albany county bar association - judgecrummey.com filealbany county bar association newsletter june...
TRANSCRIPT
AlbAny County bArAssoCiAtion
NewsletterJune 2014
President’s Message
Hon. Peter G. Crummey“Faded photographs, Covered now with lines and creases, Tickets torn in half, Memories in bits and pieces.” Classics IV, 1969.
Many of us, upon our parents’ passing, have had to sort their personal posses-sions often involving generations of pa-pers and memories. I am now in that process and it helps me take pause and consider life’s influences. For instance, I have found many items belonging to my grandfathers.
Both my grandfathers were lawyers. Dad’s Dad grew up in Albany and graduated from Christian Brothers Academy, Georgetown University and Albany Law School ‘10. He practiced in New York City and Long Island where he eventually became Chief Coun-sel and Secretary to the Long Island Light-ing Company during growth years for that company. Mom’s Dad grew up in Cleve-land graduating from Central High School and Ohio Northern University. There is a scholarship in his name at the University. He was admitted to practice in 1916 and practiced in Cleveland, Ohio. As a young attorney, he served as a Prosecutor in the Cuyahoga County District Attorney’s Office and, in 1936, ran as a Republican candidate for Congress in Ohio. I have his framed campaign poster hanging in my
office. He was not selected on election day and eventually moved west with his young family to begin a practice in Los Angeles, California. After many years of private practice in Los Angeles, he was appointed a California Superior Court Judge (New York State’s jurisdictional equivalent of a Supreme Court Judge) by then Democrat Governor Pat Brown. I found a black and white photograph of them walking together with Mrs. Brown. I also found a black and white photograph of him with Richard Nixon and another with Nelson Rockefeller. Both of my grandfathers accomplished many things during their lifetime but they were also lawyers. I was fortunate to know both of my grand-fathers while they were on this planet and they shared their grandfatherly love with me. They never suggested I become a lawyer but I wonder if their elevated stat-ure in my life influenced me to become one. I have achieved neither the station nor the wisdom they did but I am fulfilled to follow in their footsteps albeit barely occupying just a small part of their large footprints laid so many years ago. I also found a book of my Dad’s Dad en-titled, May it Please the Court by James Montgomery Beck, (1930). Beck was a major force in our profession out of Phila-delphia who practiced in both Philadel-phia and New York City. He also served in a variety of government positions in-cluding Solicitor General of the United States between 1921 and 1925 which put him in charge of over 800 cases then pending before the Supreme Court. As Solicitor General, Mr. Beck personally ar-gued 100 of those pending cases before the Supreme Court. In the book, Beck writes that on Febru-ary 13, 1925, he delivered after dinner remarks during the celebration of Elihu Root’s 80th birthday party at the Union League Club of New York City. Mr. Beck’s remarks were delivered after the remarks given by Charles Evan Hughes, Secretary of State, former Governor of New York State and soon to become Chief Justice of the Supreme Court of the United States and immediately pre-ceding the remarks of Elihu Root, former
Secretary of State, among other signifi-cant titles. At the outset of his delivery, Beck noted that speaking between these two legal titans made him “feel very much as a little minnow attempting to breast the vasty deep between two great whales”. In concluding his birthday remarks about Elihu Root, Beck stated, “What a thought at eighty years of age to feel that you have not lived in vain; that you have fought a good fight; that you have kept the faith; that you have won the respect and es-teem of men whose esteem and respect are indeed worth having.” I like Beck’s humility and his capacity to honor another lawyer and our profession. I’m glad I found the photographs with lines and creases and the memories in bits and pieces. I have many more boxes to go.
What’s inside
Executive Director.........................2Classified .................................... 3Small & Solo Attorney ................. 3Pro Bono Corner ......................... 4YLC ............................................. 4Bench & Bar ............................... 6Torts & Civil Practice ................... 8Labor & Employment Practice ...10Tax Traps ...................................11Attorney Emeritus Program ...... 11Health .................................. 12-13Matrimonial Law Update ........... 14Immigration Law ........................ 18Worker’s Comp ......................... 19Clarence Darrow ................. 20-21Attorneys in the Public Service . 22CLE ........................................... 23
This is Not “Good-Bye” Barbara [email protected]
It is with bittersweet emotions that I am retiring from this wonderful bar associa-tion, which has grown through leaps and bounds during my tenure here. I have had an amazing career and have made
many friendships along the way. I have had the pleasure of working with great leaders throughout my nearly 30 year career, working side by side with many committee chairs and other asso-ciations: our friends at The Legal Aid Society, The Legal Project, New York State Bar Association and many other organizations.
We are truly blessed to have many fine judges in our area and working with them has certainly been a pleasure. Also, I now re-alize how much dedication and hard work our attorneys pour into our community, i.e., the large amount of time they spend working on mock trials, working on pro bono cases, helping out with our clothing drive, serving on community boards, assisting with our Law Day Run and much, much more!!
This is not “good-bye” because I will be available in the warm weather to assist with events such as the Law Day Run or other events to which I can lend my expertise!
If you are in the Naples, Florida area during the winter months, please let’s get together for lunch!
neW adMissionsThe Albany County Bar Association would like to welcome the fol-lowing new members into the Association: Amanda S. Connors, Esq., Melody A. Mackenzie, PLLC, James R. Harrison, Esq., Amy Joyce, Esq., Lt. Col. Christine L. Lennard, Esq., Peter M. Mauhs, Esq., Alexandra Bresee Morgen, Esq., Lindsay M. Robert, Esq., Eileen Stiglmeier, Esq. Welcome!
PiCtoriAl DireCtoryDon’t forget to stop by our office, 112 State St., Suite 1120, to pick up your Directory. The fee is $20 to pick it up, or add an additional $6 to have it mailed to you. This is a great desktop reference!
Change of sCeneJennifer Bacon Wojeski is now an Associate Attorney at Breakell Law Firm P.C.in Albany, New York. She can be reached at 518-869-5552 or by [email protected].
Please visit our website for the full press release regarding the NYS Commission of Judicial
Nomination’s request for recommendations and applications for the upcoming vacancy on the
NYS Court of Appeals.
LaW day run againstdoMestiC VioLenCeOnce again the ACBA’s Law Day Run Against Domestic Vio-lence was a HUGE success!!! The Crossings of Colonie proved to be a great venue and, with the weather holding out, a great time was had by all.
Our special thanks to everyone who helped make this year’s Law Day Run so successful!
Our Committee Co-Chairs: Douglas R. Kemp and Elizabeth J. Grogan
Our Platinum Sponsor: Verizon Wireless
Our Distinguished Sponsors: Town, Ryan & Partners, P.C.; Buckley, Mendleson, Criscione & Quinn, P.C.; Camelot Print & Copy Center; Albany Chapter of the Association of Legal Admin-istrators.
Our Corporate Sponsors: Cannon Heyman & Weiss, LLP; Capital District Trial Lawyers Association, Inc.; Capital Finan-cial Planning, LLC; Carter Conboy; Greenberg Traurig, LLP; Hacker Murphy LLP; Hodgson Russ LLP; Iseman Cunningham Riester & Hyde LLP; Kahn and Richardson; Alex C. Dell, PLLC; McNamee, Lochner, Titus & Williams, P.C.; Napierski, VanDen-burgh, Napierski & O’Connor, LLP; Nixon Peabody; O’Connell & Aronowitz; Whiteman Osterman & Hanna LLP; Wislon Elser Moskowitz, Edelman & Dicker LLP; Roemer Wallens Gold & Mineaux LLP.
Our Patron Sponsors: Powers & Santola, LLP; Ackerman, Wachs and Finton, P.C.; Hinman Straub P.C.; Legal Aid Society of NENY; Maxwell & Van Ryn, LLP; Maynard, O’Connor, Smith & Catalinotto, LLP; Sneeringer Monahan Provost Redgrave Title Agency, Inc.; Thorn Gershon Tymann and Bonanni, LLP; Young/Sommer LLC.
Our Volunteers: Linda Haskell, Kevin Haskell, Zachary Myers, Kelly Lester, Evelyn Harris, Payton Nash, Lisa Proskin, Hannah Pierce, Lisa R. Harris-Eglin, Jenna Lester, Sardina Ordway, Lis-abeth Jorgensen, Charlene Palito, Robert Free, Karen Ziegler, and all the other great individuals who lent a hand before, during, and after the race!!
Congrats to our overall winners: First Place Overall: David Tromp. First Place Woman’s Finisher: Sarah Popovics. Please follow the link on our website for a complete listing of finishers.
PLEASE SUPPORT THOSE ORGANIZATIONS THAT HAVE SO GENEROUSLY DONATED MERCHANDISE, FOOD OR GIFT CERTIFICATES!
2
David Tromp was the overall first place finisher with a time of 18:17!
CLassifiedAttorney Wanted - Area firm is seeking candidates for an asso-ciate position in the areas of estate planning, elder law, Medicaid and special needs planning. Candidates should be recent grad-uates or newly admitted attorneys. Position will involve litigation of guardianship, estate and Medicaid cases. Send resume and writing sample to [email protected].
Attorney Wanted - Well established Albany law firm is look-ing for a self-motivated, detail oriented and focused individual who desires to grow with a practice. Candidate should have a minimum 1(+) years of experience, strong research, writing, communication and organization skills; deposition and/or trial experience helpful. Attorney will handle all types of civil litiga-tion, including commercial, property and personal injury litiga-tion – plaintiffs and defense. Salary and benefits commensurate with experience. Send resume and writing sample to [email protected].
Office Space Available, near State Capitol, parking included Office space in downtown Albany (17 Elk Street) located only a block from the State Capitol and Albany courthouse is available to rent for $500/month. Ideal for a full or part-time attorney. Rent-al is located in a fully renovated brownstone. The office is fully wired for high-speed internet and phones. Rental includes use of a medium-sized conference room and free off-street parking. The rental includes the use of a small kitchen and eating area, coffee machine and microwave. Conference rooms available for use. Phone lines and a full sized color copier/scanner are avail-able for additional cost. Office to be shared with another tenant who uses the space very infrequently. Contact Dan Coffey or Gary Bowitch at Bowitch & Coffey, LLC. (518) 813-9500.
Office Space to Share – First Class space available in Guil-derland (Great Oaks) to share with boutique law firm. Office is convenient to Crossgates Mall, Stuyvesant Plaza, and highway. Suite consists of conference room, secretarial and waiting ar-eas, work room, storage room, and four executive offices. One large (13 x 14) office is available for rent. Secretarial space and other amenities available. Rent will be commensurate to ser-vices utilized. Please call Tabak & Kiosse, LLP, 518-464-4095.
Downtown Albany - 1 block from courthouse, bright modern of-fice space for rent (1200 sq. ft). Ideal for 3 or 4 offices, reception and storage space. 2nd Floor, with elevator, central HVAC and fully wired for internet/computer access. $1,500 per month gross rent. NO CAM or add ons. Tenant fit up open.
Downtown Albany - Professional modern single office for lease. 2nd fl, elevator, HVAC and fully wired for computer/internet ac-cess. Central reception and conference room available. $375 per month. Please call Patty at 449-5400.
3
Co-Chair, Daniel Coffey, Esq.Bowitch & Coffey, LLC,
sMaLL and soLo Attorneys unite!
After a miserable winter, we hope everyone is finding the time to get outside and enjoy the nice spring weather.
If you have a solo practice or practice in a small (less than 10) attorney firm, please consider joining and becoming active in the Small/Solo Committee. There is no cost to join. We sponsor several social activities a year and have guest speakers and CLE presentations devoted to issues concerning the unique challenges facing the small/ solo attorneys.
On April 24 at 8:00 am, Paul Malecki gave a CLE presentation on “10 Easy Ways to Commit Malpractice in Property Transac-tions.” The presentation was a real eye opener for those of us who only occasionally handle a real estate closing, and gave good food for thought for how to avoid danger in the future. At-tendees received free bagels and coffee and for $20, an hour of CLE credit.
