barnews · 2020. 12. 23. · the bench and bar, facilitate public service and access to justice for...

It is hard to capture in words what a stressful, disorienting, and chaotic year this has been. In nine short months, our personal and professional lives have been turned upside down and rattled around in ways that were once unimaginable. While there is cause for optimism on the horizon, it looks like we will have to wait just a little longer before things get back to normal.

As 2020 draws to a close, I would like to take this opportunity to publicly thank our Executive Director, Marquita Rhodes, for her extraordinary work in keeping the Albany County Bar Association functioning during this challenging year. A difficult task in even the best of times, this year taxed our resources to the limit. Without

Marquita’s inventiveness, determination, and creativity our programming would have ground to a halt. Almost single handedly, Marquita kept us going and developed new models for the delivery of services that will pay dividends well into the future. She deserves our heartfelt thanks.

In addition, I would like to thank the Executive Committee and the Board of Directors who graciously gave of their time, experience, and wisdom to ensure that the Association continued to provide valuable services to our membership. I am especially thankful for the leadership of Will Little, Justice Christina Ryba, Judge Ryan Donovan, Judge Sherri Brooks, Mishka Woodley, Deborah Kearns, Lorraine Silverman, Ben Hill, Christina Meier, and Shellee Daniel who worked so hard in the creation of the Racial Justice Committee. The Committee quickly answered the call to provide a forum for the legal community to enter the dialogue about race and justice in Albany County at a very volatile time; while their work has just begun, it is off to an auspicious start.

I would like to thank everyone who participated in our committees, presented at a CLE program, or volunteered to speak at the various virtual forums held throughout the year. Your willingness to engage this year is deeply appreciated.

President’s Message

NOV. / DEC. 2020

A Publication of the Albany County Bar Association

ALBANY COUNTY BAR ASSOCIATION NEWSLETTER

BarNews

Michael P. McDermott, Esq. ACBA President 2020 O’Connell and Aronowitz • [email protected]

albanycountybar.org

W H AT ’ S I N S I D E

New Members ..............................2

Committees & Co-Chairs ................3

Matrimonial Law Update ...............4

Bench & Bar in the News ..............6

Immigration Law Update ...............7

The Practice Page .........................8

Labor and Employment

Practice .......................................9

Classifieds ...................................9

Surrogate’s Court Proceedings

and Updates ..............................11

The Joy of Family Law .................13

I Can Get It for You Wholesale! ....14

A Holiday Inventory .....................16

A New Challenge ........................17

Membership Renewal Forms ........19

continues on p.2 �

M I S S I O N S TAT E M E N T

THE 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.

President Michael P. McDermott

President-Elect Elizabeth J. Grogan

Vice President Mathew P. Barry

Treasurer Hon. Ryan T. Donovan

Secretary William T. Little, Jr.

Immediate Past President Daniel J. Hurteau

Board of Directors Kathleen A. Barclay

Lorraine R. Silverman Eileen M. Stiglmeier Caitlin J. Monjeau Benjamin S. Clark Amanda Kuryluk Benjamin Hill

Mishka A. Woodley Jon Crain

John F. Harwick Hon. Kimberly A. O’Connor Alicia Ouellette ex officio

Hon. Eugene Devine ex officio

Chair of Admissions Ryan E. Manley

Executive Director Marquita Jo Rhodes

ALBANY COUNTY BAR ASSOCIATION 2020 Officers

Welcome New Members!

Are you ready to join an organization steeped in rich legal history and tradition? For more than 120 years, the Albany County Bar Association has represented the interests of attorneys and judges practicing or living here in Albany County. Our mission is to promote collegiality among the bench and bar, facilitate public service and access to justice for all and to offer programs, benefits and services which enhance the skills of our members.

Please visit us online albanycountybar.org to join today.

2 BarNews October 2020 • Albany County Bar Association

Finally, I would like to thank all of you. Despite not being able to gather in person, the attendance at our virtual events has been outstanding and the level of membership engagement has been exceptional. I look forward to a return to our in-person events and the opportunity to see you all.

Until then, stay safe, stay sane and Happy Holidays!

MICHAEL P. MCDERMOTTACBA President 2020

PRESIDENT’S MESSAGE (continued from p.1)

Nevin Smith Andrew Bigness

albanycountybar.org 3

APPELLATE MOOT COURT PROGRAM

ATTORNEY GRIEVANCE COMMITTEEChair Anthony Luisi, Esq. • [email protected]

ATTORNEYS IN PUBLIC SERVICE COMMITTEECo-chair Patrick Jordan, Esq. • [email protected] Aaron Lawson, Esq. • [email protected]

CONTINUING LEGAL EDUCATION (CLE) COMMITTEE Co-chair Benjamin Clark, Esq. • [email protected] Co-chair Jon Crain, Esq. • [email protected]

COA DINNER COMMITTEE Co-chair E. Hyde Clarke, Esq. • [email protected] Co-chair James Peluso, Esq. • [email protected]

DIVERSITY INTERNSHIP COMMITTEECo-chair Mishka Woodley, Esq. • [email protected] Co-chair Daniel Hurteau, Esq. • [email protected]

GOLF LEAGUEChair Campbell Wallace, Esq. • [email protected]

JUDICIAL QUALIFICATIONS COMMITTEEChair Kathleen A. Barclay, Esq. • [email protected]

MEMORIAL SERVICE COMMITTEEChair BJ Costello, Esq. • [email protected]

MOCK TRIAL COMMITTEEChair Brenda Baddam, Esq. • [email protected]

NEWSLETTER COMMITTEEChair John Harwick, Esq. • [email protected]

PRO BONO ADVISORY COMMITTEEChair Lorraine Silverman, Esq. • [email protected]

RACIAL JUSTICE COMMITTEE Chair William T. Little, Jr. • [email protected]

SMALL AND SOLO FIRM COMMITTEEChair Sarah Gold, Esq. • [email protected]

YOUNG LAWYERS COMMITTEECo-chair Mackenzie Kesterke, Esq. • [email protected] Co-chair Elizabeth Yoquinto, Esq. • [email protected]

COMMITTEES & CO-CHAIRS

Want the most from your membership? Committee work is a great way to get and stay connected, as well as gain exposure within the legal field and beyond. Let us know your interest in a particular committee or feel free to contact the co-chairs directly to start a conversation. Please visit us online albanycountybar.org to read more about all the different Committees, many by Presidential appointment.

Advertising Policy For BarNewsAdvertising & articles appearing in the ACBA Newsletter does not presume endorsement of products, services & views of the Albany County Bar Association.

2020 RATES AND DEADLINES: Albany County Bar Association Rates: Member: $50 in our classified section (approximately 30-40 words) additional fees will be incurred as the number of words increase. Non-member: $100 in our classified section (approximately 30-40 words) additional fees will 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; half page (7.5" x 5") = $375; Quarter page (3.5" x 5") = $300; Business card size (3.5" x 2 .5") = $200.

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 and inclusion is limited to ACBA Members. All notices must be submitted in writing. E-mail is preferable.

DEADLINE: The second Friday of the prior month. E-mail ad copy and remit payment to Albany County Bar Association, 112 State Street, Suite 545, Albany, NY 12207. We also take credit cards, call (518) 445-7691.

mailto:brendabaddam%40gmail.com%20?subject=mailto:mKesterke%40mclclaw.com?subject=


MATRIMONIAL LAW UPDATE

ATTORNEY AND CLIENT - WITHDRAWAL – CORONAVIRUS RISK TO ATTORNEY

In NYSBA Ethics Opinion 1203 (October 8, 2020), the Committee determined that the inquiring attorney, who was representing a client in an immigration court matter for which an in-person appearance was scheduled, under circumstances where the attorney stated that no coronavirus safety protocols or procedures had been established for such personal appearances, thus presenting a substantial health risk to the attorney and his family, may seek permission of the court to withdraw from the representation. The Committee reasoned that Rule 1.16(b) permits withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.”

CHILD SUPPORT - CSSA – SHARED CUSTODY – COUNT OVERNIGHTS, NOT HOURS

In Matter of Laskowsky v. Laskowsky, 2020 Westlaw 6163839 (3d Dept. Oct. 22, 2020), the father appealed from a February 2019 Family Court order, which dismissed his March 2018 petition seeking to terminate his child support obligation of $1,424 per month for 2 children (born in 2005 and 2008), as set forth in an agreement incorporated into a 2015 judgment of divorce. A November 2017 consent order granted shared custody, with primary physical custody to the mother. The father maintained, by counting the hours the children were technically in his custody (which included time spent with caregivers)

that the children were with him 52.1% and 53.4% of the time, respectively, and that this change of circumstances since the time of the judgment, warranted modification. The Third Department affirmed, holding that “the undisputed evidence demonstrated that, over a 14-day period, each parent had the children for a total of seven overnights,” and given the father was the party with the higher income, he “is the noncustodial parent within the meaning of the CSSA.”

