Read LI Life Calendar text version

A PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

DEDICATED TO LEGAL EXCELLENCE SINCE 1908

SUFFOLK LAWYER

website: www.scba.org

Vol. 24 No 9 October 2008

photo credit: Arthur Shulman

Bar and Bench Come Together in Style

Enjoying a light moment at Judiciary night were, from left, John H. Gross, Esq., Past President of SCBA; James Winkler, Esq., SCBA President; Richard Hamburger, Esq.; and John P. Bracken, Esq., Past President of SCBA and New York State Bar Association.

THE

Hon. H. Patrick Leis III, Supreme Court Judge & District Administrative Judge; James Winkler, President SCBA; and Hon. A. Gail Prudenti, Presiding Justice Appellate Division Second Department attended Judiciary Night.

Judiciary Night, an evening when the Suffolk County Bar Association honors the County's judiciary, was truly a wonderful event, held at the elegant Hyatt Regency Wind Watch Hotel in Hauppauge. Held annually, Judiciary Night is a way to say thank you to the many judges in Suffolk County. Additionally, it provides SCBA members with an opportunity to informally speak directly to the judges they so respect and while enjoying a wonderful dinner, also socialize with their colleagues. SCBA President James Winkler marveled at how many judges attended

Judges cannot leave decisions to others. Judiciary Night this year. He paid homage They must use mind, intellect and heart to them by reading a short piece written to weigh competing interests, about judges adding that the analyze the law, decide on the piece "connected with me; facts and search for a just it's what my vision of a judge is and the relationship I've FOCUS ON conclusion... Being a judge means having confidence tried to forge with them." without conceit, decisiveness Here are some of the highwithout arrogance and paslights as written by Justice sion without pretension. It Joseph P. Nadeau: "Perhaps first and fore- SPECIAL EDITION means remembering where you came from and knowing most, being a judge means who you are. It means being trusting your instincts and aware of the conditions and circumfollowing them. The hard decisions a stances under which the people who trial judge makes are made in solitude...

REAL ESTATE LAW

come before you live and act. Being a judge means using common sense as well as the law to handle problems, problems that sometimes seem impossible to solve... It means being evenhanded at all times....Being a judge means following the law, applying the constitution and protecting rights even under the most trying and outrageous circumstances. It means recognizing that the great principles upon which America was founded and endures apply not just to the best of us, not just to the worst of us, but to all of us." More Judiciary Photos on page 15

INSIDE...

OCTOBER 2008

SPECIAL SECTION ­ REAL ESTATE LAW IRC §1031 Tax Deferred Exchanges Effected by Housing Assistance Tax Act ............3 Dispelling the 30 Day Rule Simply put, it's a myth .........................................5 A Major Change in Career Going from bank attorney to short sales.............4 SCBA WINE TASTING Join the North Fork wine tasting tour ................6 18 ­ 24 YEAR OLDS OFTEN DON'T VOTE If you're going to play the game pick a side.......7 Lawyers Assistance Foundation Luncheon Encourages senior members to mentor.............14 Hot Picks Virgin Mobile Festival amazing ........................18 ________________________________________ Legal Articles American Perspectives ......................................19 Bench Briefs........................................................3 Commercial Litigation ......................................12 Consumer Bankruptcy.......................................16 Commercial Litigation ......................................12 Court Notes .......................................................12 DWI ...................................................................17 Employment Law ..............................................10 Pro Bono..............................................................9 Second Circuit Briefs ........................................13 Technology ........................................................11 Trusts and Estates..............................................17 ________________________________________ Academy New ...................................................28 Advantage Card Listing ....................................19 Among Us ...........................................................8 Calendar: Academy ...........................................28 Calendar: SCBA..................................................2 Secretary's Message ............................................2

PRESIDENT'S MESSAGE

BAR BRIEFS

Lawyer Assistance Foundation Golf Tournament ­ Tribute to Corporal Levi Tuesday, Oct. 21 1 p.m.

The Golf Tournament will be held at the Westhampton Country Club, Westhampton Beach. Shotgun begins at 1 p.m. Special tribute to Army Corporal Christopher Levi (see flyer inserted in this edition for further information). Please join his family and friends for a day of tribute to this remarkable young soldier.

Diversity... How Important Is It To The SCBA?

___________________ By James R. Winkler

James R. Winkler

Peter Sweisgood Dinner Thursday, Nov. 13 6 p.m.

The SCBA's Lawyers' Committee on Alcohol & Drug Abuse will host its annual Peter Sweisgood dinner at the Hyatt Regency Wind Watch Hotel, Hauppauge. For further information, call the Bar Center.

On October 3, 2008 I had the pleasure, as did many members of our association, to attend the Annual Dinner of the Long Island Hispanic Bar Association at the Larkfield Manor in East Northport. Despite so many similarities among us in the legal profession, the dinner had a strikingly different tone than so many of the dinners I have attended on behalf of the main Bar Association of our County. The evening was elegant, festive and warm. That is not so unusual. We have had many of those types of events. The difference at this dinner was that the evening was filled with something special not often experienced in our legal community. Hispanic lawyers, African American lawyers, Asian lawyers and those of us who fit the stereotype of the Suffolk County practitioner joined in a celebration of our common cause...to deliver quality legal services throughout this County. This is unusual in one of the most segregated counties in the nation. I for one believe that we will all be better lawyers if we find

(Continued on Page 21)

North Fork Wine Tasting Tour Saturday, 11/15 at 9:45 a.m.

Meet at the bar for coffee and bagels at 9:15 a.m. Then travel by coach bus to three wineries including: Lieb Family Cellars in Mattituck, Diliberto Vineyard & Winery in Jamesport which includes lunch, and then to the Roanoke Vineyards in Riverhead. And then, as is tradition, the final stop of the day will be Briermere Farms, where members can purchase only the freshest fruits and vegetables Long Island has to offer but also some tasty treats from their fabulous onsite bakery. For further information see article by Dennis Chase inside this edition.

Holiday Party, Friday, 12/12 from 4 to 7 p.m.

Join your colleagues for our annual Holiday Party at the Bar. Complimentary buffet included.

2

THE SUFFOLK LAWYER -- OCTOBER 2008

Suffolk County Bar Association

560 Wheeler Road · Hauppauge NY 11788-4357 Phone (631) 234-5511 · Fax # (631) 234-5899 E-MAIL: [email protected]

SECRETARY'S REPORT

_______________ By Dennis Chase

Board of Directors 2008-2009

James R. Winkler Ilene S. Cooper Sheryl L. Randazzo Matthew E. Pachman Arthur E. Shulman Dennis R. Chase Patricia M. Meisenheimer Ted M. Rosenberg Richard L. Stern Richard Alan Weinblatt Lynne M. Gordon Maureen T. Liccione Hon. Peter H. Mayer Daniel J. Tambasco Hon. W. Gerard Asher Annamarie Donovan Joseph A. Hanshe George R. Tilschner Robert F. Quinlan John L. Buonora Barry M. Smolowitz Sarah Jane La Cova President President Elect First Vice President Second Vice President Treasurer Secretary Director (2009) Director (2009) Director (2009) Director (2009) Director (2010) Director (2010) Director (2010) Director (2010) Director (2011) Director (2011) Director (2011) Director (2011) Past President Director (2009) Past President Director (2010) Past President Director (2011) Executive Director

you won't be sorry. Anyone that can take the driest of case Yes it's my job to report to law and make it sound interestyou the goings-on here at the Bar ing and exciting deserves your Association, but I'll try to do so rapt attention. without being overly dry. I say Onward, we would like to this as I draft this report followagain invite you to the Lawyers' ing Professor David D. Siegel's Assistance Foundation's Annual Annual New York Civil Practice Golf Tournament (a special tribUpdate on September 25, at the ute to Corporal Christopher Levi, Hyatt Regency Wind Watch Dennis R. Chase U.S.A.) at the Westhampton Hotel. Now here's a member Country Club, Westhampton benefit . . . watching the master perform, Beach on October 21. And it is my special and entertain he does. If you haven't honor to invite one and all to the Peter taken the opportunity to enjoy (yes, I said Sweisgood Dinner on Thursday, enjoy) these three hours of continuing November 13th at 6:00 p.m. again, at the legal education, then you are missing Hyatt. This is a dinner hosted by the something really special. If you have the SCBA's Lawyers' Committee on Alcohol opportunity to experience a part of histo& Drug Abuse, a committee with a very ry, then by all means do so . . . if not this serious purpose, incredibly lofty ambitions, year, then most certainly next year; this and many many success stories. The dinoffer won't be around forever. Professor ner may best be described as inspirational. Siegel will soon be celebrating his 77th For further information, call Marion at the birthday and while still as sharp as a tack, Bar Center (631) 234-5511 ext. 230. I fear his lecturing days may be limited. Although it's not as yet Halloween, since Take advantage of this opportunity and (Continued on page 20)

Articles and Special Section Editors for 2008-09:

Date 2008 December 2009 February April June Special Section Family and Matrimonial Elder Education Women & the Law SS Editor Arthur E. Shulman Jennifer B. Cona Christopher Gatto Allison C. Shields

dar alen C

SCBA

OF

All meetings are held at the Suffolk County Bar Association Bar Center, unless otherwise specified. Please be aware that dates, times and locations may be changed because of conditions beyond our control. For any questions call: 234-5511.

To submit articles please contact special section editors by calling the Bar or emailing Editor-in Chief Laura Lane at [email protected]

MEETINGS AND EVENTS

DONORS

OCTOBER 2008 20 Monday Alternate Dispute Resolution (ADR) Committee, 5:00 p.m., E.B.T. Room. Board of Directors, 5:30 p.m., Board Room. 21 Tuesday Lawyer Assistance Foundation Golf Tournament, Westhampton Country Club, Westhampton Beach. Call Bar Center for reservations. Elder Law Committee, 12:15 p.m., Great Hall. 27 Monday Health & Hospital Law Committee, 5:00 p.m., E.B.T. Room. Women & the Law Committee, 6:00 p.m. Board Room. 28 Tuesday Real Property Committee, 6:00 p.m., Board Room. 29 Wednesday Appellate Practice Committee, 6:30 p.m., Board Room. 30 Thursday Supreme Court Committee, 5:30, Board Room. NOVEMBER 2008 3 Monday Executive Committee, 3:00 p.m., Board Room. 6 Thursday Health & Hospital Law Committee, 5:00 p.m., Board Room. 10 Monday Solo & Small Firm Practitioners Committee, 4:00 p.m., E.B.T. Room. 12 Wednesday Elder Law Committee, 12:15 p.m., Great Hall Commercial & Corporate Law Committee, 4:30 p.m., Board Room. Animal Law Committee, 6:00 p.m., Board Room. 13 Thursday Annual Peter Sweisgood Dinner, Hyatt Regency Wind Watch Hotel, 6:00 p.m. Further details forthcoming 15 Saturday SCBA's North Fork Wine Tasting Tour, $75.00 per person. Call Bar Center for reservations. 17 Monday Board of Directors, 5:30 p.m., Board Room. 20 Thursday Alternate Dispute Resolution (ADR) Committee, 8:00 a.m., Board Room. 24 Monday Alternate Dispute Resolution (ADR) Committee, 5:00 p.m., Board Room. DECEMBER 2008 4 Thursday Appellate Practice Committee, 6:30 p.m., Board Room. 8 Monday Executive Committee, 3:00 p.m., Board Room. 10 Wednesday Elder Law Committee, 12:15 Great Hall. 12 Friday SCBA's Annual Holiday Party, 4:00 p.m. to 7:00 p.m. Complimentary Buffet at Bar Center. All members and their families are invited. Please RSVP to Bar Center. 15 Monday Board of Directors, 5:30 p.m., Board Room. 18 Thursday Alternate Dispute Resolution (ADR) Committee, 5:00 p.m., Board Room.

We wish to Acknowledge those who contributed to the SCBA Charity Foundation

PURPOSE In Honor of the Memory of Lt. Michael P. Murphy, USN and his family, Medal of Honor recipient On the passing of my friend and teacher, Thomas Cetta, US Navy Seal (Viet Nam) In memory of Margaret Hanshe In Honor of the United States Military serving in harms way Joseph A. Hanshe Joseph A. Hanshe Joseph A. Hanshe Joseph A. Hanshe

SUFFOLK LAWYER

Publisher

Long Islander Newspapers in conjunction with The Suffolk County Bar Association

The Suffolk Lawyer is published monthly, except for the months of July and August, by The Long Islander Newspapers under the auspices of The Suffolk County Bar Association.© The Suffolk County Bar Association, 2007-2008. Material in this publication may not be stored or reproduced in any form without the express written permission of The Suffolk County Bar Association. Advertising offices are located at The Long Islander, LLC, 149 Main Street, Huntington, NY 11743, 631-427-7000.

LAURA LANE Editor-in-Chief DOROTHY PAINE CEPARANO Academy News Eugene D. Berman John L. Buonora Dennis R. Chase Ilene S. Cooper Justin Giordano David A. Mansfield Craig D. Robins Frequent Contributors

THE

Send letters and editorial copy to:

The Suffolk Lawyer

560 Wheeler Road, Hauppauge, NY 11788-4357 Fax: 631-234-5899 Website: www.scba.org

E.Mail: [email protected] or [email protected]

The articles published herein are for informational purposes only. They do not reflect the opinion of The Suffolk County Bar Association nor does The Suffolk County Bar Association make any representation as to their accuracy. Advertising contained herein has not been reviewed or approved by The Suffolk County Bar Association. Advertising content does not reflect the opinion or views of The Suffolk County Bar Association.

The Suffolk Lawyer

USPS Number: 006-995) is published monthly except July and August by Long Islander, LLC, 149 Main Street, Huntington, NY 11743, under the auspices of the Suffolk County Bar Association. Entered as periodical class paid postage at the Post Office at Huntington, NY and additional mailing offices under the Act of Congress. Postmaster send address changes to the Suffolk County Bar Association, 560 Wheeler Road, Hauppauge, NY 11788-4357.

THE SUFFOLK LAWYER -- OCTOBER 2008

3

Focus On Real Estate

Effects of the Housing Assistance Tax Act on IRC §1031 Tax-Deferred Exchanges

_________________ By Todd R. Pajonas

Section 1031 tax deferred exchanges are most commonly associated with the exchange of business and commercial properties. However, owners of single and multi family residential properties regularly utilize the exchange process to obtain the tax deferral benefits, albeit under the radar of the high profile commercial real estate world. This year we have seen the issuance of new tax guidance impacting the treatment of primary residences and vacation homes, both as potential 1031 properties, and for taxpayers in general. In March 2008 the Internal Revenue Service issued Revenue Procedure 200816 which helped to clarify whether vacation homes or second homes would qualify as an investment property for purposes of structuring IRC §1031 tax deferred exchange. The central issue, which was first addressed in Moore v. Commissioner (T.C. Memo 2007-134), was whether a vacation home or second home could be considered investment property if the taxpayer utilized the property for personal use. Both the Moore ruling, and later, Rev. Proc. 2008-16, clarify the investment intent expectations held by the Tax Courts and the Service, with the revenue procedure going further and mandating actual rental history for two years in order for a "dwelling unit," as these properties are now defined, to be considered an investment property. In addition, the recently passed Housing Assistance Tax Act of 2008 (H.R. 3221) may affect any taxpayer selling their primary residence, as defined in IRC §121, if the taxpayer did not use the property solely as their primary residence during their period of ownership. Previously, so long

as a taxpayer resided in their of time inasmuch as the gain is primary residence for two of computed based on the ratio the previous five years from which "(i) the aggregate perithe date of sale they would be ods of nonqualified use during entitled to 100 percent of the the period such property was benefit of the capital gain tax owned by the taxpayer, bears exclusion of $250,000 if sinto (ii) the period such property gle, or $500,000 if married and was owned by the taxpayer." filing a joint return. What that What this means is that the means is that if a taxpayer rentratio will not always be govTodd R. Pajonas ed a property for three years erned by the five year period and thereafter lived in the property as a in which a taxpayer must use the property primary residence for two years that taxas a primary residence, but rather by the payer would only get a 2/5 benefit of the total period of ownership of the property exclusion, versus receiving the entire versus its period of non-qualified use. For exclusion under the previous rules. example, if the taxpayer rented a property Adding further complication, the for four years and thereafter utilized the amendment addresses how the gain is property as a primary residence for two allocated to periods of nonqualified use. years, totaling six years of ownership, the In the past, IRC §121 only concerned taxpayer would receive a two-sixths beneitself with a five year period of ownership fit of the §121 exclusion. and specifically required a two year occuIt is important to note that the allocapancy requirement to receive the full tion rules apply only to a property which exclusion benefits. However, in 2004, has a nonqualified use period followed by IRC §121 was modified to take into a use as a primary residence. For examaccount properties acquired in IRC §1031 ple, if a taxpayer lives in a property for tax deferred exchanges and later convertthree years and thereafter rents it for one ed to primary residences. IRC §121 was year before selling it they would still amended to provide for a five year waiting receive 100% of the benefit under period for property which was acquired IRC§121. However, if the non-qualified using an IRC §1031 exchange. In other use comes before the use of the property words, if a business or investment properas a primary residence the allocation rules ty acquired using an IRC §1031 tax will apply. Furthermore, although this deferred exchange is later converted to a amendment to IRC §121 applies to sales primary residence, the capital gains tax and exchanges after December 31, 2008 exclusion of IRC §121 can not be applied for purposes of computing the nonqualiuntil the taxpayer has lived in the properfied use period, the ownership prior to ty as its primary residence for at least two January 1, 2009 is still taken into considyears out of a total of five years and also eration when computing the ownership requiring five years of ownership to period for purposes of allocation. For become eligible for the exclusion. This example, if a taxpayer rented their propmodification is still in effect. erty for a year, five years ago, this period The modification made by H.R. 3221 would be discarded from the computation concerns itself with a much greater period involving the nonqualified use period,

however, the ownership period prior to January 1, 2009 is still used when computing the ratio. HR 3221 modifies IRC §121 to provide that the exclusion will not apply to gain from the sale of the primary residence that is allocable to periods of "non-qualified use" which includes periods of use as a second home as well as a rental. A period of nonqualified use does not include "any other period of temporary absence (not to exceed an aggregate period of 2 years) due to change of employment, health conditions, or such unforeseen circumstances as may be specified by the Secretary"; as well as any period (not to exceed an aggregate period of 10 years) during which the taxpayer of taxpayer's spouse is serving on `qualified official extended duty'" A person who "qualified official extended duty" must be a member of the armed forces, Foreign Service of the United States, or an intelligence officer working more the 50 miles from their primary residence or residing under government orders in government housing. This exception might prove especially important for members of the armed forces currently serving extended tours of duty overseas. In conclusion, these two changes affecting IRC §121 will not only alter the ability to exchange any property fitting the definition of a dwelling unit, but also change the benefits afforded by IRC §121 for many properties that have been used both as a primary residence and an investment property. Note: The author is the president of Legal 1031 Exchange Services, Inc., a qualified intermediary for IRC §1031 tax deferred exchanges. He can be contacted at [email protected]

BENCH BRIEFS

Suffolk County Supreme Court

Honorable Peter Fox Cohalan

Motion to consolidate granted; same defendants, same substance of complaints; court with discretion to determine venue In The Roman Catholic Church of Saint Patrick v. Ira Haspel, Architect, P.C., Index No. 10958-08, 05321-07, decided on June 30, 2008, the court granted defendant's motion to consolidate. The court noted that the power to consolidate was within the sound discretion of the court. The court reasoned that the various actions involved the same defendants and have the same substance of complaints. The motion could have been brought in either county. Venue is generally in the county where the first action was commenced, however, the court has the discretion to decide venue. 05, decided on August 26, 2008, the court granted the defendant leave to file a late jury demand. The court found that while the defendant's jury demand was timely served upon all of the parties, when it was filed with the court, the affidavit of service had inadvertently been detached from the demand, rendering the demand inadequate. The court noted that the defendant made the requisite showing that their waiver of the right to a trial by jury was not deliberate. Furthermore, the court reasoned that the plaintiff's rights would not be unduly prejudiced by the defendant filing a late jury demand since they were timely served with the initial jury demand. missing the complaint. Plaintiff failed to show that a deal between a prospective purchaser and the seller materialized into legal written form. Hence, the seller could not be deemed to have defaulted so as to become liable to pay the broker a commission. Without an enforceable contract there could not have been a willful default. Consequently, there was no commission earned or owed to the plaintiff. co-defendant raised a triable issue of fact. An affirmation of counsel without personal knowledge was insufficient to raise a triable issue of fact to defeat defendant's motion for summary judgment.

Honorable Sandra L. Sgroi

Motion to quash subpoena denied; depo(Continued on page 21) Please send future decisions to appear in "Decisions of Interest" column to Elaine Colavito at elaine_ [email protected] There is no guarantee that decisions received will be published. Submissions are limited to decisions from Suffolk County trial courts. To be considered for inclusion in the December 2008 issue, decisions must be received by November 1, 2008. Submissions will be accepted on a continual basis. All decisions sent to previously listed mailing address will still be considered for inclusion in future "Bench Briefs" columns.

Honorable Emily Pines

Motion for summary judgment denied; affirmation by counsel without personal knowledge insufficient to defeat motion for summary judgment In Taylor Coupe, an infant under the age of fourteen years old, by her parent and natural guardian, Donald Coupe and Donald Coupe, individually v. John Danielle and Joanne Thouner, Index No. 30923-06, decided on April 17, 2008, the court granted defendant's motion for summary judgment. The court found that in opposition to the defendant's motion for summary judgment, neither plaintiff nor

Honorable Peter H. Mayer

Motion for summary judgment granted, dismissing plaintiff's complaint; broker's commission not earned or owed absent showing of an enforceable contract. In WHB Real Estate, Inc., v. Sandrina Mishkin, Index No. 18925-06, decided on May 28, 2008, the court granted defendant's motion for summary judgment, dis-

Honorable Joseph Farneti

Leave to file late jury demand granted; original jury demand was timely made; no undue prejudice to rights of plaintiff In Joanne Morency and Joseph Morency v. Nicholas S. Lombardo and Nicholas J. Lombardo, Index No. 2486-

4

THE SUFFOLK LAWYER -- OCTOBER 2008

Focus On Real Estate

A Practice Can Change Overnight

______________ By Jeannie Daal

You can't turn on the radio, television, or even pass strangers talking without hearing the words... real estate crisis, foreclosure, short sale, modification or bankruptcy. All of a sudden, even students and housewives are interested in the Stock Market. The nation as a whole is suffering from the simultaneous "corrections" in both the Real Estate Market and the financial sector. We, as "The People", were devastated with the attack on our Country and the collapse of the Twin Towers.

Little did we know that as painful as 911 was to the Nation, what was to come would be even harder to survive, in a macroeconomic sense. We failed to listen to history. In just six short years, we've found ourselves with no choice but to change our ways to survive in this new harsh world. My practice changed overnight. I'll never forget the day Mortgage Lenders Network closed down. Attorneys and title closers were waiting for wires that would never come. Contracts were being cancelled by the fistfuls and mortgage brokers

Frederick Eisenbud, Esq.

