C N Y P h i l a n t h r o p y C e n t e r | S u i t e 3 0 0 | 4 3 1 E a s t Fa y e t t e S t r e e t | S y r a c u s e , N Y 1 3 2 0 2 | 3 1 5 . 4 7 1 . 2 6 6 7

O n O n d a g a C O u n t y B a r a s s O C i at i O n

V o l u m e 5 9 n u m b e r 1 0 | DeCember 2014 | www.onbar.org

MISSION :...to inspire excellence in the legal profession, to foster the fair administration of justice, to promote equal access to the legal system, and to serve and support our members.

Annual Meeting Vote Confirms Officers and Directors for 2015The Onondaga County Bar Association held its Annual Meeting at the County Legislative Chambers in the Court House on November 6, 2014.OCBA President Nicholas DeMartino welcomed the members and introduced Treasurer Jim Messenger, who presented the organization’s financial report.As of the end of October 2014, the Bar Association had cash assets of $157,128.44. Messenger noted our membership revenue is strong and exceeded our anticipated revenue in that area for this year. We will recognize ongoing savings once we relocate to our new less expensive and nicer offices beginning in December 2014. There will be some one-time expenses related to the move, but we also took advantage of the opportunity to upgrade OCBA’s IT infrastructure which had fallen out of maintenance support. We also believe that having a nicer facility will increase attendance at revenue generating events like CLEs.Nick DeMartino introduced the Immediate Past President, Nancy Pontius, who served as the chair of the Nominating Committee. Nancy reported that the Nominating Committee of the Onondaga County Bar Association, nominated the following members for election to the positions indicated:

DIRECTORS, 2015 - 2017 TERMJoseph J. Bufano Paula Mallory EngelDanielle M. Fogel Scott A. Lickstein (continuing)Frank B. Pelosi Aaron J. RyderKimberly M. Zimmer

OFFICERS, 2015President-Elect Anne Burak Dotzler Vice President James M. Williams Treasurer John L. McCann Secretary Mark W. Wasmund Under the OCBA by-laws, Jean Marie Westlake, the 2014 President-

Elect, automatically becomes the President of the Association on January 1, 2015, and Nicholas DeMartino, our current President, will serve as the Immediate Past President.Nick thanked Nancy Pontius for her leadership of the Nominating Committee and also for her service as Past President, and acknowledged those Directors whose terms are ending at the end of this year including: Jim Messenger, Betsy Barker, Joe Callery, Fran Ciardullo and Emilee Lawson Hatch. Nick made a special acknowledgment of the three years Jim Messenger served as OCBA Treasurer and thanked Jim for all his hard work including his help on negotiating leases over the years and for his help (literally) with the move.President Nick DeMartino presented his 2014 President’s Report, highlighting the progress and achievements of the OCBA this year, including new and invigorated sections (Young Lawyers, Trial Lawyers, Law Students, Diversity & Inclusion, Former Presidents’ Council), increased membership, expanded Law Day events and the 139th Annual Dinner (both overseen by Annie Dotzler) honoring Emil Rossi. Nick thanked the exceptional Staff and Board for their contribution to this exceptional year.President-Elect Jean Marie Westlake congratulated and thanked Nick for his dedication to the Bar Association during the past several years and presented him with a plaque in appreciation of his services. Jean Marie then noted that the coming year will bring a move to a new location which provides the opportunity for a new tone and a new look and an opportunity to refresh OCBA. She then highlighted the areas that she would like to focus on in 2015, including expanding membership benefits and improving OCBA’s communications with its members.

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I would like to pay a special thanks to the hard working and diligent members of the task force who authored our Mission Statement and Committee Objectives.

This year has gone by so quickly. The phrase “it seems just like yesterday ...” that I was being sworn in as President of the OCBA is cliche, but so very true.

As I look back, 2014 was a year of great change and a year of many accomplishments for the OCBA.

Nothing, of course, could have been accomplished without the hard work, professionalism, dedication and “tolerance” of the OCBA Staff. Chele, Peggy, Maggie and Delores answered my every call with a smile and a pleasant voice, patiently listened to every one of my crazy ideas, and most importantly, followed through with everything that I asked of them. Jeff, our Executive Director, is a “quality guy” and a consummate professional. From CLE, to preparing for board meetings, to organizing receptions and dinners, to balancing our budget, to literally and seamlessly picking up and moving our offices after 30 plus years to a new home, the OCBA Staff navigated through 2014 in an exceptional manner.

It was also an absolute pleasure to work with the OCBA Executive Committee and the Board of Directors. All of these individuals took time away from their own respective practices to volunteer as OCBA Officers. None of them had to do this. None of them had to participate in sub-committees, ad hoc committees, or attend emergency meetings. None of them had to participate in the day-to-day functions of the Board. All chose to do so, however, with great energy, commitment, professionalism, enthusiasm and dedication. Perhaps the thing that I appreciated the most from this year’s Board was that everyone was always actively engaged and never reluctant to express a position or opinion about the issues that confronted us. For that, I am most appreciative.

If it’s beginning to sound as if I enjoyed my year as President, I most certainly did.

2014 saw the creation of the OCBA’s new “user friendly” website. Our site now allows an easier and more thorough access to the the OCBA and to OCBA events. Thank you to Board Member John McCann for all of his hard work overseeing the development of this new site. We look forward to continued upgrades with this site in 2015.

The Bar Reporter also made a long awaited and welcome return. A special thanks goes to Chele Stirpe for designing and formatting the Reporter each month, which is no easy task, especially when trying to work with a President who was habitually late each month with his articles. This, along with the new website, will keep members better informed and more in touch with the OCBA and OCBA activites.

In our continuing efforts to make the OCBA more relevant, and participant and mission friendly, 2014 saw the creation of the “Young Lawyer’s Section,” “Trial Lawyer’s Section,” “Law School Section,” and the “Diversity and Inclusion Committee,” as well as the continued growth of the “Family Law Section.” Thank you to Peggy Walker for organizing, scheduling and promoting these section and committee events and Board Member Hon. James Murphy for his recruitment and organization expertise. We hope that these sections and committees will continue to grow, develop and attract new members to the OCBA, and create enhanced networking opportunities for our members.

Law Day continued to be an extremely popular, rousing success, and officially evolved into an “event.” Thanks to OCBA Vice President Annie Dotzler and the Law Day Committee, the annual morning Law Day Award Ceremony expanded to include tours of the County Courthouse and Federal Building, a high school student debate, and the Law Day Luncheon at Syracuse University which was attended by over 300 people. The High School Mock Trail Competition has also now moved under the Law Day umbrella.

An extremely festive OCBA Annual Dinner held at the Links at Erie Village in October, attended by over 300 people, welcomed Emil M. Rossi as the 2014 “Distinguished Lawyer.”

From the President:

It Was a Wonderful Year!

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Sam ElbadawiEmilee Lawson HatchRomana A. LavalasScott A. LicksteinJohn T. McCannHon. James P. MurphyWendy S. ReeseDavid M. SnyderMark W. WasmundEx OfficioDean Hannah R. ArterianStuart J. LaRose

Immediate Past PresidentNancy L. Pontius

Executive DirectorJeffrey A. Unaitis

DirectorsElisabeth A. BarkerBlaine T. BettingerBruce R. BryanJoseph D. CalleryFrances A. CiardulloGordon J. Cuffy

PresidentNicholas J. DeMartino

President-ElectJean Marie Westlake

Vice PresidentAnne Burak Dotzler

TreasurerJames H. Messenger, Jr.

SecretaryJames M. Williams

2014 OCBA BOARD OF DIRECTORS

Nicholas J. DeMartino | OCBA President

Lastly, on December 1, the OCBA moved to its new home in the CNY Philanthropy Center. This newly renovated, “historic” building serves as a perfect fit for the OCBA as we continue to grow in membership and in program offerings. The beautiful Grand Ball Room serves as a fantastic location for receptions, CLE’s and other bar events. An open house is scheduled in early January. I hope that you all can join us as we begin a new chapter in the rich history of the OCBA. Thank you to OCBA Treasurer Jim Messenger for negotiating our move from the State Tower Building and for negotiating our new lease with the Philanthropy Center.

It really has been a wonderful year.

So much has been accomplished. Serving as President has has been a rewarding experience for me both on a personal and professional level. I’m honored to have had the opportunity to work with so many good, dedicated and energetic professionals. As I discussed above, these individuals take time and energy away from their busy personal and professional lives in order to help improve the quality of the OCBA and our profession.

