the suffolklawyer - multibriefs · bydanielj.murphy themembersofthesuffolkcounty...

DEDICATED TO LEGAL EXCELLENCE SINCE 1908 www.scba.org Vol. 32, No. 7 - March 2017

SUFFOLK LAWYERTH

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THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

INSIDE2018

FOCUS ONTAX

Form 1099-MISC reporting ................8TaxScofflaws,GoingNowhereFAST .......8Valuation discounts and Tax Law........920percent of qualifiedbusiness income....10______________________________

Dean’s List .........................................12The Cohalan Dynasty...........................5Meet Your SCBAColleague................3Courts mark Black History Month ......3______________________________

Legal Articles

ADR ...................................................15Bench Briefs.........................................4Commercial Litigation.......................17Consumer Bankruptcy .......................18Corporate............................................11Court Notes ..........................................6Criminal and Family ..........................14Family – Catterson.............................12Family – Mitev.....................................6Health and Hospital............................20Inside the Courts ..................................4LGBQ.................................................18Personal Injury ...................................13Pro Bono.............................................17Real Estate .........................................13Tax......................................................16Trusts and Estates...............................14Vehicle and Traffic .............................19______________________________

Among Us ............................................7CLE Course Listings ....................26-27SCBACalendar....................................2Freeze Frame......................................19

FOCUS ON

TAXSPECIAL EDITION

BAR EVENTS

Peter Sweisgood DinnerThursday, April 5, at 6 pmThe Watermill, in Smithtown

The Lawyers HelpingLawyers Committee will hold it30th annual award dinner in mem-ory of Rev. Peter Sweisgood. Theevening will feature a number ofdistinguished guest speakers, in-cluding Michael Marran and TouroLaw School graduate George Pam-mer, and will honor SCBAmemberElaine Turley, the past co-chair ofLawyers Helping Lawyers Com-mittee. All members are invited toattend. $75 per person. For furtherinformation call the bar.

PRESIDENT’S MESSAGE

ABAAddresses Women Lawyers atVancouver Midyear Meeting_________________By Scott M. Karson

At the Midyear Meeting of theAmer-ican BarAssociation, held in rainy Van-couver, British Columbia from January31, 2018 to February 5, 2018, theAsso-ciation’s governing body, the 590-mem-ber House of Delegates, focused on is-sues involving women lawyers.The ABAHouse adopted the follow-

ing resolution, sponsored by the New

York State Bar Association and pre-sented by NYSBA President SharonStern Gerstman:• RESOLVED, That theAmerican BarAssociation encourages law firms todevelop initiatives to provide womenlawyers with opportunities to gaintrial and courtroom experience;

• FURTHER RESOLVED, That theAmerican Bar Association encour-ages members of the judiciary to take

steps to ensure that women lawyershave equal opportunities to partici-pate in the courtroom;

• FURTHER RESOLVED, That theAmerican BarAssociation encouragescorporate clients to work with outsidecounsel to ensure that women lawyershave equal opportunities to participatein all aspects of litigation; and

• FURTHER RESOLVED, That theAmerican BarAssociation encouragescorporate counsel, together with out-side counsel, to work with alternativedispute resolution providers and pro-fessionals to encourage the selectionof women lawyers as neutrals.The report onwhich this resolutionwas

based originated from a task force of theNYSBACommercial and Federal Litiga-tion Section, and was adopted by theNYSBAHouse of Delegates on Novem-ber 4, 2017. The report demonstrates thedisparity between the number of men andwomen lawyers appearing in court inNewYork State. Briefly, the report found thatwomen lawyers represented just 25.2 per-

Congratulations to ActingCounty Court Judge DerrickJ. Robinson, who was pre-sented with the fourth annualMarquette L. Floyd Award atthe Black History MonthCelebration by the SuffolkCounty Court Family. Hiswife, Dr. Pamela AllenAnderson accompanied himto the event. See story onpage 3.

Suffolk CountyCourts MarkBlack History Month

A lawyer pursues the learned art oflaw by service to clients and by publicservice, engaging in these pursuits aspart of a common calling to promotejustice. The theme for my presidencyhas been “The Tradition of Profession-alism and Civility.” These are the corevalues of our profession, that are so vi-tal to our system of justice. I stated atmy installation that professionalism isnot a destination, but rather a journey.The path changes constantly and as wecontinue on this path, we will be chal-lenging and defining what professional-ism is in our daily lives, in our Associ-ation and in our system of justice.We often hear of professionalism as

an aspiration, but what does it mean? Tome the fundamental premise begins withthe core values of competency, civility,integrity and commitment to the rule of

law and the adminis-tration of justice.Credibility with thecourt and with op-posing counsel isearned by zealouslyadvocating for yourclient, while treatingall in the court system with respect, po-liteness and courtesy.Justice Sandra Day O’Connor set

forth a description of professionalismwhich embodies the meaning of the pro-fessional lawyer:“… the essence of professionalism is

a commitment to develop one’s skills tothe fullest and to apply that responsiblyto the problems at hand. Professional-ism requires adherence to the highestethical standards of conduct and a will-

PhotocourtesySuffolkCountyCourts

Pat Meisenheimer

Thoughts on Professionalism

(Continued on page 23)


Our Mission“The purposes and objects for which the Association is establishedshall be cultivating the science of jurisprudence, promoting reformsin the law, facilitating the administration of justice, elevating thestandard of integrity, honor and courtesy in the legal profession andcherishing the spirit of the members.”

The Suffolk LawyerUSPS Number: 006-995 is published monthly except July and August by Long IslanderNews, LLC, 14 Wall Street, Huntington, NY 11743, under the auspices of the SuffolkCounty Bar Association. Entered as periodical class paid postage at the Post Office atHuntington, NY and additional mailing offices under the Act of Congress. Postmastersend address changes to the Suffolk County Bar Association, 560 Wheeler Road,Hauppauge, NY 11788-4357.

SUFFOLK LAWYERLAURA LANEEditor-in-Chief

Leo K. Barnes, Jr.Elaine ColavitoIlene S. CooperPaul Devlin

Hillary A. FrommerJames G. FouassierAndrew Lieb

David A. MansfieldPatrick McCormickVesselin Mitev

Lisa Renee PomerantzCraig D. RobinsBarry SmolowitzStephen L. UkeileyLouis Vlahos

Frequent Contributors

The opinions, beliefs and viewpoints expressed by the various authors and frequent contributors ofThe Suffolk Lawyer are theirs alone and do not necessarily reflect the opinions, beliefs and viewpointsof The Suffolk Lawyer, The Suffolk County Bar Association, the Suffolk Academy of Law, and/or anyof the respective affiliations of these organizations.

Publisher

in conjunction withThe Suffolk County Bar Association

The Suffolk Lawyer is published monthly, except for the monthsof July and August, by Long Islander News under the auspices ofThe Suffolk County Bar Association. © The Suffolk County BarAssociation, 2018. Material in this publication may not be storedor reproduced in any form without the express written permissionof The Suffolk County Bar Association. Advertising offices arelocated at Long Islander News, 14 Wall Street, Huntington, NY11743, 631-427-7000.

Send letters and editorial copy to:

SUFFOLK LAWYER560 Wheeler Road

Hauppauge, NY 11788-4357Fax: 631-234-5899

Website: www.scba.org

To Advertise inThe Suffolk Lawyer

Call 631-427-7000

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Suffolk CountyBar Association

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

E-MAIL: [email protected]

Board of Directors 2018-2018Patricia M. Meisenheimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .PresidentJustin M. Block . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .President ElectLynn Poster-Zimmerman . . . . . . . . . . . . . . . . . . . . . . . .First Vice PresidentHon. Derrick J. Robinson . . . . . . . . . . . . . . . . . . . . .Second Vice PresidentDaniel J. Tambasco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .TreasurerVincent J. Messina, Jr. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .SecretaryHarry Tilis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’18)Robin S. Abramowitz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’18)Laura C. Golightly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’18)Robert M. Harper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’18)Hon. John J. Leo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’19)Patrick M. McCormick, (Dean) . . . . . . . . . . . . . . . . . . . . . . . .Director (’19)Jennifer A. Mendelsohn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’19)Francine H. Moss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’19)Joseph A. Hanshe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’20)Sean E. Campbell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’20)Michael S. Levine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’20)Gerard J. McCreight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Director (’20)William T. Ferris . . . . . . . . . . . . . . . . . . . . . . .Past President Director (’18)Donna England . . . . . . . . . . . . . . . . . . . . . . . . .Past President Director (’19)John R. Calcagni . . . . . . . . . . . . . . . . . . . . . . .Past President Director (’20)Sarah Jane LaCova . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Executive Director

SCBA

OF ASSOCIATION MEETINGS AND EVENTS

All meetings are held at the Suffolk County Bar AssociationBar Center, unless otherwise specified. Please be aware thatdates, times and locations may be changed because of con-ditions beyond our control. Please check the SCBA website(scba.org) for any changes/additions or deletions which mayoccur. For any questions call: 631-234-5511.Calendar

Important Information from the Lawyers Helping Lawyers CommitteeThomasMore GroupTwelve-Step Meeting

Every Wednesday at 6 p.m.,Parish Outreach House, Kings Road - Hauppauge

All who are associated with the legal profession welcome.LAWYERS COMMITTEE HELP-LINE: 631-697-2499

Write for The Suffolk LawyerDid you ever wonder how you could get involved in your bar association’s monthly

newspaper?Doyouhave a great idea for an article or believe your colleagueswould ben-efit from information you’ve recently learned? Or do you just enjoy writing?You too can write for The Suffolk Lawyer.Writing for the paper is open to all mem-

bers and doing so is encouraged. The Suffolk Lawyer is a reflection of the finemembersthat belong to the Suffolk County Bar Association. Why not get involved? For addi-tional information please contact Editor-in-Chief Laura Lane at [email protected] or call (516)376-2108. Look forward to hearing from you!

MARCH 2018

7 Wednesday Appellate Practice, 5:30 p.m., Board Room.12 Monday Executive Committee, 5:30 p.m., Board Room.14 Wednesday Elder Law & Estate Planning, 12:15 Great Hall.

Real Property 6:00 p.m., Board Room.15 Thursday Matrimonial Bar, 6:00 p.m., Bonwit Inn, Commack.20 Tuesday ADR, 6:00 p.m., E.B.T. Room

LGBT, 6:00 p.m., E.B.T. Room.Professional Ethics & Civility, 6:00 p.m., Board Room.

21 Wednesday Education Law, CLE Credit Available, 12:30-2:30 p.m.,Great Hall.

22 Thursday Surrogate’s Court Committee, 6:00 p.m., Board Room.26 Monday Board of Directors, 5:30 p.m., Board Room.

APRIL 2018

3 Tuesday Appellate Practice, 5:30 p.m., Board Room.9 Monday Executive Committee, 5:30 P.M., Board Room.11 Wednesday Elder Law & Estate Planning, 12:15 p.m., Great Hall.

Education Law, 12:30 p.m., Board Room.Real Property, 6:00 p.m., Board Room.

12 Tuesday Surrogate’s Court, 6:00 p.m., Board Room.17 Thursday Professional Ethics & Civility, 6:00 p.m., Board Room.19 Thursday Matrimonial Bar, 6:00 p.m., Bonwit Inn, Commack.23 Monday Board of Directors, 5:30 p.m., Board Room.24 Tuesday ADR, 6:00 p.m., Board Room.

2 THE SUFFOLK LAWYER – MARCH 2018

____________________By Sarah Jane LaCova

On Friday, Feb. 16, District Admin-istrative Judge C. Randall Hinrichs, theAmistad Long Island Black Bar Asso-ciation and the Suffolk County Bar As-sociation hosted a wonderful annualevent to mark Black History Month.This year’s theme to celebrate themonth-long event was “AfricanAmeri-cans in Times of War.” The musical se-lection, “AfricanWarriors Drum Beat,”by Kwesi Nkroma,was appropriate andenjoyed by the audience, who wereawe-struck by how much sound cameout of the warrior’s drum. Kudos toKwesi, for creating a musical selectionthat was enthralling.Judge Tony Bean, who has been the

Mistress of Ceremony since we begancelebrating, and I were privileged tojoin the hundreds who on this specialoccasion had the opportunity to addtheir voices to the chorus of congratu-lations for her devotion and splendidaccomplishments.President Patricia Meisenheimer gave

an overview of Black History Month inher remarks, which began in 1915 whenHarvard-trained historian Carter G.Woodson and the prominent ministerJesse E. Moorland founded an organi-zation dedicated to researching and pro-

moting achievements by black Ameri-cans and other peoples of African de-scent. Since that time every U.S. presi-dent has issued a proclamation honoringthe spirit of Black History and SuffolkCounty most certainly had a great cele-

bration, which was repeated on Feb. 28at the Alan D. Oshrin Supreme CourtComplex. Pat went on to say in her ad-dress that “the SCBA recognizes thattoday achieving diversity in the legalprofession requires the Association’scontinued effort and commitment. Di-versity is consistent with creating trustin our system of justice and with therule of law.”She spoke of the famous Tuskegee

Airmen who also became legendary fortheir heroic feats, and in total received aDistinguished Unit Citation, several sil-ver stars, 150 distinguished flyingcrosses, 14 bronze stars and 744 airmedals.Acting County Court Judge Derrick J.

Robinson was presented with the fourthannual Marquette L. FloydAward. Thisspecial award was established in thename of a well-known and beloved ju-rist, who served for 19 years as a Dis-trict Court Judge before being elected tothe Supreme Court Bench in 1989,where he served with distinction in-

Black History Month Celebrated by the Suffolk County Court FamilyTHE SUFFOLK LAWYER – MARCH 2018 3

_____________By Laura Lane

Why did your father think it was agood idea to go to law school? Heknew a lot of lawyers and told me that abackground in the law would help me inany career I chose. It would open thedoor. There is a law related story everyday in the newspaper.

You knew a local attorney when youwere young that made an impressiontoo. Yes, Bobby Jones. He was a downto earth guy that helped people in myneighborhood. He was the kind of guyyou looked up to, always giving back tothe community. He died when I was incollege. I wanted to emulate him.WhenI took the bar exam I wore a shirt thathad his name on it.

Working has always been importantto you. What were some of your firstjobs? I used to rake leaves for myneighbor and go to houses on snow dayswhen I was a kid. The idea was I couldmake money doing work and have myown independence. An allowance wasstill my family’s money. My parentstaught me to depend on myself.

You went on to have a series of jobs:as a house painter, bartender, gas sta-tion attendant and waiter. How doyou think these jobs helped you withyour career today? When I became awaiter, instead of interning for free, I didso because I wanted to make money andlearn about people. I had a small housepainting business in college in the

Hamptons too.All of those experiences,working at a gas station in Garden Cityseeing kids rolling in in their Mercedesthat didn’t work — I always wanted tobetter my position by working.And yousee every aspect of someone, particu-larly while bartending, how people han-dle themselves in different situations,particularly around alcohol and in pub-lic. I scooped ice cream too while incollege. My parents encouraged me towork.

While in college at Adelphi youworked for Macy’s as a loss preven-tion investigator. That job cut acrosssocioeconomic lines. That’s where Ilearned you can’t judge a book by itscover.At 19, I had the discretion to sendsomeone to the police to be prosecuted,or just tell them not to come back. Thatwas a lot of responsibility. The experi-ence helped me in what I do today. Peo-ple have to tell a judge information thatembarrasses them in DWI cases. Myprior experience at Macy’s gives me theinsight to what they may be goingthrough at their time of need.

You began your legal career workingfor Joseph Caramagno, an attorneyin Deer Park. His practice was pri-marily criminal defense law. Is thiswhen you made your decision as towhat type of lawyer you would be?Yes. I watched him in court, his inter-actions with judges, clients, prosecu-tors. He walked into a courtroom andowned the room. I saw him personalizehis client in court — he never said the

“defendant,” he said their name. Hemade his client feel like a human againafter 10 hours of being treated like anumber. After a few weeks with Joe Irealized this was what I wanted to do.I was 26.

What appeals to you about being acriminal defense attorney? At anytime, I can be on a fight for a client’slife. My entire day can change in anygiven moment, depending on what I amfacing. You always have to be prepared— be on your game. You have to havecredibility, and your word is all youhave. And what I love is that every dayis a chance to learn about something orsomeone you didn’t know.

You began your own firm in 2002,eventually concentrating on DWIcases. Ten years ago, when KathleenRice became the district attorney, shechanged the landscape across the stateregarding DWI cases. More people werefacing deeper consequences for DWI.The dynamic changed in prosecutionwith limitations on plea bargaining. Ijoined associations and became aspeaker at a CLE for the SCBA. My fo-cus became DWI defense and my prac-tice began to grow.

When did you join the SCBA? I joinedright after I became a lawyer because Iwanted to network and become a part ofthe fabric of the county. People in courtencouraged me to join. I had come fromQueens.

How did you get involved? I became aco-chair of the Criminal Law Commit-tee. And I did the CLE.

Why would you encourage others tojoin? The SCBA is a pretty unique bar.There is so much cohesion from groupto group. People doing family law do di-vorce law, for example. And the judgesare involved there too. It’s such afriendly place at the SCBA. It’s alsosuch a great opportunity for younglawyers to meet and get to know moreexperienced attorneys. The opportunityto sit down and talk to experienced at-torneys in informal settings is huge. Youcan’t put a price tag on that.

MeetYour SCBA Colleague John Powers, a criminal defense lawyer, was encouraged by his father to become anattorney. Coming from a marketing background, his father always referred to the legal profession asa catalyst to employment.

John Powers



________________By Elaine Colavito

Suffolk County Supreme Court

Honorable William G. FordMotion for a default judgment

granted; neither defendant made anyargument resembling a sworn denial ofreceipt of service of process or a rea-sonable excuse for having failed totimely or properly join issue on the sup-plemental pleadings.

In The Long Island Home d/b/aBroadlawn Manor Nursing Home &Rehabilitation Center v. Adelia Piper-gias & Christos Pipergias, Index No.:24849/2014, decided on November 9,2017, the court granted the plaintiff’smotion seeking a default judgment pur-suant to CPLR §3215.The facts were as follows: Defendant,

Adelia Pipergias, was a resident of plain-tiff’s facilityApril 12, 2014 throughMay2, 2014.A summons and complaint wasfiled against defendants alleging breachof contract and the defendants answeredthe same. In short form order dated Sept.16, 2016, this court granted plaintiffleave to amend the pleadings to seek re-covery for a supplement cause of action

of promissory estoppel. In ac-cordance with the decision,plaintiff served a supplementalsummons and complaint.Based upon the representationthat defendants failed to joinissue and serve a supplementalanswer to the supplementalpleadings, plaintiff nowmoved to hold defendants indefault. In opposition to the motion, de-fendants merely repeated and reiteratedin boilerplate fashion a denial of any al-legations of fraud. Otherwise, neitherdefendant made any argument resem-bling a sworn denial of receipt of serv-ice of process or a reasonable excusefor having failed to timely or properlyjoin issue on the supplemental plead-ings. Accordingly, the court granted theplaintiff’s motion seeking a default judg-ment.

Motion for summary judgment de-nied; construing the bond to its plainterms and in a light most favorable tothe oblige-plaintiff, the town, its claimsfor monetary recovery to recoup itscosts to cover were not time barred.

In Town of Brookhaven v. Navigators

Insurance Company & T. & S.Builders, Inc., Navigators In-surance Company v. SalvatoreMalguarnera, Frank Campo,Edward Campo, MichaelCampo & Jayne BoulevardProperties, Inc., Index No.:3118/2015, decided on Dec. 7,2017, the court denied defen-dant’s motion for summary

judgment pursuant to CPLR §3212 dis-missing the complaint.Defendant’s motion sought dis-

missal on the basis that the applicablestatute of limitations had run barringplaintiff’s recovery against the per-formance bond. The bond surety ar-gued that the town waited an unrea-sonable amount of time in seeking toprosecute this action for reimburse-ment of costs to cover to complete theproject’s amenities. Defendant basesits request on Town Law §277, thatstatute governing the applicable statuteof limitations period for litigation con-cerning municipal performance bonds.The surety contends that according tostatute, the town’s cause of action ac-crued within 3 years of issuance of thebond. Applied here, defendant arguedthat for the bond issued on February

15, 2005, to be timely, plaintiff had tocommence its action and vindicate itsrights on or before February 15, 2008and since this action was not com-menced until 2015, defendant thus ar-gued that plaintiff brought a time-barred claim. Opposing defendant’smotion, plaintiff argued that its claimwas not untimely since the municipalapproval for issuance of the bond, aswell as the bond itself, conditioned re-lease of the bond on the town’s ap-proval and satisfaction with comple-tion of the project, its cause of actiondid not accrue because defendants didnot honor their obligations set forth inthe bond and complete the project tothe plaintiff’s satisfaction or approval.In denying the motion for summaryjudgment, the court concluded thatconstruing the bond to its plain termsand in a light most favorable to theoblige-plaintiff, the town, its claimsfor monetary recovery to recoup itscosts to cover were not time barred.

Honorable Denise F. MoliaDefendants’ motion to dismiss com-

plaint denied; reasonable excuse forplaintiff ’s minimal delay.

BENCH BRIEFS


Elaine Colavito

________________________By Hon. Stephen L. Ukeiley

This month’s column examines thejury charge where a criminal defendantasserts the defense of justification, oth-erwise known as self-defense, followingthe use of deadly force.

Justification defenseSelf-defense arises in a variety of

contexts. It is well-established that jus-tification is a “defense,” and not an “af-firmative defense,” which means thePeople must disprove the defense be-yond a reasonable doubt (People v.Steele, 26 N.Y.2d 526 (1970)).Penal Law section 35.05 sets forth the

applicable rules pertaining to physicalforce. The statute provides that the use ofnecessary and justified ‘physical force’ ispermitted where such force is required toavoid “imminent public or private in-jury” due to no fault of the actor.Penal Law section 35.15 is the rele-

vant statute where deadly physical forceis utilized. This section establishes amulti-pronged test including objectiveand subjective components. Subdivi-sion 2 “[i]mposes a two-part standard bywhich the jury must first determinewhether a defendant subjectively be-lieved that the use of deadly physicalforce against an individual was neces-sary because that individual was usingor about to use deadly force, and [if sat-

isfied,] then must [further] de-termine whether this beliefwas objectively reasonable inview of all the circumstances”(People v. Harden, 134A.D.3d 1160 (3d Dep’t2015)).In other words, the jury

must be charged on justifica-tion where “[a]ny reasonableinterpretation of the evidence— whether presented by the People orthe defendant — [could] lead a jury toconclude that the defendant reasonablybelieved the victim was using or wasabout to use deadly physical force andthat the defendant could not safely re-treat, or was under no duty to retreat”(People v. Ball, 154 A.D.3d 1060 (3dDep’t 2017)).Counsel should be mindful that an

individual has no duty to retreat inhis/her home when he/she was not theinitial aggressor (Penal Law §35.15(2)(a)). Moreover, the defendant isnot required to testify to assert the de-fense of justification (Ball, supra). Thedefense is not applicable for unlawfulpossession of weapons charges (Peoplev. Pons, 68 N.Y.2d 264 (1986); Peoplev. Jenkins, 81 A.D.3d 662 (2d Dep’t2011)).In determining whether to instruct the

jury on the defense, the evidence mustbe considered in a light most favorable

to the defendant (People v.Taylor, 150 A.D.3d 768 (2dDep’t 2017)). Where no rea-sonable view of the evidencesubstantiates the defense, therequest to charge must be de-nied (see People v. Watts, 57N.Y.2d 299 (1982)). It hasbeen held that the swinging ofa knife towards an individualmay warrant the use of deadly

force because a knife is “[r]eadily ca-pable of causing death or serious injury,regardless of the degree of injury [] ac-tually intended or inflicted” (People v.Kerley, 154 A.D.3d 1074 (3d Dep’t2017) (citations omitted)).The defense of justification must be

preserved for appellate consideration(People v. Hansen, 153 A.D.3d 1431(2d Dep’t 2017))). Although there is noneed to formally issue an “exception,”Criminal Procedure Law section470.05(2) provides that counsel’s“protest” to the trial court’s determina-tion must be made “at the time of suchruling or instruction or at any subse-quent time when the court had an op-portunity of effectively changing thesame.” Of note, the party seeking theruling or instruction is “deemed to havethereby protested the court’s ultimatedisposition of the matter” (CPL s.470.05(2)).