Practicing Environmental and Municipal Law Since 1984

Co-Chair, Environmental Committee Hauppauge Industrial Association Ready to assist you or your client with: Environmental Law and Litigation [Civil · Criminal · Administrative · Municipal] Hazardous Waste/Oil Spill Cost Recovery Litigation Environmental Issues in Commercial Real Estate

Law Office of Frederick Eisenbud

6165 Jericho Turnpike Commack, New York 11725-2803 Phone: (631) 493-9800 Fax: (631) 493-9806 E-Mail: [email protected] www.eisenbudlaw.com

were awe struck. My work as a bank attorney ceased almost immediately and then there was the lull before the storm. As soon as business started picking up again, I had to start negotiating short sales. And that is where I have been ever since. As an attorney that dedicated her time almost exclusively to real estate, I was able to make the transition fairly easily. I guess you could say things are easy when you don't have any choice. It was either sink or swim. The first thing I did was find myself a reliable and knowledgeable processing company that I trusted to handle negotiating the short sales. The one I selected not only processes the short payoffs, they also train the realtors, monitor foreclosure status, qualify the seller and the property prior to submitting the package, review title and provide attorneys with vital information and links to other knowledgeable professionals. Before associating myself with the realtors and other attorneys that utilized Quantum Leap Business Group, Corp, the processing company, I had become fearful of all deals in which I represented the buyer, because I had no control. Too many attorneys entered into contracts and let the realtors negotiate the short payoffs; therefore, allowing the realtor to dictate the closing expenses, attorney fees and ultimately the deal itself. Half the time I didn't even know it was a short sale until I received the title report. It was becoming a bad habit that each time I represented a buyer I would have to jump in and get the payoff if I ever wanted to see the closing table. I couldn't understand how an attorney would be so eager to hand over the control of their real estate transaction to a real estate agent that probably didn't even have a clue on how to prepare a HUD. I heard too many professionals question the need for a title report before sending the short payoff request to a mortgagee. I even had a few foreclose and the Seller's attorney never knew. Now, if I represent a purchaser and the property they are purchasing is from a "properly educated realtor" and "knowledgeable attorney," I go forward. If not, I pass. I have had some banks question my legal fee as a seller's attorney, which is usually paid from the proceeds of the sale. Thinking back to some attorneys, I have to agree with the banks in their questioning because there are some seller's attorneys that do not take the time to adequately

qualify the client. Not everyone qualifies for a short sale. My legal fee cannot be the same for a short sale as for a "regular sale," because all a seller has to say to their attorney to sell their property is "I want to sell my property." Accordingly, the most the attorney has to reply is limited to the client's authority to do so, a note on capital gains and the need to discuss the transaction with their accountant. In a short sale; however, the seller needs to understand all of their options to make sure that this is the right one for them. Sometimes, the initial consultation ends up being several sessions long to adequately provide the client with all of the options available. There will be many sellers that think that they can't keep their homes. It must be asked and the option reviewed and discussed fully. Additionally, the attorney must bring to their attention the need to discuss the tax implications with the accountant NOW, not sometime after the closing. Some tax consequences could mean tens or hundreds of thousands of dollars owed to the IRS and should not be taken lightly. On occasion, in particular with small investors, the need for a bankruptcy must be discussed. For an investment property there is a difference if the bankruptcy takes place before or after the foreclosure or short sale, and a bankruptcy does not eliminate the need or the possibility to do a short sale. The Home Equity Theft Prevention Act must also be addressed and adhered to. Finally, it is imperative that the realtor fully understood what their "due diligence" was and that it be confirmed that they complied with their obligations so that the request for a short payoff was not done in vane. Communicating with the banks is a feat in and of itself, not to mention time consuming. If someone is not calling the bank at least every other day, you probably aren't going to get the payoff in time. It is not always easy to orchestrate a closing with two or three mortgagees that each have their own agendas. Once this is all done, which ideally should take about 30 to 60 days you should be that much closer to the closing table. Foreclosure may seem just plain easier than all of the shuffling I've talked about, but the question must be asked and answered....Is it really worth it for your client? A foreclosure will have significantly harsher negative repercussions on a (Continued on page 26)

THE SUFFOLK LAWYER -- OCTOBER 2008

5

Focus On Real Estate

Dispelling The Purported "30 Day" Rule

___________________ By Matthew J. Barnes

General practitioners are often called upon to represent a client at a residential real estate closing. Given the volatility in market pricing and the credit crisis affecting all aspects of the transaction, the stakes in today's real estate market are higher because so few transactions are actually closing these days. Naturally, as lawyers love to speak, real estate practitioners in particular love to share the `war stories' of their practice. Having experienced enough of the closing phenomenon, one comes to the realization that real estate practice sometimes evolves into a mingling of forms, customs, and myths, rather than an understanding premised upon common law and contract. Indeed, one of the more prominent myths is so widespread that it has actually served as the inspiration for this article.

There is no "30 Day" Rule

On occasions too numerous to count, I have witnessed attorneys cite to the "30 Day" Rule, which, as the tale goes, permits a party to a real estate contract an "automatic 30-day adjournment of the on or about date specified in a contract." And, as it has frequently been described, "no party may declare time of the essence during the 30-day period." Thus, the logical extension of the "30 Day" Rule would lead to the conclusion that a party to a real estate contract could not be called to perform until the passing of at least 30 days

from the "on or about date" day rule, explains that Sally set forth in the contract. cannot declare time of the Assume, for example, that essence prior to July 31. Pete Pete Purchaser and Sally further believes that, assuming Seller execute a standard form Sally notices time is of the contract on May 1 which sets essence on July 31, she is still an `on or about' closing date obligated to afford him a reaof July 1. The contract consonable amount of time to pertains typical financing continform. Hence, Pete believes gencies requiring Pete to that he can continue to specuMatthew J. Barnes secure a mortgage commitlate about mortgage rates well ment from a lender by June 15. into August. Thereafter, Pete timely secures a commitBut New York case law confirms that ment from a lender, and the lender's coun- Pete Purchaser is waging a risky gamble. sel subsequently reviews title and issues The Court of Appeals has confirmed: the `clear to close' on June 20. In the interim, Sally has entered into Where time is not made of the essence in another contract to purchase a new resi- the original contract, one party may, unidence outside of New York. Sally's out- laterally, give subsequent notice to that of-state contract is not contingent on the effect and avail himself of forfeiture on sale of her residence to Pete and, as such, default, provided such notice is clear, disSally needs the proceeds from Pete to tinct and unequivocal, fixes a reasonable complete her purchase. On June 23, Sally time within which to perform, and informs receives notice that she must complete her the other party that a failure to perform by purchase on or before July 25 or face for- that date will be considered a default. feiture of her own contract deposit by (See e.g., Zev v. Merman, 134 AD2d 555, default. Frantically, Sally relays to Pete 521 NYS2d 455) that she must close as soon as possible. However, Pete decides to stall because he Seemingly, the origin of this 30 day speculates that mortgage rates are likely to rule derives from a mischaracterization of drop within 60 days. On July 1, Sally what `a reasonable time within which to sends Pete a notice demanding that he perform' means. How does a rigid 30 day close title on or before July 22 at her attor- rule come into existence when the ney's office and advises that his failure to Appellate Division has held that `there appear will be deemed a breach of contract are no bright-line criteria establishing the resulting in a corresponding forfeiture of reasonableness of a particular time perihis contract deposit. Pete, citing the 30- od'? (See Miller v. Almquist, 241 AD2d

181, 671 NYS2d 746). Do the proponents of this myth contend that there is no authority for the proposition that `a reasonable time' can be less than 30 days? Clearly, that logic is flawed. In fact, in Zev v. Merman, the Court of Appeals held : What constitutes a reasonable time to close depends on the facts and circumstances of the particular case. Among the factors to be considered are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of hardship or prejudice to either one, as well as the specific number of days provided for the performance. (73 N.Y.2d 781, 533 N.E.2d 669). Simply put, the 30 day rule is a myth. New York courts have confirmed that a reasonable time to close may be substantially less than 30 days. In fact, by properly noticing a time of the essence closing, a party may be in default for failing to perform within 2 weeks. For example, in Shannon v. Simon, (128 AD2d 859, 513 NYS2d 778) the Second Department Appellate Division confirmed that 14 days was reasonable amount of time between the date of the notice and the date set for closing. (See Michaels v. Flapan, 42 Misc2d 812, 249 NYS2d 53 (holding that 13 days was a sufficient notice) and Perillo v. De Martini, 54 AD2d 691, 387 NYS2d 280 (holding that 21 days was suf(Continued on page 16)

6

THE SUFFOLK LAWYER -- OCTOBER 2008

You Really Don't Want To Miss This

SCBA plans unbelievable North Fork wine tasting tour

_________________ By Dennis R. Chase

Photo by Immediate Past SCBA President Barry M. Smolowitz

On Saturday, November 15, those fortunate enough to have registered early (because space is truly limited), will depart promptly from the Bar Center at 9:45 a.m. in a luxurious coach, en route to the first of three vineyards we will be visiting on what is sure to be a glorious day. Although not scheduled to depart until 9:45, in order to remain on schedule, we kindly request you join us for coffee and bagels at 9:15 a.m. Many vineyards were previously sampled by our committee of oenophiles, however, only three made the grade. Our first stop will be at Lieb Family Cellars in Mattituck at 11:00 a.m. were we will enjoy a tasting especially created for our members. In addition to offering some of Long Island's best reserve, rare, and specialty wines, the vineyard caught the attention of our committee because of their dedication to what we believe to be a very worthwhile charitable endeavor . . . The Animal Medical Center. Lieb donates a portion of the proceeds from their sale of their delightful Syrah to help fight kidney disease in dogs and cats. The tasting room is quaint, so the necessity for this vineyard being the first stop on our tour is to ensure the needs of our members will be amply provided. Then we're off to the four-star Diliberto Vineyard & Winery in Jamesport where members will enjoy not only a wonderful tasting, but lunch as well, sponsored by The ChaseSensale Law Group, L.L.P. ((631)348-7500) Perhaps if we're nice, we can convince owner, and SCBA member, Sal Diliberto to serenade us with a few songs from this classically trained opera singer. Those members that enjoyed this experience in the past will be certain to confirm that which we already know . . . this is not just a tasting, but a truly wonderful experience. Following lunch, we'll go to one of Long Island's finest

wineries, Roanoke Vineyards in Riverhead where, in a tasting room reserved especially for our members and sponsored by Kim Smolowitz, wife of our immediate Past-President TM TM Barry M. Smolowitz, A Preferred Sandals and Beaches Specialist, of VIP Vacations, Inc. (516.380.6586; [email protected] .com) specializing in Caribbean and dive vacations, we will enjoy some of the finest wines Long Island has to offer. The knowledgeable and friendly staff is sure to be a hit with our members. Following our departure from Roanoke, we'll head to our traditional final stop of the day, Briermere Farms where members can purchase only the freshest fruits and vegetables Long Island has to offer as well as some tasty treats from their fabulous on-site bakery. Thanks to the generous support of our sponsors, members and their guests can enjoy this wonderful day of wine, food and song (including round trip transportation to the Bar Center in Hauppauge) for the reasonable price of $75.00 per person. We strongly suggest registering early by contacting Marion at (631) 234-5511 ext. 230. We know you've heard this before, but space is really limited due to the relative size of the vineyards we have selected. While we would have liked to select vineyards with larger tasting rooms, the emphasis for the committee this year was to only consider those vineyards that offer those wines universally recognized as truly fine wines. You will not be disappointed. Note: The author is the current Secretary of the Suffolk County Bar Association, a frequent contributor of The Suffolk Lawyer, and a partner with The ChaseSensale Law Group, L.L.P. The firm, with offices in Suffolk, Nassau, and Queens Counties, concentrates their practice in Workers' Compensation, Social Security Disability, Long Term Disability, Short Term Disability, and Disability Retirement.

A North Fork Vineyard

THE SUFFOLK LAWYER -- OCTOBER 2008

7

FUTURE LAWYERS FORUM

Why My Generation Doesn't Vote

A demand for increased voter turnout ___________________

By Andrew Van Singel

Note: The purpose of this column it to reflect the opinions, thoughts, and interests regarding the legal field by those who hope to someday become attorneys -- law school students. The column does not reflect the opinions and beliefs of the SCBA. On November 5th, the election results will be in. If history is any indicator, the next president will be chosen by less than sixty percent of the voting-age population. My generation (statistically categorized between the ages 18-24 years old) drags this average down; in the last five presidential elections, the "college" bracket has averaged a dismal 37 percent voter turnout.i For non-presidential elections, the number drops well below 20 percent. Grassroot organizations, such as MTV's `Rock the Vote,' have focused on registering younger voters over the past few years, yet the 18 to 24 age group consistently chooses not to exercise their right to vote, which begs the question--why are younger voters noticeably absent from the polls? Many would-be voters simply don't take the time to research the issues and take a stand. Want proof? The two candidate's websites have a combined total of approximately 4.4 million hits in the month of September, while Paris Hilton's website tallied approximately 6.3 million hits.ii Apparently reading celebrity gossip is just more important than the political world. That being said, it is no surprise Congress' approval rating is at a historic low.3 Many individuals feel as if their vote does not count, and even if it did, they would only be choosing the lesser of two evils. America's young voters are simply throwing in the towel before even getting into the ring. Lack of knowledge on the issues truly is the disappointing excuse I hear all too often. The internet has made information easily accessible, and within minutes, anyone can garner enough information to determine who the candidates are, what they stand for, and what they hope to accomplish. Instead of worrying about what happened on Gossip Girl the night before or how much money Alex Rodriguez's wife received in her divorce settlement, we should all be worrying about where the candidates stand on core issues (such as this financial mess on Wall Street). By doing a few minutes of research on the issues, you might just find out that Roe v. Wade was not some pay-per-view fight a few weeks ago, and Yellowcake is not a delicious dessert dish. Sure, it is hard to filter out the political pundits who waste our time talking about pork and lipstick, with the core information necessary to make an informed decision. But I would like to think that as a society in general, we can steer away from these part-time bloggers and identify what the true issues are. Maybe I am wrong. Maybe this is why Paris Hilton's website gets more hits than the candidates. "I don't have the time to vote." I often here people say this on Election Day, which I think is just their way of saying "I

was never going to vote in the fist place, but if I can say that I didn't have the time, I won't look like one of those `non-voters' our society looks down upon." I am sure these same people can show you their TiVo box, and show you that it is filled with unwatched programs as a testament to their go-go lifestyle. These people might not have the time to vote, but still have plenty of time to be an idiot. Presidential

elections come every four years. If you can set aside enough time to check your MySpace profile 14 times in a single day, then you should be able to squeeze in an hour to pick the next leader of the free world. If only we could get some of these people to cast their vote by using the same approach they used when they bought their HDTV, we wouldn't have such a problem. When I asked a friend of mine why he

was not voting, he simply said "I don't know how to regisAndrew Van Singel ter." This is coming from the same person who I get to work on my car when it breaks down. To him, replacing a U-Joint is all in a days work, yet filling out a onepage form is above and beyond his capabil(Continued on page 26)

8

THE SUFFOLK LAWYER -- OCTOBER 2008

NEED SOLUTIONS

?

www.bcslawfirm.com

SIDNEY SIBEN'S AMONG US

On the Move...

Bankruptcy Attorney Craig D. Robins, a regular contributor to The Suffolk Lawyer, recently expanded his practice adding Jason S. Leibowitz as an associate. Mr. Leibowitz Jennifer B. Cona, managing previously clerked for Chief partner of the Melville, LI Bankruptcy Judge Melanie Cyganowski as a judicial Jacqueline M. Siben based Genser Dubow Genser & Cona (GDGC), was recently intern. The firm, whose main office is in Woodbury, also opened addi- named among Long Island's 50 Most tional offices in Medford, Commack and Influential Women for 2008. Selected by Valley Stream. The firm continues to a panel of fellow business leaders from assist consumers and businesses with the region, the winners comprise Long bankruptcy filings under Chapter 7, 11 Island's elite women professionals who and 13. The new web site is have demonstrated exceptional leadership and have made significant contributions to BankruptcyCanHelp.com. the Long Island community. Under Ms. Howard E. Gilbert of the Law Offices Cona's direction, GDGC has become one of Howard E. Gilbert has relocated his of Long Island's leading elder law and offices to 1233 Walt Whitman Road, estate planning firms. Melville, NY 11747-3010. His phone number is (631)630-0100; fax: (631) 630-0101; Eugene R. Barnosky, of Lamb & and email: [email protected] Barnosky, LLP was the moderator of a The practice will continue its concentration panel of experts in a program entitled in Labor and Employment Law. "Sexual Misconduct in the Schools" on Haley E.Olam, has joined Simmons, Jannace & Stagg, L.L.P. as an associate. George C. Fontana, Jr., and Paul J. Winterstein have also joined as associates. Oct. 16 at the 12th Annual PreConvention School Law Seminar cosponsored by the NYS School Boards Association and NYS Association of School Attorneys. And Sharon N. Berlin will be a panel moderator and Alyson Mathews will be participating in a program called "Law in the Workplace: Labor and Employment Issues in a Troubled Economy" on Oct. 24 at the Hyatt Regency Wind Watch Hotel in Hauppauge. Long Island Magazine, a publication of the Long Island Association, selected Certilman Balin Adler & Hyman, LLP as its 2008 MVP in Professional Services. This award recognizes Certilman Balin's growth, employee programs and community involvement. Ruskin Moscou Faltischek, P.C. announced today that Bradley L. Gerstman, Of Counsel to the firm, was named CoChair of the Nassau Autism Coalition by Nassau County Executive Tom Suozzi on September 8, 2008. Richard K. Zuckerman, of Lamb & Barnosky, LLP, was installed as a Fellow of the Governors of The College of Labor and Employment Lawyers, having been elected on June 13, 2008. The annual installation of Fellows took place in Denver, Colorado, during the ABA Labor and Employment Law Section's Continuing Education Conference. This election represents recognition by his colleagues that he has distinguished himself as an outstanding professional who has made a sustained contribution to his field and that he meets the standards of integrity, professionalism and character.

Association's Criminal Court of the City of New York Committee for 2008-2009. Mr. Schwartz, who was previously vice chair of the committee, is also a board member of the Brooklyn Bar.

Congratulations...

To SCBA member Edward Young whose son David Lee Young, received his Juris Doctor degree from New York University School of Law and is awaiting the results of the bar examination. As a prior graduate of NYU Law, Edward was able to hood his son. To SCBA President Elect Ilene S. Cooper, a partner of Farrell Fritz P.C., who will be presented with the Outstanding Woman of the Year honor at the SCCADV's Annual Awards event on Thursday, Oct. 30. She will be honored for her work in the community on behalf of violence victims and others who seek her assistance and rely on her philanthropic support.

BURNER CHERCHES & SMITH, LLP

BC&S

ATTORNEYS AT LAW

Nancy Burner, Esq., CELA

CERTIFIED AS AN ELDER LAW ATTORNEY*

Eric D. Cherches, Esq. Kim M. Smith, Esq.

Announcements, Achievements, & Accolades...

The law firm of Lewis Johs Avallone Aviles L.L.P. has been accepted into membership by the International Society of Primerus Law Firms, a highly selective alliance of small to medium-size, independent law firms. Lewis Johs Avallone Aviles L.L.P. is a full service law firm with offices in Melville, Riverhead and New York City. The Law Offices of Russell I. Marnell, P.C. has announced that its founder and lead attorney, Russell I. Marnell, has once again been included into the 2008 edition of the Martindale-Hubbell Bar Register of Preeminent Lawyers. Mr. Marnell, an attorney specializing in matrimonial, divorce and family law, was listed in the register in 2006 and 2007. David M. Schwartz, a partner of Ruskin Moscou Faltischek, P.C., was named chair of the Brooklyn Bar

ELDER LAW AND ESTATE PLANNING

· Medicaid Eligibility · Estate Planning · Trusts & Estates Litigation · Nursing Home Placement · Guardianships · Last Wills & Testaments · Trusts, Irrevocable & Revocable · Strategies for Saving Estate Taxes · Long Term Care Insurances · Supplemental Needs Trusts

Condolences....

To the family of SCBA member Aurelius "Joe" Sclafani, who passed away on October 1 following a brief illness. To the family of long-time SCBA member Charles T. Matthews. To SCBA member Mark S. Eghari on the passing of his mother Isabella. (Continued on page 21)

46 Route 25A, Suite 4 · Setauket, NY Phone 941-3434 · Fax 941-3443 82 Main St. · Westhampton Beach, NY Phone 288-5612 · Fax 288-5618

* The National Elder Law Foundation is not affiliated with any governmental authority. Certification is not a requirement for the practice of law in the State of New York and does not necessarily indicate greater competence than other attorneys experienced in the field of law.

THE SUFFOLK LAWYER -- OCTOBER 2008

9

PRO BONO

Mitchell J. Birzon Attorney of the Month

Sensitive to client's needs ______________

By Rhoda Selvin

Deemed as being Pro Bono Attorney of the Month nine years ago, Mitchell J. Birzon has always had at least one Pro Bono case in the works. Now with eight cases, including one that is still open (to which he has devoted 140 hours), he has once again earned the honor of being Pro Bono Attorney of the Month for October 2008. Although he has stopped handling matrimonials in his private practice, all but one of these cases has been a matrimonial. Mr. Birzon finds it especially satisfying work to help children raised dysfunctional families as they contend with the family break-up. In one case (which required more than 60 hours over four years), the children, 13, and 14 were in therapy when Mr. Birzon accepted the case. Both parents used drugs, and it was "a very vitriolic situation." To complicate the situation, the husband, who was the plaintiff, moved out of state. The wife was awarded child support with the divorce, but that was not the end of Mr. Birzon's involvement. He agreed to represent his client, this time as the plaintiff, in a Family Court action, petitioning for the support payments. As a result, the ex-husband's wages were garnished. Mr. Birzon received his undergraduate degree from Georgetown University and, in 1978, his law degree from the New

England School of Law. For several years, he worked in Washington D.C. as a Senior Legislative Counsel representing Governor Mario M. Cuomo and various New York State executive agencies before Congress, federal executive agencies, and the White House. In 1986, he became the senior partner in the Smithtown law firm now called Birzon, Stang & Bazarsky. The firm concentrates on personal injury, medical malpractice,

and corporate and health-care transactional law. A member of the Suffolk County Bar Association, Mr. Birzon has served on a variety of committees over the years. He was a member of the Health & Hospital Law Committee, serving as its co-chair from 2004 to 2006. Two other committees he served on for many years were the Grievance Committee (until 2007) and the Commercial & Corporate Law Committee (until last May). Outside of the profession, Mr.Birzon

was on the Gurwin Geriatric Center's Board of Directors until 2005 and the Long Island Adolescent and Family League Services Board of Directors until 2007. From 2003 to 2005, he served as Counsel to the Syosset Senior Day Care Center. Mr. Birzon is married to the former Kathryn Wright, a speech therapist who works with one- and two-year-olds. Their two sons, having completed their education, are now ensconced in the world of (Continued on page 21)

The Board of Directors wish to express our special appreciation for the continued support of SCBA Sustaining Members 2008 - 2009

Libby R. Adelman Paul R. Ades H. Lee Blumberg Martin H. Bodian John L. Buonora Dennis R. Chase Alan W. Clark Ilene S. Cooper Jeannie V. Daal Robert W. Dapelo Gustave Fishel III Kevin M. Fox Emily Franchina Thomas Gebert James A. Gowan Jeanette Grabie Robert E. Grey Elizabeth M.Harrington Dawn L. Hargraves Jennifer Hower Scott M. Karson Hon. John Kelly Joseph G. LaCapra Hon. Gaetan B. Lozito Hon. Martha L. Luft Vincent J. Martorana Denis J. McElligott Robert R. McMillan Scott M. Mishkin Edward C. Mohlenhoff Janis M. Noto A. Craig Purcell Ralph M. Randazzo Sheryl L. Randazzo Ted M.Rosenberg Samuel Rutter Arthur E. Shulman Barry M. Smolowitz Joseph J. Snellenburg, II George R. Tilschner Craig J. Tortora

DIANA C. GIANTURCO

ATTORNEY AT LAW

P.O. BOX 419 LONG BEACH, NY 11561 Tel: 888-805-8282 Fax: 516-706-1275 APPEARANCES IN QUEENS COUNTY E-mail: [email protected]

10

THE SUFFOLK LAWYER -- OCTOBER 2008

WE GET HIGH MARKS

WHEN IT COMES TO EDUCATION LAW Berger & Brandow, LLP

Deborah Berger, Esq. Regina Brandow, Esq. We can help you and your clients in all matters concerning:

· · · · Special Education Issues · Disciplinary Hearings Testing Accommodations (PSATs, SATs, MCATs, LSATs) Section 504 Accommodations (College, School, Camp, etc.) Appeals to the Commissioner of Education

Exclusively Representing the Rights of Parents & Students

EMPLOYMENT LAW

The Emotionally Intelligent Attorney: The Law As A Helping Profession

_________________ By John P. Bracken and Dan Berger

1320 Stony Brook Road, Suite 208, Stony Brook, NY 11790

Telephone: 631.689.7404 www.bergerandbrandow.com Facsimile: 631.689.7408

DUFFY & POSILLICO AGENCY INC.