CUSTODY - ADJOURNMENT DENIED; SOLE – CRIMINAL CHARGES; DRUG TREATMENT ABSCOND; LIMITED CONTACT WITH CHILD

In Matter of Jerry VV v. Jessica WW, 186 AD3d 1799 (3d Dept. Sept. 17, 2020), the mother appealed from a January 2020 Family Court order, which granted the father’s petition for custody of the parties’ child born in 2007, which he filed after the mother “was arrested for, among other things, violating probation” and pursuant to which he was granted temporary custody. At a November 2018 appearance at which the mother appeared by phone, Family Court scheduled a December 2018 hearing. Prior to the hearing, “the mother was unsuccessfully discharged from a drug treatment program, she absconded and a warrant was issued for her arrest.” The mother failed to appear, and her counsel requested an adjournment, which Family Court denied and proceeded with the hearing, in which the mother’s counsel actively participated. The Third Department affirmed, holding that Family Court did not abuse its discretion in denying an adjournment to the mother, given that the court “had previously adjourned the matter, found the excuse for the mother’s nonappearance suspect and knew that she was the subject of an outstanding warrant.” As to Family Court’s custody award to the father, the Appellate Division found the same to be in the child’s best interests, noting that “the mother had criminal charges pending, was unsuccessfully discharged from a drug treatment program, had absconded and was the subject of an outstanding arrest warrant.” In the previous

6 months while the child was in the father’s temporary custody, the mother called the child only 3 times.

CUSTODY - MODIFICATION – DISMISSAL REVERSED

In Matter of Edwin Z. v. Courtney v. AA., 187 AD3d 1352 (3d Dept. Oct. 22, 2020), the father appealed from an April 2019 Family Court order which granted the mother’s motion to dismiss, following the close of proof of his July 2018 petition. The father sought to modify a December 2016 consent order (joint legal custody, primary to mother and parochial school through 8th grade) pertaining to their then 14-year-old son, so as to allow the child to enroll in a public high school and to grant him increased custodial time, given his proximity to the proposed school. The Third Department reversed, on the law, and remitted for further proceedings, holding that the father established changed circumstances: the parents cannot agree upon public or parochial school; the agreement is silent on school after 8th grade; and the child expressed a preference for public school, while noting that Family Court er red in denying the father’s motion for a Lincoln hearing.

CUSTODY - MODIFICATION – DISMISSAL WITHOUT HEARING REVERSED; VIOLATION SANCTIONS IMPROPER

In Matter of Gerard P. v. Paula P., 186 AD3d 934 (3d Dept. Aug 13, 2020), the mother appealed from: (1) a May 2019 Family Court order which, upon the father’s October 2017 petition, held her in willful violation of a May 2017 consent order pertaining to the parties’ children born in 2003, 2004 and 2006; (2) an October 2018 order of the same court which granted the father’s motion to dismiss her amended modification petition; and (3) an April 2019 order of the same court which granted the father’s motion to dismiss her modification petition. The May 2017 order provided

Bruce J. Wagner • Whiteman Osterman & Hanna LLP • [email protected]

Loss of Employment During COVID-19: The Implications of Involuntary Termination on Child Support

continues on p.5�


for joint legal and equally shared physical custody, with final decision-making over the oldest child to the mother and the younger two children subject to the same by the father. The Third Department reversed, on the law, and remitted to Family Court for new hearings on all 3 petitions before a different judge, to be commenced within 45 days, with the May 2017 order to remain in effect pending said proceedings. The Appellate Division held that Family Court erred by dismissing the mother’s modification petitions without a hearing considering, among other things: the allegations regarding the parties’ inability to discuss a school safety issue; the father’s unwillingness to discuss medical decisions; and his unilateral cancellations of the children’s medical appointments, which the court found, if proven, “demonstrate *** a complete deterioration of the parents’ ability to coparent and the infeasibility of continuing joint legal custody.” The Third Department noted that Family Court impermissibly sanctioned the mother in the violation proceeding, by granting the father sole legal custody, without determining whether there had been a change in circumstances, and by failing “to engage in any discernible analysis of whether a modification was in the best interests of the children.”

EQUITABLE DISTRIBUTION - EGREGIOUS MARITAL FAULT

In Socci v. Socci, 186 AD3d 1289 (2d Dept. Sept. 2, 2020), the husband appealed from an October 2015 Supreme Court judgment, rendered upon a May 2015 decision made after trial of the wife’s October 2009 divorce action, which awarded the wife 75% of the net proceeds of the sale of the marital residence and 60% of the parties’ investment and bank accounts and the marital contributions to his deferred compensation plan. The parties were married in February 1987 and have 2 children. In March 2008, the husband pled guilty to 2 counts of assault 2d, kidnapping 2d and aggravated criminal contempt “related to incidents in which he beat the parties’ two daughters with a belt and chained them to a tree overnight, and forced the [wife] into his vehicle and tried to make her pour gasoline on herself.” The criminal convictions were affirmed on appeal. People v. Socci, 160 AD3d 904. The Second Department affirmed, holding that “Supreme Court providently exercised its discretion in finding that the defendant’s

sustained physical abuse of the plaintiff over the course of their marriage constituted egregious marital fault to be factored into the equitable distribution award ***.”

EQUITABLE DISTRIBUTION - PROFESSIONAL PRACTICE (50%); SEPARATE PROPERTY APPRECIATION – GRANTED (35%)

In Pace v. Pace, 187 AD3d 1443 (3d Dept. Oct. 29, 2020), both parties appealed from an October 2018 Supreme Court judgment which, among other things, awarded the wife a 35% share of the appreciation of the husband’s premarital rental properties and awarded the husband a 50% share of the wife’s audiology practice. The Third Department affirmed, noting that the husband: “tended to the [] properties regularly, maintaining them in good condition, making repairs as necessary and actively working towards ensuring that each rental space was utilized to its income potential”; and that the husband’s efforts were “facilitated by the wife’s indirect contributions in the home and in caring for the children.” As to the audiology practice, the Appellate Division found that: the wife obtained her Master’s Degree and Doctorate during the marriage and started her practice during the parties’ 22-year marriage; the husband was involved in the design, lay out and decorating of the wife’s practice locations and that he undertook greater responsibilities at home and with the children; and that he directly and indirectly contributed to the wife’s efforts in starting and growing her practice.

PROCEDURE – VIRTUAL HEARING – OBJECTIONS DENIED

To the same effect as A.S. v. N.S., 68 Misc3d 767 (Sup. Ct. N.Y. Co., Dawson, J., July 1, 2020) [see ACBA Newsletter September 2020 at 18], denying an objection to a virtual hearing, is C.C. v. A.R., 2020 Westlaw 5824118 (Sup. Ct. Kings Co. Sunshine, J., Sept. 30, 2020). Note that by finding that a virtual hearing is permissible where one of the remedies sought is criminal contempt, C.C. expresses a view contrary to S. C. v. Y. L., 67 Misc3d 1219(A) (Sup. Ct. N.Y. Co., Cooper, J., May 18, 2020) [see ACBA Newsletter September 2020 at 18].

BRIEFLY NOTED

Increased equitable distribution percentages were awarded to the party who contributed separate property to marital assets in Gorman v. Gorman, 2020 Westlaw 6277295 (1st Dept. Oct. 27, 2020).

Supreme Court’s order directing the husband not to demean the wife was found to be an unconstitutionally broad prior restraint upon speech and was modified upon appeal in Karantinidis v. Karantinidis, 186 AD3d 1502 (2d Dept. Sept. 23, 2020).

Supreme Court’s award of temporary maintenance and carrying charges constituted a double shelter allowance, resulting in modification and remittal in Capozzoli v. Capozzoli, 2020 Westlaw 6051566 (2d Dept. Oct. 14, 2020).

LEGISLATIVE AND COURT RULE ITEMS

Mediation Model ProtocolA Model Protocol for Matrimonial and Family Mediation was approved on September 15, 2020 by the Chief Judge and Chief Administrative Judge’s Statewide ADR Advisory Committee and has been distributed to Administrative Judges for consideration and use on a district by district basis.

Orders of Protection – Prohibit Remote Control of Connected DevicesPassed by both houses as of July 22, 2020, and if signed (delivered to Governor 10-30-20), various provisions of the Domestic Relations Law, Family Court Act and Criminal Procedure Law would be amended, effective immediately, to prohibit a party to an order of protection from remotely controlling any connected device of a person protected by such order. For example, FCA 842 would be amended by the addition of a new subdivision (h), which allows the court to direct a party “to refrain from remotely controlling any connected devices affecting the home, vehicle or property of the person protected by the order.” The term “connected device” is defined as “any device, or other physical object that is capable of connecting to the internet, directly or indirectly, and that is assigned an internet protocol address or bluetooth address.” A.10039/S.07926. •

MATRIMONIAL LAW UPDATE (continued from p.4)


THE LAW OFFICES OF PATRICK J. HIGGINS, PLLC has been listed in the 2021 Edition of U.S News & World Report and Best Lawyers® Law Firms in the field of plaintiffs’ medical malpractice (Metropolitan Tier 1) and plaintiffs’ personal injury litigation (Metropolitan Tier 2).

Mack and Associates, PLLC is pleased to announce that Brenda K. Eckstein, Esq. has joined its practice. Ms. Eckstein practices exclusively in matrimonial and

family law, concentrating on custody, divorce, domestic violence, and child support.