Excessive forceWhere applicable, the trial judge must

further instruct the jury on “excessiveforce.” The rationale is that eventhough deadly force may be justified atthe outset of the incident, the use ofsuch force is unlawful where it is uti-lized after the threat subsides or hasbeen eliminated. The prosecution hasthe burden of demonstrating that the“[u]nnecessary additional force causedthe alleged harm” (People v. Delin, 145A.D.3d 566 (1st Dep’t 2016)).

Lesser countsThe trial judge must also instruct the

jury of the impact on lesser counts. TheAppellate Division, Second Departmenthas held that “[i]t is [reversible] error forthe trial court not to instruct the jurorsthat, if they find the defendant not guiltyof a greater charge on the basis of justi-fication, they were not to consider any[of the] lesser counts” (People v. Braith-waite, 153 A.D.3d 929 (2d Dep’t2017)). This is because the justificationdefense is not intended to “excuse”criminal activity, but rather to assurethe public that, under appropriate cir-cumstances, it is lawful to use deadlyforce to protect oneself or another froma dangerous imminent threat (id.).The instruction should be specific,

such that, if the jury finds the defendant

INSIDE THE COURTS


Stephen L. Ukeiley

Self-Defense Jury Charge in ‘Deadly Force’ Cases

_________________By Daniel J. Murphy

The members of the Suffolk CountyBar Association have many interestingstories and family histories. Amongthem is the Cohalan family history,which spans three generations of mem-bers in the Suffolk County Bar Associ-ation and four generations of attorneysadmitted to the New York Bar. Theyspan almost 100 years from the 1890s,including four generations within theCohalan clan that were elected and sit-ting as justices and judges in NewYorkState. It is quite a long and distinguishedfamily history.There have been 16 members of the

Cohalan family who were lawyers ad-mitted to the New York Bar during thattime. In the most recent generation,among us now, along with his firstcousins Donald A. Rettaliata, Jr. andThomas A. Rettaliata, is my friend, fel-low veteran and board member of theLTMichael P. Murphy Navy SEALMu-seum/Sea Cadet Training Facility, Suf-folk County District Court Judge PierceFox Cohalan.When Pierce was sworn inas a District Court Judge in January2015 by his father, state Supreme CourtJustice Peter Fox Cohalan, it was thefirst time in NewYork history that therewas a fourth generation in a direct line

and the sixth member of the same fam-ily elected to a NewYork State Court ofRecord, a feat worth noting.In 1905, Judge Pierce Fox Cohalan’s

great-grandfather, John P. Cohalan(1873-1950) was elected to the NewYorkState Assembly, then in 1906 he waselected to the NewYork State Senate andsubsequently ascended to the bench afterbeing elected in 1906 to a 14-year term asSurrogate of NewYork County. In 1934,John P. Cohalan became an Official Ref-eree of the New York State SupremeCourt serving until 1950.John P. Cohalan’s older brother,

Daniel Florence Cohalan (1865-1946)was Grand Sachem of Tammany Hall(1906-08). (Tammany Hall, also knownas the Society of St. Tammany was aNew York City Democratic Party polit-ical organization founded in 1786, whichplayed a major role in both NYC andstate politics helping immigrants, mostlythe Irish, assimilate and become active inthe political field.) First appointed to theNewYork State Supreme Court in 1910by N.Y. Governor John Alden Dix, hewas elected that year to a full 14-yearterm on the State Supreme Court forNew York City, where he served on theAppellate Term during his tenure. Heserved one term until 1924 but returnedto the bench in 1934 as an Official Ref-

eree of the Supreme Court until1946.Another brother of John P. Cohalan,

Dennis O’Leary Cohalan (1883-1957)was elected to the New York StateSupreme Court in 1940 and served un-til his death in 1957.Judge Pierce Fox Cohalan’s grandfa-

ther, John P. Cohalan, Jr. (1907-1988)was elected Suffolk County District At-torney in 1957; and elected SuffolkCounty Court Judge in 1961 serving oneyear before being elected to theSupreme Court bench in 1962 servingmore than 20 years until 1983, includingservice on the Supreme Court,AppellateDivision for the Second Departmentfrom 1974 until 1982.Justice Pierce Fox Cohalan’s father,

Peter Fox Cohalan (1938- ) has had along distinguished career, first as IslipTown Supervisor from 1972 until 1979when he was elected to the first of twofour-year terms as Suffolk County Ex-ecutive. Thereafter, he assumed thebench upon being elected a New YorkState Supreme Court Justice in 1986and again in 2000 and serving until 2012when he retired from the bench. JusticePeter Fox Cohalan is now the SuffolkCounty Historian, having been ap-pointed by Suffolk County ExecutiveSteve Bellone, with approval by the Suf-folk County Legislature. He is also a

member of the David Lion GardinerFoundation, a philanthropic charitablefoundation.Finally, Judge Pierce Fox Cohalan,

in following the distinguished legacy ofhis forefathers, has had an interestingcareer himself prior to his election to theSuffolk County District Court bench in2014. He has been and still is during thesummer, a ferry boat captain on theGreat South Bay, which he’s done sincehe was 18.He is a graduate of Choate Rosemary

Hall, Leigh University in Pennsylvania,Hofstra Law School and earned anMBA from Columbia University. Hehas served as Islip TownAttorney, a po-sition also held once by his grandfather,John P. Cohalan, Jr. He presently holdsthe rank of major in the United StatesArmy Reserve and served a tour of dutyinAfghanistan, where he was the recip-ient of the Bronze Star. Judge PierceFox Cohalan sits on the Board ofTrustees of the LT Michael P. MurphyNavy SEALMuseum/Sea Cadet Train-ing Facility to be built inWest Sayville,Suffolk County.

Note: Daniel J. Murphy is a SuffolkCounty attorney, Gold Star parent andformer Law Secretary to Justice PeterFox Cohalan for 26 years.

The Cohalan DynastyTHE SUFFOLK LAWYER – MARCH 2018 5


_______________By Vesselin Mitev

Husband and wife are in the middleof a divorce. Wife realizes that the hus-band, whom she never bothered to puton the deed, is living in her house (inwhich she is living in pursuant to a ques-tionable life estate deed transfer fromher own mother, who is now relegated tothe (illegal) apartment on the side of thehouse), and based on the luminary ad-vice of her learned counsel, who positsthat the temporary orders do not en-compass this scenario, since there is noright to something you don’t own, com-mences a summary eviction proceedingin landlord tenant court.Second scenario: Wife and husband

are divorced, pursuant to a stipulation ofsettlement, but the judgment has not yetbeen entered. Husband was supposedto have vacated the home but has not yetdone so, but still contributes to the ex-penses. Again, having had enough, thewife serves the husband with a notice oftermination and commences an evictionproceeding.Scenario three: Mom and dad, who

managed to raise an otherwise com-pletely unremarkable man-child, signthe deed over to said man-child (donothing with the mortgage) and, thanksto either shoddy work or glaring in-competence, fail to reserve themselves alife estate. Said man-child, fresh off tak-ing shirtless selfies and making duckfaces at Senor Frog’s in Cabo, has de-cided that due to pressing gym-related

“business” interests, he needsto sell the family home andcash out; again, mon and dadhave been served with a noticeto appear in district court.Scenario four: Man and

woman have two kids, havebeen together for 12 years,work in the same business(man has a landscaping com-pany and the woman does thebooks) and share a home (although it issolely in the man’s name); the romanticwick finally burns out, and man nowseeks to evict the mother of his chil-dren from his house, since the love ofhis life, who hails from Ukraine andmet him via the wonder that is the in-ternet, will be arriving shortly, and allmust be in order. Like the prior three ex-emplars, a summary eviction proceedinghas been commenced.While it would take reams of paper to

summarize the relevant intertwiningstatutes, the basic starting point of anyattempt to remove or otherwise altersomeone’s interest in real property via asummary proceeding is a landlord-ten-ant relationship (see RPAPLArticle 7).In each of the aforesaid examples, sucha relationship is clearly lacking and thusthe landlord-tenant court, which is acreature of statute and thus must strictlyconstrue its jurisdictional limits, shouldnot be the proper forum.Of course, there is a giant exception to

the rule, codified in RPAPL 713, whichspecifies a number of exceptions where

such a proceeding may bemaintained, despite there be-ing no formal landlord-tenantrelationship. Now we havelooped back upon ourselves,and sit, Toad-like, bemoaningto Mole, that “We must stopeating” as he ate another.Thankfully, our inquiry is notat an end, since a whole swathof case law has carved out the

“familial” exception to such evictions,which began with a husband’s attempt tooust his wife from a house he owned, inRosenstiel v. Rosenstiel, 20 A.D.2d 71,245 N.Y.S.2d 395 (1st Dept. 1963).In Rosenstiel, the court held that sum-

mary proceeding was not authorized tooust the wife from possession, reasoningthat shewas “lawfully in possession to be-gin with as the wife of the [petitioner][and] she continued in possession . . . notby virtue of any license or special arrange-ment . . . but solely on the basis of the ex-istence of their marital relationship.”Fifty years later, inNauth v. Nauth, 42

Misc.3d 672 (NY Civ. Ct. 2013), theCourt extended that holding to the di-vorced ex-wife of the husband, who con-tinued to reside in the former maritalresidence, in a top floor apartment, hold-ing that she was a family member, andtracing the evolution of the family mem-ber exception to being summarilyevicted from a home: (Nagle v. DiPaola, 134 Misc.2d 753, 512 N.Y.S.2d761 (N.Y.Dist.Ct.1987)), recognizingadult lifetime partners (Braschi v. Stahl

Assoc. Co., 74 N.Y.2d 201, 544 N.Y.S.2d784, 543 N.E.2d 49 (1989)), recognizingadult children (Sirota v. Sirota, 164Misc.2d 966, 626 N.Y.S.2d 672(N.Y.C.Civ.Ct.1995)), recognizing anex-girlfriend and minor children of therelationship (DeJesus v. Rodriguez, 196Misc.2d 881, 768 N.Y.S.2d 126(N.Y.C.Civ.Ct.2003), see also Robinsonv. Holder, 24 Misc.3d 1232 (A), 901N.Y.S.2d 902 (N.Y.Dist.Ct.2009)), rec-ognizing adult grandchildren (Williamsv. Williams, 13 Misc.3d 395, 822N.Y.S.2d 415 (N.Y.C.Civ.Ct.2006)), andrecognizing a sister-in-law (Kakwani v.Kakwani, 40Misc.3d 627, 967 N.Y.S.2d827 (N.Y.Dist.Ct.2013)).In sum, when faced with a petition to

evict via summary proceeding anyonewho is a direct or indirect family mem-ber, a cogent and applicable defense isthat the strictly limited landlord tenantcourt has naught the jurisdiction overthe proceeding, given the evincedloathing by the courts to summarily dis-possess persons of their rights and in-terest to property that were shaped bytheir belonging first to a(n) (ever-ex-panding) class of family.

Note: Vesselin Mitev is a partner atRay, Mitev & Associates, LLP, a NewYork litigation boutique with offices inManhattan and on Long Island. His prac-tice is 100 percent devoted to litigation,including trial, of all matters includingcriminal, matrimonial/family law, Arti-cle 78 proceedings and appeals.

FAMILY

Vesselin Mitev

Shoo, Fly, Shoo; Summary Evictions of Family Members

______________________By Ilene Sherwyn Cooper

Appellate Division-SecondDepartment

Attorney resignations granted/dis-ciplinary proceeding pending:David Lubin: Application by the re-

spondent to resign as an attorney. The re-spondent submitted an affidavit in supportof his application, in which he acknowl-edged that he was the subject of a pend-ing investigation by the United StatesAt-torney’s Office in the Southern District ofFlorida and had entered into a preliminaryplea agreement, which contemplated hispleading guilty to one count of conspiracyto sell unregistered securities. Pursuant tothe plea agreement, the respondent agreedto resign from the practice of law. Hestated his resignation was freely and vol-untary rendered, that he was fully awareof the implications of submitting his res-ignation, and that he was subject to an or-der directing that he make restitution andreimburse the Lawyers’ Fund for ClientProtection. The respondent further ac-knowledged and agreed that pending the

issuance of the order acceptinghis resignation, he would notundertake to represent any newclients or accept any retainersfor future legal services to berendered, and that, other thanthe payment of funds from fi-duciary accounts to the personsentitled to them, there wouldbe no transactional activity inany fiduciary account. In view of the fore-going, the respondent’s resignation wasaccepted, and he was disbarred from thepractice of law in the State of NewYork.

Attorneys censured:Robert David Goner: The respon-

dent pleaded guilty in the Supreme Court,Nassau County, to one count of endan-gering the welfare of a child, a Class Amisdemeanor. Thereafter, pursuant to adirection of the court, the GrievanceCommittee instituted disciplinary pro-ceedings against the respondent and thematter was referred to a special referee.After a hearing, the special referee sus-tained the charge. The Grievance Com-mittee moved to confirm, and the re-

spondent, by counsel, joined inthe application, though re-quested that a private repri-mand, or public censure be im-posed. Based on the evidenceadduced, the court confirmedthe report of the special ref-eree. While noting that the re-spondent’s conduct did not in-volve violence, the

respondent’s rehabilitative efforts, andhis completion of a group counselingprogram, the court noted that a Letter ofCaution had been issued to the respon-dent in connection with a conviction ofdriving while intoxicated. Accordingly,the respondent was publicly censured.

Attorneys suspended:James H. Fischer: By decision and

order of the court, the Grievance Com-mittee was authorized to institute a dis-ciplinary proceeding against the re-spondent and the matter was referred toa special referee, who sustained bothcharges against the respondent. TheGrievance Committee moved to con-firm, and the respondent, by counsel,

joined in the application, though re-quested that a private reprimand or pub-lic censure be imposed. The court notedthat the charges against the respondentemanate from a dishonored check is-sued from his attorney trust account.Despite respondent’s claim that the mis-appropriation was not intentional, thecourt found, based on the evidence, tothe contrary. Accordingly, the motionto confirm the special referee’s reportwas granted. Notwithstanding the re-spondent’s arguments in mitigation, thecourt noted that respondent had receivedtwo admonitions for, among otherthings, his neglect of legal matters, fail-ure to timely pay an arbitration awardand failure to timely cooperate with thegrievance committee. Under the totalityof circumstances, the respondent wassuspended from the practice of law fora period of two years.

Attorneys disbarredFrank G. D’Angelo, Jr.: OnAugust

24, 2016, the Grievance Committee wasauthorized to institute disciplinary pro-


COURT NOTES

Ilene S. Cooper

THE SUFFOLK LAWYER – MARCH 2018 7

SIDNEY SIBEN’S AMONG US

On the Move…Best wishes to SCBAmem-

ber Anne M. Molloy, whohas been hired of counsel inlitigation at Certiman Balin inHauppauge. She was princi-pal law clerk to JusticeWilliam B. Rebolini inSuffolk Supreme, Riverhead.

Edward J. Nitkewicz has joined theLaw Office of Paul Ajlouny &Associates, a small personal injury firmlocated in Garden City. He will contin-ue to concentrate in personal injury liti-gation, including matters arising fromautomobile accidents, product defect,work site injuries, slip and fall acci-dents and medical malpractice.

Announcements,Achievements & Accolades…Karen Tenenbaum of Tenenbaum

Law, P.C. will be discussing NYSResidency Audits at the NCCPAP,Florida Chapter. Lance Rothenbergof Tenenbaum Law, P.C. will be speak-ing at the Practicing Law Institute’s“Nuts and Bolts of State and Local Tax2018” conference in New York City.The attorneys of Tenenbaum Law, P.C.will be speaking at the InternationalRestaurant and Foodservice Show atthe Javits Center in March.

Hana Boruchov and LeoGabovich, from Tenenbaum Law andAaron Futterman, of Futterman &Lanza, spoke at a presentation on taxreform on Feb. 22 in Jericho.

Christopher J. Chimeri, a foundingpartner of Quatela Chimeri PLLC, was se-lected by Long Island Business News(LIBN) as a 2018 “40 under 40” awardee.The award recognizes under-40membersof Long Island’s business communitywho have distinguished themselves inbusiness, government, education and thenot-for-profit sector with a proven recordof career success, are involved in men-toring and promoting their professionand find time to give back to their com-

munities. LIBN hosted anawards dinner on February 8 atCrest Hollow Country Club.

Congratulations…Alan J. Schwartz received

the Michael WeisbrodMemorial award in recogni-tion of charitable contribu-tions and philanthropic

endeavors given by the MelvilleChamber of Commerce.

Condolences…To the Hon.Gaetan B. Lozito on the

passing of her husband Eric Landau.

To the wife Joyce Feuer, and familyof honorary member Lloyd A. Feuer,who passed away on Feb. 7.

To the family of honorary memberJohn Nappi who passed away inDecember 2017.

Marie Anne Green, the devotedwife of the late Hon. Edward U.Green, Jr., died on Dec. 30, 2017,

Elizabeth Borsetti, beloved wife ofSCBA Charles Borsetti, who passedaway on Dec. 23, 2017.

New Members…The Suffolk County Bar extends a

warm welcome to its newest mem-bers: Alison Chulis, Randall T. Eng,Michael J. Famiglietti, MaxwellGlass, Juliet Gobler, Judith Lipner,Caitlin Miller, Yvonne L. Randazzo,Aleza Ross, Martin K. Rowe, MarieA. Sammartino, Jessica Soultanian-Braunstein, Page Blair Traxler andPhillip K. Vacchio.The SCBA also welcomes its

newest student members and wishesthem success in their progresstowards a career in the law: WilliamKrause, Patricia Maher, RachelSilverstein, James P. Stevensand Jessica Tavares.

Jacqueline Siben

The 30th Annual Peter SweisgoodDinner, Thursday, April 5, 2018I have had the privilege of attending

all of the annual dinners honoring thememory of Rev. Peter Sweisgood. Thelegacy of Rev. Peter Sweisgood, now inits 30th year, is an event you won’t wantto miss. Hosted by the Lawyers HelpingLawyers Committee, the dinner will beheld at the Watermill in Smithtown,starting at 6 p.m. on Thursday, April 5.Rev. Sweisgood, a member of the

Benedictine Order, was a recovered alco-holic at the time of his passing in 1989.He was instrumental in assisting manyLong Island professionals afflicted with

alcoholism and sat on many of our pan-els dealing with this syndrome. Hehelped when the Bar Association startedits fledgling Lawyers’ Committee onAlcohol & DrugAbuse Committee in theearly ‘80’s. He was always available formeetings and counseling.The committee takes pride in honor-

ing SCBA’s former Co-Chair of theLawyers Helping Lawyers CommitteeElaine Turley and George Pammer, whowill tell his story.Tickets are $75. For information call the

SCBA office (631) 234-5511. – LaCova

SECURITIES LAWJOHN E. LAWLOR, ESQ.

• Securities Arbitration / Litigation

• FINRA Arbitrations

• Federal and State Securities Matters

• Employment Disputes

• FINRA OTRs

• SEC Investigations

(516) 248-7700129 Third Street • Mineola, NY 11501Email: [email protected]


___________________By James P. O’Connor

As you know, the tax law often re-quires businesses to file information re-turns to report payments made to indi-viduals and other businesses to assist inpreventing tax fraud and to support de-ductions taken on their own tax returns.Specifically, the law requires that payorsfurnish copies of Form 1099-Misc(“F.1099”) to their payees by January 31of the year following payment, and tofile copies with the IRS shortly there-after (from January to March, depend-ing on various factors). However, the in-correct filing of F.1099’s is notuncommon, so a careful review of allF.1099’s prepared and received is cru-cial to avoid future tax problems.You should be aware that anyone with

your social security number or tax IDnumber can file a F.1099 with the IRS toclaim to have paid you a specifiedamount. Common areas ofabuse include, but are notlimited to, alleged paymentsto an ex-spouse, an ex-busi-ness partner, or an ex-friend, namely,situations where the F.1099 was filedwith ill-intent (to cause harm to the re-cipient by forcing them to suffer both thestress of the inquiry and the costs of ob-taining either a proper resolution or forthe tax, penalty and interest assessed on

the bogus amount).While it is illegal to know-

ingly file false F.1099’s, and is-suers face penalties for errors,most penalties assessed applyto the failure to file the forms,not for filing a bogus form. Forinstance, IRC Sec. 6721 pro-vides that penaltiesmay apply ifF.1099’s are filed untimelywithout reasonable cause, con-tain erroneous tax ID numbers, or are notfiled in the correct format (ex., electroni-cally). Similarly, IRC Sec. 6722 providesthat penalties may apply if copies are notgiven to the payee by January 31st with-out reasonable cause, or the report in-cludes erroneous information. The penal-ties for intentional disregard of theseCodesections is currently $1,060 per return.However, IRS enforcement in this

area is lax. To foster compliance, IRSseeks to encourage taxpayers to report

payments to others, andfears that the approach of anaggressive pursuit of falsefilings might have a chill-

ing effect on information reporting ingeneral.Often a phony “payor” will not for-

ward a copy of the F.1099 to you, so youcannot contact the IRS in advance of anaudit and will have no knowledge ofthe discrepancy until you receive the

dreaded IRS notice. Prior tocommencement of any IRSinquiry, the fact of whetheryou actually received theamount reported is an irrele-vant factor to the IRS becauseit must act under the assump-tion that you received the re-ported amount. The issue ofpayment only becomes rele-vant after the service, failing

to match that bogus F.1099 to your taxreturn, contacts you. While you mayprevail in the end, the IRS inquiry is of-ten costly, always stressful, and mostimportantly time-consuming.So, what should you do if you re-

ceive a bogus F.1099? In matchingcases, IRS typically sends the taxpayera CP-2000 notice specifying the missingF.1099 amount and calculating the re-sulting balance due for tax, penalty andinterest. Some steps to take before yourespond to the IRS:• Contact the issuer for a correctedF.1099 (which may work if the is-suer is still in business and actuallymade an honest mistake).

