barnews...of albany law school’s course of study for “law office men.” that program allowed...

President’s Message

OCTOBER 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

Law Day Run ................................4

Matrimonial Law Update ...............5

Immigration Law Update ...............6

The Practice Page .........................7

Labor and Employment

Practice .......................................8

Surrogate’s Court Proceedings

and Updates ................................9

Michal P. Friedman Article...........11

Do You Know a Good Lawyer? ......12

Alternative Dispute Resolution .....14

Classifieds .................................16

CPLR Articles 50-A and 50-B ......17

Bench & Bar in the News ............19

Taking in Takeout ........................20

Diversity Internship Program

Students ....................................21

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Now that football season is in full swing, we hear a lot about coaching trees. Not a weekend

passes without a tutorial of the Parcells to Belichick to McDaniels variety. It’s professional football’s way of trying to project continuity and an attempt to seek insight into a coach’s philosophy by examining his heritage. If the National Football League can trace its lineage, why not the judiciary?

How about, in inverse order, the Roberts to Rehnquist to Jackson tree? Current Chief Justice John Roberts was a law clerk to former Chief Justice William Rehnquist, who was a law clerk to Albany’s own Justice Robert Jackson. If there’s any truth to the idea that the mentor shapes the philosophy of the

pupil, then perhaps Albany has place of honor in the current Supreme Court.

Justice Jackson came to Albany when he was 19 years old to take advantage of Albany Law School’s course of study for “law office men.” That program allowed students to graduate in less than three years if they had prior experience clerking at a law firm. After studying for only one year, Justice Jackson completed the course of study, but was not awarded a law degree because he had not yet reach the required age of 21 years (he was ultimately awarded his degree “nunc pro tunc” in 1941 when, as United States Attorney General, he returned to Albany Law School to speak at the commencement ceremony).

During his time in Albany, Justice Jackson lived at 267 Lark Street on the corner of Hudson Avenue in the Center Square neighborhood. If you’ve ever eaten at the Amazing Wok, Justice Jackson’s apartment was upstairs. It was just around the corner, in Washington Park, where Justice Jackson met his future wife, Irene, while they were ice skating on Washington Park Pond. They were married a few years later at St. Peter’s Episcopal church on State Street.

In an oral history finished shortly before his death, Justice Jackson explained that he chose Albany to attend law school because “the Court of Appeals sat there, the Appellate Division sat there, the

Supreme Court, the legislature and the whole state government. I thought I would learn more that was not in the books at Albany than any other place.”

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

As we all know, after Albany Law School, Justice Jackson went on to a distinguished career that included 20 years of private practice in Jamestown, New York, tenures as United States Solicitor General, United States Attorney General, Chief Prosecutor at the Nuremberg war crimes trials and thirteen years as an Associate Justice of the United States Supreme Court.

Chief Justice Roberts has often used an anecdote told by Justice Jackson to describe the roles of lawyers and judges. In the story, three stonemasons are asked what they are doing. The first responds, “I’m earning a living.” The second responds, “I’m following a pattern.” The third lifts his eyes toward the heavens and responds, “I’m building a cathedral.” According to Justice Jackson, it is not enough to practice law solely to earn

a living; nor is it sufficient to blindly follow precedent. In the words of Chief Justice Roberts: “Members of the bench and bar must aim their efforts at working together to build a cathedral: What we call the rule of law.”

When asked to choose the portraits that should hang in the Justice’s private conference room at the Supreme Court, Chief Justice Roberts chose the portrait of Justice Jackson – perhaps as an acknowledgment of his own “judging tree,” a tree that has its roots here in Albany.

MICHAEL P. MCDERMOTTACBA President 2020

PRESIDENT’S MESSAGE (continued from p.1)

Elayne GoldChristian CassaraElena PabloDominique Ryan

Chris CechCatherine SmithMehak JamilKevin Abessi

Leila DwyerStefan DunkelgrunCatherine Kemp

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.

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MATRIMONIAL LAW UPDATE

The outbreak of COVID-19 has undoubtedly affected many Americans. Not only has there been health implications caused by this virus, but its impact on the economy, and

therefore the workforce, has left many individuals in a bind financially. This fiscal predicament is further compounded when a child support obligation is looming overhead; especially if the amount payable is no longer plausible given changes caused by the pandemic. As a result, modification of the obligation may be warranted.

Pursuant to Family Court Act §451(3) and Domestic Relations Law §236B(9)(b)(2), the court may modify an order of child support upon certain conditions. This allows for child support obligations to be malleable to unexpected changes. Involuntary loss of employment as a result of an unanticipated global epidemic may fall within the bounds of applicability under the aforementioned sections. “A party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that he or she diligently sought to obtain employment commensurate with his or her earning capacity.” Suyunov v. Tarashchansky, 98 A.D.3d 744 (2nd Dep’t 2012)[See, Matter of Ceballos v. Castillo, 85 A.D.3d 1161 (2nd Dep’t 2011 ); Matter of Belmonte v. Dreher, 77 A.D.3d 937 (2nd Dep’t 2010)].

In the most general application of this provision, when a party loses their job, through no fault of their own, then a modification may be permissible. The key factor therein being, “through no fault of their own,” meaning that the party cannot voluntarily leave, quit, or purposefully cause their termination. This is common when an employer makes corporate changes, restructures, downsizes, or otherwise eliminates a position. Proof of termination is critical and can be satisfied via letter from the employer, testimony at a hearing,

or other reputable form of documentation. An unforeseen, and legitimate, change in one’s health or ability to maintain a current position can also serve as a loss of employment.

If the Court finds that the payor-parent did, in fact, lose their job through no fault of their own, then the burden shifts to prove that reasonable attempts to find new work commensurate with the prior position were made by the party seeking the modification. The payor must show that they are trying to find similar employment to their prior position, and may even have to take some sort of temporary position to provide some support in the meantime. For example, in Smith II v. McCarthy, 143 A.D.3d 726, 728 (2nd Dep’t 2016), the payor proved he had made diligent good faith efforts to obtain new employment in the field of aviation electronics before accepting a lesser salaried position as a correctional officer.

Unfortunately, with the partial closing of the economy, the potential to find new work saw a significant downturn during the thick of the epidemic. With the economy seemingly opening back up again, searches may be more fruitful. However, what is required by the Court is that a “reasonable and good faith effort was made.” This is a subjective basis and allows the Court’s discretion to give the payor credit for their efforts based on the circumstances, so long as diligence is corroborated. In Riendeau v. Riendeau, 95 A.D.3d 891 (2nd Dep’t 2012), the Court found that the payor’s unsubstantiated, conclusory allegations that a diligent search for employment commensurate with the party’s qualifications and experience were insufficient to meet the burden for modification burden.

If the payor cannot meet their burden of proof, as set forth above, then the Court may impute income to that party based on their potential earning capacity, and not their current income situation. Domestic Relations Law §240(1-b)(b)(5) sets forth the various forms of what may, or may not, be considered income in such cases.

The Court may impute minimum wage income to the payor, even if they are

not currently working, or consider any unemployment income received while out of work. The Child Support Standards Act can also be extended to include other forms of income, such as Social Security, veteran’s benefits, retirement benefits, such as pensions, 401(k)s, and IRAs, annuity payments, and disability benefits.

Certain assets may be included toward a calculation of total income, such as nonincome producing property, life insurance policies, discharges of indebtedness, recovery of bad debts and delinquency amounts, gifts and inheritances, lottery winnings, and money, goods, or services provided by relatives and friends. These considerations may entail onetime lump sum awards, or other infrequent payments received from differing sources. Although they are not consistent streams of income, they still represent monetary benefits that could be used to help financially support the parties’ child[ren], or should be used to characterize a more accurate financial status.

Monies generated from investments are eligible for income considerations, as well. This entails the profit received from the investment. For example, if the payor receives significant annual income via dividends and other returns from investments, even if not received periodically throughout the year (i.e., a lump sum), then the same shall be considered as part of their income, even though it is an inconsistent source of finance. There is a caveat, though, as investment income is subject to a reduction based on sums spent in furtherance of said investment. Within reason, reinvesting said dividends and other return on investment, can be a permissible allowance, at the discretion of the Court. However, if it is clear that a party is attempting to hide money for child support purposes by reinvesting, then the Court may consider this, as well.