We as attorneys are all extremely fortunate to have the opportunity to work in a profession that affords us the ability to help others in both small and substantive ways on a daily basis. As such, we all have the unique talent and the ability to serve in some small capacity outside of our employment to help improve our profession, our community and to help others. I urge you to consider doing that in whatever way you can and to whatever extent you are able. This past year, I was able to witness first hand what the combined efforts of many can achieve.

I leave you with this quote from Arthur Ashe. “True heroism is remarkably sober, very undramatic. It is not the urge to surpass all others at whatever cost, but the urge to serve others at whatever cost.”

My best wishes to you all. Best of luck to the 2015 Board of Directors and to President-Elect Jean Marie Westlake. And may God bless us, everyone.

Here’s to a fantastic and productive 2015!

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ArbitrationIn re Application for an Order Quashing a Subpoena 14-MC-0063(TJM) (12/4/14) – Attorney for the Child properly substituted her judgment for that of the child where the record supports a finding that the child, who was seven years old at the conclusion of the hearing and functioned at a kindergarten level, lacked the capacity for knowing, voluntary and considered judgment. Further, Mother’s contention that AFC’s substitution of judgment for child’s judgment was not proper was not preserved for review because she did not move to remove the AFC.Counsel: D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth DeV. Moeller of counsel), for Mother; Scolaro, Fetter, Grizanti, McGough & King, P.C., Syracuse (Amy B. Egitton of counsel), for Father; Susan A. Sovie, Attorney for the Child, Watertown.Attorney Disqualification Am. Tax Funding, LLC v. City of Schenectady, 12-CV-1026(RFT) – (12/2//14) action for breach of contract; denying plaintiff ’s request to disqualify defense counsel, finding that hiring of magistrate judge’s former term law clerk by law firm for City, even given law clerk’s presence during settlement conference presided over by magistrate judge in action, did not create non-waivable conflict of interest for City, because of (1) wall erected in law firm, (2) minuscule information possessed by former-law clerk, and (3) fact that district judge would be conducting trial.Attorney’s Fees Portaleos v. Shannon, 12-CV-1652(LEK) (9/29/14) – consolidated actions regarding Department of Veteran Affairs’ obligation to obey Order of Onondaga County Family Court to produce employee to testify in child-custody proceeding; denying without prejudice motion by plaintiff ’s counsel for attorney’s fees under Equal Access to Justice Act following settlement of action, based on his failure to comply with 30-day deadline set forth in Act, and directing him to explain why any renewed motion is timely.Breach of Contract Am. Tax Funding, LLC v. City of Syracuse, 12-CV-0290(DNH) (8/29/14) – action by purchaser of delinquent tax liens against city, asserting claims of breach of contract, indemnification and unjust enrichment; granting in part, and denying in part, defendant’s motion for judgment on pleadings and motion for partial summary judgment; granting in part, and denying in part, plaintiff ’s cross-motion for partial summary judgment; finding that, inter alia, (1) purchaser was not entitled to indemnification by city (or attorney’s fees under indemnification clause), (2) existence of written contracts precluded unjust enrichment claim, and (3) purchaser failed to establish city breached contracts by interfering with ongoing foreclosure proceedings in effort to obtain payment for outstanding water bills.Civil Rights Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357(GLS) (11/26/14) – action by administratrix of decedent asserting substantive due process claims against city and its domestic-violence investigator, alleging failure to protect decedent despite affirmatively assisting in creating or increasing danger to her (through repeated, sustained inaction, in face of potential acts of violence, accompanied by communication to aggressor of refusal to arrest); granting in part, and denying in part, defendants’ motion to dismiss for failure to state claim.Gordon v. County of Onondaga, 09-CV-1182(FJS) (11/13/14) – action by administratrix of decedent asserting claims of, inter alia, excessive force and negligent training, arising from officer’s use of Taser to attempt to subdue decedent while he was evading and resisting arrest, following officer’s giving of repeated warnings of use of Taser and decedent’s repeated disregard of those warnings; granting defendants’

motions for summary judgment.O’Brien v. Yugartis, 12-CV-1600(NAM) (9/22/14) – action by village code enforcement officer against village, its mayor and other village officials asserting claims under First and Fourteenth Amendments alleging he was wrongfully discharged from his employment; granting defendants’ motion for partial summary judgment, finding (1) employee’s speech in his role as code enforcement officer (regarding scope, extent and applicability of codes) was not protected by First Amendment, (2) state post-deprivation hearing would provide sufficient process under Fourteenth Amendment.Presta v. Gressler, 13-CV-1207(GTS) (9/15/14) – action by city tax assessor against municipal employees asserting due process “stigma plus” claim under Fourteenth Amendment alleging that defendants terminated from her full-time position with County (pursuant to which she served as acting Tax Assessor of City), and re-appointed to part-time position with City (pursuant to which she served as official Tax Assessor of City at a lesser salary), because she determined that three properties partially owned by one of the defendants did not qualify for the tax exemption that they had been receiving; granting defendants’ motion for judgment on pleadings.Employment Discrimination Lin v. New York State Dept. of Labor, 14-CV-0771(LEK) (12/11/14) – action pursuant to Title VII and NYS HRL alleging that NYS DOL refused to hire plaintiff for position despite her passing NYS Civil Service Exam, in retaliation for her previously filing racial discrimination complaint against her NYS DOL supervisor; granting in part, and denying in part, defendant’s motion to dismiss for failure to state claim (dismissing her retaliation claim under NYS HRL but not dismissing her retaliation claim under Title VII). Sands v. New Paltz Cent. School Dist, 12-CV-1094(GLS) (9/3/14) action by school guidance counselor against district, principal and superintendent asserting claim of race-based discrimination in violation of Equal Protection Clause of Fourteenth Amendment based on defendants’ refusal to recommended plaintiff for tenure (effectively terminating her employment) on the ground of her unsatisfactory job performance; granting defendants’ motion for summary judgment.Intellectual Property Legends Are Forever, Inc. v. Nike, Inc., 12-CV-1495(LEK) (9/30/14) action by owner of “legends are forever” mark against international manufacturer of athletic apparel, alleging claims for trademark infringement and unfair competition under Lanham Act and New York common law; granting manufacturer’s motion for summary judgment, finding that (1) likelihood-of-confusion factors weighed against finding of infringement, (2) there was no evidence of actual confusion between accused clothing line and mark, (3) evidence did not support mark owner’s trademark dilution claim, (4) evidence did not support claim for violation of New York law barring deceptive trade practices, and (5) mark owner was not entitled to additional discovery prior to entry of summary judgment. Procedure Krivchenko v. Clintondale Aviation, Inc., 113-CV-0820(TJM) (9/18/14) – diversity action asserting claim of negligence arising from fatal crash of commercial airliner in Petrozavodsk, Russia in June 2011; denying plaintiffs’ motion for voluntary dismissal of their complaint without prejudice pursuant to Fed. R. Civ. P. 41(a)(2), because such a dismissal would–given the merit of defendant’s pending motion for summary judgment–only permit plaintiffs to bring their baseless suit in another forum, and would therefore serve to undermine fairness and judicial economy; and granting defendant’s motion for summary judgment.

Northern District Case NotesBy Mike Langan, Law Clerk to Hon. Glenn T. Suddaby, USDJ

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A “tattletale” may be defined as a child who reveals the misdeeds of others to authority figures. Historically, our profession has always recognized some obligation to “tattle” on other lawyers who commit misdeeds. In the early canons of ethics this disclosure requirement applied to conduct that violated any ethics rule and also included the obligation to self-report.

Current Rules of Professional Conduct, at § 8.3, require the disclosure of knowledge of another lawyer’s conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer. The report of such knowledge must be made to a tribunal or other authority empowered to investigate or act upon such violations. To understand the scope and operation of the current reporting rules we must explore the following questions: who, what, where, when, and why?

Who? All lawyers are bound by the reporting rule. The Rule specifically obligates the report of conduct by “another lawyer” and says nothing about self-reporting. Even if not required, self-reporting is always considered as a fact in mitigation by a disciplinary committee or the Court, when determining an appropriate sanction. Canon 3(D)(2) of the Code of Judicial Conduct also directs any judge, who receives information indicating a substantial likelihood that a lawyer or another judge has committed a substantial violation of ethics rules, to take “appropriate action.” 22 NYCRR 100.3(D)(1), & (2). Judges or lawyers who disclose lawyer misconduct to the 5th District Attorney Grievance Committee are not typically regarded as “complainants.”

