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SUFFOLK LAWYER

A PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

website: www.scba.org

Vol. 24 No.2 January 2008

DEDICATED TO LEGAL EXCELLENCE SINCE 1908

SCBA Celebrates 100 Years of Progress

_________________ By Martha Rogers

THE

"To cultivate the science of jurisprudence, promote reforms in the law, facilitate the administration of justice, elevate the standard of integrity, honor and courtesy in the legal profession and cherish the spirit of brotherhood and sisterhood among the members of our Association." With these powerful words, the Suffolk County Bar Association was founded in 1908. In the 100 years to follow, the noble principles set forth in the original SCBA charter have guided today's vital and flourishing organization. As our generation of practitioners recognizes the SCBA centennial, we proudly celebrate the accomplishments of the past 100 years. The SCBA of 1908 was quite difference from the SCBA of 2008. The original leadership consisted of three directors, the Honorable Walter H. Jaycox, the Honorable Timothy M. Griffing and the Honorable Joseph M Belford, and there were only a handful of members. Since its formation in 1908, the SCBA has grown to a diverse organization of approximately 4,000 members both men and women who hail from many different ethnic, cultural and geographical backgrounds. SCBA representatives of both the past and present still share the same dedication to jurisprudence, justice and integrity.

In 1908, Theodore Roosevelt was U.S. President, the Chief Justice of the U.S. Supreme Court was Melville Weston Fuller, fashion styles included tall, stiff collars for men and S-shaped "health corsets" for women, Typhoid Mary was quarantined, the Converse sneaker went into production and the Model T was a brand new invention. In Suffolk County, the population was close to 96,000 people. Magnificent estates lined shoreline areas and the newly opened Vanderbilt Motor Parkway was privately patrolled to enforce the 40 mile per hour speed limit. The county seat was in Riverhead, where the Suffolk County Courthouse featured a single courtroom. Cases heard by the County Court at the turn of the century included actions in real property, criminal trials and the occasional case of horse theft. The County Jail was attached to the Griffing Avenue courthouse and housed both criminal prisoners as well as debtors. Up until 1854, the jail was also the site of executions where a gallows was erected outside of the jail for each hanging. Historical records show that execution expenses incurred by the Sheriff's Office included money for rope, rum and a cart. How times have changed! The 1855 courthouse on Griffing Avenue came with a construction price tag of $17,500. The present Griffing Avenue structure features a $34.5 million addition, including inte(Continued on page 19)

Swearing in of the Executive Committee in Joshua Pruzansky's administration ­ 1985

Contract signing for permanent SCBA headquarters - 1993

INSIDE...

Being a part of something important Charity Foundation needs support ................2 Photos from the past SCBA memories..............................................3 The disappearance of John Buonora After losing so much weight, ex-pres says he's going to eat cake ....................................4 Our Hispanic Clients Legal issues effecting the Hispanic population .......................................5 Four-year court battle ends in success Duke goes home at last ..................................4 Judicial Swearing In and Robing 2008 Three new judges and two re-elected are sworn in ............................................13-15 Freeze Frame Happenings among our members ................14 Book Review Sidney Joseph Perelman was one of a kind .................................................16 Hot picks Rust never sleeps ..........................................16 ______________________________________ Legal Articles American Perspectives (Op Ed)...................18 Consumer Bankruptcy....................................7 Court Notes ....................................................8 DWI/DMV ...................................................11 HIPAA............................................................9 Pro Bono ......................................................17 Second Circuit Briefs...................................10 Trusts and Estates ........................................12 ______________________________________ Academy News ............................................22 Among Us ......................................................6 Calendar: Academy......................................28 Calendar SCBA..............................................2

PRESIDENT'S MESSAGE

BAR BRIEFS

Marking Our Centennial

_____________________ By Barry M. Smolowitz Barry M. Smolowitz With this edition of The Suffolk Lawyer, the Suffolk County Bar Association enters a new era on several levels. On January 6, 1908, a handful of Suffolk County lawyers met in Riverhead and signed the original Certificate of Incorporation forming The Suffolk County Bar Association. Most notably Joseph M. Belford, Joseph Wood, Nathan O. Petty, George F. Stackpole, George H. Furman, Ralph J. Hawkins, Percy L. Housel, Robert W. Duvall and Joseph T. Losee were the original signatories to the document. The Directors pending the first annual meeting was the Honorable Walter H. Jaycox, the Honorable Timothy M. Griffing, and the Honorable Joseph H. Belford. It has been a great beginning, and now as we embark on our second century I am confident that the SCBA will continue to remain true to its original mission statement of maintaining the honor and dignity of the profession of law and aiding in the administration of justice. Please remember, that it is only through the continued hard work and dedication of you our volunteer members, and our wonderful staff, that the future perpetuity of our organization will be realized. In honor of the commencement of our Centennial, you will note that The Suffolk Lawyer has a new look and feel. We have (Continued on Page 19)

Donate Blood Thursday, March 20 from 1 to 6:30 p.m.

SCBA is hosting a blood donor drive in the Great Hall of the bar center. Long Island Blood Services desperately needs donors to help alleviate Long Island's critical shortage of blood. Please come down to donate blood. For further information, call the bar at (631) 234-5511

Time Capsule Ceremony Saturday, May 3

Come by and be a part of history when members place items in a time capsule to mark SCBA's centennial year. The event will be held on the Great Lawn at the bar center. Please contact Jane LaCova with any suggestions by e-mail at [email protected]

____________________________________________________

Stay in touch at www.scba.org

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THE SUFFOLK LAWYER -- JANUARY 2008

Photo credit: SCBA

Suffolk County Bar Association

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

Board of Directors 2007-2008

Barry M. Smolowitz James R. Winkler Ilene S. Cooper Sheryl L. Randazzo Matthew E. Pachman Arthur E. Shulman Justin M. Block Neil M. Block Jonathan C. Juliano John B. Zollo 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 Scott M. Karson Robert F. Quinlan John L. Buonora Sarah Jane La Cova President President Elect First Vice President Second Vice President Treasurer Secretary Director (2008) Director (2008) Director (2008) Director (2008) Director (2009) Director (2009) Director (2009) Director (2009) Director (2010) Director (2010) Director (2010) Director (2010) Past President Director (2008) Past President Director (2009) Past President Director (2010) Executive Director

SCBA Charity Foundation

__________________ By Joseph A. Hanshe

dar len Ca

SCBA

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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.

This is the end of the first year of the SCBACF. The Foundation began with $100,000 and gained a little over $3,000 in interest, with no donations to the fund. The primary reason for the less than adequate return on capital is its late entry into the investment arena. The Bar Association's Broker at Oppenheimer Financial Services is now managing the corpus of the funds. The investment portfolio is made up of low risk municipal bonds that can be liquidated as needed on short notice. The purpose of this article is

to outline the goals of the foundation and how we hope to achieve these goals. We all have seen, and no doubt have felt offended at the lawyer jokes, and abrasive attitudes of the public towards lawyers. How many have heard, "you're a nice guy, but I hope I never see you again!" after assisting a client with a legal matter? I recently saw hanging on the wall of a lawyer's office a picture depicting a plaintiff pulling the head of a cow in one direction, and the defendant pulling on the tail of the cow in the opposite direction and the "lawyer" sitting next to the cow "milk(Continued on page 18)

MEETINGS AND EVENTS

DONORS

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

PURPOSE

FEBRUARY 2008 4 Monday Installation/Journal Committee, 5:30 p.m., Board Room. 5 Tuesday Council of Committee Chairs, 5:30 p.m., Great Hall. 6 Wednesday Professional Ethics & Civility Committee, 6:00 p.m., Board Room. 7 Thursday Insurance & Negligence - Plaintiff's Council Committee , 5:30 p.m., Board Room 11 Monday Executive Committee, 12:00 noon, Board Room. Commercial & Corporate Law Committee, 5:30 p.m., Board Room. 13 Wednesday Animal Law Committee, 6:30 p.m., Board Room. Immigration Committee, 6:30 p.m.,E.B.T. Room. 19 Tuesday Education Law Committee, 12:30 p.m., Board Room. 20 Wednesday Elder Law Committee, 12:15 p.m., Great Hall 21 Thursday Appellate Practice Committee, 6:30 p.m., Board Room. 25 Monday Board of Directors, 5:30 p.m., Board Room. 27 Wednesday New Members Committee, 5:30 p.m., E.B.T. Room. Insurance & Negligence - Defense Council, 6:00 p.m., Board Room. MARCH 2008 5 Wednesday 11 Tuesday Professional Ethics & Civility Committee, 6:00 p.m., Board Room. Executive Committee, 12:00 noon, Board Room. Commercial & Corporate Law Committee, 5:30 p.m., E.B.T. Room. Judicial Screening Committee, 5:00 p.m., Board Room. Elder Law Committee, 12:15 p.m., Great Hall. Immigration Committee, 6:30 p.m., E.B.T. Room. Education Law Committee, 12:30 p.m., Board Room. Solo & Small Firm Practitioners Committee, 4:00 p.m., Board Room. SCBA's Blood Donor Drive, 1:00 p.m. to 6:30 p.m. Call Bar Center to sign up to donate your blood. Appellate Practice Committee, 6:30 p.m., Board Room. Board of Directors, 5:30 p.m., Board Room. Insurance & Negligence - Defense Council Committee, 6:00 p.m., Board Room.

Lorraine Gallagher Joseph A. Hanshe Joseph A. Hanshe

In Memory of Joseph Gallagher In Honor of the Memory of Lt. Michael P. Murphy, USN and his family, Medal of Honor recipient On the retirement of the Hon. Joseph DeMaro, JSC Nassau County, a great jurist and inspiration

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 James M. Wicks 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

12 Wednesday 18 Tuesday 19 Wednesday 20 Thursday 24 Monday 26 Wednesday

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 -- JANUARY 2008

3

SCBA Highlights From the Past

Past SCBA President Edward V. Esteve and Sidney Siben A performance by the Scales of Justice SCBA retreat ­ 1981

Sidney Siben's 90th birthday William M. Kunstler lectures ­ 1987 Rudy Guliani, Robert Folks and Barry Warren ­ 1988

Vincent Hand presents an award to Lawrence Kennedy ­ 1981 Tom Spellman at the art auction ­ late 1980's Barry Warren ­ 1980

Judge Sol Wachtler ­ 1972 Judge John P. Cohalan and John Bracken ­ 1984 Craig Purcell and Vincent Malto ­ 1985

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THE SUFFOLK LAWYER -- JANUARY 2008

My New Year's Resolution?....... To Gain Some Weight

____________________ By John L. Buonora

I recently read a newspaper article stating that something like 52 percent of all New Year's resolutions involve people intending to lose weight. I think that most of the other 48 percent declare an intention to show up the first thing on the morning of January 2 at their local YMCA, Bally's, Jenny Craig, Curves, or other gym or torture chamber of their choice to "get into shape." I guess a handful of others vow to give up smoking, demon rum, other minor vices or occasions of sin. We all know that almost everyone fails in reaching their allegedly intended goals. I say allegedly first, because I'm a lawyer, and lawyers like to use that word (especially if defending either a civil or criminal case), and secondly we all know that these intentions tend not to be too powerful or sincere. So I've come up with a better idea. I'm going to put on some weight.

Why Gain Weight?

As a lot of you know (since I've told everyone who hasn't had the good sense to avoid me), I've lost a good deal of weight lately, some 32 pounds to be exact. So what motivated me? A little bit of fear instilled in me by our family doctor and maybe a great deal of vanity. The vanity part comes from having received a pictorial history of my year as president of our Association, compliments of Art Schulman. My not insubstantial stomach seemed to dominate every picture. I wanted a do-over, asking Art if he could "Photo Shop" the pictures to make me appear a leaner and not necessarily meaner president. Art would not compromise

Leaner, meaner John Buonora.

his artistic integrity, refusing to alter the historic record. I don't want to unnecessarily punish you, so I've not included a "before" picture for this article. As for the fear factor, my wife Toni had a recent health scare (Don't worry. She's fine). The doctor, (let's call him Dr. Bow Tie, who is a terrific doctor notwithstanding his lack of GQ credentials in the haberdashery department), was complimenting Toni on how she takes care of herself. She never smoked, watches her weight eating the right kind of nutritious foods, doesn't drink too much, goes to bed at a reasonable hour getting plenty of rest,

exercises regularly and generally takes good care of the one body that God gave her for this lifetime. After Dr. Bow Tie finished praising Toni for her healthful lifestyle he whirled on me (I thought in a somewhat accusatory manner), and said "This should have happened to you!" "You're way overweight. You drink too much. Your blood sugar is too high. So is your cholesterol and fats in your blood. You also have gout (supposedly a rich man's ailment)." He also threw in hypertension for good measure, just in case I didn't get the message. I told Dr. Bow Tie that I had planned to go on a diet anyway. (I lied) I thought to myself, "I'll show him." I asked him what he thought of the NutriSystem Plan. You know, the one you see advertised on television all the time featuring all of these macho male former professional athletes and coaches like Hall of Fame quarterback Dan Marino saying "I lost twenty pounds" or Coach Don Shula saying "I lost thirty pounds" or former 305 pound linebacker Mike Golic saying "I lost fifty pounds." Then you would see these drop dead gorgeous women parading in bikinis or mini-skirts saying "I lost twenty two pounds" or "I lost forty pounds" or even "I lost 108 pounds." The commercials featured the usual before and after pictures. The commercials also featured, if you could call it that, in very small print on the screen for about one second the phrase "results are not typical." That would be enough to discourage someone who was not as stubborn or obsessive as this writer. By now I've probably violated every part of the HPPA statute but you must remember that I'm performing a valuable public service here (although I'm not sure what it is). I embarked on my somewhat dubious

march toward good health this past September 9 right after receiving my first month's food in a large box that was so heavy that it had to be dragged into the house from the front porch where John L. Buonora UPS had left it. After triaging breakfast, lunch, dinner, desserts and snacks into smaller boxes I was off and running eating microwaved meals of miniscule proportions augmented by salads, vegetables, fruits, eggs, tuna fish and the like together with drinking lots of water... yeah, lots of water! Fortunately, there's a rest room within a few feet of my office... but I digress. Over the course of the next twelve weeks I followed the plan religiously, eating what I could only describe as nursing home food. You know the pictures that they show you on television of these beautiful appetizing dishes? Well they lie. While the food is tasty, nutritious and believe it or not is filling, most of it looks like mush. As the pounds began to melt away people began to notice. "Are you losing weight?" Then after a short pause, -- "You're not sick, are you?" This became more frequent as suits became baggier, collars became looser and cheekbones became more prominent.

The Three Bears and My Grandchildren

With the arrival of my second month's food came a surprise. A little red bear bearing the number "10" rewarding me for

(Continued on page 20)

Justice Delayed, Better Than Justice Denied

Duke returns home _________________

By Amy L. Chaitoff

A dog's four-year court battle for justice is finally at an end thanks to the December 11, 2007, order of the Appellate Division, Second Department. "Duke," a six-yearold American Bull Terrier has been on the dog equivalent of death row at the Islip Town Shelter for an incredible four long years. Duke was sentenced to death by an order entered by the Hon. Madeline A. Fitzgibbon, J., ordering that Duke be killed pursuant to Agriculture and Markets Law Section §121, commonly known as New York's Dangerous Dog Law. Duke's owners alleged it was a case of mistaken identity that led to a dangerous dog complaint filed by a neighbor who alleged Duke injured his bulldog in 2003. Duke's attorney, animal welfare attorney, Amy L. Chaitoff of Chaitoff Law in Smithtown, claimed that this was not only a case of misidentification, but legally, Duke's order of destruction was based on a misapplication of New York State's Dangerous Dog Law Sections §121 and §108, in effect at the time of the alleged incidents, which specifically excluded dog on dog attacks. The law was amended in December 2004. Although it was never alleged that Duke ever threatened a human being, a neighbor, Dominick Motta (who had several run-ins with animal control including a dangerous dog complaint filed against him), alleged that two dogs fitting the description of the Menendez's dogs entered his property. He claimed one of them attacked his dog on

two separate occasions while the other dog just stood by. He also alleged that a "brown dog" chased his horse. On two of the alleged incidents, the complainant was unable to identify the alleged aggressor. Knowing Duke's innocence, the Menendez family immediately appealed to the Appellate Term but they affirmed the lower court's decision. The Menendez's retained Ms. Chaitoff whose firm focuses on animal rights and related matters. Ms. Chaitoff filed two motions to reargue, arguing not only that this was a case of mistaken identity and that the Menendez's first "hearing" was never tried on its merits, but also that the law at the time of the alleged incidents excluded dog on dog attacks, and thus Duke's harsh sentence was extreme and unjust. Ms. Chaitoff argued that, the February 3, 2004, hearing which resulted in the February 10, 2004, order to kill Duke was based on an alleged "dog on dog" altercation. Dog on dog altercations were specifically excluded from Agriculture and Markets Law Section §121 at the time of the alleged incident. See, Agriculture Markets Law Section §121, Effective November 1, 2003, to December 14, 2004. At that time, the law only addressed attacks on people and domestic animals. Furthermore, in 2003 during the time of the alleged incidents, New York Agriculture and Markets Law Section §108 (7), specifically excluded dogs and other companion animals from the definition of a domestic animal. See, Agriculture and Markets Law Section §108 (7), Effective from August 5, 2003 to December 14, 2004. And therefore,

Amy L. Chaitoff and Duke

since the acts Duke was allegedly accused of committing was specifically excluded from the definition of a dangerous dog under Agriculture and Markets Law Section §108 (24), effective August 05, 2003 to December 14, 2004, and the definition of a domestic animal as defined by the statute did not include pet dogs or companion animals, Duke cannot be found to be a dangerous dog within the meaning or intent of the statute at the time of the alleged incidents. The 2003 version of the dangerous dog law only covered attacks on people or an attack on a service dog, guide dog or hearing dog. The legislature having the opportunity to include companion animals or other types of dogs under the protection of Section §108, instead, specifically excluded them at that point in time. Moreover, New

York case law at the time of the alleged incidents repeatedly held that dogs were specifically excluded from the definition of a domestic animal under Agriculture and Markets Law Section §108 and thus §121. The Appellate Term in People v. Noga, 168 Misc.2d 131, 645 N.Y.S.2d 268 (App. Term; 2d Dept. 1996) held that "Section 121 of the Agriculture and Markets Law states that a dog is dangerous if it, inter alia, attacks a person or a domestic animal. For purposes of this statute, a dog is not considered a domestic animal." People v. Noga, 168 Misc.2d 131, 645 N.Y.S.2d 268 (App. Term; 2d Dept. 1996). The Appellate Term again affirmed the First District Court's decision and order through an order of the Appellate Term dated January 31, 2007, by the Hon. Kenneth W. Rudolph, P.J.-- Duke was running out of options. The Menendez's were praying for a miracle to save their beloved family member. Ms. Chaitoff then appealed to the Appellate Division, Second Department. Luckily, for Duke, the Hon. Robert A. Lifson, of the Appellate Division, Second Department, granted Duke's request for a temporary stay of execution in April and Duke's case submitted before the Appellate Division panel of Judges to review Duke's exceptional case. The Appellate Division, Second Department granted Duke's appeal and gave Duke and his family their first glimpse of hope in over four years. On December 11, 2007, the four Judge panel at the Appellate Division, Second Department located in Brooklyn, NY, presiding Justices; Hon. Robert W. Schmidt,

(Continued on page 21)

THE SUFFOLK LAWYER -- JANUARY 2008

5

Our Hispanic Clients

Cultural differences create legal problems

________________ By Luis A. Pagan

This is the third part of a three part series. Latin American law enforcement in general, tends to be more lenient towards drunk drivers than we are here. So, when they get to the United State, they don't understand the seriousness that we attach to this offence. In many Latin American cultures, drinking is so much a part of the male culture and macho image; the more you drink, the more of a man you are. Obviously, a warped logic, but this is a reality in many Latin American cultures. Another cultural aspect that presents a major legal problem here in America is a fairly common practice among Latin American countries where very young girls (between the ages of 13 to 15), get married. And if not married, they live with their common law husbands. There is no issue as to consent in sex, and statutory rape charges are not enforced or pursued as they are in America. It is a fact that many Hispanics, whether male or female, have a difficult time understanding why a 15- year-old girl is unable to get married to her 21- year- old boyfriend. The concept of what it is to be respectful is another cultural difference that presents a problem in the legal process, especially at trial. In most Latin American countries, looking straight into the eyes of an authority figure is a sign of a challenge, and disrespect. In America, if you

make youngsters feel that they belong, that they are impordon't face people and look tant, and that they are welthem straight in the eye, they come. Only then will we see a think you are lying. decline in the pernicious So the Hispanic witness, trygrowth of gangs. ing to do what they perceive as Because of cultural differthe right thing, will talk to the ences, many Hispanics do not judge and jury while looking understand our society and its away. Unfortunately, those institutions. They don't Luis A. Pagan who are not familiar with this understand how our legal and cultural characteristic will believe that the judicial system works, or how our govwitness is lying. ernment agencies operate; they do not You must, therefore, be very careful know the laws that protect them, or how with your Hispanic clients or witness(es) things are done in our country. Having to and explain to them how Americans will fill out a regular school or government perceive them, and request that they look form can be a daunting experience, an at the judge and jury when testifying. anguishing, and almost impossible task Then there is the issue of gangs. One of for many of them. the major concerns in our communities is Sadly, they are regularly taken advanthat of gang affiliations, and the consetage of by unscrupulous real-estate broquent problems arising. I don't think that kers, mortgage brokers, car salesmen, gangs are the major source of crime in insurance brokers, and employers who Suffolk. The reality however, is that gangs make them work with promises of a decent are here and we have to figure out a way to paycheck at the end of the week. Then at dissolve them. Some youngsters, especialthe end of the week, they kick the workers ly from Central America and Mexico, out of a job site like curds sending them off grow up in very gang-ridden violent neighwithout their hard-earned dollars. borhoods and they have unnecessarily There are individuals on Long Island, transferred this lifestyle here to America. and in particular a person who lives in the Social scientist will tell you that gangs Hamptons, who have practically rebuilt are formed when groups of individuals their home by using slave workers. The feel disenfranchised, believe they aren't employer in the Hamptons has had workwelcome, or that they don't belong. ers complete projects on the house, and Remember "Westside Story," and Martin then when the workers request the rest of Scorcese's "Gangs of New York?" Gangs their pay, tell them that because they lack have been around for a long time and will a contractor's license they won't be paid. be around until we figure out a way to They don't ask to see a contractor's

license before the work is done, but wait until the job is complete to request the license. The workers, of course, have filed claims against this employer, but the court, like so many other courts in Suffolk, has upheld the defense. Since the workers don't have a license as contractors, the court reasons that they violated the law and, as such, do not have a right to be paid for their work. (What ever happened to the principle in equity of unjust enrichment?) In this example, the law is being used as a means to take advantage of the least educated among us for purposes of exploitation. Regardless of your personal position regarding undocumented immigrants, these are all shameless acts. Poverty has its own consequences in the Hispanic community. Due to poverty, and the fact that there is not enough private, or government sponsored, rental housing for the poor on Long Island, there are houses with a number of residents far exceeding their legal occupation. In addition, some landlords are fully aware of this housing shortage, and they double and triple their profits on rental property, and, in so doing, expose their tenants to many dangerous living conditions. Consequently, some Hispanics have problems with Town Code Inspectors. Some have been ordered to abandon their home because of dangerous conditions. You have a much greater chance of receiv(Continued on page 20)

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6

THE SUFFOLK LAWYER -- JANUARY 2008

SIDNEY SIBEN'S AMONG US

On the Move...