If the Court determines that a payor voluntarily left their job, or has not appropriately sought commensurate work, then the Court may impute income based

Joseph P. Drescher, Esq. • Mack and Associates PLLC • [email protected]

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

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IMMIGRATION LAW UPDATE

Sometimes the idea for articles seemingly drop from the heavens. In this instance, it came from the New York TIMES. The article, The President’s Taxes: Long-

Concealed Records Show Trump’s Chronic Losses and Years of Tax Avoidance, is the apparent “September Surprise” in the 2020 presidential election. (Although one could argue that with the President’s contraction of COVID, perhaps there is an “October Surprise” after all.)

In terms of the President’s income taxes, Twitter (and other more mainstream media)1 has been of course alight with all sorts of buzz as to how much you pay in income taxes relative to the President, how much I pay, and so on. But the one Tweet that did catch my eye, and it quickly became more than one, is how much in income taxes undocumented immigrants pay to the federal government each and every year. According to this Tweet (and it was from someone who I do not follow, but who was re-tweeted by someone I do follow), undocumented immigrants paid $27,000,000,000.00 in taxes in 2017. (I have no idea whether this Tweet is factually accurate.) President Trump, according to the New York TIMES’ article, paid a mere $750.00 in federal income taxes. So I’ve done some digging.

Let me paint a picture for you. Often I will have a potential client in my office who is looking for a way to lawfully stay in the United States. While assessing his or her circumstances, more often than not they will tell me that they’ve worked in the United States for a number of years

(sometimes many many years) and have always paid taxes. They’re also able to document that for me too. They pay taxes for any number of reasons, including just wanting to do the right thing.

Undocumented immigrants pay taxes either using an Individual Taxpayer Identification Number (“ITIN”), which over the years has evolved in terms of who was eligible to obtain one. Some, of course, use other people’s Social Security Numbers. Some use fake Social Security Numbers. The takeaway, however, is that they’re paying taxes into a system that most will not get any benefit from.

Current data is difficult to come by. In a 2014 Internal Revenue Service (“IRS”) Nationwide Tax Forum, the IRS estimated that individuals using ITIN’s paid over $9 billion in withheld payroll taxes annually. According to the IRS, in 2015, 4.4 million people paid $23.6 billion in total taxes using an ITIN.2 Because undocumented pay into a system that they are not eligible to collect benefits from when they retire, in 2010, $12 billion more was collected from Social Security payroll taxes of undocumented workers than were paid out in benefits.3

According to the Institute on Taxation and Economic Policy (“ITEP”), undocumented immigrants paid $11.6 billion in state and local taxes in 2013, which includes $7 billion in sales taxes, $1.1 billion in state income taxes, and $3.6 billion in property taxes.4

The clear take away is that undocumented immigrants are paying a substantial amount of incomes taxes (both state and federal), as well as other types of taxes too (e.g., property taxes, sales tax, etc.), including, according to one report, tens of thousands of dollars by prior employees of one or more of Trump’s own companies.5

We can debate all day long whether the President’s position that he’s practicing smart tax avoidance, using lawful means to deduct legitimate business expenses, losses, etc., is appropriate. There is, however, something that does not sit well with me (anyway) when undocumented immigrants are paying so much into a system that they will likely never benefit from, and our President is paying in so little.

Let that sink in. •

1 See, e.g., https://www.washingtonpost.com/nation/2020/09/28/trump-taxes-returns-comparisons/.

2 National Taxpayer Advocate, Annual Report to Congress, Vol. 1, Internal Revenue Service, 2015, 199-200, https://taxpayeradvocate.irs.gov/Media/Default/Documents/2015ARC/ARC15_Volume1.pdf.

3 “Effects of Unauthorized Immigration on the Actuarial Status Of the Social Security Trust Funds,” by Stephen Goss, Alice Wade, J. Patrick Skirvin, Michael Morris, K. Mark Bye, and Danielle Huston (Actuarial Note, No. 151, April 2013), Social Security Administration, Office of the Chief Actuary, Baltimore, Maryland.

4 “Undocumented Immigrants’ State & Local Tax Contributions”, by Lisa Christensen Gee, Matthew Gardner, and Meg Wiehe, Washington, DC: Institute on Taxation and Economic Policy, February 2016, http://www.itep.org/pdf/immigration2016.pdf, p. 2.

5 See, e.g., https://www.nydailynews.com/news/politics/ny-undocumented-trump-workers-paid-taxes-20200930-xjak5swyq5hjnnuop5cu7ipal4-story.html

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

Taxes and Immigration

https://www.nytimes.com/interactive/2020/09/27/us/donald-trump-taxes.html?action=click&module=Spotlight&pgtype=Homepage






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]

CPLR 306-b provides that once an action has been commenced by the filing of the required initiatory paperwork, service of process upon the defendant is to be made within 120 days. There is

an exception for actions governed by a statute of limitations of four months or less, in which case service is to be effected not later than 15 days from the expiration of the statute of limitations. Either way, if service is not made within the statutory deadline, the court “shall” dismiss the action without prejudice. But even that seemingly-mandatory language is not actually mandatory, as CPLR 306(b) directs that the same court may extend the time for service “upon good cause shown” or “in the interest of justice.” Attorneys should monitor their process servers to assure, where ideally possible, that service of process is accomplished within the statutory period so that no time extension need be sought in the first instance.

Good cause shown and the interest of justice are two different standards.1 Attorneys seeking time extensions for service, or opposing the extension requested by an adversary, should direct their evidence, arguments, and attention to either or both of these individual statutory standards. To establish “good cause,” a plaintiff must demonstrate reasonable diligence in attempting service.2 Good cause will not exist if

a plaintiff fails to make any effort at service3 or fails to make at least a reasonably diligent effort toward doing so.4 By contrast, good cause may be found to exist where the plaintiff ’s failure to timely serve process is a result of circumstances beyond the plaintiff ’s control.5

The separate “interest of justice” standard is looser. It includes the difficulties in effecting service as with good cause, but also includes other factors such as whether the statute of limitations has expired, the merits of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant.6 Each of these factors make sense. If the statute of limitations has expired as to prevent a new action if a service extension is denied, that factor favors the grant of an extension, particularly as the plaintiff ’s failure to obtain personal jurisdiction disqualifies a six-month extension of CPLR 205(a) for the re-commencement of a second action. Merit should be considered, as there is more reason for a court to grant a time extension for an action where the plaintiff demonstrates potential merit than one that has little or none. The less the delay in effecting service, the more this factor favors a time extension. The same is true when motions to extend service, which can be filed before or after the 120 day time frame, are made sooner rather than later. Prejudice to the defendant is also properly part of the equation, which is more likely to exist the later the plaintiff ’s motion is made. Each case presenting these issues will be decided based upon its own unique cocktail of facts and merits.

The grounds for a time extension might be met under one standard or the other, or neither. Ultimately, the court’s decision on whether to grant or deny additional time for service of process, under either standard, is a matter of judicial discretion.7 The task for attorneys advocating or opposing CPLR 306-b motions is to marshal evidence and argument that directly pertains to the “good cause” standard and/or the various factors of the “interest of justice” standard. Since the failure of a plaintiff to effect service within 120 days of filing can result in the dismissal of an action, the statutory time pressure and related issues should be taken seriously by the practicing bar. •

1 Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 100, 104.

2 Bumpus v New York City Transit Auth., 66 AD3d 26, 31.

3 Valentin v. Zaltsman, 39 A.D.3d 852.

4 Kazimierski v. New York Univ., 18 AD3d 820.

5 Bumpus v New York City Transit Auth., 66 AD3d at 32 (inability to identify and serve a “Jane Doe” defendant); Greco v. Renegades, Inc., 307 AD2d 711 (difficulties with locating defendant enlisted in military); Kulpa v. Jackson, 3 Misc.3d 227 (difficulties associated with service abroad through the Hague Convention).

6 Leader v. Maroney, Ponzini & Spencer, 97 NY2d at 105–106; Matter of Jordan v. City of New York, 38 AD3d 336, 339.

7 Williams v St. John’s Episcopal Hosp., 173 AD3d 1117.

TIME EXTENSIONS FOR SERVICE OF PROCESS

on his or her former income, earning capacity, or former financial resources. This is especially true if that parent had the ability to reasonably continue their prior employment, or if the Court determines that the payor reduced resources or income, in order to reduce or avoid his or her obligation for child support. This provision is to account for parties that are “under working,” or voluntarily left a higher paying job to avoid a higher child support

responsibility. Unless there is a legitimate and provable reason, as determined by the Court, for why the payor is not earning what they have the ability to earn, then that party’s earning capacity will be used, as opposed to what they actually bring home.