What? In its present form, the mandatory reporting rule no longer requires reporting of any and all Rules of Professional Conduct. Rule §8.3 specifically requires the report of conduct raising “substantial” questions involving a lawyer’s “honesty, trustworthiness or fitness as a lawyer.” Fitness issues may be raised by patterns of missed court appearances, DWI charges,

Tattletale Rules for Lawyers and JudgesAnthony J. Gigliotti, Esq. | Principal Counsel | Fifth Judicial District Attorney Grievance Committee

or erratic behavior during a court proceeding. Prosecutors and local court judges are often the source of such reports to disciplinary committees. If in doubt about whether conduct of another lawyer requires a report, you may contact disciplinary staff counsel for guidance. All reports of Rule violations assists with the self-regulation of our profession. Exemptions from mandatory reporting includes attorney conduct disclosed as a confidence during representation of the attorney in a legal matter, as set forth in Rule 1.6; and information gained by a lawyer or judge while participating in a bona fide lawyer assistance program. See: Judiciary Law §499

Where? The mandate to report may be satisfied by disclosure to the “tribunal” which is presiding over a matter wherein the misconduct has occurred. The report of lawyer misconduct may always be made to an Appellate Division’s departmental disciplinary committee office, unless the subject is a judge, in which case the report is to the Commission on Judicial Conduct.

When? Lawyers may perceive conflicting obligations to their clients’ and their duty to report knowledge of misconduct. In such cases the lawyer may withhold the report of misconduct until certain that the clients’ interests will not be compromised. Rule § 8.3 is silent as to the timing of mandatory reports and there are no statute of limitations on the imposition of disciplinary sanctions against attorneys or judges. Disciplinary investigations may also be put on hold until a related litigated matter is concluded.

Why? The most important reasons to disclose misconduct and fitness concerns, are the protection of the public, and the retention of the public’s trust in the legal system. Reports of fitness concerns may also provoke the critical first steps by impaired lawyers to seek therapy for substance abuse and mental impairments. In such cases, tattletales save lives.

UPDATE – Mandatory Pro Bono ReportingGioia A. Gensini, Esq. | Law Clerk to Hon. Andrew T. Baxter, U.S. Magistrate Judge | Elected NYSBA Delegate

Mandatory Pro Bono Reporting is one of the most controversial issues facing New York attorneys since 2013. Attorneys have generally been concerned when it comes to anything, prefaced by the word “Mandatory,” and this was no exception, sparking vigorous debate at all levels. The requirement took effect May 1, 2013 and directed attorneys to report on their biannual registration their pro bono hours and the amount of their charitable donations to legal services organizations. While attorneys and bar associations generally favor pro bono service and charitable contributions to legal service organizations, among the concerns expressed by members of the bar were the privacy implications of such reporting and the narrow definition of pro bono services.

On November 1, 2014, the House of Delegates of the New York State Bar Association adopted a resolution, incorporating compromise, requesting that the Administrative Board of the Courts amend section 118.1 of the Rules of the Chief Administrator. This compromise was reached as the result of meetings with NYSBA President Glenn Lau-Kee, NYSBA President-Elect David P. Miranda, Chief Administrative Judge A. Gail Prudenti, and Helaine Barnett, chair of the courts’ Task Force to Expand Access to Civil Legal Services. First, while the reporting would still be

mandatory, attorneys would report their pro bono hours and contributions anonymously. Second, this data would be made public only on an aggregate basis. Finally, the resolution asked that Chief Judge Jonathan Lippman expand the definition of pro bono and other public service.

In an email sent to all members of the NYSBA, President Lau-Kee reported that the OCA issued a statement on December 18, 2014, unanimously approving modifications to the mandatory pro bono reporting requirement, consistent with the above NYSBA House of Delegates resolution. The resolution adopted by the Administrative Board of the Courts proposes to amend the requirement so that attorneys would report their pro bono hours and charitable contributions anonymously; the information will be made publicly available only on an aggregate basis, the definition of pro bono and public service categories on the reporting form will be broadened, and all the pro bono information reported prior to the change will be designated confidential.

The rules governing how these changes will be implemented have not yet been released by the Administrative Board of the Unified Court System.

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OCC’s Storer Auditorium was transformed into a New York State courtroom December 2 when it hosted a naturalization ceremony. Seventy-six people from 39 countries were sworn-in as American citizens. New York State Family Court Judge and Acting Supreme Court Justice Michael Hanuszczak presided over the ceremony. OCC Music Professors David Rudari, D.M.A. and Kevin Moore performed patriotic songs.

The candidates for citizenship came from the following countries: Afghanistan, Bhutan, Bosnia-Herzegovina, Burma, Burundi, Cameroon, Canada, People’s Republic of China, Colombia, Democratic Republic of the Congo, Cuba, Germany, Ghana, Guatemala, India, Iraq, Ireland, Israel, Italy, Jordan, Mexico, Moldova, Nigeria,

Pakistan, Philippines, Poland, Somalia, South Korea, South Sudan, Sudan, Taiwan, Thailand, Togo, Trinidad & Tobago, Turkey, Venezuela, Vietnam and Yemen.The naturalization ceremony was presented in conjunction

with the U.S. Bureau of Citizenship and Immigration Services, and the Americanization League of Syracuse and Onondaga County.The ceremony was covered extensively by the local media including the television stations of CNY Central, Post Standard/Syracuse.com, and Time Warner Cable News.OCC’s student

body has a very diverse and global composition. Among the College’s more than 12,000 students are representatives of 57 different countries, including the United States.

Judge Hanuszczak Presides Over Naturalization Ceremony at OCC

Ross Andrews Sworn In

The Hon. Rosemary S. Pooler was the presiding judge at the swearing-in ceremony of Hon. Ross P. Andrews on Friday, December 19, 2014.

JUSTICE OF SUPREME COURTBALLOTS: 137,298 (Onondaga County Only)

Brian DeJoseph (DEM, CON,) 80,727 4Robert P. O’Leary (REP) 48,839

SyRACUSE CITy COURTBALLOTS: 26,971

Ross P. Andrews (DEM, WOR) 22,097 4

Onondaga CountyJudicial Election Results

TOWN JUSTICE ELBRIDGEBALLOTS: 1,803

George L. Betts (DEM, REP, CON, IND) 1,648 4

TOWN JUSTICE CICEROBALLOTS: 9,862

Douglas M. DeMarche, Jr. (REP, CON, IND) 7,873 4

Onondaga County Board of Elections results as of December 18, 2014

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JANUARY TERM: Monday, January 12, 2015 – February 6, 2015 Friday, January 23, 2015 February 13, 2015

FEb./MARch TERM: Monday, February 23, 2015 – March 20, 2015 March 6, 2015 March 27, 2015

ApRIl TERM: Monday, April 6, 2015 – May 1, 2015 Friday, April 17, 2015 May 8, 2015

MAY TERM: Monday, May 18, 2015 – June 12, 2015 Friday, May 29, 2015 June 19, 2015

JUNE TERM: Monday, June 22, 2015 – July 2, 2015 Wednesday, June 24, 2015 July 10, 2015

SEpTEMbER TERM: Tuesday, September 8, 2015 – October 2, 2015 Friday, September 18, 2015 October 9, 2015

OcTObER TERM: Monday, October 19, 2015 – November 13, 2015 Friday, October 30, 2015 November 20, 2015

NOv./DEc. TERM: Monday, November 30, 2015 - December 23, 2015 Friday, December 11, 2015 December 31, 2015

Appellate Division, Fourth Department2015 Terms Of Court

proposed Release Dates:

THE LAW OFFICES OF

SIDNEY P. COMINSKYTrIAL LAWYErS

T. 315.475.3425 F. 315.475.29321500 STATE TOWER BLDG. SYRACUSE, NEW YORK 13202

cominskypc@aol.com

REFERRAL FEES ARE PAID IN ACCORDANCE WITH COURT RULES

HAVE PROUDLY ACTED AS TRIAL COUNSEL TO THE PROFESSION FOR OVER 38 YEARS

Products Liability ClaimsConstruction Site InjuriesMedical Devices, ImplantsRailroad Worker’s ClaimsFederal Tort Claim ActionsNursing Home Neglect

Motor Vehicle CollisionsRoadway Design ClaimsCommercial LitigationProfessional MalpracticeToxic, Environmental &Pharmaceutical Torts

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The University Building

Attorney Office Space Available! The University Building which is located at 120 E. Washington St. currently has office spaces available ranging from 410sq.ft. to 4,000sq.ft. We offer leasing incentives, on-site management, furnished office suites with hardwood floors and historic finishes. Building is conveniently located in the Central Business District.

lAbOR AND EMplOYMENTAnne Burak Dotzler, Esq.