Prior to joining Mack and Associates, PPLC, Ms. Eckstein served as a confidential Court Attorney in Albany County Family Court and Albany County Supreme Court for 25 years. Additionally, she is a trained mediator, with extensive experience in both divorce and custody mediation.

Ms. Eckstein received her Juris Doctor degree from Albany Law School. She also holds a Master of Business Administration (MBA) from Rollins College, a Master of Science in Nursing from Virginia Commonwealth University, a B.S. from Union College, a B.S. in Nursing from Columbia University. Prior to practicing law, Ms. Eckstein worked in nursing and in medical management.

Originally from Long Beach, New York, she has lived in Columbia County since 1990. Ms. Eckstein can be reached at 518-465-1451 or by e-mail at HYPERLINK “mailto:[email protected]” [email protected].

Mack & Associates, PLLC, is an Albany firm that practices in the areas of matrimonial and family law, personal injury, criminal defense, collaborative divorce, appeals, civil litigation, estate administration and probate, employee benefits and real estate.

THE TOWNE LAW FIRM, P.C. (TLF) announces the addition of recently retired Judge Eugene Devine of the Appellate Division along with Attorney Jessica A. Rounds to its team.

Eugene, an Albany native, has been engaged in private general practice for more than 30 years, with a focus in the fields of pension/health insurance, labor, commercial, banking, real estate, and criminal law. Prior to joining TLF, Judge Devine was elected Justice of the New York Supreme Court in 2006. In 2014, he was appointed by Governor Andrew M. Cuomo to the Appellate Division of the New York State Supreme Court, Third Department. Before taking the bench, he was the Albany County Public Defender overseeing a staff of 35 attorneys and was also the Chief Attorney for the Albany County Department of Social Services.

Jessica A. Rounds joins TLF as an associate attorney in its Albany office, focusing her practice in the areas of civil litigation, commercial litigation, professional malpractice, personal injury, and general negligence. Professionally, Ms. Rounds has extensive experience in handling all phases of litigation and trial preparation. Jessica earned her J.D. from Western New England University Law School and is admitted to practice in both New York State and Massachusetts.

Both attorney Jessica Rounds and Judge Devine bring a wealth of experience and expertise to the firm, greatly augmenting TLF’s continued growth and expansion.

THE NEW YORK STATE BAR ASSOCIATION will publish the Third Edition of the Plaintiff’s Personal Injury Practice in New York, a Two Volume, 42 Chapter Treatise in late 2020 or early 2021. Details on upcoming release date can be found at www.nysba.org.

The following Capital District area attorneys contributed chapters to this work: Jeffrey K. Anderson, Esq. of Anderson, Moschetti & Taffany, PLLC on the Plaintiff’s Products Liability Case in New York: A Practitioner’s Guide; Scott Bush, Esq. Corrigan McCoy & Bush, PLLC, on Ethical Issues for the Personal Injury Practitioner; Eileen F. Fazzone, Esq., Stephen G. Shapiro, Esq. and

Kevin J. MacDonald, Esq. from the New York State Court of Claims, on Court of Claims Jurisdiction and Practice; John H. Fisher, John H. Fisher, P.C. on law practice building, operations, and marketing; Patrick J. Higgins, Esq. Law Offices of Patrick J. Higgins, PLLC, Editor in Chief and chapters on the Successful Bill of Particulars, No-fault, Trial Preparation, Common Medical Issues at Trial, and Litigating the Serious Injury Case; Paul A. Levine, Esq. Lemery Greisler, LLC, on the Intersection of Bankruptcy and Personal Injury Law; E. Stewart Jones, Jr., Esq. of E. Stewart Jones Hacker Murphy, LLP on Opening Statements; Daniel R. Santola, Esq. Powers & Santola, LLP on Construction Accident Law a/k/a Labor Law actions; Mara D. Afzali, Esq., Bond Shoeneck & King, PLLC, on the Plaintiff’s Personal Injury Case in Federal Court; Robert S. Stockton, Esq., Stockton, Barker & Mead, LLP on Workers Compensation and the Personal Injury Action.

HODGSON RUSS LLP was recognized for its “professional excellence” in multiple practice areas, by the U.S. News & World Report/Best Lawyers 2021 Best Law Firms list. In addition to three national-level rankings, Hodgson Russ received 27 first-tier rankings in the Buffalo, New York City, Albany and Rochester metropolitan areas. Specifically Nationally and in Albany:

National Tier 1 Trusts & Estates Law

National Tier 2 Litigation - Tax Tax Law

Metropolitan Tier 2: Albany Commercial Litigation Corporate Law Employment Law – Management

Metropolitan Tier 3: Albany Health Care Law

Best Lawyers’ Best Law Firms rankings are based on an evaluation process that includes client and lawyer evaluations as well as information provided by law firms. The rankings, presented in tiers, showcase more than 14,000 law firms ranked nationally and by metropolitan areas. Firms included in the 2021

BENCH & BAR IN THE NEWS

continues on p.7�

mailto:https://nysba.org/?subject=


IMMIGRATION LAW UPDATE

I went to bed around 9:30 p.m. on election night. I just knew that the results would not be final that evening, and watching the news through the night was going to do

nothing but stress me out (and it was). I was also having this strange sensation of “deja vous all over again” from election night four years earlier.

When I started writing this article, Vice President Biden had taken a small but meaningful lead in the Commonwealth of Pennsylvania which, if it held, would bring him over the 270 electoral votes that he needed to become President-elect of the United States. The wind was at his back.

The wind kept up and yesterday morning (again, as I write this), the major news organizations called the race, and Joseph R. Biden will become the 46th President of the United States. It’s been a long four years (for me anyway, and for many of the clients we represent).

About a week before the election, NBC News and other news outlets were reporting that the Trump Administration, through

its immigration minion-in-chief, Stephen Miller, was setting out an aggressive and hardline immigration agenda for the President’s second term. I couldn’t bear to read it, but of course I had to and did. Mr. Miller’s proposed second term agenda included the following:

(a) the Administration would expand its policies that now require asylum seekers in the United States to first seek protection from other countries, which currently includes Guatemala, El Salvador, and Honduras, to now include the rest of the world.

(b) the Administration would aggressively crack down on sanctuary cities by punishing those cities that prevent law enforcement from turning undocumented immigrants over to Immigration & Customs Enforcement (“ICE”).

(c) the Administration would expand what is commonly known as the “Muslim travel ban” by taking an applicant’s “ideological sympathies or leanings” into account during the visa interview process.

(d) the Administration would seek to “curtail” H-1B nonimmigrant specialty occupation visas, get rid of the current lottery process during the initial allocation process and replace it with

a system that prioritize visas for those being offered the highest wages.

Please, enough already. This morning the American Immigration Council reported that there have been over 900 changes to the U.S. immigration system over the past 4 years. 900!!! Imagine trying to keep up on your practice area or trade when there’s that much change on an almost day-to-day basis.

As I’ve noted before, it amazes me that Mr. Miller, himself a descendent of immigrants, advocates for such restrictionist positions. According to published accounts, Mr. Miller’s family arrived through Ellis Island from what is now Belarus. His relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century. According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket. He peddled street corners and worked in sweatshops. And by all news accounts, he worked hard and became very successful. It’s a great American success story.

And yet Mr. Miller became the poster-child for President Trump’s anti-immigrant policy. It just makes no sense (to me anyway). Well, I hope the door doesn’t hit him in the ____ on his way out of the White House.

David W. Meyers, Esq. • Meyers and Meyers, LLP • [email protected]

Election 2020: “Day 1”

Edition of “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers of America, which recognizes the top five percent of practicing attorneys in the United States.

Hodgson Russ attorneys facilitate the U.S. legal aspects of transactions around the world. The firm practices in several significant areas of law and uses multidisciplinary work teams to serve the specific, often complex, needs of clients,

which include public and privately held businesses, governmental entities, nonprofit institutions and individuals. Hodgson Russ has offices in Albany, Buffalo, Hackensack, New York, Palm Beach, Rochester, Saratoga Springs and Toronto. To learn more about the firm, visit www.hodgsonruss.com.

BOND, SCHOENECK & KING’S Albany office has been recognized by the 2020 U.S. News-Best Lawyers® “Best Law Firms” in ten categories. U.S. News-Best Lawyers evaluated more than 15,000 firms across the United States.

In Albany, Bond was recognized for:

Commercial Litigation; Employment Law – Management; Labor Law – Management; Litigation - Labor & Employment; Trusts & Estates Law; Administrative / Regulatory Law; Health Care Law; Personal Injury Litigation – Defendants; Product Liability Litigation – Defendants; and Corporate Law.