We co-sponsored a NYSBA CLE entitled “Starting a Practice in New York.” The CLE was held May 16, but will be held again No-vember 14, 2014 in NYC. To sign up for the November 14 event or to obtain the CLE materials and access to the webcast, email Kathy Suchocki at NYSBA at [email protected].
By the time you read this, we will have had our spring Happy Hour at Albany City Beer Hall (the former Ogdens) May 29 held jointly with the Young Lawyers Committee. Hopefully, the weath-er cooperated and we were on the outside deck.
On July 7th, our committee is co-sponsoring a Tri-City Valleycats outing with a ticket to the game and a pre-game BBQ. It is a fundraiser for “Out of the Pits” and you can bring your dog to the game if you like. Co-sponsored with the ACBA Young Lawyers and NYSBA Real Property Sections. If interested in attending, more details can be found on our website, or e-mail [email protected].
On July 24th, we are traveling to the Bronx with the Committee on Public Service to see the Yankees play the Texas Rangers (Public Service Day). The sign-up deadline was the end of May, so hopefully you saw the flyer in your May ACBA newsletter or received one of Stacey’s emails and signed up already.
We are scheduling speakers for the remainder of the year. If you or someone you know, can speak on a topic unique to Small/Solos (technology issues, ethics, accounting/IOLA issues, etc.), please let us know.
We’d love to meet even more of you in 2014. If you’d like to add to the conversation, join us on LinkedIn at: http://tinyurl.com/m2w8odv or e-mail Dan or Sarah.
Co-Chair, Sarah Gold, Esq., Gold Law Firm
Mission stateMentThe purpose of the Albany County Bar Association is to promote professional collegiality among the bench and bar; facilitate public service and access to justice for all; and offer programs, benefits and services to enhance the skills of its members.
4
Lianne S. Pinchuk, Esq., Pro Bono Attorney
Pro bono Corner
We field many calls, and sometimes even unannounced drop-ins, from people who simply do not know where else to turn. For example, last month, a landlord named Jerry came in to our office. He spoke very little English but clearly needed our help. Many of you have seen us in City Court and know we usually represent tenants, and not landlords, in disputes. But Jerry was renting an apartment, and he had sublet a room. He liked his sub-tenant and did not want to do anything that would harm her, like evict her. His sub-tenant was in arrears, making it difficult for him to pay the rent he owed to his landlord.
Once we decided that Jerry qualified for, and needed, our help we worked with Albany Law School’s pro bono coordinator to find a law student who could assist us – both with the legal work and with translating the legal information for Jerry. In this way, we were able to provide an environment where Jerry could eas-ily communicate his needs and where we could explain the legal concepts at issue.
We held a mediation-type meeting in our office, and because everyone genuinely liked each other we worked towards a com-mon goal – and were able to achieve it! Jerry only wanted to make sure his tenant was okay and could get back on her feet. The tenant only wanted to make sure Jerry got the amount he deserved. The ACBA tried to offer solutions that met these needs and that were realistically manageable for both Jerry and his tenant.
We succeeded! All parties left here happy, and the law student was able to experience a real negotiation and assist in draft-ing a promissory note in order to resolve the dispute.
We strive to make our clients happy, and when our clients are friends with their adversar-ies, we sometimes manage to make everyone happy – and that makes us happy too. May you be as happy in your prac-tice of law as we are.
Eileen Guinan, Pro Bono Coordinator
Summer CLE is back at the Victory! The YLC invites all Associa-tion members to the Victory Café in Albany on Wednesday, June 18th. Patrick J. Higgins, Esq., is a partner in the Albany law firm of Powers & Santola, LLP. His practice focus is plaintiff’s medi-cal malpractice and complex personal injury matters. He will be the presenting a CLE program entitled “The Ethics and Prac-tice of Referral Fee Arrangements and the New Personal Injury Retainers: Building Your Practice on a Solid Foundation.” The program will begin at 5:00pm and conclude at 6:15pm. It will of-fer 1.5 hours of ethics credits. After the program, attendees are welcome to join in a networking happy hour, with light snacks to be provided.
On Saturday, July 19th, the YLC will be participating in a Habitat for Humanity build day. We have worked with Habitat on sev-eral projects over the years, and are excited to work on the new Sheridan Hollow project in Albany. No experience is required, and there is work to do for all volunteers. We will be limited to 12 volunteers, so please indicate your interest to James Barnes via e-mail at [email protected] at your earliest con-venience. Additional details will be provided closer to the work date.
The YLC encourages anyone with an interest in getting involved with the committee, including possible future events, to contact James Barnes and/or Amanda Kuryluk. Have a wonderful sum-mer, and we hope to see you around town!
young LaWyers CoMMittee
Amanda K. Kuryluk, Esq. Maguire Cardona, P.C.
James R. Barnes, Esq. Co-Chair
Burke, [email protected]
452-1961
The Family Court Help Center cel-ebrated its grand opening on May 6, 2014 with a ribbon cutting cer-emony. Participating were (l to r) Hon. Gerard E., Hon. Fern A. Fish-er, Dean Rosemary Queenan, Hon. Peter G. Crummey, Hon. Karen K. Peters, and Lillian M. Moy, Esq..
VOLUNTEER FOR A BUILD DAYWITH THE YOUNG LAWYERS
COMMITTEE &
JULY 19 Sheridan Hollow, AlbanyMore details to follow.
E-mail [email protected] to sign up!Help build a family a home.
5
6
On May 2, 2014, Honorable Peter G. Crummey, Colonie Town Justice, gave a Courtroom presentation on criminal and civil law to Town of Colonie High School students during the Town’s An-nual Students-in-Government Day program.
On May 19, 2014, Honorable Peter G. Crummey, Colonie Town Justice, presided over a mock jury trial of People of the State of California v. Casey Campbell at the Albany County Courthouse as part of the Shaker Junior High School Eighth Annual Law Day Program. Shaker Junior High Teacher Seth Harris, son of Su-san Harris and the late Judge Joseph Harris, coordinated the program which was also supported by County Court personnel.
On May 21, 2014, Honorable Peter G. Crummey, Colonie Town Justice, presented the 8th Annual Gavel Award to Daniel F. Weaver, a Social Studies teacher at Shaker High School. The Judge’s award is annually presented to the teacher in the Town of Colonie who brings knowledge of the Courtroom to the class-room.
The Albany law firm of Girvin & Ferlazzo, PC, recently made a donation to three Capital Region Salvation Army centers. The firm’s donation of $7,500 was allocated to the Albany, Schenect-ady and Troy Salvation Army Worship and Community Centers.
“We are very blessed by this generous donation from the share-holder attorneys of Girvin & Ferlazzo. Although most of the Ar-my’s funds are raised at holiday time, we look to our partners throughout the year to help us help those in need in our com-munity. The Army’s ability to provide hope and help would not be possible without the support of our Capital Region individual and corporate donors,” said Major Israel Acosta, Capital Region coordinator of The Salvation Army.
“This year, we took a new view of our corporate giving by look-ing back into our local community and chose to distribute the gift evenly among the three Corps—Albany, Schenectady and Troy. Donations to The Salvation Army lend a lifeline to those in the greatest need in our local communities throughout the greater Capital Region,” said James E. Girvin, shareholder attorney.
Hinckley Allen has significantly expanded its capabilities with the appointment of several new attorneys to the firm’s Albany office. The addition of James Barriere, Nathan Sabourin, and Chad Caplan marks the continued growth of Hinckley Allen’s nationally regarded offering in Construction & Public Contracts.In New York, James Barriere has joined the firm as partner in the Construction & Public Contracts practice group and will counsel clients in Hinckley Allen’s Manhattan and Albany offices. Associ-ates Nathan Sabourin and Chad Caplan will also join the Con-struction & Public Contracts practice group in Albany.
“The addition of Jim Barriere, Nathan Sabourin and Chad Caplan will greatly enhance the quality we deliver in our Con-struction & Public Contracts practice,” said Joel Lewin Partner at Hinckley Allen and chair of the firm’s construction practice. “We’re one of the Northeast’s largest and most experienced pro-viders of legal services to the construction industry, and we’re continuing to see growth in this practice group. Bringing Jim, Nathan and Chad on board will enable Hinckley Allen to deliver top-notch counsel in the New York market.
Jim Barriere brings over 20 years of experience in the construc-
benCh & bAr in the newsNews to share? Please e-mail us at [email protected].
tion area. He has represented general contractors, specialty subcontractors, suppliers, public and private owners and sure-ties in a variety of matters. An experienced trial and appellate lawyer, Jim has successfully appeared in numerous arbitration proceedings, jury and non-jury trials and appellate courts in mul-tiple state and federal jurisdictions. He also serves as an Arbi-trator with the American Arbitration Association.
Nathan Sabourin has worked with contractors, subcontractors, owners and developers, and suppliers on a wide array of com-mercial and construction matters, on a wide range of issues. A graduate of Albany Law School, Nathan has worked for the Albany County DA’s office, and received numerous awards, in-cluding the Karen C. McGovern Senior Trials and the Donna Jo Morse Negotiation Competition.
Chad Caplan received his Juris Doctor from Albany Law School, magna cum laude, in 2013 and his undergraduate degree from Cornell University. While in law school, he was a recipient of the Founders Scholarship and Sponsler Fellowship for academic excellence. In 2012 Chad interned with the Honorable Mae D’Agostino of the Northern District of New York.
Powers & Santola, LLP is pleased to announce that Margie A. Soehl has been appointed to a five-year term to serve as a member of the Committee on Character and Fitness of the Ap-pellate Division, Third Department. Ms. Soehl is one of Albany, New York’s few bilingual English-Spanish speaking attorneys. She devotes the majority of her practice to representing per-sons who have been seriously injured as the result of medical malpractice and negligence. Ms. Soehl has been an associate for Powers & Santola, LLP since 2009. A graduate of Espiritu Santo University in Guayaquil, Ecuador and Albany Law School, she is admitted to practice in New York, Ecuador and the United States District Courts for the Northern and Southern District of New York. Ms. Soehl is a Board Member of the Capital District Black and Hispanic Bar Association. She is also a member of the New York State Trial Academy, Albany County Bar Associa-tion, Women’s Bar Association of the State of New York and New York State Bar Association. Additionally, Ms. Soehl cur-rently serves on the Independent Judicial Election Qualification Commission for the Third Judicial District.
7
Labor Law § 200 and § 241 (6)
Card v Cornell University, et at. and Plumley v Cornell Uni-versity, et al., (Garry, J., 517535 [5/8/14])
Plaintiff Card and plaintiff Plumley were both injured when a concrete wall fell and landed on their feet. The accident oc-curred at a construction site for a new building being erected on the campus of Cornell University. Defendant McCarthy Building Companies, Inc., (hereinafter McCarthy) was the construction manager on the project and plaintiff Card and plaintiff Plumley were both employees of LeChase Construction Services, LLC, the subcontractor performing masonry and concrete work for the building project. After LeChase employees built an eight-inch-thick concrete wall, the project manager, McCarthy, informed Le-Chase that the wall did not conform to plans that called for the wall to be 14 inches thick and therefore the wall would have to be torn down and replaced. Plaintiff Plumley was a field manager for LeChase and he put together the plan for demolishing the 8 inch thick wall. Plaintiff Card was one of the LeChase employ-ees assigned to demolish the wall. The plan for demolishing the wall involved severing the horizontal and vertical rebar that se-cured the wall to the adjacent wall and underlying concrete floor and then using a steel choker attached to a forklift to lift the wall away. The LeChase employees first made a hole in the wall for the steel choker and chipped away the concrete from the wall’s base before severing the horizontal rebar. The workers then put pressure on the wall with the forklift, before the steel choker was in place and before the vertical rebar was cut, at which point the vertical rebar unexpectedly popped loose causing the wall to fall and land on the plaintiffs.