The uncertainty caused by COVID-19 has created unique situations to be handled soon, if not currently, by the Courts. It will be interesting to see how the increase in

unemployment caused by the pandemic, and/or the potential rehiring of those laid-off or furloughed during its peak, will manifest within the legal system. There will also, inevitably, be untoward attempts to use the epidemic to wrongfully reduce child support obligations as well. Regardless, it is safe to say that this pandemic was infectious to the institution of child support. •

MATRIMONIAL LAW UPDATE (continued from p.6)


LABOR & EMPLOYMENT PRACTICE

On Setember 11, 2020, the U.S. Department of Labor (“USDOL”) issued new regulations for the Emergency Paid Sick Leave Act (“EPSLA”) and Emergency Family and

Medical Leave Expansion Act (“EFMLEA”). These two Acts are key provisions of the Families First Coronavirus Response Act (“FFCRA”), the federal law that provides emergency relief and support to employees who need to be absent from work due to COVID-19 related reasons. The USDOL issued the new regulations, which take effect on Wednesday, September 16, 2020, in response to a recent decision by Judge Paul Oetken of the United States District Court for the Southern District of New York that vacated certain portions of USDOL’s prior regulations implementing EPSLA and EFMLEA. The key takeaways from the new regulations are summarized below.

Work Must Still be Available for an Employee to Take LeaveIn its prior rule, USDOL indicated that EPSLA and EFMLEA leave are available only where the employer has work available for the employee to perform (e.g., the employee is expected or scheduled to work on the day(s) for which he or she is seeking to use leave). The District Court struck down this requirement, taking issue with the USDOL’s “barebones” explanation for the requirement.

The new rule reaffirms the requirement that employees may take FFCRA leave only if work is otherwise available to them. In reaffirming this requirement, USDOL explained that the purpose of the EPSLA and EFMLEA was to discourage potentially infected employees from reporting to work. If there is no work available, there is no need to discourage such employees from going to work. USDOL also explained that its requirement that work be available is consistent with the general understanding of the term “leave” as an excused absence from work, as well as the manner in which traditional FMLA has been interpreted and applied.

Definition of “Health Care Provider” – New DefinitionUnder the EPSLA and EFMLEA, employers may bar employees who are “health care providers” or “emergency responders” from taking leave. In its prior rule, USDOL adopted an exceptionally broad definition of the term “health care provider,” which Judge Oetken struck down as untethered from the statutory text. In response, the new rule defines “health care provider” as:

• Any employee who is a health care provider under the existing FMLA regulations (this includes doctors of medicine and osteopathy, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse-midwives, clinical social workers, physician assistants, certain Christian Science practitioners, and other providers from whom the employer or its group health plan’s benefits manager will accept certification of a serious health condition for purposes of substantiating a claim for benefits);

• Any other employee who is capable of providing diagnostic, preventative, or treatment services; and

• Any other employee who is capable of providing other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.

USDOL indicates that whether an employee qualifies under this new, more limited definition will be a fact-specific analysis based on the duties the employee performs. The regulations specifically identify several examples of the types of employees who qualify, including:

1. nurses, nurse assistants, medical technicians, and others directly providing diagnostic, preventive, treatment, or other integrated services;

2. employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and

3. employees who are “otherwise integrated into and necessary to the provision of health care services,” such as laboratory

technicians who process test results necessary to diagnosis and treatment.

By contrast, workers who do not actually provide health care services, even if their services could affect the provision of health care services, may not be excluded from taking EPSLA and EFMLEA leave. This includes IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers.

Employer Consent Required for Intermittent Leave, but “Intermittent” is Defined a Bit Differently for School Closure LeaveUSDOL’s prior rule allowed an eligible employee to take EPSLA and EFMLEA on an intermittent basis when his or her child’s school or place of care was closed or unavailable due to COVID-19, but only with the employer’s consent. The District Court vacated this requirement of employer consent, finding that USDOL did not offer an appropriate justification for it.

In its new rule, USDOL reaffirms the prior consent requirement and offers further justification for this requirement. Specifically, USDOL noted that, unlike traditional FMLA, the EPSLA and EFMLEA do not expressly address intermittent leave, which USDOL views as Congress affording it broad authority to issue regulations filling this statutory gap. USDOL also reasoned that under traditional FMLA, intermittent leave is permitted only for certain qualifying reasons (e.g., where such leave is medically necessary) or where the employer and employee agree to intermittent leave (e.g., bonding leave following birth or placement of a child). In the COVID-19 context, the USDOL noted that the EPSLA and EFMLEA should balance the employee’s need for leave against the employer’s interest in avoiding work disruptions. In this regard, the USDOL viewed the new leave as most akin to an employee taking intermittent FMLA leave following the birth or placement of a child, and therefore, reaffirmed its requirement that employees must obtain their employer’s consent prior to taking EPSLA or EFMLEA leave on an intermittent basis.

Critically, however, USDOL now appears to define intermittent a bit differently

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

continues on p.10�


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

SCPA ARTICLE 17 GUARDIANSHIPS AND SPECIAL IMMIGRANT JUVENILE STATUS

While Surrogate’s Court is primarily known for processing estates for deceased persons, the Court also has jurisdiction over several types of proceedings that are unrelated to decedent’s estates. One of these is a proceeding for the appointment of a guardian for a minor pursuant to SCPA article 17 accompanied by a motion for an order of special findings that can be used to obtain special immigrant juvenile status (SIJS). SIJS is an immigration classification available to certain undocumented persons under the age of twenty-one and was established under the Immigration and Nationality Act. In recent years, the majority of our SCPA article 17 filings have included SIJS-related motions.

An order for special findings may also be obtained in an adoption proceeding (see Matter of Emma M., 74 AD3d 968 [2d Dept 2013]), although our Court has not seen these applications in our adoption proceedings in recent years. Family Court also has jurisdiction over SCPA article 17 guardianships (person only) and adoptions, as well as several other types of proceedings in which a SIJS guardianship can be sought.

What is Special Immigrant Juvenile Status?A special immigrant juvenile is one who is present in the United States and “has been declared dependent on a juvenile court . . . and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law” and “for whom it has been determined . . . that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence” (8 USCA § 1101 [a] [27] [J]).

The order of special findings issued by Surrogate’s Court does not, by itself, change a juvenile’s immigration status. Rather, the order is part of a juvenile’s application to the United States Citizen and Immigration Services (USCIS) to become

a lawful permanent resident and obtain a green card. The order of special findings “is merely a step in the process to assist USCIS and its parent agency, the Department of Homeland Security, in making the ultimate immigration determination” (Matter of Keilyn GG. [Marlene HH.], 159 AD3d 1295, 1296 [3d Dept 2018]).

How Does One Obtain an Order of Special Findings?As noted, an order of special findings is issued by Surrogate’s Court in the context of a guardianship proceeding pursuant to SCPA article 17. Surrogate’s Court has authority to appoint a guardian of the person of a juvenile regardless of whether the parent(s) of the juvenile are living (see SCPA 1701). Any person may petition to be appointed as the guardian (see SCPA 1703). This includes parents, relatives, and non-relatives (see Matter of Marisol N.H., 115 AD3d 185, 189-190 [2d Dept 2014]). A proposed guardian may be a parent, but in the context of a SIJS, is often a teacher, counselor, mentor or adult friend of the juvenile. Frequently, the proposed guardian is active in the juvenile’s life and has already taken steps to help the juvenile in obtaining educational, housing or medical services. The proposed guardian need not live with the child, nor does the proposed guardian need to have lawful immigration status.

Procedurally, the petitioner must submit all of the necessary paperwork for a guardianship, and additional motion papers in support of the special findings order. The forms for a guardianship, along with an instructional checklist, can be found on the Unified Court System website. These include a petition, a joinder and statement of preference for a juvenile 14 or older, and an affidavit by the proposed guardian. In addition to these forms, the petitioner should submit the juvenile’s birth certificate and a completed address history form, called a Request for Information, by the proposed guardian, which will be submitted to the Office of Children and Family Services (OCFS) to search the Statewide Central Register of Child Abuse and Maltreatment. SCPA 1706 (2) requires that the court inquire with OCFS as to whether a proposed guardian, or any other adult

resident of the proposed guardian’s home, has been the subject of an indicated report or is currently under investigation.