Court Bond Specialists BONDS * BONDS * BONDS * BONDS

Administration · Appeal · Executor · Guardianship Injunction · Conservator · Lost Instrument Stay · Mechanic's Lien · Plaintiff & Defendant's Bonds Serving Attorneys since 1975 Complete Bonding Facilities

IMMEDIATE SERVICE!

1-800-841-8879 FAX: 516-741-6311

1 Birchwood Court · Mineola, NY 11501 (Across from Nassau County Courts) NYC Location: 108 Greenwich Street, New York, NY 10006

GALGANO & ASSOCIATES,

is pleased to announce that

PLLC

In order to provide legal counsel to a client you must first help them emotionally. Most clients that come to you are at least worried and often quite scared. After all, does every client arrive brightly smiling and delighted to be in your office and paying you a fee? Prospective clients come to your office more often than not in some stress. Whether it is a dispute with a partner, a matrimonial problem, a personal injury or estate planning, in all of those there is at least some anxiety or stress. While the clients need your legal expertise, they cannot truly accept it and make use of it until they receive sufficient comfort and confidence so that they can trust you and then listen to you. The entire professional relationship is based on this first step. Avoiding or simply skipping it can undermine your client's ability to listen, receive and follow your advice. That first meeting should establish a connection between you and your client. Indeed, in the initial first meeting such "connectedness" is probably more important than your legal expertise. The message to the client should be "I want to help you." Staying in this phase for a while, indeed, if time permits, spending most of the first contact here will allow what occurs in future contacts more meaningful to your client. They will relate to you and trust you. If they don't connect and trust, then the future of this relationship is likely to be fraught with miscommunication and distrust. Without a doubt, many clients want to get immediate feedback and quick responses, thus you must necessarily provide some legal information so that they feel they achieved the purpose for which they consulted you.

John P. Bracken

Dan Berger

Listen rather than talk

JESSICA G. BOWER

has become an Associate of the firm The firm will continue to exclusively handle Patent, Trademark and Copyright Matters.

20 W. Park Ave., Suite 204 Long Beach, NY 11561 516 431-1177

Most lawyers love to talk, however listening to your client is more important than talking to them, especially in the initial contact when you are attempting to establish a relationship based upon trust. So how do you listen? Listening is an internal process that has little or no outward manifestation. Your client will know you have been listening in the way you ask questions or make comments in response to what he or she says. They will know you are listening because what you say is in response to what they are talking about, not about your thoughts and ideas. Indeed, it should be about them, which will then give them the feeling that you are and will be focused on them and their needs, not your needs. For many people walking into an attorney's office induces feelings of distrust. Listening to them goes a long way in helping to dispel these feelings and establishing trust.

may have little or nothing to do with them. The questions should be layered, starting with a general question and then proceeding to the specifics. For example, an initial question might be "how can I help you." Once the person tells you more about why they are there you might ask the person to elaborate on the problem utilizing open ended questions, such as "tell me more," or "could you give me some more details about what happened." Including some brief restatement of the problem imbedded in the question will give the person the feeling that you are listening and have an awareness of the issue. See more about restatement below. Be careful however not to include too much jargon or "legalese" that might give the impression that you are focused on what you think the problem is rather than what the client thinks. You, of course, have a better idea of the legal implications but until the client is ready for your input it is not only useless but maybe counterproductive in that it will feed their distrust rather than build trust. Early in the initial appointment you might ask questions that will allow the client to talk some more so that they have a chance to fully explain the problem. Keep in mind what we said above, that your client is likely worried or scared. Giving them a chance to fully explain their view of the problem will both contribute to the feeling you are willing to take the time to listen to them and it also gives them a chance to express the feeling and transfer the problem from them to you. This cathartic experience is very powerful in establishing a relationship. To facilitate this experience your questions should be open ended. Let's say a client walks into your office stating he has been arrested for a DWI. You might ask why they were pulled over, how much did they have to drink, what was the time period between their last drink and the arrest and many more questions. Such intense questioning however could give the client the feeling that he is being cross examined by an ADA, rather than a helpful attorney. An example of some open ended questions might be: "please tell me what happened," "tell me what you did in the hours before the accident" or "what do you recall happening after you were stopped." Later, after the client has told their version of events, you can ask some specific questions.

Ask Questions

By asking questions you give your client the impression that you are personally interested in them and their problem and not simply placing them in a pre-existing category which suits your needs and your initial and likely premature perception, but

Repeating back what you hear in your own words (confirmatory paraphrase?)

One way to give a person the impression that you are listening is to restate what they say in your own words. Essentially (Continued on page 20)

THE SUFFOLK LAWYER -- OCTOBER 2008

11

TECHNOLOGY

The Key To Success

Online video gets new clients

_______________ By Gerry Oginski

As the internet has taken hold and more lawyers have recognized the benefits of marketing online, one marketing tool is defining the standard of advertising on the web. Online videos. It is the newest, hottest tool available for lawyers to communicate their message on the web. Admittedly, attorney videos are one-way communication, but they offer significant advantages over every other advertising medium. Most attorneys have failed to understand the true value of video and how it can improve their chances of a potential client calling them over their competitor. Legal marketing experts agree that the sooner you start to see the value of video marketing, the sooner you'll see the results. Legal marketing expert Larry Bodine (www.lawmarketing.com) recently commented that putting video on your website is "...a great opportunity to present how you look, how you talk, what you're like, and make yourself more attractive to clients. It's a great businessgetting technique." The key to encouraging a website visitor to call you, is with video. Static websites and fancy graphics just do not cut it any more, and fail to distinguish yourself from your competitor. Tom Foster, CEO of Foster Web Marketing (www.fosterwebmarketing.com) says "If you get in early by putting video on your website, you can take advantage of good search placement on the video search engines." If you thought that internet video was for the MTV crowd, you'd be wrong. If you thought that video for your website was only for geeky techno-lawyers, you'd be wrong too. If you thought that putting a video of yourself online was useless, you'd definitely be wrong. In fact, Google thinks you're so wrong that they recently paid one billion dollars to buy a video sharing site called YouTube. To give you an idea about the reach that internet video has, consider a ten minute video clip by comedian and ventriloquist Jeff Dunham; his video has been viewed over 60 million times. Most attorney videos are viewed hundreds of times, but it shows the potential that video has. Plus, if done correctly, it won't cost you anything more if it is watched 100 times or 100,000 times.

that the cost to advertise in each medium were prohibitive. The ads themselves were not able to be viewed repeatedly for the same cost, and unless a potential client was looking for an attorney at that moment, they would likely ignore the daily messages they were inundated with.

The new millennia The Internet

Gerry Oginski

looking to market their services and their law firm? It's not only important, it's vital for a lawyer to understand how Google searches work. Only by understanding the concepts of how a search engine works, can a law firm take advantage of it with video marketing.

the competition today, that alone does not get a potential viewer to call you. Once a viewer actually clicks on your site, what do they find? Is the website static and filled with fancy graphics or flash media that does nothing to differentiate your site from all the others? What information do you provide that will cause a viewer to want to pick up the phone and ask you questions? The answer is video.

Pre-historic times

In the pre-internet age, lawyer advertising was limited to television, radio, yellow pages, billboards, newspapers and magazines. Since the 1970's when the Supreme Court of the United States decided that lawyers could advertise (Bates v. State Bar of Arizona), the general public has been bombarded with lawyer ads. Every jurisdiction in every state has their own peculiar set of ethical rules regarding what lawyers can and cannot say in their advertisements. Cheesy lawyer advertisements have been the bane of late-night talk shows and comedy shows for decades. Lawyers trying to get a foothold into their particular market often looked upon lawyer advertising as a necessary evil. Many felt it was beneath them to advertise. Not many lawyers wanted to be in the same category as a salesman looking to pitch his latest slicer and dicer. Traditional advertising is costly. Lawyers often complained

With the dawn of the internet, attorneys began to develop web sites as an ancillary way to "get their name" into the public eye. Many New York lawyers felt, and still do, that they'd rather busy themselves practicing law, rather than marketing their services. The common thinking was "Hire a marketing person to do all that advertising for us." The problem was that most marketing people had no experience with developing web sites for lawyers. Many did not know what a website could be used for and how it could be advantageous to a law firm. The early lawyer web sites consisted of only a few pages and held little information besides your law firm name, and the type of law that you practiced. It gave no real information and did nothing to distinguish you from your competitor down the street. It was analogous to a downed pilot in a war movie who was obligated to give only his name, rank and serial number. Those bland websites did little to encourage a potential client to call. With the advent of interesting and focused lawyer websites, it is simply not enough anymore to have static websites with fancy graphics and photos. How does your website with nice pictures of tall buildings and cityscapes and mean-looking lawyers with their arms folded across their chests, like the Knights of King Arthur's Court preparing for battle, differentiate you from your colleagues? The reality is that your website is probably not very different from your main competitors. Maybe your website uses different colors; maybe you have a different template and design; maybe your font is different. Put aside the design and focus on the substance. What is it that you are trying to tell a prospective client who is searching for an attorney online? What information do you offer that your competitor does not? How can a prospective client make an intelligent choice about whether to pick up the phone and call you instead of the biggest law firm on the block? Does your website distinguish you and your firm from every other law firm practicing in your specialty? If it does, you have a distinct advantage. If it doesn't, you need to look critically at what you are doing in order to improve your online presence.

Typically, a potential client will do a Google search if they are looking for an attorney online. Obviously there are many search engines, but Google's popularity cannot and should not be ignored. The results that pop up on Google will likely determine if your website will be clicked on. If you are on page 10 of a Google search result, it is unlikely your website will be found. The same reasoning applies if you had a full page ad in the yellow pages and were at page 30. The yellow pages representative always managed to explain that even if you were at page 30, "just one client" would be enough to pay for your ad. Unfortunately, the yellow pages rep never explained why a potential client would call your firm, 30 pages from the front, instead of the other 29 lawyers in front of you. However, if your website comes up on page one of Google, there is a good chance that a website viewer will click on your site. Unfortunately, with all

Benefits of Video For The Practicing Attorney

Millions of viewers go online every day to watch video clips about every topic imaginable. From `how-to' videos where you can learn to build a house, to bizarre videos of no-talent singers pretending to be Tom Cruise in their dining room. From sports to politics to technology, there's a video online to steal a few moments of your time. Video allows the attorney not only to convey their marketing message, but allows viewers to see, hear, and determine whether the lawyer inspires confidence and knows what he is talking about. Video allows for more than a 30 second commercial that screams at you. It gives lawyers the opportunity to explain to viewers how they are different from every other lawyer. (Continued on page 24)

LASIK & OPTHALMOLOGIC MALPRACTICE

Keith Shapiro & Ford welcomes the opportunity to consult with counsel on matters relating to malpractice committed in the areas of LASIK and other refractive surgical procedures as well as other forms of opthalmologic malpractice.

Nationally recognized in the area of refractive malpractice & lecturer on LASIK malpractice for the American Trial Lawyers Association

Google - Why You Need To Know How It Works

Today's internet has exploded with creative and useful ways to educate and inform millions of viewers. A "Google search" has made it commonplace to search for anything and anybody with a click of a button. Google has cornered the market on creating the easiest and arguably most powerful search tool on the internet today. Why is this important for lawyers

Keith, Shapiro & Ford 666 Old Country Road Garden City, New York (516) 222-0200

12

THE SUFFOLK LAWYER -- OCTOBER 2008

COMMERCIAL LITIGATION

Strike ­ It's Out!!

Striking unnecessary, scandalous pleadings pursuant to CPLR 3024(b)

___________________ By Leo K. Barnes Jr.

Partnership breakups are characterized by counsel as business divorces for a good reason ­ the venom that permeates some of the cases is largely unrivaled (excepting, of course, matrimonial practice). A hurdle arises when irrelevant anger is included in a pleading and counsel is compelled to address the allegation head-on. Imagine the standard business break-up litigation. Plaintiff asserts the garden variety claims, including breach of fiduciary duty, breach of the corporation's shareholder agreement, etc. In an attempt to portray his soon-to-be-ex in a poor light, plaintiff also adds that his partner, a casual art collector, recently purchased a painting, but arranged for delivery to his sister's New Hampshire home in a putative effort to avoid sales tax on the purchase. The allegation, if true, is obviously damning. Assuming arguendo, there is a basis for denying the claim, the conflicting pleadings will lead to discovery demands seeking to confirm the allegation, which simply serves to postpone resolution of the issue. What's a savvy defense attorney to do? CPLR 3024(b) provides an option. Specifically, within 20 days after service of the challenged pleading,1 "a party may move to strike any scandalous or prejudicial

matter unnecessarily inserted in the pleading." 2 As Professor Siegel notes in his Practice Commentaries:

"Many apt allegations are scandalous and prejudicial both: the accusation of adultery in a relevancy is still the best key matrimonial action, theft in a to whether matter is `unnecconversion action, fraud in a suit essarily' pleaded, and the Leo K. Barnes Jr. for breach of trust, rape in an best key to relevancy is action for assault.... The showing required whether it would be admissible in evidence under subdivision (b) is not merely that the at the trial ... In general, we may conclude matter objected to is "scandalous" or "prej- that `unnecessarily' means `irrelevant.' We udicial," but that it is unnecessarily inserted should test this by the rules of evidence and in the pleading. The "unnecessarily" is the draw the rule accordingly. Generally key word.3 speaking, if the item would be admissible at the trial under the evidentiary rules of relevancy, its inclusion in the pleading, whether When Is An Allegation or not it constitutes ideal pleading, would "Unnecessary"? The First Department's Soumayah v. not justify a motion to strike under CPLR Minnelli4 provides guidance for discerning 3024(b). when an allegation warrants CPLR 3024(b) Applying that principle to the facts at bar, intervention. In Soumayah, a former employee initiated an action against his former the Soumayah Court ruled that the allegaemployer for, inter alia, quantum meruit. tions that the defendant asked the plaintiff Plaintiff alleged in his Complaint that the how much money he wanted not to initiate defendant asked plaintiff how much money suit, and later asked him to reconsider suing he wanted and not to initiate a threatened law- her, were not relevant to the plaintiff's suit, and thereafter defendant asked the plain- claims, finding that any such statements by tiff to reconsider pursuing such an action. The the defendant would constitute an inadmissible offer to compromise pursuant to CPLR 4547. The lesson to be learned from this Appellate Division decision is that despite the fact that the allegation was not terribly "scandalous," a mainstream eviden______________________ entrusted to his charge and fabtiary objection served as the foundation for By Ilene Sherwyn Cooper rications that he made or creatthe CPLR 3024(b) motion. ed with respect thereto. A more extreme allegation was asserted APPELLATE DIVISION in Baychester Shopping Center, Inc. v. Seth Muraskin: Motion by Llorente.v There, the defendant incorporatSECOND DEPARTMENT the respondent for an order ed by reference in his answer copies of varstaying a pending investigation ious newspaper articles about defendants on Attorney Resignations by the Grievance Committee the counterclaims, including a May 1, 1995 Granted/Disciplinary and directing that he complete New York Post article claiming that the Proceeding Pending: a monitoring program sponcounterclaim defendants were among the Roger L. Cohen (admitted sored by the lawyers' assis10 worst landlords in New York City that Ilene S. Cooper as Roger Lee Cohen): By affitance program approved by the year. The court agreed with the movant that davit, respondent tendered his court, or in the alternative, suspending the articles constituted scandalous or prejuresignation, indicating that he was aware him from the practice of law due to mendicial material unnecessarily inserted in the that he was the subject of a pending inves- tal and emotional disability. Upon the answer and granted the CPLR 3024(b) tigation by the Grievance Committee papers submitted the court ordered that motion to strike. In the Baychester against him concerning, inter alia, his the respondent be suspended from the Shopping Center court relied upon the fact mishandling of client funds. Mr. Cohen practice of law due to mental and emothat not one of the articles submitted menacknowledged his inability to defend him- tional disability. tioned defendant specifically, and the self on the merits of any disciplinary instances described in the newspaper articharges which may be initiated against Attorneys Disbarred: cles occurred before the defendant moved him based upon the underlying facts. He Christopher Collotta (also known as stated that his resignation was freely and Randi Alarcon): On May 10, 2007, the voluntary rendered, and acknowledged respondent entered a plea of guilty to the that his resignation was subject to an order federal felonies of conspiracy to commit directing that she make restitution and securities fraud and committing securities reimburse the Lawyers' Fund for Client fraud. The federal felony of securities Protection. In view of the foregoing, the fraud has been held to be essentially simirespondent's resignation was accepted lar to the New York felony of fraudulent and he was disbarred from the practice of securities transactions. Accordingly, the law in the state of New York. Volunteers are needed to help care for court held by virtue of his conviction of a children who attend Family & Children's felony, the respondent ceased to be an Attorneys Suspended: Association Children's Center at the attorney and was automatically disbarred Bryan J. Holzberg (admitted as Bryan from the practice of law in the state of New Cohalan District Court. The center proJoel Holzberg): Motion by the Grievance York. vides parents with a safe, nurturing place Committee for the Ninth Judicial District to leave their children while they attend for an order, inter alia, suspending the to their legal matters. The Cohalan Note: The author is a partner with the respondent and authorizing the filing of a law firm of Farrell Fritz, P.C. where she Court Children's Center is comprised of supplemental petition to be incorporated concentrates in the field of trusts and professional childcare providers and volinto a disciplinary proceeding pending estates. In addition, she is Second Viceunteers. Volunteers are needed Monday before a special referee, granted upon 17 President of the Suffolk County Bar and Friday from 10 a.m. to 1 p.m. and 2 charges of alleged professional misconduct Association and a member of the Advisory p.m. to 4 p.m. The task/duties of the involving repeated neglect of legal matters Committee of the Suffolk Academy of Law.

Appellate Division noted that in reviewing a CPLR 3024(b) motion, the issue is whether the scandalous or prejudicial allegations are relevant to a cause of action:

into his room, essentially relying upon a bright-line relevancy objection. Two Second Department cases are likewise compelling. The May 2008 decision in Plaza at Patterson L.L.C. v. Clover Lake Holdings, Inc.,6 reversed a Westchester Supreme Court Order denying a motion to strike scandalous pleadings from respondents' verified answer and counterclaims. In Plaza at Patterson, the Second Department ruled that it was error for the Supreme Court to deny the 3024(b) motion when the respondents incorporated in their pleading references to collateral matters relative to the petitioners' corporate principals "that are unrelated to the instant litigation. These matters should be stricken from the respondents' verified answer and counterclaims as both unnecessary to the viability of the counterclaims, and as prejudicial to the petitioners." The Second Department's ruling in J.C. Mfg., Inc. v. N.P.I. Elec., Inc.7 is even more cautious because it affirmed a trial court ruling striking certain paragraphs from a pleading despite the fact that the court acknowledged that the allegations may be admissible at trial. Accordingly, although admissibility is still unresolved, the offending allegations are out for the time being.

Practice & Procedure

If the allegations are truly unnecessary and scandalous, counsel may consider reviewing the standards for filings under seal pursuant to 22 NYCRR 216.1 when contemplating the CPLR 3024(b) motion. In the alternative, assuming that a motion is granted and the motion was not made under seal, it is prudent to request that the court remove the subject pleading from the court file. Finally, no appeal as of right arises from the court's decision on a 3024(b) motion.8 Note: The author is a member of BARNES & BARNES, P.C. and can be reached at [email protected]

1 CPLR 3024(c) 2 CPLR 3024(b) 3 Siegel, David, Practice Commentaries, C3024:4 4 41 A.D.3d 390, 839 N.Y.S.2d 79 (1st Dep't 2007). 5 175 Misc.2d 739, 669 N.Y.S.2d 460 (N.Y. Sup. Ct. 1997) 6 51 A.D. 931, 856 N.Y.S.2d 877 (2nd Dep't 2008). 7 178 A.D.2d 505, 577 N.Y.S.2d 145 (2nd Dep't 1991). 8 Wilson v. DiCaprio, 278 A.D.2d 25, 717 N.Y.S.2d 174 (1st Dep't 2000).

COURT NOTES

BRIEF

Volunteers Needed At Cohalan District Court's Children's Center

Volunteer Classroom Assistant will include: engaging the children, promoting literacy, supervising the children, helping with light cleaning and helping with snack distribution. All volunteers are required to be at least 18 years of age and possess the ability to read to children and lift a 50 pound toddler. For further information, contact Jeanette Scott at (516) 746-0350 ext 372 or email her at [email protected]

THE SUFFOLK LAWYER -- OCTOBER 2008

13

SECOND CIRCUIT BRIEFS

Good Times, Bad Times

____________________ By Eugene D. Berman

This month we discuss two decisions that the United States Court of Appeals for the Second Circuit issued in August 2008. The first addresses an issue of first impression in the circuit concerning whether a prior New York drug conviction was a serious drug offense for the purposes of the Armed Career Criminal Act, while the second concerns the appeal filing deadline in a False Claims Act qui tam action.