Bond, Schoeneck & King PLLC is a law firm with 250 lawyers serving individuals, companies, non-profits and public sector entities in a broad range of practice areas. Bond has eight offices in New York State as well as offices in Boston, Naples, Florida and Kansas City. For more information, visit bsk.com •

continues on p.8�

BENCH & BAR IN THE NEWS

https://www.nbcnews.com/politics/immigration/trump-adviser-stephen-miller-reveals-aggressive-second-term-immigration-agenda-n1245407https://www.nbcnews.com/politics/immigration/trump-adviser-stephen-miller-reveals-aggressive-second-term-immigration-agenda-n1245407mailto:www.hodgsonruss.com?subject=


The Practice PageHon. Mark C. DillonJustice of the Appellate Division, Second DepartmentAdjunct Professor of New York Practice, Fordham Law School Author of the CPLR Practice Commentaries in McKinney’s [email protected]

A classic holiday movie is Miracle on 34th Street starring Maureen O’Hara, John Payne, Natalie Wood, and Edmund Gwenn, made in 1947. It involved a man named Kris Kringle who was

employed at the Macy’s flagship store on 34th Street during holiday time. Kringle claimed to be the real Santa Claus and faced potential commitment to a psychiatric hospital as a result. We may assume that because Macy’s was located in Manhattan, the case to commit Kringle was venued at the Supreme Court, New York County. The matter went to a trial where Kringle could avoid involuntary commitment only if able to prove that he was the one true Santa. Kringle lacked corroborative evidence. The trial was highly-publicized. Moments before a troubling oral decision was to be rendered from the bench by Justice Henry Harper, a mail sorter from the Post Office delivered to the court multiple bags of dead letters addressed to Santa Clause—proof in the official custody of the U.S. government that Santa existed. Justice Harper dismissed the case against Kringle to the applause of all present in the courtroom. In effect, the judge took judicial notice of the letters, though the movie never mentioned the statutory basis for him doing so, CPLR 4511 (known then as C.P.A. 344-a). Perhaps Kringle’s attorney’s motion for a directed verdict, with citation to the

relevant practice statutes, was cut from the movie during the process of editing.

Readers of CPLR 4511 should take care of the statute’s constituent parts that distinguish between what “shall” and what “may” be judicially noticed. Judicial notice shall be taken by a court of the common law, public statutes, and constitutions of the United States and its individual states and territories, but not of the organization or management of the state or its agencies, or of local and county laws.1 Judicial notice may be taken by a court at its own initiative of federal, state, and foreign statutes, resolutions, and regulations, but shall be taken of them if requested by a party, if properly documented and upon notice to all parties.2 The foregoing regards matters of law. Beyond that, judicial notice may be taken of matters of fact for which there can be no reasonable dispute. A Westlaw search identifies examples as including dates and days of the week, official climatological data, the timing of sunrises and sunsets, scientific properties, weights and measures, undisputed court records, geographic locations, census statistics, travel distances, currency exchange rates, and known historical facts.

Judicial notice of a matter may be taken at any stage in a proceeding,3 which is why the judge in Miracle on 34th Street could consider the dead letters from the Post Office at the last moments of Kringle’s trial. Assuming the trial determination was based on judicially-noticed letters, was it correct? May the government’s mere possession of letters written to one recipient (Santa) addressed to the same place (the North

Pole) qualify as indisputable evidence of the addressee’s existence, or alternatively, did the court commit reversible error by allowing the letters into evidence on Kringle’s behalf? The answer is that judicial notice was inappropriate. The existence of the letters proved, at best, that children believed there was “a” Santa Clause and had acted upon that belief by mailing material at official postal depositories. The letters did not prove that the person to whom the letters were addressed existed in reality, or that Kringle was “the” Santa Clause to whom the children had written. The letters were of no probative value to the dispositive issue of the case,4 which was whether Kringle was the Santa Clause or someone in need of psychiatric commitment. The government’s mere possession of the children’s letters made no difference to that discrete question.

The time for appealing Justice Harper’s order to the First Department passed in 1948. If, however, there were a stay and the Kringle determination is still viable, appealed, and reversed, Hollywood can produce a post-appeal sequel to Miracle on 34th Street, with a better analysis of CPLR 4511 upon remittal.

Merry Christmas, Happy Chanukah. •

1 CPLR 4511(a).

2 CPLR 4511(b).

3 Caffrey v North Arrow Abstract & Settlement Services, 160 AD3d 121, 127.

4 People v Palencia, 130 AD3d 1072, 1074-75.

Judicial Notice Miracles on 34th Street

His days are over.

Not to overdramatize this, I do have a short-term concern about what the President will do between now and inauguration day (not on the legal front in terms of contesting the election, but more so on the executive order policy front and what further damage he and Mr. Miller can do to U.S. immigration policy).

Many of the 900 changes that President Trump has implemented over the past four

years have been through the stroke of his pen (i.e., executive action, etc.) as opposed to actual legislation (given the fact that the House of Representatives is controlled by the Democrats). Assuming the wind at Vice President Biden’s back continues to blow, I presume (or at least I am hopeful) that it will be easier for him to unwind all of the terrible wrongs that President Trump has performed over the last four years.

Just this morning, the New York TIMES

reported that President-elect Biden, on Day 1, would begin a “yearslong effort to unwind President Trump’s domestic agenda and immediately signal a wholesale shift in the United States’ place in the world.” I am tired of this election season. I am also tired of what I’ve watched and listened to from the White House over the last four years. Our country is deeply divided, and President-elect Biden will now, and for the foreseeable future, have to govern in President Trump’s America. I look forward to Day 1. •

IMMIGRATION LAW UPDATE (continued from p.7)

https://www.nytimes.com/2020/11/08/us/politics/biden-trump-executive-action.html


LABOR & EMPLOYMENT PRACTICE

New York State has, for the last several months, imposed a quarantine requirement on individuals entering New York State after travel to certain designated “high risk” states. On

Saturday, October 31, Governor Andrew Cuomo announced a significant shift in New York’s quarantine approach. The new approach, embodied in new Executive Order 205.2, took effect on November 4, 2020. Under this new approach, travelers may be able to shorten their mandatory quarantine periods by taking one or more COVID-19 diagnostic tests.

New York’s New Test-Based ApproachTravelers entering New York State after being in another state for 24 hours or longer must take a COVID-19 diagnostic test within three (3) days prior to departure from that state. The traveler may then enter New York State (even, it appears, if he or she has not yet received the results from the first test) and must quarantine

for three days. On the fourth day in New York State, the traveler must take a second COVID-19 diagnostic test. The traveler must then continue to quarantine until both test results come back negative. Once that occurs, the traveler is no longer required to quarantine.

Travelers entering New York State after being in another state for less than 24 hours need not take the first “pre-departure” test, nor are they required to quarantine upon arriving in New York State. However, he or she must take a COVID-19 diagnostic test on the fourth day after arriving in New York State.

Individuals who do not take the COVID-19 diagnostic test(s) as outlined above must serve the full 14-day quarantine period. Further, all travelers subject to these requirements must fill out New York’s Traveler Health Form.

Notably, these rules apply to travel from any state other than those contiguous with New York (Connecticut, Massachusetts, New Jersey, Pennsylvania, and Vermont). Accordingly, it appears that New York will no longer continue to add and remove states from the “restricted list.”

Exemptions for Travel to Contiguous States and Essential WorkersAs noted above, travelers from states contiguous with New York are exempt from these requirements.

In addition, the New York State Department of Health (“NYSDOH”) continues to allow an exemption for essential workers, subject to a number of restrictions based on the duration of the essential worker’s presence in New York.

Interaction with New York State COVID-19 Paid Sick LeaveThe NYSDOH continues to indicate that individuals who engage in non-essential, non-work related travel that results in a quarantine period under these new rules will be ineligible for benefits under the New York State COVID-19 Paid Sick Leave Law. Employers should, of course, evaluate whether such an employee has leave rights under any other law and/or whether the employee can telework during the quarantine period.

If you have any questions regarding these travel restrictions and their impact on an employer’s workforce, please feel free to drop me an email. Stay safe. •

Glen P. Doherty, Esq. • Hodgson Russ LLP • [email protected]

CLASSIFIED

LABOR AND EMPLOYMENT ATTORNEY

Hodgson Russ LLP is seeking an attorney to join its Labor and Employment practice in any of the Firm’s offices. The successful candidate will have at least two years of experience representing public and private employers in matters involving a wide range of labor, employment, and education laws. Strong academic credentials and excellent written and verbal communication skills are required. Please visit our website to submit your resume. https://www.hodgsonruss.com/careers-laterals.html | or contact Shannon Scott [email protected]

OFFICE SPACE AVAILABLE

Two spacious attorney offices are available for sub-let at 17 Elk Street in downtown Albany. Free parking, kitchen, use of conference room. Short walk to all courthouses and NYS Capitol. Contact Dan Coffey at [email protected].

ENVIRONMENTAL AND ENERGY ATTORNEY

Hodgson Russ LLP is seeking an attorney to join its Environmental and Energy practices in any of the Firm’s existing offices. The successful candidate will have at least

three years of experience representing clients in an array of environmental matters, including areas such as land use, zoning, permitting, regulatory compliance and/or enforcement counseling, diligence and transactional matters, and litigation. Strong academic credentials and excellent written and verbal communication skills are also required. Please visit our website to submit your resume. https://www.hodgsonruss.com/careers-laterals.htmlContact Shannon Scott [email protected]

Email us [email protected] to post in the next issue of BarNews!