Virginia Medici Wylly has joined Lamb & Barnosky, LLP as counsel to the firm. With 17 years work experience with the U.S. Small Business Administration, Ms. Wylly will be an excellent addition to Lamb & Barnosky. Her expertise will enhance the banking and real estate practices in the company. Lamb & Barnosky LLC, is proud to announce the arrival of Victor A. Adefuye as an associate of the firm. The Law Offices of David A. Gabay have relocated to 4250 Veterans Highway, Suite 3040, Holbrook, N. Y. 11741. The contact numbers are: phone at (631) 4674177 and fax at (631) 467-4178. Ernest R. Wruck and Bruce T. Wallace are merging their law practices and will specialize in the areas of Wills, Trusts, Estates and Real Estate. They can be contacted at 38 Church Street, Patchogue and by calling (631) 475-3100. Brandi P. Klineberg and Joshua Summers have joined Moritt Hock Hamroff & Horowitz LLP as associates. Ms. Klineberg joins the firm's Bankruptcy and Commercial Litigation practice areas and Mr. Summers joins the firm's Commercial Litigation practice area. Richard F. Artura has moved his office to 165 South Wellwood Avenue, Lindenhurst, N. Y. He can be reached at (631) 226-2100, fax at (631) 226-2160. Karen A. Casey has relocated her office to 780 New York Avenue, Huntington, Suite 2, Huntington, N. Y.

Troop 43, Sagtikos District, 11743. She can be reached by and is a sophomore at St. phone at (631) 470-7407, fax at Anthony's High School in (631) 470-7414. Richard P. South Huntington, NY. Casey, Esq. is of counsel. Congratulations to Ray Diane P. Whitfield, Claudia P. and Bridget Senenfelder, Lovas and Sara Wells have who is SCBA staffer Mary joined L'Abbate, Balkan, Colavita Shannon's daughter, on the & Contini, L.L.P. in Garden City birth of their baby Mel, as associates. Ms. Whitfield has born Jan. 23 at 7 lbs., 8 ozs. joined the accounting and legal malpractice defense groups, Ms. Jacqueline M. Siben Lovas employment law, and Ms. Wells the architects and engineers defense group. Alison Arden, daughter of SCBA Past To the anonymous donor who not only President Harvey Besunder, has become a ordered and had erected our beautiful flag partner at Arent Fox where she'll specialpole, but continues to purchase a new flag ize in the trademark and intellectual propfor us every year. You know who you are erty area. and you are a great American. Anthony Rivizzigno, has joined Gilberti Stinziano Heintz & Smith, P.C. in Syracuse as a partner.

In Appreciation...

Stephen L. Ukeiley, a partner in the Litigation Practice Group at Garden City-based Jaspan Schlesinger Hoffman, LLP and a volunteer for the Academy of Law's Continuing Legal Education Committee, is a 2008 recipient of the 40 Under 40 Awards presented by the Long Island Business News honoring outstanding members of the business community on Long Island under the age of 40. Mr. Ukeiley, who has authored numerous legal articles, also hosts a political pod cast, is an an adjunct professor at the New York Institute of Technology, and a Courtappointed Arbitrator for the Nassau County District Court.

Speedy recovery...

Wishing a speedy recovery to Gloria Sherwyn, the mother of First Vice President Ilene Sherwyn Cooper. Wishing a speedy recovery to Richard Bronstein who underwent surgery. Wishing a speedy recovery to Joleen Karson following her surgery.

Congratulations...

To SCBA past president Harvey Besunder and his wife Arline Besunder on the birth of their granddaughter Emma Jaye Arden, born December 21, at 7 lbs., 9 oz. Congratulations and best wishes to the former president of the Queens County Bar Seymour James upon being elected to the New York State Bar Association as Treasurer. Congratulations to Ryan Michael, son of SCBA member Jacqueline M. Skubik for achieving the coveted rank of Eagle Scott. Ryan is a member of

Announcements, Achievements, & Accolades...

Warren G. Clark has been appointed as the Chief Clerk of the Suffolk County District Court. SCBA member Steve Levy has been inaugurated for a second four-year term as the Suffolk County Executive. Former Acting Supreme Court Judge Michael F. Mullen will serve as counsel to Lamb & Barnosky as well as act as an adjunct professor of law at the Jacob D. Fuschsberg Law Center of Touro College in Central Islip.

Condolences...

To SCBA President Barry M. Smolowitz upon the passing of his cousin Corinne Belkin. SCBA Director Neil M. Block upon the recent death of his grandmother Zelda Kaufman (mother of Estelle Block and mother-in-law of U.S. District Court Senior Judge Fred Block).

IRS and New York State Tax Controversies

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THE SUFFOLK LAWYER -- JANUARY 2008

7

CONSUMER BANKRUPTCY

New Laws in Place Two Years

Panel discusses current bankruptcy practice

________________ _ By Craig D. Robins

More Than 40 Years Of Significant Experience In:

Part II: Chapter 7 and Other Issues Last month I discussed topics addressed at a recent Suffolk County Bar Association seminar about consumer bankruptcy practice under the new laws, which just marked their second anniversary. In that column, I primarily focused on Chapter 13 issues. This month I will highlight issues involving matrimonial settlements, reaffirmation agreements, converted cases, the new U.S. Trustee initiative against attorneys, and other matters. More Difficult for Trustees to Void Matrimonial Settlements Trustees are always investigating situations where a husband transfers his interest in the marital home to the wife as part of a matrimonial settlement, which is approved by the matrimonial court. The husband then files for Chapter 7 bankruptcy relief and the issue becomes whether the transfer is a fraudulent transfer that the trustee can set aside. Most of the panelists acknowledged having several cases involving this issue. Chapter 7 trustee Robert Pryor provided a detailed discussion of the Bledsoe case, 350 B.R. 513 (Bankr. D.Or. 2006) which held that a trustee has very limited rights to attack such a transfer absent actual fraud. Mr. Pryor concluded that this case, if adopted in this jurisdiction, would make it very difficult for trustees to attack matrimonial transfers that are approved by the state court. Re-Affirmation Agreements Prior to the Act, the law in this jurisdiction for the past decade was that a debtor did not have to reaffirm a secured debt. Mr. Pryor discussed the relatively new Oregon case of In re Bower, which held that a reaffirmation agreement entered into within 45 days of filing was valid, even though the agreement was not approved by the court within that time period. Means Test Deduction for Mortgage Interest Expense Mr. Pryor discussed the U.S. Trustee's new position that if the debtor is not paying the mortgage at the time a Chapter 7 means test is executed, then the debtor does not have the right to claim this expense as a deduction. This led to a heated panel discussion as to whether the U.S. Trustee's position is reasonable in light of the wording of the statute. Mr. Pryor concluded that even though there is no case law in this jurisdiction yet, and contrary to the position of the U.S. Trustee, the bulk of cases, which have addressed this issue, permit the debtor to include the contractual mortgage payment the debtor is required to make. The Means Test Does Not Apply in Converted Cases There was another heated discussion as to a possible loophole in the new laws, which could enable a debtor to bypass the means test. Bankruptcy practitioner Sal LaMonica suggested that if a debtor initially files a Chapter 13 petition, which is then converted to one under Chapter 7, then the debtor is not obligated to file a new means test. He stated that there are three cases nationwide providing authority for this. Mr. LaMonica discussed the possibility as to whether a debtor could plan this approach in advance, to which Chapter 13 trustee Michael Macco replied that doing so would be considered bad faith. Cases Interpreting the New Laws After going through a lag period of well over a year since the new laws went into effect, we are finally seeing a number of appellate cases interpreting the Act. Now we are finally able to understand what the law is. It appears that the courts are seeking to mini-

mize the draconian impact that these laws have had. Increased Pressure on Debtor's Attorneys Mr. LaMonica, who recently attended the National Conference of Bankruptcy Judges, Craig D. Robins reported that one of the hottest topics was that the U.S. Trustee's focus would be shifting from debtors to debtors' attorneys. Apparently, Congress had criticized the U.S. Trustee for becoming too aggressive in enforcing its Civil Enforcement Initiative. I wrote about this extensively a few years ago. The Initiative was the U.S. Trustee's effort to weed out abusive cases. It seems that the new emphasis will now be to go after attorneys who don't adhere to the numerous obligations imposed on them by the new laws. Attorneys have an affirmative duty to investigate all of the information in the petition. The U.S. Trustee will bring applications seeking disgorgement of attorney's fees for failure of debtor's counsel to exercise their due diligence. Be careful to avoid falling into the trap where the U.S. Trustee can point a finger at you. New Laws May Conflict With Emergency Filings Some panelists discussed whether the due diligence requirement which the 2005 Act imposes on bankruptcy counsel effectively precludes attorneys from filing emergency petitions because the attorney would not have sufficient time to investigate the facts. Mr. Macco said that attorneys have an absolute obligation, prior to filing, to verify information provided by debtors, regardless of how much or little time counsel has. Chapter 7 trustee Richard Stern commented that because of this, he no longer accepts emergency filings. My personal feeling is that a debtor cannot be deprived of counsel merely because the debtor needs to file under an emergency basis. As long as counsel acts reasonably under the circumstances to investigate as much information as possible, I believe the attorney has met his initial burden under the 2005 Act. The attorney however, would then have to verify any additional information immediately after filing and make any necessary amendments. In addition, if the attorney learned that the newly discovered information rendered a Chapter 13 case unfeasible, then the attorney would have the obligation to advise the court. Legal Fees Mr. Macco noted that for a period of over 20 years, up until the new laws went into effect, legal fees charged by consumer bankruptcy practitioners for typical consumer bankruptcy cases did not change. Typical fees for Chapter 7 cases during this period were between $750 to $900, and about $1,500 for Chapter 13 cases. He observed that after the new Act went into effect, the fees for Chapter 7 cases jumped to $1,500 to $2,500, and the fees for Chapter 13 cases were frequently $4,000. He indicated that he is not adverse to an attorney charging Chapter 13 fees greater than $4,000, but he requires debtor's counsel to bring a fee application at the time of confirmation. Mr. Pryor commented that he had no problem with counsel who charge a high fee, provided that they do a good job. He noted that attorneys should be paid for the work that they do. Note: The author is a bankruptcy attorney who has represented thousands of consumer and business clients during the past 20 years. He recently moved his office from Westbury to Woodbury (516) 496-0800. He can be reached at [email protected]

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8

THE SUFFOLK LAWYER -- JANUARY 2008

The New York Center for Neuropsychology & Forensic Behavioral Science

Dr. N.G. Berrill, Director

Case Assignments from Hon. Ralph T. Gazzillo, Supervising Judge of the Suffolk County County Court

Beginning January 2, 2008, there will be a reassignment of a number of cases according to the following guidelines: Justice Robert W. Doyle and Judge C. Randall Hinrichs will be designated as the "Protracted Trial Parts." They will be assigned cases, which are lengthy and complicated in nature. Pre-disposition homicides will be assigned to them (unless the presently assigned judge anticipates a forthcoming resolution). Centralizing homicides should facilitate the cases' progress, as the homicide prosecutors will not be scattered throughout the courthouse and responsible to multiple parts. Placing the cases and lawyers in fewer courtrooms will facilitate trial scheduling. The Protracted Trial Parts will continue to receive some other, "regular" cases on a limited basis. All Narcotics cases will be reassigned to Judge Gazzillo. Centralizing narcotics cases should expedite their progress. Judge Gazzillo will also continue the TAP part. Judge Barbara R. Kahn will continue her assignment to all sex crimes and with a limited inventory of other cases. The remaining judges will share the balance of the "regular" cases. Efforts are underway to try to give each of these parts some numerical parity in their caseloads.

[ Over 20 Years \

Providing Consultation to Attorneys & the Courts on Psycho-legal Matters

COURT NOTES

· Criminal Cases: Competency Issues, Criminal Responsibility, Extreme Emotional Disturbance, Risk Assessment, Sex Offender Workups & Dispositional Planning

Appellate Division Second Division Second Department

______________________ By Ilene Sherwyn Cooper

Attorney Resignations

The following attorney, who is in good standing, with no complaints or charges pending against him, has voluntarily resigned from the practice of law in the State of New York: William P. Turley An error in the December issue of The Suffolk Lawyer included William Turley. He has not resigned from the practice of law.

· Matrimonial & Family Court Cases: Custody/Visitation, Neglect/Abuse, Termination, Delinquency, Family Violence, & Adoptions

· Civil Cases: Competency Issues, Head Trauma, Sexual Harassment, Discrimination, Immigration, & Post-Traumatic Stress Disorders

Attorney Reinstatements Granted

The application by the following attorneys for reinstatement was granted: Alan Zigman

dent provided inaccurate and evasive responses to discovery requests and/or failed to disclose information in connection with his representation of a client in a matrimonial action. In deterIlene S. Cooper mining an appropriate measure of discipline to impose, the court considered the respondent's extensive prior disciplinary history, including his indefinite suspension by the First Department based upon his incapacity to practice law due to a mental disability, his receipt of five Letters of Caution for lack of diligence in completing matters entrusted to him, and failing to cooperate with the Grievance Committee, and his receipt of three Letters of Admonition. Accordingly, under the totality of the circumstances, the respondent was suspended from the practice of law for a period of two years.

Comprehensive Diagnostic & Treatment Services

Attorney Reinstatements Granted/Grievance Investigation Instituted:

Margaret A. Hurst: By decision and Order of the Court, the respondent was suspended from the practice of law on the grounds of mental incapacity and the Grievance Committee was ordered to hold its pending investigation in abeyance. The respondent then moved for reinstatement, and the application was held in abeyance pending respondent's examination by a medical expert arranged by the Grievance Committee. Upon the filing of that report, the Court vacated the respondent's suspension, and directed the Grievance Committee to proceed with its investigation of the respondent.

Attorneys Disbarred:

Michael Paul Henry: The Grievance Committee moved to impose discipline upon the respondent based upon disciplinary action taken against him by the Supreme Judicial Court for Suffolk County of the Commonwealth of Massachusetts. The record revealed that the Commonwealth suspended the respondent from the practice of law for an indefinite period based upon his stipulation in which the respondent admitted the truth of the allegations of the petition; to wit, use of escrow funds for personal or business purposes, and commingling personal and trust funds. Accordingly, in view of respondent's admissions, he was disbarred from the practice of law in the State of New York based upon his agreed-upon suspension for an indefinite period in Massachusetts. 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 First VicePresident of the Suffolk County Bar Association and a member of the Advisory Committee of the Suffolk Academy of Law.

26 Court Street, Suite 912, Brooklyn, NY 11242 718-237-2127

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Attorneys Suspended:

Thomas A. Bruno: By decision and order of the court, the Grievance Committee was authorized to institute a disciplinary proceeding against the respondent and the matter was referred to a Special Referee. The Referee sustained all the charges against the respondent. The charges alleged, inter alia, that the respon-

WWW.NYFORENSIC.COM

THE SUFFOLK LAWYER -- JANUARY 2008

9

HIPAA

___________________ By James G. Fouassier

HIPAA No Bar to Interviews of Nonparty Doctors

HIPAA, the covered entity is permitted, but not required, to use the information or make the disclosure (see 65 Fed Reg 82462, 8265682657). Nothing in the rule requires covered entities to act on authorizations that they receive, even if those authorizations are valid. A covered entity presented with an authorization is permitted to make the disclosure authorized, but is not required to do so. Stated another way, a covered entity, such as a physician, who releases a patient's protected health information in a way permitted by the Privacy Rule does not violate HIPAA; however, neither the statute nor the rule requires the physician to release this information. The permitted uses and disclosures relevant to these appeals are those made pursuant to authorization (45 CFR 164.502[a][1][iv], 164.508) and the so-called litigation exception (45 CFR 164.502[a][1][vi], 164.512[e]). The Privacy Rule also permits covered entities to use or disclose protected health information without authorization pursuant to a court or administrative order so long as only the protected health information covered by the order is disclosed (45 CFR 164.512[e][1][i]); or in response to a subpoena, discovery request or other lawful process if the entity has received satisfactory assurances that the party seeking the disclosure has made reasonable efforts to ensure that the individual has been given notice of the request, or has James G. Fouassier made reasonable efforts to secure a qualified protective order from a court or administrative tribunal (45 CFR 164.512[e][1][ii]). While this litigation exception may appear to be tailored for those situations in which the protected health information is not being sought from a party to the proceedings, HHS has declared that `[t]he provisions in [section 164.512(e)] are not

(Continued on page 21)

A recent decision from the New York Court of Appeals addresses whether and to what extent an adverse party's treating physician privately may be interviewed by opposing counsel `informally' when the adverse party has placed his or her medical condition in issue. In doing so the court harmonized several provisions of the Privacy Rule of the federal Health Insurance Portability and Accountability Act with pretrial disclosure provisions in CPLR Article 31 and 22 NYCRR 202. In Arons v. Jutkowitz, ____NY 3d ___, 2007 NY Slip Op 9309 (11-27-07) the Court decided appeals in three separate medical malpractice cases in which the trial courts had allowed such interviews. While the facts vary slightly, in each case the defendants sought to interview the treating physicians ex parte. To do so, they requested HIPAA compliant authorizations from their adversaries, who all refused. The defendants then sought appropriate orders compelling the plaintiffs to issue authorizations pursuant to the specific provisions for the same in the HIPAA privacy regulations (45 CFR 164.512[e][1][i] and 45 CFR 164.508). In each case the trial courts granted the applications, reasoning that by instituting the malpractice actions the plaintiffs put their respective medical conditions in issue and the defendants were entitled to interview the treating physicians. In all cases, however, the trial courts carefully qualified the authorizations not only to limit the scope of counsels' inquiries to specific germane issues but also to assure that counsel promptly would provide adversaries with information and documents disclosed. 1 In each of the cases the Appellate Divisions in the Second and Fourth Departments reversed, concluding in effect that the parties were limited to the discovery devices established in CPLR Article 31 as complemented by relevant provisions of 22 NYCRR 202.21(d). The Court of Appeals first discussed, with considerable approbation, the benefits and values of `informal discovery of a nonparty treating physician'. It reviewed precedent supporting the use of this `device' in contexts other than medical malpractice and concluded that it saw no reason why the rationale supporting its use should not apply in the cases at bar: Plaintiffs counter that informal interviews of treating physicians are nonetheless impermissible because article 31 of the CPLR and part 202 of the Uniform Rules do not identify them as a disclosure tool. But there are no statutes and no rules expressly authorizing -- or forbidding -- ex parte discussions with any nonparty, including the corporate employees in Niesig and the former corporate executive in Siebert. Attorneys have always sought to talk with nonparties who are potential witnesses as part of their trial preparation. Article 31 does not `close off' these `avenues of informal discovery,' and relegate litigants to the costlier and more cumbersome formal discovery devices. As the dissenting Justices pointed out in Kish, choking off informal contacts between attorneys and treating physicians invites the further unwelcome consequence of `significantly interfering with the practice of medicine': `[i]nstead of communicating with an attorney during a 10-minute telephone call, a physician could be required to attend a fourhour deposition or to provide a time-consuming response to detailed and lengthy interrogatories (citations omitted) The court then reviewed the applicable provisions of HIPAA, pointing out that the HIPAA privacy rule allows (but does not mandate) disclosure: in numerous circumstances as regulated by its provisions (45 CFR 164.502[a][1]). Uses and disclosures qualifying as permissive under the Privacy Rule are just that -- for purposes of compliance with

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THE SUFFOLK LAWYER -- JANUARY 2008

SECOND CIRCUIT BRIEFS

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"Then You Should Say What You Mean"

1

___________________

By Eugene D. Berman This month we discuss two decisions that the United States Court of Appeals for the Second Circuit issued in December 2007.