Education Law 3020-a, Disciplinary ProceduresMatter of Kilduff v. Rochester City School District, et al, No. 192, 2014 N.Y. Slip. Op. 08056 (Nov. 20, 2014). Respondent school district notified petitioner, a tenured school social worker, by letter that she was to be suspended for 30 days without pay for specified misconduct. Petitioner requested a hearing on the

determination pursuant to Education Law § 3020-a, but was advised by respondent that she was not entitled to the process prescribed in that statute, and could challenge the disciplinary determination against her only by means of the procedures set forth in the applicable collective bargaining agreement (CBA), which was renegotiated as recently as 2006. After unsuccessfully grieving the matter via the CBA, petitioner commenced an Article 78 proceeding to annul the disciplinary determination, alleging that she had been disciplined without being afforded the process to which she was entitled under the Education Law as a tenured school district employee. In reviewing the legislative history of Education Law § 3020-a, the Court of Appeals held that Education Law § 3020-a plainly provided that, in any CBA taking effect on or after September 1, 1994, tenured employees must be permitted to elect the disciplinary procedures set forth in Education Law § 3020-a, even if the CBA retained an unaltered alternative grievance procedure originally agreed upon before September 1, 1994. Because the governing CBA took effect in 2006, petitioner had the right to choose the statutory review process under Education Law § 3020-a over the alternative grievance procedure contained in the CBA.Human Rights Law, Article 78 Standard of ReviewMatter of Jones v. New York State Division of Human Rights, et al, No. TP 14-00653, 2014 N.Y. Slip. Op. 08163 (4th Dep’t Nov. 21, 2014). Petitioner commenced a proceeding pursuant to CPLR Article 78 seeking to annul the determination of Respondent New York State Division of Human Rights (SDHR) that petitioner did not establish that her former employer, respondent The Fenton Grill, unlawfully discriminated and retaliated against her under the New York State Human Rights Law. The court noted that “[t]he scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the Division’s determination is supported by substantial evidence in the record.” Courts “may not weigh the evidence or reject the Division’s determination where the evidence is conflicting and room for choice exists.” In applying this standard, the court concluded that the SDHR Commissioner’s determination -- that the Petitioner failed to meet her burden with respect to her claims for hostile work environment, quid pro quo harassment, and retaliation -- is supported by substantial evidence and, inter alia, that it would not disturb the ALJ’s decision to credit the testimony of certain witnesses for the restaurant over that of petitioner and her witness.Human Rights Law, Failure to AccommodateMatter of Coles v. New York State Division of Human Rights, et al, No. TP 14-00333, 2014 N.Y. Slip. Op. 07788 (4th Dep’t Nov. 14, 2014).The Petitioner commenced a proceeding pursuant to Executive Law § 298 seeking to annul the determination of Respondent New York State Division of Human Rights (SDHR) that petitioner failed to establish that respondent Erie County Sheriff ’s Office (ECSO) discriminated against her based on a disability. Petitioner was a deputy sheriff assigned to the position of “inmate escort” at ECSO’s correctional facility. It was undisputed that her epilepsy did not permit her to be assigned to duties involving direct inmate contact and that she could not perform the essential functions of an “inmate escort” without presenting a direct threat to her own safety and others in the workplace. However, petitioner requested an assignment to a light-duty position to accommodate her disability. ECSO denied petitioner’s request. Petitioner claimed that ECSO’s denial of petitioner’s request for

reassignment to a light-duty position was in violation of the Americans with Disabilities Act and the New York State Human Rights law. After a hearing, the SDHR Commissioner concluded that petitioner did not establish that ECSO failed to provide her with reasonable accommodations for her disability, as required by Executive Law § 296(3).The Appellate Division confirmed the SDHR Commissioner’s determination, finding that, because petitioner’s epilepsy seizure disorder was described by her own treating physician as “long-term”, there was no basis to disturb SDHR’s determination that petitioner’s disability was of a permanent nature and that ECSO was not required to create a permanent light-duty police assignment to accommodate her under the Americans with Disabilities Act or the New York State Human Rights Law. The Appellate Division further held that there was no duty for ECSO to engage in the interactive process because no reasonable accommodation was available for petitioner’s particular condition and she was unable to perform the essential functions of her “inmate escort” assignment or any other deputy sheriff assignment that petitioner identifiedMatter of County of Erie and Erie County Sheriff ’s Office v. New York State Division of Human Rights, et al,. No. TP 14-00416, 2014 N.Y. Slip. Op. 07829 (4th Dep’t Nov. 14, 2014).Petitioner brought proceedings pursuant to Executive Law § 298 to review a determination of the New York State Division of Human Rights finding that the Erie County Sheriff ’s Office did not unlawfully fail to accommodate the request of petitioner for an accommodation for disability. Petitioner, a deputy sheriff who worked in the Erie County Holding Center, alleged discrimination under the Americans with Disabilities Act and the New

Court of Appeals & Civil Practice Case Notes

Continued on page 9

Contributors from Hiscock & Barclay, LLP

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NY Civil Practice Case Notesfrom page 8

York State Human Rights Law. The County and Sheriff ’s Office filed a petition and a “cross-petition” pursuant to Executive Law § 298 and CPLR Article 78, inter alia, to confirm the determination of the Commissioner of respondent SDHR dismissing the disability discrimination complaint.The Appellate Division noted that a proper claim for failure to provide a reasonable accommodation “must be supported by substantiated allegations that, upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or] her job, and the employee bears the burden of proof on this issue at trial.” In so noting, the Appellate Division found that the substantial evidence in the record supported the Commissioner’s determination that the accommodations requested by Petitioner were incompatible with the essential functions of his job and to dismiss the disability complaint. The court therefore, granted the cross-petition insofar as it sought to confirm the Commissioner’s determination, and dismissed Petitioner’s petition.Matter of County of Erie, named in the underlying matter as Erie County Department of Social Services v. New York State Division of Human Rights,. 121 A.D.3d 1564, 993 N.Y.S.2d 849 (4th Dep’t Oct. 3, 2014).Petitioner commenced proceeding pursuant to Executive Law § 298 seeking to annul the determination of Respondent New York State Division of Human Rights (SDHR) that it engaged in unlawful discrimination because it failed to provide a reasonable accommodation to respondent. Petitioner further challenged the Division’s award to respondent of $10,000 in compensatory damages and civil penalty of $5,000.After petitioner implemented a county-wide program to reduce the number of desktop printers and instead, utilize all-in-one printer systems to be shared by several employees, petitioner requested that she be provided with her own desktop printer because of her constant printer use and bad knees. In support of her request, respondent provided petitioner with medical certification from her physician stating that respondent’s disability was a “diabetes caused amputation [prosthetic leg]”, and listing symptoms of the disability as weak knees, among others. The certification did not specify a recommended accommodation. Petitioner determined that the accommodation was not necessary and denied respondent’s request. Respondent thereafter filed a complaint with the SDHR, which found that the petitioner’s failure to provide a desktop printer as a reasonable accommodation to respondent’s disability constituted discrimination.The Appellate Division upheld the Division’s determination, finding that it was supported by substantial evidence. The Appellate Division reasoned that, although the evidence was conflicting and room for choice existed, there was a rational basis for the SDHR’s determination and thus, the judicial function was exhausted. However, the Appellate Division reduced the SDHR’s award of $10,000 in compensatory damages to $2,500, finding that it was not supported by the evidence, which included only respondent’s own testimony that she was “surprised,” “angry” and “depressed” by the determination to refuse to restore a desktop printer to her work station and that she was required to utilize prescription pain medication one to two times per week since she began using the common printer. The court rejected petitioner’s further contention that the civil penalty of $5,000 was excessive, finding that the penalty was not an abuse of discretion as a matter of law.Human Rights Law, Lack of JurisdictionMatter of Malcolm v. New York State Department of Labor, et al., Case No. CA 13-01283, 2014 N.Y. Slip. Op. 07852 (4th Dep’t Nov. 14, 2014).Petitioner commenced a proceeding pursuant to CPLR Article 78 seeking to vacate the determination of respondent New York State Division of Human Rights (SDHR) dismissing her discrimination complaint against, inter alia, respondent New York Department of Labor (DOL), for lack of jurisdiction. The Appellate Division concluded that Supreme Court’s dismissal of the petition was not arbitrary or capricious because the DOL was not petitioner’s employer, is not an employment agency or a labor organization, and, therefore, section 296 of the Executive Law is inapplicable and the SDHR had no jurisdiction over matters alleged in Petitioner’s complaint. It was within the court’s power to make a summary determination upon the