Time Is On My Side

The Armed Career Criminal Act ("ACCA") mandates a 15 year sentence on a defendant convicted of possession of a firearm in violation of 18 USC § 922(g) if the defendant has three prior convictions "for a violent felony or a serious drug offense." 18 USC § 924(e)(1). See, James v. U.S., _ US _, 127 S.Ct. 1586, 1590, 167 L.Ed.2d 532 (2007). As applicable here, "the term `serious drug offense' means ... an offense under state law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of 10 years or more is prescribed by law." 18 USC § 924(e)(2)(A)(ii). Thus, for a state drug offence to be deemed "serious" for ACCA purposes, its maximum permissible sentence must be at least 10 years. In U.S. v. Darden, 2008 WL 3545347 (2d Cir. 2008), decided on August 15, 2008, Darden was arrested on February 23, 2000 for possessing a handgun and ammunition. He thereafter pleaded guilty to firearms possession in violation of 18 U.S.C. § 922(g)(1). At Darden's September 29, 2006 sentencing, there was no dispute that he had three prior convictions, two of which were ACCA predicate violent felonies while the third was a 1989 Class B felony conviction of criminal sale of a controlled substance in the third degree in violation of New York Penal Law § 220.39. In 1989, when Darden was convicted of the state drug offence, "a maximum term of at least ten years imprisonment was prescribed by New York law." Darden, 2008 WL 3545347*3. Thereafter, as a result of New York's Drug Law Reform Act ("DLRA"), L. 2004, ch. 738, effective on January 13, 2005, the maximum sentence for a Penal Law § 220.39 conviction was lowered to less than 10 years. Id. See, New York Penal Law § 70.70(2)(a)(i), providing a nine year maximum determinate sentence for a defendant who (like Darden) is not a prior felony drug offender. The DLRA, however, is not retroactive. People v. Utsey, 7 N.Y.3d 398, 403, 822 N.Y.S.2d 475, 477 (2006) ("in enacting the DLRA, the Legislature specified that its reduced sentencing provisions ... shall apply to crimes committed on or after the effective date thereof") (internal quotation marks and citation omitted). As such, the DLRA's reduced sentence is inapplicable to Darden, who committed the drug offence before the DLRA became effective. In view of the above, the district court held that Darden's 1989 Penal Law § 220.39 conviction was a "serious drug offense" that triggered the ACCA's enhanced sentencing. On appeal, and as an issue of first impression in the Second Circuit, the court considered whether cur-

rent state law prescribes a maxitied for purposes of the mum term in excess of 10 years ACCA." Darden, 2008 WL in view of the DLRA's autho3545347*9. rization of greater than ten year sentences for crimes (like Out of Time Darden's) committed before its The False Claims Act effective date. ("FCA"), 31 USC §§ 3729In its analysis, the Second 3733, authorizes the comCircuit reasoned that the ACCA mencement of a civil action by contemplates a serious drug the United States government, offense as drug related conduct Eugene D. Berman or by a private person (known that state law punishes with a as a "relator") "for the person maximum prison term of at least 10 years. and for the United States Government ... As such, the offence's seriousness is not in the name of the Government." 31 USC measured by the proscribed conduct. § 3730(a) and (b)(1). The government Rather, the ACCA's criterion for a drug may intervene in a private person's qui offense's seriousness is the maximum tam action, in which event the government prison sentence that a state court may becomes responsible for prosecuting the impose after a conviction. action, and the relator will receive a perThe Second Circuit additionally recog- centage of any recovery. If the governnized that there is nothing in the DLRA or ment does not intervene, the relator may its legislative history suggesting that New continue the action and, if he or she preYork considered a drug crime committed vails, may receive a larger percentage of before January 13, 2005 as more serious the recovery. 31 USC § 3730(c)(1) and (3) than the same crime committed after that and (d)(1) and (2). date. In this regard, the court opined that U.S. ex rel. Eisenstein v. City of New the DLRA's "non-retroactivity provision York, 2008 WL 3840447 (2d Cir. decided was almost surely enacted to combat prob- on August 19, 2008), a qui tam action in lems of retroactive administration." which the government did not intervene, Darden, 2008 WL 3545347*8. concerns the City of New York's motion In vacating Darden's sentence, the to dismiss the relator's (Eisenstein) appeal Second Circuit therefore held that "the based on Eisenstein's failure to timely file timing of the offense conduct," such as the his notice of appeal. Under the Federal date of Darden's acts in violation of Penal Rules of Appellate Procedure ("FRAP") a Law § 220.39, "is not part of the offense of notice of appeal in a civil case "must be conviction to which the maximum term is filed ... within 30 days after the judgment

or order appealed from is entered" unless "the United States or its officer or agency is a party," in which event any party may file a notice of appeal "within 60 days after the judgment or order appealed from is entered." FRAP Rule 4(a)(1)(A) and (B). Since Eisenstein filed his notice of appeal between the 30th and 60th day after entry, the Second Circuit had to determine whether, under the circumstances of the case, the United States was a party. In reaching its decision, the Second Circuit distinguished between the United States' status as "a real party in interest" and the Eisenstein's status as a party to litigation. The court explained that "the term `real party in interest' exists only to distinguish the litigation interests it covers from those of a `party' who is the person responsible for prosecuting the action." U.S. ex rel. Eisenstein, 2008 WL 3840447*3. Since the FCA granted Eisenstein the right to conduct the action after the United States declined to intervene, 31 USC § 3730(c)(3), Eisenstein was a party to the action and the United States was not. Thus, since Eisenstein filed his notice of appeal more than 30 days after entry, his appeal was untimely, and the Second Circuit, lacking jurisdiction to consider the appeal, granted the City's motion. U.S. ex rel. Eisenstein, 2008 WL 3840447*1. Note: The author is Of Counsel to DePinto, Nornes & Associates, LLP in Melville, NY.

ANNOUNCEMENT

CLE Rocks On At CMJ Music Marathon

NYS Bar Association's Entertainment Arts & Sports Law Section Hosts 3rd Annual Music Business Law Seminar at the CMJ Music Marathon & Film Festival on Oct. 24, 2008

One-day "All Along the Watchtower" event earns 6 MCLE credits; Attorneys urged to register now "because the hour is getting late" Behind every great rock star stands ...a lawyer. But in this era of digital rights, rapidly exploding technology, and upheaval impacting the traditional music industry's business model, staying current with new legal developments has never been more critical for attorneys serving the entertainment business. The year's best opportunity for attorneys to catch up on the complex business, technological and legal issues swirling around the industry comes on Friday, October 24, 2008, when the Entertainment Arts & Sports Law (EASL) Section of The New York State Bar Association, in association with Katten Muchin Rosenman LLP and Sonnenschein Nath & Rosenthal LLP, again hosts the all-day, MCLE accredited Music Business Law Seminar at the CMJ Music Marathon & Film Festival in New York City. Taking place at New York University's Helen and Martin Kimmel Center for University Life, in the Richard L. Rosenthal Pavilion, this year's program is called "All Along the Watchtower: Guiding clients through the confusion and turmoil facing the modern music industry." Industry leaders, including senior executives from EMI Music and Harry Fox Agency will explore major developments and their implications for attorneys and their clients, on such emerging fronts as digital royalties, bankruptcy, user-generated content and joint ventures. Attorneys attending the program will receive six New York State MCLE (Mandatory Continuing Legal Education) credits, consisting of five in Practice Management and one in Ethics, which may also be accepted in other jurisdictions, plus a breakfast and luncheon. Both two and five-day CMJ/CLE registration options are also available to attend all CMJ Music Marathon & Film Festival events in addition to the Music Business Law Seminar. The event is open to all CMJ registrants. For two and five-day registration please visit CMJ's website at www.cmj.com/marathon/cle_registration Thanks to special sponsorship arrangements, the price of registration has been substantially reduced for this year's sessions. Pricing options include: Option 1: Music Business Law Seminar Only (Registration fee: $199.00*) This option includes admission to the Music Business Law Seminar only (Friday, October 24, 2008), New York MCLE credits, written course materials, lunch and refreshments. Option 2: 2-day CMJ Music Marathon 2008 Badge + Music Business Law Seminar (Registration fee: $299.00*) This option includes admission to the Music Business Law Seminar, New York MCLE credits, written course materials, lunch, refreshments and a 2-day CMJ Music Marathon 2008 Badge valid during Friday, October 24, 2008 and Saturday, October 25, 2008. The 2-day CMJ Music Marathon 2008 Badge allows access to two (2) full days of events including panels, nighttime admission to New York's best live music venues to enjoy hundreds of the world's best new bands in concert and the CMJ Film Festival featuring the very best in major and independent films before they hit theaters. Option 3: Full 5-day CMJ Music Marathon 2008 Badge + Music Business Law Seminar Upgrade (Registration fee: $594.00 [$495.00 CMJ Badge + $99.00 upgrade]*) This option includes admission to the Music Business Law Seminar, New York (Continued on page 24)

14

THE SUFFOLK LAWYER -- OCTOBER 2008

Lawyer Assistance Hosts Member Luncheon

Gus and Betty Ginocchio, Leslie Tenzer, Lenore Dowis, John Copertino, and Catherine England ______________ By Laura Lane

Jane LaCova, I. Leonard Feigenbaum, Bernard Sarisohn, First VP Sheryl L. Randazzo, Lenore Dowis, Floyd Sarisohn and Martin Bodian

Photo credit:Arthur Shulman

SCBA Pres. James R. Winkler, retired District Court Judge Armand Araujo, Peter J. Costigan, former SCBA pres. Gustave Fishel III.

Donna England

The Lawyer Assistance Foundation has embarked on a new concept to benefit members of the Suffolk County Bar Association. Senior members were recently encouraged to act as mentors to the bar's younger attorneys when they attended the first Honorary Member Luncheon held at bar headquarters. "As a member of the Office of Committee on Character and Fitness I meet people who are about to be admitted as attorneys and in so many cases they are going out into the world with no one to teach them the practicality of the profession," said SCBA Past President Harvey B. Besunder, who has agreed to become a mentor. "The key points new attorneys need to know is to balance zealous representation with professionalism and civility and I believe that I can help them to understand this by being a mentor. Our bar members have always made themselves available to any member who wants to call and run something by another attorney. But the advantage of being a mentor is the new attorney will be calling the same person, form a relationship with them, and they therefore may be more inclined to call and ask advice." Mr. Besunder said the luncheon was beneficial to everyone who attended but especially those who are retired and may not have visited the bar for some time. He believes it's important for these members to continue to be active and what better way for them to do so then to provide them with an opportunity to share their varied experiences with the future generation of attorneys. The luncheon also gave the attendees (who were members over 70) an opportunity to socialize with old friends and to learn more about the Lawyer Assistance Foundation, which is committed to assisting attorneys with a variety of problems including drinking, drugs, emotional and financial. The Foundation, which was founded in 1991, is led by Managing Director Donna England, Esq. It is always in need of donations and pledges and holds a fundraiser once a year. This year the fundraiser, a golf tournament, will be held on Tuesday, Oct. 21 at the Westhampton County Club honoring U.S. Army Corporal Christopher Levi (see front cover Bar Briefs). To find out how to mentor, or to obtain further information about the Lawyer Assistance Foundation, call the bar at (631) 234-5511.

(seated) Jane LaCova, SCBA past president John L. Buonora, Anthony Gallo, (standing) past president Harvey B. Besunder, SCBA Secretary Dennis R. Chase, immediate past president Barry M. Smolowitz.

Jules Rosenberg, Donna England, Hon. Donald Kitson, former Suffolk Administrative Judge Hon. Arthur M. Cromarty, and past Supreme Court Justice and past SCBA president Catherine T. England.

Former Appellate Court Justice John Copertino, former Supreme Court Justice Donald Kitson, Donna England, Robert P. Clemente and James J. Von Oist

Lawyer Assistance Foundation Managing Director Donna England, August J. Ginocchio and his wife Betty

THE SUFFOLK LAWYER -- OCTOBER 2008

15

Judiciary Night

Photo credit: Arthur Shulman

Hon. Arthur G. Pitts, Supreme Ct. Judge; Hon. Peter H. Mayer, Supreme Ct. Judge; Nancy Kitson; and Hon. Donald Kitson, Former Supreme Ct. Judge

Hon. Ralph F. Costello, Supreme Ct. Judge; Hon. Gigi A. Spelman, District Ct. Judge; Hon. William B. Rebolini, Supreme Ct. Judge; and Hon. Salvatore A. Alamia, District Ct. Judge

Fredrick Eisenbud, Esq.; Allan Todd Costell, Esq.; Natasha Meyers, Esq. and Daniel Baker, Esq.

Photo Credit Barry Smolowitz

Patricia M. Meisenheimer, Dean of Suffolk Academy of Law; James Winkler, SCBA President; Sheryl L. Randazzo, SCBA 1st VP; and Ilene S. Cooper, SCBA President Elect District Court Judges Hon. Toni A. Bean, Hon. James P. Flanagan & Hon. Gaetan B. Lozito

SCBA members Jonathan Juliano, Alan Todd Costello, First Vice President Sheryl Randazzo, Sherry and SCBA Secretary Dennis Chase.

Mike Mule and colleagues.

SCBA President Jim Winkler welcomes everyone to Judiciary Night

Many people attended the annual event, including past SCBA President John L. Buonora.

District Court Judge, Hon. W. Gerard (Jerry) Asher, Retired Judge Donald Kitson.

16

THE SUFFOLK LAWYER -- OCTOBER 2008

CONSUMER BANKRUPTCY

Portion of New Bankruptcy Laws Declared Unconstitutional

Court of Appeals strikes down provision preventing attorneys from advising clients

_________________ By Craig D. Robins

that did not exist prior to the Court of Appeals decision BAPCPA. which both affirmed and In a question of first impression in the Under the new statute, bankreversed parts of the District circuits, the U.S. Court of Appeals for the ruptcy attorneys, as Debt Relief Court decision. Eighth Circuit in St. Louis just handed Agencies, have new restrictions down, on September 4, 2008, the first and requirements. For example, Prior Federal Court Federal Appeals Court ruling that a por- § 526(a)(4) bars a debt relief Decisions Reached tion of the new bankruptcy laws are agency from advising a client Conflicting Conclusions unconstitutional. The court struck a pro- "to incur more debt in contemThere have been several vision which had prevented attorneys from plation" of a bankruptcy filing, decisions interpreting the concounseling clients about incurring new while §§ 528(a)(4) and (b)(2) stitutionality of BAPCPA's Craig D. Robins debt prior to filing. require debt relief agencies to "Debt Relief Agency" proviThe Court of Appeals, in a two to one include a disclosure notice in their banksions. I previously reported on the very ruling, said the provision was unconstitu- ruptcy-related advertisements stating that: tional and limited attorneys' freedom of "`We are a debt relief agency. We help first such decision that was issued the very speech by "preventing attorneys from ful- people file for bankruptcy relief under the first day that BAPCPA went into effect. A filling their duty to clients to give them Bankruptcy Code[,]'or a substantially sim- Georgia Bankruptcy Court judge released a sua sponte decision that attorneys were appropriate and beneficial advice." ilar statement." I previously addressed not "Debt Relief Agencies," and was some of these issues in my January 2006 therefore excused from any compliance New Laws Contain Many Changes column in The Suffolk Lawyer. with those requirements. to Practice and Procedure Since that 2005 decision, two other The Bankruptcy Abuse Prevention and Constitutional Challenge bankruptcy courts relied upon it in issuing Consumer Protection Act of 2005 (BAPCMilavetz, Gallop & Milavetz, a bank- similar decisions including the earlier PA), which became effective in October ruptcy law firm in Minnesota, brought suit District Court in Milavetz. However, 2005, contains many new Bankruptcy against the United States seeking a despite these rulings, a majority of courts Code provisions which had the effect of declaratory judgment that certain provi- have held that bankruptcy attorneys fall drastically altering the landscape of bank- sions of BAPCPA -- §§ 526(a)(4) and within the definition of "Debt Relief ruptcy practice. Several sections contain 528(a)(4) and (b)(2)--did not apply to Agencies." directives mandating how bankruptcy attorneys and are unconstitutional as practitioners can advertise and advise their applied to attorneys. (Milavetz v. U.S.A., Connecticut Bankruptcy Court clients. Many of these provisions have 2008). created substantial burdens on bankruptcy The United States District Court granted Reaches Renders Similar Decision Meanwhile, the very next week, on counsel to comply with. summary judgment to the attorneys and September 9, 2008, the U.S. District Court issued an order declaring that: (1) attorneys in the District of Minnesota were for Connecticut reached a similar decision Concept of the Debt Relief Agency From the outset, some of the most con- excluded from the definition of a "debt in the case of Connecticut Bar Association troversial provisions of BAPCPA were set relief agency" as defined by BAPCPA; v. U.S.A. District Court Judge Christopher forth in Bankruptcy Code provisions 526, and (2) the challenged provisions were unconstitutional as applied to attorneys in Droney ruled that the BAPCPA statute 527 and 528 which required bankruptcy that limited attorneys from advising clients attorneys to be considered "Debt Relief the District of Minnesota. The government appealed, resulting in to incur debt in contemplation of bankAgencies." This is a totally new concept ruptcy was so broad that it unconstitutionally restricted attorneys' First Amendment rights. Judge Droney wrote, "A Lawyer who represents consumers contemplating bankIF YOU NEED HELP ruptcy bears the duty of zealous representation and the prohibition on giving legal WE ARE HERE FOR YOU! advice unnecessarily interferes with this duty." The judge continued, "If the government seeks to prevent manipulation of the bankruptcy system, a more narrowly tailored approach would be to penalize those who take on certain types of debts, rather than The Foundation is a group of lawyers, who volunteer to help others in need. prohibiting legal advice about permissible Their wThe Foundation is a group of lawyers who volunteer to help others in need. courses of action." Their work is totally confidential; they do not ask questions or make judgments. This suit was brought in 2006 by the They are here for you, if you need help. You are not alone. National Association of Consumer The Foundation has been in existence for years. During that time, we have Bankruptcy Attorneys (which all regular helped attorneys who have had professional turmoil due to illness, depression, and bankruptcy practitioners should join) and drug or alcohol addiction. We have worked in their offices, maintained their health the Connecticut Bar Association. insurance, and seen them through detox to recovery to re-entry into the professional world. Practice Tip It is our pledge to assure every lawyer in Suffolk County, whether a member of Both the Milavetz and Connecticut Bar a firm or a sole practitioner, that in their time of need we will be there, no quesAssociation decisions are very important tions, no judgments. because they underscore the rights of attorIt is my hope that our members who are not a part of our Foundation will underneys to help debtor-clients put their affairs stand the importance of our work and will help us with a contribution no matter in order before filing bankruptcy. how large or small. Although the Milavetz case technically Our goal is to put out our hand to help our fellow lawyers. applies only to the Eighth Circuit, it is the only decision on a federal appellate level Donna England addressing the issue. Accordingly, until Managing Director this matter is addressed by other appellate courts or the Supreme Court, the Milavetz

decision can offer some guidance as to how attorneys in our jurisdiction can advise and counsel our clients.

Typical Situations Where Counsel May Want to Suggest Incurring Debt

A frequent situation that I encounter when a consumer client has a car lease that is about to end. Prior to BAPCPA, l would have advised the debtor to immediately surrender the existing car and obtain a new car lease, as getting a new car lease is easier to do before filing. However, under BAPCPA, such advice theoretically involves advising the client to incur new debt in contemplation of bankruptcy. Another example is where a client who is contemplating bankruptcy might benefit from refinancing a mortgage, to lower monthly payments or even to take cash out to pay off other debts. These two examples were actually cited by the court in the Milavetz decision. The court stated that "there are certain situations where it would likely be in the assisted person's, and even the creditors', best interest for the assisted person to incur additional debt in contemplation of bankruptcy." Counsel who seeks to aggressively represent their clients might now feel a greater level of comfort in being able to make such recommendations to their clients as there is appellate support for doing so. Nevertheless, the issue has not yet been addressed in our jurisdiction. Note: The author is, a regular columnist, is a bankruptcy attorney who has represented thousands of consumer and business clients during the past 20 years. He has offices in Medford, Commack, Woodbury and Valley Stream. (516) 496-0800. He can be reached at [email protected] Please visit his Bankruptcy Website: BankruptcyCanHelp.com.

The Lawyer's Assistance Foundation

Dispelling The Purported "30 Day" Rule

(Continued from page 5) ficient notice setting time of the essence)). A real estate closing transaction is typically dominated by real estate "professionals" (the listing broker, the selling broker, the mortgage broker, the bank representative, the title agents, etc.) most of whom are not attorneys. The fact that the 30 day rule is so readily acknowledged by counsel proves that this tale has been accepted as gospel. In that regard, for Pete's sake, lest we not forget that to elicit and appreciate the insight of your colleague is wise . . . but to accept their understanding of the law as truth is foolish! Note: The author is a member of Barnes & Barnes, P.C. and can be reached at "[email protected]".

THE SUFFOLK LAWYER -- OCTOBER 2008

17

DWI

Taking The Drinking Driver Program In Or Out Of State

___________________ By David A. Mansfield

Note: The author credits the Department of Motor Vehicles brochure The Drinking Driver Program that can be found at http://www.nydmv.state.ny.us/broch/c40.ht mas the source of the most of the foregoing material. Sometimes a New York State licensed driver convicted of an alcohol related drug offense, eligible for the Drinking Driver Program under Vehicle & Traffic Law §1196 and NYCRR 15 Part §134 may be a college student wishing to take the program out of state. It's possible to do this by contacting the Department of Motor Vehicles Driver Improvement Adjudication Unit in Albany (518-474-0074 from 8:30 a.m. to 12 p.m.) to obtain information regarding the out of state alcohol and drug education and rehabilitation programs that are acceptable to New York State Department of Motor Vehicles. An out of state programs does have to be a mirror image of the seven week of classes usually given in Suffolk County at The State University of New York at Stony Brook for 2 1/3 hours on seven consecutive daytime or evening sessions. A frequent issue that arises when someone chooses to participate in an out of state program for an alcohol or drug related New York State conviction program out of state is how to notify the Department of Motor Vehicles in New York. All that's needed is to bring proof or mail it to a New York

State Department of Motor determine eligibility by issuing Vehicles office of participation to a standard order of suspension be issued a conditional license for or revocation. Your client must a minimum period of 60 days in present a driving abstract from New York State. It's your client's their home state before the responsibility to provide the proof Department of Motor Vehicles that the program was completed can issue conditional driving out of state in order to have their privileges. full license privileges restored. A client may have an out of Defense counsel should reinforce state license, been convicted this duty by providing an exit letout of state and wish to take ter to your client, a follow-up David A. Mansfield the Drinking Driver Program phone call and a letter 60 days in New York State. The later through your diary system. Your Department of Motor Vehicles treats this client will be impressed by your profes- as a courtesy enrollment in the Drinking sionalism and you yourself can take pride Driver Program and will allow your client in the fact that you've handled the situation to satisfy another state's requirements for in a proactive fashion. re-licensing. You or your client should Another factual pattern may be a client investigate and contact the state where the who wishes to take a program in New York conviction was had to determine whether and holds a New York State license but has the home state of licensing will accept the a conviction from out of state. Eligibility is New York State Drinking Driver Program. set forth in 15 NYCRR Part §134.13 The Your client must supply the proof of their Department of Motor Vehicles Driver out of state conviction to a New York State Improvement Adjudication Unit requires or County Motor Vehicle office. Since the proof of the out of state conviction in order Department of Motor Vehicles doesn't to generate a suspension or revocation issue a conditional license or privilege so order which will inform them of their eligi- there is no requirement for a driving bility for a Drinking Driver Program and abstract. Should your client chose not to conditional license. participate they will, of course, not be eliSome clients may hold an out of state gible for a conditional license for the next license and been convicted in New York five years although they may be required State wishing to take the Drinking Driver to participate in the Drinking Driver Program in New York. In this instance the Program without eligibility for a condilogistics are simpler in that the Department tional license. of Motor Vehicles will receive notice of A further trap is that failure to particithe alcohol or drug related conviction and pate in a Drinking Driver Program as a

result of a drug or alcohol conviction in New York State, will result in ineligibility for five years for a restricted use license 15 NYCRR Part §135.7 (4) in the event your client is suspended or revoked for a nonalcohol related offense such as operating without insurance, lapse of insurance coverage, three speeds in 18 months or any other type of discretionary license suspension for which they may have been otherwise be eligible. Clients who are New York State licensed drivers convicted in New York State courts are sentenced to a conditional discharge or as a condition of probation that they complete all phases of the Drinking Driver Program. Failure to complete all phases of the program, including a possible referral phase, could result in resentencing on a Violation of Conditional Discharge or Probation with the imposition of a sentence of incarceration on the underlying offense. Out of state drivers upon the expiration of the minimum period of suspension or revocation must forward a letter to the Department of Motor Vehicles Driver Improvement Adjudication Unit requesting reinstatement of their driving privileges with a check or money order of $25 payable to the Department of Motor Vehicles for the restoration fee. Note: The author practices in Islandia and is a frequent contributor to this publication.

