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Vol. 25 No 5 January 2009

Historic Installation Of Judges

____________________ By Sarah Jane LaCova


The Suffolk County Bar Association sponsored its annual judicial swearing-in and robing ceremony on Monday, January 5 at Touro Law Center in Central Islip for 11 elected justices and judges. A standingroom-only crowd of dignitaries and well wishers were in attendance. The justices, judges, and members of the Executive Committee filed in behind an honor guard of Court Officers who presented the colors and formally stood at watch throughout the proceedings. James R. Winkler, president of the Suffolk County Bar Association and host of the ceremony remarked that the event continues a time-honored tradition in which the SCBA presents newly elected judges with their first set of judicial robes, a symbol of the mantle of the office to which they were elected and a gift from the members of the association. Veteran judges inducted received a crystal plaque as a memento of the occasion. President Winkler said this year is particularly memorable in our history as we are inducting our first Hispanic Justice of the Supreme Court in Suffolk County. To start the ceremony, President Winkler introduced District Court Judge Stephen M. Behar who gave the Invocation, followed by a beautiful rendition of The National Anthem sung by former SCBA director John B. Zollo. With 11 inductees and guest justices and judges, the dais was overflowing for this year's annual event. Suffolk's District Administrative Judge H. Patrick Leis III presided over the ceremony, remarking on

Suffolk County District Administrative Judge H. Patrick Leis III administering the Oath of Office to the three newly elected Supreme Court Justices, from left, Jerry Garguilo, Hector LaSalle, and William J. Condon. More photos on p.15.

the excellent relationship between members of the bench and bar. He mentioned that we in Suffolk County have among us the finest judges in the state including our Presiding Justice A. Gail Prudenti, who is a Suffolk County Supreme Court Justice. In his opening remarks, Justice Leis explained to the audience that when the new judges leave the auditorium, they bring with them new titles or forms of address - "Your Honor" or "Judge" when presiding over the court. The Judges of the Supreme Court are called "Justices." These titles recognize the character traits that a person elected or appointed as judge should possess. Three Suffolk County justices elected to the Supreme Court bench were installed: Hon. William J. Condon, Hon. Jerry Garguilo and Hon. Hector LaSalle. The theme the sponsors described exemplified their character, compassion, discipline and

a love of the law that is needed to fulfill their roles in the justice legal system. Justice LaSalle's sponsor, Suffolk County Legislator Ricardo Montano, who represents the 9th District in which Touro Law Center sits, said he was proud of his dear friend with whom he had worked in various capacities of public service. President Winkler presented the newly elected justices with their first set of judicial robes and Justice Leis administered the Oath of Office. The Oath of Office for the three County Court Judges, re-elected Judge Joseph Farneti, newly elected Judge James F. Quinn and re-elected Judge Jeffrey Arlen Spinner was administered by the Honorable C. Randall Hinrichs, Supervising Judge of the Criminal Terms of the Courts within the County of Suffolk, Tenth Judicial District. The Honorable Jennifer Anne Henry, newly elected to the District Court was

sponsored by retired Court of Claims Judge Michael F. Mullen with whom she worked for six years until his retirement. It was a poignant moment when her father, retired Justice Patrick Henry administered the Oath of Office to her. Following the break in tradition (District Court Judges are sworn in by the Supervising Judge of the District Court), Judge Madeleine A. Fitzgibbon resumed her responsibility and administered the Oath of Office to the four remaining newly elected and re-elected District Court Judges: Hon. Paul M. Hensley, Hon. William G. Ford, Hon. John J. Toomey, Jr. and Hon. Stephen Ukeiley. Judge Ford waxed nostalgically about his parents who worked for over thirty years in the Central Islip Psychiatric Hospital and remarked that it is ironic that now in 2009, he will be sitting as a Judge of the District Court on virtually the same site. Judge Toomey was sponsored by his wife Dorothy. She said that her husband was devoted to the law and love of his family and was a firm and compassionate judge. The ceremony's theme described by sponsors and inductees was one of gratitude to their political leaders, mentors, parents, spouses, children and friends, and all were proud to serve the public and their communities. Another chapter has been added to Suffolk County's judicial history and Justice Leis, in his concluding remarks, wished his judges well and asked that they be thankful every day for the very great opportunity they have been given. Fittingly, he also wished all a very happy and peaceful New Year before adjourning the proceeding.

Photo by Barry Smolowitz


J A N U A R Y 2 0 0 9

Conversing Over a WWII Vet's Diary B-17 bomber operator/gunner's memories .........3 Sounding the Soul of Character Tolstoy's War and Peace...................................16 SCBA Holiday Party Magical Moments Holidays are over but memories aren't ............14 History's Tragedy Moves Artist Recreating lost statues of Buddha ......................4 Robing Ceremony Photos to commemorate the day .......................15 Nominating Committee Seeks Candidates Get involved in the SCBA ..................................16 Future Lawyers Forum Finding loan forgiveness .....................................7 ________________________________________ Legal Articles American Perspectives ......................................17 Appellate Litigation...........................................10 Bench Briefs ........................................................5 Business Law.....................................................17 Consumer Bankruptcy .......................................11 DMV ..................................................................13 For the Defense..................................................18 Matrimonial .........................................................6 Real Estate .........................................................12 Second Circuit Briefs ........................................13 Trusts and Estates ..............................................12 ________________________________________ Academy News..................................................26 Advantage Card Listings ...................................19 Among Us............................................................9 Calendar: Academy ...........................................28 Calendar: SCBA ................................................26 Committee Corner .............................................18 Note From Your Editor .......................................2


Is There Still a Tort Crisis?

_____________ By Jim Winkler


Diversity Symposium

Thursday, February 5 from 4 to 7 p.m. Bar Center

James R. Winkler

Welcome To Law Students

Monday, February 9, from 4 to 6 p.m. Great Hall Reception welcoming area Law Students to our Bar Association

More than four years ago an article appeared in The New York Times entitled "Cooking Up a Crisis." I cut it out, anticipating that I would serve a year as President of the Suffolk County Bar Association and might want to devote a column to the issue of tort reform. Four years have now passed and I hear very little from practicing lawyers here in Suffolk about this issue that was such a hot topic a few years ago. The New York Times article pointed out that "Tort Reform Zealots," including doctors, insurance companies, executives and politicians were railing against "crack pot jury awards" and lawsuits from "undeserving patients" who were driving up the costs of health care insurance and driving out doctors. During the 2004 Presidential election cycle George Bush ranted against what he called "junk and frivolous lawsuits" and argued that these suits were discouraging doctors from practicing in the first place. In that same year, the American Medical Association issued a proclamation stating that "20 States are in a full blown medical liability crisis." The AMA argued that this crisis was causing the

(Continued on Page 20)

Suffolk County Women's Bar 25th Anniversary Gala

"Celebrating Silver ­ Going for the Gold" Monday, March 30 at 6 p.m. Keynote speaker: Honorable M. Kunin, Ambassador and Former Vermont Governor, author of "Pearls, Politics and Power" The Watermill, Smithtown




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 2008-2009

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

Happy New Year everyone! I hope your holiday season was wonderful and wish you much happiness in 2009. Why not make one of your New Years resolutions writing for The Suffolk Lawyer? As I always say, the paper is a reflection of the members of the Suffolk County Bar Association. Why not share some of your talents and insights with your colleagues? Perhaps you'd like to write about something that hasn't appeared in our publication yet, or a trend in the legal field. I'm open to discussing all suggestions and ideas. So please contact me either by email at [email protected] or call me at (516) 376-2108. One last request -- feel free to write letters to the editor. It's Laura Lane refreshing to hear from you whether you write to congratulate one of the writers (always appreciated), have a suggestion, or even a criticism. The paper belongs to all of you so hearing from you is always welcome. Keep sending in those stories...... Peace and Prosperity, Laura Lane Editor-in-Chief

Important Information from the Lawyers Committee on Alcohol & Drug Abuse:

Thomas More Group Twelve-Step Meeting

Every Wednesday at 6 p.m., Parish Outreach House, Kings Road - Hauppauge All who are associated with the legal profession welcome.



dar alen C



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.

We wish to Acknowledge those who contributed to the Lawyer Assistance Foundation

Donor Barrocas & Rieger, LLP Dorothy A. Courten Joleen and Scott M. Karson Garrison LLP. Paul and Jane Ades Jane & Joe LaCova Staff at the SCBA Harvey B. Besunder Harvey B. Besundeer In memory of Alfred Besunder, father of Harvey B. Besunder In memory of Marc DeSimone In memory of Maurice Haberman Purpose In memory of Linda Kurtzberg's mother, Fay Hearing In memory of Paul Justin Reilly In memory of Bernard "Buck" Finkelstein, a retired partner at Paul, Weiss, Rifkind, Wharton &


JANUARY 2009 20 Tuesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room. 21 Wednesday Solo & Small Firm Practitioners Committee, 4:00 p.m., Board Room. 22 Thursday Real Property Committee, 6:00 p.m., Board Room. 26 Monday Board of Directors, 5:30 p.m., Board Room. 27 Tuesday Health & Hospital Law Committee, 6:00 p.m., President's Office. Professional Ethics & Civility Committee, 6:00 p.m., Board Room. FEBRUARY 2009 5 Thursday Diversity Symposium, the Bar, the Judiciary, ..., in Legal Education, Employment, 4:00 p.m. to 7:30 p.m., Bar Center, Complimentary Admission. Call Bar center for reservation. 9 Monday Executive Committee, 2:00 p.m., Board Room. Law Students reception, SCBA Bar Center, 4:00 p.m. to 6:00 p.m.. Further details forthcoming. 10 Tuesday Education Law Committee, 12:30 p.m., Board Room. Joint Surrogate Court/Taxation Law Committee, 6:00 p.m., Great Hall. 11 Wednesday Elder Law Committee, 12:15 p.m., Great Hall. 17 Tuesday Real Property Committee, 6:00 p.m., Board Room. 19 Thursday Appellate Practice Committee, 6:30 p.m., Board Room. 23 Monday Board of Directors, 5:30 p.m., Board Room. 24 Tuesday Professional Ethics & Civility Committee, 6:00 p.m., Board Room. MARCH 2009 4 Wednesday Solo & Small Firm Practitioners Committee, 4:00 p.m., Board Room. 9 Monday Executive Committee, 3:00 p.m., Board Room. 10 Tuesday Education Law Committee, 12:30 p.m., Board Room. 11 Wednesday Elder Law Committee, 12:15 p.m., Great Hall. Animal Law Committee, 6:00 p.m., Great Hall. 18 Wednesday Commercial & Corporate Law Committee, 5:30 p.m., Board Room. 19 Thursday Appellate Practice Committee, 6:30 p.m., Board Room. 23 Monday Board of Directors, 5:30 p.m., Board Room. 31 Tuesday Professional Ethics & Civility Committee, 6:00 p.m., Board Room.



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, 2009. 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, 631427-7000.

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


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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.

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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.



A Conversation Over A Long Lost Diary

__________________ By John L. Buonora

Photo courtesy of Gus Ginocchio.

dangerous " It is facingina the face challenge of fear that is a true measure of courage and of heroism.

August J. Ginocchio, "Gus" Ginocchio, recently turned 90 years of age. He is happily retired, living with Betty, his wife of 67 years. Gus retired four years ago from a very sucJohn L. Buonora cessful law practice in Babylon Village. Before becoming a lawyer Gus, like so many young men of his generation, enlisted in the military during World War II. Also, like so many young men of his generation who went to war, when his service to his country was over, he wanted to put it behind him and Gus and His Fellow Bomber Crew. Gus is second from the right in the first row. return to his loving family and embark on up. In speaking with Gus one readily sees a career in civilian life. his love for his family, his country, his proOnce his service in the United States fession and his God. Army Air Forces (as it was then known) was completed, Gus never thought much July 24, 1944: Mission Ten.... about the Big War nor did he think much Target Turin, Italy...... about a diary that he kept over an approxiThere was flak today but it wasn't accumately three month period in 1944 when rate... That stuff still scares hell out of me. he was flying missions as a radio operaThere is an old English proverb that "a tor/gunman in a B-17 Bomber over hero is a man who is afraid to run away." Europe. Some people say that a person "has no Gus flew 50 bombing missions during fear" meaning that person possesses the Second World War altogether logging courage. But I think that it takes no over 800 hours of flight time. He recorded courage to face something one does not his thoughts and exploits in this diary. Gus Ginocchio today. fear. It is the facing of a dangerous chalThey were entries in a notepad; you know, lenge in the face of fear that is a true meathe kind you see stenographers or cops or diary and the life and career of a very spesure of courage and of heroism. reporters use. It is an extraordinary timecial lawyer. As we discussed Gus' life, career and July 25, 1944: Missions Eleven and military service, my mind constantly driftTwelve ed to some of the mesmerizing passages Target Linz, Austria.......... from that diary. Another day of horror for us. Expected heaviest flak of our missions. Got it. July 18, 1944: Missions One and Two Target Memminger, Germany Gus has always been devoted to his wife Assembly Plant Betty. My first mission. To be honest I was July 26, 1944: Missions Thirteen and dead scared. I would watch how fast I was Fourteen.... breathing over the target by watching the Target Weiner Neudorf, Austria..... oxygen indicator. Today wasn't the best day to celebrate line of an extraordinary man during an To our surprise, no flak and no fighters. my third wedding anniversary, but I am extraordinary period in our history. As if However we later learned fifteen of our living and that is important. that wasn't enough, he later flew numerships were knocked down by German ous missions over the famous "Burma fighters. We were just in the right As a member of the 15th Air Force, Hump" - but more about that later. place...Although we came out easy, we Fifth Wing of the 463rd Bombardment Personal diaries are something intimate realized we were playing for keeps. Group flying over 800 hours Gus earned and special, usually not intended for the many honors. Among these honors were a eyes of anyone other than the writer. Diary Gus says that he was never meant to be Presidential Unit Citation (with his entire entries often are conversations that the a soldier. "I'm not a risk taker. I could unit), three Air Medals (including one with writer has with himself expressing his never see myself sticking a bayonet into oak leaf clusters for the American Theater, most intimate thoughts, hopes and fears to someone's gut," he said. European Theater, China-Burma-India no one but himself. It is a touching experiTheater, The World War II Victory Medal ence to read another person's diary. Doing July 20, 1944: Missions Five and Six... and the Good Conduct Medal. so allows the reader to almost look into the Still scared. Realize more than ever this soul of the writer. is a dangerous business. Why didn't they August 3, 1944: Missions Seventeen and Gus recorded factual information and send me to clerical school... Later learned Eighteen... his thoughts in flying 50 missions over that Mike Higgins, a close friend of our Target Friedrichshafen, Germany...... Europe. He was under no constraint or pilot, got it here on his first mission...God Ran into mechanical trouble today. Oil obligation to keep a diary. He just wanted stay with our crew. sputtered out of #1 engine. We had to to record his own thoughts and observafeather our prop. Lost altitude and speed tions, perhaps for future reflection. But "There are no atheists in foxholes" is a and fell behind formation, made us worry sometime after the War the diary was missaying whose origin is unclear. Among because Germany is not a place for a placed or lost, and wasn't found for others, it is attributed to legendary World straggling B-17. decades. War II correspondent Ernie Pyle. This truOnce their children were grown Gus and ism can certainly be said for those who At one point the commander of the Betty moved from their home in North face combat in the air as well. 463rd Bombardment Group was Lt. Babylon to a smaller condominium in Colonel Frank Kurtz who his men referred Holbrook. It was while cleaning out the July 22, 1944: Mission Nine...... to as "the War Lord" "because he was a house preparing for the move that Betty Target Ploesti, Rumania risk taker of the highest type." Lt. Colonel came upon the diary thereby resurrecting Still feel scared about this business... Kurtz named his plane "the Swoose" some of Gus innermost thoughts from a God please stay with us. because it seemed to be a combination of a generation ago. The finding of that diary swan and a goose. The plane had such a and my reading of it so many more years Gus has always been a devoutly relicolorful history and Lt. Colonel Kurtz later eventually led to my sitting down gious man. He was greatly influenced by became so attached to that appellation that with Gus in his kitchen to talk about that Catholic nuns and brothers while growing

Photo by John L. Buonora

Birth Of A New Column

The last article I wrote for the November Suffolk Lawyer, "The Greatest Generation... Maybe All of Them" generated a lot of feedback. I received a nice letter from SCBA member, Don Farinacci, who served in Vietnam and wrote a book entitled "Last Full Measure of Devotion, A Tribute to America's Heroes of the Vietnam War." I always enjoy hearing from our members, even if it is to point out some of my inadequacies. Former District Attorney and Retired Supreme Court Justice Patrick Henry reminded me that he served in the Navy during the Korean Conflict and not in the Merchant Marine during World War II as my last article indicated. The computer that sits between my ears had a bunch of information but it came out garbled as happens more and more often with some of us through the advancing years. The World War II service I meant to refer to was that of former District Attorney Lindsay Henry whose service is memorialized in a book written with his son and Patrick's brother, Tom Henry. It was Tom whose I career as a merchant mariner in addition to his service in the Navy that I "misremembered." The book Tom wrote with his Dad is entitled "Cracking Hitler's Atlantic Wall" which I'd like to talk about in a future article. I also received a call from my good friend Gus Fischel who told me he has all of this really great material on members who served their country in World War II. It was Gus' call that was the inspiration for the accompanying article on another "Gus," August J. Ginocchio, who served his country so well during the Second World War. I mentioned to Gus (Fischel, that is) that Suffolk Lawyer editor Laura Lane suggested, since there are so many really interesting stories out there, that we might want to consider including some of our members' patriotic service in a regular column. We both considered the possibility that perhaps our younger members might not identify with the exploits of "the old timers." We will let you, the reader, be the judge. - Buonora he named his daughter "Swoosie," as in Swoosie Kurtz who went on to be a renowned actress of stage and screen. August 6, 1944: Mission Nineteen: .... Target Le Pouzin, France......... Our engineer is no longer with us. He is in the hospital being treated for a mental disorder. Years later and after establishing a successful law practice in Babylon, Gus became very active in the Suffolk County Bar Association's Lawyers' Assistance Foundation as well as being one of the founders of the New York State Bar Association's Lawyers' Assistance Foundation. Always ready to help those in need, Gus would say that "Lawyers helped me when I was down" and he would and (Continued on page 21)







Communicating By Creating Art

Tragedy Far Away Inspires

Photo courtesy of Chuck Von Schmidt

Artist Chuck von Schmidt bending a piece of steel to weld together a form to slump a piece of fused glass for the Ark he made for Temple Beth Torah in Melville. ____________ By Laura Lane


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Spirituality guides many people's lives. For some it is a fascination, a quest of sorts to unravel and study. And for others it is a passion expressed best artistically. Although SCBA member Chuck von Schmidt never considered spirituality to be a driving force in his life, it has nonetheless touched him artistically. His most successful pieces personify spirituality as do his most recent works. Mr. von Schmidt is currently preparing for his upcoming one-man exhibition, "Bamiyan, From Silk To Lava" that celebrates the lost colossal statues of Buddha on the historic Silk Road in Afghanistan. "Religion is not important to me consciously, but it seems to be a continuing thread in my work," he said. "My first piece I considered to be a sculpture, I made as a preteen. It was the Virgin Mary. And three of my best pieces are involved in some kind of religion; I think it's a coincidence. But I do believe that in many respects certain aspects of religion are a part of our life." He was inspired to create the pieces included in his next exhibit in Manhattan's Chelsea by the destruction of other artwork. In March of 2001, the Afghan Taliban blew up statues of Buddha on the Silk Road in the Bamiyan Valley in Afghanistan. The statues measuring 55 and 37 meters high respectively, were the largest examples of standing Buddha carvings in the world and were probably erected in the 4th or 5th century. When Mr. von Schmidt learned of the destruction of the ancient works he remembered the pieces and was devastated. And the more he thought about it, the more it (Continued on page 20)

Two sculptures from "Bamiyan, From Silk To Lava," included in Chuck von Schmidt's upcoming exhibition in Chelsea.