• Send the issuer a demand letterthreatening legal action; and

• Collect evidence to submit to the IRSto prove the amount reported was er-roneous, including copies of all bankstatements and affidavits from knowl-

edgeable third parties (such as ex.,former employees of the “payor”).In addition, the Internal Revenue

Code offers a remedy. IRC Sec. 7434provides that if any person willfully filesa fraudulent information return reportingpayments purportedly made, the recipi-ent has six years to bring a civil actionfor damages against the filer, in anamount equal to the greater of $5,000, orthe sum of any actual damages sustainedas a proximate result of the fraudulentfiling, including any costs attributable toresolving deficiencies asserted, the costsof the legal action, and, in the court’s dis-cretion, reasonable attorneys’ fees.”There are few reported decisions on

private lawsuits over tax reporting (andfewer still with service involvement).But in a recent case,Angelopoulos v Key-stone Orthapedic Specialists, et al, 2018-USTC 50,139 (1/18/2018), the court fo-cused on the damages a person is entitledto recover on a judgement for a bogusF.1099. Here, the plaintiff doctor re-ceived $38,000 from the defendant’smedical practice in 2007, but received aF.1099 reporting payment of $159,000,issued allegedly for spite in their “busi-ness divorce.” After suffering the IRSaudit process and obtaining a successfulTax Court resolution, the doctor sued themedical practice for damages under IRC


’Tis the (Form 1099-MISC reporting) Season…

____________________By Eric L. Morgenthal

In their pursuit of tax debtors, the IRSrecognizes that the chase shouldn’t endat the border. And to contain those flee-ing the country, they have several toolsat their disposal. TheWrit Ne Exeat Re-publica is a collection device detaininga U.S. taxpayer who is about to leaveand had transferred assets abroad toavoid IRS enforced collection. In addi-tion, the Treasury Enforcement Com-munication System (TECS) is main-tained by the Department of HomelandSecurity to identify non-compliant tax-payers seeking to enter or leave the U.S.But recently, the U.S. international taxenforcement system has extended itsreach of administration even further.In December 2015, Congress passed

the Fixing America’s Sur-face TransportationAct. Thisact codified the authority ofthe IRS in new IRC section7345 to trigger the “revocation or denialof a passport in case of certain tax delin-quencies” which exceed $51,000 of com-bined tax, penalties and interest (indexedfor inflation), also known as a “seriouslydelinquent tax debt.” And although inthe statute for nearly two years, the IRS

has recently announced theirintent to commence enforce-ment. To initiate the passportrevocation, the IRS must firsthave filed a Notice of Tax lienand allowed all Collection DueProcess hearing rights to lapseor levied against the taxpayer.Unfortunately, having a caseopen before the Taxpayer Ad-vocate was not delineated inthe statute as an available right that sus-pends enforcement under IRC section7345.To many, this approach to accelerate

tax collection is not new. Under a simi-lar NewYork State Department of Tax-ation provision, debtors may have theirdriver’s license suspended until theirdeficient tax balances are addressed

and/or paid. But this newfederal measure is far morepowerful. It doesn’t merelyrestrict the means of travel

but the right to travel entirely.Pursuant to IRC section 7345, the IRS

must notify the taxpayer in writingwhen they have certified a seriouslydelinquent tax debt to the State Depart-ment via formal Notice CP 508C. Thisleaves the taxpayer with 90 days to con-

tact the IRS about the noticeand address the matter. In thattime, the taxpayer can extin-guish the debt or demonstratethat it was no longer enforce-able. In the alternate, the taxdebt will be considered nolonger seriously delinquent ifcertain safe harbors are met.These include: if an install-ment plan or offer-in-

compromise is established, the Depart-ment of Justice enters into a settlementagreement, collection is suspended un-der innocent spouse provisions or anadjustment is pending which will elim-inate the tax balance owed. However, aspointed out by the Taxpayer Advocate,the IRS notice “lacks any languageabout other situations where tax debtsmay be excluded from the program,such as if the taxpayer is a victim ofidentity theft or qualifies for currentlynot collectible hardship circumstances”and instead, the agency placed that in-formation on its website.If the taxpayer is successful in reach-

ing an arrangement with the IRS, a Re-versal of Certification is provided viaNotice CP 508R within 30 days. If de-nied the only recourse available is judi-

cial intervention through an action ineither Federal District Court or U.S. TaxCourt to request decertification. Notethat IRS administrative remedies suchas a CDPhearing cannot instead be usedto challenge the debt as “SeriouslyDelinquent.” Furthermore, the IRS hasexplicitly stated that merely paying thedebt to below the $51,000 thresholdwon’t bring reversal.As indicated by the IRS, a seriously

delinquent tax debt is limited to liabilitiesincurred under Title 26 of the UnitedStates Code and does not include FBAR(“Foreign BankAccount Report”) Penal-ties or Child Support. However, manyitems reportable under the Foreign Ac-count Tax Compliance Act (FATCA) inTitle 26 align with the FBAR reportingsystem can thus still cause a travel night-mare for taxpayers with those foreigncompliance issues as well.The most feared aspect of the pro-

gram would arise in the event that in-ternational emergency travel is needed.As asserted by the Taxpayer Advocate,IRS Notice CP 508C fails to inform tax-payers that an exception for emergencyor humanitarian circumstances could beprovided but that the taxpayer would


Tax Scofflaws, Going Nowhere FAST

James P. O’Connor

Eric L. Morgenthal

FOCUS ON

TAXSPECIAL EDITION

FOCUS ON

TAXSPECIAL EDITION


_________________By John Shillingsford

It is a well-known fact that closelyheld businesses account for a majorityof the businesses operating in the UnitedStates. It is therefore critical that theclosely held business owner have avail-able viable succession alternatives andan Internal Revenue Code that is tax-payer friendly. Transferring a closelyheld business may be accomplished inmany ways including inter-family trans-fers by gift, estate planning, or out-rightsale to family members.However, in any succes-

sion strategy, the businessshould undergo a formalvaluation. The valuationstandards include various approachesand methods which should be reviewedto determine the most appropriate giventhe industry and other business and op-erational circumstances.When valuing a closely held business,

one must consider the discounts includ-ing the discount for lack or marketability(DLOM) and discount for lack of control(DLOC). It was proposed that these dis-counts be eliminated and the proposed

regulations under Internal Rev-enue Code Section 2704 re-ceived extensive criticismfrom various professional or-ganizations. The discounts arecritical to any valuation andeliminating the discountingprovisions would be over-whelmingly tax burdensome.The United States Departmentof Treasury essentially “killed” the pro-posed regulations on Oct. 2, 2017 afterreceiving numerous comments regard-ing the deficiencies contained therein.

This was a major win for theclosely held business com-munity. These discounts arecritical to the valuation

process and essentially facilitate a fairvalue to the parties involved.Discounting value for the inability to

control or the lack of a readily marketcreates that fair market value that onemight be willing to pay.Now that the DLOC and DLOM are

still available for use in valuations, andthe succession of the family business isstill a primary focus, it is critical that thediscounts be carefully reviewed and ap-

plied. It is through the appro-priately determined discounts,that the transfer of a familybusiness may be accomplishedusing the estate and gift plan-ning provisions of the internalrevenue code.All relevant fac-tors are to be considered in thedetermination of DLOC andDLOM such are the owner-

ship interest, restrictions on sale of own-ership interest, type of business, com-petition, activity in the M&Amarketplace, voting v. non-voting eq-uity positions, and similar attributes.The DLOC and DLOM are multiplica-tive and therefore a 15 percent DLOCand a 15 percent DLOM would equateto a total discount of 27.75 percent.With the recent change in the tax law,

there has been a significant opportunityto transfer family wealth. Effective in2018, the new tax law allows for thetransfer of up to $22 million for marriedcouples to be exempt from estate andgift tax. Although the amount has beenincreased significantly, it does not elim-inate the requirement to have independ-ent appraisals of the assets being trans-

ferred. The requirement for annual gifttax returns remains. Should gift tax re-turns not be filed with all appropriatesupporting documents, the statute of lim-itations will not start to run. It is thereforehighly recommended that appropriatevaluations be performed, and related gifttax returns be filed to preserve the statuteand minimize any exposure to gift or es-tate tax on the assets transferred.The main goal of succession and es-

tate planning is to preserve assets andwealth, while at the same time mini-mize estate and gift tax exposure.The combination of the repeal of the

proposed 2704 regulation changes aswellas the increased estate and gift tax ex-emption provides tremendous opportuni-ties to plan for succession and estate taxes.It is recommended that individuals

review their estate plans and assess anyadditional opportunity to transfer andpreserve wealth.

Note: John Shillingsford, CPA/ABV,CFE is a Partner at AVZ with over 20years of experience. He is an expert inaccounting, auditing, business valua-tions and litigation support services.

Valuation Discounts and the New Tax Law a Recipe for Succession

John Shillingsford

FOCUS ON

TAXSPECIAL EDITION


____________By Lou Vlahos

In the days following the introductionof the bill that would become the TaxCuts and JobsAct (the “Act”)1, my col-leagues teased me, “Lou, what are yougoing to do when Congress simplifiesthe code?”“Simplify,” I responded, as I reached

for the Merriam-Webster’s Dictionarythat I have used since 1980— change isnot always a good thing — “is definedas follows: to make simple or simpler;to reduce to basic essentials; to diminishin scope or complexity; to make moreintelligible.”After reviewing the final version of

the new “20% deduction” for pass-through business entities, one thoughtcame to mind: Congress must not havea dictionary.2

What’s behind the change?Most closely-held businesses are or-

ganized as pass-through entities(“PTEs”).In light of this reality, and

in order to “balance” the 40percent reduction in the cor-porate income tax rate, Congress soughtto bestow some unique tax benefit uponthe non-corporate owners of PTEs inthe form of a new deduction and conse-quently, reduced taxes.3 Thus, the “20%deduction” was born.However, Congress restricted the

availability of this deduction in severalways that could make it difficult formany business owners to enjoy the ben-efit.

PTE basicsAbusiness that is conducted by an in-

dividual through a single-member LLC isgenerally disregarded for tax purposes; itis treated as a PTE, and the owner is taxeddirectly on the income of the business.Abusiness that is conducted by two or

more individuals as a general partner-ship, a limited partnership, or a limited li-ability company, is also treated as a PTE(a partnership) for tax purposes. The PTEis not itself taxable on the income of thebusiness; rather, the partners/membersare taxed on their allocable shares of thepartnership’s business income.A corporation that is formed under

state law, andwhich its shareholders haveelected to treat as an “S corporation,” isnot itself taxable on the income of thebusiness; rather, it is treated as a PTE fortax purposes, and its shareholders aretaxed on their pro rata shares of the cor-poration’s business income.In each of the foregoing situations,

the business income of an individualowner of an LLC-sole proprietorship, apartnership, or an S corporation istreated for tax purposes as though theowner had realized such income directly

from the source from which itwas realized by the PTE.In determining the taxable

business income generated bya PTE, the code allows cer-tain deductions that are “re-lated” to the production ofsuch income, including a de-duction for the ordinary andnecessary expenses that arepaid or incurred by the PTE incarrying on the business.Because business operating income is

treated as ordinary income (as opposed tocapital gain), the taxable business incomeof the PTE is taxed to its individualowner(s) at the ordinary income tax rates.4

New Sec. 199A of the CodeFor taxable years beginning after

Dec. 31, 2017 and before Jan. 1, 2026:5• an individual taxpayer (“Taxpayer”)• who owns an equity interest in a PTE• that is engaged in a qualified tradeor business (“QTB”)

• may deduct up to 20percent of the qualified busi-ness income (“QBI”) allo-cated to Taxpayer from the

PTE.6

Qualified trade or businessTaxpayer’s QBI is determined for

each QTB in which Taxpayer is anowner.7A QTB includes any trade or busi-

ness8 conducted by a PTE other than aspecified service trade or business(“SSTB”).An SSTB includes any trade or busi-

ness involving the performance of serv-ices in the fields of health, law, ac-counting, “consulting,” financialservices, brokerage services, or any tradeor business where “the principal asset ofsuch trade or business is the reputationor skill of one or more of its employ-ees,”9 or which involves the perform-ance of services that consist of investingand investment management, or tradingor dealing in securities.10 However, atrade or business that involves the per-formance of engineering or architecturalservices is not a “specified service.”

Qualified business incomeTaxpayer’s QBI from a QTB for a

taxable year means taxpayer’s pro rataor allocable share of the net amount ofqualified items of income, gain, deduc-tion, and loss that are taken into accountin determining the taxable income ofthe QTB for that year.11Items of income, gain, deduction, and

loss are “qualified items” only to the extentthey are effectively connected with thePTE’s conduct of aQTBwithin theU.S.12“Qualified items” do not include

specified investment-related income,gain, deductions, or loss.13

Taxpayer’s QBI also doesnot include any amount paidto taxpayer by an S corpora-tion that is treated as reason-able compensation for serv-ices rendered by taxpayer.14Likewise, taxpayer’s QBI

does not include any “guaran-teed payment” made by a part-nership to taxpayer for serv-ices rendered by taxpayer to

the partnership.In general, the PTE’s ordinary busi-

ness income, after accounting for theseexpenses, constitutes the QBI thatpasses through to taxpayer.

The deductionIn general,15 Taxpayer is allowed a

deduction for any taxable year of anamount equal to the lesser of:(a) 20 percent of the taxpayer’s shareof QBI with respect to the QTB, or(b) the greater of:16(i) 50 percent of the “W-2 wages”with respect to the QTB,17 or(ii) the sum of:(A) 25 percent of theW-2 wageswith respect to the QTB, plus(B) 2.5 percent of the unadjustedbasis, immediately after acquisi-tion, of all “qualified property.”

The “QBI amount” for the taxableyear is equal to the sum of the “de-ductible amounts” determined for eachQTB “carried on” by Taxpayer througha PTE.18In general, the W-2 wages with re-

spect to a QTB for a taxable year are thetotal wages subject to wage withhold-ing19, plus any elective deferrals of com-pensation, plus any deferred compensa-tion paid by the QTB with respect to theemployment of its employees duringthe taxable year.“Qualified property” means, with re-

spect to any QTB for a taxable year,tangible property of a character subjectto depreciation that is held by, and avail-able for use in, the QTB at the close ofthe taxable year, which is used at anypoint during the taxable year in the pro-duction of QBI, and for which the de-preciable period20 has not ended beforethe close of the taxable year.

Looking aheadIt remains to be seen whether the

“20% of QBI deduction” will be agame-changer for the individual owners

of a PTE.After all, the deduction is subject to

several limitations that may reduce anybenefit. For example, QBI does not in-clude the amount paid by the PTE toTaxpayer in respect of services renderedby Taxpayer. In addition, the losses re-alized in one QTB may offset the in-come realized in another, thereby re-ducing the amount of the deduction.Finally, the deduction is subject to lim-its based upon the wages paid, and thecapital investments made, by the QTB.

Maximizing the deduction?Might the owners of a PTE reduce the

amounts paid to them by the entity fortheir services so as to increase theamount of their QBI and, so the amountof the deduction? Or might a PTE de-cide to invest in more tangible propertythan it otherwise would have in order toset a greater cap on the deduction?

Become a pass-through?What if a business is already organ-

ized as a C corporation? Should theQBI-based deduction tip the scales to-ward PTE status?Before taking any action with respect

to changing its status for tax purposes,a C corporation will have to considermuch more than the effect of the de-duction for PTEs. For example, does iteven qualify as a small business corpo-ration?In any case, a C corporation that is

not otherwise contemplating a change inits tax status, should probably not be-come an S corporation solely because ofthe PTE-related changes under the act,especially if the corporation does notcontemplate a sale of its business in theforeseeable future.That being said, should a sole propri-

etorship consider incorporating as an Scorporation, perhaps to take advantageof the cap based upon W-2 wages?

Wait and see?The 20% of QBI deduction will ex-

pire at the end of 2025, unless it is ex-tended before then.21The tax advisers of an existing PTE

should be considering the economic effectresulting from the application of the newdeduction to the PTE’s owners, basedupon a continuation of the PTE’s and itsowners’ historic course of business.


The New ‘20% of Qualified Business Income’ Deduction

Lou Vlahos

FOCUS ON

TAXSPECIAL EDITION

The Suf folk Lawyer wishes tothank Tax Section EditorJames O’Connor for contribut-ing his time, ef f ort and expertiseto our March issue.


_____________By Joe Campolo

AsStephenR. Covey’s groundbreakingbusiness book “The 7Habits ofHighlyEf-fective People” approaches its 30th birth-day, I still find it to be more relevant thanever, particularlywith regard to becominga more effective negotiator. Rediscoverthis classic or get to know it for the firsttime when preparing for your next nego-tiation. Here ismy take on the seven habitsfrom a negotiator’s perspective:

Be proactiveThis habit acknowledges that we are

all responsible for our own actions.Youneed to keep your focus on the thingsyou can control rather than focus on thenegative and waste time worrying “whatif [insert frightening scenario here] hap-pens?” In a negotiation, the best way tobe proactive is to prepare well before itbegins. Gather as much information asyou can. Brainstorm ways to createvalue. Know your BATNA (best alter-native to a negotiated agreement). Ifyou’re not proactive, you’re playing thegame according to someone else’s ruleswhen you should be writing your own.

Begin with the end in mindRather than script out your next negoti-

ation in a reactiveway—“if shesays this, I’ll respond with this”—imagineyourself andyour ad-versary at the end of the negoti-ation.Whatwin-win scenario doyou envision? Then work back-ward to see howyou can achievethat result. Hint: You’ll need toshowyour opponent that youun-derstand and appreciate her pointof view to get her to open up.

Put first things firstCovey’s time management matrix fo-

cuses on the four quadrants in whichpeople divide their time: dealing withthings that are (1) urgent and important,(2) not urgent but important, (3) urgentbut not important, and (4) not urgentand not important. The theory is thatpeople tend to spend the most time onurgent activities, even if they aren’t im-portant (think: someone’s on the phonefor you right now), at the expense of ac-tivities that are important but not urgent(think: long-term relationship building).The goal is to recognize andmake time

for what’s important, rather than simplylive your life responding to fires that breakout (and they always do). In the negotia-tion context, this means you need to seethe big picture. It’s too easy to get sucked

into spending valuable timehammering out unimportantdetails at the negotiation tablejust because someone bringsthem up and lose focus on whyyou’re there in the first place.Before you begin, make a listof what’s important in the dis-cussion and what you need toprioritize. Refer to it during thediscussion to stay on track.

Think win/winYou’re not going to get too far in your

negotiation if you’re entirely focused on“winning” at all costs.You aremuchmorelikely to reach a workable resolution ifyou and your adversary are both workingtoward a win-win goal, even if you bothhave different ideas of how to get there.You must demonstrate empathy whenhearing out the other side (you are hear-ing out the other side, right?) if you wantto end upwith a solution you can both livewith. Think collaboration, not dominance.

Seek first to understand, then tobe understoodThis habit is perhaps the most vital to

a negotiation.You need to actively listento your opponent, but it doesn’t endthere. You must listen to understand

(“okay, now I know why he’s asking forthat . . . perhaps we could resolve it thisway”), not simply to respond (“I can’tbelieve he said that . . . I’m going to saythis to prove him wrong”). Once again,it comes back to understanding and em-pathy.When your adversary believes youunderstand what’s driving him, he’ll bemore open to seeing things your way.

SynergizeCovey emphasizes that collaboration

always produces a more complete result.Avoid the lowest communication levels— legalese, protectiveness— and strivefor “synergistic” win-win communica-tion. It all goes back to connecting withyour adversary on a personal level andfinding solutions, not “winning.”

Sharpen the sawThis habit focuses on your own well-

being: physical, social, mental and spir-itual. Take care of yourself and always beopen to learning. It’s the only way you’llkeep moving, in a negotiation and in life.

Note: Joe Campolo is the ManagingPartner of Campolo, Middleton & Mc-Cormick, LLP, a premier law firmwith of-fices in Ronkonkoma and Bridgehampton.Contact Joe at [email protected].

CORPORATE

The 7 Habits of Highly Effective . . . Negotiators

Joe Campolo


__________________By Patrick McCormick

Youmay have heard about a new CLErequirement in New York effective thisyear: Diversity, Inclusion and Elimina-tion of Bias.What types of courses doesthe new requirement cover, and howhave your CLE requirements changed?The new requirement applies to expe-

rienced attorneys only – those admitted inNew York for more than two years. Ex-perienced attorneysmust now complete atleast one CLE credit hour in theDiversity,Inclusion and Elimination of Bias cate-gory as part of their biennial CLE re-quirement. This new type of credit doesnot change the total number of CLE credithours experienced attorneys must com-plete each cycle. The requirement remains24 CLE credit hours during each report-ing cycle but is now broken down as fol-lows: at least four Ethics and Profession-alism credits, at least one Diversity credit

and the remaining 19 can befrom any category (Areas ofProfessional Practice, Skills,Law Practice Management,Ethics, or Diversity).Courses offering Diversity,

Inclusion and Elimination ofBias credit started being of-fered in NewYork as of Jan. 1,2018.According to the updatedNewYork CLE Program rules,to qualify for Diversity credit, “courses,programs and activities must relate tothe practice of law and may include,among other things, implicit and explicitbias, equal access to justice, serving a di-verse population, diversity and inclusioninitiatives in the legal profession, andsensitivity to cultural and other differ-ences when interacting with membersof the public, judges, jurors, litigants,attorneys and court personnel.” 22 NY-CRR 1500.2(g).

As with everything CLE-related, the devil is in the de-tails. When does this require-ment take effect?Compliance begins with

those attorneys who are due tore-register on or after July 1,2018 (birthday is on or afterJuly 1). As an example, ifyour birthday is Aug. 15 andyou are due to re-register

within 30 days of your birthday in 2018(by Sept. 14, 2018), you will need tocomplete at least one credit in Diversity,Inclusion and Elimination of Bias bythat date for that registration. But if yourbirthday is June 30 and you are due tore-register this year, you would not needto comply with the new Diversity, In-clusion and Elimination of Bias re-quirement until you re-register in 2020.Newly admitted attorneys (less than

two years), take note: Currently, the Di-

versity, Inclusion and Elimination ofBias requirement is for experienced at-torneys only. In fact, although newlyadmitted attorneys are still encouragedto participate in such programs, theycannot earn any credit in this category.As your source for everything CLE,

the SuffolkAcademy of Law is planninga full calendar of courses offering creditin the Diversity, Inclusion and Elimi-nation of Bias category (we offered ourfirst such course in January). Pleasewatch your email and check our websitefor details on future programming. Asalways, if you have any programmingideas, I’d love to hear them.

Note: Patrick McCormick is a partnerat Campolo, Middleton & McCormick,LLP, a premier law firm with offices inRonkonkoma and Bridgehampton.Email Patrick at [email protected].