TRUSTS AND ESTATES UPDATE

______________________ By Ilene Sherwyn Cooper

Eligibility of Fiduciary

Incident to a probate proceeding, application was made by the three executors named in the propounded Will for preliminary letters testamentary. The record revealed that shortly before the execution of the propounded instrument, the decedent, an artist, suffered from one or more strokes. The record further revealed that soon after the propounded instrument was signed, the decedent suffered a massive stroke which left him completely aphasic. Thereafter, he was confined to various hospitals and nursing homes. Approximately six months before the decedent's death on January 7, 2008, an action was commenced in Supreme Court on the testator's behalf, by Ms. Stein, an owner of an art gallery, purportedly in her capacity as decedent's attorney-in-fact. Ms. Stein alleged that the decedent had revoked a prior power of attorney that had been given to the attorney-draftsman of his Will, on the grounds that he had mishandled the decedent's assets, and had refused to attend to his bills for medical and rehabilitative care. She stated that the decedent's mental faculties had not been affected by his stroke, and that her power of attorney had been fully read and explained to the decedent, and had been signed in the presence of a psychiatrist, who attested to the decedent's understanding of the document. The attorney-draftsman disputed the

validity of Ms. Stein's power of viduals, one of whom preattorney, and denied that his own deceased the testator, and the power had been revoked. He also second, who held an interest in claimed that Ms. Stein had assets and managed real estate in of the decedent which she which the testator's estate was refused to turn over to him, and a minority shareholder. The had harassed decedent with daily successor named in the instrutelephone calls and visits. He ment was the attorney-draftsalso rejected the allegations man's wife. The instrument against him of misconduct. directed that the executors The Supreme Court litigation retain the attorney-draftsman Ilene S. Cooper was ultimately resolved pursuant as their attorney, and the attorto an agreement, which, the ney-draftsman and his wife Surrogate found contained numerous and were authorized to appoint a co- or a sucgenerous financial provisions for the bene- cessor executor. Finally, contrary to law, fit of Ms. Stein and the attorney-draftsman the executors were authorized by law to at the expense of the testator, including but pay themselves commissions without prior not limited to provisions for payment of court approval. tens of thousands of dollars in legal fees The Will left the decedent's entire estate for unspecified services performed by the to a Lichtenstein foundation allegedly creattorney-draftsman, and the appointment ated by the testator, with the direction that of Ms. Stein as co-executor of the dece- it pay $400 per month to a friend of the dent's estate. decedent for life. The instrument further The testator died several days after the provided that in the event the foundation execution of the agreement, with an estate was at least partially funded within a year of approximately $30 million, and only from the executors' qualification, the one known distributee. The court noted residue of the estate would pass, in the disthat although the testator had made it clear cretion of the executors, to individuals and to the attorney-draftsman that he wanted or organizations assisting Jewish settlors. his estate to pass free of estate taxes, the The record revealed that the estate was propounded instrument as drafted failed to in need of the appointment of a prelimiqualify for the charitable deduction con- nary fiduciary. However, based upon what templated by the decedent. it described as the troubling issues created Pursuant to the pertinent provisions of by the circumstances, the court concluded the instrument, the named executors were that none of the named executors in the the attorney-draftsman, and two other indi- Will should be appointed to serve in that

capacity. In pertinent part, the court questioned the validity of the propounded instrument, and found that the Supreme Court action raised serious questions regarding the qualifications of the attorney-draftsman and Ms. Stein, whom the attorney-draftsman had designated to serve as a third fiduciary. Moreover, while the court noted that the testator's business partner, the second named fiduciary, was not implicated in the preparation of the Will, given the facts surrounding the instrument, his appointment would have to be conditioned upon the posting of a bond, which would impose a significant expense to the estate. Additionally, and importantly, the court noted that his ability to manage the large and complex estate left by the decedent had not been established. Accordingly, based upon the foregoing, the court held that the best interests of the estate required the appointment of a corporate fiduciary as temporary administrator, and appointed the Bank of New York to serve in such capacity. In re Estate of Lurie, NYLJ, 6/4/08, p. 40 (Surr. Ct. New York County) (Surr. Roth)

Same-Sex Marriage

The Appellate Division, Fourth Department, recently recognized a samesex marriage legally entered in Canada for purposes of according health benefits to a (Continued on page 24)

18

THE SUFFOLK LAWYER -- OCTOBER 2008

HOT PICKS

Rock N' Roll Doesn't Go On Without Duct Tape

Foo Fighters, Nine Inch Nails, Stone Temple Pilots, Dylan And Many More at V-Fest III

_________________ By Dennis R. Chase

This year, we came prepared. Together with good friend and fellow attorney, John Hamberger (Grey and Grey, Farmingdale) as well as fellow colleagues, family members, and friends Sheri Chase and Alyssa Azran (ChaseSensale, Smithtown, NY), we made our soon to become annual pilgrimage to Pimlico Race Course in Baltimore, Maryland on August 10, for the Virgin Mobile Festival (V-Fest). Hotel accommodations were made long ago in April, we had our bottled water, our collapsible folding chairs to tailgate in the parking lot both before and after the show, our hats, sun block, and debit cards. We came fully prepared for everything except to be completely blown away by the performances of the incredible talent V-Fest III had to offer. For the music fan, this annual festival is nothing short of a breathtaking super spectacular two day event beginning each day at 11:00 a.m. and culminating close to twelve hours later each night. Two tremendous outdoor stages at either end of Pimlico's infield always allowed for a choice among performers. And the equally captivating dance tent provided the seemingly never ending backbeat for revelers. This wasn't your parents' Woodstock. The event is a highly organized event providing not only music, but food, beverages, souvenirs . . . and opportunities to learn and become socially active. There is a great deal of importance placed on keeping the event as green as possible. Each refuse station is manned by a V-Fest volunteer who politely assists in environmentally friendly methods of waste disposal, breaking down trash in to compost, recyclables, and landfill. Other areas of the village (The Green Spot) run completely on solar power. One sponsor promoting the health benefits of acai flavored fruit juice happily gave away fruit smoothies produced by a blender connected to a stationary bicycle and powered by volunteers. There was never a shortage of volunteers. By and large, however, attendees came to V-Fest for the music. With over 40 bands from which to choose, certain choices . . . sometimes some very difficult choices had to be made. For example, we chose Stone Temple Pilots over Bob Dylan mostly because we'd seen Dylan before at the Garden in New York. The only other time we'd seen STP was on the eve of the lead singer's arrest following his horrendous performance at Jones Beach in 1997. We also chose STP over Moby performing in the dance tent simply because we like STP so much more. We remain happy with our choices, however, and at times, bounced between the North and South Stages, as

Scott Weiland of Stone Temple Pilots

well as the dance tent to satisfy everyone's curiosity (and taste in music). While last year we were pleasantly surprised by the winner of the Our Stage competition, Chris Pureka, this year we were equally surprised by the strong performance from 33 year old Scottish pop/folk guitarist / songwriter, K.T. Tunstall. Tunstall's North American break came when American Idol contestant Katharine McPhee contacted her asking to use Black Horse and the Cherry Tree as her choice for a Billboard-themed week. Although Tunstall had not been shy with her opinions regarding shows like Idol, the song immediately jumped to #23 on the Billboard charts the week following McPhee's performance. Tunstall's incredibly spirited performance made believers of the four of us. As the opening act on one of the main stages at a music festival, you need to not only be good, you need to captivate your audience . . . and captivate she did. Tunstall is like a more soulful version of Sheryl Crow, and perhaps a little more talented in her guitar skills. This was going to be a quick visit to www.amazon.com to order her three CD's. While we certainly cannot possibly review all the bands we had the great pleasure to know, there remained a few upon which we must visit. Festival stealing performance however, belonged to perennial favorite, The Foo Fighters with lead singer Dave Grohl reminding us all that rock n' roll is meant to be . . . unabashed fun. There was nary a moment when Dave didn't look (and sound) like he was having the greatest night of his life. The Foo Fighters' two hour show may rank as one of my top favorite live shows in the 30

Book Reviews Wanted

Nearly everyone likes to read, but finding the right book can be a challenge. If you've enjoyed reading a book, review it in The Suffolk Lawyer. The length and style of the review is up to you. Just share with SCBA members why you liked the book or, if it's a legal publication, how you found it useful in your practice. Send your book review to [email protected]

years or so since I've been going to live shows. The band was not only amazingly tight, and Dave amazingly funny (with Dave revealing drummer Tyler Hawkins real name . . . Oliver, and introducing percussionist, as the guy who's mastered all the instruments you learned to play in third grade . . . which led to a truly amazing triangle solo) but their set list spanned the thirteen years (and six CD's) of their extensive catalog. Opening with a killer version of The Pretender, everyone there knew the best was yet to come, including an acoustic version of My Hero, and closing with equally energetic versions of Everlong, Monkey Wrench, All My Life, and finally, Best of You. Following The Foo Fighters, my colleague, my sisterin­law, and really great friend, Alyssa, grabbed and hugged my wife and I with the warmth, affection, and enthusiasm we (unfortunately) rarely see from a beautiful, slightly introverted, genius. Alyssa wanted to thank us both her very first real concert experience . . . ever (boy bands excluded). This is the best part of the trip. This is the trip, the best part, I really like it. (Soft Parade, The Doors 1969). Day two saw the likes of some new bands including Paramore, Taking Back Sunday, and Deadmau5 (in the dance tent). The evening, however, belonged to The Stone Temple Pilots, who arrived on stage 15 minutes late and left fifteen minutes early, and although lead singer Scott Weiland appeared to be somewhat altered pharmacologically, turned in a pretty amazing performance. Having recently played at Jones Beach to a SRO crowd, we knew we were in for something a little special, if not abbreviated. Hitting the stage running with a blistering version of chart topping hit Vasoline, the band proved worthy of the challenges presented by a lead singer who wasn't always sure of exactly where he was at any given moment. Following through with gems like Wicked Garden, Big Bang Baby, Big Empty, and Plush, to mention but a few, the band's tenacity only seemed to increase at a fevered pace. Culminating with Trippin' On A Hole In A Paper Heart, we weren't exactly sure the band was finished performing as the sound system played the

next track on STP's CD, Core, Wet My Bed, even after the band left the stage. We were definitely warmed up for not only the final act of the evening, but the final performer of the festival, Nine Inch Nails. Nine Inch Nails (abbreviated as NIN, usually with a reversed second "N") is an American industrial rock act, founded in 1989 by Trent Reznor in Cleveland, Ohio. As its main producer, singer, songwriter, and instrumentalist, Reznor is the only official member of Nine Inch Nails and remains solely responsible for its direction. He is considered to be one the most acclaimed creative figures of his generation of music and has had a long standing influence on many other artists and producers. He is also considered to be a pioneer in developing business models that are quite novel to the music industry Since the band's inception in 1989, Reznor has released six studio CD's and four remix CD's. And while we were all there for his music, Reznor and NIN never disappoint visually as well. Futuristic dual LED-like screens captured the music as well as Reznor's passionate voice and throbbing percussion astounded acoustically. So those of us there at the North Stage missed Kayne West's performance slightly to the South, no one was in any way sorry for the choice. Breaking in to the set with torrid versions of 999,999 and then 1,000,000, the audience was well warmed for crowd favorite Discipline. Mixing old and new, Reznor never lost the beat (nor the audience for that matter) and we all were in heaven from beginning to end. As much as we enjoyed the performance, I couldn't help but wonder how much more I would have like to see NIN in a slightly smaller venue . . . like the dance tent. John had earlier alerted me to this one spot within the tent where the bass really did . . . move you . . . rhythmically. . . that one sweet spot that could only be made sweeter by the pulse of NIN. For the seasoned concertgoer and the novice alike, the Virgin Mobile Festival is a lot like Woodstock, without all the confusion. From the cooling tents powered with refreshing water misters, high speed fans, and furnished with lush, green, living plants to the fantastic food (including one of the best crab cake sandwiches I've ever eaten), this is the place to enjoy really great music, in a relaxing atmosphere, outdoors, and with really great friends. Last year, I enjoyed the festival with a good friend, this year I had the pleasure of bringing my two best friends. Thank you's are in order to my lovely wife Sheri, for not only securing all the travel, hotel, and all other necessary accommodations and to my sister-in-law, Alyssa, for letting us see the true joy of a very new experience through her eyes. Note: The author is the current Secretary of the Suffolk County Bar Association, a frequent contributor of The Suffolk Lawyer, and a partner with The ChaseSensale Law Group, L.L.P. The firm, with offices in Suffolk, Nassau, and Queens Counties, concentrates their practice in Workers Compensation, Social Security Disability, Long Term Disability, Short Term Disability, and Disability Retirement.

THE SUFFOLK LAWYER -- OCTOBER 2008

19

AMERICAN PERSPECTIVES/OPINION

Would Be Presidents, Economic Policy and Taxes The Presidential election: the inviolate constitutional dictate

__________________ By Justin Giordano

This column is dedicated to the various opinions of SCBA members. Submissions will be accepted from all members of the SCBA. The most elemental of all-American traditions are its presidential election, which are constitutionally mandated to take place every four years. This seemingly unassailable mandate has never been violated throughout the nation's over 2000 year history. Indeed, since the first president was elected and took office in 1789, the presidential election cycle has never been compromised, including during the war of 1812 to 1815, when the nation was under attack on its own soil and risked a full occupation. In fact the 1812 to 1815 war, which ultimately saw the young nation emerge victorious, resulted in the destruction of the first White House when British forces occupied Washington, D.C. and set it ablaze. This caused then President James Madison to flee the capital in order to avoid capture and the capitulation of the American government. Similarly, in what is considered America's darkest time, the Civil War, the 1864 presidential election proceeded unabated even as habeas corpus was temporarily suspended in certain circumstances for national security interests. Consequently it can easily be argued

securing the nation against for- unit. that the holding of a presideneign and internal threats. The federal government, and thus by tial election every four years, as However increasingly the area extension the president's big economic proscribed by the U.S. for which presidents, especial- influencing lever, is fiscal policy, as Constitution, was and is seen as ly over the course of the last opposed to monetary policy, which is the a quasi-sacred pillar of the century, have been held domain of the Federal Reserve Bank and American republic. In contrast, responsible, is the state of the its board of directors. Fiscal Policy is parliamentary-based democranational economy. This in principally predicated on tax policy and as cies, mostly western, do not many respects is an area that a consequence the pronouncements of the hold themselves to such legally the chief executive officer, presidential candidates, particularly when unequivocal proscription. while having a great of deal of it comes to the final stages, i.e. after both Indeed, parliamentary- based input, does nonetheless lack parties have formally anointed their systems allow for elections to Justin Giordano the full lever of powers. In respective nominees for president and be called within a certain time essence this is unlike the afore- vice-president. Tax policies that presidenframe, rather than quadrennially, thus providing a certain strategic mentioned parliamentary system where the tial candidates intend to propose for conprime minister is elected by the party in gress to ultimately debate and pass into advantage to the party in power. The downside to our presidential elec- power and thus the legislative and execu- law can be, broadly-speaking, categorized tion scheme, is that this has increasingly tive branches are essentially working as a (Continued on page 25) led to longer and seemingly unending campaign seasons. Many of the voting populace and even some pundits have come to call, particularly the interminable elongated process, "the silly season." A case could indeed be made that a great deal of needless information, on occasion some less reliable than we should rightly expect it to be, is bandied about especially in the age of round the clock cable news networks. However it is also fair to point out When: Nov. 20 from 6 to 8 p.m. that much needed and valuable information also emanates from this build up, Where Nassau County Bar Association including key policy positions espoused 15 West Street, Mineola by the candidates. Cost: $50

BRIEF

Nassau Suffolk Law Services Host Wine Tasting

The tax issue and the potentiality for legislating economic failure

The most important responsibility of the president, as directed by the U.S. Constitution, pertains to the commanderin-chief duties, namely protecting and

The Nassau Suffolk Law Services will host their 2008 Wine Tasting Fundraiser to kick off the holidays. Enjoy an evening of wine tasting, hors d'oeuvres and entertainment to benefit Nassau Suffolk Law Services. And learn how to choose and serve wines for your holiday dinner. For further information, contact Maria Dosso at (631) 232-2400 ext. 3369, or email at [email protected]

Take Advantage of the Advantages

The SCBAdvantage Program provides all Suffolk County Bar Association members with an opportunity for meaningful discounts at numerous vendors and service providers in and around Suffolk County. To find out the details about each of the discounts offered by the following vendors, log on to www.scba.org, then click on "member services" and "SCBAdvantage Program." ... just another advantage of membership offered to you by the Suffolk County Bar Association. Partake and enjoy!

COMPUTER SERVICES - COMPUTER FORENSICS SERVICES - MAVERICK-SECURITY, LLC - NETWORK SOLUTIONS AND TRAINING CONSTRUCTION AND HOME/OFFICE IMPROVEMENT - ELLEN FRIEDMAN INTERIORS INC. - KLEENRITE CARPET & UPHOLSTERY CARE DINING - RUVO - Greenlawn - RUVO - Port Jefferson - THE SMITHTOWN HOUSE FINANCIAL RELATED SERVICES - CITIGROUP/SMITH BARNEY (retirement plans) - ISRAELOFF, TRATTNER & CO., P.C. - ERIC NEUWIRTH, CFP, A.G. EDWARDS & SONS INC. - NEAL E. MINTZ, CPA - STATE BANK OF LONG ISLAND FLORISTS AND GIFTS - DS INC. (custom gifts) FUNERAL SERVICES

SCBAdvantage Program Participants

(as of February 27, 2007)

- IRON MOUNTAIN RECORDS MANAGEMENT - MAP COMMUNICATIONS PROFESSIONAL TRAINING - DALE CARNEGIE TRAINING PUBLIC RELATIONS - THE PUBLIC RELATIONS AND MARKETING GROUP REAL ESTATE RELATED SERVICES - ALL ISLAND APPRAISAL SERVICES - AMICUS MORTGAGE CORP. - CITIGROUP/SMITH BARNEY (mortgages) RETAIL - GOURMET COFFEE PLUS, LTD. TRANSPORTATION - CHICHESTER LIMOUSINE SERVICE - LIMOUSINE PLEASE TRAVEL AND ENTERTAINMENT - PRIME TIME TRAVEL CLUB, INC. TUTORING - EXCEL TUTORING SERVICE

- FIVES SMITHTOWN FUNERAL HOME, INC. - VIRAG-MADDEX FUNERAL DIRECTORS, HAIR AND PERSONAL CARE - DBOTT ESTHETICS & COLOR HEALTH AND FITNESS - AMRITRAJ FITNESS AND RACQUET CLUB - RAYMOND MACOLO, DDS, LLC HOTELS AND ACCOMMODATIONS - HOLIDAY INN EXPRESS ­ Stony Brook INSURANCE - LONG TERM CARE COMPARISONS LEGAL RELATED SERVICES - ENRIGHT COURT REPORTING INC. - FASTCASE, INC. - WMA GRAPHICS OFFICE FURNITURE, EQUIPMENT AND SUPPLIES - MASH BUSINESS SYSTEMS INC. OFFICE MANAGEMENT/ADMINISTRATIVE SERVICES - HQ GLOBAL WORKPLACES - THE INTELLIGENT OFFICE

20

THE SUFFOLK LAWYER -- OCTOBER 2008

The Emotionally Intelligent Attorney: The Law As A Helping Profession

(Continued from page 10) you are acting as a mirror. For example a client might say: "after being hit by the car I was knocked out and when I woke up I was disoriented and was not sure where I was. The police officer told me that an ambulance was on the way. After a while I felt better and then got very angry. I began to wonder if I could sue." Although the client is clearly asking a question, you might consider not answering right away but first say: "A car hit you and you were knocked unconscious and after you awoke you felt angry and began to consider if you had grounds for a suit. Do I understand that correctly?" If the client agrees you might then say: "It sounds like you might have a case. Let me ask you a few questions so that I better understand your situation." Please note that in this example we include restatement of the client's feelings as well as the facts.

Emotional and legal feedback

Include emotional feed back to give the impression that you understand the problem both emotionally and legally. This is especially true in initial contact(s). Comments like "...this has been very hard on you" and "you sound like you are very upset with all of this," could go a long way in building that trusting relationship. The trusting relationship is the bedrock of a good professional relationship and will allow the person to become a client of yours. Whenever we give presentations on this topic someone in the audience often brings up the idea of being truly sincere and honest when attempting to be manifestly sensitive and understanding. Our assumption in this article is that the sincerity is there and the (Continued from page 2)

question is how to express it. If sincerity is not there and you, or someone in your firm, are not concerned about forming a trusting relationship, then that is the subject of another paper. Assuming however that you are sincerely concerned about your clients, then how to express the feelings becomes a relevant question. A short answer to the question is to try to do it or "fake it till you make it." Like many other activities in life, practice does make perfect and practicing with colleagues, hiring an executive coach or therapist to help in the practice and change the effort could be of help. If this seems alien to you consider that you would hire a pro to improve your golf or tennis game, why not someone to improve the skillful use of your emotions and feelings that could greatly improve your ability to help your clients and practice your profession.

Note: Dan Berger Ed.D. of Stony Brook, is an organizational consultant with over 30 years of experience as a psychologist working in various settings. He holds a doctorate in Personnel Psychology from Columbia University and is licensed to practice psychology in New York State. Dr. Berger's consulting experience is diverse including Business, Health Care and Education settings. Note: John P. Bracken, a Partner at Bracken & Margolin, LLP, Islandia and past President of the SCBA, practices in real estate, commercial, criminal, personal injury and general litigation on both trial and appellate levels before all Federal and State Courts. In 1987 he received a Certification by the National Board of Trial Advocacy as a Civil Trial Specialist.