Chuck von Schmidt's one-man exhibition "Bamiyan, From Silk To Lava" Noho Gallery 530 West 25th St., Chelsea January 20 to February 14 631-274-3201

* 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.

SCBA member Chuck von Schmidt's crystal sculpture, "The Ideals of Aaron", presented to Pope John Paul II, in 2005.




Suffolk County Supreme Court

Honorable Joseph Farneti Motion to restore the instant action to the calendar denied; CPLR §3216 inapplicable. In Sean Marcolin Bunting v. Harry C. Demiris, Jr. and the Law Offices of Harry C. Demiris, Jr., Index No. 1060505, decided on September 9, 2008, the court denied plaintiff's motion for an order pursuant to CPLR §3216, restoring the instant action to the court's calendar, and upon restoration, compelling defendants to perform its remaining obligations under the terms of a settlement agreement. The court noted that plaintiff's argument was misplaced. The court reasoned that CPLR §3216 may not be utilized if a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof. Honorable John J.J. Jones Petition for stay of arbitration denied; conclusory allegations insufficient to establish contract of adhesion or unconscionability. In In the Matter of the Application for an Order Staying Arbitration Between Randolph Rydout v. Swimming Pools by John Schoeck, Inc., Index No. 002604708, decided on November 13, 2008, the court denied the petition for a stay of the arbitration sought by the respondent and dismissed the petition. The court reasoned that the petitioner's conclusory allegations failed to demonstrate that the agreement between the parties was a contract of adhesion or that the agreement to arbitrate was unconscionable. The court noted that the enforceability of arbitration agreements was governed by the rules applicable to contracts generally. The court further noted that mutuality of remedy was not required in an arbitration agreement and if there was consideration for the entire agreement such consideration would support the arbitration option as well as every other obligation in the agreement. Honorable Peter H. Mayer Motion for judgment of default denied; failure to satisfy CPLR §306(a). In P.C. Richard & Son Long Island Corp., v. Crystal Springs Resort Development, Index No. 10235-08, decided on November 25, 2008, the court denied plaintiff's motion for a judgment of default against the defendant. The court reasoned that despite the specific addresses attributed to the defendant in the summons and invoice, the affidavit of service was nondescript with regard to the address at which service was purportedly effectuated. The court found that such a vague description failed to satisfy the specificity required by CPLR §306(a). The court further noted that since the affidavit of service failed to set forth the specific address at which service was purportedly made, it was unreliable proof upon which to establish jurisdiction over the defendant or to grant a judgment by default. Honorable Emily Pines Motion for summary judgment denied; untimely. In Doreen Henry v. Dominican Village, Inc., Index No. 27382-05, decided on July 10, 2008, the court denied defendant's summary judgment motion. The court held that it did not have discretion to entertain the motion on its merits. The court noted that where a court does not set a date by which summary judgment motions must be made pursuant to CPLR §3212(a), such a motion must be made no later than 120 days after the filing of the note of issue except with leave of the court on good cause shown. The court reasoned that absent a showing of good cause, a late summary judgment motion may not be considered, even if it appeared to have merit and the delay had not prejudiced the adversary. Motion quashing subpoena ad testificandum granted; defendants failed to demonstrate special circumstances. In Brittany Owens v. Petland Discounts, Inc., and Christopher Prokop, Index No. 00236-06, decided on February 4, 2008, the court granted plaintiff's motion quashing the Subpoena Ad Testificandum served upon non-parties. Plaintiff argued that the subpoenas should be quashed because the defendants failed to demonstrate the special circumstances required to conduct non party witness depositions or treating physicians. Plaintiff further argued that the subpoenas were defective because they fail to state any special circumstance or reason which would require the depositions of the non-party health care providers. In granting the motion, the court reasoned that the defendants had not demonstrated that the notes/records provided by these treating providers were insufficient to enable them to prepare for trial. Honorable Sandra L. Sgroi Motion to renew and reargue denied; matter remitted to a different arbitrator. In Christopher Dorney v. CRC Group, LLC, Index No. 11562-06, decided on May 2, 2008, the court denied defendant's motion to renew and reargue. The court further affirmed the holdings of its prior order. The court noted that the case involved an arbitration clause in a broad agreement between the parties that required any unresolved dispute to be determined by a final arbitration after mediation. The court pointed out that both federal and state statutes favor the resolution of disputes though mediation or arbitration if that is what is called for in a contract previously agreed to by the persons who have a dispute. The court further reasoned that where as here, the proceeding before the court involved challenges to the arbitrator's exercise of powers and the legality of the decision; (Continued on page 20)

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Women Should Defend The Grounds Law

____________ By John Ray

Last month a female divorce attorney wrote an article in The Suffolk Lawyer in support of no-fault divorce. But women have good reason to defend the "grounds" law. Women, especially those with children, usually have the weaker bargaining position in divorce cases (which is especially true on Long Island, where so many

The law could use " change, but it shouldsome be in favor of consequences for wrongful conduct, including bringing on a case when grounds are not proven.


men are self-employed in primary or secondary businesses controlling their own books and income). It is common that the wife foregoes a career and continued education, taking menial jobs and raising the children, or undergoing the heroic stresses of supermom/careerist; whilst the husband "grows" in his own stature and then entitles himself to a fresh start with a new love or sex interest, leaving his wife and family

as flotsam as he speeds away. for carrying a child in her This is still largely the case womb and giving birth, a real today, notwithstanding the investment brought by her into "changing social atmosphere" the marriage partnership? often asserted as a basis to How, is she recompensed, even change the law. A "grounds" in a childless marriage, when trial is a perfectly good defense she has invested fecund youthfor the wife under these circumful years in the marriage to one stances, especially when her man? He can produce a child at spouse who pledged himself to any age; she cannot. When she John Ray her for life, now is pressed by a brought a child into the world, new "pledgee" to cut his ties and suck out there was no condition that the husband of the marriage all the assets he can. retained some right to give another future Indeed, "sacred religious morals" are spouse his treasure, or to produce a child by not the sine qua non to uphold New York's another woman in the future who would "grounds" law. Instead, marriage is also an have a competing claim to the fruits of his executory contract which has been carried labor. These unforeseen losses are not comout. Marriages are, however, deprived of pensated when the husband seeks divorce. protections which other contracts give: e.g. Indeed, there are other prescriptive, suba spouse cannot claim or counterclaim for stantial investments in a marriage, and lossbreach of it, nor sue a third-party for tores which are not recompensed when tiously interfering with the contract, for it divorce comes such as: affection, comfort is a felony to do so. Nor can third-party of the certainty of marriage, security, career beneficiaries, namely the children, sue for potential as a wife (isn't choosing to be a breach (actually, children are really junior wife or mother also choosing a career in its partners in the marriage but unfairly have own right?), finality, love, even unrequited no standing to oppose the dissolution or love. No doubt one can identify other lossreceive the assets), nor is there any ability es as well which are not recompensed. to claim or counterclaim for egregious vioNor is there any reason for a woman to lation of the contract, converting the action accept the denigration of the religious marinto a tort with the remedies of tort. Yet the ital vow. If the parties chose to exchange courts say that the marriage is to be treated religious vows, rather than only civil ones, as a partnership, but without the other civil by choosing themselves the dictates inherremedies and protections a partnership ent in the religious marriage, that marital contract has. partnership necessarily included the value How is a wife recompensed under the law of those religious vows, for the law always

insists that words have the force of their clear meaning. Yet there is no remedy for the loss of the value of the religious bond, in a divorce. All these remedies are lost to a woman if a divorce is imposed upon her. Her best defense left to her in attempting to preserve her greatest investment in her life, is to contest grounds. She can insist that the divorcing husband prove that she has done wrong, egregious enough to deprive her and her children of the fruits of marriage. There are also arguments that the state has a compelling non-sacred interest in preserving the value of marriage by insisting upon proof of grounds for divorce, but those are for a different article. I'm just interested here in the plight of women who are not mere random atoms in a "changing social atmosphere." They are still the majority, living in an atmosphere called marriage. The law could use some change, but it should be in favor of consequences for wrongful conduct, including bringing on a case when grounds are not proven. This will help protect women. Note: The author, a former history teacher, semi-pro football player, and still a lacrosse goalie for 45 years, is the owner of John Ray & Associates since 1983. He has worked on numerous cases in tort, criminal, matrimonial, family, guardianship, municipal, libel, employment, and education law




Frederick Eisenbud, Esq.

Practicing Environmental and Municipal Law Since 1984

Loan Forgiveness

Public sector jobs may be your ticket

____________________ By Andrew Van Singel

that for every person who won't work for $50,000 per While General Motors is on year, twenty people will be the brink of failure and standing at the front door, Macy's is slashing prices on resume in hand, asking everything from blenders to when they can start. chinos, there is one business It is ironic. I left a job drithat seems to be recession ving a forklift before I startproof--Law School. Over the ed law school, dreaming of a past ten years, nearly all law brighter future, and now, schools have increased tuition Andrew Van Singel almost two years into my above inflation rates. In fact, many law legal education, the jobs that I have school's tuition rates have increased applied for are paying less than what I over 250 percent, while some instituwas doing a few years ago--a job that tions hiked tuition as high as 500 peronly required a semi functional tempocent. The effect of this increase is ral lobe, the ability to count to 10, and a twofold: the sticker shock prevents foot to hit the gas and brake of a forklift. many people from entering the legal One job was offering $8 per hour. I profession, and those who do enter, are think that is illegal. forced to take out substantial amounts The real losers are the public interest of student loans, and leave their instituagencies, such as legal aid. These tion with enormous amounts of debt. offices are losing out on talented Most studies indicate the average law lawyers because nobody can afford to student has $80,000 in loans by the time work there and make their student loan they graduate (I have always prided payments. myself on being above average, but this Some schools have tried to ease the is one instance where I would really like strain by creating loan forgiveness proto be below average). Keep in mind grams for those who take a public interthese figures reflect indebtedness of est job. At Touro Law Center, where I today's graduate, which were paying currently attend, the school has a Loan slightly less ridiculous tuition. Repayment Assistance Fund that offers Like many others, when I started law help to those earning less than $55,000 school, I wanted to do more than push per year with grants averaging $2,000 papers around or perform mindless disper year. However, most schools are covery for cases that would be settled. I finding it harder to adequately offer wanted to work with the public and such programs, due to the dramatic actually see myself making a difference. increase in tuition over the past few Unfortunately, my education is financed years. Such programs may have been heavily by the government, and if I ever suitable 10 years ago when it only cost want to see a zero balance on my loans, $200 to take a contracts class (and the I feel as if I am forced into entering the endowment wasn't tied in a devalued private sector in lieu of a higher paying stock market). job. However, there is a light at the end of To make matters worse, these law the tunnel. Last year, President Bush school factories are churning out more signed into law the Higher Education graduates than job openings, making an Opportunity Act. It sets forth several already tough job market even tougher. programs that may reduce or forgive With the increase in graduates comes loans to those who work in the public greater competition for what little jobs sector. For example, the Prosecutor and are available, allowing employers to Defender Incentive Act will give pull down starting salaries, knowing (Continued on page 8)

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Suffolk County Bar Association Scholarship Donation Request

As many of you know, The Suffolk County Bar Association gives a One thousand Dollar Scholarship every year to a deserving Suffolk County High School Senior who is continuing on with his or her education. A very dedicated committee including the Bar Association staff, spends many hours distributing the scholarship packets, redacting names, and reading through voluminous applications to select a winner. I instituted this scholarship when I was president of the Association as a way of reaching out to the community and letting the public know that we care about the families here in Suffolk County. Our Association has more than 4,000 members and I am saddened when I report that we have not raised enough in donations for even one scholarship to be given out this year. While I recognize that times are tough, if every member donated one dollar, we could give out four scholarships, something students could certainly use. I am asking all of you to send your donations to the SCBA's Scholarship Fund. Also, a big jar will be available at the Bar Center for your dollars. I believe many of you care as much as I do about the future of our young people and are willing to pitch in. On behalf of our committee, thank you for your support and we wish all of you the best for the coming New Year. Lynne Adair Kramer

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Loan Forgiveness

lawyers $10,000 per year, for a maximum of $60,000 in exchange for a three year commitment to qualifying prosecution and public defender positions. A similar provision exists giving legal aid employees $6,000 per year. The Perkins Loan Cancellation for Public Service program will reduce a percentage of the borrowers Perkins Loan every year, with 100 percent of the loan forgiven for five years of service. These amendments to the Higher Education Opportunity Act were recently enacted, so it is unclear as to how the programs will be executed. Regardless of the details that will inevitably be ironed out, the foundation has been laid which will enable law school graduates the opportunity to take a position they want to take, rather than a position they have to take. As the wages in the private sector continue to become more and more deflated, not only is working in public interest a viable option, but it may become an

(Continued from page 7)


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attractive option. A public sector job, which includes health insurance, loan forgiveness programs, and a nine-to-five lifestyle, may be an advantageous trade for the all day and night private sector firm. While the chilling reality of having a $1,500 per month student loan payment may be a sure thing for some students, those who desire to work in the public sector are not without hope. Thanks to the new amendments to the Higher Education Opportunity Act, working in the public sector may be more of a reality than it was in the past few years. It might not be a bailout, but it may be the closest thing we will get to one. Note: The author is a second year student at Touro Law School, a member of Touro Law Review, and treasurer for the New York Democratic Lawyers Council, Touro Chapter. He can be reached at [email protected]


Law Of f ice




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

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SCBA members are encouraged to contribute to the special sections. Please contact the special section editors to discuss guidelines, deadlines, your submission idea and any questions.





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On the Move...

In response to its increased presence and client base on Long Island, Davidoff Malito & Hutcher LLP is expanding its Garden City office space by 20 percent on March 1. The extra space will accommodate five additional attorneys. Susan Cozzolino has joined the law firm of Haley Weinblatt & Calcagni, LLP as Medicaid Benefits Administrator. Prior to joining the law firm, Sue spent over 28 years in the Medicaid Services Division of the Suffolk County Department of Social Services (DSS). Additionally, Cindy Raskin Rocco has joined the law firm of Haley Weinblatt & Calcagni, LLP as an Associate. Ms. Rocco's areas of concentration are elder law, estate administration and guardianship proceedings. Karen J. Halpern, RN, Esq. has become a partner in the Mineola firm of Farley, Glockner & Halpern, LLP. She will continue to concentrate her practice in the areas of medical malpractice defense litigation, general liability defense litigation and professional licensure defense. Eun C. Jo a 2008 graduate of St. John's University School of Law, was recently named an associate in the litigation practice group at Capell Vishnick LLP, a Lake Success, New York law firm.