An Implicit Ruling

The Second Circuit has long recognized that interlocutory orders, since they are merged into a district court's final judgment, may be reviewed on appeal. 2 In Fielding v. Tollaksen, __ F.3d __, 2007 WL 4322436 (2d Cir. 2007)(decided December 12, 2007), the Second Circuit for the first time addressed the appealability of a submission that had not been explicitly decided when the district court entered its final judgment. Plaintiff Fielding moved to amend her complaint to add additional defendants. The district judge referred the motion, as well as the defendants' various motions to dismiss and for summary judgment, to a magistrate judge.3 Thereafter, the magistrate judge issued an order denying the motion to amend, and a Report and Recommendation ("R&R") that the dismissal and summary judgment motions be granted. Fielding submitted timely objections to each. The district judge, based on the R&R, granted the defendants' motions without explicitly referring to Fielding's objections to the magistrate judge's denial of her motion to amend. The district court then entered judgment against Fielding. On appeal, and in examining its appellate jurisdiction, the Second Circuit looked to Fifth and Tenth Circuit decisions that treated district judges' silence as implicit refusals to overrule magistrate judges' orders.4 Those courts had reasoned that a district judge's dismissal or summary judgment order could reasonably be interpreted as a conscious, albeit silent, decision to overrule pending objections to a magistrate judge's non-dispositive order. The Second Circuit, viewing the Fifth and Tenth Circuit decisions as comporting with its own approach concerning interlocutory orders, held that the district court's judgment functioned as a final order that overruled Fielding's objections.5

Follow our lead.

An Inexplicit Demand

In Silge v. Merz, __ F.3d __, 2007 WL 4258729 (2d Cir. 2007)(decided December

Bruce A. Mina, CPA/ABV, MS, CV, BVAL Director of Business Valuations & Divorce Consulting Brian Carlson, JD, CPA, CFE Director of Fraud and Forensic Robert S. Peare, CPA Director of Estate & Taxes C E RT I F I E D P U B L I C AC C O U N TA N T S | BU S I N E S S A DV I S O R S 1393 Veterans Memorial Highway, Suite 210N Hauppauge, NY 11788 | 631-360-1700 276 Fifth Avenue, Suite 1007 New York, NY 10001 | 212-532-9444

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6, 2007), plaintiff Silge requested a judgment, as set forth in his complaint's demand clause, "in the sum of $1,153,545, on either the first or second counts, together with costs and disbursements Eugene D. Berman and such other and further relief which this Court deems just and proper." 6 After the district court entered the defendants' default. Silge's submission concerning the proper amount of damages included a request for pre-judgment interest, although, as set forth above, he had not explicitly requested that relief in his complaint. The district court rejected Silge's request since Fed. R. Civ. P. 54(c) prohibits a default judgment from containing an award that exceeds the amount prayed for in a complaint's demand for judgment.7 On appeal, Silge urged that his demand for pre-judgment interest was implicit in his complaint's demand for "such other and further relief which this Court deems just and proper." 8 In reaching its decision, the Second Circuit quoted from Wright, Miller, and Kane's explanation that Rule 54(c)'s distinction between default and contested judgments is grounded in fundamental fairness since a "defending party should be able to decide on the basis of the relief requested in the original pleading whether to expend the time, effort, and money necessary to defend the action." 9 In this regard, the Second Circuit characterized Rule 54(c) as "a sensible rule", stating: Because complaints can be long and intricate, a lawyer is often required to help a defendant gain a full understanding of the plaintiff's claims. By limiting damages to what is specified in the `demand for judgment,' the rule ensures that a defendant who is considering default can look at the damages clause, satisfy himself that he is willing to suffer judgment in that amount, and then default without the need to hire a lawyer.10 After reviewing Rule 54(c)'s clear language and purpose, the Second Circuit rejected Silge's argument and affirmed, holding that the rule "permits neither

(Continued on page 22)

NOMINATIONS SOUGHT FOR BAR ASSOCIATION LEADERS

Are You A Leader? Would You Like To Be?

Members who wish to be considered for nomination as Officers or Members of the Board of Directors of The Suffolk County Bar Association should submit a written request and resume highlighting your bar activities to the Executive Director or to any member of the Nominating Committee The Nominating Committee is accepting applications from interested members for the positions of Secretary and Board of Directors. There are also two openings for members of the Nominating Committee (past presidents and former directors are eligible for these positions, with a term expiring 2011). Four Directors will be elected to a three-year term ending 2011 at the annual elections held on May 7, 2008. Members of the Nominating Committee are: J. David Eldridge, Scott M. Karson, Louis E. Mazzola, Scott M. Mishkin, Robert F. Quinlan, George L. Roach, John L. Buonora, John L. Juliano and William J. Porter. ­ Arthur E. Shulman, Secretary

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THE SUFFOLK LAWYER -- JANUARY 2008

11

DMV/DWI

Eligibility For Conditional Licenses

Vehicle & traffic law §1196 and 15 NYCRR Part §134.7 ____________________

By David A. Mansfield David A. Mansfield

NEED SOLUTIONS

A key question for defense counsel is whether your client will be eligible for a conditional license as a result of an alcohol related driving conviction. Generally, a first offender will be issued a conditional license by the Department of Motor Vehicles absent any aggravating facts and circumstances. Because different criteria determine the eligibility, the court may grant your client a hardship privilege as authorized by §1193(2) (e)(7) and can be denied a preconviction license under §1193(2)(e)(7)(d), and a post-conviction conditional license as per §1196. Experience has proven however, that these types of cases are the rare exception rather than the rule. Your client can be found eligible for the Drinking Driver Program but not, the conditional license. Further information can be found in §1196 of the Vehicle & Traffic Law and more particularly the New York Codes, Rules and Regulations Title 15 Part §134.7. Common sense disqualifications include that the incident (which gave rise to the eligibility for the Drinking Driver Program), was based upon being an operator in a fatal accident as per 15 NYCRR Part§134.7(a) (1). And your client will not be granted a conditional license if they do not have a valid New York State driver's license which is not renewable most likely because either the license has expired more than two years or there are other reasons they do not have a valid license under Part§134.7 (a)(3). A rare but equally interesting recent situation was where the client was granted a hardship privilege only to learn that their eligibility for a pre-conviction license, (which serves as a reliable indicator of the granting of a post conviction conditional license) was denied. It was denied because the person had two or more revocations or suspensions of their driver's license other than the alcohol driving related incident upon which their eligibility for the Drinking Driver Program was based within the past three years as set forth in Part §134(a)(5). Suspensions for failure to appear, failure to answer, failure to pay fines for Driver Responsibility Assessments, or even refusal to submit or suspension or revocation resulting from suspension pending a hearing or a revocation as a result of a finding of a Chemical Test Refusal arising out of the same incident will not bar the issuance of a conditional license unless otherwise disqualified. Please see 15 NYCRR Part §134.7a (5). If your client has been convicted more than once of reckless driving in the three years prior to application, they will not be granted a conditional license as per 15 NYCRR Part §134.7a(6). Your client will be unable to obtain a conditional license if they have a poor driving record with a series of convictions, incidents or accidents under 15 NYCRR Part §136.1 and Part §136.6. This provision would be applied most often if you client has repeated incidents of driving while suspended within the three years prior to application of the conditional license or has an inordinate number of nonmoving violation convictions such as improper use of mobile phone and failing to wear a seat belt as a driver. If your client has accumulated in excess of half a dozen such

convictions the weighted safety factors as scheduled under 15 NYCRR Part §136.6 it may prevent them from being issued a conditional license. If your client has been convicted for §1193-d (1) offenses, special vehicles that involves the operation of a taxicab, livery or carrying a vehicle passenger for hire or a truck between 18,000 and 26,000 pounds, they would be disqualified from a conditional license. And if they were convicted of a violation of subdivision 2, 2(a), 3, 4 or 4(a) of §1192, a misdemeanor or higher offense for a special vehicle. This would be found under 15 NYCRR Part §134.7.1(a)(8). When your client fails to satisfactorily complete all phases of Drinking Driver Program, which results in the mandatory revocation of their conditional license, they may apply for reinstatement only once and be granted restoration of their conditional license. A second or a subsequent reinstatement will not be granted a conditional license Part§134.7 (a)(9). Your client has been suspended for a conviction under §510(2)(b)(v) for a misdemeanor or felony drug possession offense and may be eligible for a restricted license under Part §135. The mandatory six-month suspension may be waived at the time of sentencing if you can convince the court of compelling circumstances in a brief pre-sentence hearing. Three or more alcohol related convictions within the last ten years would prevent eligibility for a conditional license. Please further note that if your client has three separate alcohol related driving convictions within the past four years they may be subject to permanent revocation under §1193(12). Should your client have been operating a motor vehicle while under the influence of alcohol or drugs and was a holder of a limited DJ or a limited MJ license at the time of the violation, which resulted in the suspension, or revocation they will not be eligible for a conditional license as provided under Part§134.7 (a) (12) The five-year rule is that the person during the five years preceding the conviction of an alcohol or drug related offense or finding of a violation of §1192(a) zero tolerance, participate in the alcohol drug program and having been convicted of any violation of §1192, including a finding under §1192-a. Finally, if a person is in the DDP issued a conditional license but prior to re-issuance of conditional license information received by a department that such person was not eligible for a conditional license at that time their license will be revoked as required by Part 134.7(a)(13). The best advice you could give your client is that in the ordinary first offense situation that they will be eligible for a conditional license, unless they were a holder of a Class DJ or MJ license at the time of the incident or violation or have a poor driving record, especially if the charge is reduced to driving while impaired or if they are sentenced to a conditional discharge on a driving while intoxicated conviction. Defense counsel would be well advised to obtain a copy of 15 NYCRR Part §134 as a valuable reference tool to properly advise their client. Note: The author practices in Islandia and is a frequent contributor to this publication.

?

www.bcslawfirm.com

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.

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

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* 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.

12

THE SUFFOLK LAWYER -- JANUARY 2008

QUEENS COUNTY COURT CASES

Resolve your Queens cases by putting our 20+ years of experience in Queens to work for you and your client.

______________________ By Ilene Sherwyn Cooper

TRUST AND ESTATES UPDATE

Law Offices of

Michael A. Cervini, P.C.

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obligors. The individual-respondent owned an interest in the Attorney-Client Privilege entities and signed three of the notes as "president." However, In Matter of Kaminester, the neither one of the corporateappeal was taken from an respondents were parties to the Order of the Supreme Court, partnership agreements. New York County (McCooe, Based upon the foregoing, the J.) which, inter alia, directed court concluded that the arbitrathat the respondent's former tion clauses in the partnership counsel appear and testify as agreements did not apply to the Ilene S. Cooper to conversations with the promissory notes involving the respondent in an ongoing hearing to corporate-respondents, and more particudetermine whether the respondent should larly, that the decedent had not expressly be held in contempt of court. agreed to arbitrate claims related to the The application for contempt was promissory notes. Accordingly, the court based upon certain conduct allegedly held that the Surrogate's Court properly engaged in by the respondent in violation determined that the petitioner could not of a temporary restraining order that be compelled to arbitrate claims on those directed her not to accept any funds or notes. financial benefit from the decedent pendMatter of Miller, 40 A.D.3d 861 ing the outcome of a guardianship pro(N.Y.A.D. 2d Dep't, May 15, 2007). ceeding on the decedent's behalf. Subsequent to the issuance of the order, Order Granting the decedent changed his life insurance Summary Judgment in policy to name respondent as beneficiary Discovery Proceeding Affirmed and deeded his vacation home to himself and respondent as joint tenants, and marIn a discovery proceeding pursuant to ried respondent. SCPA 2103 to recover certain property The Appellate Division found that withheld from the estate of the decedent, since there was no testimony as to any the petitioners appealed from so much of consultation between respondent and her an Order of the Surrogate's Court, attorney prior to the alleged fraudulent Suffolk County (Czygier, S.) which, inter transactions in issue, the Supreme Court alia, granted summary judgment in erred in ordering counsel to testify as to respondents' favor dismissing those porcommunications with her former client in tions of the petition asserted against them. violation of the attorney-client privilege. The decedent purchased three annuities Moreover, the court held that there was in the year and a half prior to his death, no evidence that the attorney-client priviwhich paid him income only, with no lege had been waived, as respondent death benefit. The petitioners alleged that never placed the subject matter of her the decedent's insurance broker, who was conversations with counsel in issue. also his financial advisor, made certain Matter of Kaminester, 841 N.Y.S.2d fraudulent representations to him that st Dep't, Sept. 20, 587 (N.Y.A.D. 1 induced him to purchase the annuities. 2007). The insurance companies that issued the policies were also made party-responThe Enforceability of dents to the proceeding. Arbitration Clauses In affirming the Order of the Surrogate's Court, the Appellate Division During the course of a probate profound that the respondents had made a ceeding, the executor of the estate instiprima facie showing of entitlement to tuted a proceeding against several named judgment as a matter of law, that no misrespondents -- one individual and three representations were made to the dececorporations -- to discover property purdent, and that he purchased the annuities portedly withheld from the decedent's as part of his overall financial plan. The estate based upon promissory notes exeCourt concluded that the petitioners had cuted by the decedent prior to his death. offered nothing beyond mere surmise and The petitioner moved to stay arbitration conjecture to support their claims, and of the claims related to the notes and the therefore, summary judgment dismissing respondents cross-moved to compel arbithe petition insofar as asserted against the tration. The Surrogate's Court, Queens respondents was proper. County (Nahman, S.), granted petitionMatter of Valentin, 841 n.Y.S.2d 781 er's motion and an appeal was taken. (N.Y.A.D. 2d Dep't., Sept. 11, 2007). In affirming the Surrogate's Order, the Appellate Division held that while arbitraNote: The author is a partner with the tion is favored as a means of resolving dislaw firm of Farrell Fritz, P.C., where she putes, and that courts will interfere as little concentrates in the field of trusts and as possible with agreements to arbitrate, estates. In addition, she is First Vicethis policy is counterbalanced by the fact President of the Suffolk County Bar that a party who agrees to arbitrate waives Association and a member of the many of his rights under the procedural Advisory Committee of the Suffolk and substantive law of New York. Academy of Law. Accordingly, a party will not be compelled to arbitrate without evidence that affirmatively establishes that the parties expressly agreed to arbitrate their disputes. The record on appeal revealed that the At our Holiday Party held at the dispute between the parties involved partBar Center on Friday, December nership agreements between the decedent 7th, one of our guests lost a denim, and the individual party-respondent. The fur lined full length coat. Please agreements were entered by the parties in contact the Bar Center if you have their individual capacities and had broad any information relating to this arbitration clauses. Thereafter, four missing coat. promissory notes were signed in which two of the corporate-respondents were

Notice

THE SUFFOLK LAWYER -- JANUARY 2008

13

______________ By Jane LaCova

SCBA Honors Suffolk County's New Judges

Photo credit: Arther Shulman

Suffolk County's District Administrative Judge H. Patrick Leis III presided over a time-honored tradition rooted in the amicable relationship our Bar Association shares with members of the judiciary at every level. At ceremonies held January 7, at Touro Law Center in Central Islip, judges, who are beginning new terms following their elections last November, were introduced to an audience of colleagues, family and friends and administered the Oath of Office. The event evoked laughter and tears when candidates and sponsors shared both personal memories and amusing stories. All of the judges inducted expressed the same sentiment ­ a strong love for the law, and justice for all. The ceremony began with an honor guard of Court Officers who marched in to present the colors and then formally stood watch throughout the proceedings. President Barry M. Smolowitz welcomed the audience and thanked Dean Lawrence Raful for allowing the SCBA to hold its ceremony in the beautiful auditorium of the new law center. He then introduced former SCBA president George L. Roach who delivered a moving invocation. Following the Pledge of Allegiance, SCBA Director John Zollo sang "The National Anthem." President Smolowitz introduced Justice Leis who dedicated the ceremony to Ken Grabie, a "special man" who touched many lives and who had a

SCBA President Barry Smolowitz welcomed everyone to the Robing ceremony.

great influence on him, especially in the Guardianship Part. He reiterated the Bench's special relationship with the Bar, which is very different from most counties. Judge Leis told the audience that this event continues the longtime tradition of the SCBA to present newly elected or appointed justices and judges with their first set of judicial robes. He said he still had his robe, but that he was not wearing it to this particular event as it was a little frayed after so many years. He thanked the justices and judges who took time out from their busy schedules to attend this

special ceremony and mentioned the wisdom of King Solomon, a wise judge, and spoke about the great responsibility of being a judge; he expressed disappointment at the injustice of the judiciary in not receiving a salary adjustment or cost of living increases in the last 20 years. The first presentation was the introduction of retired Justice of the Supreme Court Mary M. Werner who sponsored newly elected Family Court Judge Theresa Whelan. Judge Whelan, who worked for Justice Werner as a law assistant for 11 years, also worked for other

justices in the court system for the last 17 years. They shared a special bond and Judge Werner said she was honored to be called upon as her sponsor. Following Judge Whelan's response, Judge Leis administered the Oath of Office to her. President Smolowitz then presented Judge Whelan with her first set of judicial robes. Judge Leis introduced the Honorable Steven C. Bellone, Supervisor of Babylon Town, who grew up with District Court Judge Dennis Cohen and regaled the

(Continued on page 15)

LAMB&BARNOSKY, LLP

ATTORNEYS

AT

LAW

Honorable Michael F. Mullen is a graduate of Fairfield University and St. John's University School of Law. After law school, he served as Law Clerk to Justice Fred J. Munder of the Appellate Division, Second Department, and then opened his own general law practice in Huntington. He served as Special Counsel to the Town's Zoning Board of Appeals, as Counsel to State Senator Bernard C. Smith and then Assistant Counsel to the Senate Majority Leader, Warren M. Anderson. In 1987, he was appointed to the New York Court of Claims. During the next 20 years Judge Mullen served as an

We are pleased to announce that

Hon. Michael F. Mullen

and

acting State Supreme Court Justice in Suffolk County, where he presided over countless high profile cases and wrote a key opinion in the environmental law case, Matter of Gazza v. Department of Environmental Conservation, which was ultimately affirmed by the Court of Appeals, the State's highest Court. He retired from the bench in August

2007. Judge Mullen will serve as counsel to the firm and help lead our litigation department and will be available to the profession for Alternate Dispute Resolution. Virginia Medici Wylly graduated magna cum laude from Brooklyn College with Honors in Psychology. She received her law degree from Brooklyn Law School in 1982. After law school, she joined the U.S. Small Business Administration ("SBA") in Manhattan where she administered agency programs and closed commercial loans. She was appointed Special Assistant United States Attorney for the Southern and Eastern Districts of New York. In 1993, she rejoined the SBA as Branch Counsel of its Melville office. In 2005, she entered private practice in Woodbury. For her work on behalf of small businesses on Long Island, she has received awards from the Long Island Development Corporation, the SBA, Senator Charles Schumer and the County Executives of Nassau and Suffolk.

Virginia Medici Wylly

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Victor A. Adefuye graduated from Duke University with a B.A. in Political Science and a minor in Economics. He received his law degree from George Washington University Law School. While in law school, he interned for the Honorable Leonard Austin of the New York State Supreme Court in Nassau County. He also worked as a law clerk in the antitrust division of the United States Department of Justice in Washington, D.C.

14

THE SUFFOLK LAWYER -- JANUARY 2008

THIS COLOR CENTERFOLD HAS BEEN MADE POSSIBLE

Photo credit: Arthur Shulman

Attorney Robert A. Macedonio introduced Judge Crowley.

Babylon Town Supervisor Steven C. Bellone grew up with District Court Judge Dennis Cohen.

Judge Kevin J. Crowley received a plaque from President Smolowitz.

SCBA director John Zollo sang "The National Anthem."

Judge Lozito received a plaque from President Smolowitz.

President Smolowitz and Administrative Judge H. Patrick Leis III.

Retired Justice of the Supreme Court Mary M. Werner sponsored newly elected Family Court Judge Theresa Whelan.

FREEZE FRAME

Photo credit: John Zaher Photo credit: The Arden Family

Isabella Juliet Zaher was born on October 25, 2007. She is the daughter of SCBA member John Zaher and his wife Christina.