The guardianship statutes do not require that any of the parties be fingerprinted; however, some Family and Surrogate’s Courts judges have added this requirement in their discretion. This requirement, unfortunately, may discourage potential proposed guardians who lack a secure immigration status.

The petitioner should also submit waivers and consents from interested parties or a citation to be issued to those parties if appropriate. The necessary parties to a guardianship proceeding are the juvenile’s parent(s) and spouse, if they are within the state and their residences are known and within the state; the person having care and custody of the juvenile; and the juvenile (see SCPA 1705).

To obtain an order of special findings, the petitioner should also submit a notice of motion, an affidavit in support, a memorandum of law, exhibits which support the motion, and a proposed order. An official proposed order form can be found in the Family Court section of the Unified Court System’s forms website.

Upon filing of all necessary forms and supporting documentation, receipt by the court of the OCFS background check, and obtaining jurisdiction over all necessary parties, our Court will schedule a hearing on the guardianship and the special findings motion. The proposed guardian, the juvenile and their counsel shall appear before the judge and provide testimony in support of their applications. The court will supply an interpreter if necessary, either in person, by telephone or virtually. Petitioners should notify the court prior to scheduling the hearing if an interpreter is needed.

The primary issues for the Court to determine are whether the guardianship is in the best interest of the juvenile, whether the proposed guardian is an appropriate guardian, and whether the criteria necessary for an order of special findings has been established.

Proceedings and Issues: An Insider’s View



The SIJS RequirementsIn order to be eligible for SIJS, the juvenile must show the following:

• Juvenile is under the age of 21,

• Juvenile is unmarried,

• Juvenile is dependent on a juvenile court,

• Juvenile is unable to be reunified with one or both parents due to abandonment, abuse, neglect or a similar basis, and

• It is not in the juvenile’s best interest to be returned to the home country (see 8 CFR§ 204.11).

The first couple of factors are generally undisputed and may be established by the birth certificate and the verified petition or an affidavit in support of the motion. Dependency on a juvenile court is established by reason of the court having granted the guardianship petition (see Matter of Keilyn GG. [Marlene.], 159 AD3d at 1296).

The reunification factor and the best interest factor are more complex. The reunification factor is established by the factual circumstances of the juvenile’s

relationship with one or both parents, as set forth in the verified petition or an affidavit, and testimony provided during the hearing.

The petitioner only needs to establish that reunification is not possible with one of the parents (see Matter of Marcelina M.-G. v Israel S., 112 AD3d 100, 110-111 [2d Dept 2013]). The juvenile may still have a relationship with the other parent; in fact, that parent may even be the proposed guardian. As noted by the Appellate Division, Third Department, in a case reversing Family Court’s denial of a motion for an order of special findings, “‘[t]he fact that the mother was available as a custodial resource for [the child] does not, by itself, preclude the issuance of special findings under the SIJS statute’” (Matter of Keilyn GG. [Marlene HH.], 159 AD3d at 1297, quoting Matter of Marcelina M.-G. v Israel S., 112 AD3d at 111).

As for establishing abandonment, abuse or neglect, the standard applied by a juvenile court is based on New York law (see 8 USC § 1101 [a] [27] [J] [i]). Family Court Act § 1012 and Social Services Law § 384-b contains definitions of these terms.

Finally, in determining whether it would be in the juvenile’s best interest to return to

the home country, the court should consider the individual juvenile’s circumstances. This review “must balance a number of factors, including the child’s safety and well-being in each country, the availability of a place to live and someone to care for the child were the child returned to his or her native country or place of last habitual residence and the relative educational and employment opportunities available to the child” (Matter of Keilyn GG. [Marlene HH.], 159 AD3d at 1298 [citations omitted]; see generally Eschbach v Eschbach, 56 NY2d 167 [1982]; see also Matter of Gabriela Y.U.M. [Palacios], 119 AD3d 581, 583-584 [2d Dept 2014]; Matter of Marisol N.H., 115 AD3d at 191).

If the Surrogate is satisfied that all of the requirements for an order of special findings have been met, she will issue the order following the hearing. The matter is then concluded in Surrogate’s Court; however, the juvenile needs to take additional steps to apply for SIJS with USCIS.

Surrogate’s Court practitioners looking to assist eligible juveniles in these proceedings should work together with immigration counsel to ensure all necessary steps are taken. We look forward to seeing you here in Albany County Surrogate’s Court! •

SURROGATE’S COURT (continued from p.9)

LABOR AND EMPLOYMENT PRACTICE (continued from p.8)

when an employee’s child participates in hybrid learning in which schools operate on adjusted or alternating schedules. According to USDOL, each school closure under a hybrid model “constitutes a separate reason for . . . leave that ends when the school opens the next day.” In other words, intermittent leave is not necessary (and therefore neither is the employer’s consent) where the school literally closes and opens repeatedly. So, for example, an employee does not need to take intermittent leave (and thus does not need employer’s approval) to take off Tuesday and Thursday due to his or her child’s school closure, because each day is a separate school closure entitling the employee to leave. The same reasoning applies to longer and shorter alternating schedules, such as where an employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week and the employee takes leave to care for the child during the half-days or weeks in which the child does not attend classes in person. So in the school/childcare closure context, the USDOL regulations take the

position that intermittent leave is applicable (and employer consent is required) only where an employee seeks leave for a portion of the time that his or her child’s school or place of care is closed.

Documentation Requirements – Now “As Soon As Practicable”USDOL’s prior rule required employees to provide documentation supporting the need for leave “prior to” taking leave. The District Court upheld the documentation requirement, but invalidated the requirement that such documentation be provided in advance.

USDOL’s new rule indicates that workers must provide documentation, consisting of their name, the date(s) for which leave is requested, the qualifying reason for the leave, and an oral or written statement that the employee is unable to work because of the qualified reason for leave, “as soon as practicable.” However, the rule also indicates that, in most cases, “as soon as practicable” will be when the employee provides notice of the need for leave. Where an employee seeks EFMLEA leave

to care for a child whose school or place of care is closed, USDOL confirmed that the employee must provide the employer with notice of leave as soon as practicable under the circumstances. And where EFMLEA leave is foreseeable (e.g., employee learns in advance that school will be closed), USDOL anticipates that employees will ordinarily be able to provide notice before taking leave.

Implications and Next StepsEmployers may understandably be feeling some whiplash due to the court decision a few weeks ago and now the new USDOL rule. While the new rule provides some clarity on unanswered questions resulting from Judge Oetken’s decision, it is not certain what will come next. USDOL could still appeal the District Court ruling to the United States Court of Appeals for the Second Circuit and it seems probable that there will be renewed challenges to the USDOL’s latest iteration of these regulations. Either of these steps could result in the USDOL publishing further guidance or regulations in response. •


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

This month, America will celebrate its eleventh Domestic Violence Awareness Month, one of the only accomplishments of President Barack Obama that President Trump has not tried to undo. At least not yet. Domestic Violence Awareness month has been part of the National Coalition Against Domestic Violence since 1987. Here are the facts. Every nine seconds in the United States a woman is assaulted or beaten. On average, nearly 20 people per minute are physically abused by an intimate partner in the United States.1 Domestic violence is the leading cause of injury to women—more than car accidents, muggings and rapes combined. Every day in the United States, more than three women are murdered by their husbands or boyfriends.2 In New York State, over 228,000 Orders of Protection were issued in 2018 and last year over 61,000 Family Offense petitions were filed in Family Court.3 Nearly one in four women will experience domestic violence

during her lifetime. Slightly more than half of female victims of domestic violence live in households with children under the age of 12. A recent study by Rutgers University found a surge in domestic violence cases nationwide during the Coronavirus pandemic.