Super Lawyers list for 2008 in the appellate law practice area based on peer nominations, blue ribbon panel review and independent research.

and in the Super Lawyers magazine, distributed to all members of the New York Bar Association.

liability in the Wal-Mart stampede matter. Robert H. Cohen, of Lamb & Barnosky, LLP, co-chaired the 2008 Annual School Law Conference on December 8 that was presented by the Nassau and Suffolk Academies of Law and Education Law Committees. Eugene Barnosky, of Lamb & Barnosky, LLP, was a panelist in a program entitled, "Navigating Through Controversial Times" (Board Ethics, Audits, Who is Your Client, Role of Special Counsel, Confidentiality, Pecuniary Interest, Required District Policies); Richard K. Zuckerman, was a panelist in a program entitled "Labor Law Update (Teacher Tenure, Drug Testing, Screenings, FMLA, PERB Trends); and Sharon N. Berlin, was a panelist in a program entitled "Administrator Retirement & Compensation". The SCBA and the Suffolk Academy of Law collected toys for SCBA member Charlie Russo's "Holiday Magic" providing toys for underprivileged children in Suffolk County. On January 29, 2009, Richard Zuckerman, of Lamb & Barnosky, LLP, will be speaking on the topic "Municipal Labor and Employment Law in Tough Economic Times" at the NYS Bar Association's Municipal Law Section Annual Meeting, which will be held at the New York Marriott Marquis in Manhattan. The law firm of Ferro, Kuba, Mangano, Sklyar, P.C. organized a (Continued on page 19)

Congratulations to Richard K. Zuckerman, of Lamb & Barnosky, LLP, who was also selected in December for inclusion on the New York Super Lawyers list for 2008 in Jacqueline M. Siben the labor and employment On October 28, 2008, Lisa A. law practice area based on peer nomina- Azzato, of Lamb & Barnosky, LLP, served tions, blue ribbon panel review and inde- as a judge at the Touro Law School pendent research Alternative Dispute Resolution (ADR) Client Counseling Competition. To David S. Shotten and his wife Karen who celebrated their 30th wedding anniverLisa Renee Pomerantz will present a sary. free workshop on January 20 entitled "Protecting and Exploiting Your To Benjamin Theodore Shotten, SCBA Intellectual Property Assets in the Digital member David Shotten's son, who graduat- Age" at the Bohemia HQ Global Center ed in September from Thomas M. Cooley conference room. Networking and breakLaw School on the dean's list and earning fast begin at 8:30 with the workshop schedthe Thomas Cooley Book Award for the uled to run from 9:00 to 10:00 a.m. Seats highest grade for New York practice. are limited, so please contact Ms Pomerantz Benjamin externed at Druckman & Sinel, at [email protected] or (631)-244-1482 for LLP in New York City. advance registration. Marvin Salenger, a partner at Salenger, Sack, Schwartz & Kimmel (SSS&K) was recently named to two elite "Best of" lists, Best Lawyers in America and New York Super Lawyers. The Best Lawyers in America list will appear in the December 15, 2009 issue of New York Magazine, in the New York Law Journal and at those publications' online sites. The Super Lawyers list was published earlier this fall in The New York Times Sunday magazine On September 22, 2008, Michael Krauthamer, of Lamb & Barnosky, LLP, was a panelist at a seminar entitled "Joint Employer Relationships" at the New York State United Teachers Community College Conference at the Gideon Putnam Hotel in Saratoga Springs. On December 14, 2008, Lisa Renee Pomerantz was interviewed by Newsday about the potential for corporate criminal

Announcements, Achievements, & Accolades...


To Scott M. Karson, of Lamb & Barnosky, LLP, who in December was selected for inclusion on the New York


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

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

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




Would You Help Out A Friend?

___________________ By Steven A. Feldman

there, lawmakers intended to shield "only those persons who in The Talmud says, "[h]e who good faith render emergency saves a single life, saves the medical care at the scene of a entire world." But being a Good medical emergency," the majoriSamaritan just got a lot riskier. ty wrote. They thus found Torti A recent California Supreme was not shielded from liability. Court ruling found that a woman But three of the seven justices who pulled a co-worker from a dissented. They said that, by makvehicle that had crashed is not ing a distinction between medical Steven A. Feldman immune from civil liability care and emergency response, the because the care she rendered was not court was placing "an arbitrary and unreamedical. sonable limitation" on protections for The case stems from a car crash, folthose trying to help. One dissenter even lowing a night of Halloween revelry in called the ruling "illogical" because it rec2004. Lisa Torti, of Northridge, ognized legal immunity for nonprofessionCalifornia was driving behind her coals administering medical care, while worker, Alexandra Van Horn, when Horn denying it for potentially life-saving crashed. Fearful that the car would actions, like pulling a drowning victim explode, Torti rushed to the car, and from the ocean, or carrying an injured dragged Horn outside. Horn, then sued hiker from the forest. Highlighting this Torti, alleging she yanked her "like a rag incongruity, he added: "One who dives doll" from the wrecked car, rendering her into swirling waters to retrieve a drowning a paraplegic. swimmer can be sued for incidental injury In 1980, the California Legislature he or she causes while bringing the victim enacted the Health and Safety Code, to shore, but is immune for harm he or she which provides that "no person who in produces while thereafter trying to revive good faith, and not for compensation, renthe victim." ders emergency care at the scene of an The plaintiff's response, no doubt, emergency shall be liable for any civil would be that Good Samaritan's should damages resulting from any act or omisbe reluctant to offer aid to a crash victim sion." Although the law did not use the with potential spinal injuries, because word "medical" in describing the protectsuch emergency care should be left to ed emergency care, it was included in the medical professionals. But how could she section of the code that deals with emerpossibly know? Should she have to call a gency medical services. By placing it doctor before touching the victim, and

then call her lawyer, before moving her? What happens if the car explodes before she can pull the victim from the car? For Torti, those questions are too late. Her liability will be determined at a trial next year. The plaintiff's position may be that it was one thing for Torti to be a Good Samaritan, and another to bumble the job. But society's position may very well be that a well-meaning bystander

should be able to help without worrying about putting her life savings at risk. Note: The author is from Feldman & Feldman where he handles state, federal, civil and criminal appeals in New York and throughout the United States. Inquiries from the bar on this, or any other appellate matter, are welcome at (516) 522-2828.

One of the true joys of the Holiday Season is to say thank you to the following people for their generous contributions that made our Holiday Celebration at the SCBA a memorable occasion: Ron and Glenn Hoffman for the beautiful wreath which adorns the Bar Center building every year; Sheri and SCBA Secretary Dennis Chase for the wine from Marcari Vineyards; Joel Sikowitz for his donation that helped defray the cost of the party. Thank you to State Bank of Long Island for underwriting the jazz trio that played so beautifully. Once again thank you to Fireside Caterers for their continued support and gourmet fare. Thank you to member Tom Keegan's Son Tommy who provided us with beer from his local brewery.

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Cash Advances Not Pre-Petition Income

Case further defines means test criteria

_________________ By Craig D. Robins


Dominic A. Barbara


for purposes of determining the Debtor's "projected disposable income" under Section 1325(b)(1)(B), must include, as income, the amount of the cash advances that the debtor took within the six months prior to filing.

Judicial interpretation of the means test, which is the controversial centerpiece of the 2005 Bankruptcy Amendment Act, has resulted in hundreds of decisions around the Craig D. Robins country during the past three years. A recent decision from Judge Robert E. Grossman, sitting in our own Central Islip Bankruptcy Court, has further defined the parameters for how the means test should be prepared and utilized.

Judge Rules that Cash Advances Are Income and Not Income

Judge Grossman, in a well-worded, 16page decision, analyzed the concept of "current monthly income" and determined that cash advances do constitute "current monthly income," under the forward-looking approach to the calculation of a Chapter 13 debtor's projected disposable income. However, he also held that the cash advances did not constitute part of the debtor's "projected disposable income," as they would not be repeated in the future. In going through an elaborate analysis that highlighted the ambiguous and poorly-worded statute, Judge Grossman commented that "this Court is not the first to recognize the discrete differences among "current monthly income," "disposable income," and "projected disposable income," and grapple with the imprecise language of this statute. He then concluded that the line of cases adopting the forward-looking, or "crystal ball" approach to calculating a Chapter 13 debtor's "projected disposable income" is the correct interpretation of the statute. However, the court said that if the Chapter 13 trustee or an unsecured creditor objects to confirmation, the calculation of "disposable income" under Code § 1325(b) and the means test (Form B22C) is but a starting point in reaching the debtor's "projected disposable income." If a debtor's "disposable income" on Form B22C differs from the debtor's actual monthly disposable income reported on Schedules I and J, the court may analyze the debtor's actual projected income over the life of the plan.


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Basic Purpose of the Means Test

For the uninitiated, the basic purpose of the means test is to determine whether a debtor is eligible to file a Chapter 7 petition based on a rather comprehensive calculation of the debtor's income and expenses during the preceding six-month period. If the means test indicates that the debtor should be in Chapter 13, the test also provides the minimum amount that the debtor should pay on a monthly basis in a Chapter 13 plan. In a nutshell, the means test determines the debtor's current monthly income by taking the debtor's household's gross income and subtracting certain specified exclusions and deductions. Generally speaking, no matter what chapter the debtor files, the lower the final figure on the means test, the better.

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Income to be Included in the Means Test

Technically, almost all income that the debtor receives in the six-month window before filing must be included in the means test. Social Security income is the general exception. However, strictly complying with the statute in some instances can produce a skewed means test result. In a recent case, the issue was whether the debtor is required to treat cash advances as income for the purposes of calculating the means test.

The Trustee May Not Use a Strictly Mechanical Approach

In choosing the approach to take, the judge adopted the line of cases that holds that the Chapter 13 trustee may not use a strictly mechanical approach to evaluating the debtor's projected disposable income. The Judge further implied that the trustee's position would lead to the "absurd result" that a debtor would be required to repay more than the debtor can afford. The court commented that the debtor could not possibly include the cash advances in "projected disposable income" because the debtor would not reasonably be expected to take additional cash advances during the life of the plan. "It would be absurd to assume that the debtor would continue to take cash advances in order to fund his Chapter 13 plan, and the Court is not prepared to require that result."

Chapter 13 Trustee Claims Cash Advances Are Income

In July 2008, Melville bankruptcy attorney Richard Kantor filed a routine Chapter 13 case for Rafael Almonte (Bankr.E.D.N.Y. 808-74084). During the six-month means test period, the debtor had taken $24,000 in cash advances from his credit cards. Believing these cash advances would not have any relevance to how much income the debtor would have in the future, Mr. Kantor did not include the cash advances as income in the means test. Chapter 13 trustee Michael J. Macco objected to confirmation of the debtor's plan, arguing that the debtor's "current monthly income" used in the means test

The Court Takes the Logical Position

In reaching the determination that cal(Continued on page 19)




What Is The New Wave?

Maybe short payoff refinances?

______________ By Jeannie Daal

What is an attorney to do? I am pretty sure that none of our law schools ever offered a class that could have prepared us for what is going on in the legal field today. While there are no legal specialties recognized in the State of New York, few of us have a desire or ability to diversify to the extreme that would be necessary to go unaffected by what has happened to our practices these past two years. If you call


Lenders are changing their guidelines faster than the wind blows.

yourself a real estate attorney, your head is probably spinning about now. With fewer and fewer "normal" sales, the attorney that dedicated his time to real estate has probably been jumping from one short sale seminar to another to learn how to make a living. The answer is... Prepare! The only problem is that as soon as you


think you have some working knowledge of short sales, they too become few and far between, only to be replaced with modifications. Suddenly, we must become modification experts; and if you are just learning the ins and outs of modifications, you have more to learn than you could possibly imagine. It seems like lenders are changing their guidelines faster than the wind blows. I offer a word of advice. Pay close attention and ask as many questions as possible. Most importantly however, don't bother taking notes. Just because the lender said it today, doesn't mean it will hold true tomorrow! Remember... the wind is always changing direction, without notice. Until recently it was almost impossible to negotiate a "short payoff refinance." Wells Fargo was amongst the first to agree to accept one, now it is the new wave. With the results of the first round of modifications showing over a 50 percent default rate in the first year, many of the lender's investors are lessening their desire to enter into modification agreements and do everything possible to convince the homeowner to "sell, sell, sell!" While some Lenders will only accept a short pay-

off refinance if the borrower is unable to do a modification, many are giving you the option (or pushing for it) from the onset. One of the major problems with a short payoff refinance is the fact that your client must still qualify for it. FHA is not always an option and hence modification, if possible, is usually the better choice. It all boils down to the fact that many more homes will be on the market for short sales, soon. Remember that true investors do not get emotionally attached to their investments. They abide by the rule that a bad investment must be dumped without delay in order to reinvest in a more lucrative vehicle. The investor's vision is cold and calculated. Therefore, we must direct our focus to the quiet investors, patiently waiting for just the right time to buy. They, too, are paying close attention to the indicators of a second wave of short sales. At first glance it may seem like they are watching lenders struggle to figure out what is best for them while they waste precious time and lose millions of dollars each day because they don't have the personnel to handle the workload and the potential income from short sales is slipping through their fingers. Last year ASC almost stopped completely for around 5

months while they hired and trained personnel to handle the load of short sale requests being sent to them daily. Today, it is believed that Countrywide and a couple of others are going through the change. The question remains... are the lenders just slow or are they preparing for a second, larger, wave of short sales? If the lender's investors are unwilling to reduce principal, forgive arrears and reduce interest rates, then the likelihood of a vast majority of these loans being dumped via short sales is overwhelming. Are they fools or are they preparing? Hence, we too should prepare! Note: The author is a Brooklyn Law School graduate who began working as a sole practitioner in 1995, dedicating her practice to real estate for the Latin community. After three years as a bank attorney, she changed her practice to that of Foreclosure Prevention. She is presently in her 2nd year as the co-chair of the Suffolk County Bar Association Real Estate Committee and a volunteer for Raising Community Standards, Inc., a notfor-profit organization dedicated to educating distressed homeowners of their options.


Reimbursement From Supplemental Needs Trusts

State entitled to Medicaid paid for infant ___________________

By Robert M. Harper

Until recently, the question of the extent to which the State of New York is entitled to reimbursement for "Medicaid payments made on behalf of an infant" in connection with a Supplemental Needs Trust was unsettled. In In re Abraham XX, however, the Court of Appeals definitely resolved that question. This article provides general background on Supplemental Needs Trusts, discusses the Abraham XX decision, and explains why the state is entitled to recover the entire value of any Medicaid assistance paid for the infant. "A Supplemental Needs Trust ("SNT") is a planning tool used to shelter a severely disabled person's assets for the dual purpose of securing or maintaining eligibility for state-funded services, and enhancing the disabled person's quality of life with supplemental care paid by his or her trust assets."1 First recognized in New York in In re Escher in 1978,2 the SNT authorizes the use of a "discretionary trust to supplement the care of [a] severely disabled [individual] without jeopardizing the individual's right to government-provided medical care during the beneficiary's lifetime." The New York Legislature enacted section 7-1.12 of the Estates, Powers and Trusts Law in 1993 to provide greater clarity and consistency with respect to SNTs.3 That same year, Congress passed the Omnibus Budget Reconciliation Act ("OBRA") for dual purposes: to "tighten eligibility requirements for Medicaid[;]" and to prevent "abusive asset transfers... "4 This was significant because, under OBRA, the trust assets of a Medicaid recipient, including those in a SNT, were "available resources" and affected the receipt's eligibility for Medicaid assistance.

the decedent's behalf. After the decedent's mother secured a Following OBRA's enact$5,000,000.00 settlement for ment, Congress passed 42 the decedent, the state filed a U.S.C. § 1396p ("Section $1,707,884.95 lien against the 1396p"), which was designed decedent's settlement and ultito balance the concerns of the mately received payment in full severely disabled and the govfor the value of its lien. ernment's need for heightened Nevertheless, a dispute conMedicaid eligibility requirecerning the allocation of the Robert M. Harper ments.5 Section 1396p struck settlement proceeds resulted in this balance by excluding certain trust a delay of the distribution thereof. During assets, including the assets of SNTs, from the dispute, the decedent remained "available resources," thereby enabling Medicaid eligible and under the care of the numerous disabled people to receive state. Additionally, the settlement proMedicaid funds to which they otherwise ceeds did not render the decedent ineligiwould not have been entitled under the ble for Medicaid because they were paid to original version of OBRA. However, the SNT. Section 1396p also provided for the transThe decedent died in June 2003. fer of "all amounts remaining in the trust Following the decedent's death, the state upon the death [of the disabled person] up sought reimbursement for $1,500,000 in to an amount equal to the total medical Medicaid payments made from the date on assistance paid on behalf of the [disabled which the state's lien expired in March person] under" a state-sponsored Medicaid 1998 to the date upon which the decedent plan to the State. The New York left the state's care in October 2001, Legislature followed suit by enacting a including the gap period from the date of similar statutory section in 1994.6 the lien's expiration to the date of the Against that background, the Abraham SNT's funding in September 1999. The XX case addressed whether "the State can State based its claim on the language of the recover its remainder interest in [a SNT in] SNT agreement, which provided for reiman amount equal to the `total medical bursement "to the extent then required by assistance paid' on behalf of the recipient, law... such amount as shall be necessary to or whether the State is limited to the provide reimbursement for expenditures amount expended from the trust's effecmade for medical assistance for Abraham tive date to the recipient's death."7 There, [XX] . . . through Medicaid" the decedent's mother suffered a seizure The decedent's mother agreed to the while she was pregnant with the decedent, payment of the state's claim, subject to her and delivered the decedent prematurely by right to seek a refund from the state. After an emergency Caesarian section operation. paying the state's claim, the decedent's The decedent suffered severe side-effects mother petitioned for a refund of approxias a result, and then entered into the customately $960,000 for Medicaid payments dial care of a New York State facility. during the aforementioned gap period. Shortly thereafter, the decedent's mother "She argued that the state was precluded commenced a medical malpractice action from recovering funds in excess of its against her physicians and the hospital on Medicaid lien based on res judicata."