Emma Jaye Arden was born on December 21, 2007. She is the granddaughter of SCBA past president Harvey Besunder and his wife Arline.

THE SUFFOLK LAWYER -- JANUARY 2008

15

THROUGH THE GENEROSITY OF ENRIGHT COURT REPORTING, INC.

Years Past Robing Ceremony

Photo credit: SCBA archives

SCBA President Lester Lipkin robing Judge Charles Tomasello in a Robing ceremony 1976. (Continued from page 13)

Judge Nicolette Pach being robed by SCBA President Tom Spellman in 1993.

audience with some childhood memories. He said Judge Cohen was a family man, a friend, and a man who cares deeply for people. Supervisor Bellone said his friend personified what it means to be a public servant. Following Judge Cohen's response, President Smolowitz on behalf of The Suffolk County Bar Association presented him with a judicial robe. No robes were necessary for veteran jurists' Hon. Kevin J. Crowley and Hon. Gaetan B. Lozito who were reelected to the District Court Bench for six-year terms. Judge Crowley was introduced by attorney Robert A. Macedonio and Judge Lozito was introduced by her attorney husband Eric R. Landau. President Smolowitz presented them, on behalf of the SCBA, with engraved plaques commemorating the occasion. In addition to Judge Dennis Cohen, the District Court saw another new judge take the oath of office, the Honorable Chris Ann Kelley. Judge Leis was her sponsor, sharing how they met when she interviewed for a court position. He said that he hoped Judge Kelley would enjoy the role of judge as much as he did. Judge Leis said there might be some confusion and one would have to be quite specific when calling a judge these days, as we now have two Judge Kelleys, two Judge Cohens and two Judge Whelans. Judge Kelley said in her remarks that Judge Leis became her mentor and inspired her in her pursuit to become a judge. Before administering the Oath of Office to the District Court Judges, the Supervising Judge of the District Court Madeleine A. Fitzgibbon said how proud she was of the judges. She spoke of the huge caseload in the District Court and how judges had to push and be efficient to ensure that justice was administered to the citizens of Suffolk County. Judge Leis concluded by thanking his friend retired Supreme Court Justice Tom Stark for coming out to honor Judge Kelley and the other judges being sworn in at this wonderful ceremony.

Robing Ceremony 2008

Photo credit: Arthur Shulman

Administrative Judge H. Patrick Leis III congratulates the Honorable Chris Ann Kelley.

Babylon Town Supervisor Steven C. Bellone congratulates Judge Dennis Cohen.

Family Court Judge Theresa Whelan is presented with a robe by President Smolowitz.

President Smolowitz, left, congratulates the Honorable Kevin J. Crowley

Honorable Gaetan B. Lozito

District Court Judges Dennis Cohen, Chris Ann Kelley, Gaetan B. Lozito and Kevin J. Crowley are sworn in.

District Court Judges Dennis Cohen, Chris Ann Kelley, Gaetan B. Lozito and Kevin J. Crowley received a round of applause.

16

THE SUFFOLK LAWYER -- JANUARY 2008

HOT PICKS

What Is The Color, When Black Is Burned?

Neil Young at the Historic United Palace Theater _________________

By Dennis R. Chase

I've seen a great many shows, many of them, well, quite unforgettable. Never before, however, did I come away with the feeling that I just witnessed a living legend. That feeling was replaced with the complete euphoria I experienced on December 19, 2007 at the historic United Palace Theater when Neil Young played the final show of his sold-out six-show run of his Chrome Dreams II (Neil Young, 2007) Continental Tour. (By the way, much thanks to the unbelievable love of my life, Sheri, for a birthday gift not soon to be forgotten.) The United Palace Theater, which is celebrating its 77th anniversary having opened February 15, 1930, seats only about 3,300 people and was the perfect venue to enjoy such a living legend. In 1969, current owners, Christ United Church, restored this former Loew's Theater to the jeweled treasure it is today. Located at 4140 Broadway at 175th Street, this Washington Heights landmark should be experienced. One clearly feels as though they've taken a step back in time the moment one walks through its narrow entrance. While not exactly Radio City Music Hall (one of the greatest venues, at least sonically, to experience live music), the grandeur, the ornate elegance, and the nostalgia of the venue certainly far surpasses other more oft-visited musical ones. I'm only sad I missed Van the Man Morrison who played there in October. Wow. Neil's wife for nearly three decades, Pegi Young, opened the show and although most in attendance boozed in the lobby during her delightful set, those fortunate enough to take their seats were not disappointed. Pegi, who also performed with Neil providing both background vocals and vibraphone, performed many of the tunes from her debut CD (Pegi Young, Pegaroo Music 2007), including Fake, a song she wrote over the past five years wherein she articulates maintaining one's own identity in a long term relationship. She also covers I'm Not through Loving You Yet, a little known ballad by Dan Penn and Spooner Oldham. My favorite, however, the mid-tempo epic White Line in the Sun, chronicling her cross-country hitchhiking trip with her husband fully engaged the crowd she had already clearly won over. Opening acts are more often than not referred to as the warm-up band . . . and Pegi warmed... yes she did. I'm glad we were so warmed. The night, however, belonged to Neil who opened with a 50 minute acoustic set that featured him amongst a ring of well crafted, well worn, and beautifully played guitars, a banjo, his grandmother's upright piano, and a synthesizer. Although at times appearing to be ambling from piece to piece, he always knew the direction. Here's where Neil shined. Opening with From Hank to Hendrix, moving soulfully in to an inspired version of Ambulance Blues, Neil filled the theater in a way no other performer could dream of. A New York Times music critic referred to Neil's body language as "casually deliberate." My personal favorite, however, Harvest, was carefully woven with spun gold of emotion. While I didn't want the acoustic set to end . . . bring on the band . . . and the

Neil Young rocked the house at the Historic United Palace Theater.

white hot plugged in set. Although not playing with Crazy Horse, Neil's longtime companions and much larger band, the band was at least Crazy Horse-like. Ralph Molina, a Crazy Horse member since its inception in 1962 (when they were Danny & the Memories), served as the drummer for Neil Young tonight, adding backup vocals as well. Ben Keith, a session musician in the late 1950's and 60's, played the pedal steel guitar, the lap steel guitar, and organ while also contributing background vocals. Keith has been jamming with Young since the release of Harvest, Young's third solo effort in 1971. He's also, however, played with other rock n' roll legends including The Band, David Crosby, Graham Nash (in fact touring with Crosby Stills Nash & Young on their 2006 Freedom of Speech tour). Rick Rosas provides solid bass guitar having also worked

with a slew of other greats including Joe Walsh, Johnny Rivers, & Etta James. Anthony Crawford rounded out the band adding piano and background vocals. Crawford has the Dennis R. Chase respect and admiration of Nashville for collaborating with such greats as Vince Gill, Dwight Yoakam, and Nicolette Larson. Perhaps the finest songs Neil delivered, he delivered with an instrument he calls Old Black, a black 1953 Gibson Les Paul with an aluminum pick guard and a Bigsby vibrato bar. Nothing sounds more like Neil than his coupling of Old Black with his small Fender Deluxe amplifier rightfully bringing him the title of the "godfather of grunge." Although totally enjoying longtime favorites like Cinnamon Girl and Cortez the Killer (a song banned by Franco in Spain for its outward retelling of the Spanish conquest of Mexico from the viewpoint of the Aztecs), the quintessential moment of the evening came from his 18 minute version of No Hidden Path (from his latest release), taking on even more relevance as our country decides upon their next leader . . . Show me the way and I'll follow you today... and with you I feel no hidden path. Few can match Neil in the moment of a soul casing the stage like a caged lion, feeding on his guitar; it was a sight and sound to behold.

Neil turned 63 on November 12 and his music career spans over 42 years beginning with his days with Buffalo Springfield, segueing into Crosby, Stills, Nash & Young, and still going strong with his solo years. He's released a staggering 45 albums, not including compilations, live albums, nor any part of his archival series, and produced the soundtracks to five films. He's been inducted into the Canadian Music Hall of Fame and twice inducted in to the Rock and Roll Hall of Fame (for both his solo efforts and his work in Buffalo Springfield). He's directed four movies, is one of the founding fathers of Farm Aid (and remains on their board of directors), has been nominated for an Oscar for his song Philadelphia from the film Philadelphia and is a part owner of Lionel, LLC and co-owner of seven patents related to model trains . . . and recently survived a near fatal brain aneurysm. Neil and his wife Pegi co-founded The Bridge School, which assists mentally and physically challenged children. From the very moment Neil stepped on stage, the entire crowd was willing to follow and no one believed there to be any hidden paths. Calling Neil a legend may be a bit of an understatement, but until we come up with a better word... living legend will have to do. Note: The author is a former Director of the Suffolk County Bar Association, a regular contributor to The Suffolk Lawyer, and a partner with the Law Offices of Braunstein & Chase, 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.

BOOK REVIEW

Lawyer Lighten Up!

You've never read Perelman???!!!

Eastward Ha!

By S.J. Perelman 126 pp. Burford Books

_______________________ By William E. McSweeney

That vague, uneasy feeling experienced by the tourist unhappy with France--the feeling that "they" are out to make his stay miserable--has finally emerged from the dark realm of presumed paranoia into the daylight of rationality. No less an eminence and respected world traveler than S. J. Perelman himself stated, shortly before his death, that such a suspicion is not at all groundless. Perelman nonetheless remained an unreconstructed Francophile. As such, he understood that--no matter the lovers' spat of a given moment--Americans, visà-vis La Belle France, must simply play out our foreordained role in a long-running film noir, that of clueless, gullible male to seductive, self-centered, mercenary female, a noir that, as noirs do, invariably ends in betrayal and heartbreak. (Think of that quintessential noir, "The Killers"-- Universal, `46--and Burt Lancaster's "Swede" to Ava Gardner's Kitty.)

On successive visits to France, Perelman took masochistic delight in discovering the new, improved models of sadism awaiting him. Indeed, William E. Perelman knew that McSweeney the French themselves say it best: Plus les choses changent, plus elles restant les memes The more things change, the more they remain the same. At all events, in his, (alas), final collection of essays, entitled Eastward, Ha!," Perelman maintains that, in France, plots against the tourist are not haphazardly concocted by an amorphous, uncoordinated "they"; au contraire, mes amis, plots are efficiently intituted at the highest level--within the very precincts of Elysee Palace--and "they" are no less than "his tall elegance Valery Giscard d'Estaing...and his council of ministers." In "Paris On Five Dollars A Day," Perelman has a gleeful Giscard approve his ministers' plans for sabotage: "This longtime visitor to our shores (Perelman) will find our fiendishness unchanged," Giscard states, "all the torments a

Torquemada could invent still bugging him." (Who else but Perelman would have had the chutzpah to put words into the mouth of a living president--the President of France, yet!) The government's stratagem is put into operation within minutes of Perelman's checking into the Hotel of the Cheap Valises. "I...divested myself of my threads, and prepared to shower. Forthwith I discovered (as one should have remembered) that soap was never supplied in France, fats being conserved exclusively for soups...as I turned on the cold water to rinse...a gush of steam jetted from the shower head and I sprang outward in a leap that would shame a Watusi tribesman." Later, having left the hotel, and passing "workmen (who) tore up paving in preparation for the tourist influx...I deposited my wash at a blanchisserie that promised to insert plenty of staples in the briefs." France was one of ten locales that the humorist visited during his final excursion, an eight-month eastward journey; the other places toured were the United Kingdom, Russia, Turkey, Israel, Iran, Malaysia, Indonesia, Tahiti, and darkest Los Angeles. In each location, to hear Perelman tell it, he suffered pain--psychic, emotional, physical. Of course, as ever, Perelman's pain is the reader's pleasure. Further examples: In Moscow, "as a result of being dragged through too many monasteries, I absorbed more

(Continued on page 20)

THE SUFFOLK LAWYER -- JANUARY 2008

17

PRO BONO

Pro Bono Attorney of the Month: Harold Seligman

_______________ By Rhoda Selvin

We·ve got a

Most of Harold Seligman's business is with affluent, often corporate clients, so he is happy to take on the bankruptcy clients sent to him by the Pro Bono Project's Bankruptcy Clinic. Since his first such case in 1990, he has spent 168 hours on the 29 cases he has concluded and has four still open. Indeed, once he joined the PBP panel he has never been without at least one case in process. For this record he has been named Pro Bono Attorney of the Month for January 2008. The satisfaction he derives from his PBP work, he explained, "gives me an opportunity to help some people who have gotten a short stick in life. They are very grateful, nice people -- and it's good for my soul." In a case he found especially interesting his client was a single mother who was unable to pay back her student loans. She worked as a nurse's aide in a nursing home until her father became seriously ill. She had to give up her job in Suffolk County and move to the trailer park in Florida where her parents lived to help her mother. Much as she wanted to, under these circumstances, even when she came back to Long Island she was unable to meet her student loan payments and came to PBP for help. Taking on her case, Seligman sought to persuade the United States government to forgive the loans because of her indigence. He was fortunate to deal with a United States Attorney who told him about a program in the Department of Education that is set up to help people who legitimately cannot pay these loans. Although acceptance in this program is difficult to achieve, Seligman succeeded in enrolling his client; her loan was reduced to what she could pay. "She was able to retain her dignity," he said. Seligman graduated from Northeastern University in 1968 and from Brooklyn Law School in 1971. His first job was with a Wall Street firm, where he concentrated on criminal law. He worked behind the scenes for the famous Knapp

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Commission, which was chaired by one of the firm's partners, Whitford Knapp. His next job was with the Legal Aid Society in New York City, doing much trial work over two or three years. Then he moved to Long Island and worked for several firms, first continuing in criminal law and then switching to business law. In 1982 he and several other attorneys he had worked with started the firm now known as Long, Tuminello, Besso, Seligman, and Werner, which is in Bay Shore. A member of the Suffolk County Bar Association, he is a member of the Banking and Commercial Law Committee, the Bankruptcy Committee in 1991-1993, and has lectured for the Suffolk Academy of Law. He also belongs to the New York State Bar Association, the American Bar Association, and the American Bankruptcy Institute. Seligman, who is a golfer and a jogger, and his wife Elise have been married for 38 years. She is a substitute teacher, their son David works in the financial field in Florida, and their daughter Lauren works for a hedge fund in New York. His enthusiastic, dependable, and effective work with the indigent has led Harold Seligman directly to being the Pro Bono Attorney of the Month. The Pro Bono Project is proud to honor him.

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THE SUFFOLK LAWYER -- JANUARY 2008

AMERICAN PERSPECTIVES

Voter Identity and the Right to Vote

_________________ By Justin Giordano

The United States Supreme Court agreed, as part of the slate of cases it plans on adjudicating during its current 2007-08 term, to hear a highly charged case on September 25, 2007. The case has the potential for significant ramifications for the 2008 presidential elections and for many elections at all levels beyond that. The justices are expected to hear the case in January of 2008 and render their decision by the end of June of 2008. The issue at hand for the high court is the following: "Can states require voters to present government issued photo ID before they are allowed to cast a ballot?" The specific cases at issue, which will be consolidated into one for the purposes of the court, involve two Indiana cases namely, "Crawford vs. Marion County Election Board" and "Indiana Democratic Party vs. Rokita." The U. S. Court of Appeals in Chicago upheld the pertinent Indiana law, which went into effect in 2005, and was applied in both of the aforementioned cases, by a two to one majority vote. Similar laws have been upheld at the federal appellate level in the states of Georgia and Arizona, while blocked in the state of Missouri. This voter ID issue has been gaining momentum since 2002 and at present seven states have enacted laws that require voters to present government issued photo ID's prior to casting their ballot. In addition, another 17 states require voters to produce government issued ID's that don't include a photo of the voter, a birth certificate, or naturalization certificate, before an individual is permitted to vote. The Indiana lawsuits were brought by the ACLU [American Civil Liberties Association], the NAACP [National Association for the Advancement of Colored People], and other groups including the Indiana Democrat Party. Their principal arguments revolve around the issue of disenfranchisement of a number of voters, mainly the least empowered,

less educated, and those residing at the lowest echelons of the economic ladder. In sum... those most vulnerable among us. They thus argue that many in this group(s) do not have driver's licenses because they don't drive, often because they can't afford an automobile. Similarly they also argue that many in said group(s) do not hold passports because they seldom if ever travel abroad given their lack of disposable funds required for such activities. To add to their argument they will cite data such as the AARP's [American Association of Retired People], which contend that surveys they've conducted show that three percent of elderly eligible voters do not hold driver's licenses. Overall there is data-- offered by other organizations opposing the voter photo ID laws--which indicates that 13 to 22 million Americans of voting age don't hold passports, driver's licenses, and/or any other form of photo-bearing government documents that could be utilized for identification purposes. Consequently, the opponents of the voter photo ID requirement laws contend that the poor and minorities could be discouraged from engaging in the political process based on the impediment such laws would provide. The voting rights act of the 1960s were intended and enacted exactly to level the playing field so to speak and make the voting process easily accessible to all, especially the aforementioned disadvantaged groups such as minorities and the poor. Those opposing the Indiana and similar laws thus applauded the decision by the U.S. Supreme Court to hear the case convinced that their position would be vindicated. Donna Brazile, chair of the DNC Voting Rights Institute, essentially encapsulated this sentiment, if in an ultra politically partisan fashion. Upon hearing the Supreme Court announcement that it would be hearing the case she said that "Unjust and highly restrictive voter ID laws," were part of "a reprehensible partisan scheme to suppress voter turnout." Those supporting the Indiana law

answer that it is those opposing the law that lack any basis for their argument. Certainly, they argue, there are no dilatory effects on any legitimate voting group or individual and that it is indeed the opponents whose arguments are fatuous and unfounded. They point out that in most if not all of the states where laws similar to Indiana's have been put in effect, those states offer free photo ID cards to any voter who needs it. All that is needed is for any individual to ask and they will provide proof of citizenship such as birth certificate, naturalization certificate or any other equivalent document(s). Therefore, as a matter of practicality, there isn't any cost associated with obtaining a valid ID for voting purposes. This is far from being equivalent to the discriminatory and odious "poll tax" that the Voting Rights Act obliterated. The Attorney General of the state of Indiana, Steve Carter, in defending the Indiana law, commented that those challenging the law were exaggerating its effects. "Most telling of all, despite the hue and cry about the supposed burdens of this law," he said, the lawyers who filed suit failed to identify "a single actual voter who could or would not vote because of the voter ID law." The lines have been drawn, accusations have been hurled back and forth, but it's hoped that the Supreme Court will render its ruling based on the rule of law and that the accompanying reasoning and rationalization will follow suit. Putting aside arguments founded on purely an emotional basis, it seems amply clear that voting should be accessible to all that qualify. Undue burdens that would prevent the voter from casting his or her ballot must be eliminated to the fullest extend possible. This does not translate however, into a carte blanche for totally unhindered access to anyone that shows up at the ballot box. This would otherwise degenerate into a de-facto open invitation to fraud. Any voting system that can be infected by fraud is by definition a defective system and the outcomes of said process will

always be tainted or at the very least, it risks being perceived as such. Justin Giordaon Voting is the ultimate means for the individual to voice their say in the running of the nation, state or municipality. It is the lifeblood of a representative republic such as ours and indeed, it can be said to constitute its core. Nowhere in the U.S. Constitution or even other documents that gave insight into the mindset and intent of the founding framers, for example in the Federalist Papers, does it state that voting must be absolutely effortless. In our contemporary society, photo ID's are daily and routinely requested for matters and activities far more mundane and unimportant, as for example to enter a club that has an age restriction policy, to enter some buildings based on security concerns; the list goes on and on. No hue and cry is ever heard about these inconveniences, which at worst are considered extremely minor or merely as nuisances. There are no apparent legal rights that are being curtailed or abridged vis-a-vis the voter in requesting a photo-ID prior to a voter casting their ballot. Unlike the previously cited examples where ID's are routinely requested, voting has distinct and serious consequences, as it should. Ultimately, it would seem the question that clearly beckons is a simple and direct one: "shouldn't the voting process be protected from even the possibility of fraud?" The answer seems evident, particularly given that in the case at hand if a legal cost-benefit analysis were applied, the cost in terms of the imposition on the voter is rather insignificant in contrast to the benefits to be derived, i.e. a voting process free from the actual or even the potential of fraud. Note: The author is a Professor of Business and Law at SUNY/Empire State College. He invites comment on his article at [email protected]

Suffolk County Bar Association Charity Foundation

ing" the cow who is ignominiously called "litigation." While walking into our court complex in Central Islip, I've been handed pamphlets that denigrate our profession. I have witnessed members of the public use bullhorns to "educate" the citizens who are enmeshed in legal procedures at the court complex­ criminal, traffic violations, divorce and personal injury, by denigrating the attorneys who are assisting them. We have been called and are accused of being "ambulance chasers" that "milk" our clients out of there hard earned cash. Its offensive and it is very difficult for any individual attorney to address these barrages of misguided platitudes. Our "Pro Bono" efforts often go unrecognized. munity -- our Suffolk County Bar Association Charity Foundation. The goal of the foundation is to provide needed assistance to the community in areas that are intended to enhance the image and reputation of attorneys. Unlike most charities, over 99 percent of the money collected or earned goes for its intended purpose. This past holiday season we had the first opportunity to pass on to the least fortunate of our community gifts from our bar associations attorneys. After investigation, we found that 100's of families in our community had children that were not going to see what others take for granted at this time of the year; a "gift" for them to open at their holiday celebration. The Suffolk County Department of Social Services (DSS) is well aware of the ghastly impoverishment in many areas of Suffolk County. The workers at DSS, who themselves often go unrewarded for their great efforts, are in direct contact with the less fortunate of our community. We contacted DSS and arranged for the home inspectors of DSS to identify the most needy and pass on to them gift cards for the children. Each of the gift cards had the following inscription on it, "a gift for you from the Lawyers of the Suffolk County Bar Association." The members of our committee will address many other areas in the future. We are hopeful that these endeavors will do what they are intended to do, enhance our image and show the community that we are not what are falsely portrayed in these denigrating platitudes.