DEAN’S LIST

Diversifying New York CLE Requirements

____________________By Jeffrey L. Catterson

NewYork has three typical designa-tions for custody determinations: sole,joint and, the more recent creation,shared. These designations refer to thelegal decision-making and physicalcustody of the child. Traditionally, solecustody would connote one parent hasphysical custody of the child, the othervisitation (now parenting time) and thecustodial parent makes all the majordecisions for the child. Joint custodywould still delineate one parent as hav-ing physical custody of the child, theother visitation (now parenting time),but the parties would jointly make allthe major decisions for the child.Shared custody also has the partiesjointly making all the major decisionsfor the child but with equal, or closethereto, parenting time with the child.For the longest time, a custody dis-

pute was an all or nothing proposition.If the parties could not reach a resolu-tion on their own, the unenviable taskof determining what was in their ownchild’s best interests was left to astranger — the judge. At trial, the courtwas then called upon to determine whowould have physical custody of thechild and who would have the ultimatedecision-making authority regardingmajor decisions affecting the growthand development of the child (i.e.choice of schools, medical treatment,religious issues). Oftentimes, this re-sulted in the non-custodial parent beingpractically omitted from the decision-

making process for his/herchild. On the other hand, ifthe parties could agree andcontinue to co-parent theirchild as if the marriage wasnot dissolved, the partieswould enter in a joint custo-dial arrangement with theparties equally making ma-jor decisions for their child.The Court of Appeals, in

Braman v. Braman 44 N.Y.2d 584, 407N.Y.S.2d 449, 378 N.E.2d 1019(1978), determined that joint custodywould only be appropriate in “the rarecase” and as something to “be encour-aged primarily as a voluntary alterna-tive for relatively stable, amicable par-ents behaving in mature civilizedfashion” (id@ 589-590). In Eschbach,the Court of Appeals later distilled thestandard for determining who theproper custodial parent should be withthe essential considerations in makingan award of custody being defined as“the best interests of the child.” SeeEschbach v. Eschbach, 56 N.Y.2d 167,171 (1982).In interpreting the Eschbach Court’s

standard, the Appellate Divisions tra-ditionally held that an award of jointcustody is the anomaly given that ifthe parties could not agree on this mostsignificant major decision for theirchild, they would likely not be able toagree on major decisions for their childin the future.In stark contrast, a great number of

other jurisdictions favor joint custody

designations (Alabama, Ari-zona, Colorado, Connecticut,Kansas, Nevada, Wisconsin),some jurisdictions going asfar as creating a statutory pre-sumption that joint custody isin the best interest of the child(Florida, Idaho, Iowa,Louisiana, Minnesota, NewHampshire, New Mexico,Texas, Utah Wisconsin and

D.C.). In fact, in 2017, legislatures inmore than 20 states considered billsthat would encourage shared parent-ing or make it a legal presumption —even when the parents disagree.Recently, we have seen a trend in

the Appellate Divisions towards af-firming trial level awards of joint cus-tody, despite the parties’ inability toagree to same, determining that samewould be in the best interests of thechild. See Batista v. Falcon, 48N.Y.S.3d 716, 148 A.D.3d 698 (2ndDept. 2017); Tatum v. Simmons, 21N.Y.S.3d 208, 133 A.D.3d 550 (1stDept. 2015); Johanysm v. Eddeya, 982N.Y.S.2d 30, 115 A.D.3d 460 (1stDept. 2014).Taking the concept of awarding joint

custody one step further, the courtshave now divided the decision-mak-ing process into spheres of decision-making to maximize each parent’sstrengths in furtherance of the child’sbests interest. See, Tatum v. Simmons,21 N.Y.S.3d 208, 133 A.D.3d 550 (1stDept. 2015);Matter of Ann D. v. DavidS., 128 A.D.3d 520, 9 N.Y.S.3d 251

(1st Dept. 2015); Rubin v. Della Salla,107 A.D.3d 60, 964 N.Y.S.2d 41 (1stDept. 2013);Wideman v. Wideman, 38A.D.3d 318, 834 N.Y.S.2d 405 (4thDept. 2007). The Appellate Divisionhas recently even affirmed an award ofjoint legal custody and “spheres of in-fluence” despite the fact the parties hadan “acrimonious relationship.” Eliza-beth S. v. Edgard N., 56 N.Y.S.3d 51,52, 150 A.D.3d 585, 586 (1st Dept.2017); see also, Matter of E.D. v. D.T.,58 N.Y.S.3d 527, 152 A.D.3d 583 (2ndDept. 2017).In a recent Third Department case,

where the parties testified that theywere normally able to communicatefor the benefit of the child, the courtnot only awarded the parties’ joint le-gal custody but also direct a sharedphysical custody of the child. See,Matter of Paluba v. Paluba, 58N.Y.S.3d 719, 152 A.D.3d 887 (3rdDept. 2017).Clearly, we are seeing a trend by the

courts favoring custody determinationspromoting the involvement of both par-ents, not only in the decision-makingprocess for their child, but equally inthe amount of parenting time the childwill enjoy with both parents.

Note: Jeffrey L. Catterson is a partnerat Barnes, Catterson, LoFrumento &Barnes, LLP, with offices in Garden City,Melville and Manhattan and practicesprimarily in matrimonial and family law.He can be reached at [email protected] and (516)222-6500.

FAMILY

What’s in a Name?

Patrick McCormick

Jeffrey L. Catterson


_____________By Andrew Lieb

The Appellate Division, Second De-partment, ruled on an issue of first im-pression in 159 MP Corp. v. RedbridgeBedford, LLC, that commercial tenantsmay waive declaratory judgment reme-dies in their written lease agreementsand as such, landlords can now avoidYellowstone injunctions through care-fully crafting their lease agreements.A Yellowstone injunction, as ex-

plained by the dissent, “implicitly cre-ate[s] a strategic remedy for commercialtenants to preserve their valuable prop-erty interest in the leasehold whenserved with a notice to cure defaultsthat are in dispute. By obtaining an in-junction staying the running of the cureperiod prior to its expiration, a tenantcould adjudicate the merits of the al-leged lease default and, even if the ten-ant was ultimately found in default, itcould still utilize the unexpired cure pe-riod to avoid lease termination.” Now,landlords can avoid this strategic rem-edy held by commercial tenants and boxsuch tenants into a summary proceedingas their only form of judicial redress,which ironically a lessee faced with anotice to cure “has no standing tobring.”The operative lease rider language

before the court was as follows:Tenant waives its right to bring a de-

claratory judgment action with respectto any provision of this lease or with re-

spect to any notice sent pur-suant to the provisions of thislease.Any breach of this para-graph shall constitute a breachof substantial obligations ofthe tenancy and shall begrounds for the immediate ter-mination of this lease. It is fur-ther agreed that in the eventinjunctive relief is sought bytenant and such relief shall bedenied, the owner shall be entitled to re-cover the costs of opposing such an ap-plication, or action, including its attor-ney’s fees actually incurred, it is theintention of the parties hereto that theirdisputes be adjudicated via summaryproceedings.As background, the case before the

Appellate Division involved a 20-year“Standard Form of Store Lease” for asupermarket and “a nearly identical”20-year lease for a “supermarket acces-sory storage.” Both leases contained 10-year options as well. The operative leaselanguage appeared in a lease rider.Approximately four-years into the

lease term, the landlord served the ten-ant with a “Ten (10) Day Notice to CureViolations” setting forth seven breachesconcerning tenant’s “failure to obtainvarious permits, the arrangements of thepremises in a manner that created firehazards, the existence of nuisances andnoises, and the failure to allow for sprin-kler system inspections by the Fire De-partment.” Further, the Notice to Cure

provided that landlord wouldterminate the tenancies if thetenant failed to cure thebreaches within 15 days. Inresponse, tenant commencedan action “for declaratory andinjunctive relief, and to re-cover damages for breach ofcontract.” Thereafter, tenanttimely moved for a Yellow-stone injunction, while ob-

taining a temporary restraining order.In response, the landlord cross-movedfor summary judgment. The SupremeCourt granted summary judgment.In affirming the Supreme Court, the

Appellate Court held that the operativelease language unequivocally expresseda clear waiver of the right to a declara-tory judgment action. Further, the Ap-pellate Division held that such operativelease language was valid as a matter ofpublic policy. In supporting this affir-mance, the court stated three independ-ent rationales, including that freedomof contract is constitutionally protected,that certain lease provisions cannot bewaived and declaratory judgment ac-tions do not constitute such a provision,and that the tenant never submitted ev-idence in the record on appeal of theprecise consideration that it received inconsideration of the subject waiver pro-vision so a finding of unconscionabilitycannot be reached.Then, in pointing to the lease lan-

guage that states “it is the intention of

the parties hereto that their disputes beadjudicated via summary proceedings,”the Appellate Division held that awaiver of declaratory judgment rightsprecludes Yellowstone relief. In reach-ing this conclusion, the court explainedthat since a “Yellowstone injunctionsprings from the declaratory judgmentaction that gives rise to it,” if no de-claratory judgment action is available,no Yellowstone injunction is likewiseavailable. Nonetheless, the court lim-ited its holding to Yellowstone reliefand expressly noted that “breach of con-tract actions commenced by tenants lendthemselves to standard injunctive reme-dies under CPLR article 63.”Moving forward, all landlord’s coun-

sel should include a provision in theirleases mirroring the operative lease lan-guage from 159 MPCorp. v. RedbridgeBedford, LLC. Still further, it would bewise for landlord’s counsel to expresslyset forth broad consideration for thewaiver of declaratory relief so that it isnot subject to unconscionability analy-sis. In all, the era of Yellowstone in-junctions will soon be behind us.

Note: Andrew M. Lieb is the Manag-ing Attorney at Lieb at Law, P.C., a lawfirm with offices in Center Morichesand Manhasset. Mr. Lieb is a past Co-Chair of the Real Property Committeeof the Suffolk Bar Association and isthe Special Section Editor for RealProperty in The Suffolk Lawyer.

REAL ESTATE

The End of Yellowstone Injunctions

Andrew Lieb

____________By Paul Devlin

At a recent deposition, my client ad-mitted that she prepared a written state-ment for her insurance carrier regardingthemotor vehicle accident that is the sub-ject of a personal-injury suit. She furtheradmitted that she reviewed her report inpreparation for the deposition as a defen-dant in that suit. Opposing counselpromptly called for production of thewrit-ten statement. In response, I objected onthe basis that thewritten statement is priv-ileged. See my previous article regardingprivileged communication between in-surance carriers and their insureds pub-lished in the October 2017 edition of TheSuffolk Lawyer. See also Finegold v.Lewis, 22 A.D.2d 447 (2nd Dep’t 1965);Weiser v. Krakowski, 90A.D.2d 847 (2ndDep’t 1982); and Schneider v. Schneider,94A.D.2d 700 (2nd Dep’t 1983)Opposing counsel retorted to my ob-

jection by asserting that any privilege hadbeenwaived by the fact that my client re-viewed her written statement in prepara-tion for litigation. I did not withdraw my

objection but wondered, couldmy client have possiblywaivedthe privilege merely by re-viewing the document?This article is a review of

the law governing the follow-ing two issues: whethermerely reviewing a documentin preparation for a depositionrenders the document discov-erable; and whether review of a privi-leged document in preparation for adeposition renders the privilege waived.As a general rule, any writing that is

used to refresh recollection for testimonymay be inspected by opposing counseland may be used to test the credibility ofthe witness. This is based on the theorythat once the witness’ recollection hasbeen refreshed, he testifies thereafter asa result of such refreshed recollection.This right of inspection has been held toapply to writings consulted by a witnesswhile on the stand at trial (see People vGezzo, 307 NY385 [1954]) as well as tothose writings consulted before trial. SeeDoxtator v Swarthout, 38 AD2d 782;

Alfredsen v Loomis, 148NYS2d 468 (N.Y. Sup. Ct.1956). As the court stated inAlfredsen, at page 470: “Thetime when the memorandum .. . was referred to by the wit-ness, whether at the trial or ex-amination or prior thereto,would seem unimportant . . .The important fact is that it

was used by him to refresh his recollec-tion and that it accomplished that pur-pose. Certainly, the risk to an adversaryis precisely the same whether the witnessrefreshes his recollection by consultinga writing before trial, as in the instantcase, or by consulting it while on thewitness stand during trial.” See also NYCPLR 3113(c) which provides that“[e]xamination and cross-examinationof deponents shall proceed as permittedin the trial of actions in open court.”When the document used to refresh a

witness’recollection is privileged, it pres-ents a conflict with the disclosure rule setforth above. This issue was addressed inthe case of Fields v First Liberty Ins.

Corp., 2012 N.Y. Misc. LEXIS 5314,*5-7, 2012 NY Slip Op 32795(U) (N.Y.Sup. Ct. 2012). First, the court citedCPLR 4503(a) which states that a privi-lege exists for confidential communica-tionsmade between attorney and client inthe course of professional employment.The court additionally cited to CPLR3101(b) which vests privileged matterwith absolute immunity (also citing Spec-trum Sys. Intl. Corp. v Chemical Bank,78 NY2d 371, 377, [1991]. The FieldsCourt went on to state that although thereis a strong public policy in favor of fulldisclosure, a party seeking to withholddiscovery on the ground of privilege hasthe burden of proving each element of theprivilege asserted (citing id.; Matter ofPriest v Hennessy, 51 NY2d 62, 409N.E.2d 983, [1980], andKoump v Smith,25 NY2d 287, [1968]). Thus, the FieldsCourt held, “where a party alleges thatdocuments sought for production and in-spection are shielded from disclosure bythe attorney-client privilege, the partyseeking to withhold such documents has

PERSONAL INJURY


Does Reviewing a Privileged Document in Preparation for an EBTWaive Privilege?

Paul Devlin


________________By Renée G. Pardo

This is the third article in a series.

This final article in the series focuseson sentencing of AO’s JO’s and YO’sunder the new law, diversion servicesthat will now be required, and changesto the criminal law that go beyond thechange of age of juvenile jurisdiction.The new law creates a new category

of offender who is 16 at the time theycommit a felony (effective Oct. 1, 2018)and 17, (effective Oct. 1, 2019) calledan “AO” or adolescent offender. “JO’s”remain a person, 13, 14, or 15 years ofage who commit at least one felonylisted in the Penal Law Section 10.00(18). These crimes are both age de-pendent and crime dependent.

Sentencing AO/JO/YOAn AO or JO who is sentenced as a

youthful offender and is under 21 at thetime of sentencing, shall be committedto an Office of Children and FamilyServices Secure Facility except that anAOwho is sentenced to one-year or lessmay be ordered to serve the sentence ina specialized detention facility for olderyouth certified by Office of Childrenand Family Services and Commissionof Correction and operated by a county

or counties. PL Section 70.20(4)(A) (emphasis added).An AO or AO adjudicated

YO who receives a determi-nate or indeterminate sentenceshall be committed to the De-partment of Correctional Serv-ices. If the defendant is under18 at sentencing he or she maybe placed in a DOCS operatedadolescent offender facility. PL Section70.20(4) (A-1)

Local correctional facilities foradolescent offendersA16 or 17-year-old committed to the

custody of the sheriff must be held in aspecialized secure juvenile detention fa-cility for older youth certified by OCFSand the Commission of Correction. CPLSection 510.15 (1) and counties are re-sponsible for detention of alleged/con-victed adolescent offenders in a spe-cialized secure detention facility forolder youth certified by OCFS with spe-cially trained staff. This facility shallbe jointly administered by the county’sdetention agency and the sheriff. CountyLaw 218-A (6)

Vehicle and Traffic Law sentencesA16-year-old (effective Oct. 1, 2018)

or a 17-year-old (effective Oct. 1, 2018)

who commits a V&T misde-meanor, who is sentenced toimprisonment and is under 21at the time of sentencing shallbe committed to a specializedOCFS/State Commission ofCorrection secure detention fa-cility for older youth. PL Sec.70.20 (4) (A-1)

AO sentencesAn AO may not be sentenced to life

in prison without parole. PL Section70.00(5). The court shall sentence anAO to any sentence (other than above)authorized to be imposed on an adult de-fendant, but the court shall “considerdefendant’s age in its discretion” at sen-tencing. PL Sec. 60.10-A

Diversion servicesIt appears that cases removed from

the Youth Part to Family Court will beeligible for court ordered diversion serv-ices administered through the Depart-ment of Probation as currently occurs inFamily Court. CPL Sec. 722.21 (3) (B);CPL Sec. 722.21 (4).Youth Part defendants (AO/JO) will

be eligible for voluntary probation-basedservices or referrals, which may includealcohol, substance abuse or mentalhealth treatment. These services shall

continue if case is removed to FamilyCourt. CPL Sec. 722.00 (1), (2).

Family Court jurisdiction wheredefendant/respondent was 16 or17 at time crime was committedJO and AO cases transferred from

Youth Part to Family Court, includingmisdemeanors and violations charged aspart of the same criminal transaction asthe JO/AO Felony will be under familycourt jurisdiction. FCA Sec. 301.2 (1).Misdemeanors (except V&T misde-

meanors) and violations committed aspart of the same criminal transaction un-der FCA301.2(1) will be commenced inFamily Court. Felonies will be com-menced in Youth Part of theSupreme/County Court.

Designated felonies in Family CourtAll designated felonies listed in FCA

301.2(8) remain the same, however theage is raised to 16 and 17 as it is phasedin. It should be noted that for a personwho commits a crime at 16 or 17, to beadjudicated a JD for a designated felony,the charge must have been originated inthe Youth Part and then transferred toFamily Court because no felony actcommitted by a person at age 16 or 17may be initiated in Family Court.

CRIMINAL AND FAMILY


Understanding Raise the Age — Dispositions, Victims, Placements and Extensions

______________________By Ilene Sherwyn Cooper

Examination of WitnessesPursuant to SCPA 1404Before the Surrogate’s Court, Nas-

sau County, in In re Biondo, was a pro-bate proceeding in which the respon-dent sought the examination of anattorney who purportedly assisted theattorney draftsperson in the preparationof the propounded will. Prior to makingthe motion, the respondent had engagedin the examination of the attorneydraftsperson and the two attesting wit-nesses to the instrument.The decedent died survived by two

sons, one of whomwas the proponent ofthe will, and the other, who was the re-spondent. In pertinent part, the instru-ment contained an in terrorem clause di-recting the forfeiture of the bequeststhereunder in the event a beneficiaryopposed or contested its validity.In support of his motion, the respon-

dent attached excerpts from the SCPA1404 transcripts of the draftsperson,who stated, inter alia, that another at-torney in his firm had been involved inthe drafting of the will, had preparedmultiple memorandums and e-mails re-garding the decedent’s estate plan, andwent over proposed changes to the in-strument with her. In view thereof, the

respondent, citing SCPA1404(4), argued that the attor-ney had information of sub-stantial importance or rele-vance to his decision to fileobjections to probate. Further,relying on the provisions ofSCPA 1404 (6), the respon-dent maintained that the at-torney was a person withwhom the testator communicated re-garding the provisions of her will.The court noted that, pursuant to

SCPA 1404(4), where a will containsan in terrorem or no contest clause, anyparty to the proceeding may, upon ap-plication to the court based upon specialcircumstances, examine any personwhose examination the court determinesmay provide information with respect tothe validity of the will that is of sub-stantial importance or relevance to a de-cision to file objections. Further, thecourt observed that SCPA 1404(6) ad-ditionally provides, inter alia, that “ifmore than one person shall have beeninvolved in the preparation of the will,the term ‘person who prepared the will’shall mean the person so involved towhom the testator’s instructions forpreparing the will were communicatedby the testator.”With the foregoing in mind, the court

concluded that the attorneywhose examinationwas soughtwas intimately involved in dis-cussions pertaining to the dece-dent’s estate plan, and changesthereto, and thus, could haveinformation of substantial im-portance to the respondent’s de-cision to file objections. Ac-cordingly, respondent’s motion

was granted.In re Biondo, N.Y.L.J., Dec. 11,

2017, at p. 31 (Sur. Ct. NassauCounty).

Waiver and Consent to ProbateIn In re Weiss, the Surrogate’s

Court, New York County, was con-fronted with a motion by a paternalfirst cousin of the decedent to set asidehis waiver and consent to probate. Therecord revealed that the decedent diedwith a will that left his entire estate toa non-relative. His sole surviving heirswere two paternal first cousins, oneof whom had signed the subject waiverand consent. The waiver form was sentto the movant by petitioner’s counselaccompanied by a copy of the pro-pounded instrument. Though he signedthe document, he subsequentlyclaimed that he did so without the ad-vice of independent counsel, and with-

out understanding its legal ramifica-tions. He further claimed that had heknown that he would be barred fromconducting pretrial discovery upon ex-ecuting the waiver, he never wouldhave done so.The court observed that a party seek-

ing to set aside a waiver and consentmust make a showing of good cause,that is, circumstances such as fraud, col-lusion, mistake or accident. Addition-ally, a party seeking such relief mustdemonstrate a reasonable probability ofsuccess on the merits, and that the par-ties can be returned to the status quo.Nevertheless, where a probate decreehas not yet issued, a more relaxed stan-dard may apply in order to avoid injus-tice. (citing Matter of Frutiger, 29 NY2d143, 150 (1971); In re Morse, NYLJ,May 19, 1998, at 25, col. 5 (Sur. Ct.New York County).The court held that the fact that the

movant did not seek legal guidance be-fore signing the waiver did not, by itself,warrant setting it aside. Indeed, thecourt noted that a party is charged withknowledge of the contents of a waiveras well as its legal effects, and thus, afailure to understand or appreciate thesignificance of a waiver does not con-stitute sufficient cause to permit its

TRUSTS AND ESTATES UPDATE


Renée G. Pardo

Ilene S. Cooper


_____________________By Lisa Renee Pomerantz

The Suffolk County BarAssociation ADR and Federal CourtsCommittees sponsored a Lunch andLearn CLE program on Feb. 15, witha presentation by Robyn Weinstein,Esq., ADR Coordinator for the U.S.District Court forthe EasternDistrict of NewYork that hascourthouses inBrooklyn andCentral Islip. Theprogram was ofinterest to neutralsas well as litiga-tors, as Weinsteindiscussed the use of ADR in EasternDistrict cases and applicable proce-dures and opportunities to serve asneutrals.The Eastern District is one of the

few federal districts with its ownADR Coordinator. Other districts relyon a judge or court clerk to performthese functions. The Eastern Districtmagistrates see their role as to shep-herd the resolution process throughsettlement conferences or referrals ofcases to arbitration or mediation.Unlike in the Southern District

mediation program, mediators on theEastern District Mediation Panel arecompensated (at a discounted rate)for their service, earning $600 for thefirst four session hours and $250 perhour thereafter. There is no compen-sation for preparation time. Partiesmay select a neutral who is not on thepanel, but will have to pay whateverthe applicable charges are.Weinstein’s office assists the par-

ties referred to mediation in selectingan appropriate neutral. There are alsoextensive quality control measures, asparties in every mediated case areexpected to complete a mediator eval-uation form. Over 60 percent of casesreferred to mediation settle. Evenwhere mediation does not fullyresolve cases, however, it can help theparties narrow the issues.Weinstein also discussed the Eastern

District’s mediation advocacy pro-gram where lawyers volunteer to rep-resent pro se plaintiffs in employmentcases. She mentioned that ethicalissues can sometimes arise from suchlimited representation arrangements.

Note: Lisa Renee Pomerantz is abusiness and employment attorney inSuffolk County, New York. She is on

the Commercial, Employment andConsumer Panels for the AAA and theEDNY Mediation Panel and repre-

sents clients in settlement discus-sions, mediations and arbitrations.She is Co-Chair of the Suffolk

County Bar Association ADRCommittee. Lisa can be reachedat (631) 244-1482.

ADR

ADR in the U.S. District Court for the Eastern District

Lisa Pomerantz


____________________________By Alan E. Weiner CPA, JD, LL.M.

Tax simplification it’s not! In 2015,Congress enacted the Bipartisan BudgetAct of 2015 (Act) which included an en-tirely new way for the Internal RevenueService to audit partnerships. Suffice itto say that almost whatever area of thelaw in which you practice, this new lawwill affect your advice to your clients.As you would expect, all tax attorneyswill need to be intimately familiar withthe provisions of the ‘partnership taxaudit’ law (or at least recognize the needto research an answer). But other attor-neys who will need to recognize theneed for advice in this area will includeattorneys specializing in matrimonial,estate and trusts, real estate, bankruptcyand restructuring, corporate, forensicand valuation, et al, areas.The act introduced an entirely new

method for the InternalRevenueService toperform tax examinations of partnerships(including limited liability companies andlimited liability partnerships).The effectivedate of the new law was January 1, 2018.In a nutshell, but subject to many ex-

ceptions, if the IRS determines a defi-ciency at the partnership level, the IRSwill be permitted to assess a tax, at thehighest tax rate, against the partnershipinstead of allocating the deficiency pro-portionately to each partner.