Plaintiffs commenced these actions alleging violations of Labor Law §§ 200 and 241 (6), as well as common-law negligence claims, against Cornell and McCarthy. Following defendants’ motions for summary judgment, Supreme Court dismissed the Labor Law § 200 and common-law negligence claims against Cornell, as well as the plaintiffs’ Labor Law § 241 (6) claims based upon 12 NYCRR 23-1.5 (a) and 23-3.4 (c) (3), but other-wise denied defendants’ motions. On appeal by defendants, the Third Department affirmed. As to the common-law negligence and § 200 claims, which required McCarthy to maintain a safe work site, plaintiff contended that the accident occurred due to a dangerous condition resulting from shallow vertical rebar connecting the 8 inch wall to the concrete floor. According to plainitff’s engineering expert, if the vertical rebar had been set at a depth of 10 inches in the concrete floor, rather than the 4 inch depth that was actually used, the wall would not have fallen over. A LeChase employee testified that when he and another LeChase employee began constructing the 8-inch wall at issue, a McCarthy site superintendent stopped their work and directed them to not drill holes for vertical rebar at 12 to 14 inches deep, as they intended to do, but rather to limit the depth of the verti-cal rebar to 4 1/2 inches so the drill did not penetrate the ceiling of the room below. Plaintiff also presented evidence that Mc-Carthy employees regularly instructed LeChase employees on
torts and CiViL PraCtiCe
Laura Jordan, Esq.Powers & Santola
how to perform their work, to stop work, or to change their work practices. The McCarthy superintendent also testified that he instructed LeChase employees to limit the depth of vertical rebar at other work site locations at the project. On the other hand, de-fendant McCarthy presented proof that plaintiff Plumley super-vised and controlled the LeChase employees, made the decision and formed the plan to demolish the wall, and assembled and directed the team of LeChase employees who demolished the wall. McCarthy contended it was the unsafe demolition methods by LeChase that caused the accident. The Court found triable issues of fact as to whether the accident and resulting injuries to plaintiffs were caused by a dangerous condition or the manner of the demolition work. The Court also held there were triable issues of fact regarding McCarthy’s authority to direct and con-trol the work that resulted in the accident and whether McCarthy either created or had notice of a dangerous condition.
As for the Labor Law § 241 (6) claims against both Cornell and McCarthy, the Third Department affirmed Supreme Court›s find-ing that plaintiffs could rely upon 12 NYCRR 23-3.3 (b) (3) and (c) and 12 NYCRR 23-3.4 (b) to support their claims as both regulations were applicable to the facts and circumstances of this case as they require guarding of walls during demolition and were enacted to address structural instability resulting from the progress of demolition, not hazards that resulted directly from the performance of demolition work. The Court noted that while these two regulations apply, issues of fact still exist as to whether violation of the regulations proximately caused plaintiff’s injuries.
Reckless Disregard - Police Officer’s Actions
Hilton v Jones, et al., (Rose, J., 516795 [2/27/14])
While defendant Jones was working as a police officer with the defendant Village of Nassau Police Department, he observed two vehicles (Kia and Jeep) traveling together that did not have rear license plates. Officer Jones followed the two vehicles and turned on his bar lights to pull the two vehicles over, but the ve-hicles accelerated. Officer Jones gave chase and accelerated his vehicle in pursuit of the two offending vehicles for about a half a mile while he tried to radio-in his activity to central dispatch. According to Officer Jones, after looking up from his police ra-dio, he saw the Kia skid sideways into the path of an oncoming car in which plaintiff was a passenger. Plaintiff was injured and initiated this action against Officer Jones and The Village of Nas-sau Police Department claiming defendant Jones acted in reck-less disregard for the safety of others during the pursuit, which was a proximate cause of the accident. Officer Jones testified that he never was closer than 2 cars lengths to the Kia and his maximum speed was 50-60 mph. Plaintiff testified that immedi-ately before the accident, she observed the police car very close to the Kia, almost on the Kia’s bumper, and then suddenly saw the Kia make a 90-degree left turn in front of her vehicle, which caused her vehicle to strike the Kia and the Kia exploded, killing its driver. After defendants’ moved for summary judgment dis-missing the complaint, Supreme Court denied the motion. On defendants’ appeal, the Third Department affirmed. In addition to the testimony of plaintiff cited above, the Court noted plaintiff presented an opinion of an expert engineer, who analyzed the possible causes of the Kia’s 90-degree turn and concluded the Kia could not have made this turn and traveled into the other lane as described unless Officer Jones’s Chevy Tahoe, with a push bar on the front, came into contact with the Kia. Given this evidence, the Court found triable issues of fact exist as to whether Officer Jones acted in reckless disregard in striking the Kia he was pursuing and whether such conduct was a proximate cause of the accident.
8
9 PLEASE JOIN US FOR A RECEPTION TO
CELEBRATE THE RETIREMENT OF
NEW YORK STATE SUPREME COURT JUSTICEJOSEPH C. TERESI
THURSDAY, JUNE 26, 20145:00 P.M.
MARTEL’S RESTAURANTCAPITAL HILLS GOLF COURSE
65 O’NEIL ROADALBANY, NEW YORK 12208
HOT & COLD HOR D’OEUVRESCARVING STATION
BEER, WINE, & SODA
$40.00 PER PERSON (NO GIFT)CASUAL ATTIRE
RSVP BY JUNE 13TH JOSHUA FARRELL ([email protected])
(518) 285-8947
BY SENDING OR DELIVERING A CHECK PAYABLE TO:
“JUDGE TERESI’S RETIREMENT PARTY”C/O JOSHUA FARRELL
ROOM 429ALBANY COUNTY COURTHOUSE
16 EAGLE STREETALBANY, NEW YORK 12207
PLEASE PASS THIS ON TO YOUR FRIENDS & CO-WORKERS
“55ABOAT”55 and better or almost there!
A Boatload of Pro Bono Opportunities
for Seasoned Attorneys!
Please join us for our 55ABOAT information and reception at
New York State Bar Association
1 Elk Street, Albany, New York on June 18th from 4:30-7:30
Sponsored by the Capital Region Pro Bono Committee
We will be sharing information about pro bono opportunities for the
Attorney Emeritus Program in the Capital Region. We are rich in
pro bono opportunities and excited to share them with you. Please grab a
“Seasoned Friend” and come learn more about what your experience and
wisdom will do for someone that needs you.
To register please e-mail Eileen Guinan at
[email protected] or call 518-445-7691
ALL ABOARD WHO’S COMING ABOARD! We look forward to seeing you
Please join us for a reception in celebration of over 40 years of public service honoring
New York State Supreme Court JusticeSTEPHEN A. FERRADINO
upon his retirement from the bench
Tuesday, June 17, 20145:00 pm at
Panza’s Restaurant510 Route 9P, Saratoga Lake
$40.00/person (no gift) casual attire
RSVP by June 5th Checks payable to: Susan Gavin Lant
Saratoga County Commissioner of JurorsSaratoga County Courthouse
30 McMaster StreetBallston Spa, NY 12020([email protected])
Please share this with your friends and co-workers
Labor and eMPLoyMent PraCtiCe
10
In late March, the New York Court of Appeals handed down Ja-cobsen v. New York City Health and Hospital Corp. (2014-34) – a decision that examines an employer’s obligation to engage in the interactive process to assess the reasonableness of an accommodation request under the New York Human Rights Law and New York City Human Rights Law.
Plaintiff William Jacobsen (“Jacobsen”) worked for defendant New York City Health and Hospitals Corporation (“HHC”) as an assistant health facilities planner. In this role, roughly twice a week, plaintiff had to visit construction sites within the Manhat-tan area hospital network to which he was assigned.
Suffering from various lung conditions/diseases which present-ed during his employment, Jacobsen requested reassignment to a position in HHC’s central office, and requested certain re-spiratory equipment for use when visiting construction sites. HHC denied the transfer request, claiming that the transfer was not a reasonable accommodation in light of the fact that Jacob-sen’s position required him to visit construction sites. Instead, HHC placed Jacobsen on involuntary medical leave for a six (6) month period. At the end of the medical leave, HHC terminated Jacobsen’s employment.
Plaintiff thereafter commenced an action in which he alleged that HHC had unlawfully discriminated against him on the basis of disability, in violation of the State Human Rights Law (State HRL) and City Human Rights Law (City HRL). Plaintiff alleged that HHC could have reassigned him to the central office and “provided him with the protective and respiratory equipment necessary to protect him from further respiratory damage if and when it may have been necessary for him to visit a construction site.” HHC answered, and moved for summary judgment to dis-miss the complaint. HHC contended that it had terminated plain-tiff as a result of his inability to continue to conduct field visits, which was an essential function of his position as a health facili-ties planner. Plaintiff opposed HHC’s motion and asserted that, had HHC granted him a reasonable accommodation when he first requested one, he would have been able to perform occa-sional field visits with proper respiratory equipment and, there-fore, to perform the essential functions of his job.
Supreme Court granted HHC’s motion for summary judgment and dismissed the complaint. In the court’s view, no reasonable accommodation was available for plaintiff because his own med-ical evidence led “to the inevitable conclusion that the [p]laintiff c[ould] [not], for medical reasons, spend any time at a construc-tion site, and therefor[e], c[ould] never return to his old duties,” and thus, “[b]y the [p]laintiff’s own evidence, he ha[d] not been discriminated against.” Moreover, the court found that plaintiff made no allegation that “specific equipment could overcome the doctor’s warning and prescription” to stay away from construc-tion sites. Plaintiff appealed.
Glen P. Doherty, Esq.McNamee, Lochner, Titus & Williams, [email protected]
The Appellate Division, with one justice dissenting in part, af-firmed Supreme Court’s order. The Appellate Division ruled that Supreme Court had properly dismissed the complaint, stating, “HHC established that plaintiff could not, even with a reason-able accommodation, perform the essential functions of his job.” The court determined that, because HHC had inquired of plain-tiff’s physician regarding plaintiff’s ability to work and had kept plaintiff’s job open during his medical leaves of absence, HHC had engaged in a “good faith interactive process” when it deter-mined that a reasonable accommodation for plaintiff’s disability was not available.
Plaintiff then appealed to the Court of Appeals by permission of the Appellate Division, which certified the following question: “Was the order of this Court, which affirmed the order of the Supreme Court, properly made?”
In reinstating plaintiff’s State HRL and City claims, the Court held that the grant of summary judgment to HHC was errone-ous, because there were factual questions as to whether HHC considered, in good faith, plaintiff’s request for accommodation. Under both statutes “an employee’s request for an accommo-dation is relevant to the determination of whether a reasonable accommodation can be made.” According to the Court, once a request for an accommodation is made, the employer must “consider whether the burden thus imposed upon the employ-er’s business would be reasonable. In this way, the employer’s response to the employee’s request and any ensuing dialogue about the impact of the proposed accommodation on the em-ployer’s business informed the determination of whether a rea-sonable accommodation exists.”
Here, according to the Court, HHC failed to show a lack of any material issue of fact regarding its participation in a good faith interactive process. More specifically, when plaintiff asked for a respirator shortly after his return to work, HHC denied that request without considering it, and instead merely provided plaintiff with a dust mask. Around that time, plaintiff and his union counsel repeatedly requested that HHC reassign him to the central office, and HHC belatedly responded by placing plaintiff on involuntary medical leave, at which point HHC did not specifically address the viability of the requested transfer to the central office, but rather made the conclusory assertion that plaintiff could not work safely in any position at the corporation. Thus, far from showing that, as a matter of law, HHC had par-ticipated in a good faith interactive process which revealed that plaintiff’s proposed accommodations were unreasonable, the record demonstrated that, given HHC’s limited interactions with plaintiff, a material issue of fact existed as to whether plaintiff’s proposed accommodations or any other potential accommoda-tion was reasonable.