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Gifts can be given to honor efforts, accomplishments, or to exalt graduates or for any other reason. In addition to this effort, each year we will be mailing to the members return envelopes addressed to the Foundation that can be used for their tax deductible donations. Remember, it does not have to be hundreds of dollars. A check for five or ten dollars, or more if you can afford it, is all that is needed to be part of this effort. Help us, to help others. It can only benefit your image. Note: The author practices law with his son, Gerard E. Hanshe Esq. at the firm of Hanshe & Hanshe PLLC, Sayville. His primary areas of practice are in the fields of Medical Malpractice, Criminal Law, Estates and Trusts. He is on the Board of Trustees of four non-profit organizations in New York. He has been designated by the Office of Court Administration as an Article 81 Court Evaluator and was recently sworn in as a Court Examiner for the Appellate Division Second Department.

Publication of our Efforts

Each month, the SCBA newspaper, "the Suffolk Lawyer" will have a section for donations to the Foundation to be recognized. For instance, if you wish to donate a gift in memory of a passed loved one, your name and reason for the gift "In memory of "will be published in the paper, but not the amount of money donated.

The foundation's purpose

As an organized group, members of the Bar now have at there disposal a means to enhance the image of lawyers in the com-

THE SUFFOLK LAWYER -- JANUARY 2008

19

President's Message

gone to color where appropriate and have updated the newspaper's "Flag" with our Centennial Ribbon. You will also find we have instituted new stationary. This is an exciting time for all of us, I know you are proud of YOUR association and its accomplishments throughout its years, so, as we plan our future, we will also celebrate our past. In our continuing quest to meet our mission over the years, the SCBA has established various foundations. These include the Lawyer Assistance Foundation, the Pro Bono Foundation, the Suffolk Academy of Law, the Scholarship Foundation, and the SCBA Charity Foundation. Each of these organizations was established to fill a membership or community need. The Suffolk Academy of Law was formed to serve the ongoing needs of the bar back in 1967, some 40 years ago. Last month, the Charity Foundation, our most recent entity, contributed $3,000 in gift cards to needy families so they could purchase holiday gifts for their children. Suffolk County Department of

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Social Services handled the distribution. Its founder Joseph A. Hanshe is currently chairing this committee. Joe has not only given his time, but it is through his and his client Florence M. Glazer's generosity that this foundation has become a reality. Thank you Joe. See more about this donation elsewhere in this edition. On January 7, the SCBA had its annual Judicial Swearing-In and Robing ceremony. This year's event took place at the beautiful new campus of Touro Law Center. I had the opportunity to robe three new judges, the Honorable Theresa Whelan, the Honorable Dennis Cohen, and the Honorable Chris Ann Kelley. I was also fortunate to present awards of recognition to two of our reelected judges, the Honorable Kevin J. Crowley and the Honorable Gaetan B. Lozito. This year's event would not have been possible without the assistance of Suffolk County District Administrative Judge the Honorable H. Patrick Leis, III, J.S.C., George L. Roach, John B. Zollo, our very special Executive Director Sarah Jane LaCova, and Dean Larry Raful of Touro Law Center. Thank you all for helping in

making this year's event a great success. On March 20, the SCBA will be coordinating a Blood Drive. Did you know that every day, Suffolk County alone requires more than 800 units of blood? I am proud that my wife Kim has agreed to spearhead this event. We are asking our membership and their families to donate. The collecting will take place from 1 to 6:30 p.m. We are also considering giving a one-credit CLE course courtesy of the SCBA and SAL during the donation period to members who donate. In addition, members and family who elect to donate during the lunch hour will receive a light lunch courtesy of our friend Fireside Caterers. You may register to donate by contacting Jane LaCova at 631-234-5511 ext. 231 or you may sign up on line at our website at www.scba.org Please volunteer to give. Remember, you may not be dying to give blood, but someday you may be dying to get it!

Members making news:

On December 18, 2007 Amy Chaitoff, Co-Chair of our Animal Law Committee

was featured in the New York Law Journal regarding her successful appeal reversing a lower court's order that Duke, a Pit Bull Terrier be destroyed. Good work Amy! On December 1, 2007, George Roach was featured in Newsday in the "Ask the Expert" column regarding How Seniors Can Ward off Con Artists. As many of you know, George is our in house expert on Elder Law. Good job George! Again, and most especially now that we are in our centennial year, I remind our membership that a Time Capsule Ceremony is to be held on the Great Lawn at the bar center on Saturday, May 3. Please mark your calendars. We are still looking for suggestions and donations of items, which may be placed in the capsule. If you have an item that you feel would be appropriate, please send it to the SCBA. Suggestions should be forwarded to Jane LaCova via e-mail to [email protected] . To all of our members, their families and friends, have a happy, healthy and prosperous 2008.

SCBA Celebrates 100 Years of Progress

grated high-tech courtrooms, closed circuit TV monitoring systems for security and a childcare center. The population of Suffolk County has soared to nearly 1.5 million people and the cases heard in local courts could hardly be imagined by practitioners of 1908. National issues that have changed America have impacted our own Bar. Cases defining the scope of constitutional protections as well as issues of environmental law, orders of protection, domestic violence, drug dependency, same sex unions, identity theft and a central registry for sex offenders are now part of legal practice. After decades of "borrowing" meeting places, the SCBA found a permanent home on Wheeler Road in Hauppauge. The property was purchased by the SCBA in 1980. The contract to construct the building was signed in 1992. The building was opened on November 22, 1993 and was dedicated in the spring of 1994. The Honorable Joseph W. Bellacosa gave welcoming remarks. The new SCBA headquarters is now home to the SCBA and staffed by eight full time employees. It houses the continuing legal education programs offered by the Suffolk Academy of Law, ceremonial events, committee meetings and, on occasion, tastefully arranged and expertly orchestrated gala celebrations. Technology has also greatly impacted the work of the SCBA. At the turn of the century, law librarians were typically retired attorneys who tended the only legal tools available - books. In 1928, the Bar Association donated a complete collection of books to the Old Courthouse on Griffing Avenue in Riverhead, thus establishing the first official and comprehensive law library in Suffolk County. The technology of today has revolutionized legal work as today's SCBA members have access to office software that includes programs for electronic research, case management, document assembly, timekeeping, billing, teleconferencing and even electronic filing in commercial and tax certiorari cases. In the past 100 years, SCBA members have adapted their legal work to meet the demands of a changing society. Criminal cases in Suffolk County have included the 1979 killing of 13-year old John Pius, the 1987 murder arrest of newlywed Matthew Solomon, the case of 19-year-old Martin Tankleff and the 2004 trial of Daniel Pelosi. SCBA members have appeared in the legal proceedings involving "Angel of Death" Richard Angelo and "Amityville Horror" defendant Ronald De Feo. In 1984, the Suffolk County case of Baby Jane Doe explored constitutional issues of privacy and parental rights. A Suffolk County jury awarded a record $212 million in the medical malpractice matter of Flaherty -v- Fromberg et al. What made this case unique was not only the award, but it was one of the first cases prepared to take advantage of the High-Tech Courtroom in Suffolk County Supreme, and incorporated trial presentation formats never before used. SCBA members have also seen their share of celebrity events, including the civil lawsuit against Martina Navratilova for allegedly punching a photographer and, more dubiously, Alec Baldwin reluctantly reporting for jury duty. World events have also shaped the work of the SCBA. SCBA members have served their country in world conflicts and have continued to answer their country's call to duty. And they've distinguished themselves in service to our nation over the years. Many of there accomplishments were recognized at the Installation of President Douglas Lerose in June, 2003 Michael Murphy, the late son of SCBA member Dan Murphy, was awarded the Congressional Medal of Honor by President Bush recently. SCBA continues to cherish the spirit of volunteerism in the community. As the tragic events of September 11 unfolded, SCBA members responded with a record collection of supplies for emergency workers at the World Trade Center. Led by Past President John Juliano (`96-'97),

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as well as then immediate Past President Eugene J. O'Brien (`00-`01) and immediate Past Director Barry M. Smolowitz, a contingent of SCBA members went into Manhattan to deliver the items and lend their support. SCBA members lend their "free" time to help coach local high school moot court teams, serve as guest speakers at educational events and promote important health and educational issues. Most notably, a large percentage of our membership presently participates in the SCBA Pro Bono Project, which offers legal representation to low income persons in Suffolk County. Service has long been a hallmark of the SCBA. Following the 1963 decision of Gideon v. Wainwright, the Legal Aid Society of Suffolk County was established. From its early days when SCBA member Ed Clare was the lone attorney serving criminal defendants, Legal Aid has grown into a countywide organization with more than 60 attorneys defending the neediest of clients. While there are many laudable efforts one could cite in the long and wonderful history of Legal Aid, none is more memorable than the story of Buttercup, the errant chimpanzee who unwisely relieved himself (allegedly) on a police officer. In their defense of Buttercup's owner, Legal Aid attorneys raised the unique defense that Buttercup, a gentle chimp by nature, was simply going through the throes of adolescence. The story received national attention with major newscasters requesting photo ops of Buttercup decked out in a tutu and roller skates. The story will forever be remembered by those public defenders who gave their all for Buttercup, who was eventually ordered out of Suffolk County and into the Staten Island Zoo. The past century of SCBA achievements has also included a dramatic change in the composition of SCBA membership. No review of SCBA history would be complete without mention of the remarkable Syrena H. Stackpole. Ms. Stackpole, a Riverhead native, was the first woman from Suffolk County to be

admitted to the New York State Bar in 1919. She was the first female attorney in Suffolk County when she opened her practice in 1928, as well as the first female member of the Suffolk County Bar Association. In 1931, she became the first woman elected to public office in the State of New York when she won a fouryear term as a Riverhead Town Justice. Coming only 11 years after women were granted the right to vote, this was a truly remarkable accomplishment, and one, which did not go unnoticed in the Nation's capital. Ms. Stackpole was invited to Washington, D.C. to meet with newly elected President Franklin D. Roosevelt and his wife, Eleanor, after the inaugural parade. Ms. Stackpole practiced law until just a few years before her death, at age 94, in 1983. In the wake of the trail blazed by Ms. Stackpole, 28 percent of today's SCBA membership is composed of female attorneys. The diverse nature of the SCBA can also be seen in the establishment of other local legal associations that have formed. Included among these are the Amistad Suffolk County Black Bar Association, the Brehon Society, the Columbian Lawyers Association, the Huntington Lawyers Club, the Long Island Hispanic Bar Association, Nassau Suffolk Trial Lawyers, the Suffolk County Criminal Bar Association, the Suffolk County Matrimonial Bar Association and the Suffolk County Women's Bar Association. As SCBA prepares to extinguish 100 candles in 2008, we have pride in the accomplishments of the past and hope for the future yet to come. Over the past century, SCBA has evolved into a unique organization that has always held firm to the principles of justice, jurisprudence, integrity, honor and cooperation espoused in our original charter. To the trailblazers who have gone before us, we thank you for the opportunities you have created. To the next generation at the SCBA helm, we wish you the best of luck as you face the challenges of tomorrow with the most noble of standards.

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THE SUFFOLK LAWYER -- JANUARY 2008

Our Hispanic Clients

ing a visit from your local Town Code Inspector if you are Hispanic. In fact, there have been many cases where Hispanics have bought houses from non-Hispanics, with internal illegal constructions that have been there for many years, and were never brought to the attention of the Town Code Inspectors. However, when the Hispanic family moves in, somehow these same construction irregularities become a problem for the Town. Has anyone noticed how lately Hispanics tend to be over-represented in Town Code violation court calendars? Do the families have a cause of action against the previous homeowners for selling them a house with Town Code violations, or can they just sue the attorney who represented them at the closing for allowing them to purchase a home with these violations; or can they do both? Because they don't speak English, are poor, uneducated, are short, brown, dress poorly, look different, have a cultural behavior that is different, and have needs and priorities different than those of the traditional Long Island population, their presence has created a cultural shock and a fear of the unknown in many people on Long Island. In turn, some Long Islanders have been able to use their political electoral power to move the state and local political figures to harass and persecute these people to push them out of the region. We saw this political posturing during the recent elections, where there were candidates using the immigrant issue to garner votes. What then are the issues and legal problems related to the undocumented immigrants? According to study by the Horace Hagedorn Foundation, there is approximately a total of 329,227 Hispanics on Long Island, or 12 percent of the total population. Out of these, it is estimated that there are 78,000 undocumented immigrants. Hispanic undocumented immigrants are 23.5 percent of the total Hispanic population on Long Island. This means that the overwhelming majority of Hispanics on the Island are citizens of the United States, are legal residents, or are here under the protection of some other form of visa or legal status. In other words, out of a total Long Island population of approximately 2,800,000 residents, it is estimated that only 2.7 percent are undocumented immigrants. So, in reality we are only talking about a 2.7 percent problem, and, in my view, a 2.7 percent of undocumented immigrants is not even a minor problem. Interestingly enough, if the problem really is not that there is a large undocumented community here on the Long Island, why all the fuss? One possible explanation is

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New Year's Resolution

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that some sectors of the larger Long Island community are reacting to the sudden outstanding growth and presence of the total Hispanic community on Long Island, most of who are here legally. Is it possible that some would want to criminalize the whole Hispanic community under the pretense of being "illegal aliens"? Is the persecution specifically against undocumented immigrants, or is it against the Hispanics population in general? I do not believe this is so. I think there are some individuals who are just misinformed or are misanthropes; no matter what good can come from a situation, or people, they are against humanity in general. We can see and hear them when they spew their venom of hate and in doing so, show their ignorance. The vast majority of the people living on Long Island are concerned with much more than the issue of undocumented workers (which as I mentioned before, is but a 2.7 percent problem). We are concerned with the everincreasing cost of living on the Island, with the shortage of decent jobs here, with the lack of affordable housing, and with our high property taxes. And, at the national level, we are concerned with the war in Iraq, the high cost of energy, the lack of affordable healthcare, the fact that American businesses are being bought up by foreigners, and the devaluation of the dollar to name but a few concerns. There is an old saying: 'If you want to know who someone really is inside, give them power.' The stories of abuse and crimes committed against undocumented immigrants by employers, landlords, neighbors, government officials, and others, are endless; the problems confronting second and third generation Hispanics are not endless. Hispanic newcomers must learn our language and learn our traditions; they must assimilate to the American way of life without forgetting where they come from. They must bring their heritage into the fray, for it's through this mixture that America to become greater than it already is. Strip us of our languages, of our beliefs, of our cultures, and our traditions, and we stand naked as one in the eyes of the world. In the end, we are all part of the human fabric. The laws of our country and of human kind must affect us all in equal measure. If they don't and we allow this discord to reign, we have no one to blame but ourselves for allowing our de-evolution to happen. Note: The author is the former president of the Hispanic Bar Association with offices in Riverhead and the Commonwealth of Puerto Rico. He can be reached at (631) 369-7373.

really overweight." (Not true, see as Exhibit A, Art Shulman's pictures) "Don't lose any more weight." (No problem. See my New Year's resolution) "How did you do it?" (See stubborn and obsessive, above.)

My Buon'amico Matteo

Every 10 pounds brings a bear.

losing ten pounds and motivating me towards losing more weight and, of course, buying more of their food. My little red bear, depicted here, was soon joined by two more friends, a month later by a little purple bear bearing the number 20 (as in 20 pounds) and then by a yellow or gold little bear bearing the lettering "goal bear" and a monogram of a silver cup rewarding my stated goal of losing 20 pounds. But I would not stop there. I told you that I was obsessive and stubborn. Remember "I'll show him?" I was on a roll. Meanwhile our children with our grandchildren began arriving for the holidays. (Remember Pre Christmas Christmas?) My three little bears were now propped on the bed spread in our guest bedroom. Our six year old grandson Raymond, whose picture is in the dictionary by the word "precocious," spied them and asked if he could have my red ten pound bear. I said "no" and explained with the help of his Mom and Dad that these bears were special to Grandpa and represented an accomplishment that Grandpa was very proud of. I almost relented but was reminded by Raymond's parents that the little red bear would probably be discarded by him within a few hours of arriving home. We negotiated a compromise. Raymond could sleep with the red bear that night (I haven't gotten around to naming any of them), and it would be returned to Grandpa and rejoin his purple and gold siblings in the morning. If you think That I'm a big baby about this whole bear thing you must remember that I'm the same person who started piano lessons a few years at the start of my sixth decade on this planet when most of the other students were eight or ten year old beginners. I insisted that I receive a gold star on my sheet music when I successfully completed a lesson, just like all of the other kids. (Actually I was just kidding to get a rise out of my young teacher...At least I think I was kidding.)

It is my good fortune some years ago to have been introduced by the late Ira Kash to Matteo, the little Italian tailor, down on Third Avenue in Bay Shore. Matteo who is at least in his sixties, is probably one of the last of a vanishing breed, an expert tailor who could make a suit or as leather jacket or shirt from scratch. Speaking of fortunes, it cost me a small one to have most of my suits, jackets and slacks altered. It was well worth it. As Matteo went about making "the clothes fit the man" I was able to brush up on my very rusty Italian language skills as I shuttled back and forth each weekend dropping off some suits and picking up others. During my weekly visits we would talk about Matteo's musical avocation. He plays the mandolin (I'm not kidding), in a band with a couple of his Italian friends (please don't politically correct me with this italo-american thing), that will play at small weddings or other gatherings. It cost me an even larger small fortune (is that an oxymoron?), to buy new suits, jackets, slacks, shirts and whatever to supplement Matteo's artistry.

Raccoons in the Attic and It's Time to Stop

I recently talked to Lou Mazzola and Bob Mitchell, my good friends from the Legal Aid Society. Lou told me that, like so many others, he made a New Year's resolution to lose some weight while Bob somewhat hesitatingly told me about renovations he had done on his home several years ago. It seems that during these extensive renovations Bob's wife had been on the NutriSystem plan and there were loads of the stuff in their attic. It turns out that raccoons had infested the house, discovered the NutriSystem boxes, tore them apart and...didn't eat any of the food. These were probably some very selective or very fat raccoons. I knew that it was time to stop when Sheryl Randazzo told me that my suit was much too big and that I should buy some new clothes. The problem is that I was wearing one of my new suits. I had apparently lost a good deal of weight between the time I was measured for the suits and the time I picked them up. So I am now happily a new me listening to and watching so many others guiltily struggling to lose weight and to get into shape. As for me, I can now easily tie my shoelaces and bound up and down stairs without huffing and puffing. My once massive thighs which were once said to be like those of an NFL linebacker are now more comparable to those spindle legged Kenyan long distance runners. All of those previously dreaded blood test results are a lot better. Photo ops are no longer feared and I am again consuming delicious food and drink, looking forward to my New Year's resolution of putting on a few pounds. As for the rest of you...Eat your hearts out! Note: The author is the Chief Assistant District Attorney for Suffolk County, the immediate past president of the SCBA and an adjunct professor at Touro Law School.

Dishing With the Girls

Other than the obvious, there are many ways that women are different than men. One of them is that women love to talk about diets and dieting, much more so than men. Maybe this has something to do with the fact that most women (in my humble opinion) are dissatisfied, at least to some degree, with their appearance no matter how beautiful they may be, especially when it comes to weight. Women tend to be much more self critical than men. A woman will look into a mirror and worry that "I put on a pound or two." A man looking in the same mirror, not seeing that massive gut hanging over his belt, will pat himself on that gut exclaiming approvingly "not bad, not bad at all." The man thinks that Adonis is looking back at him from the mirror when in reality it is Jabba the Hutt. I loved talking to all of our great women working at our SCBA headquarters. "It's much easier for men to lose weight." (That's true). "John, you weren't

Lawyer Lighten Up!

sacred enamel than my system could tolerate and came down with icon poisoning." In Turkey, his cruise was delayed when the vessel was found wanting: "Frogmen had discovered a leak in the S.S. Iskanderun--or perhaps in its captain, my knowledge of Turkish was rudimentary--and marine urologists doubted if either could be made seaworthy by departure time." At a National Book Awards presentation held shortly before he died, Perelman was given a Special Achievement Medal, an award that was

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unprecedented and uncontested. In granting the medal, the Awards Committee finally recognized something that Perelman's fans have long known and that Eastward Ha!, his twentieth book of essays, again proves: Sidney Joseph Perelman was one of a kind. Note: SCBA member William E. McSweeney lives in Sayville and practices Criminal Law and Family Law. His written work has appeared in the Quinnipiac Law Review, the ABA Journal, The New York Law Journal, and The New York Times.