Secretary's Report

I see Halloween candy on the shelves as early as August, it's never too soon to be talking about our Holiday Party on Friday, December 12 from 4 to 7 p.m. The party includes not only an opportunity to celebrate the holidays with colleagues, friends new and old, members of our esteemed judiciary, and our wonderful staff, but the party is FREE! Yes that right, I said that four letter word beginning with "F." Included in the cost of admission, which, did I mention is NOTHING, ZERO, NADA, is a full buffet and all the wine (and not the cheap stuff you buy by the gallon), beer, and soda you can drink. This is one of my favorite Bar Association functions and I'm sure it will quickly become one of yours as well. This message is especially devoted to those who don't frequent SCBA events as often as us, well, Barflies (?), Bar Junkies(?), or legal groupies (?). This is an event for ALL members and an opportunity to meet those members making significant contributions to the profession, and it's fun and completely stress free. Let's hope we can drag that jazz trio back that we had last year. On to somewhat more serious matters, at the last Board Meeting, approved were

motions nominating John H. Gross as Vice President on the NYSBA for the 10th Judicial District and as delegates A. Craig Purcell, Emily F. Franchina and Marc C. Gann and nominating George L. Roach for the NYSBA's 2009 Award for Excellence in Public Service (an award that recognizes excellence by a member of the legal profession in the commitment to, and performance of, public service). Go get `em George. The President reported on the Bar's recent meeting with Dean of Touro School of Law Lawrence Raful, which the President described as highly productive. The Bar's intention is to reach out to law students, especially through the Bar's highly successful committee structure to encourage participation. Currently, all law students at Touro are student members of the association. By becoming members early, they quickly become acquainted with the extensive benefits of membership and are more likely to remain members following graduation. A Law Student Reception is tentatively planned for February, 2009; watch The Suffolk Lawyer for details. Our President also focused on establishing a continuing symposium beginning now

Statement of Ownership, Management, and Circulation

(All Periodicals Publications Except Requester Publications) 1. Publication Title Suffolk Lawyer. 2. Publication No. 006-995. 3. Filing Date 10-08. 4. Issue Frequency monthly except July & August 5. No. of Issues Published Annually 10. 6. Annual Subscription Price Part of Dues 7. Complete Mailing Address of Known Office of Publication (Not printer) (Street, city, county, state, and ZIP+4®) 560 Wheeler Road Hauppauge NY 11788. Contact Person Brian Rafferty Telephone 631-427-7000. 8. Complete Mailing Address of Headquarters or General Business Offices of the Publisher (Not printer) Long Islander LLC 149 Main Street Huntington N.Y. 11743 9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor (Do not leave blank) Publisher (Name and complete mailing address) Long Islander LLC 149 Main St. Huntington N.Y. 11743. Editor (Name and complete mailing address) Laura Lane 560 Wheeler Rd. Hauppauge N.Y. 11788 Managing Editor (Name and complete mailing address) Brian Rafferty 149 Main St. Huntington N.Y. 11743 10. Owner (Do not leave blank. If the publication is owned by a corporation, give the name and address of the corporation immediately followed by the names and addresses of all stockholders owning or holding 1 percent or more of the total amount of stock. If not owned by a corporation, give the names and addresses of the individual owners. If owned by a partnership or other unincorporated firm, give its name and address, as well as those of each individual owner. If the publication is published by a nonprofit organization, give its name and address.) Full Suffolk County Bar Association Complete Mailing Address 560 Wheeler Rd. Hauppauge NY 11788. 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages or Other Securities. If none, check box. X None Full Name Complete Mailing Address None. 12. Tax Status (For completion by nonprofit organizations authorized to mail at nonprofit rates) (Check one) The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes: Has Not Changed During Preceding 12 Months Has Changed During Preceding 12 Months (Publisher must submit explanation of change with this statement.) 13. Publication Title Suffolk Lawyer 14. Issue Date for Circulation Data Below 9-2008. 15. Extent and Nature of Circulation. Average No. Copies Each Issue During Preceding 12 Months. No. Copies of Single Issue Published Nearest to Filing Date. a. Total Number of Copies (Net press run) 4038, 4199. b. Paid Circulation (By Mail and Outside the Mail) (1) Mail OutsideCounty Paid Subscriptions Stated on PS Form 3541. (Include paid distribution above nominal rate, advertiser's proof copies, and exchange copies) 768 773 (2) Mailed In-County Paid Subscriptions Stated on Form 3541 (Include paid distribution above nominal rate, advertiser's proof copies, and exchange copies) 2969 2975. (3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS® 0 0 (4) Paid Distribution by Other Classes of Mail Through the USPS (e.g. First-Class Mail®) 0 0 c. Total Paid Distribution (Sum of 15b (1), (2), (3), and (4)) 3737, 3748. d. Free or Nominal Rate Distribution (By Mail and Outside the Mail) (1) Free or Nominal Rate Outside-County Copies Included on PS Form 3541 0 0 (2) Free or Nominal Rate In-County Copies Included on PS Form 3541 0 0 (3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS (e.g. First-Class Mail) 0, 0. (4) Free or Nominal Rate Distribution Outside the Mail (Carriers or Other means) 225 350 e. Total Free or Nominal Rate Distribution (Sum of 15d (1), (2), (3) and (4) 225 350 f. Total Distribution (Sum of 15c and 15e) 3962, 4098. g. Copies not Distributed (See Instructions to Publishers #4 (page #3)) 76, 101 h. Total (Sum of 15f and g) 4038 4199 i. Percent Paid (15c divided by 15f times 100) 94% 91% j. 16. Publication of Statement of Ownership x If the publication is a general publication, publication of this statement is required. Will be printed in the October 2008 issue of this publication. Publication not required. 17. Signature and Title of Editor, Publisher, Business Manager, or Owner Brian Rafferty, 149 Main St., Huntington, N.Y. 11743 Date October I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).

and continuing throughout his term that will serve to unite interested members of this association with members of the Hispanic Bar Association, the Amistad Lawyers' Association, and other diverse lawyers. Achieving diversity within the association, our President reminds us, can only be truly established through personal contact and continuing relationships. The Board also approved the engagement of the ABA Division for Bar Services (DBS) for Strategic Planning and Membership Survey. The survey will be conducted electronically, the results will be then analyzed by DBS to help develop a strategic planning agenda session and then facilitate the session. The session will focus on creating a vision, goals, and strategies for the SCBA. A final report will include a narrative iteration of the preparation, a review of the planning session, a strategic plan matrix, and a list of action items. The survey is scheduled to begin later this year so keep your eyes and ears open; we need your input here. A report by our Treasurer, Arthur E. Shulman, assured all the members of the Board and Executive Committee that the finances are right on target, actually, perhaps a little ahead of our target, inasmuch as the costs associated with strategic planning are well under funds budgeted for same. Unless you've seen the annual budget and the immense amount of work on a monthly basis to reconcile the budget with actual income and expenses, you have no idea how difficult a job this can be. Mr. Shulman is, of course, equal to the task. The Board also approved the Annual Budget for the Suffolk Academy of Law.

Correction

SCBA Past President Scott M. Karson (04-05) wrote an article in the September issue that should have been titled: "ABA 2008 Annual Meeting In New York City." Additionally, his bio appearing at the end of the article should have read: "The author is a partner at Lamb & Barnosky, LLP in Melville. He concentrates his practice in municipal, commercial, land title and appellate litigation. He is a former president of the SCBA." The Suffolk Lawyer regrets the errors.

Current Board members also act as Trustees for the Academy so their Budget must be approved. With the Academy's finances currently well in order, the motion to approve the Budget was unanimous. The Trustees also voted to approve amendments to the Academy's Bylaws, most of which were cosmetic in nature, however, the only substantive change was in the number of required meetings of the Officers of the Academy (without volunteers) from the previously required four per year to three per year. This motion was also unanimously carried. The Honorable Peter H. Mayer brought the Board up to speed on his committee's efforts to assemble a program to provide pro bono legal assistance for military personnel. Although there are many details that need further discussion, the Board informally agreed there should be no financial guidelines, however, the recipient of said services must be a Suffolk County resident who has honorably served (or is serving) in the armed services. Finally as mentioned elsewhere in this edition, the SCBA will be hosting their Annual Wine Tasting Tour of the North Fork of Long Island on Saturday, November 15. Again, another stress free way to meet new people and enjoy food and wine with friends old and new. A very special thanks to our immediate Past-President, Barry M. Smolowitz and his lovely wife (and designated driver), Kim, for all their assistance in selecting this year's vineyards. This is a job that is not as easy as it would seem. There are killer bees with which to deal and tremendously bothersome red wine stains to remove. Truth be told, however, much thought and travel went in to planning this year's event. This was not merely sipping wine out on the terrace on what was an admittedly beautiful day. We also saw the likes of some incredibly snooty oenophiles, amazingly annoying staff members, and some really tasty roasted corn. Thank you again, Barry & Kim, we couldn't have done it without you. Editors Note: The author is the current Secretary of the Suffolk County Bar Association, a frequent contributor of The Suffolk Lawyer, and a partner with The ChaseSensale Law Group, L.L.P. The firm, with offices in Suffolk, Nassau, and Queens Counties, concentrates their practice in Workers Compensation, Social Security Disability, Long Term Disability, Short Term Disability, and Disability Retirement.

THE SUFFOLK LAWYER -- OCTOBER 2008

21

(Continued from page 1)

Diversity... How Important Is It To The SCBA?

ways to strengthen our ties to the minority communities in our County. I felt a great connection to so many of the lawyers in that room with whom I have spent so little time as a member of the SCBA. We were greeted with great appreciation and affection. The connection that the members of the Hispanic Bar have with each other is, I suspect, due in large part to the common problems they experience practicing in the County. These connections were evident in the passion they showed each other. It would be in our interest to begin to appreciate and understand these problems so that our association can help our minority members with their common concerns and address them in a way that proves the SCBA is here to help them as equal partners. In this way, we will enrich our lives, expand our relationships within the profession and meet our responsibilities as a membership organization serving all lawyers here in Suffolk County. This is difficult to do. Past Presidents of the SCBA have made efforts to bring minority members to our ranks and have been met with marginal results. At the Center for Race and Law at the University of Virginia Law School, on November 7, 2007 former President of the ABA, Robert Grey, pointed out that the legal profession must lead the way to promote diversity but must, at the same time, be aware that "...too much is not necessarily a good thing...because there is something called diversity fatigue." I've witnessed this fatigue over my years on the Board of Directors. We all know how important it is to open our doors to all lawyers in the County. On the other hand we exhaust ourselves trying to fully understand and appreciate why we are not meeting the needs of minority lawyers and how we can undertake to do so. We share great affection for each other and that was evident to me at the Hispanic Bar Dinner. I believe that affection translates into respect. And the passion for the legal profession was palpable. We have so much in common and spend such little time trying to understand how we can help each other. If we would do so, we could greatly expand the quality of legal services to all members of our County. That is why I intend to propose that we hold a symposium at the Bar Center during my tenure as President on the issue of diversity. The entire purpose of the symposium will be to listen....listen to the leaders of the minority legal communities within our County and hear firsthand what the SCBA can do to expand their involvement. It is important to conduct a full dialogue focused on listening about what our minority attorneys see as their unmet needs. Former President of the Hispanic Bar, Luis A. Pagan, wrote in the December, 2007 Edition of The Suffolk Lawyer that because of the lack of interpreters in the Suffolk County Courts "...the time the attorney and his [Hispanic] client have to spend in court is more than twice that of their English-speaking clients". Since, as Mr. Pagan points out, Hispanics make up at least 25 percent of our court calendar this is a problem that has vast implica-

tions for all Suffolk county lawyers and citizens. Clearly, this is but one example of how an integrated Bar Association can begin to address the needs of an increasing minority population that deserves our attention. The hurdles to any undertaking of this kind are enormous. However, in a County such as Suffolk where there is so much de facto segregation it is important to begin the process of breaking down barriers to understanding each other. We can begin at the Suffolk County Bar Association by opening up our ears and listening. We may not always like what we hear, but if we pursue diversity in our legal community we may be able to overcome the ingrained notions of who is best able to participate at the center of our leadership in the justice system and expand justice to all our citizens. In so doing, we will increase the ranks of our Association and be the richer for it.

Sidney Siben's Among Us

(Continued from page 8) To Timothy Mazzei, an SCBA member, on the passing of his mother Arline. To former Judge Michael F. Mullen and his family on the unexpected passing of his brother Tom Mullen. To SCBA member Thalia Stavrides on the death of her mother Marie on Sept. 24. extends a warm welcome to its newest members: Danieln J. Cronin, Reshmi Das, Christopher J. DelliCarpini, Rachel L. Dreher, Peter G. Karayiannis, Kimberly Levi, Stephen W. Livingston, Danielle Mastriano, Philip M. Murphy, Laura Solinger, Usha Srivastava and Jane Thies. The SCBA also welcomes its newest student members and wish them success in their progress towards a career in the Law: Sean Patrick Burke, Eugene Lingner and Lindsey A. Welgs.

Mitchell J. Birzon Attorney of the Month

(Continued from page 9) work. Justin is an attorney in private practice in Manhattan, and Matthew, who graduated from James Madison University last May, works on Wall Street. The three men like to play basketball together; but the father, who used to be their Little League coach, says he has gone from being the best to No. 3. However much his sons may have surpassed him on the basketball court, Mitchell J. Birzon still shines as a volunteer attorney serving the indigent. The Pro Bono Project is delighted to name him Pro Bono Attorney of the Month once again.

New Members...

The Suffolk County Bar Association

Bench Briefs

sition of non party witnesses both material and necessary In James Quilliams v. Half Hallow Hills School District (Candlewood School) and EW Howell Construction, Index No. 764604, decided on April 16, 2008, the court denied plaintiff's motion to quash a subpoena and notice to take non party depositions. The court pointed out that the notices should have been returnable to Suffolk County since the non party witnesses were Suffolk County residents. However, in denying the motion, the court reasoned that the depositions were relevant to the issues of damages and the plaintiff's documented disabilities and limitations. The witnesses

(Continued from page 3) possessed information that was both material and necessary. tative was made. The court reasoned that CPLR§ 1021 requires that notice of the motion to dismiss be given to the parties interested in the estate of the deceased. Notice to counsel who had appeared in the action on behalf of the plaintiff was insufficient to satisfy the notice requirements. ingly entered into.

Honorable Barbara Kahn

Miranda warnings not required to be given; statements to police in response to general questions by police in the fact finding process voluntary In People of the State of New York v. Wendy Castro, Index No. 01376B/07, decided on February 19, 2008, the court denied defendant's motion to statements to police. Prior to giving a statement to the police, the defendant was not given Miranda warnings. Defendant argued that her statements should be suppressed because a lack of Miranda warnings prior to speaking with the police rendered the statements involuntary. The court disagreed, reasoning that police may ask citizens general questions in the fact finding process prior to giving Miranda warnings. Here the compelling atmosphere inherent in the process of custodial interrogation was not present. The statements were voluntarily made. Note: The author, Elaine Colavito, graduated from Touro Law Center December 2007 in the top 6 percent of her class. She is employed by Heidell, Pittoni, Murphy, & Bach, LLP, 1050 Franklin Avenue in Garden City, New York, concentrating in litigation defense. Elaine is currently awaiting admission to the bar.

Honorable Thomas F. Whelan

Motion to dismiss denied; notification to counsel who appeared in an action of decedent prior to death, insufficient to satisfy CPLR notice requirements In Patricia Hopson v. Simon Property Group, Inc., Simon Property Group, LP, and Control Building Services, Inc., Index No. 18375-03, decided on April 17, 2008, the court denied defendant's motion to dismiss plaintiff's complaint on the grounds that the plaintiff was deceased and no proper substitution of a personal represen-

SUFFOLK COUNTY COUNTY COURT Honorable Stephan L. Braslow

Conviction vacated; plea could not have been knowingly entered into In People of the State of New York v. Elsio Andrew Jackson, Index No. 1257-69, decided on January 31, 2008, the court granted defendant's motion to vacate his conviction. The court reasoned that ordinarily a failure to advise a defendant of the collateral consequences of a plea would not warrant vacation of a conviction. However, here the collateral consequence, i.e., deportation, due to recent changes in the immigration laws, affecting the defendant some thirty years after the original conviction were sufficient grounds for vacatur. The court noted that at the time of conviction, one could not have expected anyone to consider that decades later a change in immigration law would so drastically impact the life of a 74-year old man who has since led a law abiding life. Hence, the plea could not have been know-

SCBA Foundations Need Your Support

The Suffolk County Bar Association is comprised of several foundations. They include the Pro Bono Foundation, Lawyer Assistance Foundation, Charity Foundation, Scholarship Foundation and Academy of Law. These foundations rely on your generosity. Won't you help us to keep these foundations viable? Please consider making a tax-deductible gift to the foundation of your choice. For further information, call SCBA headquarters at (631) 234-5511.

22

THE SUFFOLK LAWYER -- OCTOBER 2008

SUFFOLK ACADEMY OF LAW

OF THE SUFFOLK COUNTY BAR ASSOCIATION

5 6 0 W H E E L E R R O A D , H A U P PA U G E , N Y 1 1 7 8 8 · ( 6 3 1 ) 2 3 4 - 5 5 8 8

The Suffolk Academy of Law, the educational arm of the Suffolk County Bar Association, provides a comprehensive curriculum of continuing legal education courses. For the most part, CLE courses listed here will be presented from late October through mid November. For information on recordings of courses that were already presented, please see the Academy's 2008 Fall Catalog and/or our 2008-2009 Audio-Video Recordings Catalog. ACCREDITATION FOR MCLE: The Suffolk Academy of Law has been certified by the New York State Continuing Legal Education Board as an accredited provider of continuing legal education in the State of New York. Thus, Academy courses are presumptively approved as meeting the OCA's MCLE requirements. NOTES: Program Locations: Most, but not all, programs are held at the SCBA

Fall CLE

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

Center; be sure to check listings for locations and times. Tuition & Registration: Tuition prices listed in the registration form are for discounted pre-registration. At-door registrations entail higher fees. You may pre- register for classes by returning the registration coupon with your payment. For expedited sign-in at programs, bring your SCBA membership card. Refunds: Refund requests must be received 48 hours in advance. Non SCBA Member Attorneys: Tuition prices are discounted for SCBA members. If you attend a course at non-member rates and join the Suffolk County Bar Association within 30 days, you may apply the

tuition differential you paid to your SCBA membership dues. Americans with Disabilities Act: If you plan to attend a program and need assistance related to a disability provided for under the ADA,, please let us know. Disclaimer: Speakers and topics are subject to change without notice. The Suffolk Academy of Law is not liable for errors or omissions in this publicity information. Tax-Deductible Support for CLE: Tuition does not fully support the Academy's educational program. As a 501(c)(3) organization, the Academy can accept your tax deductible donation. Please take a moment, when registering, to add a contribution to your tuition payment. Financial Aid: For information on needs-based scholarships, payment plans, or volunteer service in lieu of tuition, please call the Academy at 631-233-5588. INQUIRIES: 631-234-5588.

FALL UPDATES

REAL PROPERTY UPDATE

with Scott E. Mollen (Herrick Feinstein, LLPBNYC // NYLJ Columnist)

MCLE:Session 2 (3 skills) [Transitional/Non-Transitional]; Session 3 (2 skills; 1 ethics)[Transitional/Non-Transitional] Each Night: Location:SCBA Center (560 Wheeler Rd., Hauppauge) Time: 6:00-9:00 p.m. (Sign in from 5:30 p.m.) Each night Refreshments: Light supper from 5:30 each night

Wednesday, October 22, 2008

6:00-9:00 p.m.; sign-in and light supper from 5:30 p.m. SCBA Center MCLE: 3 Hours (professional practice) // Transitional or Non-Transitional

Presented with the Suffolk County Women in the Courts Committee

Michael Mishkin, Esq.; Howard Gilbert, Esq. B. Public Sector - APolitics in the [email protected] // Collective Bargaining: Cost Items in Tough Economic Times - David Cohen, Esq., Wayne Schaefer, Esq., Sharon Berlin, Esq. Phil Maier (PERB) MCLE:6 Hours (professional practice) [Transitional/Non-Transitional] Location: Hyatt Regency Wind Watch Hotel (1717 Motor Parkway, Hauppauge) Time:9:00 a.m. - 4:00 p.m.// Registration:8:30 a.m.

FAMILY VIOLENCE: Update & Issues

Monday, October 20, 2008

This important program will examine the AFair Access to Family Court Bill,@ explain whom it protects, and address what it means to the New York practitioner. The bill, among other things, expands access to civil orders of protection to intimate partners (dating couples, same-sex couples, and teenage couples) and expands the definition of Amembers of the same family or [email protected] A knowledgeable faculty will shed light on the new law's ramifications and provide an update on other legal developments regarding remedies relative to domestic violence. Topics and Presenters 1.Opening Remarks - Hon. H. Patrick Leis, III (District Administrative Judge, Suffolk County) 2.Domestic Violence Legal Update - Hon. Andrew Crecca (Presiding Justice of the Integrated Domestic Violence Part) 3.The Changing Definition of Family Professor Lewis Silverman (Touro Law Center) 4.Fair Access Law - Hon. John Kelly (Family Court, Suffolk County) 5.Who Will Be Served? - Ruth Reynolds (President, NYS Coalition against Domestic Violence // Suffolk VIBS Director of Advocacy) 6.Panel Discussion Program Chair: Hon. Andrew Crecca Program Committee: Margaret Robinson; Arthur Shulman; Isabel Buse MCLE:3 Hours (professional practice)[Transitional/Non-Transitional] Location:SCBA Center (560 Wheeler Rd., Hauppauge)Time: 6:00-9:00 p.m. (Registration: 5:30 p.m.) Refreshments:Light supper

COMMUNICATION SKILLS: A DAY IN THE LIFE OF A LAWYER

Tuesday, October 28, 2008

In this hands-on workshop, participants will discuss and role-play the real-life situations encountered by lawyers on a daily basis, from client interviews, to negotiations, to presenting arguments in the court room. Even skills for the lawyer's non-professional life will be covered. Agenda & Presenters · Communicating With & Knowing Your Audience - Richard Atkins (Communications Specialist) · How to Present Yourself in Non-Legal Settings - Allison Shields, Esq. · Communicating in the Office - A. Craig Purcell, Esq. · How to Communicate in the Courtroom - Hon. Peter Mayer · Workshops: Role Playing & Round Table Discussions · Wrap-Up Discussion Coordinators:Allison Shields and Cheryl Mintz (Academy Officers) MCLE:3 Hours (skills OR practice management) [Transitional/NonTransitional] Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time:: 6:00-9:00 p.m. // Registration: 5:30 p.m. Refreshments: Light supper

SURROGATES COURT UPDATE

with Hon. John Czygier (Surrogate, Suffolk County)

Thursday, October 30, 2008

12:30-2:00 p.m.; sign-in and light supper from Noon SCBA Center MCLE: 2 Hours (professional practice) // Transitional or Non-Transitional

DMV UPDATE

with David Mansfield (Islandia)

Thursday, November 13, 2008

6:00-8:30 p.m.; sign-in and light supper from 5:30 p.m.SCBA Center MCLE: 2 1/2 Hours (professional practice) // Transitional or Non-Transitional

SEMINARS & MULTI-PART PROGRAMS

Afternoon Practice Management Series

SHOW & TELL SERIES This seminars comprising this demonstration series will tell you what to do, and then show you how.