This year will also be the seventh anniversary of the Second Department’s decision in Cassie v. Cassie4 resulting in horrible injustice and the seventh year that a bill has sat in the Legislature to undo that shameful result. On February 11, 2012, Dionne Cassie’s husband tried to push her down the stairs of their home. He then twisted her arm causing her pain. He pushed her up against a wall. After a trial in Family Court, she received an Order of Protection. A year later the Appellate Division, Second Department reversed saying that this could not be disorderly conduct since that requires an intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.5 Putting aside that they could have found other Penal Law violations like harassment or assault, they said that husbands or other members of the same family or household can engage in fighting or in violent, tumultuous or threatening behavior against their wives so long as there is no public intent. They dismissed her petition and the Order of Protection. Welcome home Mr. Cassie.

Under the Family Court Act, disorderly conduct for a family offense does not have to be in public, but it still requires a public intent because the law is not properly drawn. So, go ahead and push your wife down the stairs or hit her, so long as you do not intend to do it in public, at least according to the Second Department and now all the appellate courts in New York. Cassie has been cited 53 times in appellate decisions and three times in published lower court cases. Fourteen times it has been cited dealing with the need for public intent in

family offense petitions. In 2018, the Second Department dismissed a disorderly conduct family offense case against a man who pulled a woman by the arm, pushed her against a wall and pushed her by the shoulders causing her to fall to the floor. Not good enough for an Order of Protection under disorderly conduct because of no public intent.6

So, why hasn’t the Legislature corrected this problem in seven years? I do not know but at least this year it finally moved out of committee and it has some significant support from legislators like sponsor Senator Rachel May and Albany County Bar Association’s own, Assemblyman Phil Steck.7 Or as Alexander Pope wrote, “Hope springs eternal in the human breast.” •

1 National Intimate Partner and Sexual Violence Survey, National Center for Injury Prevention and Control

2 National Coalition Against Domestic Violence

3 New York State Unified Court System Annual Report 2019

4 Cassie v. Cassie, 109 A.D.3rd 337 (2nd Dept., 2013).

5 See Penal Law § 240.20

6 Saquipay v. Puzhi, 160 A.D.3d 879 (2nd Dept., 2018).

7 New York State Senate Bill S6786A

“Since the 1994 passage of the landmark Violence Against Women Act, championed by then Senator Joe Biden, our Nation has strengthened its response to this crime and

increased services for victims. Still, far too many women and families in this country and around the world are affected by domestic violence. During National Domestic Violence Awareness Month, we recommit ourselves to ending violence within our homes, our communities, and our country.”

President Barack Obama Proclamation 8424, October 7, 2009.

“ The care of human life and happiness, and not their destruction,

is the first and only object of good government.”THOMAS JEFFERSON


Once upon a time, even if they knew the word, no one would say that the question is an oxymoron. Lawyers have been around for quite a while. In the Old Testament, Proverbs 31: 8, 9, we find: “Open thy mouth for the dumb, In the cause of all as are appointed to destruction. Open thy mouth, judge righteously, And plead the cause of the poor and needy.”

A bit later in ancient Greece, a young boy stuttered. In the year he turned seven, his father, a wealthy sword maker, died and left him an inheritance which today would be valued at around $11,000,000. The boy’s guardians embezzled huge amounts from the estate, leaving the boy with little upon which to live. When he discovered that the men his father trusted to look after him were stealing, he became determined to recover his inheritance, but under Greek law, at that time, (we really have come a long way) you could not pay someone to help you win the case. So, Demosthenes isolated himself and began what has to have been one of the first and most successful attempts at self-help. He taught himself to speak with pebbles in his mouth. He went down to the sea and spoke over the roar of the waves. He obsessively read every speech he could find of the greatest orators of the day. In 336 B.C., he came of age, took the guardians to court, won five separate trials and recovered all of the money they had taken from him. Word of his achievements spread. He helped others and became the patriarch of advocacy, one of the very first lawyers.

In those early days and for the next couple of thousand years, becoming a mouthpiece lacked the duration and expense of a legal education in 2020. Actually, law schools didn’t come into existence until 1774. Has anyone ever hear of Litchfield Law School in Connecticut? How about Tapping Reeve? He started the place which produced a number of graduates whose names might sound familiar. Before killing Alexander Hamilton in a duel and becoming the villain in the smash musical “Hamilton,” Aaron Burr matriculated at Litchfield.

In 1779 William and Mary became the first university to add a law school, but admission requirements did not include taking the LSAT or even graduating from high school. At that time and well into the 20th century, reading the law, not sitting inside a classroom, was how most people who held themselves out to the world as a lawyer, did it. Abe Lincoln clerked with a practicing attorney before he hung out a shingle, and, one of his most quoted remarks was “A lawyer’s time is his stock and trade.”

Oliver Wendell Holmes, Jr. had an overbearing father. A physician and poet, Dad was thought of as America’s greatest writer of the day - He penned “Old Ironsides.” Needing to get away from home, Junior joined the Union army in the Civil War, got wounded, returned to Boston and enrolled in Harvard Law School. After two weeks, he decided he had had enough and dropped out to become a practicing attorney. As far as we know, there were no CLE’s or anything else to bring or keep anyone who said they were a lawyer up to speed. OWH, Jr. served on the United States Supreme Court for 30 years.

If someone needed, or thought they needed, a lawyer, what would (could) they do? Abe Lincoln advertised in the “Illinois Review,” a newspaper with wide circulation in the mid-west. A couple of lawyers, John Bates and Van O’Steen graduated from ASU Law School in 1972, and after spending a year or so as public defenders, decided to open their own law office. They took out an ad in the “Arizona Republic,” a newspaper, to advertise their practice. The

State Bar of Arizona didn’t like it, disciplined them with a six month suspension. Our young enterprising attorneys didn’t like that so they sought recourse.

In Bates and O’Steen vs. the State Bar of Arizona, 433 U.S. 350 (1977), SCOTUS heard their case. The claim that the Sherman Anti-Trust Act was violated, as prohibiting restraint on trade, didn’t fly, but the argument that the State Bar violated the Constitutional rights of Bates and O’Steen, i.e., that their ads were commercial speech protected by the 1st and 14th Amendments, did. The decision was 5 to 4 (we can only wonder how the Court as presently constituted would have ruled) and included the directive that state bar associations could regulate the nature and extent of legal advertising.

One of us was practicing law at the time and recalls reading an ethics opinion from the NYSBA. It seems as though, in the early 1970’s, a lawyer on Long Island rented a storefront in a strip mall to use for an office. The sign left by the former tenant consisted of three-foot high letters spelling out the name of the store. The incoming attorney saw that by having only a few additional letters fabricated, he could spell out his name as attorney-at-law. When the sign was installed, the lawyers name and title were spelled out in three foot high letters. The sign was 28 feet long.

Just about every attorney in the area was outraged and filed a complaint with the NYSBA. King Solomon hadn’t been around for a few thousand years. Yogi Berra was limiting his rubrics to baseball. The ethics opinion went something like this: “A lawyer’s sign should be big enough to enable those seeking his office to find it, but not so big as to attract those who are not.”

So, what were the rules before Bates and O’Steen? And, what has been taking place since? This article is the first of two. Next month, we will comment on present-day advertising by lawyers and thoughts on where we might be headed.

We have learned that, from the beginning

A GOOD LAWYER?Do you know

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

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


of time until the 20th century, lawyers were unrestrained in doing what they dreamed up to attract clients. The intriguing question remains – is the practice of law a business or a profession? In 1908, the American Bar Association promulgated a “Canon of Ethics,” which was a usurpation of imagined power that sought control over an industry. SCOTUS, in the Bates decision, couched their decision on the exercise of free speech, but gave the reins of oversight and governance over the way lawyers could promote their services to the state bar associations.

Here, in New York, we have “The Lawyer’s Code of Professional Responsibility,” adopted in 1970, and amended in 2005. Canon 2, in part, addresses “Lawyer Advertising. Sections EC 2- 9 through 16 barely cover the phenomenon. The prime directive, as set forth in EC 2-9 dictates that: “The attorney client relationship is personal and unique and should not be established as a result of pressure and deception.” That hardly says it all.

Shortly after the Bates decision came down, the advertising media scrambled to pick up business. In the beginning, for the most part, they were thwarted. Again, one of us was in practice and senior partner of a law firm. As such, he was approached by a representative of the telephone company selling ads in the Yellow Pages. In that first year, the largest ad permissible was one inch from top to bottom in a column that was three inches wide. In the ensuing years, they increased the size to two inches, an eighth of a page, then a quarter, then a half, then a full page. This kicked off a trend that has continued to steamroll through the years.

