertisement should indicate any preference, limitation, specification, or discrimination based on color, handicap, religion, sex, national origin, or age.

Change of Scene and Bench & Bar in the News: Provided at no cost to our mem-bers and inclusion is limited to ACBA Members. All notices must be submitted in writing. E-mail is preferred.

Deadline: *Please note change: The third Friday of the prior month. E-mail ad copy and remit payment to Albany County Bar Association, 112 State Street, Suite 1120, Albany, NY 12207. We also take credit cards, call (518) 445-7691 x116.

OFFICE SPACE AVAILABLE - Prime Wolf Road location, newly renovated office with prestigious law firm. Am-ple parking. Please contact via e-mail [email protected].

CLASSIFIED

NEW MEMBERS

The ACBA welcomes the following

new members:

Hon. Denise Hartman

Anthony Luisi

David Johnson

Jacqueline M. Seitz

O’Brien & Wood, PLLC is pleased to announce the opening of their new law firm at 41 State Street, Suite 503 in downtown Albany. The firm specializes in matters related to matrimonial law, family law, criminal law, DWI, personal injury, and more. Formerly a partner at Anelli Xavier, Kevin O’Brien was respon-sible for the oversight of the criminal/DWI defense of the firm’s three offices. Andrew Wood, most recently was with the law firm of Friedman and Molinsek, P.C. The two partners are both gradu-ates of Albany Law School. ●

BENCH & BAR IN THE NEWS (continued)Continued from page 19

Glen Doherty presents an Employment Law 101 CLE at Wolferts Roost in early November.

It’s time to renew your membership for 2017!There are three easy ways to renew:

To renew your Lawyer Referral Service categories you must submit the paperwork

included with the membership packet!

If you have any questions about the renewal process please do not hesitate to

contact us by phone or email.

[email protected] | (518) 445-7691 x116

Login to your account online by visiting albanycountybar.com and renew through the website

Download and return the membership renewal paperwork to us by mail (available on our website on the home page and in email blasts)

Renew over the phone by calling us (518) 445-7691 x116



Court of Appeals Dinner Sponsorship Advertising Opportunities

Reception Sponsor | $2,000Kick off the night with a reception designed to show off your company’s best angle. Be among sponsors recognized at all the reception meeting hot spots including: coat check, registration, food stations and the open bar stations. Additional recognition will be made thanking sponsors for providing music for the reception. The Reception Spon-sor package includes one ticket to the event (a value of $185 non-member | $150 mem-ber).

Dinner Sponsor | $3,000In addition to having all the recognition of a Reception Sponsor, have your company featured throughout the evening dinner, as attendees enjoy an ongoing photo presenta-tion of images from the Association’s 116 year history. Additionally a public mention will be made of your commitment to ACBA and the event. The Dinner Sponsor package includes two tickets to the event (a value of $370 non-member | $300 member).

Young Lawyers Committee Presents The After Party Sponsor | $5,000 (There will be only one sponsor for this portion of the evening)Imagine the beautiful Egg lobby graced with your logo (in light) as guests make their way from the dinner to the after party lounge. As they continue to mingle with col-leagues and friends, your company and logo will stay top of mind throughout the eve-ning including: a signature drink featuring the name of your company, and opportunities for creative premium placements. A DJ is also scheduled to be onsite to complete the ambiance. The After Party Sponsor package includes two tickets to the event (a value of $370 non-member | $300 member).

Court of Appeals Dinner Program AdvertisingThe COA Dinner Program is a keepsake for many of those who attend the event each year. Ad creative is due January 9, 2017 (please call if an extension is needed). All ads are in color.

Full Page 7 (h) x7 (w) $600Back Cover $900Inside Cover $800Half Page 7 (h) x 3.25 (w) $450Quarter Page 3.25 (h) x 3.25 (w) $350


Daniel W. Coffey President

James E. Hacker President – Elect

Hon. Christina L. Ryba Vice President

Daniel J. Hurteau Treasurer

Michael P. McDermott Secretary

Janet M. Silver Immediate Past President

BOARD OF DIRECTORSDouglas R. Kemp Mathew P. Barry

Hon. Ryan T. Donovan Elizabeth J. Grogan

William T. LittleLisa R. Harris

Committee on AdmissionKathleen A. Barclay

The views expressed in the letters and columns reflect the opinions of the authors and may not re-flect the views of the As-sociation, its Officers, Directors or Members. Opposing viewpoints are always welcome and can be emailed to: [email protected].