COMING THIS FALL…Labor and Employment
Practice CLEDetails to follow!
11tAx trAPs
Did you notify the NYS Tax Department?
Seller (a corporation) owns and operates a restaurant business. Its transactions are subject to a New York sales tax. Seller has been engaged in this business for many years and enjoys a great reputation in the community. Buyer (a limited liability com-pany) wants to purchase Seller’s business.
To insulate itself from Seller’s liabilities, Buyer will purchase Sell-er’s assets (not its stock), without assuming any of its liabilities. After completing its due diligence review, Buyer agreed to buy Seller’s assets (including its name and goodwill) for a lump sum purchase price. As part of their contract, Seller agreed to indem-nify Buyer against all liabilities, known and unknown. In light of the nature of this transaction and its indemnification, Seller did not disclose it is currently being audited by the NYS sales de-partment. Seller is anxious to close and is pushing Buyer for an early closing date.
Here’s the tax trap:
Whenever a person required to collect a sales tax sells - in bulk - any part or all of its “business assets” (other than in the ordinary course of business), the purchaser must notify the New York State tax commission of the proposed sale. Tax Law § 1141(c). Business assets include tangible personal property, real prop-erty and intangible assets. It doesn’t matter if the sale of these assets is subject to a sales tax. Nor does it matter whether: (1) Seller informed or represented to Buyer that it owes sales taxes; (2) Buyer has knowledge that Seller owes sales taxes; or (3) even that any sales taxes are owed by Seller. What matters is whether there is a bulk sale.
Buyer must notify the Tax Department of the bulk sale at least ten days before the earliest of Buyer’s payment or possession of Seller’s business assets. Its notice (on Form AU-196.10) must also include (among other information) the price, terms and con-ditions of the sale.
If Buyer fails to give this required notice, it will be personally liable for Seller’s unpaid sales taxes, limited in amount to the higher of: (1) purchase price of the assets sold, or (2) their fair market value (thus involving substantial valuation issues, partic-ularly those relating to the value of Seller’s name and goodwill).
If there is a sales tax liability, the State has no duty to obtain the unpaid sales tax first from Seller before seeking to obtain the tax from Buyer. In the Matter of Luneberg, TSB-H-87(179)S, 1987 Tax N.Y. Tax LEXIS 357 (1987); In the Matter of Mossa Trading Corp., 2010 N.Y. Tax LEXIS 82 (N.Y. Tax 2010).
So, no matter how hard Seller may press for that early closing, why chance subjecting Buyer to Seller’s sales tax liability under Tax Law § 1141(c) – notify the Tax Department. A failure to do so can be devastating. Relying on Seller’s indemnification alone may offer little protection.
attorney eMeritus PrograM
The Emeritus Program is a state-wide initiative of Chief Judge Jonathan Lippman to help address New York State’s “justice gap.” In 2012, approximately 2.2 million New Yorkers navigated civil court proceedings without the benefits of counsel. As the number of senior New York attorneys grows, we hope to tap their skills and experience to assist in closing this justice gap. The New York State Unified Court System’s Access to Justice Program operates the AEP, and Fordham Law School’s Feerick Center for Social Justice provides programmatic and administra-tive support to the program.
The Attorney Emeritus Program connects experienced attorneys to volunteer opportunities with legal service organizations and court-sponsored programs that address poverty-related issues. Attorneys Emeritus commit to serving 60 hours over the course of two years, and are provided with malpractice insurance by the host organization they serve through. Participating attorneys must be 55 or older, in good standing, and have practiced for at least ten years. Attorneys do not need to be retired to participate.
Apart from individual volunteers, law firms can play an important role in the Attorney Emeritus Program. Participating firms make appropriate work space available for their attorneys to provide pro bono legal service, whether the attorney is active or retired. Firms also provide secretarial and technological support as ap-propriate. We hope that participating law firms can foster an ethos of service among their members and provide support for ongoing pro bono by senior attorneys.
The Albany County Bar Association is very pleased to commit to becoming a “Capitol Region Hub” for this very important pro-gram offering our 55 and better members a special venue to do their pro bono through and receive free CLE’s for their work.
With the expansion of the Family Court Help Desk into the Alba-ny County Family Court Help Center, now in formal collaboration with the Albany Law School and Legal Aid of Northeastern New York, this program will have ample opportunities for attorneys to do pro bono services from 8:30-4:30, 5 days a week with the flexibility to arrange their own schedules. And for those that want to work other hours we have plenty of requests from deserving people who qualify for our pro bono program.
The Albany County Bar Association will be the Capitol Region Hub and a host organization ([email protected]). Other hosts organizations include, The Legal Aid Soci-ety of Northeastern New York ([email protected] or [email protected]), Prisoners Legal Services ([email protected]), and The Legal Project. ([email protected]). Feel free to contact [email protected] about the Attorney Emeritus Program.
Richard V. D’Alessandro, Esq.Professional Corporation
“55ABOAT”55 and better or almost there!
1 Elk Street, Albany, New York on June 18th from 4:30-7:30
12heAlth
David Nardolillo, Esq. O’Connell & Aronowitz, P.C.
Home health care is an important piece of the public health insurance spectrum of care, particularly in its use to satisfy the long term care needs for elderly and the chronically ill. Beneficiaries prefer home health care and policymakers believe that
increased use of home health care services can lower the cost burdens of long-term health care. However, the large size of the home health care market has created challenges for regulators. Recent enforcement actions on both the federal and state level highlight the need for home health agencies and providers to be vigilant and ensure their business comply with all applicable laws and regulations.
Patients eligible for either Medicare or Medicaid may, under certain circumstances, receive skilled nursing care or other ser-vices in their own home instead of having to be admitted into a nursing home or hospital. Home health services for Medicare beneficiaries1 are relatively limited and the patient must meet certain qualifications, such as having a prior hospital stay and having a condition that keeps the beneficiary confined to his home. Once those qualifications are met, the beneficiary can re-ceive both skilled care services—such as part-time skilled nurs-ing care and physical, occupational, and speech therapy—and other services, such as medical social work and home health aide services2. Medicaid beneficiaries tend to have additional options for home care. For example, Medicaid beneficiaries in New York also enjoy coverage for skilled care, often without the homebound requirement. Medicaid also has coverage for a wid-er spectrum of care needs, such as non-skilled personal care services (housekeeping, meal preparation, bathing, toileting, and grooming) on a stand-alone basis.3 Medicaid may offer dif-ferent delivery programs, such as New York’s Consumer-Direct-ed Personal Assistance Program4, which allows the beneficiary, or his legal representative, the freedom to select his caregiver and to be responsible for the hiring, training and supervising, the employment of persons providing the services. Since 2012, the Medicaid program for eligible participants accessing long term home care service in the community (personal care, Con-sumer Directed, home health) has been Managed Long Term Care (“MLTC”). The State received approval from the Centers for Medicaid and Medicare Services (“CMS”) to require Medicaid participants to join a managed care plan in order to receiving these home care services. This policy change was included in the Medicaid Redesign efforts undertaken by Governor Cuomo’s administration in 2011.
Beneficiaries and their families widely choose to utilize home care as an alternative to institutional settings, such as nursing homes and hospitals. The Congressional Budget Office report-ed that roughly 80 percent of elderly people receiving long term care live in the community, with the vast majority living in private homes.5 Receiving skilled care in the comfort and privacy of the patient’s home can have its own benefits. Policymakers also support the use of home care, clearly enticed by potential sav-ings to public health programs that can result from steering ben-eficiaries out of institutional settings, such as nursing homes and hospitals, and into home care where appropriate. For example, New York’s Medicaid director has regularly suggested the poten-
tial savings of home health care as a potential long term care alternative to nursing homes.6
Although beneficiaries and policymakers are on the same page regarding the benefits of home health care, the size of the home health market also poses challenges for regulators. The large number of elderly already utilizing home health care, coupled with any additional shifts of beneficiaries away from institutional-ized settings, creates opportunities for fraud and abuse. Provid-ers must therefore exhibit diligence in their compliance with all home health care laws and regulations.
Regulators have had to work hard to maintain the necessary vigilance over the sector in order to maintain the benefits of home health care. For example, despite decades of oversight and reporting on home health care issues,7 the Office of the Inspector General (“OIG”) within the Department of Health and Human Services recently submitted testimony that the steps CMS has taken “have not fully addressed the problem” with improper Medicare payments to home health agencies.8 For example, OIG contended that one third of home health servic-es Medicare claims in 2011–2012 did not meet documentation requirements demonstrating face-to-face encounters between aides and home health clients; these encounters totaled $2 bil-lion in Medicare payments.9 State regulators are also paying close attention. For example, the New York State Office of the Medicaid Inspector General (“OMIG”) has devoted a full section of its fiscal year 2014–15 Work Plan to home health care.10
The regulatory focus on home health care has been demonstrat-ed by the steady number of criminal indictments and convictions of various home health operators and staff. For example, fed-eral authorities have recently announced: (1) charges against ten individuals in Florida for a kickback scheme which alleg-edly generated improper referrals for $12.5 million in Medicare home health services11; (2) an 86-month prison sentence and $1.6 million in restitution for a Detroit, Michigan patient recruiter in a $14.5 million Medicare scheme involving fraudulent home health companies12; (3) convictions of a Dallas physician and a home health agency director for Medicare scheme in which the physician accepted cash payments in exchange for falsely certi-fying that beneficiaries were eligible for home health services13; (4) a guilty plea for selling fraudulent home health aide licensing certificates14; and (5) a $150 million settlement to resolve claims under the Federal False Claims Act that a Louisiana-based na-tional home health care agency had fraudulently billed Medicare for home health therapy services that were not medically neces-sary and engaged in improper relationships with referring physi-cians under the anti-kickback statute.15
State regulators have also been active in enforcing Medicaid home health care regulations and policing fraud and abuse. In New York, for example, the Attorney General’s Medicaid Fraud Control Unit recently announced a $2.5 million settlement of charges that a Rochester home health agency had billed Medic-aid for services performed by uncertified home health aides and had generally inflated their billing.16
Of course, this list does not include post–payment audits con-ducted by CMS and state regulatory authorities, which check providers’ compliance with various billing, documentation, certi-fication, and procedural regulations. There is also special regu-latory focus here; the New York OMIG released its own 33-point home health care audit protocol last year.17
What this all means for home health care providers is that they must be vigilant in monitoring their own compliance with laws, regulations, and payment guidelines. Regular reviews of poli-
13cies and procedures must occur. Furthermore, the importance of properly structured compliance plans, required under the Med-icaid program, and voluntary disclosures in the event improper billings are discovered—topics to be covered in future columns—cannot be overstated. Ultimately, the size of the home health beneficiary pool simply requires regulators to be actively moni-toring the market in order to ensure the integrity of the program and to preserve the benefits of home health care that beneficia-ries, providers, and policymakers all enjoy and support.