THE SUFFOLK LAWYER -- JANUARY 2008

21

Attorney Wins Freedom For Duke

J.P., Hon. Reinaldo E. Rivera, Hon. Fred T. Santucci, and the Hon. Ruth C. Balkin, JJ, found that the lower court erred in ordering Duke's destruction, stating that the dangerous dog statute in effect on December 13, 2003, exactly four years ago to the day "[D]id not provide that one dog attacking another was conduct subject to the penalty of destruction." (See, Agriculture and Markets Law former §108, 121; People v Noga, 168 Misc. 2d 131) The court also stated that, "Moreover, there was no testimony adduced at either of the hearings to demonstrate that Duke ever attacked or threatened to attack any person." The court did however find the alleged incidents sufficient to warrant the permanent, secure confinement of Duke. Today, Agriculture and Markets Law §121 includes attacks on companion animals as a result of its 2004 amendment. The current version of the Dangerous Dog Law not only provides added protection for companion animal victims, but it also provides safeguards to protect the human defendant's due process rights and in turn the accused animal, by making euthanization of the alleged accused animal a last resort rather than a knee jerk reaction. The current law also provides judges with sufficient alternatives to permanent confinement or as a last resort euthanization. If satisfied that the dog is a dangerous dog, the judge or justice must order neutering or spaying of the dog, microchipping of the dog and one or more of the following; (a) evaluation of the dog by a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert; (b) secure, humane confinement of the dog for a period of time and in a manner deemed appropriate by the court; (c) restraint of the dog on a leash by an adult of at least 21 years of age whenever the dog is on public premises; (d) muzzling the dog whenever it is on public premises; and (e) maintenance of a liability insurance policy. See, current Agriculture & Markets Law §121 (2)(a-e). The law also requires that a hearing must be held within five days of an alleged complaint and that permanent confinement or euthanization may be ordered only upon proof of the following by clear and convincing evidence; (a) the dog, without justification, attacked a person causing serious physical injury or death; or (b) the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person, which caused serious physical injury or death; or (c) the dog, without justification, caused serious physical injury or death to a companion animal, farm animal or domestic animal, and has, in the past two years, caused unjustified physical injury or death to a companion or farm animal as evidenced by a "dangerous dog" finding pursuant to the provisions of this section. See, Agriculture & Markets Law §121 (3)(a-c). An order of humane euthanasia shall not be carried out until expiration of the 30-day period in order to allow the defendant sufficient time to appeal a dangerous dog finding. The law also lists instances where a dog shall not be declared dangerous if the dog's conduct was justified such as, if injury or damage was sustained by a person who at the time was committing a crime or offense upon the owner or custodian of the dog upon the property of the owner, or custodian of the dog; if the dog was protecting itself from being tormented, abused or assaulted; if the dog was protecting its offspring from being physically threatened, or if a person has in the past tormented, abused, assaulted or physically threatened the dog or its offspring; or was justified because the dog was responding to pain or injury. See, Agriculture & Markets Law §121 (4). Duke garnered much support while at the Islip Town shelter from the public as well as

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the individuals who had cared for him over the past four years. Several of Duke's caretakers at the shelter including the recently retired Islip Town Shelter Supervisor, Assistant Shelter Supervisor and kennel aides grew to love Duke and his sweet nature and filed affidavits along with others in support of Duke regarding their observations of Duke's well-mannered disposition. The shelter staff found Duke to be a very friendly dog that had never shown any aggression toward other animals or people. "This was an exceptional animal shelter, with exceptional staff, and this was an exceptional dog with an exceptional case. Not all dogs are so lucky," warned Ms. Chaitoff. Hopefully what happened to Duke will never have to happen to another animal. Unfortunately, procedures regarding dangerous dog cases needlessly and unjustly vary widely from town to town, judge to judge, and town attorney to town attorney," Ms. Chaitoff explained. "In my opinion, many do not understand the law. Even if the owner does have a good case, they sometimes choose not to fight it and just move on with their lives not realizing the repercussions. She explained that the complainant might exaggerate an injury. "Throw in a "sexy" breed that has a bad reputation in the press and the owners are afraid to take any chances at fighting the charge," Ms. Chaitoff said. "Many owners do not understand their rights, and sign a stipulation admitting that their animal is `dangerous' or has `vicious propensities' for fear of their animal being euthanized." She added that often owners fear that even if they have a good case they will lose, and "they don't want their beloved animal being kept in an animal shelter, where their animal will feel abandoned, lonely and fearful. These animals are family members, not just pets, and they don't want to leave their family members sitting in the equivalent of "jail" without the possibility of bail," she said. She believes that more peo-

ple would fight a dangerous dog charge if a conditional bond or bail could be set allowing the animal to come home pending the outcome of the appeal, conditioned on the owner keeping the animal confined. The good news is that more and more law schools around the country are teaching animal law, and more state and local Bar Associations are developing animal law committees such as the New York State Bar Associations Special Committee on Animals and the Law, the NYC City Bar's Legal Issues Pertaining to Animals, and most recently, the Suffolk County Bar Association (SCBA). The SCBA was the first County Bar in New York to start an animal law committee, chaired by Ms. Chaitoff and marine animal welfare attorney, James F. Gesualdi, of Islip. The more CLE programs and seminars that provided by the Bar Associations to educate our peers about the laws that effect animals and their guardians, the better those laws will be applied and enforced correctly, and the better animal guardians and their companion animals can sleep soundly. "The Menendez family is so very grateful to the Judges of the Appellate Division, Second Department, for finally bringing some justice to what seemed to be a never ending emotional and financial nightmare for them, and for most of all, allowing them to bring home their beloved boy, Duke," said Ms. Chaitoff.

Note: The author is a solo practitioner located in Smithtown. Her practice focuses on representing clients with animal related legal issues. Ms. Chaitoff is co-founder and CoChair of the Suffolk County Bar Association's Animal Law Committee, Chair of the Publications subcommittee for the New York State Bar Association's Special Committee on Animals and the Law and Chair of the International Animal Law Subcommittee for the American Bar Association's Animal Law Committee.

HIPAA No Bar to Interviews of Nonparty Doctors

intended to disrupt current practice whereby an individual who is a party to a proceeding and has put his or her medical condition at issue will not prevail without consenting to the production of his or her protected health information' (65 Fed Reg 82462, 82530). Next, the Privacy Rule sets out a floor of federal privacy protections whereby state laws that are `contrary' to the Privacy Rule are preempted unless a specific exception applies. A state law is `contrary' to the Privacy Rule, however, only if it would be impossible for a covered entity to comply with both the state requirement and the Rule, or the former is an obstacle to accomplishing the full purposes and objectives of HIPAA's `administrative simplification' provisions (45 CFR 160.202). Moreover, if a state law mandates a disclosure, the Privacy Rule permits the disclosure under its `required by law' exception, which generally allows a covered entity to disclose protected health information without authorization where disclosure is compelled by another law (45 CFR 164.512[a]). In addition, where `there is a State provision and no comparable or analogous federal provision, or the converse is the case,' there is no possibility of preemption because in the absence of anything to compare `there cannot be . . . a `contrary' requirement' and so `the stand-alone requirement -- be it State or federal -- is effective' (64 Fed Reg 59918, 59995). As a result, there can be no conflict between New York law and HIPAA on the subject of ex parte interviews of treating physicians because HIPAA does not address this subject. Accordingly, the Privacy Rule does not prevent this informal discovery from going forward, it merely superimposes procedural prerequisites. As a practical matter, this means that the attorney who wishes to contact an adverse party's treating physician must first obtain a valid HIPAA authorization or a court or administrative order; or must issue a subpoena, discovery request or other lawful process with satisfactory assurances relating to either notification or a qualified protective order. In reversing the Appellate Division and restoring the orders of the trial courts the Court of Appeals nevertheless modified those orders by deleting any portions of the required stipulations not expressly required by HIPAA (e.g., that defense counsel had to provide adversaries with copies of statements or audio and video transcripts), an apparent admonition that in tailoring orders precisely to fit the circumstances before the court the goal is to comply with HIPAA requirements for `qualified protective orders', not to fashion additional unauthorized protections. Equally as important is the high court's reminder that non-party medical providers in possession of protected health information are under no duty to cooperate: Of course, it bears repeating that the [nonparty] treating physicians remain entirely free to decide whether or not to cooperate with defense counsel. HIPAA-compliant authorizations and HIPAA court orders cannot force a health care professional to communicate with anyone; they merely signal compliance with HIPAA and the Privacy Rule as is required before any use or disclosure of protected health information may take place.

FOOTNOTES 1. The precise conditions imposed by the respective trial courts are of interest, since courts granting HIPAA compliant authorizations and orders are also required by HIPAA to fashion `qualified protective orders' that limit scope and prevent subsequent improper disclosure of the protected health information. NB, however, that the Court of Appeals removed several of these qualifications and conditions on the ground that they were not expressly authorized by HIPAA. See main text, infra. In Arons the court order required that defendants be permitted to interview only after the note of issue had been filed. It also instructed that the authorizations on their face state in bold letters that the purpose of the interview was to assist the defendants in defense of a lawsuit and it was not at the request of the plaintiff. The authorizations also had to contain the name and address of the person to whom the health care provider may give an interview if he or she wishes and must identify the persons or entities the interviewer is representing and must conform in all respects to all other requirements of HIPAA (i.e. 45 CFR 164.508[c]). The court held that the authorizations could not be combined with a subpoena (query ­ because the physicians could not be compelled to give the interviews ?) and that there had to be a separate authorization for each interview. Lastly the trial court ordered that within 72 hours after the interview, the defendant provide the plaintiff with statements (a transcript ?), materials and document obtained from the interviewed health care provider, as well as audio or video recordings of any oral statements made by the health care provider. In the related case of Webb v. New York Methodist Hospital, conditions included a direction for defense counsel to hand over to his adversary copies of all written statements and notations obtained from the physicians during

(Continued from page 9) the private interviews, as well as any audio or video recordings or transcripts, and interview memoranda or notes (excluding the attorneys' observations, impressions or analyses. In the third decided case, Kish v. Graham, the court's qualifications were even more precise. The court ordered defense counsel to serve a trial subpoena upon each physician prior to, or contemporaneously with, delivery of a HIPAA-compliant authorization. The authorization in its turn was limited by the same qualifications as were contained in the plaintiff's pre-note of issue authorization providing the defendants with access to records of the subsequent treating physician; it was the intention of the trial court, the high court observed, not to require or allow the interviewed physician to provide defense counsel with additional records. Furthermore, the authorization had to be accompanied by a cover letter from defense counsel to the subsequent treating physician stating that while the subpoena required such physician's testimony at trial, the physician was not obligated to speak with defense counsel prior to trial (query: why then, the need for a subpoena at that time ?); that the purpose of the requested interview with the physician was solely to assist defense counsel at trial; that if the physician granted the requested interview a copy of such physician's records, if any, previously provided to defense counsel would have to be made available to assist the physician during the interview; and that the physician was not required to provide defense counsel with any written material or records prior to trial. Note: The author is the Associate Administrator of the Department of Managed Care at Stony Brook University Hospital, Stony Brook, New York and a member of this association. His opinions are his own. He may be reached at: [email protected]

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THE SUFFOLK LAWYER -- JANUARY 2008

ACADEMY OF LAW NEWS

How to Get Clients Beyond `Sticker Shock'

_________________ By Allison C. Shields

As a lawyer, ethics require that your fees be `reasonable.' But what, exactly, is a `reasonable' fee? How do you get your clients past the "sticker shock" when they see your fees (even if they are `reasonable')? How do you create a fee structure that works for both you and your clients? What is a reasonable fee? Alternative billing is on the rise, but many lawyers still don't think it will work for them. One of the problems lawyers encounter when considering value pricing or alternative fee arrangements is the understandable fear of grievances, magnified by disciplinary rules that base the reasonableness of fees on factors including time and labor involved in a particular matter, rather than on the value of the services received and the outcome achieved. Although many lawyers think that the time and labor involved are the two most important factors in determining the reasonableness of the fee, there are other factors to consider. The ABA Model Rules of Professional Responsibility, Rule 1.5 (fees), lists the following factors to be considered when determining whether a fee is reasonable: · The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. · The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. · The fee customarily charged in the locality for similar legal services. · The amount involved and the result obtained. · The time limitations imposed by the client or by the circumstances. · The nature and the length of the professional relationship with the client. · The experience, reputation, and ability of the lawyer or lawyers performing the services; and · Whether the fee is fixed or contingent. Value Pricing and "Reasonableness" You've probably heard stories about fees being held `unreasonable,' or novel fee arrangements that backfired on the lawyer. You may be afraid that increasing your fees or changing your fee structure will backfire on you. But a careful examination of those situations reveals that often, the problem isn't that the fee itself was unreasonable, but that the lawyer failed to manage the attorney-client relationship properly ­ specifically managing the client's expectations, establishing the value of the lawyer's services and agreeing on the fee up front.1 When the client understands the scope of the work, the significance of your services, and expressly agrees to the work and the fee before the work is performed, `reasonableness' takes care of itself ­ when the client agrees, there is no dispute. In most cases, the court only has the power to review the fee if the client is unhappy.2 But what if you can't come to an agreement with the client? When that happens, the client isn't the right client for you. And isn't it better to find out before you take on the engagement than after the work has been performed and the client refuses to pay? Value Pricing Helps Overcome "Sticker Shock" Lawyers that use value based and fixed pricing models assert that ultimately, the fixed price lawyer gets better clients, more loyal clients, and more profits than the hourly billing lawyer. You may think you can't move away from hourly billing and still compete with hourly lawyers. But clients who hire an attorney solely based on price are probably clients you don't want. They probably don't understand or appreciate the value of your services, skill and expertise because they aren't focused on quality. If the client's highest priority is price, there will always be another lawyer that can do the work for less. Although clients that don't value your services are always the most demanding, the least appreciative, and the least likely to pay, some clients initially ask about price because they don't know how else to compare lawyers. As the expert, it's your job to educate the client and to communicate the value of your services. For those clients you do want, communicating value is necessary overcome sticker shock. On the flip side, if you never experience any sticker shock or resistance to your fees, your prices are probably too low. Steps to Overcoming Sticker Shock and Creating a Fee Structure that Works for You and Your Clients Most clients will experience some `sticker shock' when they first learn of your fees. That's only natural. The key is to get the client to recognize the sticker shock and be willing to talk with you about your services anyway, especially if the client has the option to do nothing or to wait to make a decision to retain a lawyer. Your job is to help the client realize how important the matter or their desired outcome is, and how significant your representation is in reaching that goal. If you can work with the client to articulate that value, the sticker shock should be only temporary. To overcome sticker shock and communicate value: · Determine the client's most and least desired outcome; · Discuss the likelihood of achieving the client's desired outcome; · Find out what features or services are most important to the client; · Ascertain and manage the client's expectations from the outset; · Relate your services back to the client's desired outcome and the benefits to the client; · Define the scope of work up-front; · Provide the client with options, where appropriate; · Establish a fee structure and a fee based o the scope of work an the value before the work is performed; · Explain the circumstances or variables that could change the scope of the work and the fee; · Agree to price up-front; · Document the scope of work, method of calculating the fee and the payment terms in writing; · Use `change orders' or supplemental service agreements when the scope changes. Although it does take time and effort to ascertain and communicate value to a client, it builds business, profits and loyalty - unlike many of the activities that are Allison C. Shields involved in hourly or post-engagement billing (such as creating and timesheets, reviewing and editing bills, chasing clients for payment, dealing with clients who don't pay or who constantly argue about bills, etc.). Ultimately, the work that goes into learning about, establishing and creating value from and for your clients brings you more and better business. Please join us on February 13 for a Lunch N Learn at the Bar Association if you're interested in learning how alternative billing might work for your practice. Allison Shields is the Founder and President of Legal Ease Consulting, Inc., a consulting firm that helps lawyers create productive, profitable and enjoyable practices. Visit her website at: www.LawyerMeltdown.com and see her blog, www.LegalEaseConsulting.com for more information about how to improve your practice.

FOOTNOTES 1. Fees can also be established in phases, using supplemental services agreements where a fee for the entire engagement can't be set up front, such as in litigation. 2. There are exceptions to this, such as where feeshifting applies, where the court determines the fee in a particular case, or where a fee dispute arises with another lawyer.

Wi-Fi Locations

In order to provide the capability for attorneys and other members of the public to connect to the Internet form a laptop computer while in court, a number of WIFI locations have been established. They are as follows: Riverhead Cromarty Court Complex Central Jury Room Law Library Surrogate's Court 2nd floor public area Family Court Lobby area Supreme Court, Court Street 1st floor lobby Cafeteria Central Jury Room 2nd floor public hallway 3rd floor public hallway Cohalan Court Complex Family Court 2nd floor waiting area 2nd floor public hallway 3rd floor public hallway Supreme Court 2nd floor public hallway 3rd floor public hallway Law Library Office Building Cafeteria Attorney lounge Central Jury Room District Court, Ronkonkoma Lobby

Second Circuit Briefs

increases `in kind ... or ... in amount' from the figure specified in the demand for judgment." 11 The court then termed Silge's demand for "such other and further relief ..." as boilerplate from which a damage claim cannot be divined. Note: The author's practice includes appeals, commercial litigation, and litigation support. His office is in Melville.

FOOTNOTES 1. Lewis Carroll, Alice's Adventures in Wonderland (D. Appleton and Co. 1927 (reprint of 1866 edition)), p. 94 (accessed on December 27, 2007 at the Electronic Text Center, University of Virginia Library, http://etext.lib.virginia.edu/etcbin/toccernew2?id=CarAlic.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=pu blic&part=all) 2. See for example, Allied Air Freight, Inc. v. Pan Am. World Airways, Inc., 393 F.2d 441, 444 (2d Cir. 1968). 3.Under Fed.R.Civ.P. 72, upon a district judge's referral, a magistrate judge may hear and determine non-dispositive pre-trial matters,

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and provide a recommended disposition concerning dispositive pre-trial matters. A party may submit objections to the district judge within 10 days after after being served with a copy of a magistrate judge's determination or recommendation. Note that the Federal Rules of Civil Procedure, including Rules 54 (addressed below) and 72, were amended effective December 1, 2007 as part of the general restyling of the rules. The two decisions that this article address cite the pre-amendment rules. 4. Fielding, 2007 WL 4322436*3, citing Miller v. Auto. Club of New Mexico, Inc., 420 F.3d 1098, 1118 (10th Cir.2005); Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1116 (10th Cir.2004); and Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 220 (5th Cir.2000). 5."[W]e hold that, when a district judge enters an order disposing of a case without expressly ruling on a pending objection filed pursuant to Federal Rule of Civil Procedure 72(a), the judgment entered pursuant to that order functions as a final order overruling the objection." Fielding, 2007 WL 4322436*4. The district court affirmed, finding no abuse of discretion in the magistrate judge's decision that the district judge "implicitly adopted." Id. 6. Silge, 2007 WL 4258729*1.

7. Id., at *1-*2. The pre-December 1, 2007 version of Fed R. Civ. P. 54(c) provided that: A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings. See note 2, above, at ¶2. Amended Rule 54(c) states: "A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings." 8. Silge, 2007 WL 4258729*3. 9. Id., at *2, quoting from 10 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure, § 2663 (1998). 10. Id. The Second Circuit, in a footnote, explained that it did "not mean to suggest that it is ever wise or prudent for a defendant to default in reliance on the demand clause." Id., at footnote 4.