The Supreme Court, Broome County, directed the state to make a partial refund of the Medicaid payments made during the gap period. However, in modifying the Supreme Court's order, the Appellate Division, Third Department, reversed the partial refund and granted summary judgment in favor of the state. The Appellate Division reasoned that the SNT agreement was dispositive and that res judicata did not apply. The Court of Appeals affirmed the Appellate Division's decision. In doing so, the court explained that although the trust agreement would usually govern, the decedent's SNT agreement expressly referred to the Medicaid statutes, which provide for reimbursement of all properly paid Medicaid payments made during the decedent's lifetime. Thus, the state was entitled to reimbursement for Medicaid funds paid even before the funding of the decedent's SNT during the gap period. The scope of reimbursement to which the State is entitled from a SNT for Medicaid payments made for the benefit of a disabled person is now settled. Indeed, subject to the applicable laws and the terms of the SNT agreement, the state can recover the entire value of properly paid Medicaid funds, regardless of when the SNT is funded. Note: The author is an associate in the Trusts and Estates and Commercial Litigation Department at Farrell Fritz, P.C.

1 In re Abraham XX, No. 165, 2008 WL 4934432 (N.Y. Nov. 20, 2008). 2 In re Escher, 94 Misc.2d 952 (1978), aff'd, 75 A.D.2d 531 (1980), aff'd, 52 N.Y.2d 1006 (1981). 3 EPTL § 7-1.12. 4 Joseph A. Rosenberg, "Supplemental Needs Trusts for People with Disabilities," 10 B.U. Pub. Int. L. J. 91, 127 (2000). 5 42 U.S.C. § 1396p. 6 N.Y. Soc. Serv. Law § 366. 7 See generally Abraham XX, 2008 WL 4934432 (discussing SNT reimbursement).




Driver Responsibility Assessment Madness

___________________ By David A. Mansfield

New York State "celebrated" the fourth anniversary of the institution of the Driver Responsibility Assessment (DRA) on November 18, 2008. It is set forth in VTL §503(4). The general rule requires a $300 payment for anyone who accumulates six or more points on their driving record for acts committed within an 18 month period under VTL §503(4)(a). §503(4)(b) sets forth the amount of $100 per year for three years and the first six months and an additional $25 per year for each additional point over six months. The point system is set forth under 15 NYCRR Part §131. There is a separate Driver Responsibility Assessment under VTL §1199 for Chemical Test Refusal or any alcohol related criminal conviction. Please note: violations of Section 1192(a) or 1194(a) Zero Tolerance Law is not covered by the Driver Responsibility Assessment. A colleague recently questioned an additional $150 assessment for a violation. It was committed more than 18 months after the first violation that resulted in the imposition of the mandatory Driver Responsibility Assessment. DMV counsel's office has interpreted

the law to provide the 18 month or a trial, it is incumbent upon period to run from the date of the the defense lawyer in an exit first violation that caused the letter to inform the client in motorist to have accumulated six clear terms that they are subject or more points within an 18 to a mandatory minimum month period. Thus, it is the actiDriver Responsibility vation of the minimum 6 points Assessment of an estimated not the violation date that govamount. I usually recommend erns. that the client should pay it in It is the belief of DMV that othfull if they are in a financial erwise motorists who commit a position to do so, as experience single violation, as opposed to two David A. Mansfield has shown that many clients separate violations, would have a will fail to pay the subsequent benefit. You can't argue with that logic. installments and have their driver's license So the situation becomes - how does suspended with more dire consequences. defense counsel advise your client of the The defense lawyer, though sensitive to Driver Responsibility Assessment? Defense the general economic plight of many of counsel must always refer to it as the mandatheir clients, should emphasize that the tory Driver Responsibility Assessment. mandatory Driver Responsibility When representing clients pursuant to Assessment paid in installments is a driwritten affidavit or authorization, a clause ver's license suspension waiting to hapshould always be inserted instructing that pen. not only is their license subject to suspenAny correspondence referring to the sion or revocation as prescribed by law, Driver Responsibility Assessment should but it may also be subject to a Driver refer to it as a mandatory minimum assessResponsibility Assessment as determined ment. The Department of Motor Vehicles by the Department of Motor Vehicles has chosen to calculate the assessment in a (based upon accumulation of six or more manner to ensure that it raises the maxipoints). mum amount of revenue (but probably not When your client is subject to a mandaenough to close the state's budget gap). tory assessment as a result of either a plea What can defense counsel do to try to

avoid having your client assessed for a Driver Responsibility Assessment? When representing someone with a clean record and charged with a 76/55, a six point speed in the Suffolk Traffic Violations Bureau, and unable to get a dismissal, you should certainly argue that the general degree of accuracy of the officer's visual estimate as well as the speed measuring device should be sustained to a lesser extent of 75/55 as a four point violation. DMV will notify your client by letter regarding how to make the payment in full or in part. They will list the various methods of payment including in person, by phone or on line credit card, credit card, check or money order (by mail). You should advise your client that the Driver Responsibility Assessment can be explained by DMV and paid online at\drap.htm#adra. The defense lawyer should advise their client to be prepared to pay the mandatory Driver Responsibility Assessment and this should be clear from the start of the attorney/client relationship until the conclusion. Note: The author practices in Islandia and is a frequent contributor to this publication.


Injury And Redressability Addressed In Two Standing Decisions

____________________ By Eugene D. Berman

This month we discuss two decisions concerning standing that the United States Court of Appeals for the Second Circuit issued in December 2008.

Where's Your Injury?

W.R. Huff Asset Management Co., LLC v. Deloitte & Touche, LLP, 2008 WL 5076825 (2d Cir, decided on December 3, 2008), concerns an investment advisor's attempt to recoup losses that its clients occasioned as a result of Adelphia Communications Corporation's ("Adelphia") dissolution in bankruptcy. Adelphia filed for bankruptcy approximately two months after disclosing on March 27, 2002 that it had up to $2.3 billion in previously undisclosed debt and that its controlling shareholders used those undeclared borrowings to purchase Adelphia's stock for their own benefit. The disclosures resulted in Adelphia stock value plunging from a $20.39 per share closing price on March 26, 2002 to $0.30 per share on June 7, 2002. See, In re Adelphia Communications Corp., 2005 WL 1278544*1 (S.D.N.Y. 2005) (not reported in F.Supp.2d). W.R. Huff Asset Management Co., LLC ("Huff") is an investment advisor. Its clients, for whom Huff has discretionary authority to make investment decisions, are institutional investors, such as public employee pension funds. Huff ­ with a

the order may materially advance power of attorney from its the ultimate termination of the litclients to bring the action ­ igation." alleged in its complaint that in In analyzing the issue of Huff's providing underwriting, auditstanding, the Second Circuit ing, or legal services, the defenreviewed the "irreducible eledants violated federal securities ments" of Article III standing. laws by preparing, facilitating, Article III standing consists of or certifying inaccurate and misthree irreducible elements: leading disclosures in Adelphia's (1) injury-in-fact, which is a confinancial statements. Huff further asserted that its clients, as a Eugene D. Berman crete and particularized harm to a legally protected interest; result of the defendants' miscon(2) causation in the form of a fairly traceduct, suffered financial losses. Crucially, able connection between the asserted Huff did not claim that it suffered any indiinjury-in-fact and the alleged actions of the vidual damages. defendant; and (3) redressability, or a nonThe defendants moved to dismiss the speculative likelihood that the injury can be complaint, alleging that Huff lacked standremedied by the requested relief. ing to maintain the action on its clients' behalf. U.S. Const. art. III, § 2 limits federHuff, 2008 WL 5076825*4, quoting al courts' jurisdiction to the resolution of from Lujan v. Defenders of Wildlife, 504 "cases" and "controversies." One element U.S. 555, 560-61, 112 S.Ct. 2130, 119 of the case-or-controversy requirement is L.Ed.2d 351 (1992) (emphasis added, that a complaint must demonstrate a plaininternal quotation marks omitted). tiff's standing to sue. See, Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 2317, Since Huff, as mentioned above, did not 138 L.Ed.2d 849 (1997). claim that it suffered any individual damThe district court denied the relief, but ages, the Second Circuit stated "the disposgranted the defendants' motion for certifiitive question" as whether Huff can cation of an immediate appeal under 28 demonstrate an injury-in-fact through some USC § 1292(b). That statute authorizes a other means. Huff, 2008 WL 5076825*4. court of appeals to permit an immediate In this regard, Huff urged that the power of interlocutory appeal when a district court's attorney from its clients and its discreorder certifies in writing that it "involves a tionary authority to make investment decicontrolling question of law as to which sions for them provided it with an injurythere is substantial ground for difference of in-fact. The Second Circuit disagreed. opinion and that an immediate appeal from Although a cause of action "may be

freely transferred or assigned to others," Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 17 (2d Cir. 1997), the Second Circuit held that "Huff's power-of-attorney is not purported to be a valid assignment and does not confer a legal title to the claims it brings." Huff, 2008 WL 5076825*6. The Second Circuit also rejected Huff's argument that its discretionary trading authority qualified it for a prudential exception to the injury-in-fact requirement. That exception "permit[s] third-party standing where the plaintiff can demonstrate (1) a close relationship to the injured party and (2) a barrier to the injured party's ability to assert its own interests." Id. The Court of Appeals reasoned that the "investment advisor-client relationship is not the type of close relationship [that] courts have recognized as creating a `prudential exception' to the third-party standing rules ... [and that] Huff has failed to demonstrate that, absent a recognition of its standing claim, there is a `hindrance' to [its clients'] ability to protect their own interests." Huff, 2008 WL 5076825*7.

Can There Be Redress?

In Coalition of Watershed Towns v. United States Environmental Protection Agency, Second Circuit Docket Nos. 072449-ag and 07-3912-ag, decided on December 29, 2008,i three towns in the Catskill and Delaware watershed region of (Continued on page 25)



Memories From The SCBA Holiday Party 2008

SCBA President Jim Winkler and his wife, Nancy.

SCBA Treasurer Art Shulman and his wife, Ruth.

Alan Todd Costell, left and SCBA Second Vice President Matt Pachman.

Hon. Patrick A. Sweeney and former SCBA president Lynne Adair Kramer.

William McSweeney, right, his wife Jacqueline ShortellMcSweeney and Judge Timothy Bowersox.

Catching up at the holiday party.

Suffolk's District Administrative Judge H. Patrick Leis III, former SCBA presidents John L. Juliano, Louis C. England and retired Supreme Court Justice Don Kitson.

Riva and Alan Schwartz, Robert Wilk and Gail Blasie.



Judicial Swearing-In & Robing Ceremony

Honorable H. Patrick Leis III, Suffolk County District Administrative Judge begins the Judicial Swearing-In & Robing Ceremony Jim Winkler donning newly elected District Court Judge Stephen Ukeiley.

Elected Supreme Court Justice Jerry Garguilo donning his first set of judicial robes presented by SCBA President Jim Winkler on behalf of the members of the bar.

Honorable Hector LaSalle is the first Hispanic Justice of the Supreme Court in Suffolk County. Judge John J. Toomey, Jr. was reelected to the District Court.

Suffolk County District Attorney Tom Spota enjoys a light moment.

Retired Supreme Court Justice Patrick Henry was proud of his daughter, Jennifer Anne Henry who he administered the Oath of Office to as a District Court Judge.

Suffolk County Legislator Ricardo Montano sponsored Hector LaSalle, Supreme Court Justice.

SCBA President Jim Winkler donning newly elected County Court Judge James F. Quinn.

Jim Winkler presented Honorable Joseph Farneti with a crystal plaque as a memento for his reelection as a County Court Judge.

Honorable C. Randall Hinrichs administers Oath of Office to newly elected James F. Quinn, reelected Jeffrey Arlen Spinner and reelected Joseph Farneti, as County Court Judges.

Reelected County Court Judge Jeffrey Arlen Spinner receives a memento for his reelection as a County Court Judge from Jim Winkler as Judge Leis looks on.




Sounding The Soul of Character

______________________ By William E. McSweeney

and Peace" is to constantly thrill "There were still people in to simultaneous discovery, as it, there was still a fiftieth part between reader and author: all of all the former inhabitants The characters that populate Tolstoy's marriages, all births, are shared left in it, but it was empty. It epic novel of Russia's resistance to celebrations; all heartbreaks was empty as a dying-out, Napoleon's invasion of 1812 - to have create joint despair; all misforqueenless beehive is empty. known them is to never forget them: the tunes inflict joint sorrow; all There is no life in a queenless vivacious Natasha, evolving from a feckdeaths are mourned together; all beehive, but to a superficial less 16-year-old into the mature, rounded triumphs - especially, at long glance it seems as alive as heroine who evacuates her loved ones last, the routing of Napoleon the others. In the hot rays of from a threatened Moscow; the bold William E. are exulted in together. the noonday sun, the bees Andrei; the calculating Helene; the McSweeney Tolstoy's masterwork continuhover just as merrily around a myopic, ever-questing Pierre; the grasping ously sounds the soul of character, queenless hive as around the other living Napoleon. And the unpredictable Kutusov, descending ever deeper into the mystery of hives; from afar it has the same smell of the field marshal, the essential human motivation, itself never reducible honey; bees fly in and out of it in the same _________________________________ to mere rationality. Certainly irrational way. But we need only take a closer look War and Peace sacrilegious - on its face is Kutusov's deciat it to realize that there is no longer any By Leo Tolstoy sion to abandon to the French the sacred life in this hive. The bees do not fly in the Translated from the Russian by city, an arguably defensible Moscow. This same way as in a living hive, the smell is Richard Peaver decision compounds an earlier facial irranot the same, and it is not the same sound and Larissa Volokhonsky. tionality on the part of the field marshal, that strikes the beekeeper's ear. To the bee1273 pp. Alfred A. Knopf namely, his insistence -notwithstanding keeper's tapping on the wall of an ailing _________________________________ the contrary judgment of his contempohive, instead of the former instantaneous, peasant who Tolstoy lovingly refers to as a raries, indeed, that of history -that the concerted response, the hissing of tens of lackey, a man who, in the face of calamity recently fought Battle of Borodino was a thousands of bees, menacingly tucking on all sides, clings to the three principal Russian victory. Yet Kutusov's conviction their behinds under and producing this Russian values: the Tsar, the Church, and regarding that battle's outcome is, paravital, airy sound by the rapid beating of Mother Russia (the nurturing earth) -all of doxically, ratified by the subsequent abantheir wings, there comes in response a which form the troika that will carry him to donment of Moscow; for, by abandoning scattered buzzing that resonates at various eventual success. He is the commander the city, by precluding any future mass points of the empty hive. The entrance who wisely sleeps during briefings, giving confrontation between Napoleon and the does not give out, as before, a spirituno credence to his inept western advisors, Russian Army (thereby preserving that ous, fragrant smell of honey and venom, generals whose own nations have themarmy) Kutusov, by indirection, by letting no feeling of the warmth of fullness comes selves already surrendered to France. the severe Russian winter serve as his from it, but the smell of honey is mingled When he awakens, he invariably intones army's surrogate, defeats the French. Thus with the smell of emptiness and rot...The the enigmatic words "Patience and time... the actual, historic defeat at Borodino beekeeper opens two central frames so as patience and time." Implying restraint, it is cloudily merges into the ultimate "victory" to see into the nest. Where formerly the an unorthodox strategy (if it can even be at Moscow. Soon enough thereafter, Tsar entire space was covered by the black cirso-termed) that ultimately leads to victory. Alexander, the nobility, Kutusov's officer cles of thousands of bees sitting tightly Would that all current world leaders should corps, his soldiers, his countrymen--all, back to back, guarding the lofty mysteries adopt it as their own guiding principle! upon reflection, join the visionary, oneof generation, he now sees hundreds of The novel's simplicity of language eyed field marshal in viewing Borodino as dejected, half-alive and somnolent husks eases the reader's entry into Tolstoy's an outstanding Russian success. of bees...They smell of decay and fecund, wide-ranging mind; makes charIn an extended simile, Tolstoy depicts death...The beekeeper closes the frames, acter accessible and encourages a broodvividly that necropolis which Napoleon marks the hive with chalk, and, when he ing over those things Tolstoy broods found upon entering its precincts--this finds time, breaks it open and burns it out." over. By means of an approachable after his having finally despaired of receivSo writes Tolstoy, the apiarist, on the idiom, his overriding humanity subtly ing any Russian deputation seeking terms unhealthy hive, in an idiom that, like the imposes itself upon the reader, engages of surrender. healthy hive, hisses with life. George him, renders him complicit, and makes of "Moscow was empty," Tolstoy writes. Orwell urged all writers - if they would him the novelist's partner. To read "War avoid employing abstract, lifeless language - to both experience the physical world and draw their vocabulary from it. The author of War and Peace surely experienced the physical world. Though Count Leo Nikolavitch Tolstoy (1828-1910) was truly to the manor born-specifically, to the ancestral estate of his family, Yasnaya Polyana, in central Russia Each year, our membership elects a President, President Elect, two Vice Presidents, a - and was of the nobility - his father, Count Treasurer and a Secretary and four Directors. The Officers' positions are for one year, the Nikolai Ilyvitch Tolstoy, was friend and Directors' terms are for three years. The next election, pursuant to our Bylaws, will be at companion to Tsar Peter The Great - he our Annual Meeting, Monday, May 4, 2009. The membership also elects at the Annual soon enough ventured a field from both Meeting, three members to serve on the Nominating Committee for a period of three home and lineage. years. Each member of the Nominating Committee must have previously served as a At 23, a drop-out from the University of Director of the Association, and one member of each class shall be the immediate past Kazan, Tostoy was commissioned a subalpresident of the Association. tern of artillery in the Russian army. While Except for the office of the president, the Nominating Committee is now seeking applion garrison duty near the Baltic provinces, cations for the aforementioned positions. If you are interested in becoming a leader and he began his long career as novelist, pubwilling to assume a role in the activities of the SCBA, please send your resume, either by lishing in rapid succession Childhood and mail or e-mail, to the Executive Director [email protected] by December 31, 2008. Youth, An Attack" and The Cossacks. As Officers and Directors of the SCBA, you manage the affairs of the Association subject During the Crimean War (1853-56), he to and in accordance with the Association's Bylaws and all applicable laws; elevating the standard of integrity, honor and courtesy in the legal profession and cherishing the spirit of was wounded during the siege of brotherhood among the members. The membership is deeply appreciative of the energy, Sevastopol; with the Treaty of Paris enddedication and hard work performed by the officers and directors of the Association espeing hostilities, Tolstoy resigned his comcially in these challenging times. The Directors are required to attend all scheduled Board mission and went to St. Petersburg. meetings of the Association. Eligibility of Board Members as noted in the Associations There, enveloped in a treble-layered Bylaws: "No member shall be eligible for election to the Board of Directors who has not been aura of nobleman, returning hero, and puban Active Member of the Association for at least five years and a member of a committee, lished ecrivain, he was, like his alter ego, task force, recognized foundation of the association, an Officer of the Suffolk Academy of Pierre (a bountiful inheritance was his reqLaw, or any combination thereof, for at least four years during such period." uisite aura), warmly accepted into -- LaCova Petersburg's French-speaking society. But