Since Bates, the hustle and ingenuity of public relations companies selling promises to satisfy the perceived needs of law firms to increase billable hours, has created a marketing landslide where creativity, innovation and imagination are the earmarks of the purveyors, but truly say little about the product. Television commercials offer scrolls of fine print taken off the screen so quickly that the consumer has no time to read the provisos that some of what they say or show is a simulation and does not guarantee success. Why are many of the spokespersons “not an attorney?” Would you want to be represented by an attorney who is not eloquent or persuasive enough to do their own commercials? These days, ads for lawyers on television, are seen as

frequently as spots for beer, drugs, insurance, cars and detergent.

Any lawyer can purchase air time and tout themselves without any assurance given to the consumer that the attorney and counselor at law actually knows what they are doing. Lawyers have foolishly, but artfully, avoided doing what the medical profession has done for years – created areas of specialization. If you require brain surgery you will not seek out a dermatologist. If a doctor is Board certified, you’ll have some idea that they know what they are doing. If you are charged with murder you don’t want to get stuck with an attorney who does bankruptcies and has never stood in front of a jury. Yet, lawyers are not permitted to use the word “specialist” or “expert” in any form of advertising, other than in a few rather obscure instances.

Attorneys must attend CLE’s in order to practice law. If you sit in a room or online long enough to get the code, you get credit. Why? No one does anything to determine whether the subject matter of the program sunk in. If we trust lawyers to pay attention, why don’t we trust them to keep up on developments in the law on their own?

Options are available. This article is not designed or intended to do anything other than to be informative and provocative. In next month’s part II of this discussion, we will take a look at the way attorney advertising is done at the present time. Fifty years ago, the ethical opinion of NYSDA disapproved of enticement as a promotional strategy. What about the ads you see today on TV, over the radio, on billboards, pens, key chains, T-shirts, refrigerator magnets, and more places than we can imagine? Once Martindale-Hubbell, a voluminous directory that offered lawyers rating other lawyers was an important reference, not widely used by the public. Now there is AVVO, an online marketplace for lawyers.

As we pursue the subject of advertising next month, we will explore the extraordinary changes in attorney advertising and marketing because of electronic devices. Law firms have websites and blogs. Enterprising public relations companies barrage attorneys with pestering offers to send them referrals. Law firms clamor for clients by claims of having succeeded in making huge recoveries for the afflicted who were wronged tobacco companies or for people who contracted one disease or

another from one chemical or another, from the clergy, from the Boy Scouts and many other targets. The endless list of malefactors who deserve to be sued grows every week. How many lawsuits will be pressed because of COVID-19 or over claims of police brutality? The question we posed at the outset – “Do you know a good lawyer?” deserves to be answered.•

DO YOU KNOW A GOOD LAWYER? (continued from p.12)


Whether representing a plaintiff claiming injury, or a defendant claiming the plaintiff has no case, practitioners and liability insurance carriers recognize that alternative

dispute resolution (ADR) provides a valuable tool to resolve the claim in a timely and cost-effective manner. Both private mediation and arbitration have seen exponential growth in the past ten years in the Capital District. The recent creation and implementation of the Presumptive ADR Program by the Office of Court Administration complements private ADR through a “mediation default” model by the referral of cases to a roster of mediators. The practitioner now has a menu of ADR tools to advise the client on how to most effectively, and efficiently, resolve the case.

As a litigator in the Capital District since the early 1980s, I remember well that negotiation in a particular case followed a predictable, though “non-linear” path. There might be an ad hoc series of telephone conversations in which I negotiated with the attorney-adversary or insurance claims representative, and the eventual ten-minute “settlement conference” with the judge (whose caseload did not afford more time for the matter). In a last effort, I would negotiate with my adversary on Friday afternoon before picking a jury the following Monday, or quite literally “on the courthouse steps,” or after a day or two of proof. This was the tradition and accepted norm. While it worked, it was inefficient, circuitous and typically involved both sides spending time and incurring expense that could have been saved. It also required use of the court system’s resources, including summoning of prospective jurors. It seemed that only this “process” generated the necessary “heat” for a productive discussion.

In the 1990’s, there were efforts to bring some organization to the settlement discussion. For example, “settlement weeks” were held in some

local supreme courthouses, where a mediation-like process typically resulted in a fair number of settlements at an earlier juncture. There were also ad hoc “settlement days” in which a carrier’s claims representative would meet with the plaintiff ’s attorney to see if a number of cases could be settled in one sitting. But for the most part, lawyers engaged in the time-honored tradition of lawyer to lawyer or lawyer to claims representative telephone calls or day of trial reckoning to see if the case could be settled before the first jurors were seated.

Then, in the early years of the last decade, the concept of retaining a third-party neutral, known as a mediator, employed to facilitate a more organized settlement discussion, began to take root in the Capital District. While mediation has its historical use with Chinese elders thousands of years ago, and later in commercial disputes in England before 1066, its use in this country dates primarily to the early 20th century in the organized labor arena; and as time progressed, in large commercial cases and community dispute resolution. In Academia, the Harvard Negotiation Project was formed in 1979, headed by William Ury and Roger Fisher (whose names you might recognize from their 1981 book Getting to Yes). The theoretical concept was “principled negotiation”- finding acceptable solutions by determining which needs are fixed and which are flexible in negotiation. Separating the issues from emotion was also central to its approach. Alternative dispute resolution slowly found its way into the curriculums of law schools, comprised of course segments in mediation and arbitration, now commonplace with waiting lists of enthusiastic students.

In 2010, three highly respected Capital District litigators and I formed a company to offer mediation and arbitration services, focused on personal injury litigation. Collectively, the four of us have mediated and arbitrated thousands of cases. As of this writing, I have been engaged in more than 700 mediations and arbitrations.

New York State’s court system came to recognize the value of alternative dispute resolution, through the leadership of Chief

Judge Janet DiFiore. The Interim Report and Recommendations of the Statewide ADR Advisory Committee was published in February 2019, concluding the work of the committee established the year before. The initiative established a framework for a presumptive ADR program to be administered on a district wide basis. As a result, the majority of civil cases would be referred to ADR processes with the goal of earlier and more efficient resolution. The statewide Office of Alternative Dispute Resolution was created to assist local judicial districts in implementing the program. A central tenet of the program was flexibility on a districtwide basis, and even among judges themselves within the districts, to conduct “enhanced settlement conferences” or to direct referral of cases for mediation, arbitration or neutral evaluation. District ADR coordinators were hired to work with judges within each district to implement plans created within the districts. Once the Request for Judicial Intervention is filed, referral to ADR would take place at the preliminary conference, where a discussion would take place among the attorneys and judge about the appropriate ADR mechanism. For example, the attorneys for the parties might agree to utilize a mediator from the court roster, or choose a private mediator, or schedule binding arbitration. The program went into effect in September of 2019.

Alternative dispute resolution forums have grown in use and popularity in the private and public spheres for good reason. While the jury trial has always been, and should always be, a right available for individuals to have their grievance heard and decided by a “jury of their peers,” the exponential growth in the cost of litigation, for both sides, as well as the length of time to “get the case to the courtroom” (particularly hard felt in the five boroughs of New York City with its population of over eight million people) has paved the way for less costly and faster ways of resolving disputes. Moreover, studies have shown that mediation provides a civilized, client-centered mechanism that fosters a sense of satisfaction with the legal system by both sides. Put another way, in addition to

COMING OF AGE

Jeffrey K. Anderson, Esq. Anderson, Moschetti and Taffany, PLLC

[email protected]

ALTERNATIVE DISPUTE RESOLUTION AND THE PERSONAL INJURY ATTORNEY



cost and time savings, people on both sides in litigation feel as though they “get some justice”, in contrast to negative feelings sometimes engendered by the “winner takes all” outcome in the courtroom. As President Abraham Lincoln (himself known as a skilled trial attorney) advised trial lawyers, in a prescient statement more than a century ago:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time.