Albany County Bar Association 2016 OFFICERS

CALENDAR OF EVENTS

We want to Hear fromYou!

What topics would you like to see discussed in the ACBA Newsletter?

Your thoughts are important to us! Contact us at [email protected]

Please visit albanycountybar.com to register and learn more about our upcoming events!

And “like” us on Facebook /AlbanyCountyBar

Follow us on Twitter @AlbanyCountyBar albanycountybar.com

[email protected](518) 445-7691

Dec 5 Memorial Service

Dec 6 Young Lawyers Committee Happy Hour CLE

Dec 12 Discovery of e-Evidence CLE

Dec 14 Business Transfer and Exit Strategies CLE

Jan 19 President and Board Installation Ceremony

Jan 23 Representing Investors in Arbitration Proceedings Before FINRA CLE

Feb 8 Court of Appeals Dinner

March 2 Surrogate’s Court Proceedings and Practice CLE

April 27 Mediation Panel CLE and Reception

Court of Appeals DinnerFEBRUARY 8, 2017

EMPIRE STATE PLAZA CONVENTION CENTER

HONORARY COMMITTEE


Court of Appeals DinnerFEBRUARY 8, 2017

EMPIRE STATE PLAZA CONVENTION CENTER

HONORARY COMMITTEE

George H. Barber

Donald W. Boyajian Dreyer Boyajian, LLP

Hon. Peter G. Crummey

Lisa A. Frisch The Legal Project

James E. Hacker E. Stewart Jones Hacker Murphy, LLP

Elena DeFio Kean DeFio Kean, PLLC

Lee C. Kindlon, Esq. The Kindlon Law Firm, PLLC

Hon. Susan M. Kushner Albany County Family Court

Barrett D. Mack, Esq. Mack & Associates, LLP

Michael Manoussos Michael Manoussos & Co. PLLC

Matthew H. Mataraso, Esq. Matthew H. Mataraso, Esq. Attorney at Law

Lucas G. Mihuta, Esq. Mack & Associates, LLP

Lillian M. Moy Legal Aid Society of Northeastern NY

Louis W. Pierro Pierro, Connor & Associates, LLC

Robert Schofield Whiteman, Osterman & Hanna LLP

Janet SilverHinman Straub P.C.

Lorraine R. Silverman, Esq. Mack & Associates, LLP

Dale M. Thuillez Thuillez, Ford, Gold, Butler & Monroe, LLP

F. Michael Tucker Tucker Strategies Inc.

Joyce M. Wrenn Joyce M. Wrenn

HONORARY COMMITTEE FIRMCouch White, LLP

ALBANYCOUNTYBAR.COM | (518) 445-7691 X116

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Albany County Bar Association112 State Street | Suite 1120Albany, NY 12207 ALBANYCOUNTYBAR.COM

UPCOMING CLE EVENTS

Register at albanycountybar.com

Young Lawyers Committee Happy Hour CLEWhen: Tuesday, December 6, 2016Time: 4:30 PM CLE, 5:20 PM Happy HourWhere: McGeary’s Pub, Albany NYPresenter: Judge Sommers

A pub series CLE presented by the Young Lawyers Committee. Registration includes hors d’oeuvres and a bever-age. 1.0 Skills Credits. This CLE is proudly sponsored by Wealth Advisory Group.

Discovery of e-Evidence CLEWhen: Monday, December 12, 2016Time: 9:00 AM-10:00 AMWhere: Nixon Peabody Conference Room, 677 Broadway, Albany NYPresenters: Daniel J. Hurteau, Esq. and William Reynolds, Esq. 1.0 Skills Credits.Thank you to Nixon Peabody for underwriting this program!

Closely Held Business Transfer and Exit Strategies CLEWhen: Wednesday, December 14, 2016Time: 8:30 AMWhere: Wealth Advisory Group’s Offices 1207 Troy Schenectady Road, LathamPresenters: Allison Hoyt, Esq.

If you’ve seen the movie Tommy Boy, then you know what a mess the unexpected departure of a business owner can have on his or her business, family, and community. A properly drafted and properly funded buy-sell agree-ment that addresses a business owner’s premature death and disability is a must. Because if it happens to your clients or to your law firm, it won’t be a laughing matter.