An Invitation to Join Our Leadership:

Nominating Committee Seeks Candidates For SCBA 2009-10 Administration

his disgust for the drinking, debauchery, and idleness of society life soon drove him, as it did Pierre, away from Tsar Peter's "western" city to his ancestral estate, where he was to embrace and cultivate his "Russianness." At Yasnaya Polyana, donning peasant clothing, he freed his serfs and, alongside them, labored as a wheat-harvester, forestthinner, log-splitter, and beekeeper. In 1862 he met the young Sophie Behrs, his Natasha, whom he would marry; who would beget and nurture their 13 children; become his devoted helpmeet, editor, and translator from the Russian into French and German. It was during the first five years of his marriage that Tolstoy labored on and completed "War and Peace." An inveterate reader of history, and a brooder over it, Tolstoy was largely impelled to write his epic in reaction to the historical concept of L'Homme Grand, a prevailing theory that propounded the "The Great Man" as motivator of world events, with Napoleon as its chief representative. For his part, Tolstoy, like Kutusov, resisted historical certitude; as to Napoleon, the author harbored scorn for the diminutive Corsican, the mischiefmaker, the self-proclaimed L'Empereur who had impudently ventured to place Russia within his hegemony. Accordingly, Tolstoy put into print his contempt for The Great Man, and as against this, his exaltation of both the common man (the peasant, the soldier), and the unexceptional woman (the wife, the mother, the protector of the home). The novel was published in 1869 to universal acclaim, and it remains today as vibrant, as compelling, as it did across all those yesterdays. In The New Yorker of November 26, 2007, the erudite James Wood reviews, and favors over all forerunners, the new translation of "War And Peace" by Richard Peaver and Larissa Volokhonsky. Principally, he values their "roughening up" of the translation when the Russian calls for it, and he shouts "bravo!"(I echo his shout) to their unapologetic duplication of Tolstoy's persistent repetition as a rhetorical device. ("Moscow was was empty. It was empty as a dying-out, queenless beehive is empty.") Indeed, it is by his use of repetition that Tolstoy so infallibly leads his reader to clarity, to comprehension, to a cumulatively attained emotional truth. Though I have read, enjoyed, and found perfectly serviceable Ann Dunnigan's translation, not dealt with by Wood, I haven't read those predecessors he examines, the translations of Constance Garnett, Rosemary Edmunds, and Aylmer and Louise Maude. Thus I don't presume to join in his judgment that the new translation is superior to all. Nonetheless, Wood is persuasive. Pevear-Volokhonsky's translation, with its adherence to Tolstoy's language-and language conveys spirit--will likely become, deservedly, "the" translation. With that in mind, I'd suggest to the reader the obvious: Kenneth Fearing's The Big Clock. If there's time for but one War and Peace, seize the new version. Note: The author is a member of the SCBA, 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.




S-Corporation or LLC? That Is The Question

____________ By Gail Blasie

For most clients choosing an entity, the choice comes down to a Limited Liability Company (LLC) or an S-Corporation (SCorp). Those in the know say that LLCs are the way to go. Whichever way you go, what's most important is that the client has some kind of shareholder or operating agreement and that they do not leave matters to chance. Like an S-Corp, LLCs combine the corporation's protection from personal liability for business debts and the pass-through tax structure of a partnership. S-Corps are owned by shareholders and LLCs are owned by members. The tax rates are the same for both entities. However, LLCs offer more flexibility than S-Corps in a variety of ways. There are no restrictions on who can own an LLC, whereas corporations, nonresident immigrants, partnerships and certain trusts cannot be owners of S-Corps. One of the best features of an LLC is that there can be different classes of ownership, whereas with an S-Corp there is

only one class of ownership, in an LLC it is treated as ordiwith the proviso that there nary income to the extent of may be differences in voting unrealized receivables and subrights. This limitation makes stantially appreciated inventoit extremely difficult to prory, and the remainder is treated vide for different economic as capital gains. sharing arrangements among Unlike the BCL, the LLC shareholders because distribStatute does not give as much utions from an S-Corp must protection for minority membe proportionate to stock bers. While the Court of Gail Blasie ownership. On the other hand, Appeals recently found that LLCs can allocate profits, losses and cash LLC members have the right to bring flow to reflect the varying financial interderivative suits for fraud, waste and ests of the members. This is a key advanoppression, LLC members do not have tage to LLCs. the right to seek judicial dissolution based The S-Corp's distribution of appreciated on the fraudulent and oppressive conduct property generally triggers a gain that of the majority members. LLC § 702 shareholders must recognize and pay taxes only allows a judicial dissolution if a on. With an LLC however, a similar discourt finds it is "not reasonably practicatribution of appreciated property will genble to carry on the business in conformity erally not trigger gain, but will merely with the articles of incorporation or operreduce the recipient's basis. Therefore, ating agreement." from a tax standpoint, it is easier to move However, a good drafter can circumvent property in and out of an LLC than an Sthis limitation by anticipating the need for Corp. an exit strategy and include appropriate The sale of an ownership interest in an language in the operating agreement. S-Corp is treated as capital gains, whereas We are fortunate to have two LLC gurus

in our midst. Peter Mahler, a partner at Farrell Fritz, frequently lectures on the issue, and posts a weekly blog highlighting interesting "business divorce" cases. This is one blog you should subscribe to. You can sign up for his weekly blog at And we have Alan Weiner, partner emeritus from Holtz Rubenstein Remnick, who wrote the book, so to speak, on LLCs and tax law. Both will be speaking, along with the Honorable Emily Pines and Referee Kathryn Coward, from the Suffolk Supreme Court Commercial Division, and John Calcagni, from Haley, Weinblatt & Calcagni, on S-Corps versus LLCs, on February 18, from 6:00 to 9:00 p.m. Bring your questions and add some skills to your box of tricks. Note: The author, licensed in NY and CA, is a freelance attorney, providing research, writing and litigation support to other attorneys. She is Chair of the Suffolk Commercial and Corporations Committee and is an Officer of the Suffolk Academy of Law.


To Regulate Or Deregulate To Subsidize Or Not

This column is dedicated to the various opinions of SCBA members. Submissions will be accepted from all members of the SCBA.

___________________ By Justin A. Giordano

The incoming administration of President-Elect Barak Obama and his Democrat controlled congress will be facing a major economic downturn in the economy. The downturn has been well underway for the better part of 2008, although at the mid-way mark of the year there appeared to be some signs of a turnaround when the federal government released a 3.3 percent annual rate of growth in its second quarterly report. However the next quarter showed a negative rate of growth of .3 percent for the first time since the aftermath of 9/11 and thus confirmed that an economic downturn was underway. This was followed by the October financial crisis, which dealt a further blow to a shaky economy. If the next report shows a negative rate of growth as well, which is fully expected, then officially speaking, the U.S. economy will have entered a recession. Adding to the economic woes Wall Street, as reflected by the Dow-Jones Industrial, NASDAQ and the S&P averages, seems underwhelmed by the incoming new administration's economic policies as proclaimed during the course of the campaign. Thus if we are to judge by the aforementioned averages measurement, which have dropped by approximately 20 percent since the election, this constitutes the highest drop following a presidential election since these records have been kept. However given that the formal economic policy of the incoming administration is not officially formulated or in place as of this date (late November 2008), one could arguably make the case

that a final assessment of the nally enacted in 1975 to reguunfolding situation cannot be late mileage per gallon on cars fully made since, even if a and light trucks, including cause and effect could be SUV [Sports Utility Vehicles]. established, the incoming The CAFE Standards measure administration has not yet vehicle fuel efficiency and are taken office. controlled by the EPA One crisis that will [Environmental Protection undoubtedly be confronting Agency] and the NHTSA the incoming administration [National Highway Traffic Justin A. Giordano and the new congress involves Safety Administration]. Over the American automobile industry. All the years the CAFE Standards have been three major American automakers are modified to reflect congress' wishes, such facing dire financial times. The value of required miles per gallon based on the their stock has plummeted in the recent weight of the vehicle and such. Some of past and they are asking the legislature in these modifications and the standards Washington for assistance. This essenthemselves have served some valid purtially amounts to a request for a bailout in poses and undeniably have accomplished more or less the amount of $25 billion. some worthwhile objectives in terms of After all, the argument goes, if the finanfuel efficiency and most importantly safecial sector was or is in the process of ty. However there is also no question that receiving financial assistance, why some of the regulations have been should not they? extremely burdensome on the industry But the issue goes well beyond a simeven when they need not have been so by ple choice of to bail out or not to bail out setting unrealistic or difficult to achieve and according to what parameters. What standards. The result is that the industry merits close scrutiny are the root causes has been greatly inhibited in its ability to that gave rise to the present circumbe as competitive as it could be in the face stances. Put differently, what were the of increasing international competition legislative policies that led to this situafrom foreign brands/automakers. tion and what policies should the incomThe other major factor that has legally ing congress (and the Obama presidency) limited the automakers' flexibility has pursue to alleviate the current situation been its onerous labor costs due to its and prevent a recurrence. Invariably the UAW agreements. Many aspects of these legislative decision revolves around agreements are now rather excessive but whether to regulate or de-regulate, but the there is no escape clause for the automakunderlying philosophy that guides these ers barring filing for bankruptcy protecdecisions is key in addressing these tion. issues. Naturally any hope that their congresIn the auto industry case, this is an sional petition for a bailout be seriously industry that has long been over-regulatconsidered given this congress and, even ed and often used as a football to make more so, the incoming congress' political political points. One of the major pieces and philosophical inclination prohibits of legislation that governs the industry is the automakers' management from the CAFE [Corporate Average Fuel remotely raising the labor concessions Economy] Standards. These were origiissue. Therein lies the dilemma in the

case of the American automobile industry, the case could be made that over-regulation-- with more potentially looming on the horizon in 2009--has led, or at the very least, contributed to the decline and potential demise of the three big automakers. This conclusion seems to carry substantially more weight in light of the fact that there are other automakers manufacturing cars in the United States. The latter are not Detroit based and include Japanese and European automobile manufacturers with their plants located in states such as Tennessee and mostly other southern states. The major difference between these manufacturers and the big three is cost efficiencies primarily related to labor-management issues and other regulations. On the other hand, the sub-prime crisis, which many point to as the underlying cause for the failure of many longstanding financial institutions, can be attributed in no small measure to a form of de-regulation in as much as lending institution were strongly encouraged to take an extremely permissive approach in their mortgage lending practices. This was done in order to adhere to congress' stated objective of making house ownership available to as many as possible, whether the prospective owners be credit worthy or not. In many instances congressional legislation was pushed through that practically threatened these lending institutions with legal action if they failed to lend to individuals that could not conceivably ever hope to repay their loans or even make the monthly payments once the originating sub-prime rate reverted to the market rate. This also was a case of legislation crafted to fit an ideological philosophy rather than a practical and realistic economic approach based on sound and (Continued on page 25)




________________________________ By Jeffrey S. Siegel and Ferron Lien

Merely Saying `Prima Facie' Isn't Enough

pute.3 "At the outset of the trial, the court accepted plaintiff's position that it had already established a prima facie case on the ground that another court, in denying plaintiff's prior motion for summary judgment, had noted that plaintiff established its prima facie case upon said motion thereby shifting the burden to defendant, which finding became the law of the case, obviating the necessity of further proof as to plaintiff's prima facie case at trial. In light of the foregoing, plaintiff noted that it had no other witnesses or proof to present `at this time' and rested. When defendant presented no evidence, the court found in favor of plaintiff."4 The Appellate Court held that "... the order herein identified no particular facts as established, merely a conclusion of law that plaintiff had set forth facts upon the motion sufficient to shift the burden to defendant for purposes of the motion."5 The problem with such a lack of specificity is that plaintiff is trying to preserve for appeal that a prima facie case is established while, at the same time, shifting the burden to defendant when, in fact, no such prima facie case has been established. This defeats the very purpose of CPLR § 3212(g). The purpose of the "Law of the Case" doctrine is "... [T]o prevent relitigation of issues of law that have already been determined at an earlier stage in the proceeding. The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision."6 It functions similarly to that of res judicata and collateral estoppel by promoting judicial economy. "The law of the case rule is a rule of practice, an articulation of sound policy, that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of coordinate jurisdiction are concerned."7 Counsel's lack of specificity at the initial proceeding does not promote judicial economy; it decreases it. The reviewing court is forced to do the lower court's job. For example, in Richard Brownrigg v. NYC Housing Authority, the lower court was reversed because "... [N]o evidence had been proffered, introduced, or admitted at trial."8 Neither counsel nor judges should be permitted to circumvent the requirements of CPLR § 3212(g) by replacing it with their own interpretation. The statute clearly requires specificity and until the CPLR is re-written, anything less should not become "Law of the Case." This is especially important in No-Fault Litigation where a prima facie case is established by merely proving "... [T]hat [plaintiff] submitted statutory claim forms, setting forth the fact and amount of the losses sustained, and that payment of nofault benefits was overdue."9 As No-Fault Law has become a battleground with the rules of evidence as a weapon of choice, to circumvent CPLR § 3212(g) would be counterproductive.

1. CPLR § 3212(g). 2. Board of Mgrs. of the Arches at Cobble Hill Condominium v. Hicks & Warren, LLC, 2007 Slip Op. 52386U, 18 Misc. 3d 1103A, 856 N.Y.S.2d 22 (Sup. Ct. Kings County 2007). 3. 2007 NY Slip Op. 27346, 17 Misc. 3d 34, 844 N.Y.S.2d 561 (App. Term, 2d and 11th Jud. Dists. 2007). 4. Id. at 562. 5. Id. 6. Richard Brownrigg v. NYC Housing Authority, 29 A.D.3d 721, 815 N.Y.S.2d 681, 683 (2d Dep't 2006). 7. Malik G. Abbas v. Roy Francis Cole, 44 A.D.3d 31, 38, 840 N.Y.S.2d 388, 392-93 (2d Dep't 2007). 8. 815 N.Y.S.2d at 681 1 CPLR § 3212(g). 2 Board of Mgrs. of the Arches at Cobble Hill Condominium v. Hicks & Warren, LLC, 2007 Slip Op. 52386U, 18 Misc. 3d 1103A, 856 N.Y.S.2d 22 (Sup. Ct. Kings County 2007). 3 2007 NY Slip Op. 27346, 17 Misc. 3d 34, 844 N.Y.S.2d 561 (App. Term, 2d and 11th Jud. Dists. 2007). 1. CPLR § 3212(g). 2. Board of Mgrs. of the Arches at Cobble Hill Condominium v. Hicks & Warren, LLC, 2007 Slip Op. 52386U, 18 Misc. 3d 1103A, 856 N.Y.S.2d 22 (Sup. Ct. Kings County 2007). 3. 2007 NY Slip Op. 27346, 17 Misc. 3d 34, 844 N.Y.S.2d 561 (App. Term, 2d and 11th Jud. Dists. 2007). 4. Id. at 562. 5. Id. 6. Richard Brownrigg v. NYC Housing Authority, 29 A.D.3d 721, 815 N.Y.S.2d 681, 683 (2d Dep't 2006). 7. Malik G. Abbas v. Roy Francis Cole, 44 A.D.3d 31, 38, 840 N.Y.S.2d 388, 392-93 (2d Dep't 2007). 8. 815 N.Y.S.2d at 681. 9 A.B. Med. Svcs. et al v. Utica Mut. Ins. Co., 2006 NY Slip Op. 51334U, 12 Misc. 3d 139A, 824 N.Y.S.2d 760, 760 (App. Term, 2d and 11th Jud. Dists. 2006) (citing Mary Immaculate Hosp. v. Allstate Ins. Co., 5 A.D.3d 742, 774 N.Y.S.2d 564, 564 (2d Dep't 2004)).