PERSONAL INJURY MEDIATION—A PRIMER

The mediator’s role is to assist the parties in resolving their dispute by encouraging and facilitating the discussion and consideration of their options, by assisting problem-solving and helping the parties craft a solution. The mediator does not make decisions, does not decide who was right or wrong, is neither judge nor jury. Various techniques are employed to guide the parties to a solution, whether monetary or otherwise, that meets their interests and goals to the extent possible. The basic structure of a typical mediation involves an initial joint session—a meeting of all parties, followed by a series of caucuses, which are private meetings among the mediator, lawyer and client or claims representative. In caucus, confidential information can be shared with the mediator, with the knowledge that it will not be shared with the other side.

Whether the parties voluntarily decide to mediate their case, or are referred to mediation through the presumptive ADR program, the first task is to choose a mediator. If utilizing the state’s ADR program, the parties are directed to a roster of names to consider. If the parties choose to mediate privately, there are numerous individuals and companies from which to choose.

Qualities of a good mediator, according to studies on the subject, include: an individual skilled in mediation process, knowledgeable in the area of law in which the dispute arose; a personality and demeanor that will facilitate a constructive dialogue; and the ability to work through impasse and promote constructive resolution of the dispute. Attorneys typically exchange emails to get to the “short list” of favored mediators, and then agree on one to

engage. In my experience, lawyers prefer a mediator with a depth of experience in the substantive area of law in the case.

Once a mediator is selected, date, time and location are determined by agreement. The mediator requests that the parties provide submissions containing information that each party believes will promote a favorable view of the case by the mediator. This is done through education about the facts of the case, applicable law, and relevant records including deposition transcripts, medical records, IME reports, decisions on motions, reports of an economist or vocational expert, scene/injury photographs; and other information that the attorney believes will assist the mediator in helping to “shape the conversation.” While sometimes attorneys decide not to share their submissions with each other, I believe that sharing enables the attorney or claims representative for the other side to better evaluate its position by being able to consider clearly statements of the claims or defenses made by the other side. Information intended only for the mediator’s eyes can be provided in a separate confidential submission, through a telephone conversation prior to the mediation, or during caucus at the mediation.

My advice for the most effective submission is one that embodies all of the best information and arguments that the advocate can make: specific information from the medical records, deposition testimony and other sources, through referenced quotations. It should also include a recognition of issues that may represent the “soft underbelly” of a claim or defense. Credibility of the client’s cause or defense is enhanced by focus on the strong points, as well as a willingness to acknowledge vulnerabilities, reducing their negative impact by candor through reasoned statements. The best mediation submission is written only after a thorough review of the file, research of relevant points of law, and a meeting with the client to discuss the framework of the attorney’s evaluation, the mediation process and range of possible acceptable outcomes. A submission written without undertaking this process may handicap the attorney in presenting the best points supporting the evaluation of the case, enable the adversary to prevail on a fact or point of law not considered, or worst of all, lead to disappointment by a client who is suddenly shocked to hear that a proposed range of settlement is far different than envisioned.

Preparation of the client for mediation should

not be for a half-hour on the morning of mediation. Thorough evaluation of the case through analysis of all available information, discussion of the attorney’s evaluation and of the mediation process itself should take place well in advance of the mediation. The client should understand how the initial joint session is conducted, and that appearance and demeanor may impact how opposing counsel or claims representative “sizes up” the claim. Often, it is the first time the claims representative meets the client. The attorney should carefully consider whether and to what extent the client will be permitted or encouraged to speak during the initial joint session. While typically the client says very little, there are cases where more involvement may enhance the other side’s evaluation of his cause, depending upon how sympathetic in demeanor. Beyond this, the structure and “mechanics” of a mediation should be explained to the client. Settlement demands and offers, caucusing, how to best communicate with the mediator, how long the mediation may take, and the fundamental fact that the first demand is typically a “long way” from the final offer should all be part of that process. The attorney’s evaluation sometimes “evolves” during the mediation based upon new information or good points made by the adversary and should be part of the conversation.

While it is not frequently done in the Capital District, there are times when one or more of the attorneys may want to schedule a pre-mediation telephone conference with the mediator. This can be a useful tool if there are critical issues to the mediation proceeding to be resolved, need for clarification of a question or perhaps discussion of logistics for a multiparty mediation. It also enables the mediator to confirm that the people with full settlement authority will be present at the mediation.

The mediation session itself typically begins with a joint session, at which time the mediator makes necessary introductions, provides assurances to the participants of confidentiality, and importantly, first engages in conversation with the client or clients present. Confirmation of the present stage of the litigation, status of prior settlement negotiations, present demand and offer, as well as the amount of any liens or claims are confirmed. I typically ask each attorney if there is “anything else they would like to add…”, but discourage “opening statements” out of concern that the spirit of hoped-for cooperation will revert into the

ALTERNATIVE DISPUTE RESOLUTION (continued from p.14)



adversarial mindset that preceded the decision to mediate.

Following the initial joint session, a series of caucuses takes place, where information is exchanged, primarily early on. Information acquired by the mediator is both factual and positional. For example, the client may speak about recent treatment or a change in condition supporting an updated evaluation of the claim. Often the ongoing exchange of information is positional, based upon arguments constructed from favorable facts focused upon by the attorney in support of a claim or defense. The mediator may “reframe” the statements when advancing a demand or offer to the other side in an effort to enhance the credibility of the new number. A good mediator with a working knowledge of the material and an understanding of the applicable law will play “devil’s advocate” with each side, to “reality check” the attorney and/or client. By doing so, the mediator will often be able to help shape the new demand or offer to be conveyed to the other side.

In the early caucuses, the mediator seeks to build the trust and confidence of the parties, to gain credibility in the exchange of positions, laying the groundwork for the evolution of the mediator’s role from facilitator to a

more substantive role in the later stages of the mediation as to what number or number range might enable settlement of the case. The mediator becomes a “voice of reality” to attorneys, clients and sometimes claims representatives based upon the sense of where there is “maximum tension” for both sides. Numerous studies have shown that attorneys suffer from “advocacy bias” or colloquially, “falling in love with one’s case.” Studies also show that “reactive devaluation” of the other side’s position takes place, which is the inherent tendency in the adversarial process to give less credibility (and therefore value) to another’s position.

By enabling and maintaining constructive dialogue between the parties, the mediator will facilitate an ongoing exchange of reduced demands and increased offers. The goal is to prevent breakdown of the negotiation (i.e. “impasse”) by constantly “taking the temperature” in each room in order to gauge reactions to parties’ statements, positions and the last demand or last offer. In addition to making every effort to maintain a positive “tone,” the mediator has a number of tools to prevent impasse and further close the gap. These tools include “bracketing”, resuming joint session, realigning the individuals caucusing,

“reality checking” the attorney or client, and the “mediator’s proposal;” some or all of which may be utilized in any given mediation as deemed necessary.

Ultimately, mediation is a process that requires plenty of patience, maintaining constructive engagement, active listening, building of trust by the mediator, and the willingness on everyone’s part to be flexible to arrive at the number that will settle the case. I believe that most clients will ultimately believe that “some justice” was achieved when they are allowed to be a part of the process, are included in the conversations with the mediator, are given the ability to have private talks about strategy with the attorney, and are involved in shaping the negotiation. I have observed many persons who started the process angry, without any sense of apology or sympathy from the other side, believing that no amount of money would provide fair compensation who left with a settlement a few hours later thanking their attorney and exchanging cordial remarks with the other side’s attorney or client. While it is axiomatic that not every case is suited for mediation, I believe that most are. As Mick Jagger said:

You can’t always get what you want, but if you try sometimes, you might find, you get what you need. •

ALTERNATIVE DISPUTE RESOLUTION (continued from p.14)

CLASSIFIED

TULLY LABOR AND EMPLOYMENT ATTORNEY

Gleason Dunn Walsh & O’Shea, a mid-sized law firm located in Albany, NY, is seeking an associate with 3-5 years of experience in labor and employment law. Experience with employment litigation, labor negotiations, union work, contract disputes, disciplinary matters, and similar issues is preferred. Successful candidate must be admitted to practice in New York. Visit our website for more information about our firm at www.gdwo.com.

Competitive salary and benefits are provided. Interested candidates should submit a cover letter, resume, and salary requirements in confidence to Firm Administrator, Gleason,

Dunn, Walsh & O’Shea, 40 Beaver Street, Albany, NY 12207 or to [email protected].

ASSOCIATE ATTORNEY

The West Firm, PLLC The West Firm, PLLC, a growing, boutique Capital Region firm, seeks an associate attorney. Must have excellent credentials, between 1 and 5 years of experience in commercial transactions, regulatory issues, litigation and real estate.