New York State Quarantine Requirements

https://www.hodgsonruss.com/careers-laterals.htmlhttps://www.hodgsonruss.com/careers-laterals.htmlmailto:SScott%40hodgsonruss.com?subject=mailto:coffey%40bcalbany.com?subject=https://www.hodgsonruss.com/careers-laterals.htmlhttps://www.hodgsonruss.com/careers-laterals.htmlmailto:SScott%40hodgsonruss.com?subject=mailto:SScott%40hodgsonruss.com?subject=


LABOR AND EMPLOYMENT PRACTICE (continued from p.9)

On April 3, 2020, Governor Cuomo signed into law the State Budget Bill (S7506B), which included a provision requiring all private employers in New York, regardless of size, to provide annual sick leave to their employees. This New York State Sick Leave (NYSSL) law took effect on September 30, 2020, and employee accruals were required to begin as of that date, though employees are not entitled to use accrued leave until January 1, 2021.

Since the NYSSL law was passed, employers have been awaiting clarification on a number of important issues related to its implementation, including questions related to employee notice obligations, carryover, frontloading, and documentation requirements. On October 20, 2020, New York State updated its Official Website to include a dedicated webpage on NYSSL, including a Frequently Asked Questions document. This new guidance reiterates the requirements of the statute but provides little direction on some of the key questions facing employers who are subject to the requirements of the NYSSL law.

Important details and highlights from the guidance documents include the following:

Use and Accrual• If an employer has multiple locations

in New York, it is required to count the total number of employees at all such locations when determining the amount of sick leave it must provide. The guidance does not address whether employers must count employees outside of New York or the United States.

• The guidance confirms that employees begin accruing leave immediately upon hire and may use leave as it is accrued.

• Because sick time is only credited for hours worked, it does not have to accrue on time spent using sick leave or other non-working time.

• Employees earn sick leave for all hours they physically work in New York, even if the employer is located outside of New York. This includes employees who telecommute from New York.

• Seasonal employees who maintain an “ongoing employment relationship” with the employer must maintain their leave accruals through breaks in employment.

The guidance does not provide any clarification on what would constitute an “ongoing employment relationship.”

Frontloading and Carryover• Employers are permitted to frontload

less than the 40 or 56 hours (depending on employer size) on the number of hours it anticipates a particular employee will work in a given calendar year. Employers who elect this option, however, must still track the employee’s hours worked and accruals. If the employee works more hours than anticipated, the employer must award additional sick leave to meet the requirements of the law. If an employee works fewer hours than anticipated, the employer cannot recoup the frontloaded leave.

• Employers who frontload less than the minimum yearly accrual allowance (40 or 56 hours, depending on employer size) at the start of each year still must allow employees to carry over unused sick leave into the new calendar year.

• The guidance does not expressly address whether carryover is still required for employees who receive the full frontloaded 40 or 56 hours.

• The guidance does not expressly address whether employers may establish a carryover cap. Like the statute, the FAQs simply provide that sick leave that is unused must be carried over from one year to the next. Employers can, however, cap the use of sick leave to 40 or 56 hours per calendar year, which may result in employees maintaining leave balances in excess of the amount they are permitted to use in a calendar year.

• An employer who frontloads leave and does not calculate its employees’ use and accrual of sick leave in a given year cannot switch to the accrual method in the subsequent calendar year because employees are entitled to carry over unused sick leave and use those hours at the beginning of the year.

Notice and Documentation Requirements• The NYSSL law is silent on whether and

to what extent employers can require employees to provide advance notice of

the need for leave. Unfortunately, the guidance does not provide much clarity on this issue, as it simply provides that “[t]here is no specified notice or time period requirement under the law, provided, however, that there is an oral or written request to the employer prior to using the accrued sick leave, unless otherwise permitted by the employer.”

• Like the NYSSL law, the guidance is also silent on whether and to what extent employers can request documentation from employees to validate NYSSL absences.

• Employers must notify employees in writing of any restrictions in their leave policies affecting an employee’s use of leave, including any limitations on leave increments.

• Employers must keep payroll records for six years, which must include the amount of sick leave accrued and used by each employee on a weekly basis.

Penalties • Employers who fail to provide their

employees with the required sick leave may be subject to civil/administrative actions and/or criminal penalties, including but not limited to, an order assessing the full amount of wage underpayment, liquidated damages, and civil penalties in an amount up to double the total amount to be due to the employee.

• Now that New York State has issued its guidance, employers should finalize and implement their policies to ensure compliance with the requirements of the NYSSL law. In particular, employers should backdate accruals (unless they are frontloading as of January 1, 2021) to September 30, 2020. •

New York State Sick Leave Law


SURROGATE’S COURT Albany County Surrogate’s CourtHon. Stacy L. Pettit, Surrogate • Alima M. Atoui, Esq., Law Clerk • Deborah S. Kearns, Esq., Chief Clerk

GUARDIANS AD LITEM: WHO A GAL IS APPOINTED FOR, PROCEDURE AND DUTIES.

What is a Guardian ad Litem?A guardian ad litem (GAL) refers to an attorney admitted to practice law in the state of New York who has been appointed by a judge to represent a person under a disability who is a party in a proceeding (see SCPA 404). GALs are an essential part of Surrogate’s Court practice because they are charged with protecting the interests of our most vulnerable population.

A guardian ad litem is not a party to the proceeding, but represents and acts as the attorney for his or her ward. For this reason, the GAL is not subject to examination before trial (see Matter of Mars, 201 Misc. 329 [Sur Ct, Orange County 1952]). However, no privilege attaches to the information a guardian ad litem gathers while representing the ward. The prime allegiance is to the ward, but a GAL has the concurrent obligation, as an officer of the court, to make an objective report of the information gained through investigation (see Matter of Ford, 79 AD2d 403 [1st Dept 1981]), and such information will be revealed when included in the guardian ad litem report (see Matter of Roe, 65 Misc. 2d 143 [Sur Ct, Suffolk County 1970]).

When the interests of a person under a disability are protected in a proceeding by a GAL, the proceeding is binding upon such person to the same extent as if such person were under no disability (see SCPA 406; Matter of Howley, 100 NY 206 [1885]; accord Dunn v Eckhoff, 35 NY2d 698, 699 [1974]), and the resulting decree is final and immune from subsequent direct or collateral attack (see Matter of Silver, 72 Misc. 2d 963 [Sur Ct, Kings County 1973]).

The failure to appoint a GAL for a person under a disability renders the decree voidable, which in the case of an infant, may be as late as his or her attainment of majority (1 Warren’s Heaton on Surrogates’ Courts, §8.18 [1] [6th ed. revised]). A party’s failure to notify the court of a party’s disability before obtaining a default judgment is considered to be a fraud and a

basis for vacating the judgment. (see New York Life Insurance Co. v V.K., 184 Misc.2d 727 [Civ Ct, NY County 1999]).

Persons under a DisabilityIn Surrogate’s Court, a person under a disability includes an infant under the age of 18 years (see SCPA 103 [27]; an incompetent person (see SCPA 103 [26]); an incapacitated person (see SCPA 103 [25]); a person who is confined as a prisoner who fails to appear under circumstances which the court finds are due to confinement in a penal institution; or a person who is unknown or whose whereabouts are unknown (see SCPA 103 [40]).

Infants

An infant is any person under the age of 18 years (SCPA 103 [27]). An infant must appear by a guardian ad litem when no appearance is made by a guardian of his or her propert y, or whenever the court so directs because of a guardian’s possible conflict of interest or other cause (see SCPA 402 [2]; Matter of Seviroli, 4 Misc. 3d 1014[A] [Sur Ct, Nassau County]).

An infant over 14 years of age or the infant’s parent or guardian may petition the court on or before the return date for the appointment of their choice of a named attorney as guardian ad litem to protect the infant’s interest (SCPA 403 [1]). The court may appoint the nominated attorney unless there appears to be a conflict of interest.

The petition of an infant over 14, or the parent or guardian, to nominate a guardian ad litem must be accompanied by an affidavit of the nominated attorney showing: (a) that he or she is qualified to protect the rights of the infant and has no interest adverse to the infant; and (b) the circumstances which led to his or her nomination (see SCPA 403 [1] [a]; see also 22 NYCRR 207.12 [b]).

The attorney nominated by the infant, if qualified and without conflict, would be appointed by the court. The failure to do so is reversible error in the absence of justification for disregard of the infant’s nomination (see Matter of Dumbra, 254 AD 776 [2nd Dept 1938]).

Where no petition has been made for the appointment of a guardian ad litem, and the infant is unrepresented, the court, on its own, may appoint a guardian ad litem.

Incompetent or Incapacitated Persons

An incompetent person is any person judicially declared incompetent to manage his affairs (see SCPA 103 [26]). Incompetents (like infants) cannot waive service of citation or consent to probate or other proceedings, because they are not of sound mind (see Matter of Frutiger, 29 NY2d 143 [1971]). Only competent adult persons may execute waivers and consents.