Partnership agreements• Future agreements or agree-ments in processThe attorney should decide how the re-

sults of future IRS audits should be han-dled.Aswill be said throughout the article,the rules are in a state of flux at the currenttime because regulations proposed by theIRS have not yet been finalized. Some at-torneys are taking await and see approachand others are trying to draft language thatwill implement the will of the partners,but which language can be changed if theproposed rules change. IRS officials havestated publicly that they are trying veryhard to finish the final rules by the summer.

• Existing agreementsSome attorneys recommend amend-

ing agreements now and others have notrushed to advise clients to amend exist-ing agreements. It’s a conundrum forthe clients who have to make the finaldecision whether to wait and see or actnow. Analogize to the doctor who willgive the patient the pros and cons of anoperation but will stop short of overtlyadvising the patient one way or theother. The attorney is the doctor in thiscase.The 2017 Tax Cuts and Jobs Act

(TCJA)1 may complicate the optionsavailable to the partnership and also com-plicate the job of the draftsman. For ex-ample, some provisions of the act sunsetDecember 31, 2025 at which time, unless

Congress acts, beginning in2026 those provisions revertto the pre-2018 tax law.…and what if the partners

cannot agree as to how tohave the tax paid? That’s thelawsuit waiting to happen.

Partnership AgreementConsiderations-Tax Pay-ment Possibilities• The partnership paysThe partnership can elect, within 270

days of the notice of proposed partner-ship audit adjustment, to submit infor-mation to the IRS to modify the adjust-ment. For example, income allocated totax exempt partners could reduce thepartnership tax. Further, if a partner is anindividual, an adjustment to the capitalgains tax rate would be in order.Also, re-viewed year partners (i.e. partners whowere partners for the year under exami-nation) might agree (or might be re-quired to agree by the partnership agree-ment) to pay the tax on their allocatedincome by filing an amended tax returnfor the reviewed year. That allocated in-come would reduce the partnership’s taxliability.

• The partnership doesn’t paySubject to a limitation in the partner-

ship agreement, the partnership couldelect to “push out” the adjustments tothe reviewed year partners. The elec-tion must be made within 45 days of thedate of the notice of final partnership ad-justment. A downside to the ‘push out’election is that partners will pay an in-terest rate at a 2 percent higher rate thanif the partnership paid the tax.While it is equitable to cause the re-

viewed year partners to pay the defi-ciency, a failure to do so will result in thecurrent partners (who may be differentfrom the reviewed year partners) beingresponsible for the additional tax cost.While that may be viewed as unfair, it’sno different than the current sharehold-ers of a corporation being affected by acorporate deficiency for a year in whichthey were not shareholders.

The partnership representativeThis is a new term of art. This person

has the sole and binding IRS audit deci-sion authority (which cannot be limitedby the partnership agreement) on thepartnership and its partners. The part-nership representative does not have tobe a partner. The partnership must des-ignate, on the partnership tax return, apartnership representative for each year.Although not recommended, the part-nership representative can be differenteach year. The partnership representa-tives surely will want indemnificationfor their actions to avoid or mitigate theaction of a disgruntled partner.

Some partnerships canelect out of the new rules2This election can be tricky.

It’s available to “eligible part-nerships” (a term of art) with100 or fewer “qualifying part-ners.” Counting to 100 is notstraight forward. It’s based onthe number of K-1s but, e.g., ifone of the partners is an S cor-poration, each shareholder’s

K-1 counts against the 100.The S cor-poration must provide the partnershipwith detailed information about eachshareholder and a reluctant shareholdermay not want the partnership to havethat information.The election is an annual election. It

must be made on a timely filed return in-cluding extensions. It is made by at-taching a statement to the tax returnwith the name of each partner; the Tax-payer Identification Number (i.e., thetaxpayer’s employer identification num-ber or social security number, whicheveris applicable); the type of taxpayer (i.e.,individual, S corporation, or other qual-ifying entity); and if an S corporation,enumerated detailed information foreach shareholder. The partnership mustnotify each partner of the election within30 days of making the election. By mak-ing the election, the partnership is af-firming that all of the partners have metthe eligibility requirements.Failure to make the election means

that the partnership will be subject to thenew rules no matter how small the part-nership is.“Qualifying partners” do not include

single member entities (e.g., one-ownerLLCs) resulting in a partnership with asingle member limited liability companyas a partner being subject to the newrules and not being able to elect out (un-less the final regulations remove thislimitation); however, an S corporation isa qualifying partner even if one or moreof its shareholders is not a qualifyingpartner. Final Reg. 301.6221(b)-1(b)(3)(iv), example 2.Also, not considered as an ‘eligible

partner’ are partnership owners andgrantor and revocable trusts.Even a partnership electing out of the

new rules must appoint a partnershiprepresentative.

State tax ramificationsExcept for a few states, no state has

enacted laws to cope with the adjust-ments under the new regime. The Mul-tistate Tax Commission (MTC) is in theprocess of drafting a uniform partner-ship audit adjustment proposal to copewith the results of federal partnershiptax audits. In the latest draft, one of itsproposals would require the partnershipto pay the additional state tax on behalfof its nonresident partners. States arenot required to enact a statute that would

be as suggested by the MTC. NewYorkState, tax wise, usually has gone its ownway. It remains to be seen what the re-sult will be.

Frequently Asked QuestionsCaution: The IRS often issues FAQs

(with answers) on its official website.Although no FAQs have been publishedto date on the partnership audit regime,be aware that FAQs do not constitute of-ficial guidance in the tax world and canbe rejected by the IRS in the course ofa tax examination.

Not Covered in This Article• Multi-tier partnerships. See REG-120232-17 and REG-120233-173

What happens when the partnership nolonger exists?

• ATechnical CorrectionsAct that wasproposed in 2016, and that was ex-pected to pass in 2017, has not yetbeen enacted.4

• The election to apply the new rules toa tax year before Jan. 1, 2018 — SeeIRS Form 7036, Election under Sec-tion 1101(g)(4) of the BipartisanBudget Act of 2015.

• International issues. See REG-119337-17 issued Nov. 30, 2017.5

• Adjusting tax attributes to take intoaccount partnership adjustments atthe partnership and partner levels.6

• Conflicts of interest for the attorneyrepresenting the partnership and oneor more partners.

• The issue of ‘accidental partnerships,’i.e., the client doesn’t think that it isa partnership (and does not file a part-nership tax return) but the IRS deter-mines that it is a partnership.

• Consideration for increased attorneymalpractice insurance coverage dueto these new rules.

• Effect on financial statements.• Exempt organizations as partners inpartnerships.Although for the most part the cen-

tralized partnership audit regime willfirst apply to 2018 partnership returns,there are many references to it in the2017 Instructions for Form 1065, U.S.Return of Partnership Income.7The new regime is effective for audits

of partnership tax returns filed for taxyears beginning on or after Jan. 1, 2018.The 2018 partnership tax returns are notdue until Sept. 15, 2019, including ex-tensions. IRS audits of those tax returnswill not commence until, at the earliest,sometime in 2020.Many questions remain, and profes-

sional legal and accounting organiza-tions have filed comments with the IRSand the Department of Treasury aboutthe proposed regulations. On Sept. 18,2017, a hearing was held at the IRS of-fice in Washington, D.C. Practitionerwitnesses had the opportunity to dis-

TAX


Top Ten List of Why Attorneys Need to Be Concerned About Partnership Tax Audits

Alan E. Weiner


_______________By Ellen Krakow

The Suffolk Pro Bono Project ispleased to honorWilliamTimmons as itsPro Bono Attorney of the Month. Mr.Timmons joined the Project in 2016. Itis his exemplary performance on hismost recent matrimonial referral, in-volving over 50 hours of work and end-ing with a substantial financial recoveryfor his client, a domestic violence sur-vivor, that has earned him this distinction.A native of Long Island, William

Timmons attended college at SUNYStony Brook. He graduated with a BAin Humanities. He attended law schoolin California and obtained his JD in2006 from Western State University.While in California, Timmons internedfor the Honorable Margaret R. Ander-son, a civil and criminal court judge.Several years ago, Mr. Timmons re-

turned to the East Coast and opened hiscurrent law office in Sayville. His civillitigation practice includes matrimonialmatters. He is admitted to the federalcourts and is a member of the 18b panelhere in Suffolk County. Timmons looksback on this decision to start a solo prac-tice as an inevitable next step in his le-gal career. “I gravitate toward inde-

pendent thinking and am generally self-taught,” says Timmons. The aspect ofhis practice he most enjoys is “helpingpeople navigate successfully throughdifficult situations and circumstances.”The least enjoyable parts for Timmonsare the billing and business end.The Pro Bono Project was a natural fit

for William Timmons. His decision toattend law school arose, in part, from adesire to work for social justice, a con-cern he shares with his wife who is aregistered nurse and native of the re-mote island, St. Vincent & theGrenadines. He is grateful for the op-portunities the Project provides to fightfor accountability and justice for his se-verely disadvantaged clients. Whenasked why he will continue acceptingthe Project’s referrals, Timmons ex-plains, “If justice is just a moniker forthose who can afford it, then the conceptof justice is just a myth.”Timmons believes he has personally

and professionally gained from accept-ing his pro bono referrals. “My probono cases placed me in opposition tohigh profile law firms in NewYork Cityand Long Island,” he said. “Exposure tothese polished and professionally eliteattorneys sharpened and enhanced my

own skills.”Mr. Timmons and his wife have four

sons and live in Suffolk County. In ad-dition to being an accomplished attor-ney, he describes himself as “patentlyobscure musician of the singer/song-writer variety.”In light of the great work he has done

for our clients and his demonstratedconcern for social justice, it is with greatpleasure that we honor William Tim-mons as our Pro Bono Attorney of theMonth. We look forward to our contin-ued work together on behalf of those inneed for many years ahead.

The Suffolk Pro Bono Project is a jointeffort of Nassau Suffolk Law Services, theSuffolk County Bar Association and theSuffolk County Pro Bono Foundation, who,for many years, have joined resources to-ward the goal of providing free legal assis-tance to Suffolk County residents who aredealing with economic hardship. NassauSuffolk Law Services is a non-profit civil le-gal services agency, providing free legal as-sistance to Long Islanders, primarily in theareas of benefits advocacy, homelessnessprevention (foreclosure and eviction de-fense), access to health care, and servicesto special populations such as domestic vi-olence victims, disabled, and adult homeresident. The provision of free services isprioritized based on financial need andfunding is often inadequate in these areas.Furthermore, there is no funding for thegeneral provision of matrimonial or bank-ruptcy representation, therefore the demandfor pro bono assistance is the greatest inthese areas. If you would like to volunteer,please contact Ellen Krakow, Esq. 631 232-2400 x 3323.

Note: Ellen Krakow is the Suffolk ProBono Project Coordinator for NassauSuffolk Law Services.

PRO BONO

Pro Bono Attorney of the Month - William Timmons, Esq.

_________________By Leo K. Barnes Jr.

In a recent decision by Southern Dis-trict Judge Katherine Forrest in Else-vier Inc. v. Doctor Evidence, LLC, 17-CV-5540 (S.D.N.Y. 2018), the courtanalyzed a common obstacle to the suc-cessful prosecution of a trade secretclaim: eclipsing the characterization ofthe subject information as merely “con-fidential information” so to achieve“trade secret” status and the correspon-ding protections afforded the same.

Procedural historyOn July 7, 2017, Elsevier, Inc. (El-

sevier) filed a one-count complaintagainst Doctor Evidence, LLC (DoctorEvidence) for breach of contract inconnection with the parties’ Profes-sional Services Agreement (PSA). Af-ter Doctor Evidence filed an answerand asserted four counterclaims, Else-vier moved to dismiss the second, thirdand fourth counterclaims for unjust en-richment, conversion liability pursuantto the Defense of Trade Secrets Act(DTSA) (18 U.S.C. 1831, et seq.). Af-ter the motion to dismiss was filed,Doctor Evidence filed amended coun-terclaims for breach of contract, a vi-olation of the DTSA, misappropria-tion of trade secrets1 under New York

State common law (in lieu ofthe state law conversionclaim) and unjust enrich-ment. The court evaluatedthe Elsevier’s motion to dis-miss against the amendedcounterclaims.

Factual backgroundAccording to the complaint,

Elsevier is one of the world’smajor providers of scientific, technicaland medical information and describeditself as an “international multimediapublishing business with over 20,000products for education and professionalscience and healthcare communitiesworldwide.” Defendant Doctor Evi-dence “utilizes its proprietary integratedsoftware platform in evidence-basedmedicine . . . decision-making to, amongother things, assist in data abstractionand analysis regarding clinical studies.”In July 2014, Elsevier and Doctor

Evidence entered into the PSAwherein Doctor Evidence was re-tained to utilize its “proprietary soft-ware to abstract and configure datafrom systematic reviews” in connec-tion with Elsevier’s articles. DoctorEvidence alleged that, pursuant to thePSA, Elsevier was obligated to holdcertain information that Doctor Evi-

dence provided to it in con-fidence and likewise agreedto use such information“only for the purposes ofproviding or receiving thebenefit of the services pro-vided under the PSA.” Doc-tor Evidence further allegedthat the parties engaged inmultiple teleconferences re-lating to the PSA, but

claimed that the conversations were a“pretext” for Elsevier to gain accessto the information for the purpose ofElsevier “developing its own prod-ucts and services” including those thatcompete with Doctor Evidence’sproducts and services. Doctor Evi-dence alleged, in essence, that Else-vier asked it questions outside thescope of the PSA that were unneces-sary in order to learn Doctor Evi-dence’s alleged trade secrets.Doctor Evidence delineated nine cat-

egories of alleged confidential informa-tion it provided to Elsevier and whichallegedly warranted trade secret protec-tion including:• information relating to a set of ini-tiatives launched by Doctor Evi-dence to improve communicationamong segments of the “healthecosystem;”

• clinical methods relating to execut-ing projects and related protocolsand information;

• data configuration protocols andmethods;

• interpretation of data;• processes to assess the quality ofevidence and how to execute it;

• assessments of the risk of bias of ev-idence based on the funding source;

• analytics tools and programming;• the ontology process involving a“unique and proprietary processfor ‘binding’ (involving collect-ing original terms in a publica-tion, and binding the like termsand synonyms to that originalterm);” and

• database field names, parametersand database scheme informationembedded within the summaries de-livered to Elsevier.

The court’s determinationBefore addressing Doctor Evi-

dence’s trade secrets counterclaims,District Judge Forrest made quickwork of the fourth counterclaim forunjust enrichment and dismissed thesame based upon the well-establishedrule of law that where a contract gov-erns a parties’ relationship, no claim

COMMERCIAL LITIGATION

Overcoming the Stigma of Mere Confidential Information in Trade Secret Litigation

William Timmons

Leo K. Barnes



________________By Craig D. Robins

A memorable scene in the 1968movie classic, “The Producers,” star-ring Zero Mostel and Gene Wilder(which later became a smash Broadwayshow) depicts Max Bialystock and LeoBloom discovering a way to flim-flaminvestors and retire wealthy.BIALYSTOCK: You were saying

that under the right circumstances, aproducer could make more money witha flop than he could with a hit.BLOOM: Yes, it’s quite possible.BIALYSTOCK: You keep saying

that, but you don’t tell me how. Howcould a producer make more moneywith a flop than with a hit?BLOOM: It’s simply a matter of cre-

ative accounting. Let us assume, just forthemoment, that you are a dishonest man.BIALYSTOCK: Assume away!BLOOM: Well, it’s very easy. You

simply raise more money than you re-ally need.BIALYSTOCK: What do you mean?BLOOM: You’ve done it yourself,

only you did it on a very small scale.BIALYSTOCK: What did I do?BLOOM: You raised $2,000 more

than you needed to produce your last

play.BIALYSTOCK: So what?

What did it get me? I’m wear-ing a cardboard belt.BLOOM: Ahhhhhh! But

that’s where you made your er-ror. You didn’t go all the way.You see, if you were really abold criminal, you could haveraised a million.BIALYSTOCK: But the

play only cost $60,000 to produce.BLOOM: Exactly. And how long

did it run?BIALYSTOCK: One night.BLOOM: See? You could have

raised a million dollars, put on a$60,000 flop and kept the rest.BIALYSTOCK: But what if the play

was a hit?BLOOM: Oh, you’d go to jail. If the

play were a hit, you’d have to pay offthe backers, and with so many backersthere could never be enough profits togo around, get it?BIALYSTOCK: Aha, aha, aha, aha,

aha, aha!! So, in order for the scheme towork, we’d have to find a sure fire flop.BLOOM: What scheme?BIALYSTOCK: What scheme?

Your scheme, you bloody little genius.

BLOOM: Oh, no. No.No. I meant no scheme. Imerely posed a little, academicaccounting theory. It’s just athought.BIALYSTOCK: Bloom,

worlds are turned on suchthoughts!Turning now to our local

bankruptcy court in CentralIslip, while waiting for their

cases to be called, consumer bankruptcypractitioners often kill time, kibitzingoutside the courtroom, sometimes pos-ing their own little academic theories toeach other as to how a debtor could con-ceivably game the system.One such idea centered around the var-

ious automobile deductions on themeanstest and how a debtor is entitled to maxi-mize the “Vehicle Ownership or LeaseExpense” deduction for each car that is fi-nanced. Technically, even if a debtor hasa car loan or lease requiring just a $50 amonth payment, the debtor can take thefull Vehicle Ownership or Lease Expensededuction, which is currently $485. Doingsomakes it easier for higher income con-sumers to qualify for Chapter 7 relief orreduces the amount consumers must payinto a Chapter 13 plan.

One creative attorney then hypothe-sized that a business could be createdwhich leases highly used cars to debtors.In this scheme, which essentially cre-ates a means test deduction, the debtorwould pay a service fee, say $995, andthen a monthly lease fee of $50 a monthfor as little as just a few months to thecar company. The cars would never haveto leave the company’s yard. The debtorwould then be entitled to deduct the fullVehicle Ownership or Lease Expensededuction on the means test, which iscurrently $485, even though the debtor isonly paying $50 a month.The car company that orchestrates the

schemedoes quitewellwith the service feeandmonthly payment, plus the cars neverneed to leave the yard, will never bedriven, and do not even require any insur-ance. The cars could even be total lemonsthat cost the car company $100 each.The debtor does quite well also, getting

avaluablemeans test deduction for very lit-tle, thereby enabling somedebtors to qual-ify for a Chapter 7 filing when previouslytheywould not have, or, if the debtorswereto file forChapter 13 relief, theywould reapsavings of over $400 per month on whattheywould have had to pay into a Chapter

CONSUMER BANKRUPTCY

(Continued on page21)

Like ‘The Producers’— Posing a Little Academic Accounting Theory

_______________________By Christopher J. Chimeri

TheNewYork State Court ofAppeals’holding in Brooke S.B. v. ElizabethA.C.C., 28 N.Y.3d 1 (2016) and subse-quent decisions in the wake of the HighCourt’s expansion of the definition of aparent under New York law was dis-cussed in my September article in TheSuffolk Lawyer. In effect, I believe thatthe Brooke S.B. decision functions as anexpansion of the scope of our trial courts’authority to make determinations ofparentage beyond the findings of a ge-netic marker test or the standard “equi-table estoppel” provisions existing bystatute. By now, it is therefore axiomaticto any domestic relations practitioner thatparents include those of biology, thosemarried to a biological parent at the timeof birth (a rebuttable presumption), and,in the case of non-biological persons,where a party can show, by clear andconvincing evidence, that a pre-concep-tion agreement to conceive and raise achild as co-parents existed, that persontoo, is a parent with standing to seek cus-tody or visitation rights.This seems simple enough to recon-

cile and apply, doesn’t it? Perhaps not.We previously explored the Dawn

M. v. Michael M., 2017 N.Y. Slip Op.27073 (Sup. Ct., Suffolk Co., March 8,2017) matter in which Justice H.Patrick Leis III referred to the next“logical extension” of Brooke S.B.when he issued a tri-custody order(granting both biological parents theirrights, but also granting rights to athird individual whom had functioned

in a maternal roll).Some critics of the decision

have pointed out that althoughJudge Leis clearly workedvery carefully to consider thebest interests of the child inthat case, the decision likelyruns afoul of Footnote 3 inthe Brooke S.B. decision, inwhich the Court of Appealsmakes it clear that the Do-mestic Relations Law allowsonly two parents for a child.In Matter of Christopher YY v. Jessica

ZZ, 2018 NY Slip Op 00495 (Jan. 25,2018), the Third Department most re-cently tackled this same issue undersimilar, but not identical, circumstances;however, and when confronted with apaternity petition concerning filiationof a (then) infant child by a known bio-logical father filed against a marriedlesbian couple to one of whom the childwas born during the marriage, ruled thatthe known, biological father did nothave standing underArticle 5 to petitionfor paternity. In effect, the court heldthat, within its authority underArticle 5of the Family Court Act (which allowsthe court to deny a genetic marker testand/or dismiss a paternity petition if thetest would not be in the best interests ofthe child) the paternity petition shouldbe dismissed. The 18-page singlespaced decision focuses intently on thelegion of cases that interpret a court’sauthority under Family CourtAct § 532concerning genetic marker tests, butalso addresses that, at the time of con-ception and birth, the women were not

only married and entitled tothe rebuttable presumption oflegitimacy, but also fitsquarely within the BrookeS.B. test (i.e. the pre-concep-tion agreement to conceive achild and co-parent). How-ever, this case is unlike BrookeS.B., in that the petitioner wasa known individual in thewomen’s lives and the insem-ination was performed in the

home not by a physician.Absent from the decision is any ref-

erence to an argument by the father per-taining to the constitutionality of thedenial of a genetic marker or the find-ing, without a hearing, that the undis-puted biological father has no standingto petition the court.Instead, the father’s arguments ap-

peared focused on the fact that the con-ception was not done under medical su-pervision, a requirement underDomestic Relations Law § 73. Pre-Brooke S.B., a woman in the SecondDepartment similarly argued that suchan “at home” insemination procedureviolated DRL § 73, which sets forth therequirements for artificial insemination,and attempted to “void” her marriedsame-sex partner’s parentage based onsuch. The Family Court Judge DeborahPoulos rejected the argument in a spec-tacular decision that was adopted, vir-tually in whole, by the Second Depart-ment in a lengthy decision. Matter ofKelly S. v. Farah M., 139 A.D.3d 90(2d Dep’t 2016).The Christopher Y.Y. matter is a case

to watch for several reasons. First, ifthe biological father appeals to theCourt of Appeals, he will need permis-sion, as theAppellate Division issued aunanimous decision and it does not ap-pear, unless the Third Department pur-posely ignored the issue, that the bio-logical father raised fairly obviousconstitutional arguments in his papersbelow. If the court grants leave to ap-peal, it may address whether a childmay have only two parents, it may ad-dress the DRL § 73 argument, and itmay also have occasion to consider abright line rule pertaining to denial ofstanding to a potential biological parent.The Christopher YY case also pres-

ents as interesting because, at the veryend of the decision, the Third Depart-ment noted that subsequent to the lowercourt proceedings, but prior to the ap-peal, both of the wives were subject ofneglect proceedings and the child hadbeen removed. The court declined toconsider this factor, which may be error,in applying equitable estoppel.