pleadings to the extent that no triable issues of fact were raised, without the need for a CPLR 3211 motion. Civil Service Law § 75-b, Public Employer Whistleblower StatuteZielonka v. Town of Sardinia, et al., 120 A.D.3d 925, 991 N.Y.S.2d 491 (4th Dep’t Aug. 8, 2014). Plaintiff was employed as a code enforcement officer for defendant Town of Sardinia until he was terminated by defendant Town Council of Town of Sardinia. Following his termination, Plaintiff commenced this action under Civil Service Law § 75-b, alleging, inter alia, that his “termination was in retaliation for his refusal to perform” unauthorized functions and for his “act[ing] as a whistle-blower in reporting” those unauthorized directives “to the Town’s outside attorney and others.” The Supreme Court denied defendant’s pre-answer motion to dismiss and/or for summary judgment. Defendants appealed. On appeal, the Appellate Division held that the lower court erred in denying defendants’ motion to dismiss the complaint against the Counsel and Supervisor because Civil Service Law § 75-b protects a “public employee” from discharge or discipline by a “public employer”, and the statute applies only to governmental entities that actually employed the plaintiff. The Appellate Division, however, upheld the lower court’s decision denying defendants’ motion to dismiss the first cause of action against the Town for failure to state a cause of action. The court reasoned that the plaintiff adequately alleged that he reasonably believed that he had been directed to perform an unlawful act, which is all that is necessary under Civil Service Law § 75-b (“plaintiff need have had only ‘a reasonable belief of a possible violation’ of the law”). The court further rejected defendants’ contention that plaintiff ’s purported act of insubordination for failing to carry out the allegedly unlawful directive constitutes a “separate and independent basis” for the termination, because the purported act of insubordination related directly to plaintiff ’s act of disclosure.

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John Garland February 9, 2012 Dale L. VanEpps January 6, 2014James r. McGraw January 24, 2014Hon. Stewart F. Hancock February 11, 2014Irwin Birnbaum March 5, 2014Edward D. Brown, Jr. March 6, 2014Ferdinand L. Picardi April 2, 2014Hon. John F. Lawton April 9, 2014Carl. Dengel, Sr. April 16, 2014Karen DeCrow June 6, 2014

We Remember …As 2014 winds down, we wish to take a moment to remember those members of our profession who passed away this year. The annual Memorial Observance held by the Onondaga County Bar Association will be held in February, 2015 (date TBD) in the Ceremonial Courtroom of the Onondaga County Court House.If you are aware of any other attorneys or judges who we may have missed who should be remembered at this ceremony, please contact Peggy Walker at the Bar Association – 579-2582.

John J. Caswell July 14, 2014Hon. Neal P. McCurn September 7, 2014Jean V. Erickson October 3, 2014James E. Wilber December 5, 2014richard E. Gordon December 18, 2014

The Board of Trustees of the Onondaga County Bar Foundation approved new officers and named four new trustees to the organization. The Nominating Committee was chaired by Board member Walter Kogut. New to the Board in 2015 are Henry Melchor, Nancy Pontius, Heather Sunser and Suzanne Galbato. The following are the Officers & Trustees for OCBF in 2014:

Names New Officers and Trustees

PRESIDENT Stuart J. LaRoseVICE PRESIDENT Ellen S. Weinstein

SECRETARy Mary Keib SmithTREASURER Jillian L. McGuire

In 2012 the Foundation added to its mission, “to aid members of the legal profession in Onondaga County who may be ill, incapacitated, indigent or otherwise in need, and/or their dependents who are in need as a result of the member’s illness, incapacity, indigence or death.” This is in addition to the traditional mission of the Foundation which is to improve and promote:

• the administration of justice;• service to the public and the legal community; • equal access to the legal system for all;• professional ethics and responsibility;• legal research and education; and• dissemination to the public of information about the legal system and the rule of law.

John A. Cirando Hugh C. Gregg II Victor J. HershdorferJanet M. IzzoHon. Deborah H. Karalunas

Thomas J. Lynch David J. Magnarelli Maureen E. ManeyHon. Langston C. McKinneyWilliam R. MorganDavid M. Pellow

TRUSTEES

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cOMMERcIAl lITIgATION Jason C. Halpin, Esq.

Contractual Indemnification Bero Family Partnership, et al. v. Elardo, et al., No. CA 14-00390, 2014 N.Y. Slip. Op. 07800 (4th Dep’t Nov. 14, 2014). Plaintiff Bero Family Partnership sold Donald Elardo property on which contaminants were stored in underground storage tanks by a prior owner. Pursuant to the sale contract, Elardo executed

and delivered a note and mortgage to certain individual members of the Partnership. The note contained an indemnification clause tied to any required future removal “of any hazardous substance.” After plaintiffs were required by the State to cleanup detected petroleum contamination, they commenced an action against Elardo for indemnification. The Appellate Division affirmed the finding of the lower court that Plaintiffs established entitlement to judgment, rejecting Elardo’s contention that the term “hazardous substances” in the indemnification provision was intended not to include petroleum because the statutory definition of “hazardous substance” does not include petroleum. The Appellate Division also agreed with the lower court’s rejection of Elardo’s contention that a pre-remediation discharge of the mortgage extinguished his obligations, as well as his argument that, because the indemnification provision was intended to benefit only certain partners individually, his obligations are limited.Statute of FraudsStevens v. Perrigo No. CA 14-00734, 2014 N.Y. Slip. Op. 08195 (4th Dep’t Nov. 21, 2014). Plaintiff commenced action seeking damages for breach of contract and fraudulent inducement arising from negotiations to purchase defendant’s accounting practice. The parties’ original agreement provided that the purchase price would be paid in monthly installments over a period of five years, but the agreement was revised to provide that if plaintiff, inter alia, transferred the accounting practice or ceased to practice for a period of 30 days, plaintiff would owe defendant the remainder of the purchase price in a lump sum. In affirming the lower court’s denial of defendant’s motion to dismiss, the Appellate Division concluded, with respect to the argument that the alleged oral agreement between the parties is void and unenforceable pursuant to the statute of frauds, that the revisions made it possible for plaintiff to fully perform the alleged agreement within the first year. Witness DisclosureMcleod v. Taccone No. CA 14-00541, 2014 N.Y. Slip. Op. 08178 (4th Dep’t Nov. 21, 2014). In negligence action based on injuries suffered as a result of plaintiff ’s bicycle colliding with a motor vehicle driven by defendant, plaintiff moved to preclude testimony by a nonparty witness based on an improper disclosure of the witness. In affirming the denial of the motion, the Appellate Division held that the burden rests with the movant to establish either a willful failure to disclose the existence of the nonparty witness or prejudice. The court held that plaintiff failed to satisfy this burden because the proof showed that the disclosure delay was the result of an oversight rather than bad faith, and plaintiff was afforded the opportunity to depose the witness.

pERSONAl INJURYAlan R. Peterman Esq.