An incapacitated person is a person who is incapable of adequately protecting his or her rights, including a person for whom a guardian has been appointed pursuant to Article 81 of the Mental Hygiene Law (e.g. a person in a nursing home who cannot voluntarily appear) (see SCPA 103 [25]).

In a case where there are any facts showing that a person is mentally and/or physically incapable of protecting his or her own rights, the court should appoint a guardian ad litem to represent the interests of the person (see Matter of Winston, 92 Misc. 2d 208 [Sur Ct, NY County 1977]; Matter of Arneson, 84 Misc. 2d 128 [Sur Ct, Westchester County 1975]). The appointment of a guardian ad litem reflects a determination by the court to the effect that the record presently indicates the need for the court to intervene to protect the interests of a party.

An important factor to keep in mind when determining the advisability of the appointment of a guardian ad litem is that a decree rendered against a necessary party who is incapacitated and for whom no guardian ad litem was appointed is voidable and must be set aside upon an application to do so (Matter of Arneson, supra, at 134).

Prisoners

Prison confinement does not defeat a prisoner’s right to inherit (see Matter of Shaffer, 184 Misc. 855 [Sur Ct, Suffolk County 1945]). There is an exception if the person was the murderer of decedent (see Matter of Covert, 97 NY2d 68 [2001];

Proceedings and Issues: An Insider’s View



Riggs v Palmer, 115 NY 506 [1889]). Incarceration also does not disqualify a spouse from inheriting and is not listed as one of the grounds leading to disqualification of a surviving spouse under EPTL 5-1.2. However, the confinement of a spouse in prison for a period of three or more consecutive years is grounds for a divorce (see Domestic Relations Law §170 [3]).

The appointment of a GAL for a prisoner is not automatic. A prisoner may sign a waiver and consent form or appear in a proceeding by notice of appearance or by counsel, in which case he or she will not be treated as under a disability.

Appointment of a guardian ad litem for a prisoner is only authorized when a default in appearance is found by the court to be due to confinement in prison (SCPA 103 [40]). In case of a deliberate default, the prisoner forfeits his or her right of representation.

Unknowns

Any necessary party to a proceeding who is unknown or whose whereabouts are unknown is a person under disability (see SCPA 103 [40]). The purpose of designating unknowns as under a disability is to protect the interests of any such person who may have an interest in the estate. The petitioner must provide the court with an affidavit showing that he or she has used due diligence to try to ascertain the identity, names and addresses of the parties (see 22 NYCRR 207.16 [d]).

Although a GAL representing the interests of unknowns has no required duty to search for his or her unknown wards, in the event that the whereabouts of such unknown wards are determined during the course of the proceeding, and if all such wards are of full age and sound mind, then there is no further need for the GAL and the duties of the GAL would terminate.

Unborns

“Unborns” are not included in the SCPA definition of persons under disability, but unborn heirs are represented by a guardian ad litem in certain circumstances. The settlement of a controversy which wipes out the contingent interests of unknowns or unborns has no effect unless they are represented by a guardian ad litem. (see Fisher v Fisher, 253 NY 260 [1930]).

In What Proceedings Would a GAL be Appointed?The court will appoint a GAL in the following proceedings: (1) a probate proceeding where the person under a disability is a distributee or person adversely affected by a later will or codicil; (2) a trust, construction or reformation proceeding; (3) a proceeding to dispose of real property; (4) an accounting proceeding where the person is a beneficiary of a percentage interest of the estate (not a specific bequest or general dollar amount) or where the testamentary trustee for a person under a disability is the same person as the executor; (5) an Article 17 property guardianship when an infant’s funds are misappropriated by the guardian of his property; and (6) most other proceedings where a person under a disability is interested.

Generally, no GAL will be appointed in an administration proceeding, since the ward will be entitled to a full statutory share, and is not eligible to act as administrator. However, an accounting will be required for an administration estate where the ward is still under disability, and a GAL would be appointed at such time (the court may restrict administration letters to require an accounting).

Circumstances in Which GAL Appointment Should be Dispensed WithA GAL typically will be dispensed with in the following situations: (1) an uncontested

probate proceeding where such person will receive a share equal to or greater than the share he would receive if the decedent had died intestate; (2) an accounting proceeding where such person receives a specific bequest or a specific devise or a general legacy of a stated sum of money and the accounting party demonstrates that such person has received his legacy or devise or will receive the same in full under the decree to be made; and (3) a probate proceeding where the decedent is survived by a spouse who receives the entire estate under the propounded instrument and the petition alleges that probate assets do not exceed $50,000.

Termination of RepresentationRepresentation by a GAL does not extend beyond the proceeding for which the GAL was appointed (see Matter of McGuire, NYLJ, July 6, 1998 at p. 30, col 2). Thus, when appointed in a probate proceeding, the guardian ad litem’s inquiry is limited to the facts relating to the genuineness of the will and the validity of its execution (see SCPA 1408 [1]). The GAL does not have the authority to continue to monitor estate administration or accounting on behalf of a ward unless reappointed by the court in another proceeding. Representation also terminates upon the ward’s majority (see Matter of Fassig, 58 Misc. 2d 252 [Sur Ct, Nassau County 1968). When the infant reaches majority the GAL files a final report and asks to be discharged (see Matter of White, NYLJ, April 12, 1996 at p. 29, col 6). In such event, no further proceeding may be taken against the former infant without leave of court until 30 days after he or she is notified to retain another attorney pursuant to CPLR 321 (c). Finally, if a ward dies, the authority of the GAL terminates and is superseded by the court-appointed fiduciary of the estate of the ward.

We look forward to seeing you here in Albany County Surrogate’s Court! •

SURROGATE’S COURT (continued from p.11)


Michael P. Friedman, Esq. • 77770 Concha Court • La Quinta, CA 92253 • [email protected]

When I started practicing law in the late 1970’s, there was no child support standards act, no equitable distribution law and no maintenance (alimony) standards act. Family law was much simpler, and many lawyers, especially in more rural areas, helped people with divorces as well as criminal matters, wills, estates and real estate transactions. But Albany County had its matrimonial specialists and they were wonderful lawyers and friends.

At the time, the Catholic Church did not recognize civil divorces and it discouraged the practice of divorce law by Catholic lawyers. As a result many local family lawyers were Jewish or from other religions. They were the wonderful Robert Kahn, Larry Gordon, the hilarious Sandy Soffer and then the younger generation of Stan Rosen and Timothy Tippins. Then there was the legendary Anthony Cardona who became the Presiding Justice of the Third Department. In 2002 Pope John Paul II said that Roman Catholic lawyers should not handle divorces. “We cannot surrender to the divorce mentality. When a couple encounters difficulties in their marriage, priests and other members of the faith must be united to help them positively resolve the crisis. Lawyers must always decline to use their professional skills for ends that are

contrary to justice, like divorce.’’

As a result of the influence of the Catholic Church, it was not until 2010 that New York became the last state in the nation to recognize no fault divorces. Prior to that, one could defeat the distribution of assets by proving the lack of fault. One could also ask for a jury trial for proof of divorce fault which I never did, but I endured four such trials. In the last my client with weak fault grounds had to endure the testimony (without cross examination by me) of her 14-year-old son who testified he saw her holding the hands of another man at the Empire State Plaza. I was able to convince the jury to grant the divorce simply by saying, “What kind of a husband puts his 14-year-old son on the stand to testify in public before a jury and his mother about her holding someone’s hand.” That did not stop business owners and professionals from preventing the distribution of their marital businesses by claiming no fault, i.e. no adultery, abandonment, or cruel and inhuman treatment. In the meantime they would all be afflicted with the disease we called RAIDS, Recently Acquired Income Deficiency Syndrome. I think it is in the DSM-5.

Yes, it was a different time but it was infinitely enjoyable. I can still hear Sandy Soffer telling a bunch of lawyers at a “motion day” (Thursday) at the courthouse, “If I had sex with all my clients as I was accused by their husbands, I’d be so tired I couldn’t get to work in the morning.”

Family Law had another bright spot. When I started practicing at Ainsworth, Sullivan, Tracy and Knauf, there were no women trying civil cases before juries and never any women associates at large litigation firms like Ainsworth and Carter, Conboy. There were no such restrictions in family law. Within a few years we saw the elevation, among others, of future Court of Appeals Judge Leslie Stein at McNamee, Lochner and Flo Richardson in Bob Kahn’s firm as some of the best matrimonial lawyers in the state. Did you know that the

first county-wide female Albany jurist was a Family Court judge, even before I was admitted to practice? Her name was Eileen A. Sullivan and she passed last year at the age of 103. She was appointed by Republican Governor Nelson Rockefeller in the early 1970’s in overwhelmingly Democratic Albany County when an opening occurred. She served until the next election where she was defeated by the legendary Michael Tepedino. She has two cases published in New York’s Miscellaneous Citations.1

Over the years, the legislature in their wisdom made Family Law beyond complicated which ended the part time family practitioners and dramatically increased the hourly rates of family law “specialists” as there were far more people seeking the services of fewer lawyers. As one attorney said at one of my NYS Bar Association CLE programs, “I think it is disgusting that someone in Albany has to pay you, Mr. Friedman, $490 per hour just to get divorced.” I replied, “I agree with you. And I’ll stop charging it as soon as people stop paying me.”