(Endnotes)
1 See Social Security Act, §§ 1835(a)(2)(A) and 1861(m)2 Medicare will only cover home health aide services if related to the injury or condition for which the beneficiary is receiving skilled care.3 See NY Social Services Law §§365-a(2)(e), 367-k, 367-p, 365-f(2)(e); 367-g.4 See NY Social Services Law §§367-p, 365-f5 “Rising Demand for Long-Term Services and Supports for Elderly People,” Congressional Budget Office, June 26, 2013, pp. 1-2. Available at: http:// www.cbo.gov/publication/44363.6 See, e.g. Berger, Joseph, “A Shift From Nursing Homes to Managed Care at Home,” New York Times, February 23, 2012. Available at: http://www. nytimes.com/2012/02/24/nyregion/managed-care-keeps-the-frail-out-of- nursing-homes.html?pagewanted=all&_r=0.7 See http://oig.hhs.gov/reports-and-publications/oei/h.asp#home_health8 “Medicare Mismanagement: Oversight of the Federal Government Efforts to Recapture Misspent Funds,” Testimony of Brian P Ritchie, Acting Deputy Inspector General for Evaluation and Inspections, Office of Inspector General, US Department Of Health and Human Services in front of the House Committee on Oversight and Government Reform Subcommittee on Energy Policy, Healthcare and Entitlements, May 20, 20149 Limited Compliance with Medicare’s Home Health Face to Face Documentation Requirements, OEI-01-12- 00390, April 2014, available on line at http://oig.hhs.gov/oei/reports/oei-01-12-00390.asp. 10 New York State Office of the Medicaid Inspector General, Fiscal Year 2014–15 Work Plan, p.3. Available at http://omig.ny.gov/images/stories/ work_plan/2014-15_work_plan.pdf.11 “Ten Individuals Indicted for Medicare Fraud Scheme,” Press Release, United States Attorney’s, Office Southern District of Florida, April 8, 2014. Available at http://www.justice.gov/usao/fls/PressReleases/140408-01. html.12 “Patient Recruiter Sentenced in Detroit for Role in $14.5 Million Medicare Fraud Scheme,” US Department of Justice, May 14, 2014. Available at: http://www.justice.gov/opa/pr/2014/May/14-crm-513.html13 “Dallas-Based Physician and Home Health Agency Director of Nursing Convicted in $3 Million Medicare Fraud Conspiracy.” Press Release, US Department of Justice, May 13, 2014. Available at: http://www.justice.gov/ opa/pr/2014/May/14-crm-504.html.14 “District Woman Pleads Guilty to Health Care Fraud, Sold Counterfeit Documents to Would-Be Home Health Care Aides,” Press Release, Federal Bureau of investigation, Washington Field Office, May 8, 2014. Available at: http://www.fbi.gov/washingtondc/press-releases/2014/district- woman-pleads-guilty-to-health-care-fraud-sold-counterfeit-documents-to- would-be-home-health-care-aides.15 “Amedisys Home Health Companies Agree to Pay $150 Million to Resolve False Claims Act Allegations,” Press Release, US Department of Justice, April 23, 2014. Available at: http://www.justice.gov/opa/pr/2014/April/ 14-civ-422.html.16 “A.G. Schneiderman Announces $2.5 M Settlement With Rochester Home Health Agency For Defrauding Medicaid.” Press Release, New York Office of the Atty. Gen., January 9, 2014. Available at: http://www.ag.ny. gov/press-release/ag-schneiderman-announces-25-m-settlement-roches ter-home-health-agency-defrauding.17 http://www.omig.ny.gov/images/stories/audit_protocols/lthhcp_proto col_9_27_13.pdf
CBA President Peter G. Crummey, presented the
Honorable W. Dennis Duggan with a plaque of recognition
for his 20 years on the bench at the Albany County Family
Court. We at the ACBA thank Judge Duggan for his
service and wish him an enjoyable retirement.
NOTICE-Past Due MembersIf you haven’t paid your 2014 dues as of
yet, this will be the final newsletter you will receive this year. Don’t miss out on this
terrific member benefit, renew today! Call 518-445-7691 to remain an active member
of your Albany County Bar Association. RENEW TODAY
The Honorable W. Dennis Duggan Retires
What topics would you like YOUR ACBA Newsletter to cover? Send us your ideas [email protected].
14MatriMoniaL LaW uPdate
Bruce J. Wagner, McNamee, Lochner, Titus & Williams, P.C.
Child Support Arrears, Exclusive Occupancy, Marital DebtIn McCoy v. McCoy, 2014 Westlaw 1910486 (2d Dept. May 14, 2014), Supreme Court filed a report on remittitur. [107 AD3d 857 (2d Dept. June 19, 2013)]. The Second Department modified Supreme Court’s May 2011 judgment on the law, on the facts, and in the exercise of discretion, by, among other things: (1) deleting the provision directing the immediate sale of the for-mer marital residence or permitting the wife to “buy out” the husband’s interest, and, instead, awarded exclusive occupancy to the wife, until the parties’ younger child is 18 years old or is emancipated, and directed her to pay the carrying costs thereof; (2) deleting the provision holding the wife solely responsible for the balance over $34,000 of a home equity line of credit, and, instead, directed the parties to be equally responsible for the entire balance; and (3) remitting to Supreme Court for a deter-mination of child support arrears retroactive to the commence-ment of the action. The parties were married in 2002 and have two children. The Appellate Division held that Supreme Court did not err in failing to grant the wife a judgment for temporary child support arrears, based upon her failure to proceed “upon such notice to the spouse *** as the court may direct.” Domestic Rela-tions Law §244. The Second Department directed the issue be addressed upon another remittitur. [Presumably, the remittitur is the device providing the husband with the requisite notice]. As to exclusive occupancy [Domestic Relations Law §236(B)(5)(f)], the Appellate Division found: “Here, in light of factors including the educational and other needs of the parties’ two children and the parties’ financial circumstances, the Supreme Court improvi-dently exercised its discretion in directing that the former marital residence be listed for immediate sale, or that the plaintiff could ‘buy out’ the defendant’s interest. Rather, the court should have awarded the plaintiff exclusive possession of the former mari-tal residence until the parties’ younger child attains the age of 18 or is otherwise emancipated.” However, as above stated, the Court directed that the wife “must pay the carrying charges for the home.” Regarding marital debt, the Second Department held that Supreme Court “improvidently exercised its discretion” in di-recting the wife to be solely responsible for the said home equity line of credit (HELOC), over and above $34,000, and stated, for the second time in recent months: “expenses incurred prior to the commencement of a divorce action constitute marital debt and should be equally shared by the parties.” [See May 2014 ACBA Matrimonial Update, Diaz v. Gonzalez, 115 AD3d 904 (2d Dept. Mar. 26, 2014)]. The Court found that the husband “failed to show that the entire HELOC debt should not be considered marital property.” [Perhaps they meant to say marital “debt”].
Liens for Counsel FeesIn Roe v. Roe, 2014 Westlaw 1807237 (3d Dept. May 8, 2014), the former client appealed from a November 2012 Supreme Court order, which partially granted the attorney’s motion to im-
pose a charging lien for counsel fees. The client retained the attorney in April 2012 to represent her in a contested matrimo-nial action, and substituted new counsel in September 2012. The attorney moved for a charging lien upon any proceeds of the matrimonial action, as well as a retaining lien on the client’s file. In opposition, the client submitted only the affidavit of her newly retained counsel, who suggested that the attorney had been discharged for cause and asserted that fee arbitration [22 NYCRR Part 137] was the only remedy. [The fee arbitration pro-gram found the case to be outside its jurisdiction, for reasons not stated in the Appellate Division order]. Supreme Court imposed a charging lien in favor of the former attorney, and ordered that “simultaneously with the surrender of the case file,” the client tender the full amount of the fees sought ($10,884.14). On ap-peal, the Third Department affirmed, rejecting the client’s con-tention that Supreme Court erred in failing to conduct a hearing on the issue of discharge for cause. The Appellate Division not-ed: “Although the determination that an attorney was discharged for cause may be based upon either negligence or misconduct, more than a generalized dissatisfaction with counsel’s services is required (citation omitted). *** [T]he client must make ‘a prima facie showing of any cause for [the] discharge’ in order to trigger a hearing on this issue (citations omitted).” The Third Department found that a hearing was not required, where, as here, the client “tendered only the affidavit of her current attorney, who, in turn, simply suggested — without elaboration — that there may have been grounds to discharge the firm for cause.” The Appellate Di-vision explained further: “an attorney who has been discharged without cause may pursue the following cumulative remedies: (1) a charging lien [Judiciary Law §475], (2) a retaining lien, and/or (3) a plenary action in quantum meruit (citations omitted).” The Third Department upheld “Supreme Court›s finding that the firm was entitled to an award of $10,884.14 based upon an account stated,” because there was nothing in the record that suggests that “plaintiff ever questioned or otherwise objected to any of the invoices at issue — even after the firm brought the underlying application seeking a charging lien — and her retention of those invoices, coupled with her corresponding silence, was sufficient to establish an account stated.” The Court concluded: “To the extent that Supreme Court›s order may be read as imposing a de facto retaining lien, such a lien would have been proper as the underlying matrimonial action — although now resolved — remained pending at that time.”
Briefly noted: On May 2, 2014 [2014 Westlaw 1767094], the Fourth Department denied the wife’s motion for reargument or leave to appeal to the Court of Appeals in Foti v. Foti, 114 AD3d 1207 (Feb. 7, 2014). [See March 2014 ACBA Matrimonial Up-date].
DON’T MISS THIS CLE!Cynthia Tippins, Esq.
of Harris, Conway & Donovan, PLLC presents a
Matrimonial Update CLE on June 20 at Jack’s Oyster House
from 12:00 – 2:00 PM. Register at the door, or online,
or call the office, 445-7691. Members are $75.00 including a
delicious buffet lunch. 2 CLE hours of skills.
15
16
Michael P. Friedman, Esq.Friedman & Molinsek, P.C.
the Kings of sanCtiMony
“Any time you have an agency that acts as both prosecutor and adjudicator, it’s problematic.” Hon. David Demerest, St. Law-rence County Supreme Court Justice
“6 years of flat budgeting have taken a toll on my small agency.” Statement of Robert J. Tembeckjian, Administrator and Counsel State Commission on Judicial Conduct to the Joint Legislative Budget Committee Hearing on the 2014-2015 Executive Budget
Your agency? I can forgive the use of the majestic plural in de-scribing a public agency, but small? I guess it depends on what you mean by small. This year, the budget is $5,564,000, an in-crease of 2% from last year. Not bad for an agency in decline. In his plea to the Legislator this year Mr. Tembeckjian said, “After six years of creative belt-tightening on an already small budget, I am out of options.” That belt-tightening included a 6% salary increase for Administrator Tembeckjian to $159,006 and prob-ably use of one of the Commission’s seven cars. And just why does the Commission on Judicial Conduct need cars? Beats me. While regaling the Legislators on the vast increase of work and services for the Commission, the following statistics were left out. In 2008, the Commission investigated 262 complaints against judges. In 2013, the number was 177, the second low-est number in a decade. There has been a steady decline in new complaints every year from 2010. 2013 represented a 12% decline from 2010. How does Mr. T. describe this to the Legisla-ture? “During those [the last] six years, our mandated costs and work load continue to rise.” Really? Is it really mandated to staff three different offices (Albany, Rochester, New York City) with 46 full time employees? Do you really need four other administra-tors at a minimum salary of $149,000 each? Maybe. So let’s see what we get for your small agency’s work.
This past year the Commission undertook a study and issued a public report on the “ethical and public policy implications of license plates that identify the owner of a motor vehicle as a judge.” Now that certainly addressed one of the burning issues of my life. How about you? I’ve taken a gander at Article V, Section 22 of the New York State Constitution which creates the Commission on Judicial Conduct, and I certainly don’t see any power to conduct studies and issue public reports about judicial license plates or anything else, but what the hay. You have to keep those administrators and secretaries busy in a world of di-minished complaints. Besides, how are we going to justify the five and a half mil “we” so desperately need. The answer to the burning question is, “Displaying a judicial license plate on a personal vehicle does not per se create an appearance of im-propriety.” Duh. For this they created a 65 page full color report and spent God knows how many hours of time.1 The report says that, “It is intended to generate a serious discussion of the public policy implications of affixing license plates on privately-owned vehicles that identify those vehicles as registered to a judge.” So, how’s that working out? From the month after the report un-til today there has been nary a mention of the propriety of judicial license plates by anyone. From the 2,200 judicial license plates
issued by DMV, not one was subject to a “license plate” issue in 2013. In fact, it has been a Commission issue only once in the past few decades, so why not have a “serious discussion” of the issue?