Under CPLR § 3212(g), "[i]f a motion for summary judgment is denied or is granted in part, the court... shall, if practicable, ascertain what facts are not in dispute or are incontrovertible. It shall thereupon make an order specifying such facts and they shall be deemed established for all purposes in the action." (emphasis added).1 While a seemingly simple doctrine, most orders arising from such motions often fail to lay out specific facts, merely stating that a "prima facie case" has been established. To further complicate matters, quite often a trial Judge who hears "prima facie," will rule that such has been established, without requiring an order to specify which facts are indeed incontrovertible. This is problematic because, as CPLR § 3212(g) provides, incontrovertible facts become "Law of the Case." "Law of the Case" means that "... Pursuant to CPLR § 3212(g), such an order must specify facts that shall be `deemed established for all purposes in the action.'"2 However, if an order merely asserts that a prima facie case is established without eliciting those facts, has anything really been established? In Vitality Chiropractic, P.C. as Assignee of Natalye Konovalova v. NY Central Mut. Fire Ins. Co., plaintiff's counsel merely asserted that a prima facie case had been established, without detailing which facts were, in fact, not in dis-


News & Notes From SCBA Committees

Health and Hospital Law Thomas J. Force, Chair The meeting took place on Oct. 27 with the following members attending: Thomas J. Force, Pamela Selkin, James Fouassier, Christopher Litrel, and Denise Snow. The poor turnout was discussed with everyone surmising the reason was due to the timing of the meeting. The next meeting will be at 6 pm to afford more members of the committee to attend. Morning meetings were also discussed. The committee created the following mission statement: To educate our colleagues of the SCBA on current developments in healthcare law, healthcare financing, reimbursement, health insurance, managed care issues and regulatory developments. Specifically, the committee will develop programs to highlight these issues and assist the practitioners in understanding how these developments affect their particular areas of practice. Those attending discussed the great success of the CLE program put on by the committee earlier this year as a lunch and learn. Almost all participants wanted a longer program from the committee. A full day or evening session was discussed. Collaboration with NCBA, NYSDOI, Suffolk County DOH and NYS Attorney Generals Office, Healthcare Bureau, was discussed. This will be an agenda item for next meeting. The Health and Hospital Law Committee met on Nov. 24. The following members attended: Thomas J. Force, Sally Kassim, James Fouassier, Mary Kane, and Denise Snow. Poor turnout at second meeting was discussed and it was decided that close proximity to the Thanksgiving holiday was probable cause. This mission statement created at the last meeting was ratified by the committee unanimously. The committee decided that this year they would like to offer a full day CLE or, at the least, an evening session. Additionally, members decided that if the committee participation stays at around five or six members, an evening session will be offered. If committee participation grows to eight to 10 members, the committee will offer a full day seminar. Mr. Fouassier agreed to contact the NYS Attorney General to gauge their interest in participation in such a CLE. Thomas Force has already received tentative agreement to participate from Laura Dillon of the Consumer Services Bureau for the NYSDOI. Tom will distribute the PowerPoint used by the committee at the lunch and learn for review by committee members. Next meeting, topics for discussion at the CLE will be assigned to committee members and an outlined prepared for submission to the Suffolk County Academy of Law. The next meeting is scheduled for January 13, 2008 at 6:00 pm. Surrogate's Court Mary K. Kane, and and Kurt P. Widmaier, Co-chairs The Surrogate's Court met on Oct. 29 with 26 members attending. Richard Weinblatt, Esq. discussed the topic of crisis planning and the execution of a promissory note when, last minute, an individual is entering a nursing home. Hand-outs were given to members. It was agreed that co-chairs will work to obtain CLE credit for upcoming speakers at future meetings. The Surrogate's Court met on Nov. 19 and was well attended. Kurt Widmaier, Esq. spoke about Supplemental Needs Trust and how the issue presents itself in the Surrogate's Court. Handouts of recent cases and sample trust were provided to members The Surrogate's Court met on December 3 with 21 people attending. Franklin Farris, the Suffolk County Public Administrator spoke on common mistakes made in filing an accounting proceeding in the Surrogate's Court, and certain updates with his office procedure. The January meeting (date to be announced) will feature Surrogate Czygier on the issue of attorney's fee in the Court.

SCBA Foundations Need Your Support

The Suffolk County Bar Association is comprised of several foundations. They include the Pro Bono Foundation, Lawyer Assistance Foundation, Charity Foundation, Scholarship Foundation and Academy of Law. These foundations rely on your generosity. Won't you help us to keep these foundations viable? Please consider making a tax-deductible gift to the foundation of your choice. For further information, call SCBA headquarters at (631) 2345511.

Real Property

Thomas J. Vicedomini and Jeannie Virginia Daal, Co-chairs The committee met on Oct. 28 with seven members attending. Members indicated a desire to attend meeting with LIBOR representative to be held on (Continued on page 25)



Cash Advances Not Pre-Petition Income

culating the debtor's ability to fund a plan should not take into consideration income that simply will not be available in the future, Judge Grossman also pointed out that this approach could also work against the debtor, if the debtor were to have additional income in the future which is not reflected in the means test. "Absent binding authority in this Circuit, this Court is not prepared to adopt an application of the statute which would result in a debtor either: (a) being precluded from Chapter 13 relief because a mechanical application of Form B22C would create fictional monthly disposable income that the debtor does not have, or (b) allow the debtor to withhold actual monthly disposable income from repayment to unsecured creditors because his or her historic income figures are lower than actual projected figures."

(Continued from page 00) Commack, Woodbury and Valley Stream. (516) 496-0800. He can be reached at [email protected] Please visit his Bankruptcy Website: Bankruptcy

Practical Tips

The first point is that Mr. Kantor, in representing the debtor, did not give in to the trustee's unsound position, and in doing so, obtained a victory for his client. Secondly, it appears that the judges in our jurisdiction are adopting a logical and reasonable approach towards how much income a debtor can devote towards his creditors. Thus, a debtor's actual ability to pay appears to be the overriding criteria in determining how much the debtor will actually be required to pay.

Note: The author, a regular columnist, is a Long Island bankruptcy attorney who has represented thousands of consumer and business clients during the past 20 years. He has offices in Medford,

The Lawyer's Assistance Foundation

Take Care of Your Brothers & Sisters In These Hard Economic Times

If you know of lawyers in distress or having a difficult time know that we are here to help. The Foundation is a group of lawyers who volunteer to help others in need. Their work is totally confidential; they do not ask questions or make judgments. They are here for you, if you need help. You are not alone. The Foundation has been in existence for years. During that time, we have helped attorneys who have had professional turmoil due to illness, depression, and drug or alcohol addiction. We have worked in their offices, maintained their health insurance, and seen them through detox to recovery to re-entry into the professional world. It is our pledge to assure every lawyer in Suffolk County, whether a member of a firm or a sole practitioner, that in their time of need we will be there, no questions, no judgments. It is my hope that our members who are not a part of our Foundation will understand the importance of our work and will help us with a contribution no matter how large or small. Our goal is to put out our hand to help our fellow lawyers. Donna England Managing Director

Sidney Siben's Among Us

(Continued from page 9) weeklong toy drive for the holiday season for PRONTO Long Island to ensure that children in need enjoyed receiving gifts during the holidays. The organization provides services to the needy, the homeless, the unemployed, immigrants, the uninsured and anyone else in need.

New Members...

The Suffolk County Bar Association extends a warm welcome to its newest members: Michael Ende, Diana Lattanzio, John Paul Mixon, Jonathan H. Roth and William R. Sammis. The SCBA also welcomes its newest student member and wish them success in their progress towards a career in the law: Patrick J. Carney.


To the family of Scott DeSimone on the passing of his brother, Marc, we send our heartfelt sympathy.

Take Advantage of the Advantages

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


SCBAdvantage Program Participants

(as of February 27, 2007)





Is There Still A Tort Crisis?

legal system to run out of control and forcing physicians to retire early, relocate or give up performing high-risk medical procedures. Even as the AMA, the President and others were staking out their positions, the General Accounting Office of the U.S. Government disputed the AMA's contentions. The New York Times reported that "evidence is rolling in that malpractice claims and awards are not appreciably increasing, and in some cases, declining." In the same year the Missouri Department of Insurance issued a memo stating that Missouri medical malpractice claims, filed and paid, fell to an all time low in 2003 while insurers enjoyed a cash-flow windfall." The Bergen Record in New Jersey echoed that news, reporting that malpractice payments decreased by 21 percent from 2001 to 2003 even while premiums surged during that same time, according to the Congressional Budget Office. The CBO stated that the increase in premiums was due largely to decreases in investment income of the insurance

(Continued from page 1) sonal injury, has in fact occurred. But we are in the midst of "silent tort reform," as the Harvard study points out. This movement has moved from the legislative branches of the Federal and state governments to the regulatory agencies of the Federal government. For example, in February, 2006 the bedding industry persuaded the Consumer Product Safety Council to adopt rules making it almost impossible for a consumer to win money damages under state laws for mattresses that catch fire. This was the first time in the 33 year history of the Federal agency in which consumers were limited in their ability to bring lawsuits in state court. This is but one example of what has become an unholy alliance between government and industry at a time when it has become self-evident that industry has the ability and continued desire to mislead government agencies. The argument to the contrary, of course, has been that a single standard set by the Federal Government is the best way to protect the consumer. Supporters of tort reform often point to Proposition 12 passed in Texas in 2003. It limited damages in medical malpractices cases to $250,000 per individual and $250,000 per institution not to exceed two. Local reports from Texas claim that this proposition alone has increased the new doctors coming into Texas by 14,500 through October, 2008. It is claimed that 30 new insurers are writing business in Texas since Proposition 12, rates are being cut and access to quality medical care is on the upswing. I do not claim to be an expert on the issues discussed above. I do know, however, that the question of tort reform is important to many of our members and the actions of insurers have had a direct impact on both the plaintiff's and defendant's bar here in our county. I suspect this issue is more complicated than ever. As tort reform moves into the area of Federal regulation, preempting state laws and the effects on the consumer will be more difficult to judge. Who will be watching?

companies and cyclical factors in the insurance industry. To put it simply, premiums were often raised to make up for poor investment yields. In 2006 the New England Journal of Medicine published a study by the Harvard School of Public Health and the Harvard Risk Management Foundation which argued against the proposition that frivolous litigation represents a significant portion of malpractice claims. To the contrary, the study concluded that, from a random sample of 1452 closed malpractice files 97 percent had in fact suffered injuries. Moreover, in about one-third of these cases there was no proof of negligent treatment and these claims were correctly denied money damages. Therefore, the conclusion of the Foundation was that the "move to combat frivolous litigation will have limited effect on total costs." It is important to point out, furthermore, that often litigation and the ensuing investigation through the discovery process is the only means to discern if malpractice, or for that matter any per-

Communicating By Creating Art

bothered him. "They deprived the whole world of the treasures and even though it was thousands of miles away it caused pain in my heart," Mr. von Schmidt said. "I don't think there had been much of a Buddhist presence in Bamiyan but the Islamic people in that area were proud of the Buddha carvings." The narrow-mindedness of the Taliban, who destroyed the statues of Buddha believing them to be idols, led Mr. von Schmidt to create replacements. "In recognition of the rich culture which the Silk Road and the Bamiyan Valley represent to the world I made an interpretation of the face of Buddha and reproduced it in various materials," he explained. "Silk, of course was a natural for this project. Ultimately I turned to one of the most fascinating materials on earth and part of the foundation of the planet itself - lava. Going to the Vulcan's Forge and forming sculptures from the very substance of the earth was thrilling." Mr. von Schmidt doesn't think his choice to use lava unusual. He's used table saws, clay working tools, even a rolling machine to bend a piece of steel needed to weld together a form to slump a piece of fused glass. He's created sculptures out of iron, aluminum, and wax. On some pieces he's used an anvil, and in one instance cast paper to make three dimensional pieces. "I pick different techniques to express the pieces I'm working on at the time," he said. Mr. von Schmidt has had much success with his artwork. It has been included in exhibitions in the Anchorage Art Museum, the Nassau County Art Museum, and one of his prints is included in the permanent collection at the Brooklyn Museum and SUNY Purchase. His 1994, piece, "Luncheon in The Sawgrass, a large alligator created for Woodstock '94 is currently installed in Ellwood Park in Huntington. His artwork even led to an introduction to Pope John Paul II. In 2004, Mr. von Schmidt was commissioned by Pave The Way Foundation to create "The Ideals of Aaron," a sculpture he had the privilege of presenting to the Pope. The pair of crystal life-sized hands holding a globe was creat-

(Continued from page 4)

people there. "Court is a great window into human existence," he said. "Law is all about people." Currently Mr. von Schmidt is working on a piece to honor a fellow attorney, the late Dave Clayton. The bronze relief portrait will be mounted on a wooden plaque and displayed in the Lawyers Lounge where another one of his works is on view -- a bronze relief of another attorney who has passed away, Ira Kash. "The whole purpose of art is to communicate," he explained. "For the longest time I kept it to myself. My art is just my little statement. In all of it, if it opens somebody up to look at something differently than what I'm doing is valuable." Note: The author is the Editor-in-Chief of The Suffolk Lawyer and the Deputy Press Secretary for the Nassau County Legislature, Majority Party. She is an award-winning journalist having written for the New York Law Journal, and the Herald newspapers among others. One of her short stories is included in an anthology of short stories, "2001: A Long Island Odyssey."

ed to recognize the Pope for his accomplishments in furthering relations between the various world religions. During an audience at the Vatican, along with 150 rabbis, cantors, and other invited guests from the Foundation, Mr. von Schmidt personally presented his sculpture to Pope John Paul II. "The experience was stupendous," he recalled. "The Pope responded to my gift with a lovely speech spoken in English. I found him to be such a dynamic and engaging person." Even though he finds being an artist important, Mr. von Schmidt has always loved being an attorney too. He opened his own practice in 1989 concentrating on litigation and criminal defense. Although he currently spends much of his time working on his artwork he continues to practice law in his Dix Hills office concentrating on criminal defense and estate work. "Being a lawyer began as a day job, but I've really enjoyed it," he said. "For 20 something years I was wrapped up in the law. It is a siren that sucks you in." He said he always enjoyed going to court most, fascinated by the interactions of the

Bench Briefs


Honorable Stephan L. Braslow

(Continued from page 5) Sean E. Tutt, Index No. 2728-07, decided on February 20, 2008, the court denied defendant's motion to sever each count of the indictment. The defendant argued that trying him on all three counts together would result in undue prejudice to him. In rendering its decision, the court noted that severance would be granted in the discretion of the court only if the defendant could persuade the court that the severance should be granted in the interest of justice and for good cause shown. The court reasoned that the defendant did not make a showing that he had important testimony to give concerning one charge in the indictment and that he had a strong need to refrain from testifying on another count of the indictment. Please send future decisions to appear in "Decisions of Interest" column to Elaine Colavito at [email protected] There is no guarantee that decisions received will be published. Submissions are limited to decisions from Suffolk County trial courts. To be considered for inclusion in the March 2009 issue, decisions must be received by February 1, 2009. Submissions will be accepted on a continual basis. All decisions sent to previously listed mailing address will still considered for inclusion in future "Decisions of Interest" column. Note: Elaine Colavito graduated from Touro Law Center December 2007 in the top 6 percent of her class. She is an associate at Heidell, Pittoni, Murphy, & Bach, LLP, in Garden City, concentrating in litigation defense. She can be contacted at (516) 408-1600.

it was not an abuse of discretion to remit the matter to a different arbitrator.

Motion to sever each count of an indictment denied; no showing that it would be in the interest of justice or that there was good cause. In People of the State of New York v.