Court of Appeals Reaffirms Notice to Broker is Not Notice To Insurance Carrier Strauss Painting, Inc. v. Mt. Hawley Insurance Co. No. 203, 2014 N.Y. Slip. Op. 08214 (Nov. 24, 2014). The issue in Strauss was whether a contractor’s notice of a claim to its insurance broker was sufficient to place the insurance carrier on notice

of the claim. Plaintiff had contracted with the Metropolitan Opera to perform maintenance work on the window washing system at the Metropolitan Opera House. The contractor obtained CGL coverage from Defendant through the contractor’s insurance broker. An employee for a

from page 9NY Civil Practice Case Notes subcontractor hired by the plaintiff was injured on the job when he fell

off a ladder attempting to access the roof. The plaintiff gave notice of the accident to its insurance broker. Two months later, the employee sued the Metropolitan Opera and plaintiff for negligence, violations of the Labor Law and loss of consortium. The Metropolitan Opera forwarded a copy of the summons and complaint to plaintiff and the subcontractor, with a copy to its CGL carrier, demanding defense and indemnification from the plaintiff. Several weeks later, the Metropolitan Opera’s insurance carrier sent a letter to the contractor, subcontractor and insurance broker repeated the demand for defense and indemnification. Two weeks later (and four months after the accident), defendant received notice of the claim from the insurance broker. Defendant disclaimed based on late notice.Plaintiff sued defendant seeking a declaration that defendant was obligated to defend and indemnify it against a third-party action filed by the Metropolitan Opera against plaintiff. The trial court and Appellate Division found that plaintiff ’s notice to defendant was untimely as a matter of law. Plaintiff appealed arguing that, under Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 416 N.Y.S.2d 559 (1979), plaintiff had followed its normal and customary practice of providing notice of the occurrence to its insurance broker with the expectation that the broker would provide notice to the defendant. In Mighty Midgets, the Court of Appeals had held, under the facts of that case, timely notice of an occurrence to the insurance broker was timely notice to the insurance carrier.The Court of Appeals rejected plaintiff ’s argument stating that “[w]e have long held that a policyholder’s timely notice to a broker does not ‘constitute notice contemplated by the [insurance] policy since a broker is m normally the agent of the insured and notice to the ordinary insurance broker is not notice to the liability carrier.’” 2014 N.Y. LEXIS 3347, *20, citing Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimmons Corp., 31 N.Y.2d 436, 442, 340 N.y.S.2d 902 n. 3 (1972). The Court distinguished Mighty Midgets on its facts relying on the extremely close relationship between the broker and the carrier, the fact that the broker solicited customers to purchase the carrier’s coverage, the fact that the broker collected premiums for the carrier and the fact that the policy named the broker as the carrier’s agent. The Court held that, given the inexperience of the clamant in matters of insurance coverage, the extremely close relationship between the broker and the insurance carrier reasonably caused the claimant to rely on the broker’s advice to notify the medical insurance carrier, rather that the liability carrier. None of those factors were present in Strauss. The broker was the long time broker for the plaintiff. The plaintiff was a sophisticated business with extensive experience in construction and construction insurance issues. The insurance carrier did not hold the broker out as an agent of the insurance carrier for the purpose of notice. Absent the factors that existed in Mighty Midgets, the notice provided to the broker in Strauss was insufficient to fulfill the plaintiff ’s obligation under the policy to provide such notice to the insurance carrier as soon as practicable. Defendant properly disclaimed based on late notice. The lesson to be taken from Strauss is that an insured should always provide notice of an occurrence or a claim to the insurance carrier directly. Do not rely on the broker to provide such noticeImpeachment of Plaintiff’s Credibility During Cross ExaminationYoung v. Lacy. 120 A.D.3d 1561, 993 N.Y.S.2d 222 (4th Dep’t, Sept. 26, 2014). The issue in Young was whether the trial court, in a personal injury action, properly precluded the defense attorney from questioning plaintiff about alleged inconsistencies in her federal tax returns. The defense attorney had a good faith basis to believe that the plaintiff had misrepresented her filing status on her tax returns to obtain a tax credit to which she would not have otherwise been entitled. The trial court precluded the defense attorney from asking such questions, holding that because plaintiff had not been asked about the issue during her deposition, the defense counsel was attempting to “ambush” the plaintiff at trial. On appeal, the Appellate Division reversed.The Appellate Division did not address the trial court judge’s ruling that the defense attorney was attempting to ambush the plaintiff. The court did hold that questions concerning alleged inaccuracies in the plaintiff ’s tax returns were proper cross-examination of the plaintiff. “We conclude that evidence that plaintiff may have committed tax fraud has ‘some tendency

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The Tri-County Bars Judicial ScreeningThe Judicial Screening Committee, which is compromised of selected members from the Bar Associations of Erie, Monroe and Onondaga Counties, has sent a letter to Governor Andrew Cuomo with the Committee’s ratings for seven nominees under consideration for Associate Judge of the NYS Court of Appeals vacancy created by the retirement of Judge Robert S. Smith.The committee conducted personal interviews with each candidate on December 10, 2014 at SUNY Albany. Together with an evaluation of each candidate’s background, written submissions, judicial temperament, legal ability and experience, legal writing, character and fitness, work ethic and impartiality, the Committee rated the nominees as follows:

Hon. Eugene M. Fahey Highly QualifiedHon. Erin M. Peradotto Highly QualifiedStephen P. Younger, Esq. Highly QualifiedMary Kay Vyskocil, Esq. Highly QualifiedRowan D. Wilson, Esq. Highly QualifiedHector Gonzalez, Esq. QualifiedKathy Hirata Chin, Esq. Qualified

HOLIDAy CLOSINGS: M. Dolores Denman CourthouseThe Appellate Division, Fourth Department has announced the the M. Dolores Denman Courthouse will be closed on Thursday, December 25 and Friday, December 26, 2014. Filing dealdlines that fall on these dates are extended to Monday, December 29, 2014, the next succeeding business day, by operation of law.Cora A. Alsante Named to PACE CNy Board of Trustees

Cora A. Alsante a partner at the Syracuse, NY-based firm of Hancock Estabrook, LLP, was recently named a member of the Board of Trustees for PACE CNY. PACE CNY, a collaborative effort of Loretto in cooperation with St. Joseph’s Hospital Health Center, is a managed care program that offers eligible elderly people a complete range of health and health-related services as an alternative to nursing home care. Ms. Alsante focuses her practice on estate

planning, trusts, planning for the elderly and disabled, and estate and trust administration. She represents individuals and assisted living and skilled nursing facilities. Looking to Stock your Bookshelves?Are you looking for some vintage legal books to fill out your office/waiting room bookcases?As a result of the OCBA move, we left behind the libraries you see photographed here. They remain in the offices of the VLP at the former OCBA suite on the 10th floor of the State Tower Building.

If you’re interested in some/all of these books, please contact Executive Director Jeff Unaitis (junaitis@onbar.org) to make arrangements, to view the books or to take them away first come, first served. Any remaining books will be recycled – but perhaps you can put them to a better use!

Attorney Position | Rochester, Ny | Mental HygieneDecember 26, 2014 Application Deadline | This position will cover the Rochester MHLS office and surrounding counties, and will primarily provide representation of sex offenders alleged to be suffering from a mental abnormality in civil commitment proceedings, including trials. Duties include but are not limited to: presenting cases before administrative tribunals and courts; researching and analyzing legal questions and issues and preparing confidential reports, memoranda, legal papers, and briefs; interviewing litigants, witnesses and other parties to administrative and judicial proceedings; and drafting correspondence related to case inquiries. Extensive travel without reliance on public carriers is necessary for this position.Application for Employment form obtainable from any administrative office in a court building or on the web at www.nycourts.gov/careers/UCS5.pdfSatter & Andrews, LLP Congratulates Ross P. AndrewsThe Firm will continue as SATTER LAW FIRM, PLLC representing Unions and Working People in labor and employment matters and disability claims at 217 S. Salina St., 6th Floor | Syracuse, New York 13202 | Tel.: (315) 471-0405 | satterlaw.com. We welcome Sean P. Moran* to the Firm. *Bar admission pending.Hancock Estabrook Attorney Receives Certification

Marguerite A. Massett, Esq. recently received her Certification in Healthcare Compliance (CHC) with the Compliance Certification Board. Ms. Massett is the Leader of the Hancock Estabrook Health Care Practice. She regularly advises multi-provider health systems, hospitals, nursing homes, physicians, physician practices, nurses, laboratories and other health care professionals and organizations on variety of

legal issues. Individuals who have received a CHC designation by the Compliance Certification Board have obtained a significant level of knowledge relating to healthcare industry regulations and compliance processes. Aaron M. Thorpe | Title Agent Licensing Application MemoAll title agents, examining counsel, and closing attorneys must submit their application to the Department of Financial Services (DFS) on or before January 1, 2015 in order to act in any of these capacities thereafter. The new regulations prohibit payment to anyone but a licensed title agent. If you are compensated in for services related to title insurance you must meet the deadline to continue to billing.Online Application: www.dfs.ny.gov/insurance/licensing/applications/title_indiv.pdfAs an attorney in good standing you will not need to complete the section re: experience as a title agent, but must provide a Certificate of Good Standing from the Appellate Division Department of Admission with which you are registered. There is no fee to obtain the certificate and there is an anticipated turnaround time of five (5) business days. For those registered in the 4th Department the online request form for the certificate can be found at: www.nycourts.gov/courts/ad4/clerk/attymttrs/COGS.htmlIf you have any questions please feel free to contact me at any time by phone at 315-422-6031 or via email at aaron.thorpe@vgrti.com.