If you think that is strange, “Administrator and Counsel” Tem-beckjian took the opportunity in the Annual Report to make “Ob-servations and Recommendations” of what he calls “topics of special note or interest” for “public education purposes.” You know that’s not going to be good. This year he addresses “al-cohol related conduct and driving offenses” among judges. He writes that, “These problems are of such gravity and arise with sufficient regularity to warrant discussion in this Annual Report.” No, Mr. T., they do not, but here we go. According to the Na-tional Institute of Health, 15% of the people living in the United States are considered “problem drinkers.”2 The National Insti-tute on Alcohol Abuse and Alcoholism reports that 17 million Americans have Alcohol Use Disorders (AUD).3 So, just how rampant is this “grave concern” of Mr. Tembeckjian among New York’s 3,500 judges? Since 1981, in drinking driving issues, this was mentioned 13 times in disciplinary decisions, a rate of about once every two and a half years. In 32 years it has been mentioned four times in decisions of issues of the use of alcohol while on the bench. In 2013 there was one single case, a Village Justice was so drunk while driving that he said he was going to attack the arresting officers so they would shoot him.4 His pun-ishment from the Commission on Judicial Conduct? Censure. Now, I am not an expert on statistics, but it seems to me that one incident among 3,500 judges in a year hardly constitutes a “grave concern.” In fact, given the scrutiny of the Commission on Judicial Conduct, I consider New York’s Judiciary the model of alcohol restraint. They are to be commended, not admon-ished.
Do you see what is going on here? These guys have less and less to do each year, so they pump up their wants and needs to justify spending millions on false issues and studies that are beyond their constitutional mandate but allows them to plead for more and more money from the taxpayers. And when they finally get down to doing something at their three offices, they get it all wrong.
In 2013 they forced a City Court judge to resign for, among other reasons, he told an off color joke about another judge at a Police Benevolent Association dinner.5 According to them, he “failed to perform the duties of judicial office impartially and diligently, in that he failed to be patient, dignified and courteous to those with whom he deals in his official capacity.” In 2013 they censured a Town Justice for telling the Town Board that they “shoved it up my a**” by refusing to give him a pay raise and saying that he took care of the parking ticket of a daughter of a Board Member, albeit fairly.6 Don’t these guys have anything better to do with that $5.5 million? Apparently not. In March of 2013 they rendered an advisory opinion that a judge couldn’t even sign a petition advocating a legislative change, even without identifying oneself as a judge!7 I guess the First Amendment doesn’t apply to sitting judges in New York State.
So, it came as no surprise that this year the Kings of Sanctimony decided to admonish a Town Justice for signing his name as a witness to someone’s signature. Think I am joking? Here it is: “Wit: Hon. Donald G. Lustyik.” That’s all. Publicly admonished.8 Why? According to the Commission this allowed his “judicial status to be used to advance private interests as a favor to an acquaintance in a matter where, as he should have recognized, the potential for serious impropriety and significant legal conse-quences was considerable.” Really? That was just one of two determinations of the Commission in the first third of the year, a
17cost to us of about $687,000 per decision. Sounds like a good return on investment to me.
I am asked from time to time if I would like to be a judge some-day. If having these guys spend taxpayer money to question my license plate, my off color jokes, my signature as a witness, my consumption of fermented Burgundian grapes or any other aspect of my life, no thank you. I wonder what they would do to a judge who signs a petition to ask the Commission to disband, get a life and stop wasting our money. Public flogging, most likely.
Say good night, Gracie.
(Endnotes)1 You can see whole thing here if you want: http://www.cjc. ny.gov/Publications/nyscjc.JudLicPlateRep.2013-05-07.pdf
2 http://www.cdc.gov/nchs/data/series/sr_10/sr10_260.pdf
3 http://pubs.niaaa.nih.gov/publications/AlcoholFacts&Stats/ AlcoholFacts&Stats.htm
4 Matter of Newman, http://www.scjc.state.ny.us/ Determinations/N/Newman.Thomas.J.2013.12.18.DET.pdf
5 Matter of Ramich, http://www.scjc.state.ny.us/ Determinations/R/Ramich.STIP.pdf
6 Matter of Torregiano, http://www.cjc.ny.gov/ Determinations/T/Torregiano.Michael.A.2013.08.26.DET.pdf
7 Opinion 13-17, http://www.nycourts.gov/ip/judicialethics/ opinions/13-17.htm
8 Matter of Lustyik, http://www.scjc.state.ny.us/ Determinations/L/Lustyik.Donald.G.2014.03.25.DET.pdf
diVersity internshiP PrograM CeLebrates CoMPLetion of a 14th yeArOn April 23, 2014, the Diversity Internship Program of the Alba-ny County Bar Association celebrated the completion of its 14th year. The program began in the Fall of 2000, providing intern-ships to minority law students from Albany Law School in private firms in Albany. Since its inception, the program has provided internship opportunities to over 300 law students and has fos-tered an awareness of the opportunities in private practice for students of color.
Attending the celebration was Hon. Karen Peters, Presiding Justice of the Third Department, together with Hon. Leslie Stein and Hon. Elizabeth Garry, also of the Appellate Division, Third Department, as well as two of the program’s originators- Hon. Randolph Treece, U.S. District Court and Jim Kelly. The third member of that group, Hon. Judith Kaye, has appeared at many of the past receptions honoring the program.
The program received an award from the New York State Bar Association in 2002 and from the American Bar Association in 2003. It continues offering firms an opportunity to provide intern-ships to law students of color every Fall and Spring. This year, the firms that participated in the program, included:Bond, Schoeneck & King, PLLC
Carter Conboy Case Blackmore Maloney & Laird
Hodgson Russ, LLP
McNamee Lochner Titus & Williams, P.C.
Nixon Peabody, LLP
Whiteman Osterman & Hanna LLP
Wilson Elser Moskowitz Edelman & Dicker, LLP
For more information, contact Stacey Whiteley at (518) 445-7691 or Jim Kelly at (518) 464-1300, ext. 312.
DIVERSITY INTERNSHIP PROGRAM WILL BEGIN ITS 15TH YEAR
We are currently seeking firms interested in participating in this celebrated and successful program.
The Diversity Internship Program’s goals are to increase the rep-resentation of lawyers and students of color in law firms and corporate legal departments in the Capital District, and to pro-vide students of color with a private practice experience. The ultimate goal is to bring these two diverse communities together, create a network, forge relationships, with the long-term view and hope that the Students will be hired as Associates, thereby foster greater diversity in the private bar in the Capital District. Through this program the Intern will be provided a meaningful work experience, appropriately supervised, with assignments equivalent to a junior associate’s actual work situation.
If your firm would like to consider providing an internship opportunity for minority law students, please contact Sta-cey Whiteley at the Albany County Bar Association or Jim Kelly at 464-1300, Ext. 312.
18iMMigration LaW uPdate
EB-5 IN THE CAPITAL REGION OK, now for something completely new and pretty exciting (at least in my world). U.S. Citizenship and Immigration Services (“USCIS”) recently approved an application for an EB-5 Region-al Center in the Capital Region which was facilitated by the Cen-ter for Economic Growth (“CEG”) and Prime Regional Center, LLC, an affiliate of Prime Companies. The Regional Center will be in an area of Upstate New York that includes eight counties surrounding and including the Capital Region, as well as specific counties in the Southern Tier, Mohawk Valley and Central New York.
So, what’s a Regional Center? Good question! Employment-based immigration is organized in a “preference” system, and one of the preferences is commonly called “EB-5”. The EB-5 employment preference is for immigrant investors (i.e., for em-ployment-creation). In general, this category provides, initially, conditional permanent residence for foreign nationals who in-vest $1,000,000.00 in a new commercial enterprise that employs at least ten (10) full-time U.S. workers. The foreign national is made a conditional permanent resident for a two (2) year pe-riod, at which time he or she may make an application to U.S. Citizenship and Immigration Services (“USCIS”) to remove the conditions and grant permanent residence. In order to receive unconditional permanent residence, the foreign national must show that he or she has “substantially met the capital invest-ment requirement.”
A foreign national may also be able to make a smaller invest-ment of $500,000.00 if the investment is in a targeted employ-ment area that includes rural areas with populations of less than 20,000, or locations that have experienced unemployment at 150 percent of the national average.
Certain EB-5 visas also are set aside for investors in what are called “Regional Centers,” which are designated by USCIS based on public or private proposals for promoting economic growth. A Regional Center is defined as any economic entity, public or private, which is involved with the promotion of eco-nomic growth, improved regional productivity, job creation and increased domestic capital investment.
The Regional Center program is for generally good for inves-tors who have the means to invest the capital (i.e., not less than $500,000.00), but who do not wish to actively manage the busi-ness. Foreign national investors who choose to invest through a Regional Center must demonstrate that a “qualified investment” is being made in a new commercial enterprise located within an approved Regional Center, and show, using reasonable meth-odologies, that ten (10) or more jobs are actually created, either directly or indirectly, by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital invest-
ment resulting from the Regional Center. The typical investment will be $500,000.00 (plus additional fees and expenses associat-ed with getting into the program, which can range from $20,000 to $70,000, plus or minus, plus professional fees), which may or may not be returned to the investor at the end of the proverbial day.
In a statement about the approval of the Capital Region’s EB-5 Regional Center, New York Governor Andrew Cuomo said, “As the State works to attract businesses and jobs from across the nation, we must also look overseas to lure global investors and entrepreneurs to start and grow their companies in New York. ... With this approval, the Capital Region will be more attrac-tive than ever before to businesses from overseas interested in expanding their investments here in the United States.” We can only hope.
Basically, an EB-5 Regional Center allows wealthy foreign na-tional investors to essentially “buy” a Green Card for themselves and their families (although not without a lot of hoops to jump through and significant financial risks too). The EB-5 program has been around for quite some time now, but not until the Re-gional Center portion of the EB-5 program gained traction with the immigration bar and the economic development community and their lenders did it start being used as it was intended; that is, to stimulate the U.S. economy through job creation and capi-tal investment by immigrant investors by creating a new com-mercial enterprise or investing in a troubled business.
This is truly an exciting opportunity for the Capital Region!
David W. Meyers, Esq.Meyers and Meyers, LLP
Join the Albany County Bar Association’s Young Lawyers Committee, Small and Solo Committee,
the NYSBA’s Young Lawyers Section and Real Property Law Section for a night out with
the Valley Cats and Out of the Pits at the Joe for their annual
BARK IN THE PARK NIGHT
July 7th 6:00 PM$25.00 per ticket gets you a great box seat,
delicious pre-game buffet, a Valley Cats baseball hat, and a swag bag!
$10.00 of each ticket sold goes directly to Out of the Pits.
Contact Stacey at 518-445-7961 or go to our websiteto reserve your tickets today!
19
There’s not a lot of great deal of Workers’ Compensation matters to report to the general bar and most of the active practitioners already know “this stuff” - but there have been a few interesting cases. Some give and take.
But first some housekeeping. The WCB has revamped the da-tabase system. Gone are a great many forms that have been in use for years, decades, replaced by FROIs and SROIs. First Report of Injury, Subsequent Report of Injury. The theory isn’t crazy. Put everything into one clearly labeled, easy to read docu-ment. To date there is confusion and no one has really gotten a handle on how these will actually improve the quality of the allo-cation of benefits to injured wokrers which should be the primary rationale behind any WCB decision. This will take time.