11. Id., at *2.

THE SUFFOLK LAWYER -- JANUARY 2008

23

More Academy News on page 28

ACADEMY OF LAW NEWS

_________________________ By Dorothy Paine Ceparano

Two Upcoming Seminars Focus on Animal Law

"We can judge the heart of a man by his treatment of animals."­ Immanuel Kant Both the general public and the legal profession are becoming ever more aware of and concerned with animal rights and welfare. Animal cruelty . . . pet custody . . . licensing and leash laws . . . wildlife protection . . . laboratory testing . . . and myriad other issues are addressed by the statutory regulations and court decisions that come under the diverse umbrella now known, comprehensively, as "Animal Law." Attorneys with an interest in the field should take note of two upcoming seminars. The first, developed by the Suffolk County Women's Bar Association and presented in conjunction with the Suffolk Academy of Law and the Suffolk County Bar Association's new Animal Law Committee, is scheduled for February 19, 2008. Entitled "Animal Abusers and Domestic Violence," the seminar will explore the connection between animal abuse and family violence, including early warning signs and the mistreatment of pets to control spouses or children in abuse situations. The faculty includes Michelle Auletta, a Suffolk Assistant District Attorney who handles animal abuse cases, and Suzanne Staub of the Suffolk County Coalition Against Domestic Violence. A short film, Breaking the Cycles of Violence, will help to set the stage for discussion. The program runs from 6:00 to 8:00 p.m. and provides two MCLE credits. Tuition, at $40, includes a light supper. Brightwaters Abstract, Ltd. has partially underwritten program expenses. A more wide reaching treatment of Animal Law can be found in the Academy's third annual program on the topic, developed this year by the SCBA's Animal Law Committee. Entitled "Hot Topics in Animal Law Practice," the seminar, scheduled for the evening of Thursday, March 27, covers a range or issues of interest to lawyers who represent pet owners or handle disputes involving animals. In an "Overview of Companion Animal Issues," the first speaker, East Williston attorney Elinor D. Molbegott, will cover such issues as the sale of dogs and cats ("Pet Lemon Law"), veterinary negligence, abandonment vs. failure to pay, licensing and leash law, and neuter laws. Following the overview, Amy L. Chaitoff, the chair of the SCBA's Animal Law Committee, will talk about "Knowing Your Rights in a Dangerous Dog Proceeding." This presentation will delve into both Agriculture and Markets Law Section 121 and Suffolk County's Dangerous Dog Law. Witnesses, evidence, strategies, and other aspects of preparing for and handling the proceedings will be covered. New York City attorney Darryl M. Vernon (Vernon & Ginsburg, LLP) will address "Landlord Tenant Issues Involving Pets and Assistance Animals." Drawing from "Pet Law," the Americans with Disabilities Act, and zoning law, the presentation will clarify the differences between service animals and therapy animals and will examine issues related to custody and assistance animals in public. "Estate Planning for Animals" ­ an issue that drew the media spotlight following Leona Helmsley's $12 million bequest for her white Maltese ­ will be covered by Sayville lawyer Kathleen A. Carlsson, who was instrumental in bringing animal law CLE to the SCBA membership and moderated the Academy's 2006 and 2007 Animal Law programs. Ms. Carlsson will talk about pet trusts and making funeral arrangements for pets. Also on the evening's agenda is a discussion of "Animal Cruelty and Abuse" by Suzanne McDonough, President of the New York State Humane Association and a former detective-investigator for the New York State Police. This presentation will serve to clarify the difference between misdemeanor and felony cruelty and provide guidelines for reporting animal cruelty. Finally, Herbert (Skip) Kellner (Guttman and Kellner in Smithtown), an active member of the Animal Law Committee and its program chair, will provide a Suffolk Legislative Update. A question-and-answer period will follow the formal presentations. The program, which runs from 6:00 to 9:00 p.m., provides three MCLE credits. Tuition is $75 with MCLE credit, $40 without. A vegan/vegetarian supper is included. Barbara Nieroda is the program planning chair for the February "Animal Abuse and Domestic Violence" seminar presented with the Women's Bar Association. Eileen Coen Cacioppo is the Academy liaison for the March "Hot Topics" seminar. To register for either Animal Law program or for more information, call the Academy of Law at 234-5588. Note: The author is the executive director of the Suffolk Academy of Law.

Making The Leap From Studying Law To Practicing Law

Bridge-the-Gap Course Can Be a Safety Net

_______________________ By Dorothy Paine Ceparano

For new lawyers, the "leap" from law school to law practice can seem fraught with uncertainty. Professor-led discussions of legal theory become a memory of a distant ­ and safer ­ past, while determining where to stand in the courtroom or how to conduct oneself at a closing can be intimidating prospects. "Leap" Year may seem symbolic for recent graduates hurtling across the great divide into a new professional world. Those seeking a safety net should consider continuing legal education, especially continuing legal education designed specifically for the new lawyer. The Suffolk Academy of Law's 2008 "Bridge the Gap `Weekend" ­ appropriately scheduled for Friday, February 29, the leap year marker, and Saturday, March 1 ­ can answer many of the questions that make the recent graduate's transition into actual practice so daunt-

ing. Taught by experienced practitioners and members of the judiciary, the classes comprising the program provide real world advice, practical instruction, and up-to-date information. The curriculum covers the bread-and-butter practice areas with which most lawyers, even those in concentrated practices, need familiarity. The first day of the program focuses on transactional practice: residential real estate, including environmental issues; small business formation; wills and estates, and elder law. In addition, one instructional segment delves into common ethical issues, including handling escrow accounts, avoiding grievances, and understanding the rules covering lawyer advertising and business solicitation. Another segment provides a choice between two practical skills topics, legal writing or the art of negotiating. On the second day, the emphasis is on litigation. Beginning with an overview of

CLE Scheduling Changes

· Postponed: Commercial Real Estate Series will be held on the evenings of March 11, 18, and 25 instead of in February. · Cancelled: 1031 Exchanges scheduled for February 7. · Added: Animal Abusers & Family Violence ­ February 19 (evening) · Added: Crime Lab Program ­ Wednesdays, March 12 (body fluids, serology, DNA), and April 16 (ballistics, firearms, chemistry). Each session at the Riverhead Courthouse ­ 12:15 p.m.

the court system, the program covers handling a New York civil case (personal injury and commercial), federal practice, criminal law, and handling an uncontested matrimonial matter. Also included is a presentation on New York Notary Law and the potential liability the unwary lawyer may face in the seemingly benign act of notarizing a document. The Bridge-the-Gap Weekend satisfies one year's worth of mandatory continuing legal education (MCLE) requirements for the new lawyer ­ i.e., 16 transitional credits, appropriately divided among the mandated categories of ethics, skills, and areas of professional practice. While participation in the full two-day program is recommended, those who cannot spare the time or have already accumulated some credits may enroll in either the Friday or Saturday program. The experienced presenters assembled for this year's Bridge the Gap program are well known and well respected in the legal community. They've served as directors of the Suffolk County Bar Association and as Officers of the Academy of Law (the Association's educational arm). At least four are past "deans" of the Academy, and five are past presidents of the SCBA and other lawyer groups, including the New York State Bar Association. All are highly experienced in their particular practice areas. In order of appearance, the 2008 instructors are Barry Warren, Harvey Besunder, Barry Smolowitz, Neil Block, Gail Blasie, Diane Farrell, Lita Smith-Mines, Frederick Eisenbud, John Calcagni, Scott McBride, George

Roach, Hon. Ralph F. Costello, Hon. Gigi Spelman, D. Daniel Engstrand, Jr., Wende Doniger, Arthur Shulman, Stephen Kunken, William Ferris, and Michael Isernia. Suffolk County Administrative Judge, Hon. H. Patrick Leis III, usually addresses the gathering at the lunch break on Friday. The Bridge-the-Gap planning committee includes Stephen Kunken and William T. Ferris, chairs; Barry M. Smolowitz, Arthur Shulman, Wende Doniger, Felix Weinclaw, Alan Todd Costell, and Academy Executive Director Dorothy Paine Ceparano. The mandatory continuing legal education requirement for new lawyers went into effect in 1997. The Academy's new lawyer training program, however, predates that regulation by at least ten years. In the late 1980's, the Academy articulated the need to help new lawyers adjust to the real world of practice and developed an educational program to meet that need. The Academy's commitment to new lawyer training has been sustained ever since. Through the period between the inception of the Academy's first new lawyer program and now, curriculum and format have been adjusted and modified numerous times, based on feedback from those who have attended. Today, the Academy believes its training for new lawyers is stronger and more relevant than ever. For more information on Bridge-theGap 2008, see the centerfold of this issue or call the Academy at 631-234-5588. Note: The writer is the executive director of the Suffolk Academy of Law.

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THE SUFFOLK LAWYER -- JANUARY 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

WINTER CLE

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 during February and early March. For information on other courses to be offered during Winter 2008, please see the Academy's Winter 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

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.

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.

SCBA 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. 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.

WINTER UPDATES

ANNUAL ELDER LAW UPDATE

Thursday, February 14, 2008

This is the must-attend program for anyone who handles elder law matters. An easy-to-follow instructional style and the keen knowledge of the SCBA's own guru in the field make the presentation entertaining as well as enlightening. Faculty: George L. Roach, Esq. (Suffolk Legal Aid // Former SCBA President) Appreciation to Program Sponsor: Esquire Bank Time: 2:00­5:00 p.m. (Registration from 1:30 p.m.) Location: SCBA Center Refreshments: Snacks MCLE: 3 Hours (2 1/2 professional practice; 1/2 ethics) [Non-Transitional and Transitional]

matters related to probate will be covered, as well as such issues in administration as choosing an administrator, dealing with non-marital and/or minor children, and determining who is to be listed on the petition. The program will also cover working with or serving as an executor and will deal with such practical issues as gathering assets; tracking assets and debts; getting an EIN number; determining what to do with a car; deciding what bank accounts to open; handling outstanding medical bills; preparing a simple accounting in the end, etc., etc. Faculty: Scott McBride, Esq.; Richard Weinblatt, Esq.; Linda Toga, Esq. Coordinators: Gail M. Blasie, Esq., and Felix Wienclaw, Esq., CPA Appreciation to Program Sponsor: AXA Advisors Time: 6:00­9:00 p.m. (Registration from 5:30 p.m.) Location: SCBA Center Refreshments: Light supper MCLE: 3 Hours (2 ½ professional practice; ½ ethics) [NonTransitional and Transitional]

ANIMAL ABUSERS & FAMILY VIOLENCE

Tuesday, February 19, 2008

The connections between animal abuse and domestic violence are well documented. Studies reveal warning signs of adult violent behavior among those with an early proclivity to animal abuse, and investigations have shown that where there is pet abuse, there is often also spouse or child abuse. This seminar will explore the relationship between animal abusers and domestic violence and cover related legal issues, including obtaining orders of protection in pet abuse situations. Presentations by an expert faculty will be preceded by a compelling 20-minute film, Breaking the Cycles of Violence. Faculty: Michelle Auletta, Esq. (Suffolk County Assistant District Attorney) Suzanne Staub (Suffolk County Coalition Against Domestic Violence) Appreciation to Program Sponsor: Brightwaters Abstract, Ltd. Time: 6:00­8:00 p.m. (Registration from 5:30 p.m.) Location: SCBA Center Refreshments: Light Supper MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional]

MATRIMONIAL LAW UPDATE

Monday, March 3, 2008

The program those in the field wait for, the 2008 update will highlight all the important developments in decisional and statutory law. It's not to be missed. Faculty: Stephen Gassman, Esq. Time: 6:00­9:00 p.m. (Registration from 5:30 p.m.) Location: SCBA Center Refreshments: Light supper MCLE: 3 Hours (2 ½ professional practice; ½ ethics) [Non-Transitional and Transitional]

Lunch `n Learn

SEARCH WARRANTS & WIRETAPS

Tuesday, February 5, 2008

The focus of this criminal practice presentation will be on issuing or contesting search warrants or wiretaps and finding wiretaps. The skilled faculty will cover not only the underlying law, but practical issues practitioners need to consider. Those who handle even the occasional criminal matter will not want to miss this succinct, information-filled program. Faculty: Jerry Garguilo, Esq. (Saint James) Robert F. Ewald, Esq. (Chief of Narcotics Bureau­Office of the Suffolk County District Attorney) Coordinator: Stephen Kunken (Commack // Academy Advisory Committee) Time: 12:30­2:10 p.m. (Registration from Noon.) Location: SCBA Center Refreshments: Lunch MCLE: 2 Hours (Professional Practice) [Non-Transitional and Transitional] 18B Credit: 2 Hours

LAND USE SYMPOSIUM

Wednesdays, March 5, and March 19, 2008

This symposium, presented in two extended evening sessions, will serve as a practical guide to land use law. Planning, controlling regulations, zoning contests, litigation, and more will be covered; and a variety of perspectives will be presented. A lively and knowledgeable faculty will take on all the issues of significance, and you will come away with new insights into the intricate ­ and sometimes contradictory ­ local, regional, and state laws that govern land use. Practical tips and ethical guidelines will be included. Faculty: Hon. Paul J. Baisley; Hon. Emily Pines; Linda U. Margolin, Esq.; David N. Yaffe, Esq.;Terry J. Karl, Esq.; Anthony B. Tohill, Esq.; Maureen T. Liccione, Esq. Moderator: Harvey B. Besunder, Esq. Each Evening Time: 6:00­9:30 p.m. // Registration from 5:30 p.m. Location: SCBA Center Refreshments: Light supper MCLE FOR FULL PROGRAM: 7 ½ Hours (6 professional practice; 1 ½ ethics) [Transitional/Non-Transitional]

SEMINARS & MULTI-PART PROGRAMS

TIME MANAGEMENT FOR LAWYERS: A LUNCH-TIME SERIES

Series continues, one session per month, as below. Gain skills and insight for making your professional and personal life less stressed and more rewarding. What to Do & What Not to Do Wednesday, February 27, 2008 Effective Delegating Wednesday, March 26, 2008 Making Meetings Meaningful Wednesday, April 23, 2008 Making Balance in Your Life a Reality Wednesday, May 28, 2008 Series Coordinators: Sheryl L. Randazzo, Esq. (Academy Advisory Committee Member) and Gail Blasie, Esq. (Academy Officer) Appreciation to Program Sponsor: Bank of Smithtown Time: Noon­1:15 p.m. (Registration from 11:30 a.m.) Location: SCBA Center Refreshments: Lunch MCLE: 1 ½ Hours (practice management) each session [Non-Transitional and Transitional]

Lunch `n Learn

ALTERNATIVE BILLING METHODS: How to Make Value Pricing Work in Your Practice

Wednesday, February 13, 2008

Billing can be the bane of the lawyer's existence: keeping track of hours and fractions of hours, communicating your methods to the client, keeping the client content when a matter takes longer than anticipated, etc., etc. You must have wondered if there's a better way. This luncheon program will explore alternatives you might want to consider ­ from value billing through other methods that should increase your comfort level with the entire billing process and add clarity to your dealings with those you serve. You will learn how to determine a reasonable fee, how to get clients beyond "sticker shock," how to create a fee structure that works," and how to communicate value. Faculty: Allison Shields, Esq. (President­Legal Ease Consulting, Inc.; former managing partner of a major law firm; Academy Officer) Appreciation to Program Sponsor: Bank of Smithtown Time: 12:30­2:10 p.m. (Registration from Noon.) Location: SCBA Center Refreshments: Lunch MCLE: 2 Hours (Practice Management) [Non-Transitional and Transitional]

MATRIMONIAL MONDAYS IN MARCH

Mondays, March 10, 17, 31, 2008

Three programs comprise this year's Matrimonial Mondays Series, the annual program-of-choice for divorce lawyers. To enhance the practical value of the seminars, demonstrations will complement the lectures.

I

EQUITABLE DISTRIBUTION: When Is It Not 50/50? March 10

ESTATE PRACTICE 101

The second seminar in this duo explores issues ranging from the mundane through the complex. If you missed Part I ­ "Wills vs. Trusts" ­ it is available in a recorded format (audiotape, CD, videotape, DVD).

Case law, illustrating various unequal distribution scenarios will be addressed, with references to valuation dates, enhanced earnings, practices and businesses, commencement of subsequent action following voluntary discontinuance of a prior action, long term separations, etc. A mock trial will follow the lecture. Faculty: Hon. John C. Bivona; Keith Rieger, Esq.; Dorothy A. Courten, Esq.; Donald R. Sallah, Esq.; Arthur E. Shulman, Esq. Coordinator: Robert P. Clemente, Esq. Appreciation to Program Sponsor: AXA Advisors

WHAT TO DO WHEN SOMEONE DIES

Tuesday, February 26, 2008

This seminar will address both the probate process and administration when there is no will. Probate forms, waivers of services, appointment of guardians, the petition, and many other

Presented in Conjunction with the Suffolk County Women's Bar Association & the SCBA Animal Law Committee

II

CASH BUSINESSES: Special Problems in Valuation March 17

This program will demonstrate how to identify and prove the undeclared income of a spouse. Instruction will be based on a fact pattern involving a husband who is a dis-

THE SUFFOLK LAWYER -- JANUARY 2008

25

SUFFOLK ACADEMY OF LAW

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

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

abled police officer (retired on disability and a stay-athome dad) and a wife who owns a restaurant with a significant cash catering business. Faculty: Hon. Carol MacKenzie; Joel Rackower, CPA; Patricia Condon, Esq.; Jeffrey Horn, Esq. Coordinator: Arthur E. Shulman Wende Doniger; Arthur Shulman; Stephen Kunken; William Ferris; Michael Isernia MCLE: 8 Hours (1 ethics; 3 skills; 4 prof. practice) - Transitional Time: 8:30 a.m.­4:30 p.m. (Registration from 8:15 a.m.) Both Days: Location: SCBA Center (560 Wheeler Rd., Hauppauge) Refreshments: Continental breakfast and lunch buffet Program Committee: Stephen Kunken; William Ferris; Felix Wienclaw; Wende Doniger; Alan Todd Costell; Arthur Shulman; Diane Farrell; Dorothy Paine Ceparano

III

DISCOVERY & ENFORCEMENT OF DISCOVERY March 31

Focus will be on the all important process of finding the key information in a matrimonial matter, even when the other side is not immediately forthcoming. Lectures and demonstration bring out key concepts and provide practical advice. Faculty: Hon. Mark Cohen; Vincent Stempel, Esq.; Robert G. McDermott, Esq. Coordinator: Linda A.. Kurtzberg, Esq.

JANUARY 2008 REGISTRATION FORM

Return to Suffolk Academy of Law, 560 Wheeler Road, Hauppauge, NY 11788 Circle course choices & mail form with payment // Charged Registrations may be faxed (631-234-5899) or phoned in (631-234-5588). Sales Tax Included in recording & material orders.

COURSE SCBA Member SCBA Student Member NonMember Attorney Seas on Pass 12 Sess. Pass MCLE Pass BridgeGap Pass DVD Video Tape

CD

Audio Tape

Course Book

Each Matrimonial Program: Time: 6­9 p.m. // Registration from 5:30 p.m. Location: SCBA Center Refreshments: Light supper MCLE: 3 Hours (2 ½ professional practice; ½ ethics) [Transitional/Non-Transitional]

WINTER UPDATES

Elder Law Update Matrimonial Update

$110 $110 $75 $75 $150 $160

Yes Yes Yes Yes

3 cpn 3 cpn

3 cpn 3 cpn

$180 $185

$170 $170

$140 $140

$130 $130

$25 $25

Three-Part Series

COMMERCIAL REAL ESTATE

Tuesdays, March 11,18, 25, 2008

Virtually everything you want to know about commercial real estate ­ from pre-contract negotiations through zoning and environmental issues ­ will be covered in this three-part series.

MULTI-PART PROGRAMS & SERIES

Time Management Series

Feb - What to Do March - Delegation April - Meetings May - Balance in Life Single Session = $25 ea Three or more = $20 ea. Single Session = $15 ea Three or more $10 ea Single Session = $35 Three or more = $30 ea

Yes One use for three classes

One coupon each class One coupon each class

N/A

N/A

N/A

N/A

N/A

SESSION ONE ­ March 11

Topics: Pre-contract issues/considerations (e.g., choice of entity) Invited Faculty: Abe Krieger, Esq.; Others TBA

SESSION TWO ­ March 18

Topics: Title Issues; Surveys; Mortgage Issues Invited Faculty: Vincent Ferro, Esq.; Stan Lasher, Esq.; Michael Heller, Esq. Robert Wilk, Esq.

SESSION THREE ­ March 25

Topics: Environmental Issues; Zoning Issues Invited Faculty: Fred Eisenbud, Esq.; Michael White, Esq.; Chuck Merritt (Environmental Clean-Up Expert); Pamela Green, Esq.; Eugene Barnosky, Esq.; Gary Weintraub, Esq.

Estate Practice 101

- When Someone Dies

Matrimonial Mondays 1 Equitable Distribution 2 Cash Businesses 3 Discovery Land Use Symposium

Yes

1 Use 3 cpns 3 cpns 8 cpn 3 ea

$150

$125

$100

$90

$20

$ 85

$225 $90 ea

$ 50

$100 $60 ea

$100

$300 $110 ea Yes Yes - 3 1 ea

8 cpn 3 ea

$400 series $150 ea

$350 series $125 ea

$275 series $100 ea

$250 series $ 90 ea

$50 $20 ea

EACH SESSION:

Coordinators: J. David Eldridge (Chair); John R. Calcagni; Vincent Ferro; Kevin Johnston; Stanley Lacher; Lita Smith-Mines; Joseph Rosenthal Time: 6:00­9:00 p.m. (Registration from 5:30 p.m.) Location: SCBA Center Refreshments: Light supper MCLE: 3 Hours (professional practice) [Non-Transitional and Transitional]

$200

$125

$300

Yes Yes

2 Uses 3 Uses

5 cpn 8 cpns 3 cpns 3 cpns 3 cpns 1 cpn each

5 cpn 8 cpns 3 cpns 3 cpns 3 cpns 1 cpn each

$300

$350 $150 $150 $150 N/A

$275

$300 $125 $125 $125 N/A

$250

$250 $100 $100 $100 N/A

$200

$225 $90 $90 $90 N/A

$50

$50 $20 $20 $20 N/A

Commercial Real Estate Session 1 (Pre-K) Session 2 (Title, Etc) Session 3 (Zoning, Etc)

Crime Lab March Session April Session

$200 $ 85 $ 85 $ 85

$75 $40 $40

$100 $ 50 $ 50 $ 50

$45 $25 $25

$250 $100 $100 $100

$80 $45 $45

Developed by the SCBA County Court Committee

Yes

IN THE CRIME LAB

Wednesdays, March 12, and April 16, 2008

Two seminars criminal practitioners will not want to miss will be held in the crime lab at the Arthur M. Cromarty Courthouse in Riverhead. As space is limited, be sure to register early. Session One (March 12): Body fluids, serology, DNA Session Two (April 16): Ballistics, firearms, chemistry (narcotics) Faculty: Hon. C. Randall Hinrichs (County Court); Jeremy J. Sclieppi (Major Crime Bureau­Office of the Suffolk County District Attorney); Crime Lab Staff Coordinator: William T. Ferris (Bracken & Margolin // Past Academy Dean) Time: 12:15 ­ 1:45 p.m. (Registration from Noon) Location: Arthur M. Cromarty Courthouse­Riverhead MCLE: 1 ½ Hours (professional practice) [Non-Transitional and Transitional]

1 Use each

SEMINARS & LUNCH `N LEARNS

Search Warrant/Wiretap Alternative Billing Animal Abusers & Family Violence $55 $50 $40 $35 $35 $30 $85 $60 $40 Yes Yes Yes Yes Yes Yes 2 cpn 2 cpn 2 cpn 2 cpn 2 cpn 2 cpn $125 $125 TBA $100 $100 TBA $90 $90 TBA $80 $80 TBA $10 $20 TBA

BRIDGE-THE-GAP (TRANSITIONAL) TRAINING

CLE Weekend

(Admitted more than 2 yrs.)