But as you can see it was a fun ride thanks to the wonderful professionals who made it so. Or as the great Zsa Zsa Gabor once said, “I have learned that not diamonds but divorce lawyers are a girl’s best friend.” Amen.

Post Script: When I moved to California in 2015, I was treated by a local cardiologist. After a series of tests he said to me, “Mr. Friedman, I understand you were a divorce lawyer in New York.” I said, “Yes, doctor, but why?” He said, “Because you have a heart that’s never been used before.” THAT made me laugh. •

1 Cossart v. Cossart, 74 Misc.2d 199 (Alb. Fam. Ct., 1972); Bertsche v. Bertsche, 74 Misc.2d 206 (Alb. Co. Fam. Ct., 1972).

“I am a marvelous housekeeper. Every time I leave a man, I keep his house.”

— Zsa Zsa Gabor.

“A lot of people ask me how short

I am. Since my last divorce, I’m about $100,000 short.”

— Mickey Rooney

The Joy of Family Law


From ancient times until not so long ago, word-of-mouth was how people inquired about lawyers and received information concerning lawyers. In last month’s article – “Do You Know a Good Lawyer?”—we took you up to, and somewhat beyond, the landmark decision of SCOTUS in Bates and O’Steen vs

the State Bar of Arizona, 433 U.S. 350, which held that attorney advertising, as commercial speech, was protected under the First and Fourteenth Amendments of the U.S. Constitution. Now, we explore and comment on what has happened since.

Legal services are delivered by a multitude of providers, and competition for the consumer dollar intensifies daily. In 1900, the population of the U.S. was 75,000,000. Today, it’s 330,000,000. How many attorneys do we have on hand to meet the demands? The last time anyone counted, there were more than 1,330,000 lawyers in the U.S. That’s one attorney for every 248 people, not counting corporations.

Japan’s population is 126,000,000. They have about 35,000 lawyers, a ratio of one Bengoshi (attorney) for every 3,600 Hito (people). In England, with a population of 67,000,000, there are 146,000 solicitors and barristers. Thus, the birthplace of our legal system functions effectively with one attorney for every 458 Brits. Getting closer

to home, New York State proudly proclaims the existence of 185,000 lawyers (roughly five times more than the nation of Japan). Albany County’s population is hovering around 305,000, yet we boast somewhere around 4,000 counsellors of law which means that there’s one to go around for every 76 residents.

A few of you might recall the adage about the only lawyer in a small town barely able to make ends meet. A second lawyer opened an office in the same small town and they both got rich. We all know that it takes two to tango. The dance of advocates has been on-going since cavemen bashed each other with clubs or when medieval knights jousted in the lists.

As we pointed out last month, in olden times, people might have had to climb on their asses and travel through forests, over mountains, down winding roads to find a lawyer. Today, they don’t have to get off of their ass to find one. As the number of lawyers has burgeoned at a rate outpacing the population of non-lawyers, two compelling questions loom. (1) Do we really need all these lawyers, and (2) How can our society support all these lawyers? If there isn’t enough room for everyone, which lawyers are going to remain in business and which ones are not?

Before lawyers were permitted to advertise, the Darwinian theory of survival of the fittest was wholly in play. Today, the term has taken on a new meaning as law firms scramble for the billable hour buck. How are consumers of the trade making out?

The myth that advertising presents customers with a basis upon which they can make informed judgements about the experience, skills, accessibility, cost and past performance of the attorney who will be handling their case is simply that, a myth. In the early days after SCOTUS okayed lawyer advertising, an ad in the Yellow Pages (some of you will have to Google the term), or buying a spot in the

program of your kid’s sports team, dance class or other awards ceremony, seemed innocent enough and inexpensive. There was nothing tawdry or tacky about a professional person contributing to a worthy cause. Yet, today, factoring the concept of survival of the fittest into the equation, does virtually un-regulated ad campaigning by the cleverest public relations agencies assure the public that the lawyer they choose will be the best for the case?

Public opinion surveys once rated lawyers and used car sellers as the least trustworthy and respected persons on the planet. The terms “shyster”, “mouthpiece”, ambulance-chaser”, “cop-a-plea”, and “shark”, came from somewhere for some reason and were never intended as terms of endearment. Those ascriptions are nothing new. Didn’t Shakespeare write “The first thing we do, let’s kill all the lawyers”? But, one of our favorite quotes comes from Samuel Johnson who said “I do not care to speak ill of any man behind his back, but I believe the gentleman is a lawyer.”

Following the Bates decision, innovative attorneys have worked tirelessly to create an advertising niche for themselves. Probably the pioneer of creative legal ads was Madison, Wisconsin lawyer Ken Hur, who in the 1970s, named himself “the advertisin’est lawyer” in the United States. Not limiting himself to one medium, Hur deployed banners with his name on them pulled by airplanes over football games, a hearse with “No Frills Wills” painted on it, and at least one crushed car with the message “Sideswiped? Call Ken Hur.” He became most well-known (especially among Madison college students) for his television ads, featuring him wading in pools, singing off-key, and playing banjo. Allegedly his advertising budget was over $30,000 per year, and he created enough business to sustain it.

PSST! —I can get it for you wholesale!

Michael Feit, Esq. Albany County Public Defender’s Office [email protected]

Rebekah Sokol, Esq. Albany County Public Defender’s Office [email protected]



Many attorneys have followed in Hur’s flamboyant footsteps. Anyone ever heard of Fort Worth, Texas’ Bryan Wilson, the “Texas Law Hawk”? If you have a minute, we strongly urge you to check out his ads on YouTube, which feature Wilson yelling, running with an American flag, jumping jet skis, and destroying an ice sculpture with a flamethrower, all over a background of screeching eagle noises. He became so popular he even stared in a Super Bowl commercial. Wilson’s ads have been compared with those of Pittsburgh, Pennsylvania rapper/criminal lawyer Daniel Muessig, which depict criminals committing crimes while saying “thanks, Dan!” SCOTUS justices definitely did not anticipate these antics when they wrote Bates.

Hur, Wilson, and Muessig have all had their naysayers, and other attorneys deriding them for making a mockery of the legal profession. Interestingly, criticism mostly comes from other lawyers, while members of the public find the ads entertaining, accessible, and appealing to younger generations. Other professions or trades can be creative, so why can’t lawyers?

Several years ago, we attended a conference at the NYSBA on how legal services are being marketed in the 21st century. The ingenuity of hucksters had no end. Representatives from Legal Zoom and AVVO made presentations about what they were doing to present new ways of getting clients. Fewer and fewer attorneys know or feel the meaning of the term—“Making the nut.” Managing operational costs, meeting the overhead, is a constant concern. Watching squirrels scramble to fill their nests and bellies for the winter gave someone the idea to coin the phrase. Rent, paying associates, secretaries, paralegals, investigators and expert witnesses are only a paw-ful of the nuts to crack in running a law office.

So, what can anyone do? In 1871, Ralph Waldo Emerson gave a speech and said something like: “Build a better mousetrap and the world will beat a path to your door.” In 1989, in the movie “Field of Dreams,” the line “If you build it they will come,” became memorable. In our world today, one online site promises: “Build a website

that converts prospects to clients.” This company offers four plans – Bronze, Silver, Gold, Platinum. Why didn’t they just use A, B, C and D? You mean some advertising is subliminal?

Yet another online attempt by promoters to attract lawyers to use their medium is styled “Expand your visibility with super lawyer advertising.” Several times a year, they mail you a slick glossy magazine touting the greatest lawyers in the land, in New York, in the Capital District? If they just put the listing online, there wouldn’t be any copies to stack on side tables in waiting rooms or show to their relatives. And, in the past year, have you received less than 50 invitations by email to be listed in the latest version of Who’s Who in whatever branch of law they suspect you practice?

Comparing SCOTUS’ okaying lawyer advertising to the opening of Pandora’s Box may be unfair, but isn’t that where we now find ourselves? Martindale-Hubbell was once the only reference source, listing in multiple volumes, the name rank and serial number of attorneys – college, law school, when admitted and where admitted. The company name and what they do have changed. M-H is one entity; M-AVVO is another and M-H NOLO, yet another.

To attempt to comprehensively explore the vast network of online advertising with all its intricacies would go way beyond the scope of this article. Suffice it to say, for better or for worse, the practice of law has been dramatically altered.

Legal Zoom lists its history as:

1999- “…the internet is a perfect too to make legal help more widely available.”

2001- “…created independent attorney network.”

2015- “Reached 3.6 million customers.”

2016- “The change we’ve brought to the practice of law is here to stay.”

Martindale-NOLO promises attorneys – “We deliver the lead and details to your inbox.” AVVO boasts – “Every 5 seconds someone receives free legal guidance on AVVO.” And then there is Genius Monkey. They offer

“Programmatic Digital Marketing.” One of their featured services is the creation of strategies designed to implement “mass tort advertisement plans.”