Note: Christopher J. Chimeri is apartner with the Hauppauge law firmQuatela Chimeri PLLC and heavily fo-cuses on complex trial and appellatework in the matrimonial and familyarena. He sits on the Board of Directorsof the Suffolk County Matrimonial BarAssociation and is a co-founder and co-chair of the Suffolk County Bar Associ-ation’s LGBT Law Committee. From2014-2017, he has been peer-selectedas a Thomson Reuters Super Lawyers®“Rising Star.”

LGBT

Standing to Seek Parentage: An Update on New York Courts’Applications of Brooke S.B.

Craig Robins

Christopher Chimeri


___________________By David A. Mansfield

The issuance of uniform electronictraffic tickets for charges returnable atThe Suffolk County Traffic and ParkingViolations Agency has become the rulerather than the exception. 15 NYCRRPart §91.21 authorizes the use of elec-tronic summonses in lieu of the standardhandwritten versions.The validity of the electronic tickets

was contested in one Nassau CountyDistrict Court case involving a charge ofdriving while intoxicated and a drivingon the shoulder, violation of §1131. Inthe case of People v. Meno, which ap-peared in the New York Law Journal

on December 26, 2007, JudgeSt. George denied the motionto dismiss, relying upon 15NYCRR Part §91.21.The electronic uniform traf-

fic ticket contains a wealth ofinformation for the defenselawyer for an effective initialinterview. The upper right-hand corner will indicate thepolice agency, which is important ifthere is a question of jurisdiction orshould the case proceed to trial.The defense lawyer should examine

the summons for the expiration date ofyour client’s license, state of issue, classand expiration date. The summons will

indicate if a photo license orother identification was pre-sented to the officer at thetime of the stop of the vehicle.This is critically important ifyour client asserts that theywere not the operator of thevehicle.The alleged presentation of

photo identification will makeit more difficult to convince the trier offact as to your defense. But should theuniform traffic ticket indicate that nophoto license was shown, you may haveat least one less hurdle to presenting acredible defense.It is also important to ask your client in

the case of an alleged impersonation theirconnection, if any, to the vehicle beingoperated or the time and place where theincident took place. You should explorewhether your client has a believable andprovable alternative explanation as towho could have sufficient personal in-formation to convince the officer to issuethe summons in their name.The defense attorney must inquire as

to your client’s whereabouts at the timeof the alleged incident to determine ifthere is a readily verifiable and credibledefense. The category of vehicle oper-ated by your client is very importanttoo, especially if they hold a commercialdriver’s license.A commercial motor vehicle driven

by your client may affect plea bargain-ing guidelines for improper cell phoneuse charges §1225-c2a and use ofportable electronic devices §1225-d.And the classification or registeredweight of the vehicle can have an im-pact on potential collateral licensingconsequences.

The second part of the summons willindicate the approximate time, the dateof the occurrence, the nature of the vio-lation and the applicable statute. Theplace of occurrence always deserves ex-amination to determine if it is describedin sufficient detail. It may raise issues ofgeographical jurisdiction within thecounty for towns and villages courts inSuffolk County under CPL§20.50. Thebottom portion indicates the jurisdic-tion and return date.A supporting deposition may be is-

sued contemporaneously, with aCPL§710.30 notice attached, which isgenerally known as a “drive through”supporting deposition issued pursuantto §100.25.The summons may also indicate that

no supporting deposition was generatedat the time your client was stopped bythe officer. The supporting depositioncan be very useful in completing thefactual pattern.Numbered eight on the standard form

entitled “additional information” mayprovide a detailed narrative account asto how the speed was determined orwhat constituted the alleged violation.The Criminal Procedure Law §710.30

Notice in the lower portion of the sup-porting deposition should be scrutinized todetermine what statements will likely bereviewed by the prosecution in determin-ing any pre-trial plea bargain offer and tobe introduced into evidence at any trial.Electronic summonses are here to

stay and do present an opportunity fordefense counsel to prepare their defense.

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

VEHICLE AND TRAFFIC

Reading Electronic Uniform Traffic Tickets at the SCTPVA

FREEZE FRAME

David Mansfield

(l-r)William T. Ferris III, Chief Assistant District Attorney; Honorable Mark D. Cohen; TimothySini, Suffolk County District Attorney; Dean Harry Ballan, Dean, Touro Law Center

Rosario and Brady 2018:What Prosecutors and DefenseAttorneys Need to KnowOn Sunday, February 11th more than 250 attorneys gathered at Touro LawCenter in Central Islip to hear about case law supporting the 57 year oldRosario rule and New York Brady rules. The Honorable Mark D. Cohen pre-sented a thorough review including caselaw development of the rule, codifi-cation: 1980, Judicial development of “Per Se Rule” of Reversal, exceptionsto Rosario, 2001 legislative overrule of “Per Se” requirement of reversal incases of Rosario failure with no showing of prejudice, and trial sanctions.

Welcome to the World CarolineCongratulations to SCBA member Karen Lee Dunne and Richard Kesnig who became grand-parents for the first time to baby Caroline Lee Murphy, who was born on Feb. 3, 2018, weigh-ing 7 lbs., 12 ounces, 21-l/2” tall to proud parents, Arielle and James Murphy.


____________________By James G. Fouassier

Everyone seems to be in agreementabout the root causes of the explosion infatal drug overdose, not only here insuburban Suffolk County but nation-wide, in all areas, cutting across all so-cio-economic and geographic bound-aries. When examining individualcases, however, many experts ac-knowledge the difficulty in identifyingspecific causes and contributing factorsbecause of a lack of detailed informa-tion. As reported by the Network forPublic Health Law in its January 2018bulletin, while the initial general causesof this crisis may be attributed by pre-scription opioid pain relievers, the hugeincrease in heroin-related overdosesstarting around 2010 quickly becamethe larger problem. Heroin overdosedeaths have tripled between 2010 and2014. To make matters worse, if thatwere possible, black market drug prod-ucts began filling in the excess demandand drugs available on the market be-came increasingly adulterated with il-legal synthetic opioids, mainly fentanylderivatives. In the span of a single year,from 2014 to 2015, deaths attributed tofentanyl and related drugs spiked byover 70 percent.

Governments and social andclinical researchers have notbeen able to keep up, in partbecause of these rapid changesin the dynamics. Important,relevant and most importantly,comprehensive data often arenot available in a timely man-ner. Medical examiner dataoften are incomplete and, inmany states, not available formonths after the date of death.In response, six states have adopted

legislation that creates what accuratelymay be called “fatal overdose reviewpanels.” The adopting legislation makesavailable to the panels a great deal of in-formation now only sporadically exam-ined on a case by case basis, allowingthe panels accurately to identify thecauses and make programmatic recom-mendations for improvement or change,and identify issues for further inquiry.In some states panels are authorized

(but not mandated) on a county leveland must consist of designated health-care professionals. In others the lawhas created a statewide “commission” or“review agency” or some similar high-level apparatus charged with the re-sponsibilities of carrying out the lawand which, in turn, designates represen-

tatives to perform the day today work.“While the specifics vary be-

tween states, all are multidisci-plinary teams tasked with at-tempting to find causal factorsand take steps to reduce over-dose fatalities. The trend ap-pears to be towards more com-prehensive bodies focused onoverdose broadly, as opposed

to bodies only focused on a specific drug(methadone in Pennsylvania) or bodiestasked with investigating many causes ofdeath (as in West Virginia). From “FatalOverdose Review Panels: Overview ofLaws in Six States,” a bulletin of the Net-work for Public Health Law, Jan 29 2018;found at: https://www.networkfor-phl.org/_asset/h5hxdq/Fatal-OD-Review-Panels-Issue-Brief.pdfArizona’s law is illustrative. It re-

quires the statewide “review team” todevelop a drug overdose fatalities datacollection system based on specific cri-teria; conduct an annual analysis of in-cidences and cause of drug overdose fa-talities; assist in the development oflocal drug overdose fatality reviewteams (also authorized by the law); de-velop clinical standards and protocolsfor local drug overdose fatality re-

view teams and provide training andtechnical assistance to these teams; as-sure consistency statewide by develop-ing protocols for drug overdose investi-gations, including local law enforcementagencies, prosecutors, medical examin-ers, health care facilities and social serv-ices agencies; study the adequacy ofstatutes, ordinances, rules, training andservices to determine what changesare needed to decrease the incidenceof preventable drug overdose fatalitiesand take steps to implement thesechanges; and educate the public aboutits findings and recommendations.In addition to Arizona, states adopt-

ing similar legislation are Delaware,Maryland, New Hampshire, Pennsyl-vania and West Virginia. Perhaps it’stime for New York to join them.

Note: James Fouassier, Esq. is the As-sociate Administrator of the Departmentof Managed Care at Stony Brook Uni-versity Hospital, Stony Brook, New Yorkand Co-Chair of the Association’sHealth and Hospital Law Committee.His opinions are his own. He maybe reached at: [email protected]

1Ariz. Rev. Stat.Ann. § 36-198 (Aet seq.) (2017).

HEALTH AND HOSPITAL

Addressing the Fatal Overdose Epidemic — Adopting ‘Fatal Overdose Review Panels’

James G. Fouassier

Overcoming the Stigma of Mere Confidential Information (Continued from page 17)

for unjust enrichment lies. Corsello v.Verizon, Inc., 18 N.Y.3d 777, 790(2012).After detailing the elements of

claims under the DTSA and New Yorkcommon law misappropriation of tradesecretsi, the court led its discussion byexplaining that the counterclaimsfailed to comply with the federalpleading burdens imposed by Twomblyand Iqbal2. The court explained thatDoctor Evidence explicitly referred tothe relevant information at issue as“confidential information,” and it iswell-established that “confidential in-formation” is not the equivalent of a“trade secret.” To the contrary, asnoted by the court, trade secrets are asubset of confidential information.IDX Sys. Corp. v. Epic Sys. Corp., 285F.3d 581, 583 (7th Cir. 2002). Thecourt explained that allegations whichpurport to establish the existence of atrade secret require higher specificityand the standard is “far greater than thestandard for confidentiality of busi-ness information.” Indeed, as the courtnoted, “[g]eneral allegations regard-ing ‘confidential information’ and‘processes’ simply do not give rise toa plausible trade secrets claim”.3

Critical omissionsCharacterizing the nine categories of

purported “trade secret information” in

the amended counterclaims as “extraor-dinarily general,” the court explainedthat “categories” of confidential infor-mation do not establish trade secret sta-tus or give rise to a plausible allegationof the existence of a trade secret. Criti-cally, Doctor Evidence had “not comeclose to alleging sufficient facts thatsupport trade secret status” and im-properly conflated the concept of a tradesecret with confidential information.The court articulated examples as of

overly generalized information de-scribed in Doctor Evidence’s claimsincluding Doctor Evidence’s purported“clinical methods,” “processes to as-sess the quality of evidence and how toexecute it,” and “interpretation ofdata.” According to the court, those ex-amples did not warrant trade secretsstatus because Doctor Evidence failedto allege how the “methods, processesand interpretations” functioned. Thecourt similarly rejected Doctor Evi-dence’s generalized allegations relatingto its analytics tools, and programmingand “data configuration protocols andmethods.”Significantly, the court suggested

how Doctor Evidence’s pleading couldhave eclipsed the “confidential” desig-nation and achieved trade secret status:[Doctor Evidence] could have ex-

plained that its ‘interpretations of data’or ‘process to assess the quality of evi-

dence’ relies on a specific, proprietaryalgorithm developed at a certain timeand which no one else owns.In the alternative, the court also sug-

gested that Doctor Evidence couldhave provided a description of the al-leged trade secrets with the court underseal.In closing, Judge Forrest explained

that the counterclaims also failed to in-clude allegations concerning the variousfactors (discussed, for example, in Ash-land) “that define the ‘contours’ of atrade secret” including, inter alia, thevalue of the information and the extentto which it is known by those within andoutside the business. While the courtnoted that Doctor Evidence did addressone of the factors— the extent of meas-ures taken to safeguard the information— the fact that the parties had enteredinto a confidentiality agreement withrespect to the information was insuffi-cient to permit an inference of trade se-cret status.

Note: Leo Barnes Jr., a partner atBarnes Catterson LoFrumentoBarnes LLP, practices commerciallitigation and can be reached [email protected] explained by the court, to establish a claimunder the DTSA, Doctor Evidence was re-quired to show “an unconsented disclosure oruse of a trade secret by one who (i) used im-

proper means to acquire the secret, or, (ii) atthe time of disclosure, knew or had reason toknow that the trade secret was acquiredthrough improper means, under circumstancesgiving rise to a duty to maintain the secrecy ofthe trade secret, or derived from or through aperson who owed such a duty.” In re Docu-ment Techs. Litig., No. 17-cv-2405, 2017 WL2895945, at *5 (S.D.N.Y. July 6, 2017). Sim-ilarly, under New York common law, aclaimant must show “(1) that it possessed atrade secret, and (2) that the defendants usedthat trade secret in breach of an agreement,confidential relationship or duty, or as the re-sult of discovery by improper means.” FaivelyTransp. Malmo AB v. Wabtec Corp., 559 F.3d110, 117 (2d Cir. 2009).2 Of course, pleading claims in federal court issubject to heightened pleading standards as par-ties are required to allege “enough facts to statea claim to relief that is plausible on its face.”Starr v. Sony BMG Music Entm’t., 592 F.3d314, 321 (2d Cir. 2010) (quoting Bell Atl. Corp.v. Twombly, 550 U.S. 544, 570)) (emphasisadded); see also, Ashcroft v. Iqbal, 556 U.S. 662(2009).3 The determination of what constitutes a tradesecret is succinctly described in the Court ofAppeals landmark 1993 decision in AshlandManagement Inc. v. Janien, 82 N.Y.2d 395 as:“any formula, pattern, device or compilation ofinformation which is used in one-business, andwhich gives him an opportunity to obtain an ad-vantage over competitors who do not know oruse it.” The DTSAdefines a “trade secret” as in-formation that “derives independent economicvalue, actual or potential, from not being gener-ally known to, and not being readily ascertaina-ble through proper means by, another personwho can obtain economic value from the disclo-sure or use of the information.” 18 U.S.C.1839(3)(B).

cluding a term as the Presiding Justice oftheAppellate Term for the 10th JudicialDistrict.In Judge Robinson’s acceptance

speech, he, of course being the kind andwonderful person he is, thanked JudgeHinrichs and JudgeToni Bean and a lot ofother people, including his own dear wife,Dr. PamelaAllen Robinson, who has de-voted her life to Suffolk County’s children

as an educator and community activist.Judge Robinson whomwe have come

to learn is a brilliant speaker, said thatwe are lucky to be born into this chal-lenging new frontier, a new world, anda new generation ofAmericans. He saidhis life in many ways would not havebeen possible, without the vision etchedinto the character and hearts ofAmerica.America symbolized a set of values andattitudes about law that made it such anattractive calling. It is a noble andworthwhile pursuit.Judge Robinson’s thank you speech

touched many in the audience, me es-pecially, and he was kind enough to sendit to me for re-reading and for me to re-ally get to know the man who wrotesuch a deep and awe-inspiring thankyou, a man who has the love of human-ity in his heart.We also would like to thank Major

David Santiago and the ceremonial colorguard and to James “Butch” Langhorn,army veteran and retired air national

guardsman, who sang “Lift every Voiceand Sing.” Many thanks to Rev. Dr.Wal-ter C.Willie, Jr., from Prayer Tabernacle,for his insightful Invocation and to theRev. Dr. Darris Dixon-Clark, from FirstBaptist Church in Bay Shore, for hiswords of encouragement and comfort.SCBA President Pat Meisenheimer’s

ending remarks personified a perfect

evening. “This is so evident as we cele-brate Black History Month. We areproud to remember and honor the count-lessAfricanAmericans who through theyears have served our country with prideand distinction.”

Note: Jane LaCova is Executive Di-rector of the SCBA.

Black History Month (Continued from page 3)

PhotoscourtesySuffolkCountyCourts

President Patricia Meisenheimer gave anoverview of Black History Month in herremarks.

Judge Tony Bean, the Mistress of Ceremony, and District Administrative Judge C. Randall Hinrichscongratulated Judge Acting County Court Judge Derrick J. Robinson who was presented with thefourth annual Marquette L. Floyd Award.

Like ‘The Producers’— Posing a Little Academic Accounting Theory (Continued from page 18)

13plan,which, over 60months, adds up toa savings of $25,000, while paying just$3,000 for that privilege!Quite an interesting little academic

accounting theory! Of course, like theone developed by Bialystock andBloom, this is rife with problems; itsmacks of bad faith; it is dishonest; andmight even be downright criminal.However, that did not stop some at-

torneys in Virginia from actually imple-menting their own little academic ac-counting theory — which also involveddebtors’cars— in a very novel fee scam.In this scheme, which really came to

life, a big, national law firm in Chicago,with local attorneys across the countrywho represented consumer debtors,came up with an extremely creative, butdevious and dishonest way to have theirbankruptcy legal fees paid. They calledit the “New Car Custody Program.”The law firm counseled its consumer

clients to “surrender” their vehicles, which

were fully encumberedwith auto loans, toa company with a yard in a neighboringstate. In doing so, the debtors entered intoagreements with the Car Yard Company,which obligated the debtors to pay thecosts of towing the vehicle, transporting itacross state lines, and storing it. Of course,no notice was given to the auto lenders.The law firm assured their debtor clientsthat theywould not have to pay any fees totheCarYardCompany, and in some cases,advised its clients to hide their cars fromlenders looking to repossess them, until theCar Yard Company could pick them up.After the Car Yard Company took a

vehicle, it asserted a statutory “ware-housemans’s lien,” claiming the rightto keep the vehicle until the sham tow-ing, transportation, and storage feeswere paid. Then it offered the vehiclefor sale at auction, despite the autolender’s continuing security interest.Out of the sale proceeds, the CarYard

Company paid the debtor client’s bank-

ruptcy fees directly to the law firm. TheCar Yard Company kept the rest of thesale proceeds. The scam was actuallyrather intricate, relying on UCC pos-sessory lien statutes to supposedly wipeout the auto lender’s subordinate lien.As you can imagine, when the scheme

was discovered, it did not go over toowell with the Office of the U.S. Trusteeor the court. The Bankruptcy Court fortheWestern District of Virginia, on Feb.12, 2018, slammed the law firm and itsprincipals for causing “unconscionable“harm to their clients, and imposed sanc-tions totaling $360,000.In addition, it revoked the law firm’s

bankruptcy filing privileges in the districtfor not less than five years. The court alsosanctioned the Car Yard Company andordered them to turn over all funds it re-ceived from debtors. Robbins v. De-lafield et al. (Bankr. W.D. Va., Adv. No.16-07024), and Robbins v. Morgan et al.(Bankr. W.D. Va., Adv. No. 16-05014).

The U.S. Trustee commented that theaction of this firm harmed the integrity ofthe bankruptcy system. The lesson hereis that little academic accounting theoriesmay be interesting to discuss outside thecourtroom while you wait for your casesto be called, but putting them into practicemay end your days as a bankruptcy at-torney. Bialystock and Bloomwere ableto continue their academic accountingtheory schemes producing their newshow, “Prisoners of Love” . . . in prison.

Note: CraigD.Robins, a regular colum-nist, isaLongIslandbankruptcy lawyerwhohas represented thousandsof consumerandbusiness clients during the past thirty-threeyears. Hehasoffices inMelville,Coram,andValley Stream. (516) 496-0800. He can [email protected] visit his Bankruptcy Website:www.BankruptcyCanHelp.com and hisBankruptcy Blog: www.LongIslandBank-ruptcyBlog.com.

Does Reviewing Privileged Document in Preparation for EBTWaive Privilege? (Continued from page18)

the burden of demonstrating that the in-formation contained therein constitutesconfidential communications betweenthe attorney and the client for the purposeof securing legal services or advice” (cit-ing Rosssi v Blue Cross & Blue Shield ofGreater New York, 73 NY2d 588 [1991];All Waste Sys. v Gulf Ins. Co., 295AD2d379, [2d Dept 2002]; and Bertalo’s Rest,v Exchange Ins. Co., 240AD2d 452 [2dDept 1997]). The attorney-client privi-lege is not lost because the documentsalso contain or refer to some nonlegalconcerns (citing Rossi v Blue Cross &Blue Shield of Greater New York, supra;All Waste Sys., Inc. v Gulf Ins. Co.,supra). Materials prepared in anticipationof litigation are subject to a conditional

privilege (CPLR 3101 [d]).To demonstrate that this privilege is

applicable, it must be shown that thematerial was prepared exclusively inanticipation of litigation. See Fields vFirst Liberty Ins. Corp. supra (citingBombard v Arnica Mut. Ins. Co., 11AD3d 647 [2d Dept 2004]; Agovino vTaco Bell 5083, 225 AD2d 569, [2dDept 1996]). When such a showing ismade, materials prepared in anticipa-tion of litigation are immune from dis-closure unless a party shows “substan-tial need” and the “inability to obtain thesubstantial equivalent elsewhere ‘with-out undue hardship.‘“ See Fields v FirstLiberty Ins. Corp., supra (citing CPLR3101 [d]; and Valencia v Obayashi

Corp., 84 AD3d 786, 787, [2d Dept2011]). Whether a particular documentis shielded from disclosure necessarilyis a fact-specific determination that mostoften requires an in-camera inspectionFields v First Liberty Ins. Corp., supra(citing Spectrum Sys. Intl. Corp. vChemical Bank, supra).The bottom line is that privileged

material remains privileged even if awitness reviews it in preparation for adeposition. However, there may be adispute between the parties overwhether the material was actually priv-ileged in the first place. As indicatedabove, the party seeking to withholdmaterial has the burden of showing it isprivileged.Additionally, even if the ma-

terial is deemed privileged, the partyseeking disclosure may gain access to itif it can show substantial need and in-ability to obtain the substantial equiva-lent elsewhere without undue hardship.If confronted with this issue, counselshould be aware that attorney-clientprivilege may be properly asserted andthat simultaneously, there are valid ar-guments in favor of disclosure.

Note: Paul Devlin is an associate atRusso & Tambasco where his practicefocuses on personal injury litigation.He is an active member of the SCBA,serving as co-chair of the YoungLawyers Committee and treasurer of theSuffolk Academy of Law.


In Valerie Percival v. Northwellhealth System North Shore LIJ GlenCove Hospital, North Shore UniversityHospital, Affinity Skilled Living and Re-habilitation, Pfizer Inc., Dr. TomassoAdonna, UC13 Inc., Dr. DehdashtiAmir, Index No.: 10839/2016, decidedon January 16, 2018, the court deniedthe defendants’ motion to dismiss,based upon plaintiff’s failure to timelyserve a complaint, and the expiration ofthe statute of limitations.The court noted that the underlying

action sounded in medical malprac-tice. A Summons with Notice was pur-portedly filed on December 23, 2016.An Amended Summons with Noticewas served on or about March 21,2017 and April 6, 2017. On or aboutApril 18, 2017, the defendants servednotices of appearance and demand fora complaint. The self- representedplaintiff failed to serve a complaintwithin 20 days of service of the de-fendants’ demands as required byCPLR §3020(b). The various defen-dants brought the instant motions todismiss the action based upon plain-tiff’s failure to serve the complaint. Inopposition, plaintiff stated that she suf-fered from blindness and other per-sonal debilitating health issues, whichprevented her from serving a com-plaint in a timely manner. In the in-terim, the plaintiff served a complainton or about June 27, 2017. The courtconcluded that in light of the plain-tiff’s reasonable excuse for her mini-mal delay in serving the complaint,the court extended her time to plead,and compelled the defendants to ac-cept the complaint dated June 26,2017.