REAL ESTATE CLOSING

Thursday, November 6, 2008

See a closing in action, when things go right and when they don't. Faculty: Vincent Ferro, Esq. (First American); Gerald McCreight (Bracken & Margolin);Lita Smith-Mines (Commack); Others

GUIDED BOOK DISCUSSION BASED ON COVEY'S 7 HABITS OF HIGHLY EFFECTIVE PEOPLE

Built around Stephen Covey's 1990 publication, this guided book discussion - a repeat of a successful program presented a few years ago aims to help lawyers achieve meaning and effectiveness in their professional and personal lives. With one introductory. and one summary session, each of the seven intervening sessions focuses on a particular [email protected] You may opt in at any point, but participation in the full series is recommended. (You are urged to read the book concurrently with attending the sessions.) Topics & Dates (Wednesdays) Habit 1 - Be proactive. October 22, 2008 Habit 2 - Begin with the end in mind. November 19, 2008 Habit 3 - Put first things first December 10, 2008 Habit 4 - Think win-win. January 14, 2009 Habit 5 - Seek first to understand... February 25, 2009 Habit 6 - Synergize March 25, 2009 Habit 7 - Sharpen the saw April 22, 2009 Conclusion & Recap May 13, 2009 Discussion Leaders: Sheryl L. Randazzo (Randazzo & Randazzo // SCBA First Vice President); Gail Blasie (Academy Officer) Each Session MCLE:1 1/2 Hours (practice management) [Transitional/Non-Transitional] Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 4:00-5:15 p.m. // Registration: 3:30 p.m. Refreshments: Afternoon Snacks

THE LAW & PROCEDURE OF ZONING APPEALS

Tuesday, October 21, 2008

If you practice before a Zoning Board of Appeals (ZBA) or are considering doing so, this seminar is essential. A skilled faculty - representing key perspectives - will discuss the kinds of cases that come before a ZBA; the procedure for getting a matter reviewed; and how to prepare for and conduct a hearing. You will gain insights into the decision-making and reviewing processes and learn how to seek a review of a ZBA determination via an Article 78 proceeding. Faculty:Thomas Abbate, Esq. (Woodbury) John J. Breslin, Esq (Huntington) Michael L. McCarthy, Esq. (Huntington) MCLE:3 Hours (professional practice) [Transitional/Non-Transitional] Coordinator: Jeffrey Naness, Esq. (Academy Advisor) Location:SCBA Center (560 Wheeler Rd., Hauppauge) Time: 6:00-9:00 p.m. (Registration: 5:30 p.m.) Refreshments:Light supper

USING POWER POINT IN LITIGATION

Thursday, November 20, 2008

Learn how to use a Power Point demonstration to bring home your point in cross-examination. Faculty: TBA

MATRIMONIAL EBT

Tuesday, December 2, 2008

Experienced matrimonial lawyers demonstrate how to use the EBT to elicit strategic financial information. Faculty:Jeffrey S. Horn, Esq. (Huntington); Arthur E. Shulman, Esq. (Islandia)

DEMONSTRATIVE EVIDENCE

Tuesday, December 9, 2008

Take a Aseeing is [email protected] approach to your next trial. Faculty:Barry M. Smolowitz, Esq. (Kings Park // Immediate Past SCBA President); Ed Josiah (Graphic Designer)

Annual Conference

LAW IN THE WORKPLACE

Friday, October 24, 2008

An annual event for lawyers and representatives of labor and management in the private and public sectors, the Law in the Workplace Conference covers significant legal trends affecting the world of work. The timely theme of this year's program is ALabor & Employment Law Issues in a Tough [email protected] Agenda & Presenters · Keynote Address: APerspectives from the NYS Attorney General's [email protected] - Mylan Denerstein, Esq. (Executive Deputy Attorney General for Social Justice, NYS Attorney General's Office) · Public Sector Labor Law - John Crotty, Esq. (Former Counsel to and Chair of PERB) · Employment Law Update - Brian Conneely, Esq. (Rivkin Radler, LLP) · The Dynamics of Terminating Employees for [email protected] Reasons: A Dramatization and Panel Discussion - Jeffrey Naness, Esq.; Richard Rappaport, Esq.; Sharon Berlin, Esq. · Luncheon Address - Pearl Kamer, Ph.D (Chief Economist for the Long Island Association) · Concurrent Workshops A. Employment Law - AExit Rights & Responsibilities of Employees Upon [email protected] - Lawrence Monat, Esq.; Matthew Groh, Esq.; Scott

DISCOVERY SERIES

Continues on Wednesday, October 29 and Thursday, November 6, 2008

Two sessions remain in this intensive series that provides new insights even for old hands. The experienced faculty includes guest presenters from other parts of the State. Session 2.Discovery Papers & Methods (October 29) Faculty: David Horowitz, Esq. (Prominent trial attorney; Dean of CLE for NYS Academy of Trial Lawyers) Hon. James P. Flanagan Session 3 E- Discovery Faculty:Maura R. Grossman, Esq. (Wachtell, Lipton, Rosen and Katz) Jeremy R. Fineberg, Esq. (Statewide Special Counsel for Ethics in the Office of Court Administration) Hon. James P. Flanagan Program Chair: Hon. James P. Flanagan

Each Program: MCLE: 2 Hours (Skills) [Transitional or Non-transitional] Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 12:30-2:10 p.m.. // Registration: Noon Refreshments: Lunch

Lunch >n Learn

UNDERSTANDING THE NEW F.D.I.C. RULES

Monday, November 3, 2008

Learn what F.D.I.C. insurance really means, what its limits are, and what protections it provides. If you handle escrow funds or trust accounts, or act as a fiduciary in any capacity - which practically every lawyer does in one way or another - this is a must-attend program. You will gain insight into the impact of today's volatile economic climate on attorneys and steps you should take to avoid exposure to malpractice claims. Faculty:Eric Morgenthal, Esq., CPA (Academy Advisory Committee) and Donna Lillie (Vice President, Bank of Smithtown) MCLE:2 Hours (professional practice)[Transitional/Non-Transitional]

THE SUFFOLK LAWYER -- OCTOBER 2008

23

SUFFOLK ACADEMY OF LAW

O F T H E SUFFOLK COUNTY BA R A S S O C I A T I O N

5 6 0 W H E E L E R R O A D , H A U P PA U G E , N Y 1 1 7 8 8 · ( 6 3 1 ) 2 3 4 - 5 5 8 8

Location:SCBA Center (560 Wheeler Rd., Hauppauge) Time: 12:30-2:10 p.m. (Registration: Noon.) Refreshments:Lunch Buffet

MEDICAID WORKSHOPS

Wednesday, November 5, 2008

Virtually everything you might want to know about the Medicaid process will be covered in this program. Participants will be divided into groups and will benefit from hands-on sessions in which the subject matter is covered thoroughly and questions are easily addressed. Topics & Presenters A. Reviewing Nursing Home Admission Agreements (including sponsor risks) - Richard A. Weinblatt, Esq. and Rick Haley, Esq. (Haley Weinblatt Calgagni - Islandia) B.Completing a Medicaid Application and Understanding PRI's Jeannette Grabie, Esq. (Grabie & Grabie - Smithtown) and Tami DeLauro (Center for Elder Services - Melville) C.Reviewing Medicaid Decisions and Preparing for Fair Hearings - Beth Polner Abrahams, Esq. (Garden City) and Felicia Pasculli, Esq. (Bay Shore) Coordinator:Sheryl Randazzo, Esq. (Randazzo & Randazzo Huntington // SCBA First V.P.) MCLE:3 Hours (professional practice OR skills )[Transitional/NonTransitional] Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 6:00-9:00 p.m. // Registration: 5:30 p.m. Refreshments: Light supper

Presenter:Bob Biancavilla, Esq. Special Professor Law at Hofstra Law School; Deputy Chief of Major Offense Bureau under Nassau County D.A. Dennis Dillon; Former Deputy A.G. of State Organized Crime Task Force; Government Corruption Prosecutor under Suffolk D.A. Thomas J. Spota; Faculty member of the NY Prosecutors Training Institute, American Prosecutors Research

Institute, and National College of District Attorneys. Coordinator: Stephen Kunken, Esq. (Commack // Academy Advisor) MCLE: 3 Hours (professional practice)[Transitional/Non-Transitional] Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 6:00-9:00 p.m. // Registration: 5:30 p.m. Refreshments: Light supper

Extended Lunch >n Learn

UNCONTESTED MATRIMONIALS & QDROs

Thursday, November 13, 2008

This is an expanded version of past programs dealing with uncontested matrimonials and QDROs. In this version, there will be ample time to address a number of important questions, to review pertinent forms, and to provide guidance for developing the proper papers and handling them in the right way. Even if you've attended prior, abridged seminars on the topic, you will find this seminar invaluable. Legal assistants as well as lawyers are urged to attend. Faculty:Frederick Crockett (Management Analyst, Supreme Court Matrimonial Part) and Hon. John Kelly (Family Court) MCLE:3 1/2 Hours (professional practice)[Transitional/Non-Transitional] Location:SCBA Center (560 Wheeler Rd., Hauppauge) Time: Noon - 3:00 p.m. (Registration: 11:30 a.m.) Refreshments:Lunch Buffet

Morning Program

THE ACCIDENTAL FRANCHISER: Are You Representing One?

Monday, November 17, 2008

Your business clients may be considering operating a franchise - or may find themselves unintentionally operating a franchise. This program will provide you with necessary insights into franchise law and common issues that may arise. Looking at franchising from new angles, the experienced and highly respected faculty will: · debunk the top myths about franchising (including those related to costs, burdens, and exposure to litigation) ·distinguish between a franchise and a trademark license · provide advice for avoiding hidden franchise traps · review controlling statutes, regulations, and case law Faculty: Harold I. Kestenbaum, Esq.; John A. DeMaro, Esq.; Adam P. Silvers, Esq. (Ruskin Moscou Faltischek, PC) MCLE:2 Hours (professional practice)[Transitional/Non-Transitional] Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 8:00 - 10 a.m. // Registration: 7:30 a.m.

Lunch Seminar

MARKETING FOR LAWYERS

Tuesday, November 18, 2008

Tried-and-true techniques - plus some new and cutting edge ideas - for attracting and keeping clients will be discussed by a faculty comprising lawyers and a legal marketing professional. Faculty:Cindy LeClair; Ted Rosenberg, Esq., Betty Tufariello, Esq. MCLE:1 Hour (practice management)[Transitional/Non-Transitional] Location: SCBA Center (560 Wheeler Rd., Hauppauge) Time: 12:30-1:30 p.m. // Registration: Noon Refreshments: Lunch Refreshments: Breakfast buffet

DNA UNRAVELED

Tuesday, November 18, 2008

This riveting program - featuring a guest presenter who is a top homicide and sex crimes prosecutor and former police officer - looks at the science of DNA, its applications, the history and research that have brought DNA into the forefront of criminal prosecution and defense, and the practical aspects of gathering DNA evidence. The presentation will cover: · How DNA evidence is recovered, analyzed, and then presented at trial · How crime labs use increasingly sensitive techniques to find DNA evidence and identify murderers or rapists even after a significant passage of time · How juries examine DNA profiles · How statistical probabilities come into play in the analysis of DNA evidence A sampling of cases, police files, photographs, and investigative reports, plus demonstrations, bring the science of DNA into the realm of everyday legal practice. Any attorney for whom DNA can serve as an element of evidentiary evidence will not want to miss this program.

24

THE SUFFOLK LAWYER -- OCTOBER 2008

The Key To Success

Video Is The Key To Show You Are Different

Video distinguishes you from everyone else by creating a personal bond with your viewer. Admittedly, it's a one-way conversation, but it allows the viewer to see you, hear you, and judge for themselves whether you sound confident and intelligent enough to want to call you. So far, the biggest users of online video for law firms have been personal injury and medical malpractice lawyers. These attorneys have gotten in on the ground floor and are just now learning how to optimize their videos so that the major search engines identify the videos and improve their search engine ranking for their website. That's the golden key that every attorney who advertises online appears to strive for. To be able to say that "Out of 4 million websites, Google thinks my site is #1 in

(Continued from page 11) viewer more interested in how you can solve their pressing legal problem? If you can answer their unasked question through a video, not only will you have scored all the points, you can bet that person will call you and not your colleague down the street. out there competing for the same business. Those lawyers lose the advantage of letting a viewer get to know them and trust them before they ever walk into their office. Note: The author is an experienced medical malpractice & personal injury trial lawyer practicing law in New York since 1988. He has created, produced and uploaded over 100 educational videos online about New York medical malpractice, wrongful death and personal injury law. He is willing to help other attorneys interested in creating their own online videos. His website (http://www.oginskilaw.com) consistently comes up #1 in the organic search results when doing a Google search for "New York Medical Malpractice Lawyer." His video blog can be seen at http://medicalmalpracticetutorial.blogspot.com.

their organic search rankings," is indeed, a feat to strive for and emulate.

Why a Potential Client Would Call You

If a potential client is searching for a lawyer online, what would make them choose one lawyer over another with the same credentials? You each have a website. You each have similar experience. You each charge basically the same for similar services. So, how are you different, and how can you communicate that to a nameless, faceless visitor to your website? A video that tells a visitor who you are and welcomes them, has already gained brownie points. What should you talk about? If you talk about how great you are and how amazing your credentials are, does the viewer really care? Or is the

Repercussions of not choosing on-line video

Lawyers who choose not to use online video will lose the chance to get excellent placement on the video search engines. Those same lawyers will also lose the ability to improve their search engine rankings, because video clearly helps improve their website rankings. Lawyers who fail to create useful videos lose the opportunity to connect with their website visitors and distinguish themselves from all the other lawyers

Cle Rocks On At CMJ Music Marathon

MCLE credits, written course materials, lunch, refreshments and a 5-day CMJ Music Marathon 2008 Badge valid during Tuesday, October 21, 2008 through Saturday, October 25, 2008. The 5-day CMJ Music Marathon 2008 Badge allows access to five (5) full days of events including panels, nighttime admission to New York's best live music venues to enjoy hundreds of the world's best new bands in concert and the CMJ Film Festival featuring the very best in major and independent films before they hit theaters. (* Please note that an additional amount of fifty dollars ($50.00) will be added to day of event walk-up registrations.) Called "the Sundance of Rock n' Roll," the CMJ Music Marathon & Film Festival has featured many of the world's most influential and revolutionary musicians, artists, cultural and political figures at a variety of events including screenings, Q&A sessions, panel discussions and over 1,000 live music performances. CMJ 2008 continues in that tradition, highlighting the best new music and groundbreaking films. New York City's largest music event, CMJ Music Marathon is the world's largest emerging music festival, drawing over 12,000 professionals from all sectors of the music business and over 100,000 Other panels include:

(Continued from page 13) For more information on programming, schedules and to register for MLCE credits, please visit: www.nysba.org/EASLCMJ2008 To see the schedule for the Seminar, please visit: http://www.cmj.com/marathon/cle_program.php For two and five-day registration, please visit: http://www.cmj.com/marathon/cle_registration.php To learn more on NYSBA membership and the Entertainment, Arts & Sports Law Section email [email protected] or please visit www.nysba.org/easl.

music fans, all of whom converge on New York to discover the world's best new music.

Show Me The Money: Understanding the current controversies over broadcast and digital music royalties Social Distortion: Using music on social networking sites 1-800 What Now: Ethical issues and attorney advertising Partners In Rhyme: How joint ventures and other economic models are reshaping the industry

Trusts And Estates Update

lesbian couple. In Martinez v. Monroe, the Court was confronted with an action brought by a community college employee seeking, inter alia, a declaration that the defendants' failure to recognize her valid foreign same-sex marriage for spousal health care benefits violated her rights under the Equal Protection Clause and the Executive Law. The Supreme Court granted the defendants' motion for summary judgment declaring that employee's marriage was not entitled to recognition in New York,

(Continued from page 17) public sense of morality. The Court noted that in spite of these exceptions, New York has recognized marriages between an uncle and a niece by the half blood, common law marriages valid under the laws of sister states, and a Canadian marriage between minors. Assessed within this context, the court concluded that recognition of a same sex marriage in New York was not precluded by either the "positive law" of New York or "natural law." The court rejected the defendants' argument that the decision by the Court of Appeals in Hernandez v. Robles, 7 N.Y.3d 338 required a finding that the same-sex marriage at issue was contrary to public policy, and held that the opinion, instead, stood for the proposition that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York. The court also noted that the Court of Appeals had indicated that the legislature may enact legislation recognizing same-sex marriages, thereby suggesting that such marriages were not contrary to the public policy of New York. Further, the court found it significant that New York had not chosen to enact legislation pursuant to the federal Defense of Marriage Act denying full faith and credit to same-sex marriages validly solemnized in another state. Thus, the court held that the employee's same-sex marriage, valid in Canada, was entitled to recognition in New York in the absence of express legislation to the contrary, and that the defendants' refusal to recognize such marriage was in violation of the Executive Law. In light of its determination, the court did not address the employee's contention regarding the Equal Protection Clause. Martinez v. Monroe, 2008 WL 275138 (4th Dep't 2008).

and the employee appealed. The Appellate Division reversed, finding that while a same-sex marriage cannot be legally contracted in New York, the law does not prohibit recognizing a same-sex marriage validly contracted in another jurisdiction. The Curt held that while New York will generally recognize a validly contracted foreign marriage, it will not do so where such marriage is contrary to the express provisions of a statute or the prohibitions of natural law, i.e. a marriage involving incest or polygamy, or offensive to the

Dead Man's Statute

In a per curiam opinion, the Court of Appeals held that the Dead Man's Statute does not bar an attorney from testifying in his own defense at a disciplinary hearing regarding an oral agreement he had with his deceased client. The court held that although the attorney was testifying in his own behalf or interest, he was not testifying against the executor, administrator or survivor of the decedent, but rather the Disciplinary Committee. Hence, the court concluded that the Dead Man's Statute was not triggered. Matter of Zalk, 2008 WL 2367490, 6/12/08. Note: The author is a partner with the law firm of Farrell Fritz, P.C., where she concentrates in the field of trusts and estates. In addition, she is President-Elect of the Suffolk County Bar Association and a member of the Advisory Committee of the Suffolk Academy of Law.

THE

Law Of f ice

OF

CHRIS MCDONOUGH

DISCIPLINARY MATTERS · ETHICS OPINIONS

·Served as Assistant Counsel to the Appellate Division Grievance Committee for the Tenth Judicial District for 13 years. ·Practice concentrated on all matters related to the practice of law. ·Adjunct Professor of Professional Responsibility. ·Noted author and CLE instructor on practice management and professional ethics. ·Executive Committee member for the Nassau County Bar Association Committee on Professional Ethics. ·Offices in Suffolk, Nassau and Manhattan.

Main office

115 Broadhollow Road Suite 250 Melville, New York 11747

631- 673 - 6670

www.newyorkethicslawyer.com

THE SUFFOLK LAWYER -- OCTOBER 2008

25

American Perspectives

into camps, individual tax rates and corporate tax rates. The oft-used and much too predictable rhetoric in this regard, particularly by those of the left leaning persuasion, is to stress the difference between the two camps. This is invariably done by proposing tax policies that will increase the corporate tax rate while leaving in place or even reducing taxes on the working poor and the so-called middle class, although the latter is never clearly defined. In this regard the 2008 election year seems to fit right in this old mold. True to form the Democrat presidential candidate proposes to raise corporate taxes while asserting that 95 percent of the populace including the much touted middle class will actually receive a tax reduction or will not see a tax increase. However, before addressing the corporate tax issue directly, it's worth noting that nearly 50 percent of eligible taxpayers (the lower income half) already pay minimal or no income taxes at all. In fact since the tax act of the early 2000's came into effect, the average taxpayer has seen his/her tax burden reduced by a cumulative $12,500. In addition, the proposed policy also includes an increase in the capital gain tax rate. But here again it must be underscored that the capital gain tax rate is not the sole domain of the wealthy. Indeed, in terms of actual impact the capital gain tax, and its rate, affects the average working individual directly or indirectly. For example, if an individual or a couple were to sell their home for career re-location, or alternatively just to trade up-as has been a long standing American tradition in pursuit of the traditionally called American dream--and assuming that their property has gone up in value and they have not lived in that house for at least five years and are not of a certain advanced age--then they will be directly affected by an increased capital gains rate as they will have rather suddenly and unexpectedly joined the ranks of the highly taxed wealthy. The hypothetical individual(s) or family will be fiscally punished as their capital gains rate will most likely be set at least twice the current 15 percent rate. The same holds true if an individual or a family unit of modest means and income has invested in the stock market and has realized some modest profits. Consequently whatever modicum of tax rebate may be dispensed said disbursement will be more than gobbled up by the proposed new capital gains tax rate. An increase in the capital gains tax rate coupled with an increase in the corporate tax rate will yield to a decrease in the federal government's total tax revenues. This is not mere prognostication or conjecture but in fact a proven correlation that has held true over the span of a at least five decades. President John F. Kennedy's substantially reduced tax rates across the board in the early stages of his administration resulting in a booming economy in the decade of the sixties. Two decades later President Ronald Reagan followed suite with similar results. President Bill Clinton while raising tax rates early in his administration nevertheless lowered--if under strong pressure from the opposition party--the capital gains tax also resulting in positive economic returns. The much criticized current administration of President George W. Bush, made lowering tax rates the economic cornerstone of its fiscal policy and the results were essentially true to form. In fact in spite a slow down during the past year, the GDP [Gross Domestic Product] has grown at a healthy

(Continued from page 19) shareholders, will be left with two choices: either pass the cost on to the consumer via higher prices for their goods and services, or alternatively trim expenses by thinning employee rolls or exporting jobs that are exportable overseas. Cumulatively this results in higher unemployment, a smaller taxpayer base and lower overall tax revenues for the treasury's coffers. Increasing corporate tax and capital gains rates leads to a stifling of the emergence of small businesses, which account for approximately 75 percent of all jobs in the United States. Lastly, given that money is fundable and the ever- growing cadre of industrialized nations where corporations can operate under much more favorable conditions are easily accessible, American based and international corporations can easily opt to relocate where the corporate tax rates are indeed most favorable. By corporations moving abroad the unemployment rate will invariably be negatively impacted. In sum, it can be argued that increased tax rates, and particularly as it pertains to corporate and capital gains, could be a recipe for economic catastrophe. On the other side of the ledger and as alluded to earlier, history indicates that a clear link exists between lower across the board tax rates and increased economic activity resulting in the new wealth creation as reflected through an increase in the GDP and other national wealth measurements. opponent on a platform that included more emulation of American free market economic policy. His election arguably represents the most pro-American president that France has ever had, or at the very least since World War II. Premier Berlusconi was even more recently elected in Italy and his party was handed a solid majority in the legislature, which will enable him to implement economic policies much more closely resembling their American counterparts. In Germany a staunchly pro-American Chancellor Merkel defeated sitting Chancellor Schroeder. The latter had been a vocal critic of American policy and the Bush administration. The same scenario took place in Canada where Prime Minister Steve Harper defeated his predecessor Paul Martin, also a vocal and unabashed critic of this administration and American policy. U.K. and Japanese leaders have both been reliable and consistently supportive allies in rhetoric and deed and continued on that path even with the election of a new leader, i.e. Prime Minister Brown who replaced his same party colleague Prime Minister Blair. As to the corporate tax rate, this also is an area where American policy has not only been imitated over the past decade, but has actually been ameliorated in that all of the G-7 nations mentioned above with the exception of Japan, (whose rate is 39.54 percent as opposed to the United States' 39.27 percent) have a lower rate than the U.S., with France at 34.4 percent, U.K. at 30 percent, Italy at 33 percent, Germany at 38.9 percent, and Canada at 36.1 percent. In fact all other major industrialized nations including among them Spain [32.5 percent], Australia [30 percent], Mexico [28 percent], the smaller Scandinavian countries [26-28 percent] and even extremely small countries such as Iceland and Luxembourg [30.38 percent] feature lower corporate tax rates. The most economic and talked about success story is unquestionably Ireland. A small and relatively young European nation, whose 12.5 percent rate constitutes one if not the lowest corporate tax rate in the world. As a result Ireland's economy has seen nothing short than an explosive economic growth, primarily due to the large influx of corporations relocating their headquarters and even full operations there. Needless to say the obvious, the correlation is simply undeniable. The burden and responsibility of leadership involves being a leader not an imitator. This nation has been by all measures the most successful economic nation-state in a human history. The best role our legal system can play is to enhance our economic system by providing a fair playing field where human and creative ingenuity can prosper, not a legal minefield that might discourage every individual's pursuit of financial and personal success. This has been this nation's tradition and legacy and has served the nation extremely well. The tax issue is one element only but nonetheless an important element in the economic policy spectrum, but in the broader sense it is another reflection in how we seek to govern ourselves in an area as American as apple pie, commerce. Let us hope we, as a nation, continue to legislate wisely. Corporate tax is higher than most industrilaized nations of Europe and elsewhere... Note: The author is a Professor of Business & Law at the State University of New York-Empire State College, and an attorney in Huntington. He can be contacted at [email protected]

3.3% rate during the second quarter of 2008, the unemployment rate held at relatively low level and although it rose to around 6.1 percent during the same second quarter of 2008, this does not in itself negate the fact that the unemployment rate for the first decade of the 21st century remains the lowest average rate since such records have been officially compiled for other decades. It should be remembered that this recent spike in the unemployment rate was preceded by 52 months of continuous job growth. Concurrently inflation-- the great economy decimator--has been kept under control at approximately 2.5 percent. In contrast in the late 1970's the inflation rate hovered in the double digits. The recent advent of foreclosures, the capitulation of Fanny May and the so-called meltdown of major investment banks on Wall Street further argues for resisting the impulse to raise the tax rates. While the recent developments on Wall Street, the mortgage debacle and the real estate market pullback are of serious concern, a detached analysis also shows that contrary to popular mispronouncements this situation is far from being equivalent to the great depression. Foreclosures are currently at a 2.5 percent rate. While this is an unsound level in no way does this approximate the 50 percent foreclosure rates experienced during the great depression of the 1930's. Furthermore even when contrasted with relatively recent negative events of a similar genre as for example the savings and loan debacle of the early 90's, in the current situation the crisis is impacting most directly huge Wall Street investment banks but not commercial banks directly. Whereas in the savings and loans debacle resulted in the failure of over 1000 banks. Furthermore, if current accounting legislation were similar to those in effect in the early 1990's, there is a very likely possibility that the current crisis might not have taken place at all. The explanation for the latter is simple, the current accounting regulations call for the paper (i.e. mortgages and notes) that investment banks hold to reflect the depressed value of the real estate they are backing and thus drastically lowering the equity that these banks show on their books. If these so-called paper losses were not taken into consideration until and only if these securities were actually sold, then these banks could still show strong assets on their books in the immediate and in the long run given that business cycle will eventually correct itself--as it's always done in the past--the real estate market will regain its footing and its value and in turn the paper assets of these investment banks will accurately its face values. At a time of crisis, be it real or perceived, the availability of funds to corporations and individuals for major purchases and/or bigticket items is vital. Thus a tightening of available funds/liquidity, which is the normal consequence of a tax hike, is simply adding the proverbial "fuel to the fire." Implementing a policy of increased corporate tax rates has predictable negative consequences and particularly in times such as these where the economy needs steadiness and the aforementioned liquidity. Corporate revenues inevitably suffer and given that over sixty percent of individuals in the nation are shareholders -- be they individual shareholders, bond holders or mutual funds investors for their retirement, children's college education, savings, etc.-- the net loser is the individual or family investor. Corporations, in an effort to sustain their margins of return for their

Imitation is the sincerest form of flattery

It has been argued that the United States should make a more concerted effort to emulate our European friends and allies. The assumption, which has a sound foundation on a certain level of reality, sees the pursuit of a more egalitarian society as practiced by the Europeans (and others) as the course the U.S. should follow. If the populace does not see it as part of the American identity then it simply demonstrates that it doesn't fully grasp the concept and a legislative onslaught can remedy the situation and put us on a course more closely resembling a socio-democratic model as opposed to our more free market oriented system. However even in this respect the facts on the ground, at least as far as recent developments are concerned, tend to negate to some extend that notion as well. More specifically if one were to use the spade of recent or relatively recent European national elections and its corporate tax rates, as barometers of how the Unites States, its economic and even its international policies are viewed, one might be indeed surprised at what these events actually indicate. Most Americans have been inculcated, by the domestic media, that the image that all that is American in deed and philosophy is being denigrated and frowned upon by Europeans. A closer examination however tends to show that this view is mostly espoused and relentlessly promoted by the chattering classes trolling the halls of European academe, media elites and its editorial page writers, much as is the case in this country, but not by its elected officials and governments. Firstly, in terms of national elections the most relevant in the issue at hand revolve around the G-7 nations [i.e. the Group of Seven], the most highly industrialized nations and closest American allies. These include the U.K., Japan, France, Germany, Italy and Canada. To wit in France newly elected President Sarkozy of France (nicknamed "Sarkozy the American") won decisively over his left-wing anti-American

26

THE SUFFOLK LAWYER -- OCTOBER 2008

A Winning Day at Belmont

Photos by Skip Kellner

Touring Belmont's backstretch; Richard Meisenheimer and Scott Karson in the foreground.