Is this why you decided to go to law school? Here’s a test (multiple choice) that you can take in the privacy of your home or office. When you see a law firm’s commercial on your giant-screen TV clamoring to draw in the diseased, injured, molested, or otherwise wronged individual as a potential client, how do you feel?

A. This is horrible.

B. Doesn’t this violate Section EC 2-9 of the Code of Professional Responsibility?

C. This is cool.

D. Why didn’t I think of this?

We have barely touched the issue. Subjects like pre-paid legal expenses exist in some unions, companies and directly, but the concept has never caught on the way hospital, casualty or life insurance has. Nobody wants to have surgery, have their house burn down, or die just because they paid the premium.

Is jumping on this enormous bandwagon inevitable? Some states require that all attorneys be members of the Bar Association. New York doesn’t and neither does Albany County. Groucho Marx has been quoted as saying he would never join a club that would have him as a member. In a way, the extraordinary proliferation of attorney advertising puts incredible pressure on practitioners not to be left in the dust. In certain neighborhoods, there is almost no escape from joining a gang or doing drugs or learning to play golf.

If somebody thinks they need an attorney, do they want one who spends their time practicing law or rehearsing TV commercials? •

PSST — I CAN GET IT FOR YOU WHOLESALE! (continued from p.14)


With the holidays fast approaching, many people may see their aging parent or parents for the first time in months. Given the current status of the pandemic, many people may not

be able to visit in-person, but will be limited to Zoom, FaceTime or some other type of video call. Either way, these calls or visits can reveal previously unknown deficits in mental acuity or activities of daily living. Signs that indicate a need for help include stacks of unopened mail, debt collection activity, unusual withdrawals from accounts, disheveled appearance, an empty refrigerator and cabinets or the emergence of a previously unknown someone suddenly being their savior (most often this person is a financial predator).

In such cases, it is critically important to inquire about how much planning has been done. Many times, trusts, wills, powers of attorneys and health care proxies were put in place long ago and now is the time to act in the fiduciary role appointed. In other cases, there may be some documents but not others, or worse, no documents at all. If no documents have been prepared ahead of time, documents may still be put in place if the individual has legal capacity.

In terms of medical decision making, New York law authorizes the creation of a Health Care Proxy, a document appointing an agent to make medical decisions for someone who cannot make the decision for themselves at the time in question. When the principal regains the ability to make medical decisions, the proxy goes dormant. A well drafted proxy will appoint successor agents and include some direction to the agent. A living will can provide greater direction to an agent acting under a proxy. Generally, a living will states preferences and directives regarding life sustaining care and end of life decision making. While New York does not have a Living Will Statute, its directives

are to be followed so long as there is clear and convincing evidence of the individual’s wishes. See Matter of O’Connor, 72 N.Y.2d 517 (1988).

In the absence of a Health Care Proxy, New York law provides a structure for a surrogate to make health care decisions. See generally, N.Y. Public Health Law § 2994-d. It must be noted, however, that this statute applies only when the person is in a hospital, residential health facility or on hospice. See PHL § 2994-b. Further, the statue is limited in the guidance and the authority it provides. Specifically, health care decisions are to be made in conformity with the individual’s known wishes, including their religious and moral beliefs. See PHL § 2994-d(4)(a)(i). If the individual’s wishes are unknown, the statute provides a best interests standard and lists factors to be considered. See PHL § 2994-d(4)(a)(ii).

With regard to whom can make the decision, the statute sets out a hierarchy of (1) a guardian of the person, (2) a spouse (assuming no legal separation) or domestic partner, (3) an adult child, (4) a parent, (5) an adult sibling, or (6) a close friend, which the statute does attempt to define. See PHL § 2994-d(1)(a-f ). When the decision maker is a guardian or spouse, there is little chance of real conflict; however, the same cannot be said of children, parents, siblings or close friends. Conflict among an equal class of individuals frequently results in the filing of an Article 81 guardianship.

With regard to appointing an attorney-in-fact, there is no statute that provides for decision making authority in the absence of a validly executed power of attorney. The General Obligations Law provides a statutory form that exists in many places on the internet to be downloaded and executed. See Generally, N.Y. GOL 5-1501 et seq. Nonetheless, it is often not executed properly. Sadly, this is true even when done under attorney supervision. Additionally, many people ignore the Statutory Gifts Rider. Unfortunately for those individuals, the value of the Gifts Rider cannot be underestimated when Medicaid planning is required. In light of these difficulties, an updated version of the statutory

form has passed both the Assembly and Senate and awaits the Governor’s signature. An article about the changes will be forthcoming once the bill is law.

While a power of attorney prepared using documentation other than the statutory form is not per se invalid, it is not afforded the same protections as a power of attorney using the statutory form. See GOL § 5-1504. Notably, if a duly executed statutory form power of attorney is not honored, a special proceeding may be commenced to require its acceptance. See GOL §§ 5-1504, 1510.

If no valid power of attorney exists, an Article 81 guardianship must be filed seeking to appoint a guardian of the property. Unfortunately, in practice, I have encountered numerous cases where a valid power of attorney exists but a guardianship proceeding is still required because the power of attorney failed to name a successor, failed to authorize certain powers or failed to include the gifts rider.

Guardianships may also be filed to revoke a power of attorney. However, such action can only be taken upon a showing that the principal lacked capacity at the time the power of attorney was executed, that the appointed agent violated his fiduciary duty, or upon the consent of all parties, including the attorney appointed for the person who executed the power of attorney. N.Y. Mental Hygiene Law § 81.29(d).

In conclusion, the holidays can be a stressful time for those with an aging loved one. The existence of properly executed advance directives can ease the transition of control between the principal and the agent. While the lack of advance directives is expensive and time consuming to cure, it can be done via an Article 81 guardianship. Ideally, your loved one has gotten in front of the issue and executed a health care proxy and power of attorney. •

A HOLIDAY INVENTORY: The Documents and Actions Required to Assist a Failing Parent

by Aaron Connor, Esq. • Pierro, Connor & Strauss, LLC • [email protected]


I am writing this before Thanksgiving and trying to figure out how to make a turkey for 3 people - my daughter who has moved back in with me and my son for

a take-out meal. That also means we won’t have the normal feeding frenzy that starts at Thanksgiving and goes until January. That can be good news. So this year, instead of putting on 5 pounds at the holidays, why not take off 5 pounds?

Here is my advice:

1) This one is a mandate. Don’t use the word “diet.” We know from years of research that people who “go on a diet” go off the diet and gain back the weight they lost. What’s necessary is a lifestyle change, an approach to eating that is new for you but will become a habit. The only way to do this is to sit down with yourself and think of what you can change. The best way to do it is to spend a day writing down everything you eat.

Since this is for you, there is no reason to skip writing down about the cookie you grabbed after breakfast or the Halloween candy that made its way to your desk. What’s your weakness and how can you change it in a way that works for you.

2) Tackling sweets is a good way to start. Can 5 cookies become 3? Can 2 doughnuts become 1? Can you scoop a little less ice cream?

3) If you drink beverages that contains calories - like soda, beer, wine, or juice, can you cut down the size or substitute something else you like? Can you handle the transition to unsweetened beverages like hot or iced tea or coffee. Even if you add a touch of sweetener to tea or coffee, you save about 100 calories compared to most other beverages.

4) Another suggestion is to add vegetables and fruit. These fill you up without adding too many calories so hopefully keep you from eating too much of higher calorie food. The recommended number of servings of fruit and vegetables per day (1/2 cup veggies, 1 piece of fruit or 1 cup greens) is 11 servings per day. Sit for a minute and think of how many servings you consumed yesterday. Do you even eat vegetables at lunch?

(The pickle with your sandwich does not count.) Add a large salad with limited dressing, eat baby carrots, keep washed apples in a spot easy to grab, place some clementines near your desk, munch on some celery or sliced cucumbers. Take double helpings of vegetables at dinner.

5) Never forget portion control. The recommended number of servings of poultry, meat and fish per day is 1-2 and portion size is 1/4 pound cooked (for a 2,100 calorie diet.) You are now rolling your eyes and me and saying “Are you kidding?” I’m not, but I am suggesting that if your usual is 12 ounces, you cut it down to 8 or 10.

6) Lastly, I am not a party pooper. It is good to try to do things to lift your spirits in the darkest days of winter, especially in the midst of a world-wide pandemic. I am only suggesting a little moderation at a time when those celebrations are more likely to be on Zoom.

May you all have a safe and happy holiday season. Remember that the light begins to return on December 21st. That is a joyful day! •

Taking On a New Challenge for Our

NEW HOLIDAY CELEBRATIONSby Ann Lapinski Esq. • [email protected]

INNOVATIVE SOLUTIONS FOR ATTORNEYS AND THEIR CLIENTS

Structured Settlement Annuities forPersonal Injury and Employment CasesMarket-Related Structured SettlementsNon-Qualif ied Structured SettlementsAttorney Fee Deferral StrategiesGovernment Benefit PreservationQualif ied Settlement FundsTrust ServicesLien ResolutionMedicare Set-AsidesProbate Coordination

Sage’s Comprehensive Services:

David HartSettlement Consultant

Direct: (315) 724