BRIDGE THE GAP "WEEKEND"FOR NEW LAWYERS

Friday, February 29, and Saturday, March 1, 2008

This two-day training program provides 16 credits, or a full year's worth of requirements, for new lawyers. The first day focuses on transitional practice, the second on litigation. Enrollment in the full program is recommended, but either day may be taken as a single entity. TRANSITIONAL TOPICS (2/29/08): Ethics; Residential Real Estate; Environmental Law; Small Business Formation; Wills & Estates; choice between Negotiating or Legal Writing workshop MCLE: 8 Hours (2 ethics; 3 skills; 3 prof. practice) Transitional Time: 8:00 a.m.­4:45 p.m. (Registration from 7:45 a.m.) LITIGATION TOPICS (3/01/08): Introduction to the Court System; Introduction to Federal Practice; Handling a Civil Case; Handling an Uncontested Matrimonial; Handling a Criminal Case; New York Notary Law Faculty: Barry Warren; Barry Smolowitz; Neil Block; Gail Blasie; Diane Farrell; Lita Smith-Mines; Frederick Eisenbud; John Calcagni; Scott McBride; George Roach; Suffolk Administrative Judge H. Patrick Leis, III; Hon. Ralph Costello; Hon. Gigi Spelman; D. Daniel Engstrand, Jr.;

$195

($300)

$195 $125 $125

$195

($350)

Yes

N/A

Yes­3 N/A Yes--2 N/A Yes--2 N/A

N/A

Yes­12

N/A

N/A

N/A

N/A

N/A

Day 1 only - Transactional

(Admitted more than 2 yrs.)

$125

($200)

$125

($250)

Yes

N/A

N/A

Yes­7

N/A

N/A

N/A

N/A

N/A

Day 2 only - Litigation

(Admitted more than 2 yrs.)

$125

($200)

$125

($250)

Yes

N/A

N/A

Yes­7

N/A

N/A

N/A

N/A

N/A

Name: Address: Phone: TOTAL TUITION $ METHOD OF PAYMENT + tax-deductible donation Check (check payable to Suffolk Academy of Law) E-Mail =$ Cash TOTAL ENCLOSED

Credit Card: American Express MasterCard VISA Discover Account # Exp. Date: Signature:

26

THE SUFFOLK LAWYER -- JANUARY 2008

SUFFOLK LAWYER SERVICE DIRECTORY

newspapers

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I'll bet you spend more money on gas driving all the way out to riverhead than our

Cell: (631) 766-1825

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Renovated front porch Colonial in historic district, close to Supreme Court. Onsite parking, handicapped accessible, security system, telephone system, AC, underground sprinkler, turnkey condiction. Ideal for owner occupant or 1031 exchange.

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You `ve got better things to do with your valuable time than sit in traffic. So let an experienced, reliable attorney appear for you. Just brief me on the phone, give me any necessary instructions and fax any relevant documents. I'll do the rest and you will have a copy of the order and a complete report by lunch.

EXPERIENCED IMMIGRATION ATTORNEY

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Check out our website at SUFFOLKSUPREME.COM Or Contact James D. Moran P: (631) 805-2546 Fax/Voicemail: (866) 860-9323

Commack

Office Space for Rent or Possible Purchase 1-4 First Floor Offices with use of waiting room, conference room and usual amenities Call Lynne A. Kramer 631-761-7127 or email [email protected]

Wall Street Office

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REACH MEMBERS OF THE BENCH AND BAR IN SUFFOLK, NASSAU, QUEENS & KINGS COUNTIES THROUGH

DEADLINES: The third of the month prior to the month of publication. For example, ads for the February publications deadline at the end of the 3rd week in January. All ads are subject to publisher's approval.

Fax your ad to: Long Islander Newspapers, LLC. 631-427-5820 or call 631-427-7000 for personal assistance

LONG-ISLANDER NEWSPAPERS'

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We accept Visa or MasterCard or payment can be mailed to: Long Islander Newspapers, LLC., 149 Main Street, Huntington, NY 11743

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THE SUFFOLK LAWYER -- JANUARY 2008

27

Welcome Touro Students

Benyamin Abed Eric Aboulafia Isaac Abraham Melissa Abraham Robert Adler Lauren Ahern Richard Ain Erick Alahverdian Emil Albanese George Alexander Samina Ali Jessica Almeida Elizabeth Alva Pamela Anevski Adam Ansanelli John Anselmo Lawrence Antoniello Caithlin Appleby Danielle Arre Sardar Asadullah Bryan Askew Antonia Assenso Peter Attanasio Tracy Auguste-Bernor Nicanor Avila Laura Aviles Ian Axelrod Jason Aylesworth Donna Azoulay Amanda Bagatta Laura Bahmanzad Volha Balandzina Rudolph Baptiste Sharon Barkume Sigalle Barness Paul Baron Michael Barone Sophia Barthelemy Jonathan Bartlett Khairul Bashar Gregory Basso Sean Beaton Han Sheng Beh Natalie Behm Jared Behr Yan Belenky Jennifer Belk Byron Belser Sunil Bendale Alexander Berger Zachary Beriloff Katie Berka Alyson Berman Haywood Berman Lauren Bernard Ronald Bernstein Jessica Berrios Aleksandr Bespalov Anthony Bianco Michael Bilbao Matthew Birnbaum Liliana Birziche Shanna Black Jessica Blake Penelope BlizzardMcGrath Jarred Blumer Mary Boamah James Bongiorno Jessica Bookstaver Maggie Bopp Gregory Borah Erica Borgese Biana Borukhovich Christopher Bowers Kevin Bowman Michael Brangan Benjamin Bravmann Katherine Breazier Ronald Breuer John Brigandi Lisa Brockington Wayne Broder Jaime Broderick Felicia Bromes Kara Brown Jamel Brown Ronald Brown Kerri Brugger Nicole Bruszewski Matthew Bruzzese Lane Bubka Nathan Bucar Athena BuchananAlleyne Mechelle Buksar Barbara Burke Denise Burnell Konstantin Burshteyn Kevin Burton Teresa Butler Tiffany Byczkowski Michael Byk Deidre Byrne Steven Cacciola Kathryn Cafaro Metin Caglar Salvatore Calcagno Vincent Candurra Amy Caputo Ashley Carlton Ross Carmel Julie Carter Dontae Carter Margaret Carucci Alyssa Casale Rosalinde Casalini Kevin Casey John Cestaro Inbal Chaikin Mukta Chand Vineet Chandhok Mabel Chandy Nancy Chanin Ilene Chanin Vick Chauhan Bo Chen Gabrielle Chimienti Liya Chitishvili Nicholas Chiuchiolo Steve Choe Christian Choi Jakyung Choi Kiren Choudhry Ferdusi Chowdhury Inna Chumikova Michael Ciaccio Maria Antonietta Cipollone James Ciscone Vincent Civitano Matthew Clark Christopher Clarke Jennifer Clonmell Riana Cohen William Cohen Scott Cohn Matthew Colbert Andrew Cole Gregory Coleman Laura Coleman Julie Collins Dustin Collins Regina Competiello Josie Marie Conelley Nicholas Connolly John Cooney Lisa Cooperstein Michelle Cordner Jason Corrar Jesse Cotter Cyntrena Cross Stephanie Cunha Lauren Currie Daniel Cutler Danielle D'Abate Robin Daleo Farije Dalipi Eric Dalloo Michael D'Ambrosio Joseph D'Amico John Danzi Caitlin Davidson Courtney Davy Olena Davydan Daniel De Pasquale Maria DeGennaro Caitlin DeGuilo Jean Delisle Jennifer Dellova Thomas DeLuca Simone Demelo Diana Dessources Rambabu Dhakal Vincent Diaz Jacquelyn DiCicco Tara Lynn Diener Michael DiGiaro Angelo DiMaggio Megan DiMiceli Kristi DiPaolo Nicholas DiSalvo Nigar Djalilova Seth Dobbs Maxine Donskoi Janika Doobay Robert Dooley Timothy Dougherty James Dougherty Anita Douglas Melissa Doyle Richard Drum Christian Dubuche Alyssa Dunn Evrard Duplan Lisa Dvoskin Fawn Dyer Thomas Eck Elyse Eisen Yehudit Elkayam George Embriano Rebecca Emmans Alison Epilone Joshua Epstein Joseph Ernst Giovanni Escobedo Gregory Esposito Daniel Evers Bernard Eyth Bumi Falaye Timothy Faller Michael Farina Jeannine Farino Crysti Farra-Howard Shamus Featherstone Brittni Feldenkreis John Fellin Brian Fetzko Kathryn Fieseler Frank Filopei Henry-Claude Fils-Aime Patrick Finley George Finn Patricia Finneran Jim Fiorillo Kerry Fisher Catherine Fitzgerald Jacqueline Fortier Carissa Fox Steven Fox Barry Frankenstein Alexander Frankiewicz Mark Fridman Sansan Fung David Gamzeh Jaclyn Garfinkel Stacey Gedell Elizabeth Geevarughese Margarita Gekhtbarg Dionisios Georgatos Guy Germano Nicole Giambarrese Nicholas Giasullo Peter Giattino James Gibbons Samuel Gilad Andrew Gilbride Gregory Gillen Martha Gillespie Kenneth Gillespie Timothy Gilligan Jason Gines Joseph Giordano Katie Giusti Constantine Gleboff Philip Glorieux Jared Glugeth Lindsay Godt Justin Goldberg Matthew Goldgrub Anna Goldman David Goldman Erika Goldstein Daniel Gomez-Sanchez Yevgeniya Gorbacheva Ronald Gordon Gary Gorske Carl Gossett David Graff Henry Graham Annemarie Grattan Jamie Grecco Robert Greco Amanda Green Bethany Green Carlotta Griffin Thomas Griffin Kevin Griffiths Salvatore Grimaldo Rachel Grinspan Jessica Griswold Joseph Gulino Jr. Sunaina Gupta Anita Gupta Cristine Gutierrez-Sivec Nathan Haber Gohar Habib Daniel Hallak Samara Halpern Lauren Hanley

The SCBA welcomes 100% bar membership participation by the students of Touro Law Center. On behalf of the Executive Committee and Board of Directors, we thank the Touro support staff and particularly Dean Lawrence Raful for making this a reality. Please help us extend a warm greeting to the following new law student members. -- Barry M.

Anna Kulumbegashvili Rachel Kupferman Dawn Kurc Todd Kurland Elizabeth Lambert-Gullo Olga Lankios Brett Larson Salvatore Laurita Bennet Leder Rachel Lee Kevin Lee Sang-Bo Lee Jeongwha Lee Moises Lee Leoney Lee Jaime Lehrer Evan Lerner Mark Levin Brian Levine Jennifer Levine Stephanie Liantonio Brian Libert Ferron Lien Danielle Light Susan Lipsky Patrick Loman Caryl Lopez Andrea Lorincz Larisa Love Chaleff James Lucarello Melissa Luckman Michael Lui Zach Lyon Malachy Lyons Tianna Lyons Scott Mac Lagan Lauchlin Mac Neil Joseph Maehr Patrick Magee Jonathan Maida Malaika Makembe Ray Malone Brendan Maloney Danielle Malovic Josepha Malvoisin Diane Mandleur Jonathan Mann Jessica Mannix Kathleen Marchese Jonathan Marconi Jonathan Marin Charles Marino Salvatore Marino Matthew Markoff Adam Markou Bradly Marks Tina Marone-Johnson Douglas Marquez Nathalie Martelly Jennifer Martin Suneydis Martinez Sarah Marx ToniAnn Mascia Jessica Mascolo Diane Matero Matthew Mays Michael Mazalatis Sheri McCarthy Gerard McCarthy Jessica McClung Jamie McFarlane Michael McGrath Erik McKenna Ryan McKeon Mary McLaughlin Brian McLoughlin Patrick McNamara Thomas McTear Denise Medolla Olga Medyukh Adam Meiskin Ethiel Melecio Neal Mellert Miriam Metwaly Marissa Meyer Aaron Meyer Joseph Militello Christopher Miller Lindsey Miller Jessica Miller Marlena Miller Raymond Miller Kristina Milone Rose-May Milord Andrea Mims Jacqueline Missick Priyanjali Mistry Dov Mochari Matthew Moisan Michelle Moldovan Danielle Montecalvo Elizabeth Morse Yuriy Moshes Diana Mullaev Michelle Mungalsingh Jesse Munguia Rafael Muniz Jacqueline Muratore Kera Murphy Caitlin Murphy Imtiaz Mussa Ali Naraghi Levan Natalishvili Michael Nathan Kyle Newman Patrick Nolan Melanie Nolan Benjamin Noren Athena Norman Gregg Novak Arjun Nrupathunga Samuel Nunberg Brooke Nuoffer Kelly O'Brien Timothy O'Meara Jacquelyn O'Neil Javier Ortiz Sandra Ostwald Jennifer Over Eric Pack Lauren Padian Alexander Paine Harry Pappas Justina Parrello Melissa 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THE SUFFOLK LAWYER -- JANUARY 2008 More Academy News on pages 22-23; CLE Course Listings on pages 24-25

ACADEMY OF LAW NEWS

Vendors Invited to Apply for Exhibit Space

Last spring's Legal Trade Show sponsored by the Suffolk and Nassau Bar Associations in conjunction with State Bank of Long Island was a mammoth and exhilarating affair in all respects. The room was packed with exhibits. Huge balloons floated overhead. Lawyers and law-office staffers filled the aisles examining a plethora of goods and services. Hundreds attended the free CLE seminars. Food, of all sorts (from bagels to hot dogs to a lavish lunch buffet), was ample, delicious, and complimentary. Microphones crackled with excitement throughout the day as giveaways and raffle prizes were announced. Plans are now underway for the 2008 trade show. Scheduled for Wednesday, May 21, at the Huntington Hilton Hotel, the event should be a worthy successor to last year's show. Would-be exhibitors are advised to seek their spots as soon as possible. Booths (a limited number available) are $900, a fee that covers not only the exhibit space, but other valuable promotional perquisites as well. Exhibitors will be chosen on the basis of potential interest to the legal profession, overall variety of the exhibit floor, and timeliness of the application. To inquire about obtaining an exhibit booth, call Steven Biegelsen (State Bank First V.P.) at 516-240-6248.

Revving Up for the 2008 Legal Trade Show

Last year's trade show floor.

_________________________ By Patricia M. Meisenheimer

Exceptional Faculty Assembled For Land Use Symposium

servation of the land. Whether you represent a municipality, landowner, or developer, you will find the Suffolk Academy of Law's upcoming symposium a beneficial guide to the intricate local, regional

Land Use Law encompasses the full range of laws and regulations that influence or affect the development and con-

ACADEMY

ndar C ale

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.

February Meeting of Academy Officers & Volunteers. 7:30­9:00 a.m. Breakfast. All welcome. 5 Tuesday Lunch `n Learn: Criminal Law­Searches & Wiretaps. 12:30­2:10 p.m. Sign-in and lunch from Noon. 13 Wednesday Lunch `n Learn: Alternative Billing. 12:15­2:30 p.m. Sign-in and lunch from Noon 14 Thursday Matinee: Annual Elder Law Update (George Roach). 2:00­5:00 p.m. Sign-in and snacks from 1:30 p.m. 19 Tuesday Animal Abusers & Domestic Violence. 6:00­8:00 p.m. Sign in and light supper from 5:30 p.m. 26 Tuesday Estate Practice II: After Someone Dies. 6-9 p.m. Sign-in and light supper from 5:30 p.m. 27 Wednesday Time Management Lunch Series: "What To Do and What Not To Do." Noon­1:15 p.m. Registration from 11:30 a.m. 29 Friday Bridge-the-Gap Weekend­Part I (Transactional Practice). 8 a.m.­ 4:45 p.m. Sign in and continental breakfast from 7:45 a.m. Weekend continues on Saturday, March 1­Part II (Litigation). 8:30 a.m.­4:30 p.m. Sign-in and continental breakfast from 8:15 a.m. March 3 5 7 10 11 12 26 27 2008 Matrimonial Law Update (Stephen Gassman). 6­9 p.m. Sign-in and light supper from 5:30 p.m. Wednesday Land Use Symposium (continues on March 19). 6 p.m. Signin and light supper from 5:30 p.m. Friday Meeting of Academy Officers & Volunteers. 7:30­9:00 a.m. Breakfast. All welcome. Monday Matrimonial Mondays Series begins. Continues on March 17 and 31. 6­9 p.m. Sign-in and light supper from 5:30 p.m. Tuesday Commercial Real Estate Series begins. Continues on March 18 and 25. 6­9 p.m. Sign-in and light supper from 5:30 p.m. Wednesday In the Crime Lab: Body Fluids, Serology, DNA. 12:15­145. Arthur M. Cromarty Courthouse, Riverhead. (Part 2: April 16­Ballistics, Firearms, & Chemistry) Wednesday Time Management Lunch Series: "Delegating." Noon­1:15 p.m. Registration from 11:30 a.m. Thursday Hot Topics in Animal Law Practice. 6­9 p.m. Sign-in and light supper from 5:30 p.m. Monday 1 Friday

and state issues involved in land use law. Presented over the course of two evenings ­ Wednesday, March 5, and Wednesday, March 19 ­ the symposium aims to broaden the legal community's knowledge of land use planning, regulation and litigation, and to assist the practitioner in avoiding minefields in everyday practice. Ownership of land and the right to a landowner's full enjoyment of that land is a protected constitutional right; however, this right is not an unrestricted license to use land without regard to the impact of such use upon the land itself and upon the rights of others. State law governing land uses, and the local procedures that apply to them, are a blend of both case law and statutory law. This course will examine how land use is shaped and controlled through government regulation. The program will provide a comprehensive analysis of Land Use Law, integrated with a full review of the planning, zoning and regulatory framework necessary in this area of law, including the enactment, administration and enforcement of regulations. Comprehensive zoning, the most widely used legal tool used to restrict land use and to implement community planning, as well as land use controls and the consequences of zoning and planning decisions, will be explored in depth by an outstanding faculty. As it is axiomatic that all who practice in this area must be conversant with ethical issues that may arise in providing advice to clients and advisory bodies, ethical principles and guidance in land use decision making will be explored. The symposium's eminent faculty includes Moderator, Harvey B. Besunder, Past Present of the Suffolk County Bar Association, who will give an update on

post Kelo eminent domain issues; Anthony B. Tohill, Anthony B. Tohill, P.C., who will discuss variances, site planning and wetlands; Terry J. Karl, Russo, Fox & Karl, who will talk about applications and legislative hearings; Maureen T. Liccione, Jaspan, Schlesinger & Hoffman, LLP, on representing municipalities, advisory boards and preparing an Article 78 proceeding for the municipality; Linda U. Margolin, Bracken & Margolin, LLP, who will explore in detail Article 78 proceedings and declaratory judgments; David N. Yaffe, Hamburger, Maxson & Yaffe, who will discuss moratoria, Constitutionality and aspects of litigation; Hon. Emily Pines, Suffolk County Supreme Court, who will discuss professional ethical principles and considerations; Hon. Paul J. Baisley, Jr., Suffolk County Supreme Court, who will give a perspective from the bench, exploring the key issues in judicial review of land use decisions. The all-encompassing course materials will be assembled into a comprehensive manual and land use road map that will serve practitioners well into the future. During a recent planning meeting, the faculty enthusiastically and with incredible passion, discussed the issues that confront the land use practitioner. This knowledgeable, experienced and eloquent faculty will deliver a noteworthy, comprehensive and not to be missed program, which promises to be both an enlightening and entertaining experience for all who attend. The author, Pat Meisenheimer, is the Dean of the Suffolk Academy of Law and practices in the area of personal injury, medical malpractice and general litigation with Bracken & Margolin, LLP in Islandia. In addition, she is a Director of the Suffolk County Bar Association.

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

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