Honorable William B. ReboliniMotion to compel deposition of em-

ployee granted; substantial likelihoodthat employee possessed relevant in-formation about the issue of notice thatthe prior witness did not.

In Roswitha Russo andMichael Russov. Lake Grove Owners, LLC, PrestigeProperties & Development Co., Inc. andToys “R” Us-Delaware, Inc., LakeGrove Owners, LLC and Prestige Prop-erties & Development Co Inc. v. RobertLandscaping &Construction, Inc., IndexNo.: 3987/2014, decided on July 3,2017, the court granted the motion com-pelling defendant, Toys “R” Us-Delaware Inc. to produce employee,Adam Zaslow, for a deposition. In grant-ing the motion, the court noted that forthe purposes of deposition, a corporateentity has the right to designate, in thefirst instance, the representative whoshall be examined. To show that addi-tional depositions are warranted, themoving party must demonstrate that the

representative already deposed had in-sufficient knowledge or were otherwiseinadequate and that there is a substantiallikelihood that the persons sought fordepositions possess information, whichis material and necessary to the prose-cution of the case. Whether defen-dants/third party plaintiffs, Lake GroveOwners, LLC and Prestige, had actual orconstructive notice of the alleged icycondition prior to the plaintiff’s accidentis material and necessary to the issue ofliability in this case, and there was asubstantial likelihood that employeeAdam Zaslow possessed relevant infor-mation about the issue of notice that theprior witness did not possess.

Honorable David T. ReillyPetitioner’s application to perma-

nently stay the respondent’s applicationto proceed to arbitration under the Sup-plementary Uninsured Motorist En-dorsement granted; there had been adetermination that the respondents hadnot suffered a “serious injury,” whichrendered the issue of insurance moot,inasmuch as the respondents could notrecover damages.

In In the Matter of the Application fora Stay of Arbitration of State Farm In-surance Company v. John Delp andLynn Delp and Danilo Guerra and Ge-ico Indemnity Company, Index No.:4372/2016, decided on August 29,2017, the court granted the petitioner’sapplication to permanently stay the re-spondent’s application to proceed to ar-bitration under the SupplementaryUninsured Motorist Endorsement.The petitioner’s application to restore

the case to the active calendar wasgranted. Respondents sought to arbitratepursuant to Supplementary Unin-sured/underinsured Motorist portion oftheir policy with the petitioner. By priororder of the court, dated July 25, 2016,the arbitration proceedings were tem-porarily stayed, pending a determinationof liability. As a result of temporarilystaying the arbitration proceeding, thematter was marked “disposed.” OnApril4, 2017, the court issued a decision in therelated case determining that neither re-spondent sustained a “serious injury” asdefined in Insurance Law §5102(d). Assuch, petitioner’s filed the instant appli-cation. In opposition to the application,respondents argued that they filed a No-tice ofAppeal of theApril 4, 2017 deci-sion and that the motion should be de-nied without prejudice pending theoutcome of the appeal so as to avoid ad-ditional motion practice should the grantof summary judgment be reversed onappeal. The court noted that as of July12, 2017, the respondents had not per-fected the appeal. The court found thatthere had been a determination that the

respondents had not suffered a “seriousinjury,” which rendered the issue of in-surance moot, inasmuch as the respon-dents could not recover damages. Basedupon the foregoing, State Farm’s appli-cation to restore the action to active sta-tus pursuant to CPLR §2221 wasgranted. The court noted that the peti-tioner sufficiently presented new factsnot offered on the prior motion thatwould change the determination in theform of the April 4, 2017 decision. Ac-cordingly, State Farm’s motion for a per-manent stay of arbitration was grantedupon that determination.

Honorable Thomas F. WhelanMotion for summary judgment

granted; the instant motion did not vi-olate the general rule against succes-sive motions for summary judgment.

InU.S. Bank National Association asTrustee for Credit Suisse First BostonCSFB ARMT 2006-1 v. CarolineWaloski Weinman, Index No.:4754/2010, decided on July 28, 2017,the court granted the motion for sum-mary judgment.In deciding the motion, the court

reasoned that generally successivemotions for summary judgmentshould not be entertained, absent ashowing of newly discovered or othersufficient cause. However, the courtmay properly entertain such a motionwhen it is substantively valid and thegranting of the motion will further theends of justice and eliminate an un-necessary burden on the resources ofthe court. The court concluded thatthe instant motion did not violate the

general rule against successive mo-tions for summary judgment. With re-gard to defense counsel’s res judi-cata/collateral estoppel arguments, thecourt noted that they were inapplica-ble. The court stated that since thefindings relied upon, those of the Ap-pellate Division in its December 31,2014 order reversing this court’saward of summary judgment to theplaintiff were issued in the same ac-tion, rather than in a prior action adwere not final. Nor was the relateddoctrine of law of the lase applica-tions here so as to preclude the court’sconsideration of this motion becausethe prior denial of the plaintiff’s mo-tion of summary judgment by the Ap-pellate Division was premised uponthe plaintiff’s failure to meet its primafacie burden with respect to its stand-ing. Defense counsel proffered addi-tional arguments, however, the mo-tion for summary judgment wasgranted.

Please send future decisions to appear in“Decisions of Interest” column to ElaineM.Colavito at [email protected] is no guarantee that decisions re-ceivedwill be published. Submissions arelimited to decisions from Suffolk Countytrial courts. Submissions are accepted ona continual basis.

Note: Elaine Colavito graduated fromTouro LawCenter in 2007 in the top 6 per-cent of her class. She is an associate atSahnWardCoschignano, PLLC inUnion-dale.Ms. Colavito concentrates her prac-tice in matrimonial and family law, civillitigation and immigration matters.

not guilty of the top count due to the de-fense of justification, then the jury mustdecide not guilty on the related lessercounts (People v. Rodriguez, 143A.D.3d497 (1st Dep’t 2016); People v. Daggert,150A.D.3d 1680 (4th Dep’t 2017)). Onceagain, the defense must preserve the is-sue by timely objecting (id).

Verdict sheetThe verdict sheet should mirror the

instruction regarding lesser counts andinstruct jurors that they are to stop de-liberating in the event they find the de-fendant `not guilty’ of the top chargebased upon justification (Braithwaite,supra; People v. Valetin, 154 A.D.3d474 (1st Dep’t 2017); People v. Velez,131 A.D.3d 129 (1st Dep’t 2015)).In closing, the defense of justifica-

tion offers instances where physicalforce, even deadly force, may be lawfulwhere the use of force is subjectively

warranted, and the amount of force isobjectively reasonable under the cir-cumstances.

Note: The Honorable Stephen L.Ukeiley is a Suffolk County ActingCounty Court Judge (GuardianshipPart) and a Suffolk County DistrictCourt Judge. He is also an adjunct pro-fessor at the Touro College Jacob D.Fuchsberg Law Center and the authorof numerous legal publications, includ-ing The Bench Guide to Landlord &Tenant Disputes in New York©.

* The information contained hereinis for informational and educationalpurposes only. This column should in noway be construed as the solicitation oroffering of legal or other professionaladvice. If you require legal or other ex-pert advice, you should consult with anattorney and/or other professional.

Bench Briefs (Continued from page 4)

Self-Defense Jury Charge (Continued from page 4)


cent of the attorneys appearing in bothcommercial and criminal cases in court-rooms across the state; women attorneysaccounted for 24.9 percent of lead counselroles and 27.6 percent of additional coun-sel roles; in complex commercial cases,women’s representation as lead counselshrank from 31.6 percent in one-partycases to 26.4 percent in two-party cases to24.8 percent in three-to-four party casesand to 19.5 percent in cases involving fiveormore parties (apparently, themore com-plex the case, the less likely that a womanappeared as lead counsel); the percentageof women attorneys appearing in courtwas nearly identical at the trial level (24.7percent) and at the appellate level (25.2percent); in New York federal courts,women attorneysmade up 24.4 percent ofall attorneys who appeared in court, with23.1 percent holding the position of leadcounsel; inNewYorkState courts,womenmade up 26.9 percent of attorneys appear-ing in court and 26.8 percent of attorneysin position of lead counsel; in public in-terest law (including criminal matters),

women lawyers accounted for 38.2 percentof lead counsel and 30.9 percent of attor-neys overall; and, in private practice (in-cluding both civil and criminal matters),women lawyers only accounted for 19.4percent of lead counsel.Among the other resolutions adopted

by the ABAHouse were the following:A resolution calling upon Congress topass, and the President to sign, legisla-tion re-authorizing and raising the ap-propriation level for the Legal Assis-tance for Victims Grant Program of theViolenceAgainst WomenAct; a resolu-tion urging legislative bodies and gov-ernmental agencies to prohibit solitaryconfinement for persons suffering fromintellectual disability or serious mentalillness, the elderly, women who are preg-nant or postpartum and those sufferingfrom medical conditions which will beexacerbated by such confinement, andproviding that solitary confinement shallbe used only in exceptional cases whereless restrictive settings do not suffice,and for no longer than is necessary; a

resolution urging the U.S Departmentof Justice to restore prosecutorial dis-cretion in determining the charges to bebrought against a defendant; a resolutionurging courts to extend Batson v. Ken-tucky to prohibit discrimination againstjurors on the basis of sexual orientationor gender identity/expression; a resolu-tion urging Congress to enact legisla-tion permitting Deferred Action forChildhoodArrivals recipients and otherundocumented immigrants who enteredthe United States as children, and whomeet age, residency, educational andother qualifications (DREAMERS), whomeet certain educational, work, or mili-tary requirements, successfully pass abackground check, and remain in goodlegal standing to apply for permanentlegal status and citizenship; a resolutionurging jurisdictions which permit thedeath penalty to not execute or sentenceto death persons under the age of 21 atthe time of the offense; a resolution urg-ing governments to provide legal coun-sel as a matter of right at public expense

to low-income persons in all proceedingsthat may result in a loss of liberty, re-gardless of whether the proceedings arecriminal or civil, or whether initiated orprosecuted by a government entity; anda resolution urging all employers, andspecifically employers in the legal pro-fession, to adopt and enforce policiesand procedures that prohibit, preventand promptly redress harassment and re-taliation based on gender, gender identityand sexual orientation.The meeting concluded with an invi-

tation from the Illinois delegation to at-tend theABAannual meeting, to be heldin Chicago in August, 2018.

Note: Scott M. Karson is the dele-gate from the Suffolk County Bar Asso-ciation to the American Bar Associa-tion. He is also the treasurer of theNew York State Bar Association and aformer President of the Suffolk CountyBar Association. He is a member ofLamb & Barnosky, LLP in Melville,New York.

ABA Addresses Women Lawyers at Midyear Meeting (Continued from page 1)


They should also await the release ofadditional guidance from the IRS— re-garding some of the open items identi-fied above, “abusive” situations, tieredentities, and other items— before com-mitting to a change in such historiccourse of business.According to the IRS, such guidance

should be issued in proposed form be-fore the end of 2018 and should be fi-nalized by mid-2019. We shall see.

Note: Lou Vlahos, a partner at FarrellFritz, heads the law firm’s Tax PracticeGroup. Lou can be reached at (516) 227-0639 or at [email protected] Pub. L. 115-97.2TheAICPA’s Tax Committee has identified newSec. 199A as one of three provisions of “mainconcern” that were included in the Act.3 The Act includes a number of business-relatedbenefits that are applicable to both corporate andnon-corporate taxpayers. It also includes somethat are unique to taxable C corporations, such asthe reduction of the corporate income tax ratefrom a maximum of 35% to a flat 21%. This 40%rate reduction probably provided the greatestimpetus for the 20% of QBI deduction.4TheAct reduces the highest income tax rate appli-cable to the individual owner of a PTE to 37%(from 39.6%) for taxable years beginning after De-cember 31, 2017 and before January 1, 2026. Notethat the 3.8% surtax continues to apply to the dis-tributive or pro rata share of an individual partner-ship or shareholder who does not materially partic-ipate in the trade or business conducted by the PTE.5Yes, you read that correctly; the deduction willcease to be available for taxable years beginningafter 2025. Last week, however, the HouseWaysand Means Committee Chairman, Kevin Brady,said he expected that those business provisions intheAct with expiration dates would become per-manent. But see FN xxiii.6More accurately, the benefit is available to non-corporate owners; basically, individual taxpayers,though trusts and estates are also eligible for the

deduction.7 A PTE may conduct more than one QTB – itmay operate different lines of business – or Tax-payer may own equity in more than one PTE. Itappears that unrelated QTBs will be combinedfor purposes of the new deduction.8What constitutes a trade or business? It is notdefined in the Code or Regulations, but we knowthrough case law that it requires some regularityof activities and transactions, and there has to bea profit motive. The issue is most likely to beraised in the context of rental real property.9 Whatever that means. And what constitutes a“consulting” service?10The exclusion from the definition of a QTB fora SSTB is phased in for a taxpayer with taxableincome in excess of a “threshold amount” of$157,500 ($315,000 in the case of a joint re-turn). The exclusion is fully phased in for a tax-payer with taxable income at least equal to thethreshold amount plus $50,000 ($100,000 in thecase of a joint return). Thus, a more profitableSSTB will not qualify for the deduction. How-ever, an individual owner of an SSTB, who hastaxable income of less than $315,000 (in thecase of a joint return), may claim the full bene-fit of the 20% of QBI deduction.11 If the net amount of the QBI is a loss (nega-tive), it is treated as a loss from a QTB that is in-curred in the succeeding taxable year.12Generally, when a person engages in a trade orbusiness in the U.S., all income from sourceswithin the U.S. connected with the conduct ofthat trade or business is considered to be effec-tively connected income. Foreign source incomewill not be treated as QBI.13 For example, items of gain taken into accountin determining net long-term capital gain, divi-dends, and interest income (other than that whichis properly allocable to a trade or business) arenot included; nor are items of deduction or lossallocable to such income.14 There is definitely a bias against Taxpayer’sservice-generated income.15 For our purposes – an introduction to the newprovision – we are going to assume that:the individual taxpayer is involved in only onebusiness,•20% of Taxpayer’s taxable income for the tax-able year is greater than the amount otherwisedeductible,

• those rules that are tied into the taxpayer’shaving surpassed a certain dollar-threshold ofincome ($415,000 for joint filers) are fully ap-plicable – they are fully phased in,• the taxpayer does not own interests in REITs orqualified cooperatives or qualified PTPs, and• the taxpayer does not have any capital gain orother investment income.

16These limitations – which are phased in for in-dividual taxpayers with taxable income between$315,000 and $415,000 for joint filers (again, weare assuming are that this threshold is surpassed)– are based upon the amount of W-2 wages paidby the business, or upon a combination of W-2wages and the original cost of depreciable prop-erty owned and used by the business. They donot apply to joint filers with taxable income notin excess of $315,000; are phased in for joint fil-ers with taxable income between $315,000 and$415,000; and apply fully for joint filers withtaxable income in excess of $415,000.17 Mind you, sole proprietors do not pay them-selves a salary.18Taxpayer does not need to be active in the busi-ness in order to qualify for the deduction. In thecase of a partnership or S corporation, the provi-

sion applies at the individual partner or share-holder level. Each partner or shareholder, as thecase may be, takes into account his allocable orpro rata share of each qualified item of income,gain, deduction, and loss, and is treated as havingW-2 wages and unadjusted basis for the taxableyear equal to his allocable or pro rata share of theW-2 wages and unadjusted basis of the partner-ship or S corporation, as the case may be.19 Including any reasonable wages to Taxpayer byhis S corporation. Query whether they shouldalso include “reasonable” guaranteed paymentsfrom a partnership to a partner for services ren-dered – hopefully, this will be addressed in tech-nical corrections to the Act.20 The “depreciable period” is the period begin-ning with the date the qualified property is firstplaced in service and ending on the later of thedate that is 10 years after such date, or the last dayof the last full year in the applicable recovery pe-riod for the property. Thus, it is possible thatfully depreciated property may still be counted forpurposes of determining the deduction.21 It is also possible that it may be eliminated byCongress after the 2020 election if there is asweep by the Democrats.

The New ‘20% of Qualified Business Income’Deduction (Continued from page 10)

need to contact the Department of Statedirectly for consideration. However, un-knowing tax debtors with only an IRSNotice CP 508C in hand may find them-selves calling the phone number on thenotice itself seeking a remedy that theIRS is not empowered to provide.As with any IRS program, there are

additional rules and exceptions. Infact, the IRS even states in the InternalRevenue Manual that the “discre-tionary exclusion categories are sub-ject to change in the future.” Thereare also constitutional argumentsagainst this mode of enforcement yet

to be tested in the courts. But until thedust settles, tax debtors, with hopesof international travel will be goingnowhere FAST.

Note: Eric L. Morgenthal, Esq., CPA,M.S. (Taxation) maintains his tax lawpractice in Melville, New York, special-izing in International, Federal and NewYork State tax controversy matters. Mr.Morgenthal is currently the SCBA Tax-ation Law Committee Co-Chair and for-merly served as New York Chapter Pres-ident of the American Association ofAttorney-CPA’s.

Tax Scofflaws, Going Nowhere FAST (Continued from page 8)

cuss with IRS officials the problemsthat the tax community is anticipatingunless changes are made to the pro-posed regulations.If you represent a partnership or are

negotiating a transaction for a partner-ship; or have invested in a partnership,or are operating as an LLC or LLP, re-view the agreement to determine how tomove forward in partnership-agreementunchartered IRS audit waters. The at-torney’s primary obligation should be toinform his/her clients as to what’s com-ing and to have the client decide whatcourse of action to take.

Note: Alan E. Weiner, CPA, JD, LL.M.foundedHoltz RubensteinReminick LLP’stax department in 1975 and headed itthrough 2006.He is active on the tax com-mittees of the Bar Associations of SuffolkCounty and Nassau County, and the NewYork State Society ofCPAs (NYSSCPA), forwhich he served as the 1999-2000 Presi-dent and also as aChairman of its TaxDi-vision Executive Committee. Alan servedon the Executive Committee of DFK In-ternational, a worldwide association ofindependent accounting firms, and for-merly was the chairman of its interna-

tional tax committee. He is a past chair-man of the Partnership/LLCTaxCommit-tee of theNYSSCPAand hewas amemberof the 1992 NYSSCPA Limited LiabilityCompany Task Force that worked withgovernment officials towards enacting theNew York State LLC law (which was ac-complished in 1994). He is the author of“All About Limited Liability Companiesand Partnerships” and DFK Interna-tional’s “Worldwide Tax Overview.”

This written correspondence does notconstitute an opinion and is not in-tended or written to be used, and it can-not be used, by any taxpayer for thepurpose of avoiding penalties that maybe imposed on the taxpayer.1 Internal Revenue Code §§ 6221 – 6241 - Sec-tion 1101 of the Bipartisan Budget Act of 2015(BBA), which was enacted into law on Novem-ber 2, 2015, and amended by the ProtectingAmer-icans From Tax Hikes Act of 2015.https://www.congress.gov/bill/114th-con-gress/house-bill/1314/text and https://waysand-m e a n s . h o u s e . g o v / w p - c o n t e n t / u p -loads/2015/12/PATH_Act_xml.pdf.2 Proposed regulations implementing the cen-tralized partnership audit regime enacted by theBipartisan Budget Act of 2015 (BBA)https://www.irs.gov/irb/2017-28_IRB.3The formal name of theAct, enacted December

22, 2018, is “Act to provide for reconciliation pur-suant to titles II and V of the concurrent resolu-tion on the budget for fiscal year 2018”.https://www.congress.gov/bill/115th-con-gress/house-bill/1/text.4 Final regulations for electing out of the central-ized partnership audit regime were issued on Jan-uary 2, 2018. https://www.federalregister.gov/doc-uments/2018/01/02/2017-28398/election-out-of-the-centralized-partnership-audit-regime.5Model Uniform Statute and Regulation for Re-porting Adjustments to Federal Taxable Incomeand Federal PartnershipAuditAdjustments - Re-vised Draft (Version #3)http://www.mtc.gov/getat-tachment/Uniformity/Project-Teams/Partnership-Informational-Project/2017-09-27-Proposed-Model-RAR-Statute-w-BBA-Provisions-Submitted-to-_.pdf.aspx and https://www.aic-pa.org/ADVOCACY/TAX/DownloadableDoc-ument s /S ta t e -Conformi ty - to -Federa l -Partnership-Audit-Rules-One-Pager-post.pdf.6 https://www.federalregister.gov/documents/2017 /12 /19 /2017 -27071 / c en t r a l i z ed -partnership-audit-regime-rules-for-election-under-sections-6226-and-6227-including-rules.7“On December 6, 2016, Congress introduced theTaxTechnical CorrectionsAct of 2016 (H.R. 6439,S. 3506) (Tax Technical CorrectionsAct) whichcontains what are described as technical correc-tions to the centralized partnership audit regimeand other corrections to the Bipartisan BudgetActof 2015. The Tax Technical Corrections Act ad-dresses a number of the provisions of the cen-tralized partnership audit regime enacted as partof BBA. The Tax Technical CorrectionsAct, how-ever, was not enacted by Congress.”https://www.irs.gov/irb/2017-28_IRB ;https://www.gpo.gov/fdsys/pkg/BILLS-

114hr6439ih/pdf/BILLS-114hr6439ih.pdf.8 https://www.federalregister.gov/documents/2017/11/30/2017-25740/centralized-partnership-audit-regime-international-tax-rules.9Proposed regulations were issued on February 2,2018. https://www.federalregister.gov/docu-ments/2018/02/02/2018-01989/centralized-partnership-audit-regime-adjusting-tax-attributes.10 https://www.irs.gov/pub/irs-pdf/i1065.pdf.11ABACommentsonNewPartnershipAuditRegimehttps://www.americanbar.org/content/dam/aba/ad-ministrative/taxation/policy/091117comments.au-thcheckdam.pdf.AICPAComment Letter on Centralized Partner-ship Audit Regime https://www.aicpa.org/Ad-vocacy/Tax/DownloadableDocuments/AICPA-Comment-Letter-on-Centralized-Partnership-Audit-Regime.pdf.NYSBA Letter and Report commenting on theProposed Regulations Related to the PartnershipAudit Rules of the Bipartisan BudgetAct of 2015https://www.nysba.org/Sections/Tax/Tax_Sec-tion_Reports/Tax_Reports_2017/Tax_Sec-tion_Report_1378.htmlAICPARequests Delay in Effective Date on Part-nership Audit Provisionshttps://www.aicpa.org/content/dam/aicpa/advo-cacy/tax/downloadabledocuments/20180104-aic-pa-request-for-delay-of-effective-date-of-bba-partnership-audit-provisions.pdf.12Transcript of September 18, 2017, IRS Hearingon proposed Regulations (Reg-136118-15) onCentralized Partnership Audit Regimehttp://www.meadowscollier.com/58DDFE/as-sets/files/Documents/www.taxnotes.com_tax-notes-today_basis_reliance-longtime.pdf.

Why Attorneys Need to Be Concerned About Partnership Tax Audits (Continued from page 16)24 THE SUFFOLK LAWYER – MARCH 2018

President’s Message (Continued from page 1)

ingness to subordinate narrow self-in-terest in pursuit of the more fundamen-tal goal of public service. Because of thetremendous power they wield in our sys-tem, lawyers must never forget that theirduty to serve their clients fairly andskillfully takes priority over the per-sonal accumulation of wealth. At thesame time, lawyers must temper boldadvocacy for their clients with a sense ofresponsibility to the larger legal systemwhich strives, however imperfectly, toprovide justice for all.”We cultivate knowledge, sound rea-

soning and skillful advocacy throughyears of practice. Ensuring competencyis vital as clients expect that we willhave the legal knowledge and expertiseto help them through their problems.We can stay abreast of changing prece-dent and new legislation by attendingCLE programs that give us all a greaterunderstanding of the challenging andcomplex issues involved in fulfillingour professional responsibilities.