A Conversation Over A Long Lost Diary

(Continued from page 3)

Gus Ginocchio earned many medals including, a Presidential Unit Citation (with his entire unit), three Air Medals (including one with oak leaf clusters for the American Theater, European Theater, China-Burma-India Theater), The World War II Victory Medal and the Good Conduct Medal.

continues to do the same for other lawyers. Gus says that "too many people do not understand addiction" and that helping people recover from addiction rather than punishing them by stripping them of their livelihoods is so very important and gratifying. August 10, 1944: Mission Twenty-One Target Ploesti, Rumania Back to dear old Ploesti. I hate this run. Every time we go up here someone gets hurt. Gus says that the bombing runs at Ploesti were the most treacherous because of the intense anti-aircraft fire. He did not face withering anti-aircraft fire on every mission he flew but others were no less dangerous. Towards the end of the War in the spring of 1945 Gus flew "over the hump" from India to China. For those of you unfamiliar with the term, "the hump" refers to the series of high mountain ranges, including the Santsung Range rising between India and China. While there was no "flak" to worry about, these trips were still hazardous. Flying the hump was the term used for the airlift that was necessitated to bring gasoline, munitions and materiel from Dinjan in India to Kunming, China when the Japanese closed the Burma Road in 1942. These operations came to be known as the China-Burma-India Theater or "CB-I." From these operations the American military learned that enormous quantities of cargo could be delivered by air over blockades on the ground. This knowledge and experience would soon be put to good use after the War in the breaking of the Blockade of Berlin by the Russians. August 14, 1944: Mission Twenty-Two Coast of Southeastern France... Today we knew that the second D-Day was coming...For the first time I realized I was part of history in the making. The pilots and crew flying over the hump carried cargo, equipment and Chinese soldiers who were fighting the Japanese on mainland China. The pilots

were pretty interesting, typically flying converted B-24s. Many were barnstormers in civilian life who loved the challenges of their high risk jobs. It wasn't all seriousness. On occasion their missions would include flying to Calcutta to pick up cargo that included scotch whiskey. August 22, 1944: Missions Twenty-Six and Twenty-Seven Target Blechammer, Germany: Today was the toughest mission of my tour here...I almost lost my heart. I thought we weren't going to see home again. Flak....ripped at our left wing and tore aileron to shreds. Just missed tanks by inches. If it had hit those I think my wife would be a widow today. When they were stationed in India the flyers enjoyed living quarters that were quite comfortable having been built earlier by the British. In contrast, the conditions around them when based in Foggia near Naples in southern Italy were deplorable. "Foggia was destroyed by the Germans. They were brutal to the Italians." The otherwise beautiful Bay of Naples where the Isle of Capri sits was strewn with sunken ships. August 25, 1944: Missions Thirty-Two and Thirty Three Target Brno, Czechoslovakia A thrill a day in this business... Gasoline problem made us sweat our return trip. Pilot didn't think we could make it to our base....We made it to Foggia with little gas to spare. Gus and Betty regularly attend annual reunions of the 463rd Bombardment Group all over the country. The first one was to celebrate the 50th anniversary of the B-17 Flying Fortress. Gus mentioned somewhat wistfully that their ranks are dwindling and that "we may have to consolidate with other Groups." September 21, 1944 Mission Forty-One Target Bekescsaba, Hungary: ......... Back to flying again after an absence of twenty days. I felt as if we were starting all

Young Gus Sitting Atop his B-17.

over again. When you stay away from this stuff it makes you more frightened than ever. September 22, 1944 Missions FortyTwo and Forty-Three Target Munich, Germany Germany is getting rougher- greater concentration of guns over vital spots. She must save all she can for her final defenses. This business of playing for keeps still scares me. God, stay with us til the end. We returned to talk about his work with the Lawyers Assistance Foundation. Gus, a man who loves his fellow lawyers, observes that "alcohol has ruined so many good lawyers" and that the Foundation has saved the careers of so many others. September 23, 1944 Missions FortyFour and Forty-Five Target Brux, Czechoslovakia......... Today, over the bomb run, as I watched that damn stuff [flak] coming up I g o t weak in the knees. The closer to the end, the more nervous I become. As his assignment of flying 50 bombing missions was nearing a conclusion Gus would become more and more apprehensive of the thought of not returning home. October 4, 1944 Missions Forty-Six and Forty-Seven Target Munich, Germany While I was in the camera well taking pictures of the target results I could feel the shells breaking under my buttocks...There were times today when I thought the end was near. These last few missions give you the horrors. You realize that just one mission can spoil everything. God please stay with us. When he returned from the war, Gus went to Fordham Law School and upon graduation passed the bar in 1947. He

became a managing attorney in the prestigious Wall Street firm of Debevoise, Plimpton & McClean (now Debevoise & Plimpton). In those days it wasn't easy for a lawyer whose name ended in a vowel to get a job with a prestigious Wall Street law firm. Fellow Italian-Americans were few and far between. But Gus was unsatisfied with the big firm environment and felt that "I could never be the kind of lawyer I wanted to be." He wanted to be "part of someone's life" and "to have the touch of humanity." These were things that he felt he could not achieve in the big firm environment. Gus has always wanted to help people because "that's what lawyers do." October 13, 1944 Missions Forty-Nine and Fifty Target Vienna, Austria: "Finito Mission" ...... Today for our last mission we picked the place we dreaded the most. Vienna i s one of the roughest targets in Europe. All the way up I asked will our luck hold out today? Our crew has been fortunate. Not a scratch. Will we finish that way?... my tour of operations, I look back upon it as a release from a constant nightmare. Though I hate this business, I am consoled by the fact that I have actively participated in shaking Hitler and his asinine "Supermen" from their rotten throne. ... Our hope is that victory will come soon. Thanks dear Lord for taking us through. I hope I never have to fly combat again. Au Revoir sweet tour of operations. I'm so glad that Betty found that long lost diary. Otherwise, some of us may have never known this special lawyer in our midst. Note: The author is the Chief Assistant District Attorney for Suffolk County, the immediate past president director of the SCBA and an adjunct professor at Touro Law School.





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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 late January and February; a few take place later on in the year. For information on other courses to be offered during Winter 2009, watch for publicity fliers and see the Academy's Winter Catalog and Academy calendar on the SCBA website. 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.

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.

NOTES: Program Locations: Most, but not all, programs are held at the 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. 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©)(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.


Video Replay: 2008 CRIMINAL LAW UPDATE

Thursday, January 27, 2009

This replay of the information-packed program presented live in Mineola in September covers key decisional and statutory developments in the area. A live moderator will add commentary and field questions. Faculty:Hon. Mark Cohen (NYS Supreme Court // Suffolk; former Chief ADA, Suffolk County) Kent Moston, Esq. (Legal Aid Appellate Division, Nassau County) Time: 4:00­7:00 p.m. (Registration from 5:15 p.m.) Location: SCBA Center Refreshments: Snacks MCLE: 3 Hours (2 1/2 professional practice; 1/2 ethics) [Non-Transitional and Transitional]

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 (professional practice) [Non-Transitional and Transitional]

.......(Brunetti, Ascione, Friedman & Lavalle, PLLC­Garden City)

Jury Selection; Accusatory Instruments; Evidentiary Foundations .................................Hon. Norman St. George Nassau District Court Bench // Ran the Dedicated DWI Part in Nassau County for Three Years


Afternoon Practice Management Series


Pre-Trial Hearings; Chemical Tests; Cross-Examination of Arresting Officers.........................Peter Gerstenzang, Esq. .....Gerstenzang, O'Hern, Hickey & Gerstenzang ­ Albany Author­Handling the DWI Case in New York (considered a standard reference for DWI defense) Motion PracticeWilliam T. Ferris, Esq; Scott Lockwood, Esq; John Powers, Esq. Hardship Hearings...........................Wayne Donovan, Esq. Sentencing & Punishment............Jeremy J. Scileppi, Esq. Program Moderator ­ Hon. W. Gerard Asher Program Committee: Hon. W. Gerard Asher, William T. Ferris, Scott Lockwood, John Powers, Wayne Donovan, Jeremy J. Scileppi, Patrick O'Connell Location:SCBA Center (Hauppauge) Thursday Program: Time: 6:00­9:00 p.m. (Sign-in from 5:30 p.m.) Refreshments: Light supper MCLE: 3 Hours (Professional Practice OR Skills) [NonTransitional and Transitional] Saturday Program: Time: 9:00 a.m.­2:00 p.m. (Sign-in from 8:30 a.m.) Refreshments: Continental breakfast and light lunch MCLE: 5 Hours (Professional Practice OR Skills) [NonTransitional and Transitional]


Built around Stephen Covey's 1990 publication, this guided book discussion aims to help lawyers achieve meaning and effectiveness in their professional and personal lives. You may opt in at any point. (You are urged to read the book concurrently.) Topics & Dates (Wednesdays) Habit 5 - Seek first to understand .......February 25, 2009 Habit 6 - Synergize .................................March 25, 2009 Habit 7 - Sharpen the saw.........................April 22, 2009 Conclusion & Recap ..................................May 13, 2009 Discussion Leaders: Sheryl L. Randazzo (Randazzo & Randazzo // SCBA First Vice President); Gail Blasie (Academy Officer) Each Session MCLE: 1 1/2 Hours (practice management) [Transitional/Non-Transitional] Location: SCBA Center Time: 4:00­5:15 p.m. // Registration: 3:30 p.m. Refreshments: Afternoon Snacks


Thursday, January 29, 2009

In 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act resulted in sweeping changes in the law. This program will review developments that have arisen since the passage of the law, including issues related to the means test, statutory interpretations and case law. Faculty: Salvatore La Monica (LaMonica, Herbst & Maniscalco, LLP); Marc Pergament, Esq. (Weinberg Gross & Pergament, LLP); Robert Pryor, Esq. (Pryor & Mandellup, LLP) 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]

Lunch `n Learn


Wednesday, January 21, 2009

Giving or accepting a power of attorney is not an entirely benign process. Certain risks accompany the act, and individuals have been known to run into both legal and ethical problems. Three experienced elder law lawyers discuss the power of attorney and provide important caveats you should keep in mind. Discussion of a new Court of Appeals case will be included. Faculty: Eileen Coen Cacioppo, Esq.; George Tilschner, Esq.; George Roach, Esq. MCLE: 2 Hours (2 1/2 Professional Practice; 1/2 ethics) [Non-Transitional and Transitional] Time: 12:30 p.m.­2:00 p.m. Location: SCBA Center Refreshments: Lunch


Friday, February 13, 2009

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) 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]

Two-Part Program Presented in Conjunction with the SCBA District Court and County Court Committees

DWI's ON LONG ISLAND: Trials, Tribulations & Trends

Thursday, January 22, 2008, and Saturday, January 24, 2008

This in-depth, two-part program will provide an update on the law and current issues, plus an assortment of defense strategies, and techniques. If you handle DWI matters on Long Island ­ which most attorneys do from time to time ­ you will not want to miss this program. The faculty includes both experienced Long Island practitioners and guest presenter Peter Gerstenzang, well-known author and strategist on DWI defense.


Monday, April 6, 2009

The program those in the field wait for, the 2009 update will highlight all the important developments in decisional and statutory law. It's not to be missed.




Monday, January 26, 2009

More CLE Programs On Page 24

All Field Sobriety Tests................Robert J. Brunetti, Esq.





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More CLE Programs On Page 24






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Wikipedia gives a succinct summary of the U.S. Supreme Court decision Arkansas v. Ahlborn: Ark. Dept. Of Human Servs. V. Ahlborn, 547 U.S. 268 (2006) was a decision ... involving the ability of a state agency to claim a personal injury settlement as compensation for Medicaid benefits provided for treatment of the injuries. The Court ruled unanimously that a federal statutory prohibition against liens on personal property to recover Medicaid expenditures applied to settlements, so that only the portion of the settlement that represented payment for past medical expenses could be claimed by the state. In this important program, an outstanding faculty will discuss the meaning and ramifications of Ahlborn and its ongoing significance for personal injury practice. Faculty: John L. Juliano, Esq. (East Northport // Former SCBA President) John E. Holownia, Esq. (County Attorney ­ Bureau Chief, Social Services/Family Court) Brett Newman (Plaintiff's Solutions, Inc.) MCLE: 3 Hours (professional practice) [Transitional/Non-Transitional] Time: 6:00 - 9:00 p.m.. // Registration: 5:30 p.m. Location: SCBA Center Refreshments: Light supper

tages and each has disadvantages. This seminar will help the practitioner to provide business clients with sage advice on choice of entity. Topics & Presenters Entity Formation Differences....John R. Calcagni, Esq. Haley, Weinblatt & Calcagni, LLP (Islandia) Litigation and Dissolution Differences .......................................Peter Mahler, Esq. Farrell Fritz, PC Tax Differences .......Alan E. Weiner, CPA, JD, LL.M. Holt Rubenstein Reminick LLP Court Perspectives ........ ............................................................Hon. Emily Pines NYS Supreme Court (Suffolk) ......Kathy Coward, Esq. Law Secretary­Supreme Court Commercial Division­Suffolk Coordinator: Gail Blasie, Esq. (Academy Officer) MCLE: 3 Hours (Professional Practice) [NonTransitional and Transitional] Time: 6:00­900 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper

This seminar will review the residential contract of sale form dated November 2000, on which most attorneys rely. The panel will analyze revisions commonly made to the form's language and review issues that fall outside of the language in the form contract. Contract provisions that should be included in every rider will also be covered. Faculty: Gerard J. McCreight, Esq. (Bracken & Margolin) ­ Moderator; Lita-Smith Mines, Esq.; Robert M. Steinert, Esq.; Thomas J. Vicedomini, Esq. MCLE: 2 Hours (Ethics) [Non-Transitional and Transitional] Time: 12:30­2:10 p.m. (Registration from Noon) Location: SCBA Center Refreshments: Lunch

East End Seminar


February 26, 2009

This program will cover important developments in the laws and procedures affecting how East End practitioners handle DMV and DWI matters. Topics & Presenters DMV Update..............David Mansfield, Esq. (Islandia) Refusal & Pringle Hearings.......Stephen A. Grossman, Esq. (Sag Harbor) Alcohol Evaluations Kathryn Mitchell and Mary Canero Coordinator: Brian C. Doyle, Esq. (Farrell Fritz) MCLE: 3 Hours (Professional Practice) [Non-Transitional / Transitional] Time: 5:30­8:30 p.m. (Registration from 5:15) Location: Bridgehampton National Bank Refreshments: Light supper

Morning Seminar

OCA Informational Program


Wednesday, February 4, 2009

The NYS Office of Court Administration hosts this informational session for SCBA members interested in serving as mediators for the Suffolk County Supreme Court Commercial Division. Session will include: Discussion of Training Requirements for Mediators Protocols for Participation Under Newly Promulgated rules Governing Mediation in Connection with the Suffolk Commercial Part Applications for those interested in participating in the program will be made available. For more information, see the SCBA website ( MCLE: 1 Hour (Professional Practice) [Non-Transitional] Time: 5:30­6:30 p.m. Location: SCBA Center Refreshments: Coffee


Tuesday, February 24, 2009

This powerful tax deferment tool enables people to sell income, investment, or business property and replace it with like-kind property ­ without paying federal income tax on the transaction. In the current real estate market where sales may be difficult, the exchange process takes on added significance. In this seminar, you will learn various ways to structure the exchanges and learn how to make the outcome as advantageous as possible for your client. Faculty: Michael S. Brady, Esq. (Eastern Region Manager­Asset Preservation, Inc. // Academy Officer) Joseph Insalaco, CFP (1031 Investment Services, LLC) MCLE: 3 Hours (Professional Practice) [NonTransitional and Transitional] Time: 9:00 a.m.­Noon (Registration from 8:45 a.m.) Location: SCBA Center) Refreshments: Breakfast


Friday, February 27, and Saturday, February 28, 2009

This 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. TRANSITIONAL TOPICS (2/27/09): 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 (2/28/09): 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 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.) Faculty: Barry Warren; Harvey Besunder; Barry Smolowitz; Neil Block; Gail Blasie; Lita SmithMines; Frederick Eisenbud; John Calcagni; Richard Weinblatt; George Roach; Suffolk Administrative Judge H. Patrick Leis, III; Hon. Ralph Costello; Hon. Gigi Spelman; Daniel Engstrand, Jr.; Wende Doniger; James Fagan; Arthur Shulman; Stephen Kunken; William Ferris; Michael Isernia Both Days: Location: SCBA Center (560 Wheeler Rd., Hauppauge) Refreshments: Continental breakfast and lunch buffet Program Committee: Stephen Kunken; William Ferris; Barry Smolowitz. Felix Wienclaw; Wende Doniger; Arthur Shulman; Dorothy Paine Ceparano

MORTGAGE FORECLOSURE: Bringing an Action; Mounting a Defense; Getting It Right Before the Court

Wednesday, February 11, 2009

The various facets of mortgage foreclosure will be examined, with an eye toward supplying insight into all the newest developments. Topics & Presenters The Foreclosure Process .....Allan B. Mendelsohn, Esq. Zabatsky, Mendelsohn & Levy, LLP View from the Bench.........................Hon. Peter Mayer NYS Supreme Court (Suffolk) Overview of Possible Defenses in Foreclosure Proceedings............................... ................................................Matthew Pachman, Esq. Ackerman, O'Brien, Pachman & Brown Coordinator: Richard Stern, Esq. (Macco & Stern ­ Melville) MCLE: 3 Hours (Professional Practice) [Non-Transitional and Transitional] Time: 6:00­900 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper


Wednesday, February 25, 2009

More and more U.S. veterans are in need of legal counsel. This seminar will cover key issues and provide you with information to effectively represent United States veterans in various legal matters. Topics & Presenters Overview of the Soldiers & Sailors Relief Act and USERRA ........................................Hon. Allan Mathers Employee Benefits & Employers Duties for Returning Service Personnel....................Jeffrey N. Nanness, Esq. Default Judgments ..........................Hon. Andrew Engel Services Available for Veterans .........Thomas Ronayne (Director­Suffolk Veterans Service Agency) The Veteran's Perspective.................Daniel Murphy, Esq. Moderators: Hon. Peter Mayer and Ted Rosenberg, Esq. Note: This important program is presented without a tuition fee. An optional small donation ($25) is sought to cover the cost of refreshments and course materials. MCLE: 3 Hours (Professional Practice) [Non-Transitional / Transitional] Time: 6:00­900 p.m. (Registration from 5:30) Location: SCBA Center Refreshments: Light supper


Wednesday, February18, 2009

Deciding between an S-Corporation and a Limited Liability Company can be a daunting process for a startup or reorganizing business. Each entity has its advan-

Lunch `n Learn


Thursday, February 26, 2009



Injury And Redressability Addressed

New York State (the "Towns") sought a review of two United States Environmental Protection Agency ("EPA") final actions. The first action concerned New York State's non-compliance with certain EPA regulations and the second concerned a Filtration Avoidance Determination requiring New York City to spend additional monies on land acquisition in the Catskill and Delaware watershed regions. The EPA urged that the Towns suffered no injury and therefore lacked standing under the Constitution's Article III "caseor-controversy" requirement. The Towns countered with arguments to demonstrate four injuries that confer standing. The Second Circuit denied the Towns' petition for review without taking a position on whether the Town's met the injury-in-fact requirement. Instead, the court on its own initiative raised the "redressability" element of standing. See the quotation from Huff, 2008 WL 5076825*4, set forth above, concerning

(Continued from page 13) Note: The author is Of Counsel to DePinto, Nornes & Associates, LLP in Melville. 1. The decision was downloaded from 0NDktYWdfb3BuLnBkZg==/07-2449ag_opn.pdf#xml=http://www.ca2.uscour on December 29, 2008.

standing's three irreducible elements, defining redressability as "a non-speculative likelihood that the injury can be remedied by the requested relief." After reviewing the Towns' submissions in support of their injury-in-fact, the Second Circuit concluded that even if their requested relief were granted, "there is no basis for us to conclude that [the Towns] would more likely than not be in any different position than they are now." Coalition of Watershed Towns, (slip op.), at 4.