LEGAL BRIEFS BRIEFS BRIEFS LEGAL

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Jane Raven, ADA in the Onondaga County District Attorney’s Office was our guest speaker at the November 13, 2014 Paralegals Luncheon meeting. She presented on the paralegal’s role in the prosecution of criminal cases. Jane aptly provided a comprehensive list of items to keep in mind when acting as a case manager in criminal matters. She advised above all else to be proactive and

be organized! Document every action taken on a file and create a system for everything so that nothing falls through the cracks. Assist the supervising attorney on the case in developing a similar system for tracking action items.Prior to joining the DA’s Office, Jane was an associate at Gilberti Stinziano Heintz & Smith in the civil litigation department. During law school, Jane worked as intern to the Honorable John C. Cherundolo, where she reviewed motion papers and drafted decisions. In addition, during law school she was an extern at the United States Attorney’s Office in the Civil Division; and she worked for Sidney P. Cominsky on plaintiff ’s cases.Jane graduated from Albion College in Michigan with a B.A. and from SUNY Cortland with a M.S. in education. She received her J.D. from SU College of Law and an M.P.A. from the Maxwell School at Syracuse University.December 11, 2014 Holiday Luncheon

Everyone enjoyed the good food and camaraderie at our annual Holiday Luncheon. Jean Swanger led us in a couple rounds of “holiday words” and “legal terms” Bingo, the winners of which had their choice of several door prizes that were donated by members of the Paralegals Committee. In addition, we had the customary door prize raffles and 50/50 raffle. Jeff Unaitis was the winner of the 50/50 raffle and very graciously donated his winnings to be used for purchasing grocery gift cards for the adopted P.E.A.C.E.,

OCBA Paralegals CommitteeContributors | OCBA Paralegals Executive Committee

Inc. family and the adopted veteran.A special presentation of Certificates of Appreciation and gift cards were awarded to the following people for their “untiring effort and constant support of [OCBA Paralegals Committee] activities” - Cynthia Wade (formerly of Hancock & Estabrook); Mae Slaunwhite (Macht, Brenizer & Gingold, P.C.); Marie Norkett (OneGroup f/k/a Benefit Consulting Group); and Jennifer Carr (Mackenzie Hughes [not pictured]).Thanks to everyone who did the shopping for our adopted family from P.E.A.C.E., Inc. and for the veteran. They will certainly experience a very enjoyable holiday! Additional thanks goes to all who donated door prizes. A special thank you to Faye Williams and Cynthia Wade who supplied homemade cookies for dessert. We are very fortunate to have such a supportive group of Paralegal Committee members!Upcoming Monthly Luncheon ProgramsThe OCBA Paralegals Committee monthly luncheon meetings will be held at The Spaghetti Warehouse, 12:00-1:00PM unless otherwise notified.January 8, 2015 – Jean Swanger and Karen Hawkins, Paralegals with the firm of Gilberti Stinziano Heintz & Smith, P.C. will present on their paralegal duties in the area of Environmental Law.please save the following dates for 2015 luncheon programs:

February 12 | March 12 | April 9 | May 14 | June 11Please invite your bosses, legal administrators and co-workers. The cost for lunch is $11 for members and $12 for non-members. Reservation deadline is 4:00 pm the day before the luncheon. Please RSVP Jean Swanger: jswanger@gilbertilaw.com or 442-0174. E-mails are preferred. Stay tuned for further information regarding upcoming luncheons. If you have suggestions for guest speakers or presentation topics, please do not hesitate to contact any member of the Executive Committee.

Kathrine Cook kathrinecook0@gmail.comCynthia Wade cewade@twcny.rr.comChristie Van Duzer cvanduzer@wnylc.comRanette Releford ranettereleford@gmail.comFaye Williams frwilliams2@gmail.comJean Swanger jswanger@gilbertilaw.comKaren Hawkins khawkins@gilbertilaw.com

Paralegal of the Month ProgramThe Executive Committee would like to institute a “Paralegal of the Month” program and is seeking nominations for selection beginning January 2015. More information to follow.Looking for Ideas What would you like to see on the Paralegals Section of the OCBA website? Please email Karen Hawkins.The Paralegals Executive Committee Could Use your HelpThe Executive Committee meeting is scheduled for December 3, 2014 beginning at noon at Gilberti Stinziano Heintz & Smith, P.C., 555 East Genesee Street, (parking is available in front of the building on East Genesee Street, at the rear of the building at 510 East Fayette Street, and the parking lot between the GSHS offices and Hamilton White House). EC Chair Kathrine Cook extends an invitation to paralegals who would like to find out more about serving on the Executive Committee. If you are interested in attending the EC meetings to share your ideas for upcoming programs and ways to better serve the paralegal members, please contact Kathrine Cook.

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to show moral turpitude to be relevant on the credibility issue.’” 993 N.Y.S.2d at 224. The court did point out, however, because the accuracy of the plaintiff ’s tax returns was a collateral issue, the defense attorney would be bound by plaintiff ’s answer and could not introduce collateral evidence to impeach that testimony. The court, finding that plaintiff ’s credibility was central to several issues in the case, reversed the trial court and remanded the action back for a new trial. Negligent Spoliation of Evidence Precludes Affirmative DefenseSimoneit v. Mark Cerrone, Inc., et al., No. CA 14-00370, 2014 N.Y. Slip. Op. 07783 (4th Dep’t Nov. 14, 2014). In Simoneit, the Appellate Division considered the appropriate sanction for defendant’s spoliation of evidence. Plaintiff was a school bus monitor who was injured when the bus, stopped to make a left hand turn, was struck by a front end loader owned by the defendant. Plaintiff sued defendant which, several months after plaintiff filed a trial note of issue, moved for leave to serve an amended answer interposing several new affirmative defenses based on failure of the brakes on the loader. The trial court granted defendant’s motion. On appeal, the Appellate Division reversed that portion of the trial court’s decision, finding that defendant had unduly delayed in filing the motion to serve an amended answer and had not offered any excuse for the delay. The Appellate Division also held that defendant was precluded from raising the defense based on spoliation of evidence. After the accident, defendant had replaced the allegedly defective brake calipers and had discarded those calipers. The Appellate Division found that a court “may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than willfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] . . . was on notice that the evidence might be needed for future litigation.” The court went on to hold that the fact that defendant’s employee had driven the loader into a school bus, and the fact that several children were removed from the bus by ambulance, were sufficient to place the defendant on notice that the calipers would be required for future litigation. Denial of the defendant’s motion for leave to file an amended answer to incorporate a defense involving the discarded calipers was an appropriate sanction for its disposal of those calipers.

MUNIcIpAl lAw/ZONINgThomas A. Carnrike, Esq.

Court of Appeals Clarifies Standard for Off-Street Parking VarianceMatter of Colin Realty Co., LLC v. Town of North Hempstead. No. 150, 2014 N.Y. Slip. Op. 07008 (Oct. 16, 2014). Resolving conflicting language in its prior decisions, the Court of Appeals ruled that a municipal zoning board of appeals should evaluate

requests for off-street parking variances by apply the standards for an area variance so long as the parking is connected to a permitted use. The Court of Appeals had not addressed the applicable zoning standard for off-street parking variances since 1972, or almost twenty years before the current statutory criteria for evaluating use and area zoning variances were established. The distinction is a critical one, as an applicant for a use variance faces a significant higher burden. The case arose from an application to convert a vacant storefront, the former site of a gift shop, into a 45 seat restaurant. The property was a non-conforming use which had no off-street parking or loading zones. Because the current Town Code required a restaurant of that size to have 24 off-street parking spaces and a loading zone, the applicant applied for variances from the parking and loading regulations along with its conditional use permit for the restaurant. Two nearby municipal parking lots, as well as adjacent on-street street parking, were intended to offset the parking issue. Treating the application as a request for an area variance, the Town Zoning Board of Appeals concluded that the benefit to the applicants of granting the variances outweighed the detriment to the community, noting that

from page 11NY Civil Practice Case Notes a parking variance would be necessary to operate any business on the