Race # 1, named for the Academy, with the winner, Coastal Drive, in the foreground.

The 70-plus lawyers and guests who attended "Equine Law: A Primer for Getting Lawyers on Track," held on a lateSeptember Saturday at Belmont Park, gained both sound advice for would-be thoroughbred investors and a day of fun and excitement. Organized by Academy Advisor Howard Baker and Academy Officer Skip Kellner, horsemen both, the event began long before post-time with continental breakfast and a three-credit seminar. The seminar, most seemed to agree, was truly enlightening, even for those with only a peripheral interest in thoroughbred racing. The faculty of attorneys and industry professionals talked about, among other things, licensing and regulatory oversight of the racing industry; the role of the various players, from owners and investors through trainers, breeders, and jockey agents; and the legal, accounting, and insurance issues that confront those who become involved with thoroughbred breeding or ownership. Chris Wittstruck, an attorney and instructor at Hofstra's Racehorse Ownership Institute, provided succinct guidance for lawyers advising clients who "have the bug to buy a racehorse." Tell them to use "disposable income," he said, and "to start small." A $5,000 partnership

is a better way to begin than a $75,000 investment, he cautioned. The seminar was held in the beautiful Turf and Field Club at Belmont where it was easy to forget the cloudy skies and sometimes heavy rain outside. At posttime, after the educational portion of the program, attendees were able to move into an attached "outside" area, which was not really outside. Rather, situated at the finish line and featuring floor to ceiling windows, the area gave the feeling of being where the action is, but was completely indoors and removed from the elements. Neither did the weather cut into the planned outdoor activities. A contingent of attendees ventured forth for an enlightening tram tour of Belmont's backstretch area, mud and all. Dean Pat Meisenheimer and other Academy representatives joined jockey Edgar Prado for a photo op in the rainy Winner's Circle, after his horse, Coastal Drive, won the first race, which was named for the Academy. And all 11 races, with a few scratches, went on as scheduled, including a number of stakes races, one of which saw Curlin become the first $10 million horse, breaking the record set by the famed Cigar. Wagering was fun and convenient, with the wagering windows set up right in the Turf & Field Club. Most people bet small,

but the occasional unexpected win ­ like Sheryl Randazzo's winning wager on longshot Black Seventeen in the eighth race ­ brought forth squeals of delight. Win or lose, everyone seemed to find

the day, itself, a winning experience and one they would be eager to repeat in the future. Much appreciation to Howard and Skip for making it possible. ­ Dorothy Paine Ceparano

Attendees enjoying lunch and wagering in the "outside" area of the Turf & Field Club.

Why My Generation Doesn't Vote

ities. Again, this is just another cop-out for people who are too lazy to vote. Ironically, these "Monday-morning quarterbacks" of the voting world are the first to voice an opinion when things go wrong. They complain about Congress not getting anything done, yet hypocritically, they do nothing themselves about it, except complain to other non-voters. Both parties have emphasized on the call for "Change in America." However, if we are truly going to call for "Change," we must demand it from our fellow "nonvoting Americans" as well. We must change this habit of laziness, learnedhelplessness, ignorance -- whatever their reason for not voting -- and encourage everyone to vote on Election Day. When someone tells you they didn't vote, don't ignore them like the eight- year-old at the grocery store, who is getting beat by his mother at the checkout line. Take a stand! As a young lawyer (or soon to be lawyer) we have an obligation to serve a cause other than our own. Getting people informed on the issues and stressing the importance of voting is a small step in

(Continued from page 7) serving this obligation. If you're going to play the game, you have to pick a side. Sometimes your team doesn't make it to the playoffs. But that doesn't mean you cannot stay involved. Know yourself, and know what your values are. If you love your guns, or want better health care, fight for it. Pay attention to local elections as well, as they may affect you more directly than a presidential election. For the election in November, and in the future the choice is clear: you can vote Democrat, Republican, or ignorance. Make sure your friends don't vote for ignorance... it already wins by a landslide every time. 1 According to the U.S. Census. 2 See http://www.trafficestimate.com. 3 See http://www.pollingreport.com. Note: The author is a second year student at Touro Law School, a member of Touro Law Review, and treasurer for the New York Democratic Lawyers Council, Touro Chapter. He can be reached at [email protected]

In the Winner's Circle at the conclusion of the race named for the Academy: (from left) Dorothy Ceparano, Jane LaCova, Skip Kellner, Chris Wittstruck, Jockey Edgar Prado, Coastal Drive's trainer, Howard Baker, and Scott Karson.

A Practice Can Change Overnight

(Continued from page 4) person's credit than a short sale. Foreclosure is rarely the best answer for the client, but it must be evaluated properly by the client. I always give all the options and let them decide, for the decision to purchase a property is big, and the decision of what to do when one is losing it is much bigger and should only be done with full knowledge. It is only now that knowledge before you buy is being stressed. While there remain several topics that an attorney should discuss with their clients when they are "distressed homeowners" or they wish to purchase a "distressed property," I can only say that there is never enough room on a single piece of paper for all of the knowledge we, as attorneys, must absorb. With changing laws and newly developed strategies implemented by lenders everyday, it is critical that you try to associate yourselves with other professionals to help gather and decipher all of the information that we must understand for the good of our clients. Note: The author is a Brooklyn Law School graduate who began working as a sole practitioner in 1995, dedicating her practice to real estate for the Latin community. After three years as a bank attorney, she changed her practice to that of Foreclosure Prevention. She is presently in her 2nd year as the co-chair of the Suffolk County Bar Association Real Estate Committee and a volunteer for Raising Community Standards, Inc., a not-for-profit organization dedicated to educating distressed homeowners of their options.

THE SUFFOLK LAWYER -- OCTOBER 2008

27

newspapers

SUFFOLK LAWYER SERVICE DIRECTORY

To Advertise Call 631-427-7000

SMITHTOWN OFFICE FOR RENT

Office space for attorney in beautiful, fully-renovated historic building on Main Street. Includes use of full kitchen; large conference room; small conference room with working stone fireplace; full law library and computer research; copy machine; fax machine; mail services. Full time, professional receptionists greet visitors. Available office consists of work station with large "L"-shaped desk and hutch in semi-private common area. Central air-conditioning. Available immediately. $600/month. CALL STEIN & STEIN 631-360-1433.

OFFICE FOR RENT BABYLON VILLAGE

Windowed Law Office In Existing Law Suite Professional Building, Ample Parking Shared Conference Room, Kitchen Sec'y desk(s) possible; Close to LIRR $750.00 Available Immediately; 631-669-7264

STOCK MARKET LOSSES

due to misrepresentation, unsuitable investments, unauthorized trading, churning, etc. W. ALEXANDER MELBARDIS, M.B.A., J.D.

Attorney Experienced in Securities Law FINRA SECURITIES ARBITRATIONS (FORMERLY NASD, NYSE)

For All Your Cleaning Needs

FOUR STAR OFFICE MAINTENANCE

"The Small Office Specialists"

Serving Western Suffolk Since 1988 Satisfaction Guaranteed Bonded & Insured Andrew V. Caranante

194 Main St., Setauket, NY 631-751-1100

Cell: (631) 766-1825

Wall Street Office

Phone & Mail $125/mo.

Mail Service Only $79/mo.

· · · · Beautiful corporate setting Attended reception area Personalized phone services Msg e-mail relay Patching - Voice Mail · Mail receiving, photocopier, fax, secretarial services · Conference rooms, furnished offices

SMITHTOWN

furnished office & secretarial station. Conference room/library, file room, kitchen, more. Top Quality. Includes utilities, library, copier, law journal, cleaning.

Storefront For Rent $550 mo.

For General Practitioner / R.E. Attorney Includes Storefront sign Share with 1 CPA Bayside / Whitestone Border Off Francis Lewis Blvd

Court Appearances Bronx, Westchester, Rockland & Orange

Referrals to other counties

JOEL ZUCKERBERG Attorney at Law

Trial and conferences. Experienced. Reasonable

at 110 Wall St., 11th Floor

(800) 205-7685

www.yourwallstreetoffice.com [email protected]

914-762-5815

Cell 914-714-4354 FAX 914-945-7158

631-360-1640

Central Islip Carleton Ave. Offices For Rent

Near Courts, Pkwys. & Expressway. $650 & $850 Includes Heat. Available Immediately. Free Outdoor Sign.

(917) 733-0649

HUNTINGTON VILLAGE OFFICE SUITES Great Parking Modern Building

NEED TO RENT A SPACE?

Let Renters Call You!

Call 631-427-7000

To Place Your AD

SECURITIES LAW

John E. Lawlor, Esq.

Securities Arbitration / Litigation; FINRA Arbitrations; Federal and State Securities Matters

EXPERIENCED IMMIGRATION ATTORNEY

Julia R. Binger

(516) 248-7700

129 Third Street Mineola, NY 11501 johnelawlor.com

631-261-0960

168 Laurel Avenue Northport, NY 11768

631.547.1800

631-277-5514

New Courses Added To Fall Syllabus

(Continued from page 28) Lawyers will receive three and one half MCLE credits. The cutting edge subject matter for the Academy's 2008 Family Court Update, previously announced simply as a two-part treatment of timely topics, has been developed. Part One, scheduled for the evening of Thursday, November 20, will address Family Court Support Issues (parental income over $80,000; violations; UIFSA; bankruptcy; downward and upward modifications; emancipation; paternity; education issues); Drug Testing in Family Court; and Handling High Profile Cases. The faculty includes Support Magistrates Hon. Isabel Buse and John Raimondi, Theresa Mari, Esq., Robert Gallo, Esq., and a TASC representative. Hon. John Kelly will moderate. Topics to be covered at Part II of the Family Court Update, on the evening of Thursday, December 11, include an Orders of Protection Update (how to keep your client out of jail in a support violation confirmation hearing); Administrative Remedies for Enforcing Child Support (driver's license and other license suspensions; levy and execution on vehicles, bank accounts; passports; income tax refunds); and Equitable Estoppel in Paternity Cases. Serving on the faculty for this segment are Hon. John Kelly, Jorge Rosario, Esq., Edward Parker, Esq., and a CSEB representative. Lynn Poster Zimmerman will moderate. Both segments of the update run from 6:00 to 9:00 p.m., with registration and light supper from 5:30 p.m. Three MCLE credits will be awarded for each session. The final (at least so far!) new addition to Fall 2008 is a December 9 lunch `n learn on "Demonstrative Evidence." Part of the fall's "Show & Tell" series, this program, featuring Ed Josiah, a graphic and demonstrative evidence designer, and Past SCBA President Barry Smolowitz, will show you how physical evidence, from simple charts to elaborate and large-scale replicas, can make the theory of "seeing is believing" a reality. This program, like the other offerings in the series (Will Intake; Real Estate Closing; Using PowerPoint in Litigation, and Matrimonial EBTs), will be presented as a lunch `n learn seminar, from 12:30 to 2:10 p.m., with registration from noon. Two MCLE credits will be awarded. In addition to new courses, the Academy's fall syllabus also has been modified by a few deletions and changes of date. Inherited IRAs, a seminar featuring the well-known Sy Goldberg and intended for both lawyers and accountants, will be moved from November 19, 2008, to June 3, 2009. A seminar on Tax Certiorari and Condemnation, originally planned for late October, has been cancelled, with the possibility of rescheduling in spring. The date for the Surrogate's Court Update featuring Hon. John Czygier was changed from October 23 to October 30 (12:30 to 2:10 p.m., with registration from noon). The Academy's calendar listing on the SCBA website provides up-to-date CLE scheduling information. Questions may also be directed to the Academy Office at 631-234-5588. Note: The writer is the Executive Director of the Suffolk Academy of Law.

Find The Qualified Help YOU NEED!

Call 631-427-7000

To Place Your AD

Efficiency Is On The Way

(Continued from page 28) read it the more you, and the group, will get out of the series. Then mark your calendar with the following dates Wednesday, October 22, 2008- Habit 1 Wednesday, November 19, 2008- Habit 2 Wednesday, December 10, 2008- Habit 3 Wednesday, January 14, 2009- Habit 4 Wednesday, February 25, 2009- Habit 5 Wednesday, March 25, 2009Habit 6 Wednesday, April 22, 2009Habit 7 Wednesday, May 13, 2009- Conclusion and Recap Each portion of the series will begin at 4:00p.m. and conclude at 5:15p.m., with an energizing snack and registration starting at 3:30 p.m. Why attend? Well, in case you missed the flyer on this series or the article in the last issue of The Suffolk Lawyer, you should be aware that the "Seven Habits" have been credited with doing many things for many people. The "Habits" have been described as a powerful, easy to use program to increase personal and professional achievement and happiness by integrating a person's various responsibilities in their personal, family and professional lives. The program accomplishes this by providing you with an opportunity to explore yourself and your impact on others, improving your communication skills, developing your leadership abilities, increasing your effectiveness and, as a result, enriching your life. And if that's not enough for you, by attending the remaining sessions of the series, you can earn twelve CLE credits as well. So pick up the book, start reading it today, and plan to attend the October 22nd and November 19th sessions, at least as a start. We look forward to seeing you there. Advanced registration is encouraged for the convenience and comfort of all who attend. Please call the Academy at (631) 234-5588 to register. -- Sheryl Randazzo

28

THE SUFFOLK LAWYER -- OCTOBER 2008 More Academy News on pages 26-27; CLE Course Listings on pages 22-23

ACADEMY OF LAW NEWS

New Courses Added To Fall Syllabus

________________________ By Dorothy Paine Ceparano

The Academy's curriculum is always a work-in-progress. Even after a seasonal syllabus has been "finalized" and the corresponding catalog published, it is common for new ideas to be considered by the Academy board and for those ideas to evolve into curriculum additions This fall, the following offerings were added or fleshed out after the dissemination of the Academy's Fall Catalog. On Monday, November 3, a luncheon program will explore an important topic

that responds to concerns on everyone's mind in today's volatile economic climate. Entitled "Understanding the New FDIC Rules: The Newest Form of Asset Protection," the program will feature Academy Advisor Eric Morgenthal, an attorney and CPA, and Donna Lillie, a vice president at Bank of Smithtown. The program will explain what FDIC insurance really means, its limits and actual protections. The presentation will have relevance for any attorney who handles escrow accounts or serves in a fiduciary role of any kind. Among other things, you will gain

insight into the impact of today's financial situation on attorneys and how to avoid exposure to malpractice claims. The program will run from 12:30 to 2:10 p.m, with lunch from noon, and will provide two MCLE credits. Another new addition to the Academy's Fall Syllabus is a November 13th afternoon seminar on "QDROs and Uncontested Matrimonials." The presentation, which will feature Frederick Crockett, Management Analyst, Supreme Court Matrimonial Part, and Family Court Judge John Kelly, an Associate Dean of the

Academy, will expand on previous, shorter takes on the subject matter. The program has been planned in response to requests after a summer lunch `n learn on uncontested matrimonials. Mr. Crockett, as well as many of the attendees, felt that time did not allow for discussion of many important questions. This new seminar will run from noon to 3:00 p.m., with lunch from 11:30 a.m. Even those who attended prior "abridged" treatments of the topic will find the program of value. Legal assistants as well as attorneys are urged to attend. (Continued on page 27)

ACADEMY

lendar Ca

Efficiency Is On The Way

On September 24th, this year's professional management afternoon series began, namely ­ The Seven Habits of Highly Effective People: Powerful Lessons in Personal Change ­ A Guided Book Discussion. In our first meeting, a meaningful exchange, led by Academy Officer Gail Blaise and Sheryl L. Randazzo of Randazzo & Randazzo, LLP/SCBA First Vice President, centered around identifying timeless principles and developing trusting and supportive relationships and how such principles and relationships factor into a person's ability to become more effective. The discussion led the way for setting off on a collective opportunity to help one another achieve our own goals of greater efficiency and overall satisfaction. If you are interested in joining us but missed the September 24th session, fret not. This nine-part series, eight of which remain, is structured in such away that you can jump in at any point in time and still realize tremendous potential benefit in your life by doing so. Parts two and three, which focus on "Habit One ­ Be Proactive" and "Habit Two ­ Begin with the End in Mind," respectively, are coming up and you are welcome to attend and participate, as well as to receive CLE credits by doing so. How does the series work, you ask? Each of the sessions are 75 minutes in duration, with one session occurring each month through to and including May. From this point on, each session will cover one of the seven habits individually and then ultimately conclude with a summary and recap at the final session. Participants are encouraged to sign up for the remainder of the series, although it is not required, and they are further encouraged to read each month's "chapter" in advance of the respective session. However, failure to prepare in advance does not preclude attending or participating. If you are interested, you should pick up the book ­ Steven Covey's, The Seven Habits of Highly Effective People, and start reading it on your own. You can never get too far ahead and the more you (Continued on page 27)

of Meetings & Seminars

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

October 20 Monday

Family Violence: Update & Issues. 6:00­9:00 p.m. Sign-in and light supper from 5:30. 21 Tuesday Law & Procedure of Zoning Appeals. 6:00­9:00 p.m. Sign-in and light supper from 5:30. 22 Wednesday Guided Book Discussion: Covey's 7 Habits of Highly Effective People. Session 2 (Habit 1 ­ Be proactive.) 4:00­5:15 p.m. Sign in and snack from 3:30 p.m. 22 Wednesday Real Property Update (Scott Mollen). 6:00­9:00 p.m. Sign-in and light supper from 5:30. 24 Friday Law in the Workplace Conference. Hyatt Regency Wind Watch Hotel. 9:00 a.m. ­ 4:00 p.m. Sign-in and continental breakfast from 8:30 a.m. (Luncheon included) 27 Monday Academy Curriculum Committee Meeting. 5:30 p.m. All wel come. RSVP 631-234-5588. 28 Tuesday A Day in the Life of a Lawyer (Communications). 6:00­ 9:00 p.m. Sign-in and light supper from 5:30. 29 Wednesday Discovery Series: Session 2: Discovery Papers & Methods. 6:00­9:00 p.m. Sign-in and light supper from 5:30. 30 Thursday Surrogate's Court Update (Hon. John Czygier). (New Date) 12:30­2:10 p.m. Sign-in and lunch from Noon. November 3 Monday Understanding the New FDIC Rules. 12:30 p.m. Sign-in and lunch from Noon. 5 Wednesday Medicaid Workshops. 6:00­9:00 p.m. Sign-in and light supper from 5:30. 6 Thursday Show & Tell: The Real Estate Closing. 12:30­2:10 p.m. Signin and lunch from Noon. 6 Thursday Discovery Series: Session 3: E-Discovery. 6:00­9:00 p.m. Signin and light supper from 5:30. 7 Friday Academy Meeting of Officers and Volunteers. All invited. 7:30 a.m. Complimentary breakfast. 13 Thursday Uncontested Matrimonials & QDROs. Noon to 3:00 p.m. Sign-in and lunch from 11:30 a.m. 13 Thursday DMV Update. 6:00­8:30 p.m. Sign-in and light supper from 5:30. 17 Monday The Accidental Franchiser. 8:00 a.m.­10:00 a.m. Sign-in and breakfast buffet from 7:30 a.m. 18 Tuesday Marketing Tips & Caveats. 12:30­1:30 p.m. Sign-in and lunch from Noon. 18 Tuesday DNA Unraveled. 6:00­9:00 p.m. Sign-in and lunch from Noon. 19 Wednesday Guided Book Discussion: Covey's 7 Habits of Highly Effective People. Session 3 (Habit 2 ­ Begin with the end in mind.) 4:00­5:15 p.m. Sign in and snack from 3:30 p.m. 20 Thursday Show & Tell: Power Point in Litigation. 12:30­2:10 p.m. Signin and lunch from Noon. 20 Thursday Family Court Update ­ Part I: Support Issues; Drug Testing; High Profile Cases. Part II on December 11 (Orders of Protection; Administrative Remedies for Enforcing Child Support; Equitable Estoppel in Paternity Cases).

EZ PASS FOR LAWYERS

Effective October 1, 2008 the SCBA and SAL will institute EZ Pass for Lawyers at all of our in house CLE programs. Here is how 1. You must 2. You must 3. You must it will work. be a member of our association. have prepaid for the lecture (prior to registration). have your permanent SCBA card with you. You will no longer wait on the sign-in line. Instead you will go to the EZ Pass line where you will merely swipe your ID card and pick up your materials and walk in. No more waiting. No need to sign your name or be checked off on a list. It is that simple.

ACADEMY OF LAW OFFICERS

DEAN

Patricia M. Meisenheimer Charles E. Berg Eileen Coen Cacioppo Channing Kury Eric Lee Morgenthal Ted M. Rosenberg Robert K. Howard Hon. John Kelly Cheryl F. Mintz Felix Wienclaw Gail Blasie

Executive Director

Dorothy Paine Ceparano Michael S. Brady D. Daniel Engstrand, Jr. Richard V. Rappaport Wayne J. Schaefer Robert G. Wilk Nancy E. Ellis Diane K. Farrell Richard L. Filiberto Allison C. Shields John C. Zaher

Information

LI Life Calendar

28 pages

Find more like this

Report File (DMCA)

Our content is added by our users. We aim to remove reported files within 1 working day. Please use this link to notify us:

Report this file as copyright or inappropriate

830590

You might also be interested in

BETA
Highlights Newsletter Winter 2005, Volume 8, Number1
LI Life Calendar
vol35no10.indd
620_Draft4.qxd