The mission of the Suffolk CountyBarAssociation is, “to cultivate the sci-ence of jurisprudence, promoting re-forms in the law, facilitating and im-proving the administration of justice,elevating the standards of integrity,honor and courtesy in the legal profes-sion, and cherishing the spirit of broth-erhood and sisterhood among the mem-bers of our association.” Thefoundation upon which ourAssociationhas so successfully accomplished this

mission is evident in its tradition of ci-vility and professionalism.The SCBA provides its membership

with opportunities to improve their pro-fessional skill and knowledge,strengthen the administration of justice,keep members informed of significantdevelopments in their area of practiceand shape policy on issues in law, whileassisting its members to adhere to thehighest ethical standards.Mentoring other lawyers in practical

skills and substantive and proceduralissues is an investment in professionaldevelopment that raises the bar for theentire legal community. Collegialityfinds expression in the willingness ofour members to mentor their fellowattorneys, to guide them not only in thepractice of law, but to demonstrate thatcivility is the mark of an accomplishedprofessional. By asking for help whenneeded and providing guidance to oth-ers when you can, enriches our pro-fessional lives to the benefit of oursystem of justice. Experienced prac-titioners are listed in the SCBA’s mem-bership directory according to area ofexpertise to assist, and to be availableto answer questions from another prac-titioner.The SCBA advances the core values

of professionalism by its collegialityand inclusiveness, opening its doors toall members. Becoming involved is agreat way to network with other attor-neys, to advance your professional de-

velopment and to keep abreast of legalknowledge. Our Association offers awide range of resources for attorneysengaged in both private practice and thepublic sector. I have found networkingevents, CLE programs and committeemeetings to be a great way to stay con-nected to the legal community and areinvaluable for the growth of profes-sionalism.Principles of professionalism are a

synthesis of the values that everylawyer’s reputation should reflect, in-corporating a duty to serve the needs ofthe client, using independent judgmenton behalf of the client, while beingmindful of the duty to respect the rule oflaw and the administration of justice.Advocating zealously for our clients en-compasses acting with courtesy, integrity

and fairness, rather than using abusive oroffensive tactics. Maintaining our re-sponsibility to ensure civil conduct inthe advancement of our clients’ inter-ests is a hallmark of professionalism.The journey of professionalism is

continuous, calling us to be mindful ofthe values that serve our clients and thepublic good. There is a tradition withinthe bench and bar of Suffolk County ofthese core values of professionalismthat is evident and must be nurtured forfuture generation of lawyers. TheSCBAgives unparalleled opportunitiesto continue this tradition, to furtherthese values to enrich our professionallives, giving us the opportunity to worktogether to improve the law, the pro-fession, and the administration of jus-tice for all.

Sec. 7434. After judgement for the doc-tor on the question of liability, the courtfocused on the amount of damages (thedoctor sought reimbursement of approx-imately $327,000 of fees and costs in-curred over the ELEVEN years to date).The court allowed reimbursement forreasonable legal, accounting and expertwitness fees, stating that “it would be amajor injustice for the plaintiff to be bearunrecompensed the amounts expended”to demonstrate the fraud.

Note: James O’Connor, JD, LLM (Tax),is a tax partner with Albrecht, Viggiano,Zureck & Company, P.C. His practice pri-marily involves federal and state tax re-search/planning, tax audits/appeals, trustandestate taxmatters, andestate/successionplanning. He is a former IRS Agent/Man-ager,Co-Chairof theSCBATaxCommittee,Presidentof theNassauCountyEstatePlan-ning Council, and Chair of the FinanceCommittee for The St. VincentDePaul So-ciety of the Diocese of Rockville Centre.

’Tis the Season... (Continued from page 8)

ViolationsA16 or 17-year-old at the time the act

was committed and who was adjudi-cated a juvenile delinquent for a viola-tion may receive either probation or aconditional discharge for a disposition.FCA Sec. 352.2(4). This applies in acase where a misdemeanor and a viola-tion committed by a 16 or 17-year-oldwas part of the same criminal transactionor he or she enters an admission to a vi-olation or is found, after a fact-findinghearing, to have committed a violation.There are additional and interesting

considerations to note about new law.

Juvenile delinquency placementsOr how long will your client stay de-

tained under the new law?Placement with OCFS/DSS for up to

12 or 18 months may be extended untilage 21 without respondent’s consent ifrespondent was 16 or 17 at the time thecrime was committed. FCA Sec.355.3(6). Also, designated felony re-strictive placement with OCFS (3 or 5year) may be extended until age 23without respondent’s consent if respon-dent was 16 or 17 at the time the act wascommitted. FCA 353.5 (4)(D).

Custodial InterrogationUpon arresting an AO or JO, police

must notify a parent, guardian or otherperson that he or she lives with, that thejuvenile is in custody and the locationof where he or she is being detained.CPL Sec. 140.27(5). Custodial interro-gation of a 16 or 17-year-old allegedAO or JO must take place at the homeor in a facility designated by OCA forsuch questioning. CPL Sec. 140.20(6).Finally, if the parent/guardian or co-domiciliary is present, then the defen-dant and that person must be advised ofdefendant’s Miranda rights. CPL Sec.140.20(6); 6(A).Factors at a Huntley hearing will in-

clude according to CPL Section140.20(6); 140.27(5); 140.40(5):• Was it a reasonable period of time toquestion the JO/AO?

• What is the defendant’s age?• Was there the presence/absence of aparent/guardian?

• Did police comply with notificationrequirement to a parent or guardian?

Victim’s rights: (or lack thereof) atdisposition in delinquency case undernew law:The victim has the right to make a

statement in court for disposition but . .. “the victim shall not be made aware ofthe final disposition of the case.” FCASec. 350.3(4) (Emphasis added).The purpose of this article is to sim-

ply report on the new law. In the firstarticle it was explained what has beenpurported to be the genesis of the sci-ence behind the Raise the Age legisla-tion as well as the many sides of the ar-guments regarding New York’scriminal law reform that resulted inthis legislation. It seems impossible tonot mention that to the extent that itcould be interpreted to allow the Fam-ily Court to exclude the victim fromthe courtroom, this section plainly ap-pears to be violating the victim’s equalprotection rights. See In Re M.F., 12Misc. 3d 1164 (A) (FAM. CT.,BRONX CO. 2006) and Matter ofM.S., 173 MISC.2D 656 (FAM. CT.,WESTCHESTER CO. 1997). It ispossible, by the plain reading of thenew legislation, to interpret that onlythe victim of the crime is barred fromthe courtroom.Whether you believe as the law’s de-

fenders do, that this legislation “is ameasured and well-thought-out ap-proach to crime and the still-forming

consciousness of youthful offenders”or you believe as many do that it doesnot go far enough to protect young in-dividual’s rights one thing remainsconstant: It will be up to the judgesand the many practitioners, defense, andprosecution alike, to discover, debateand ultimately resolve the many issuesthat appear to exist before this compre-hensive legislation has even been im-plemented.

This article is a continuation of theseries which appeared first in the Octo-ber and December 2017 issues of theSuffolk Lawyer. The articles detailed theRaise the Age Legislation which goesinto effect in October.

Note: Renée Pardo is a PrincipalAssistant County Attorney for SuffolkCounty and a Suffolk Criminal Bar As-sociation board member. She handlesabuse, neglect, and juvenile delin-quency cases in Family Court. Prior toher appointment, Renée was in practicehandling primarily criminal cases andwas a bilingual 18b attorney. She hasserved as an Assistant District Attorneyin Suffolk County and Tarrant CountyTexas.

withdrawal. Importantly, however, therecord revealed that while proponent’scounsel had no obligation to explain thewaiver to the movant, he neverthelessincluded a letter to the movant, with thewaiver form, clearly explaining its legalramifications. Further, the court ob-served that the movant did not allegethat he was suffering from a legal dis-ability at the time the waiver wassigned, or that it had been procured byfraud or misrepresentation.Finally, despite allegations by the

movant that, inter alia, a lawyer wasnot present when the will was executed,that the identity of the draftsperson wasunknown, that the decedent sufferedfrom physical and mental impairments,as evidenced by his squalid living con-ditions, and that the decedent may havebeen unduly influenced by the sole ben-eficiary, the court concluded that theseclaims failed to demonstrate that themovant had potentially meritoriousgrounds for objecting to probate.Accordingly, the court held that suf-

ficient grounds had not been establishedto set aside the waiver, and the motionwas denied.

In re Weiss,N.Y.L.J., July 13, 2017,at p. 22 (Sur. Ct., NewYork County).

Removal of administratorIn In re Walsh, the court granted the

fiduciary’s motion to dismiss a pro-ceeding to remove her as administrator.The fiduciary was the decedent’s formerspouse. The petitioner, the decedent’sbrother, sought her removal pursuant tothe provisions of SCPA711(4), claimingthat she failed to list the cost of thedecedent’s funeral as a debt of the es-tate. In addition, petitioner claimed thatthe administrator had failed to informthe court of the terms of her separationagreement with the decedent, by whicheach party waived the right, inter alia, toserve as administrator or executor ofthe other’s estate.The court held that the administrator

was appointed fiduciary by virtue of herstatus as guardian of the infant child ofher marriage to the decedent, and not asa result of her relationship with thedecedent. Thus, the court concluded thatthe fiduciary’s appointment was not vi-olative of the terms of her separationagreement with the decedent, whichonly addressed the rights of the partiesbased upon their spousal status, and herfailure to inform the court of same didnot constitute a false suggestion of amaterial fact warranting her removal.

In re Walsh, N.Y.L.J.,Aug. 29, 2017,at p.31 (Sur. Ct., Albany Co.).

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 Bar

Association Trusts and Estates Law Sec-tion, and a past-President of the SuffolkCounty Bar Association.

Raise the Age — Dispositions, Victims, Placements and Extensions (Continued from page 14)

Trusts and Estates Update (Continued from page 14)


ceedings against the respondent, andthe matter was referred to a special ref-eree. Following a conference and ahearing, the special referee sustainedall charges against the respondent. Thecharges against the respondent alleged,inter alia, that he had engaged in self-dealing and a conflict of interest, as aguardian of the person and property ofan incapacitated person, as evidenced,amongst other things, by his failure todisclose to the Supreme Court that, dur-ing the pendency of his stewardship,he had personally benefitted from a realestate transaction that he had under-taken on behalf of his ward. Twelvecharges of misconduct were lodgedagainst the respondent, and yet, ac-cording to the special referee, hedemonstrated little remorse. The re-spondent requested, in mitigation, thatthe court consider that he was not thesubject of a claim of stealing escrowfunds or absconding with settlementproceeds; that he did not engage in de-liberate or intentional misconduct; that

he had since withdraw his name fromthe list of attorneys eligible to be ap-pointed guardian, and that he wouldnever in the future accept any matter inwhich he was not proficient or whichposed a risk of a conflict of interest.Nevertheless, despite the respondent’sunblemished 30-year career, the courtfound that the severest of sanctions waswarranted due to respondent’s covertself-dealing, the abuse of his fiduciaryposition, despite his familiarity withguardianship matters, and his lack of re-morse. Accordingly, under the totalityof circumstances, the respondent wasdisbarred from the practice of law in theState of New York.

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 President of the Suffolk County BarAssociation and past Chair of the NewYork State Bar Association Trusts andEstates Law Section.

Court Notes (Continued from page 6)


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

ACADEMY OF LAW

Andrea Amoa

Leonard Badia

Hon. Paul J. Baisley, Jr.

Kenneth A. Brown

Vincent Danzi

Paul Devlin

Michael G. Glass

Jeffrey Horn

Cooper Macco

Brittany C. Mangan

Cory Morris

Hon. James F. Quinn

Marianne S. Rantala

Debra L. Rubin

Arthur E. Shulman

Jason A. Stern

Peter Tamsen

Janna P. Visconti

David Welch

Paraskevi Zarkadas

DEAN Patrick McCormick EXECUTIVE DIRECTOR Cynthia Doerler

OFFICERS

The Suffolk Academy of Law, the educational arm ofthe Suffolk County Bar Association, provides a com-prehensive curriculum of continuing legal educationcourses.Programs listed in this issue are some of thosethat will be presented during the Winter of 2018.

REAL TIME WEBCASTS: Many programs are availableas both in-person seminars and as real-time webcasts.To determine if a program will be webcast, please checkthe calendar on the SCBA website (www.scba.org).

RECORDINGS: Webcast programs are available ap-proximately one-week after the live program, as on-linevideo replays, as DVD or audio CD recordings.

ACCREDITATION FOR MCLE: The Suffolk Academyof Law has been certified by the New York State Con-tinuing Legal Education Board as an accreditedprovider of continuing legal education in the State ofNew York. Thus, Academy courses are presumptive-ly approved as meeting the OCA’s MCLE requirements.

REMINDERS: Cancellations for a full refund must bereceived within 24 hours before the course.You will beable to receive a credit for your next live program upto three months after the scheduled program.

Program Locations: Most, but not all, programs are heldat the SCBA Center; be sure to check the website list-ings for locations and times.

Tuition & Registration: Tuition prices listed in the reg-istration form are for discounted pre-registration. At-doorregistrations entail higher fees. You may pre-registerfor classes by returning the registration form with yourpayment. Sign up on line at: https://www.scba.org/sal-regform.php. Non SCBA Member Attorneys: Tuitionprices are discounted for SCBA members. If you attenda course at non-member rates and join the SuffolkCounty Bar Association within 30 days, you may ap-ply the tuition differential you paid to your SCBA mem-bership dues.

Americans with Disabilities Act: If you plan to attenda program and need assistance related to a disabili-ty provided for under the ADA, please let us know.

Disclaimer: Speakers and topics are subject tochange without notice. The Suffolk Academy of Lawis not liable for errors or omissions in this publicity in-formation.

Tax-Deductible Support for CLE: Tuition does not ful-ly support the Academy’s educational program. As a501(c)(3) organization, the Academy can accept yourtax deductible donation. Please take a moment, whenregistering, to add a contribution to your tuition payment.

Financial Aid: For information on needs-based schol-arships, payment plans, or volunteer service in lieu oftuition, please call the Academy at 631-233-5588.

INQUIRIES: 631-234-5588.

NOTEWORTHY –

If you have paid for a live program and were not ableto attend, you will be able to receive a credit for yournext live program up to three months after the sched-uled program.

The Academy will no longer offer a discount for on-linepre-registration beginning June 1, 2017.

We invite you to plan a course or suggest a topic for CLEcredit. Contact Dean, Patrick McCormick or ExecutiveDirector, Cynthia L. Doerler at [email protected].

Materials for all Academy programs are provided on-line and are available for download in PDF format pri-or to or at the time of the program. Printed materialsare available for an additional charge. Register on-lineat: https://www.scba.org/salregform.php.

March 2018 CLE Programs March 1, 2018

Hot Topics in Foreclosure5:45 p.m. – 8:35 p.m.SCBA Center, Hauppauge3.0 Professional Practice [Transitional and Non-Transitional]$90 SCBA Members; $120 Non-Members

Handling foreclosures? This timely topic in foreclosurelaw will save you needless hours of preparation bykeeping you up-to-date about contract statute oflimitations applied to architect’s malpractice action,agreements waving the statute of limitations, andobligations barred by statutes of limitation. Experiencedpractitioners will discuss in detail:

• Statute of Limitations in Mortgage Foreclosures• Failure to prosecute dismissals and voluntarydiscontinuance

• Developments in RPAPL §1304 • Referee Hearings, CPLR Article 43• Bad faith sanctions for failure to modify loans

Faculty: Hon. Robert F. Quinlan, Hon. James C. Hudson,Glenn P. Warmuth, Esq., Nicole Schiavo, Esq., CharlesWallshein, Esq.

Coordinators: Hon. John J. Leo, Charles Wallshein, Esq.

March 5, 2018

Annual Matrimonial Update6:00 p.m. – 8:50 p.m.SCBA Center, Hauppauge3.0 Professional Practice [Transitional and Non-Transitional]$115 SCBA Members; $130 Non-Members

If you are practicing matrimonial law, this is a mustattend program. The program will include an extensivereview and update on many of the groundbreaking casesdecided in the matrimonial parts since last year’smatrimonial update. The summary of the new casesprovided during the lecture will be an important additionto your legal research library.

Faculty: Vincent F. Stempel, Esq., former Chair of theNew York State Bar Association Matrimonial Section.

Coordinator: Arthur E. Shulman, Esq.

March 8, 2018Thursdays at the

CourthouseInteractive Evidence

12:45 p.m. – 1:35 p.m.Central Islip Courthouse, Central Jury Room3.0 Professional Practice [Transitional and Non-Transitional]$30 SCBA Members; $45 Non-Members

Faculty:Honorable John J. Leo

March 15, 2018

Don’t Lien on Me: Medicaid and Medicare

Liens and Recovery5:45 p.m. – 8:30 p.m.SCBA Center, Hauppauge3.0 Professional Practice [Transitional and Non-Transitional]$90 SCBA Members; $120 Non-Members

Do you know the difference between Medicaid liens andestate recovery? This program addresses complex issuesrelated to Medicaid and Medicare liens and recovery. JoanRobert, Esq., will discuss the ABLE Act, the MedicalIndemnity Fund, lawsuits against residential health carefacilities, MAGI Medicaid and drafting tips forSupplemental Needs Trusts (SNTs) all in the context ofMedicaid liens and recovery. Beth Polner Abrahams, Esq.will discuss the difference between Medicaid liens andestate recovery rules, exceptions to Medicaid liens andestate recovery, “Medicaid incorrectly paid” and its impacton recovery, treatment of excess resources under ADMsand in Article 81 proceedings. John Tomsky, Esq. willdiscuss Medicare and Medicaid recovery against personalinjury settlements and related topics such as Workers’Compensation liens.

Faculty:Joan Robert, Esq., Kassoff, Robert & Lerner, LLP, BethPolner Abrahams, Esq. and John Tomsky, Esq.Program Coordinators:Eileen Coen Cacioppo, Esq., & Janna P. Visconti, Esq.

(Continued on next page)


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

March 12, 19 and 26 2018Matrimonial “Mondays”

in March6:00 p.m. – 8:50 p.m.SCBA Center, Hauppauge3.0 Professional Practice [Transitional and Non-Transitional]$90 SCBA Members; $120 Non-Members

Session 1: Contempt and Other EnforcementMechanisms (Income Executions, InformationSubpoenas, Restraining Orders and Hearings/Trials)March 12, 2018, 6:00 – 8:50 p.m.

Panel Members: Christopher Chimeri, Esq.; Robert A.Cohen, Esq.; Hon. George F. Harkin; Support MagistrateDarlene Jorif-Mangane and Harry Tilis, Esq.This portion of the Matrimonial Series will teach you

how to ensure your agreement or court order is followedby sending a clear message to the other party thatviolations are unacceptable and will be met withconsequences.MCLE CREDITS: 3.0 Professional Practice

Session 2: Expert Testimony in Matrimonial ActionsMarch 19, 2018, 6:00-8:50 pm Panel Member: Stephen Gassman, Esq.

Featured speaker Stephen Gassman, Esq. will help youwhen expert testimony is needed. In this session you willlearn:

• Preparation and examination of business and realestate appraisers, and mental health professionals

• Evidentiary considerations• Strategies and suggestions you can use

MCLE CREDITS: 3.0 Professional Practice

Session 3: Preparing Your Client to be An Effective andCredible Witness (Depositions and Trial)March 26, 2018, 6:00-8:50 pm Panel Members: Hon. James Quinn, Hon. Cheryl Joseph,Jeff Horn, Esq., Howard Leff, Esq., Debra Rubin, Esq.

This session will teach you how to prepare your client tobe an effective deposition and trial witness; the stepsneeded to prepare; rules for clients to follow;communications with your client during depositions and trial;helping your client to avoid pitfalls during cross-examination;and what the Judge will look for in assessing credibility.MCLE CREDITS: .5 Professional Practice; 2.0 skills; .5Ethics All MCLE credit hours: Transitional or Non-Transitional(through the Suffolk Academy of Law, a New York Stateaccredited provider of mandatory continuing legaleducation).

March 21, 2018

Annual Bankruptcy Update5:00 p.m. – 8:00 p.m.SCBA Center, Hauppauge3.0 Professional Practice [Transitional and Non-Transitional]$125 SCBA Members; $155 Non-Members

This year’s program will focus on recent bankruptcydecisions and trends of importance. The program will alsoencompass Chapter 13 and Chapter 7 issues affectingyour bankruptcy law practice.Faculty: Hon. Alan S. Trust, U.S. Bankruptcy Court Judge;Hon. Robert E. Grossman, U.S. Bankruptcy Court Judge; Hon.Louis A. Scarcella, U.S. Bankruptcy Court Judge; Michael J.Macco, Esq., Salvatore LaMonica, Esq., Kenneth Silverman,Esq., Mickee Hennessy, Esq., Richard L. Stern, Esq.Program Coordinator: Richard L. Stern, Esq.

Wednesday, March 21, 2018School District Elections:

An Introspective Examination12:30 p.m. – 2:30 p.m.SCBA Center, Hauppauge2.0 Professional Practice (Transitional and Non-Transitional)$60 SCBA Members; $90 Non-Members

Faculty: Neil M. Block, Esq., Ingerman Smith LLP; ThomasM. Volz, Esq., Law Offices of Thomas M. Volz, PLLC

March 22, 2018

Negligence A-Z5:30 p.m. – 9:10 p.m.SCBA Center, Hauppauge2.0 Professional Practice; 2.0 Skills [Transitional and Non-Transitional]$120 SCBA Members; $150 Non-Members

Learn what it takes to bring a successful action fornegligence. This program contains explanations of all ofthe essential elements of a negligence case including: • Assessing a potential case• Setting up a client file• Arranging for appropriate medical examinations• Handling pre-trial issues • Completing forms and pleadings• Assessing settlement offers and prepare for a trialYou will hear about current case law on, automobile

cases; premises cases, labor law, dog bite cases, workers’compensation, actions against municipalities NYS cases,special service provisions, joint and several liability, andvicarious liability.Faculty: Sam Felberbaum, Esq.

March 29, 2018The Deposition Whisperer

6:00 p.m. – 7:50 p.m.SCBA Center, Hauppauge1.0 Skills; 1.0 Ethics [Transitional and Non-Transitional]$60 SCBA Members; $90 Non-Members

Depositions are crucial disclosure devices and arealmost always needed to adequately prepare for a casethat would ultimately go to trial. By sharing provenstrategies, the program will give attendees an insight intohow seasoned litigators and successful trial lawyersconduct depositions. The program will integrate case law,statute and Court Rules, practical concerns, and ethicalconsiderations as well as specific strategies to enableeven the least experienced attorneys depose a witnesslike a seasoned pro.

Faculty:Charles Bonfante, III, Esq., Owner/Founding Partner –The Bonfante Law Firm, P.C.Coordinator: Paul Devlin, Esq.

The Academy of Law would like to thank the following sponsors for their generous support.

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Purchase DVD’s andCD’s of Prior ProgramsMissed a program? On vacation? Need your CLE

credits quickly?The Academy offers scores of pre-recorded pro-

gram online, covering various area of practice. All pro-grams are approved for CLE credit. Our “cyber-library” courses include:

Call (631) 234-5588 or email [email protected] your order.

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