Two cases of interest. The first is Danin V. Stop-n-Shop (I would put in the cite but absolutely no one, no one will actually read it). Danin speaks to the question of the responsibility of a Claim-ant, classified with a permanent partial disability to demonstrate his/her efforts at securing employment within his/her restrictions. Of course Zamora says that the Claimant has that obligation, American Axle gives us some insight as to what constitutes a legitimate search effort and numerous Administrative Law Judge decisions have narrowed it down a bit. But what about the situ-ation where a Claimant has been classified with a permanent partial disability, is receiving appropriate benefits and receives “the questionnaire” in the mail from the carrier - the one that asks among other questions such as name, address, weekly pay-ments (this sent by the carrier making the payments) whether or not the Claimant is working and if not what efforts he/she has made to obtain employment. Is failure to respond to the carrier questionnaire, in and of itself grounds for a carrier to get a hear-ing before an Administrative Law Judge on the issue of removal from the labor market? NO says Danin. Taken alone, failure to respond to the inquiries of the carrier is not a sufficient basis for the Board to schedule a hearing on the issue. What about the Claimants who are still receiving partial benefits but have not yet been classified with a permanent partial disability. What says Danin then? Nothing. It is not addressed. If one was keeping score we would have to give round one to the Claimants.
But the game isn’t over and in round 2 we face Matter of Cana-les a recent Appellate Division decision. For those of you who have followed this issue in detail, and you both know who you are, you will know that under the recent changes of the law, and taking into account the Buffalo case, a claimant with a perma-nent partial disability is ultimately determined to have a loss of wage earning capacity (LWEC). This percentage, a mathemati-cal calculation determines among other things the duration of the capped payments and seemingly the amount of the weekly benefits. LWEC takes into account two basic factors. First is the medical impairment, the actual physical and/or mental health restrictions placed upon the claimant by the administrative law judge having reviewed the various medical reports. How much has the claimant lost the ability to bend forward, to twist to the
right? How much can the claimant turn left, how far can the claimant walk? How many hours can the claimant work, how long can the claimant sit, what are the side effects of the medi-cations, how high can the claimant raised his or her arms etc. Let’s pretend that a determination is made that the claimant has a 60% impairment. To that number we then have to add the second consideration, the vocational factors to determine a loss of wage earning capacity. This is where everything gets murky and difficult to determine. It is somewhat like but not identical to a review of the factors that are seen in a Social Security dis-ability Title II or Title 16 case – it basically takes that impairment and makes a determination how the claimant’s age, education, residual functional capacity, transferability of skills, language skills, etc. are impacted by the 60% impairment and determines a loss of wage earning capacity. The theory does make some sense. A claimant with little education, inability to communicate well in English, without transferable skills etc. will have a great-er loss of wage earning capacity, everything else being equal, than a claimant without those imitations. While there can be an unlimited number of opinions on how we do the actual calcula-tion, that we must do the calculation and determine the LWEC is now clearly mandated by law. But what about the claimant who is not yet ready for permanency. What about the claimant who has undergone surgery and was paid temporary total ben-efits, who now has improved to a medical impairment of 50% but clearly cannot return to work for at least another six weeks. The argument in Danin was that the same loss of wage earning capacity factors should be considered in determining the tem-porary compensation rate. Those same life factor restrictions, education, skills, communications etc. that would give rise to a greater overall finding when calculating a loss of wagering ca-pacity are just as significant while evaluating a temporary rate says the claimant. Using an analysis that appears firmly rooted in the technical differences between “loss of wage earning ca-pacity” and “wage earning capacity” the Court holds that indeed we do NOT consider these vocational issues during periods of temporary disability. The claimant will receive a 60% benefit not-withstanding an undeniable ability to return to any short-term employment while he/she continues to recover.
Workers compensation should be about the claimants and re-turning them to work as soon as possible while allowing them to financially survive during the interim. Many claimants who are still in the process of recovering simply cannot survive on the partial disability payment without the benefit of the vocational factors. This often results in a claimant returning to work before full recovery has been achieved leading to an almost certain re-injury and back we go to square one. I don’t know if a motion for a Leave to Appeal to the Court of Appeals is in the works or not but as always my best legal advice: fall down in Massachusetts, not New York.
Raymond SeligmanSilverman, Silverman & Seligman, P.C.
WorKer’s CoMPensation
The 2014 Survey of Florida Law CD program is now available for lending from the ACBA. Call 445-7691 to reserve a copy.
“You can only protect your liberties in this world by pro-tecting the other man’s freedom. You can only be free if I am free.” Clarence Darrow
Handling Rat Testimony:Investigation Through
SummationPart III
Ray Kelly
ClArenCe DArrow Vignettes
Sienna, Publius and Atticus had settled into their favored cubby-hole at The Chambers. Sienna was plying the old curmudgeons with demon rum alcohol to have them wax eloquent on some ap-proaches to handling the testifying rat. “When we last met, Publius suggested that because the average juror has no knowledge about ‘rats, snitches or liars for hire’ that we craft a cross-examination that immediately educates the jury, at the rat’s expense, regarding themes to be developed during the cross that will be echoed in sum-mation - - what are some opening gambits to begin the cross of a rat?”
Atticus began, “A time honored technique for beginning a cross is to create an analogy that resonates with the average juror. Many people have a fear of heights.” So why not begin:
Q. Mr. Rat, there are things in life that scare you? Q. For example, falling from a high place is frightening? Q. Standing on the edge of a high cliff is scary? Q. Life as you know it could suddenly come to an end? Q. What if there was a prison at the bottom of the cliff? Q. A place which would catch you? Q. Where you would be locked up for 25 years? Q. When you were arrested, the cops told you that you were on a cliff? Q. That your life as you know it was about to come to an end? Q. But the cops gave you a choice? Q. You could jump off the cliff? Q. Or you could become a ‘cooperating witness’ to save yourself 25 years? Q. And as you were standing looking over the edge at 25 years, the prosecution offered you a way out? Q. So you would not have to make the leap into 25 years? Q. As long as you found somebody else to take your place? Q. Someone to take the fall for you? Q. Either you were going over the cliff? Q. Or someone else was going over the cliff? Q. You needed someone else to take the fall for you? Q. That 25 years hangs in the balance as you’re sitting there testifying right now? Q. You are testifying in the hopes that this fellow human being will do your time for you?
“Not bad,” said Publius. “How about the time honored stunt man analogy?
Q. Mr. Rat, you’ve seen movies with ‘Governor Schwar zeneggar’ and Sly Stallone? Q. Movies in which they appear to perform impossible stunts? Q. Neither Schwarzeneggar nor Stallone perform the stunts themselves? Q. Stunt men are used as stand-ins? Q. To take the plunge in place of Schwarzeneggar or Stallone? Q. Just like you’re trying to have my client take the plunge for you?
Sienna chimed in, “What about a ‘throwing the accused to the wolves analogy’?” “Good idea - - let’s brainstorm some potential questions depicting the testifying rat as a ‘wolf in sheep’s clothing’.” How about:
Q. You’ve heard the expression “throwing someone to the wolves”, haven’t you? Q. You know what it means to throw someone to the wolves? Q. If you’re being chased by wolves, and you throw some one to them, while that person is getting torn to shreds, you have time to get away? Q. That way you don’t have to outrun the wolves? Q. You only have to outrun the other person? Q. On the day you were arrested, the police chased you down? Q. You were taken to the police station? Q. But you got away? Q. You threw my client to the police? Q. While my client was being torn to shreds, you got away?
“There are varying themes that can be utilized in structuring your cross,” added Atticus. “For example, the word scapegoat comes from a biblical tradition of casting all sins of a community onto an innocent goat which either results in its slaughter or exiling it into the wilderness. The sinners go free, but the goat pays one hell of a price.”
Publius, signaling the bartender for another round, chimed in, “Most rats are or appear to be professional liars. But, before you develop your theme for cross, link it to your opening.”Sienna gasped, “Opening? How does that help me impeach the Rat? My judge is a stickler for the traditional ‘the facts will show’ approach?”
“Remember” replied Publius, “to be an effective defense attorney, your trial must be an integrated whole – all of the parts must be consistent and mesh with your overall theme.”
Staring at her drink, Sienna paused and said, “This is getting com-plicated. I’m afraid I’ll ‘lose’ the jury early on.”
“Nonsense,” snorted Atticus. “Do it right and they’ll hate the Rat long before they even see him. Give her the drill Publius, you’ve done it hundreds of times.”
Taking a healthy swig from his Merlot, Publius began. “Here’s the approach you take. If your judge is indeed a stickler for “the facts will show” style of opening, that’s easy enough to comply with. Here you go. The facts in this case will show:
• Mr. Judas is a rat who will testify falsely if it will help him. • From that man’s lips you will learn that he is a professional liar. • From that man’s lips you will learn that he deceives people for his own benefit. • From that man’s lips you will learn that he and what he says can’t be trusted. • From that man’s lips you will learn that if he says what the prosecutor wants him to say, he gets a benefit for being a Rat. • You will learn from that man’s lips that he lied to his own wife about what he did for a living. • From that man’s lips you will learn that he cannot produce a pay stub for the last five years. • From that man’s lips you will learn that he drives a 2014 Lincoln Town Car. • From that man’s lips on a video tape, you will learn that when he was first questioned by the police that he told them under oath that he was in Ohio for a family funeral the night of the crime. • From that man’s lips you will learn that he gave the
20
police a name of his alleged Ohio cousin who could verify his funeral alibi. • From that man’s lips you will learn that his alleged cous in was in fact, his cell-mate while he was in federal pris on for an armed robbery. • From that man’s lips you will learn . . . .
“You get the picture” Publius concluded, “and you get to expose, and predispose the jury to, every lie you will confront the rat with on cross examination. Now your case has structure, your chapters of cross are sequenced and there is congruence between message and messenger that this Rat is a liar and is lying again to save his own tuckus. Both the Rat and the story are rotten.”“This is hard work,” exclaimed Sienna taking another pull from her drink.
“Nonsense” snorted Atticus, “it’s just preparation, thinking, thinking and more thinking.”
“Besides” interjected Publius, “it may give you the coup de grâce which will turn the jury against him for good. You have given them every reason to watch him like a hawk.”
“Huh?” blurted Sienna. “You lost me completely.”
Laughing, Atticus interjected. “A good point – no, an important point! Don’t be glued to your notes when you’re cross-examining. Watch the Rat. If he’s lying and you’re getting into his shorts, wait for him to lick his lips. When he does, drill him:
Q: Mr. Rat, is there something wrong with your lips? Q: Would the truth help?”
“The ‘lips’ opening will never be forgotten by the jury,” concluded Atticus.
“Did I go to law school or not?” Sienna moaned as she sucked the last Scotch out of her glass.
“Ridiculous,” chortled Publius. “Atticus and I lost many a case early in our careers before we realized that ‘law school’ thinking doesn’t work defending clients in a courtroom.
Sienna asked, “How do I get on my feet and what’s the first ques-tion to ask so that I get my butterflies flying in formation in this high octane cross examination?”
“When you have a rat that has used a dozen aliases in committing crimes, how about beginning with:
Q. You didn’t like the name your mom gave you? Q. You have used many aliases during your criminal career? Q. You have used the name ‘Rat’ when committing prior crimes?
Q. You have used the name ‘Snitch’ when committing prior crimes? Q. You have used the name ‘Liar-for-Hire’ when committing prior crimes? Q. You’ve used so many names over the years you can’t remember all of the names you have used in your criminal career? Q. You’ve lied about your name so many times that you can’t recall how many lies you’ve told on your name alone?
and then sail into the sequence of the chapters of your cross. You are in total control. When the rat has many prior convictions in-volving thievery, dishonesty and lying, you might abandon our law school training that says you never ask open ended questions on cross examination. For example,
Q. Mr. Rat, are you an honest person? Q. A person of integrity? Q. A person who can be trusted?
to which the rat can answer ‘yes’ or ‘no’ both of which are good for you. If the rat answers ‘no’, s/he has self-impeached and then you set sail into the underlying acts of their prior convictions, prior bad acts and prior inconsistent statements. If the rat answers ‘yes’ then before you go into all the underlying acts upon which you are going to impeach, first ask:
Q. When lying helps you, you lie? Q. When the truth hurts, you ignore the truth? Q. When the facts don’t work, you change the facts?