To Regulate Or Deregulate, To Subsidize Or Not

time-proven economic principles. In both of the instances abovedescribed free market rules were, for all intents and purposes, set aside favoring instead the heavy hand of centralized government and bureaucratic control. The reason why this merits analysis is simple. The United States' economy seems to be once again at cross-roads. Throughout its history the nation has faced such crises at various intervals and each time its resilience, ingenuity and economic system brought it through, and ultimately emerging even more prosperous than it had been. That is not to say that there haven't been severe costs associated with downturns and subsequent recoveries. At this time it would appear that a left of center sentiment dominates the nation's incoming political leadership as evidenced by the recent election results of November 2008. It should be noted in passing that according to surveys conducted after the election returns, 22 percent of Americans describe themselves as liberals, 34 percent as conservatives, and the remaining 44 percent as moderates. Interestingly enough this constitutes have the same self-designation in terms of ideological identification as in the aftermath of the 2004 election, which yielded a right of center president and congress. Therefore it might be argued that the populace has not changed its political philosophy but its leadership as a consequence of the election. Be that as it may the issue at hand deals with the economic philosophy, and thus the approach, that the nation through its federal legislature and executive branch follow. As mentioned earlier it seems that many incoming policy makers would advocate for a more centrally controlled approach. This has often and mostly lately been labeled as socialism. This label has been suggested principally by its critics, but nevertheless and more accurately it would seem evident that what is being espoused could be referred to as a socio-democratic economic system bearing similarities to some European nations (who ironically over the past few years give all indication of veering off, if to a small degree, from said system in favor of a more American style pro free market orientation). The current minority, namely the opposition will argue for what is generally termed as a regulated free market economy and for legislation promoting it. The latter would argue that the American economic engine, the most successful by every quantifiable measure in human history, is based on the principles of free enterprise and the accompanying notion of "American exceptionalism". The debate that the nation is and will be engaging in and which will ultimately be reflected through its legislative and legal system is far from being a new one. Indeed it goes back all the way to the first settlers, namely the pilgrims that landed at Plymouth Rock in present day Massachusetts. In order to brave the extremely harsh and unforgiving conditions the pilgrims faced upon their arrival in the new world the challenge of how to produce enough food and basic goods to survive. To that end a collectivist system (contemporarily this would be termed as socialism or perhaps even communism) was set up where every colonist was asked to work in whichever manner they

(Continued from page 17)

News & Notes From SCBA Committees

(Continued from page 18) November 21, 2008 at 2:30 p.m. regarding use of Sellers Concessions in light of the recent Ethics Opinion. Members of the Committee also suggested establishing a Mediation/Arbitration Panel for purposes of resolving residential real estate post contract escrow dispute.

Family Court

Isabel E. Buse and Marjorie E. Zuckerman, Co-Chairs The Family Court Committee met on Nov. 12 with approximately 22 members attending. Members networked, and listened to Robert Cohen Esq. speak on "How to Represent a Parent Who Wants to Relocate or How to Defend A Client Who Wants to Prevent the Relocation of a Child." Mr. Cohen provided an overview of how to represent clients before the Supreme Court and Family Court in Suffolk County. The Co-Chairs would like to be contacted with suggestions for future topics. Family Court Committee meet once a month usually the second Wednesday during lunch in Judge John Kelly's courtroom.

Intellectual Property

Thomas A. O'Rourke, Chairman The committee met on Oct. 15 to plan the years activities and discuss a presentation on intellectual property law that was to be presented at the November meeting of the Commercial and Corporate Law committee. Speakers were lined up for the November meeting with the Commercial and Corporate Law committee. After the meeting committee members sent out a questionnaire to the members to ascertain dates and times that are convenient for future meetings.

could (mostly farming and related activities) and required to produce and thus contribute what they were able to the community. On the other hand they could take from the collective goods according to their individual needs. The result was that many worked hard to be sound contributors to the community while others simply took what they needed or wanted but contributed very sparingly and meagerly. It quickly became apparent that the colonist community risked annihilation through starvation. Therefore it was soon realized that a drastically different approach should be utilized and the approach they adopted was to award a plot of land to each of the colonists with the proviso that each was responsible for raising its own crops and meet his and his family's needs and furthermore any surpluses could be sold for a profit. As expected the colony began to prosper and in time thrive. They say history repeats itself. Perhaps so, for if not exactly, there certainly are similarities. The United States' constitution has provided a substantial level of guidance with regard to our economic system by enshrining certain foundational principles, which reflected the essential beliefs of its citizenry and its founding framers. Among these is the right for any individual to own property. Furthermore in order to limit the power of a centralized authority to overly control commerce there is a prohibition against the government owning any means of production. Of course excessive regulation, or de-regulation as the case may be and as referred to in the roots of the financial crisis alluded to above, is a powerful governmental tool that can dictate the economic system we live by and by extension create the nation that we are. Note: The author is a Professor of Business & Law at SUNY Empire State College. Any commentary and feedback is welcome at [email protected]

Advertise To 27,000 Lawyers

in Queens, Kings, New York, Nassau & Suffolk Counties

Call 866-867-9121


THE SUFFOLK LAWYER -- JANUARY 2009 More Academy News on pages 27; CLE Course Listings on pages 22-23


________________________ By Dorothy Paine Ceparano

It's a Good Time to Learn Something New

you well, now or in the future. And, in the process, you may find satisfaction ­ and even make a valuable contact or two ­ in shared learning experiences with colleagues. The Academy is pleased to offer a multi-faceted syllabus this winter, with some courses reflecting the particular exigencies of current times. Many of our constituents report that would-be clients are seeking counsel on matters related to financial concerns and that they are dealing with issues that haven't heretofore entered their fields of practice. Hence, the Academy has developed a number of courses around the theme of "lawyering in a distressed economy." The series began on January 13 with a program on the "ABC's of Bankruptcy Law" (featuring experienced bankruptcy lawyers Richard Stern and Michael Macco), now available as an audio or video recording. On January 29, a Bankruptcy Update (Salvatore LaMonica, Michael Macco, Robert Pryor, Marc Pergament, and Richard Stern) will explore issues, including recent developments, that have arisen since the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005. On February 11, a seminar on Mortgage Foreclosures (Allan B. Mendelsohn, Hon. Peter Mayer, Matthew Pachman) will look at three key elements: how an action is brought, possible defenses, and how the courts are responding. And, on March 25 (lunch program), "Exit Rights and Responsibilities of Employees Upon Termination" (experienced employment law lawyers Lawrence Monat, Scott Michel Mishkin, W. Matthew Groh, and Howard Gilbert) will explore a variety of severance issues, including wages, health benefits, vacations, bonuses, return of property, non-compete and non-solicitation, and arbitration agreements. Some programs, while not focused on such issues as bankruptcy or mortgage foreclosure, look at traditional subject matter with an eye that reflects the realities of the current economy. For example, on January 21 (lunch program), three elder law attorneys (Eileen Coen Cacioppo, George Tilschner, and George Roach) re-examine "The Power of Attorney," covering important ethical and legal concerns. Then, on February 26 (lunch `n learn), a panel of real estate practitioners (Gerard McCreight, Lita Smith-Mines, Robert Steinert, and Thomas Vicedomini) look at "Pitfalls of the Residential Real Estate Contract," supplying advice for altering the traditional contract sale form in light of the new real estate market. While most programs address the legal needs of clients, the financial requirements of lawyers are not forgotten. On March 4, "Enforcement of Money Judgments" (Lester Taroff and Elliott Portman) will dissect CPLR Article 54 and provide practical tips for collecting what the judge has ordered. And at the end of March (tentative date of March 31), a panel of solo and small firm practitioners, chaired by management consultant-attorney Allison Shields, will provide advice on "Starting a Law Practice," a program that will explore, among other things, the financial realities facing the entrepreneur-lawyer. One timely program this year relates not to the economic downturn, but to another serious problem in our midst: the need for legal help among United States Veterans. On February 25, a seminar entitled "Representing Veterans," organized by Honorable Peter Mayer and Ted Rosenberg, will cover some of the key issues confronting veterans. Topics include an Overview of the Soldiers and Sailors Relief Act and USERRA (Hon. Allan Mathers); Employee Benefits and Employers' Duties for Returning Service Personnel (Jeffrey Naness); Default Judgments (Hon. Andrew Engel); Services Available for Veterans (Thomas Ronayne, Director of Suffolk Veterans Service Agency), and The Veteran's Perspective (Daniel Murphy). The program is presented free of charge (with a (Continued on page 27)

Hope springs eternal in the world of continuing legal education. Winter is here. The economy is bad. And the new year finds many lawyers with a dearth of clients and a surplus of uncollected fees. Learning something new, however, can not only provide distracting mental stimulus, but may pave the way to brighter days. CLE classes not only help lawyers enhance the skills they need in their existing practice areas, but open doors to new competencies­and new clients. The real estate attorney, for example, may find a new interest in business law or matrimonial practice. So- in this winter of virtually everyone's discontent, why not explore ways to grow or diversify your practice? You will gain knowledge that will serve


lendar Ca

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.

January 21 Wednesday Lunch `n Learn: The Power of Attorney: A Cautionary Tale. 12:30­2:15 p.m. Lunch and sign-in from Noon. 22 Thursday Handling DWI Matters: Part I. 6:00­9:00 p.m. Sign-in and light supper from 5:30 p.m. 24 Saturday Handling DWI Matters: Part II. 9:00 a.m.­Noon. Sign-in and breakfast from 8:30 a.m. 26 Monday Ahlborn Decision & Medicaid Liens. 6:00­9:00 p.m. Sign-in and light supper from 5:30 p.m. 27 Tuesday Video Replay: Criminal Law Update. 4:00­7:00 p.m. Sign-in from 3:45 p.m. Snacks. 29 Thursday Bankruptcy Update. 6:00­9:00 p.m. Sign-in and light supper from 5:30 p.m. February 2 Monday Curriculum Committee Meeting. All invited. RSVP: 631-234-5588. 4 Wednesday OCA Training: Introduction to Serving as a Mediator for the Supreme Court Commercial Division. 5:30­6:30 p.m. 6 Friday Academy Meeting of Officers and Volunteers. All invited. 7:30 a.m. Complimentary breakfast. 10 Tuesday Lunch `n Learn: Ethics Issues for Municipal Clients (presented by SCBA Education Law Committee). 12:30­2:10 p.m. Lunch and sign-in from Noon. 11 Wednesday How-To's of Mortgage Foreclosure. 6:00­9:00 p.m. Sign-in and light supper from 5:30 p.m. 13 Friday Annual Elder Law Update. 2:00­5:00 p.m. Sign-in from 1:30. Valentine snacks. 18 Wednesday LLCs v. S-Corps. 6:00­9:00 p.m. Sign-in and light supper from 5:30 p.m. 24 Tuesday Mastering Advanced 1031 Property Exchange Concepts. 9:00 a.m.­Noon. Sign-in and breakfast from 8:30 a.m. 25 Wednesday Guided Book Discussion: Covey's 7 Habits of Highly Effective People. Session 4 (Habit 5 ­ Seek first to understand.) 4:00­5:15 p.m. Sign in and snack from 3:30 p.m. 25 Wednesday Representing Veterans. 6:00­9:00 p.m. Sign-in and light supper from 5:30 p.m. 26 Thursday Lunch `n Learn: Pitfalls of the Residential Real Estate Contract. 12:30­2:30 p.m. Lunch and sign-in from Noon. 26 Thursday East End: DMV & DWI Update. Bridgehampton National Bank. 5:30­8:30 p.m. Sign-in and light supper from 5:15 p.m. 27 Friday Bridge-the-Gap (Training for New Lawyers). Day I­Transactional Practice. 8:00 a.m. ­ 4:45 p.m. Sign-in from 7:45 a.m. Continental breakfast and lunch. 28 Saturday Bridge-the-Gap (Training for New Lawyers). Day II­Litigation. 8:30 p.m. ­ 4:30 p.m. Sign-in from 8:15 a.m. Continental breakfast and lunch.


Part 6 of The Seven Habits of Highly Effective People: Powerful Lessons in Personal Change: A Guided Book Discussion, will be held on Wednesday, February 25, 2009, at 4:00 p.m. (registration and energizing snack start at 3:30 p.m.). We will be covering Habit 5 ­ "Seek First to Understand, then to be Understood." All are welcome, even if you have not attended prior sessions; but pre-registration is highly recommended. To register, please call the Academy at (631) 234-5588.

Change Of Date

"Finding Hidden Assets," originally scheduled for Wednesday, January 28, 2009, will be held in the spring, on Wednesday, May 6, 2009. Readers may be interested to learn that the presenter, Fred Abrams, whose practice is focused largely on the location of offshore assets in matrimonial, criminal, and other such matters, recently appeared on Fox News and has been quoted in the New York Times and other publications in articles on the Bernie Madoff investigation. He will incorporate some of his "Madoff insights" into his May presentation for the Academy.



Patricia M. Meisenheimer Robert K. Howard Hon. John Kelly Cheryl F. Mintz Felix Wienclaw Gail Blasie 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

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Dorothy Paine Ceparano Allison C. Shields John C. Zaher Herbert Kellner Marilyn Lord-James Lynn Poster-Zimmerman George R. Tilschner Stephen Ukeiley




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It's a Good Time to Learn Something New

$25 optional donation to help defray the cost of materials and refreshments respectfully requested) in the hope that participants will take on at least one veteran's case on a pro bono basis. Many cutting edge programs this winter will help attorneys to expand or refine their skills. One is a two-part offering entitled "DWI Cases on Long Island: Trials, Tribulations, and Trends." The first session, on the evening of January 22, features Robert Brunetti on field sobriety tests and Hon. Norman St. George on jury selection, accusatory instruments, and evidentiary foundations. The second session, on the morning of Saturday, January 24, features the acclaimed attorney and author Peter Gerstenzang on pre-trial hearings, chemical tests, and cross-examination of the arresting officer, plus William Ferris, Scott Lockwood, and John Powers on motion practice, Wayne Donovan on hardship hearings, and Jeremy Sclipeppi of the Suffolk District Attorney's Office on sentencing and punishment. Registrants may enroll in the full program or either single session. Another program on DWI's and DMV Practice will be held on the East End (Bridgehampton National Bank) on February 26. This seminar, covering a DMV update, refusal and Pringle hearings, and alcohol evaluations, features David Mansfield, Stephen Grossman, and two alcohol evaluators. For those who practice matrimonial law, the Academy's annual Matrimonial Mondays series brings three new offerings this year: "Custody" on March 9; "Separate Property Appreciation and Valuation of Family Business" on March 16; and "Trying the Grounds in a Matrimonial Case" on March 23. Organized by Linda Kurtzberg, Arthur Shulman, and Robert Clemente, the series features a representative of the bench in each session (Hon. Andrew Crecca, Hon. John Bivona, and Hon. Mark Cohen) and a full contingent of experienced matrimonial lawyers (Donna England, Lynne PosterZimmerman, Theresa Mari, Vincent Stempler, Keith Rieger, Donald Sallah, and Thomas Campagna). In the field of business law, a not-to-be missed seminar on February 18 takes on the issue of "S-Corps vs. LLCs." The question of which way to go confronts new and reorganizing businesses and those who represent them. This program, in an attempt to clarify the issues, covers "Entity Formation Differences" (John Calcagni), "Litigation and Dissolution Differences" (Peter Mahler), "Tax Differences" (Alan Weiner, CPA, JD, LLM), and "Perspectives of the Court" (Hon. Emily Pines and Kathy Coward). Those who represent investors and busi-

(Continued from page 26) video recording. Other programs scheduled this winter include George Roach's annual S.R.O. Elder Law Update (February 13 matinee); the SCBA Professional Ethics Committee's popular Ethics Round Table (March 12), and the Fourth Annual Animal Law seminar from the SCBA's Animal Law Committee (March 26). The book discussion group based on Stephen Covey's 7 Habits of Highly Effective People, led by Sheryl Randazzo and Gail Blasie, continues on February 25, March 25, and through the end of May; participants may opt in at any time. Finally, a number of SCBA committees have designed programs of general interest or will include CLE offerings as part of their meetings; watch for fliers or emailed announcements. For more information on any of the programs that comprise the Academy's winter semester, please see the centerfold of this publication, the 2009 Winter Catalog (mailed to SCBA members and on the SCBA website), and monthly publicity fliers. You may also call the Academy Office at 631-234-5588, where not only your questions about the existing syllabus, but your requests for future programs will be most welcome. Note: The writer is the executive director of the Suffolk Academy of Law.

ness property owners also will not want to miss Michael Brady's information-packed seminar on "Mastering Advanced 1031 Exchange Concepts" scheduled for the morning of February 24. The presentation will explore ways to structure tax-free property exchanges to obtain the most advantageous outcomes for clients. Two programs of particular significance for litigators will take place this winter. On January 26, an experienced faculty (John Juliano, John Holownia, Robert Grey, and Brett Newman of Plaintiff's Solutions) will address "Ahlborn and Liens in Personal Injury Practice." Ahlborn is the United States Supreme Court decision that dealt with recovery of Medicaid expenditures; the ramifications of that decision for those who handle and attempt to settle personal injury cases are manifold. Civil litigators will also not want to miss the in-depth discussion of "The PJI" scheduled for March 24. Hon. James Flanagan, with Hon. Emily Pines (a member of the PJI Committee), Hon. Thomas Whelan, and a contingent of skilled civil trial lawyers, will address significant issues for any attorney whose practice involves jury trials. Finally, a program on "Nursing Home Litigation," held on January 14 and featuring an outstanding faculty (Michael Glass, Jason Platt, Keith Kaplan, Dr. Jeffrey Levine, and David Grossman), is now available as an audio or



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