premises. The ZBA also relied on a traffic analysis by the applicant’s engineer which concluded that “ample, if not excess, parking” was available in the surrounding area.The owner of the neighboring property, a multi-tenant retail building, disagreed and commenced an Article 78 proceeding, alleging that existing public parking was overwhelmed and inadequate to accommodate the proposed restaurant use. Relying on language in the Court of Appeals determination in Matter of Off Shore Rest. Corp. v. Linden, 30 N.Y.2d 160 (1972), Petitioners argued that the more stringent use variance standard applied, and that an applicant seeking a parking variance must demonstrate that applicable zoning regulations have caused unnecessary hardship which prevents a reasonable return from any use of the property. Both the trial court and the appellate division upheld the ZBA determination and citing the Court of Appeals determination in Matter of Overhill Bldg. Co. v. Delaney, 28 N.Y.2d 449 (1971), held that the area variance standard controlled. In considering the matter, the Court of Appeals reviewed each of its prior decisions in detail before concluding that to the extent that Off Shore Rest. Corp. implied that a use variance was required for off street parking was merely dicta, and in any case preceded the statutory definition of “area variance.” Comparing off-street parking requirements to lot size or set back restrictions, the Court of Appeals concluded that a request for a parking variance fit squarely within the criteria of an area variance. Collateral Estoppel/Zoning/General Police PowersJones v .Town of Carroll, No. CA 14-00282, 2014 N.Y. Slip. Op. 07780 (4th Dep’t Nov. 14, 2014). The plaintiff, the owner of a construction and demolition debris (“C&D”) landfill, has been engaged in litigation with the Town since 2005. The Town had approved a use variance in 1989 which allowed a fifty acre parcel to be used as a C&D landfill upon receipt of a permit from the New York State Department of Environmental Conservation (“DEC”). A DEC permit was issued allowing for landfill operation on less than two acres of the property. In 1996, the DEC permit was amended to allow a one-acre expansion of the landfill. In 2005, the Town learned that a potential buyer of the property had applied for a DEC permit to operate a landfill on the entire fifty acre parcel, and enacted a local law which amended the zoning code to eliminate landfills as a specially permitted use and barring any further expansion of existing landfills. Litigation ensued, and in 201 the Court of Appeals held that the amended law did not apply to the plaintiff, since plaintiff already held a vested right to operate a C&D landfill on the entire fifty acre parcel. In anticipation of an unfavorable decision by the Court of Appeals, the Town had also enacted a new local law in 2007 which banned all new landfills or other solid waste management facilities within the Town, and restricted existing landfills to the limits of their current DEC permit. Therefore, despite its success at the Court of Appeals, Plaintiff was still barred from expanding its operations to the full parcel. An amended complaint was filed, and Plaintiff moved for summary judgment on the grounds of collateral estoppel. The Supreme Court granted the motion. On appeal by the Town, the Appellate Division reversed and remitted the matter to the Supreme Court. Although the 2005 and 2007 law both regulate landfill operations, the laws were not identical and involved different applications of the Town’s regulatory authority. The 2005 law was a zoning regulation which altered the treatment of landfills within a particular zoning district. The 2007 law was a generally applicable, Town-wide ban on commencement or expansion of landfills, enacted under the Town’s police powers for the proffered purpose of public safety and welfare. Therefore, collateral estoppel did not apply, and summary judgment was denied.Article 78/MootnessMatter of Graf v. Town of Livonia. No. CA 13-02066, 2014 N.Y. Slip. Op. 07918 (4th Dep’t Aug. 8, 2014). Petitioners commenced an Article 78 proceeding challenging the Town Zoning Board of Appeals’ determination that a sawmill project was a permissible agricultural and farming operation as defined by the Town Code, following an unsuccessful administrative

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F R O M T H E E D I T O R I A L B O A R D

Hon. John J. BrunettiClifton C. Carden, IIISally Fisher CurranNicholas J. DeMartinoAnne Burak DotzlerKaren M. HawkinsJoseph E. Lamendola

Michael G. LanganJames H. MessengerThomas E. MyersNancy L. PontiusChele StirpeJeffrey A. UnaitisJames M. Williams

To advertise in the Bar Reporter, call the Onondaga County Bar Association at 315.579.2578.

The Editorial Board encourages members to submit articles for publication concerning issues presented in each edition or other issues related to the legal community. Submissions should sent to OCBA, Attention Bar Reporter or Email cstirpe@onbar.org. John A. Cirando, Editor Emeritus

Editorial Board Members:

... from page 14appeal. The petition was denied by the Supreme Court. On appeal, the Appellate Division dismissed the proceeding as moot, since petitioners had failed to seek injunctive relief or make any other attempts to preserve the status quo during the administrative appeal process, the Article 78 proceeding, or during the pendency of the appeal, and the saw mill project was complete and operational at an estimated cost of $100,000.Constitutionality/Void for VaguenessMatter of Turner v. Municipal Code Violations Bureau of City of Rochester, CA-14-00572, 2014 N.Y. Slip. Op. 08156 (4th Dep’t Nov. 21, 2014) The Appellate Division struck down a municipal prohibition on “outdoor storage” as unconstitutionally void for vagueness. The ordinance banned “storage of any materials, merchandise, stock, supplies, machines and the like that are not kept in a structure having at least four walls and a roof, regardless of how long such materials are kept on the premises” in all zoning districts except for certain designated commercial areas. The Appellate Division concluded that the ordinance failed both parts of the two-factor test for assessing vagueness challenges. First, the ordinance “gave ordinary people virtually no guidance on how to conduct themselves in order to comply with it, and the language used in the ordinance makes it difficult for a citizen to comprehend the precise conduct that is prohibited.” Second, the Appellate Division concluded that the ordinance gave no clear standards for enforcement, and therefore impermissibly granted “virtually unfettered” discretion to local codes officials.

NY Civil Practice Case Notes Oneida Nation Enterprises, LLC. Oneida, New york

Legal Department - Senior Paralegal

We are pleased to announce this exciting and challenging full time position within the Legal Department.

The Senior Paralegal will assist the General Counsel, Deputy General Counsel and attorneys in various legal matters which include: general corporate work and transactional assistance, drafting and reviewing legal documents, and performing legal research and legal analysis. Additional responsibilities include: organizing and maintaining information and files and coordinating with various departments to expedite legal projects.

Ideal candidate will possess the following minimum qualifications: 3Associate’s degree in a related field and a Paralegal Certificate; Bachelor’s

degree preferred with three years of paralegal experience.3Experience with maintenance of corporate books and records, and con-

tract drafting and review.3Proficient in legal research, Westlaw, Lexis-Nexis and internet services.3Strong verbal and interpersonal communication skills.3Proficient in MS Word, Excel, Access, PowerPoint and legal document

software.3Excellent judgment and decision making skills.3Ability to maintain complete confidentiality regarding Nation/depart-

mental activities.3Excellent writing, proofreading and spelling skills.3Ability to prioritize and organize multiple projects with attention to

detailed work.3Must have flexibility regarding work schedule and must be available to

work overtime.

Oneida Nation Enterprises, LLC offers stability, competitive wages, outstanding benefits including medical, dental, vision, paid time off, 401K retirement plan, flexible spending account and many additional employee discounts and amenities.

Learn more and apply online at www.oneidaindiannation.com/about/careers or www.turningstone.com/careers.

On the evening of Tuesday, December 9th, the Young Lawyers Section, despite the impending Nor’easter, held its inaugural CLE at the new OCBA offices. Titled Reality 101:

Town & Village Courts, the program provided an opportunity for newer attorneys to glean town and village court practice tips and insights from a range of practitioners. Hon. James P. Murphy presented an overview of the court system and Hon. David S. Gideon followed with a discussion of civil matters in the courts. Later in the evening, attendees heard perspectives on criminal practice in the town and village courts from ADA Allison Feinberg and Ken Moynihan, Esq. The Young Lawyers Section extends a special thanks to all of our presenters and each of the 25 attendees who filled the room, one traveling all the way from Geneva! Future topics for YLS-sponsored CLE will be discussed at the section’s next meeting on Thursday, January 15, 12:00 - 1:00 pm at the OCBA new offices.

SECTION UPDATE

D i D yo u k n o w …OCBA receives calls every week from clients who are trying to locate documents or files once held by their attorneys, after that attorney has moved, stopped practicing or passed away.

If you know where your files will go after you’re gone, Contact Peggy Walker at 579-2582or email pwalker@onbar.org

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