Again, either a ‘yes’ or ‘no’ answer does not hurt you because if the answer is ‘yes’ the rat is self-impeaching and if the answer is ‘no’ then you weave all the underlying facts of the prior bad acts and convictions into a cross examination in which the rat has to admit that s/he just lied in living color in front of this jury when denying ‘when lying helps you, you lie?, when the truth hurts, you ignore the truth? and when the facts don’t work, you change the facts?’ And, pay attention to who the investigating and arresting police officers were on the rat’s prior convictions as they may be witnesses in this trial who can be used as reputation witnesses regarding the Rat.
“You mean you can get a police officer to bad mouth the rat from the stand?”
“When you’ve done your due diligence, consider the following:
Q. Officer, during the course of your career, you’ve had your superiors cut a deal with a perp that you disagreed with? Q. And prosecutors have cut deals that turned your stomach? Q. You’ve heard of instances where a very bad man may be cut loose because he’s agreed to testify about some one else? Q. Some deals can be quite obnoxious? Q. Sometimes it feels like you’re making a deal with devil? Q. You know that Sammy “the Bull” Gravano cut a deal with prosecutors in which he received a 5 year sentence for having committed 19 murders? Q. In order to buy testimony? Q. It’s common knowledge that people in trouble lie to protect themselves? Q. You’ve heard of crooks falsely blaming others to avoid jail? Q. Let’s talk about the devil the prosecutor made a deal with in this case? Q. You and the other members of the police department have known this rat for years, haven’t you? Q. S/he’s been committing crimes since s/he was old enough to vote? Q. During your long association with Mr./Ms. Rat you’ve come to know his/her reputation for truth and honesty in the community? Q. Especially in the police community? Q. And in the community in general? Q. Regarding this rat, what is the reputation for truthfulness and honesty? A. The rat is a well-known liar and thief.
“I’ve gotta go,” Sienna said. “I’ve got 10 pages of notes here, a spouse who will never believe that I was actually working on a case coming up for trial in three weeks and I’m about to have a panic at-tack on how to prepare, much less deliver a closing argument that incorporates everything you’ve told me so far.”
Laughing, Publius said, “Your closing is already 90% scripted if you follow our meager suggestions. Organize your notes, draft your chapters and themes and we’ll finish up with ‘closing argument’ at our next “bar” association meeting.
21
attorneys in the PubLiC serViCe CoMMittee
Co-Chair: Daniel J. Hurteau, Esq.,
Nixon Peabody, LLP, [email protected]
427-2650
Co-Chair: Lisa R. Harris-Eglin, Esq.
Senior Counsel to the Senate Majority Republican Conference,
The Attorneys in Public Service Social took place on May 8th in the Bordeaux Room at Provence Restaurant in Styvestant Pla-za. It was extremely well attended by members of the bench, the bar and other guests. Notably, City of Albany Mayor Kathy Sheehan was in attendance and discussed the importance of public service. In addition, while this was the third year for the public service social, it was the inaugural year for the committee to give out awards.
The award recipients are William Andrews, Assistant County At-torney, who received the Excellence in Public Service Award and Clotelle Drakeford, Assistant Public Defender, who received the Trailblazer Award.
Without a doubt, both awardees are extremely impressive and APS looks forward to continuing the tradition of honoring public sector attorneys in the coming years.
The Commitment to Excellence Award is being presented to Assistant County Attorney William Andrews, by Lisa Harris-Ellis, Co-Chair of the Attorney in Public Service Committee
The 2014 Trailblazer Award is being presented to Clotelle Drakeford by Lisa Harris-Ellis, Co-Chair of the Attorney in Public Service Committee
MID YEAR MEMBERSHIP DRIVEIf you or someone in your firm is a new attorney to the
area or to the practice, this is the deal for YOU!
If you join the Albany County Bar Associationas a first time member, between
July 1 and September 30, your membership cost is reduced by half.
This means that an attorney who has been admitted into the bar for less than five years, can join for only $40.00 and
for those with more than five years, the cost is only $65.00.This offer is only valid for NEW ACBA memberships.
Call 518-445-7691 to join today, we will be happy to assist you!
And don’t pass up this opportunity to join our very active Lawyer Referral Service. With
more than 400 referrals made each month, this is a great way to increase your client base. We list more than 60 legal specialties so your name
will reach the clients you want.
The cost is $75.00 for two listings, $100.00 for four. See below for legal categories, and then call us to sign up today. Don’t
miss another potential client opportunity.
Administrative Law AdoptionAnimal RightsAppealsArticle 78BankruptcyBusinessCivil RightsCollectionComputer Law (Internet Law)Consumer ProtectionContractsCorporation LawCriminal LawDisability Law (Long term, Short term)EducationElder Law (Health Care Proxy, Living Wills)Entertainment LawEnvironmental LawEstates, Wills & TrustsFamily LawFederal LawForeclosure IssuesGuardianship/ConservatorshipHealthcare LawHIPAAIdentity TheftImmigration & NaturalizationInsurance LawLabor Relations
Landlord & TenantLemon LawMalpractice - DentalMalpractice - LegalMalpractice - MedicalMedical Prof. Discipline (def. the medical practitioners)Matrimonial & DivorceMilitary LawMunicipal LawName ChangeNegligence & TortPartnershipPatents, Trademarks & CopyrightsPolice Brutality CasesProduct LiabilityPrison Tort CasesPublic Utility LawRailroad NegligenceReal Estate Tax AssessmentsReal PropertyRetirement & PensionSecuritiesSocial Security Law (SSD, SSI)TaxationUnemploymentVehicle & Traffic LawVeteransWorkers CompensationZoning
22
Continuing LegaL eduCationCASEMAKER ONLINE CLE CATALOG
The Albany County Bar Association is committed to helping New York Lawyers succeed in practice by having the best information possible. We believe that the best way to do this is to connect CLE to Primary law. The ACBA has partnered with Casemaker to bring you the new Online CLE catalog which allows for a real time link between the course materials and all referenced cases, codes, and statutes maintained in the Casemaker Library. The “Notes” area also allows you to record these references along with your thoughts at the time and e-mail the captured notes to yourself for application in your practice. We call this feature “CLE to Work” and think it will go a long way to adding value to your CLE experience. To view, please visit our CLE Store at www.albanycountybar.com or http://albany.bizvision.com.
**************************
NAVIGATING EMOTIONAL CURRENTS IN COL-LABORATIVE DIVORCE - A TWO DAY TRAININGA co-sponsored event with the Collaborative Divorce Association of the Capital District(Non-Transitional: Not appropriate for newly admitted attorneys)
June 12-13 Marriott on Wolf Road 189 Wolf Road 9:00 AM Breakfast 9:30 AM - 4:00 PM with breaks and lunch
Presenters: Kate Scharff, M.S.W Lisa Herrick, Ph.D. Joanne M. White, Esq.
Price: $395.00 made payable to CDACD and mailed to: CDACD, PO Box 8, Latham, NY 12110
CLE Credit: 4.5 Hours of Skills; 1 Hour of Ethics
************************
THE ETHICS AND PRACTICE OF REFERRAL FEE ARRANGEMENTS AND THE NEW PER-SONAL INJURY RETAINERS: BUILDING YOUR PRACTICE ON A SOLID FOUNDATION
June 18 Victory Café 4:45 PM Registration 5:00 PM – 6:15 PM
Presenter: Patrick J. Higgins, Esq. Powers & Santola, LLP
Price: Members: $35.00, Non-members: $50.00, Non-Lawyer $20.00
CLE Credit: 1.5 Hours of Ethics
************************
The Albany County Bar Association provides scholarships for those members in need: Fee waivers for unemployed attorneys and fee reductions on a sliding scale for attorneys with annual incomes of $30,000 or less.Unemployed: Full ScholarshipIncome up to $15,000: 75% Discount Income $15,000 - $30,000: 50% Discount Income above $30,000: No DiscountAll requests must be in writing and are kept confidential.
Registration: Program registration is required 24 hours in advance of the program starting in order to ensure there are enough materials, food and seats. If space is available, registration at the door will be permitted; however, a $10 fee increase will be imposed.
Please make checks payable to the Albany County Bar Association and remit to 112 State Street, Suite 1120, Albany, NY 12207. We also accept credit cards. Please contact 445-7691 or [email protected] for additional information.
MATRIMONIAL UPDATE(Transitional: Appropriate for both newly admitted and experienced attorneys) June 20 Jack’s Oyster House 11:45 Registration 12:00 to 2:00 PM Seminar/Lunch Buffet
Presenters: Cynthia J. Tippins, Esq.
Price: Members: $75.00; Non-Members: $90.00; Non-Lawyers: $50.00
CLE Credit: 2 Hours of Skills
A reminder--Our summer newsletter combines the months of July and August, and is available
online only.
The hardcopy issues will begin again in September.
23
CaLendar of eVents adVertising PoLiCy for the ACbA newsletterAdvertising & articles appearing in the ACBA Newslet-ter do not presume endorsement of products, services & views of the Albany County Bar Association. The views expressed in the letters and columns reflect the opinions of the authors and may not reflect the views of the Asso-ciation, its Officers, Directors or Members. Opposing view points are always welcome and can be e-mailed to [email protected].
2014 rAtes AnD DeADlinesAlbany County Bar Association Rates: Member: $50 in our classified section (approximately 30-40 words) additional fees may be incurred as the number of words increase. Non-member: $100 in our classified section (approximately 30-40 words) additional fees may be incurred as the number of words increase. There is an additional $10 charge for Blind Ads. Seminars announced: $60 (approx. 30-40 words).
The rates for all photo ready ads are: Full page (8.5” x 11”) = $550.00;Half Page (7.5” x 5”) = $375.00;Quarter page (3.5 “ x 5”) = $300.00; Business card size (3.5” x 2.5”) = $200.00
CLassified adVertising PoLiCy All ads must be prepaid and in writing. We also hold the right to edit all ads. For display advertising rates and information, please call (518) 445-7691. All ads must contain wording “Paid Advertising” at the top. It shall be the policy of the Albany County Bar Association that no advertisement should indicate any preference, limitation, specification, or discrimination based on color, handicap, religion, sex, national origin, or age.Change of Scene and Bench & Bar in the News: Provided at no cost to our members. All notices must be submitted in writing. E-mail is preferable.Deadline: *Please note change: The third Friday of the prior month is a good rule of thumb. E-mail ad copy and remit payment to Albany County Bar Association, 112 State Street, Suite 1120, Albany, NY 12207. We also take credit cards, call 445-7691.
PRSRT STDU.S. POSTAGE
PAIDALBANY, N.Y.PERMIT #749
ALBANY COUNTY BAR ASSOCIATION112 State St., Suite 1120Albany, NY 12207
June 5 CDBHBA Judicial Reception, Great Hall, 5:30-8
June 12 Barb’s Retirement Party, Schuyler Meadows Club
June 16 Golf Outing, Schuyler Meadows Club
June 18 “55ABOAT” - GREAT HALL at NYSBA, 4:30-7:30
June 18 Young Lawyers CLE, Victory, 5:00-6:15
June 20 Matrimonial Update CLE, Jacks 12-2
June 26 Judge Teresi’s Retirement Party, Martel’s Restaurant 5:00 PM
July 7 ValleyCats game, w/ Young Lawyers, Small & Solo
July 19 Young Lawyers Habitat for Humanity Build
Follow us on twitter! @AlbanyCountyBar
(https://twitter.com/albanycountybar)
And
“like” us on Facebook, AlbanyCountyBar
(https://www.facebook.com/AlbanyCountyBar)