To successfully perform this job the candidate will have strong communication and writing skills; the ability to prioritize work load based on deadlines; be able to communicate effectively with senior attorneys and paralegals; meet billing requirements; complete tasks as assigned in a timely manner; be detail oriented with

strong organizational skills and have an eagerness to learn.

Must be a member in good standing with the New York bar. Please include CV, resume and writing sample. Reply to: [email protected]

TWO OFFICES AVAILABLE IN MULTI-LAWYER SUITE

21 Everett Road Ext., (Near I-90 Exit 5)Phones, Utilities, Voice Mail, Fax/Scanner/Copier, Postage Meter, Conference Room, Kitchen all included in rentAmple parking. Easily Accessible Building.Reasonably Priced Rent.Contact Stephen Levy at (518) 489-1098 ext. 12.


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CPLR Article 50-A applies to proving damages in medical malpractice cases. Article 50-B applies to damages in all other personal injury cases. Even after all

these years, it is still commonly, but mistakenly, believed that these provisions serve to reduce the plaintiff ’s damages. Nothing could be farther from the truth. Article 50-A and 50-B, though different, each significantly increase damages!

Much of the misunderstanding as why these statutes make the plaintiff ’s recovery larger, stems from failing to distinguish between the nature of the proof of future damages determined by the factfinder under CPLR §4111 at the trial, and what occurs when the Court applies such findings in formulating a judgement under CPLR §5031 or §5041. Space limitations preclude a complete exegesis of these complicated provisions, but the single most important takeaway is this: Neither plaintiff ’s nor defense counsel cannot properly try a case, or even evaluate it for settlement, without knowing the full ramifications of Article 50-A and 50-B!

ARTICLE 50-A

CPLR Rule 4111(d) requires the jury to determine, among other things, the annual current cost of an element of future economic loss, the time period over which it is owed, and the applicable growth rate. In computing the amount of a judgement, a portion of future loss is paid in a lump sum, but the present value of the remainder is determined in accordance with CPLR §5031. That statute requires a discount rate of the ten-year Treasury Bill rate for all future damages in the first twenty years, and ten-year T-Bill rate plus two percent for all future damages beyond twenty years.

As of this writing the ten-year T-Bill rate is 0.68 per cent which establishes the current statutory “discount rate.” In a recent case the

medical inflation rate was established at 3.5%.1 Accordingly, in determining the present cash value of future damages for judgment and payment purposes, damages are increased by a negative discount rate – in effect compound interest rate – of 2.82 percent for the first twenty years, and a negative discount rate of .82 percent thereafter. This makes the plaintiff ’s judgement and recovery much higher than that the actual discounted present value of the plaintiff ’s economic loss as determined by the jury’s verdict. Thus, the actual present value (and thus the judgment amount and cost to the defendant today) to fund the future payment of $100 in year twenty ($198.97) as computed under Article 50-A, would be $174.40–not $100. This is because in an environment of historically low interest rates, medical inflation and other growth factors for lost earnings are higher than the discount rate established by statute and required by law.2

ARTICLE 50-B

As dramatic as is the increase in the plaintiff ’s damages under Article 50-A, it is even more so under Article 50-B which is applicable to non-malpractice personal injury cases. In effect, Article 50-B is Article 50-A on steroids. This because in addition to creating a “negative” discount rate as described above, there are two additional factors in play: (1) the method of proving damages required by CPLR §4111 (e) results in a significantly higher starting point for the negative discounting; and (2) in addition to proof of a growth rate, e.g. inflation, at trial, the Court in entering judgment will add 4% compounded annually to the periodic payments. (See CPLR § 5041(e); Desiderio v. Ochs 100 NY2d 159 (2003)).3

Unlike under Article 50-A, CPLR Rule 4111 (e) requires the jury to “to award the full amount of future damages, as calculated, without reduction to present value.” This provision has enormous significance because it means that the jury must find the gross total amount in each category of future damage in undiscounted dollars. In other words, if an of medical care costs $100 today, the undiscounted cost in year 20 including 3.5% medical inflation would be $198.97. But we are just getting started.

Pursuant to CPLR §5041 (e), in computing the present value and cost of the judgment, the Court takes the total undiscounted amount and divides by the number of years (average) over which the payments are to be made, in order to determine the first-year payment. In this example, instead of the $100 actual cost, the first-year payment is roughly $149.49. But we are still not finished.

Each annual payment is then increased by statute by 4% compounded annually. (CPLR §5041 (e)). This results in a gross payment in year twenty (2040) of $328.60 rather than the actual cost in that year of $198.97. However, this amount is then reduced to its present value by closest applicable T-Bill rate–in this case twenty years, or currently 1.19%. (See e.g. Karagiannis v. New York State Thruway Auth., 209 AD2d 993 (4th Dept., 1994))

So, after all of this computation, in the first year the plaintiff will receive $149.97 instead of an actual cost of $100–50% more and going up each year by 4%. In year 20 she will receive $328.60 (in 2040 dollars) which will actually cost the defendant $259.36 in present day 2020 dollars. The longer the period, and the lower the current interest rate, the more that the plaintiff ’s damages are increased by Article 50-B.

SUMMARY

This is complicated, but nevertheless critical material. It is hardly surprising, therefore, that many if not most of even experienced trial attorneys and insurance claims adjusters fail to grasp the enormous consequences of these statutes. Two things are clear however: (1) Properly understood and applied, Article 50-A and Article 50-B each significantly increase the amount of money which a plaintiff is entitled to recover, and; (2) Unless an attorney fully understands the mechanics of these provisions and knows how to apply them, it is not possible to properly evaluate the potential recovery in a case, and the plaintiff will get far less than the full damages to which he or she is entitled under the law.

Understanding and Proving Damages Under CPLR ARTICLES 50-A AND 50-BMichael Kessler Esq. • E. Stewart Jones Hacker Murphy LLP • [email protected]



* He is Board Certified in Medical Malpractice Law by the American Board of Professional Liability Attorneys. In addition to representing catastrophically injured plaintiffs, he is also a licensed insurance agent consulting in the placement of structured settlements and Article 50-A and 50-B judgments.

1 Medical inflation has historically been higher than general inflation. Moreover the “growth rate” applicable to lost earnings may include things in addition to

inflation, such as promotions, longevity and productivity increases, and age adjusted earnings.

2 The same is true for any portion of pain and suffering beyond that paid in a lump sum, byu statute. The remaining payments are are made over eight years and increase by statute by 4% per year. Again a negative discount rate will apply–this time 3.32%. Thus a $100 installment due in the eighth year will be paid at $136.85 with a current “present value” (actual cost

today) of $129.86 instead of $100. Under Article 50-B the payments for future pain and suffering are over ten years, but the computation is the same.

3 For purposes of these computations we have ignored the portions of a judgement for future damages payable in a lump sum, albeit also in undiscounted dollars.

CPLR ARTICLES 50-A AND 50-B (continued from p.17)

CLASSIFIED (Continued from p.16)

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

PUBLIC FINANCE ATTORNEY

Hodgson Russ LLP is seeking an ATTORNEY to join its Public Finance practice in the firm’s Albany office. The successful candidate will have at least two years of experience in one or more of the following areas: tax-exempt financings as bond counsel, underwriter’s counsel and/or borrower’s counsel, tax law, municipal law and commercial finance. Strong academic credentials and excellent written and verbal communication skills are also required.

Please visit our website to submit your

resume, cover letter, and transcripts. www.hodgsonruss.com/careers-laterals.html

COMMERCIAL LITIGATION/ INSURANCE DEFENSE ASSOCIATE

Rivkin Radler LLP is seeking a Commercial Litigation/ Insurance Defense associate with at least 3 years of experience in commercial litigation and general defense litigation in areas such as employment, wage and hour, general liability and professional liability among others to join our Albany office. EOE Candidate Requirements: Demonstrate

and have experience in analyzing case issues, communicating regularly with claims professionals, understanding of claims reporting requirements/document communication and assist in resolving cases efficiently; Experience in reviewing claim files, preparing pleadings, conducting depositions, and motion practice Experience in contract, business, UCC and transactional disputes helpful Expertise in healthcare and transactional also desirable. Email [email protected]

http://www.hodgsonruss.com/careers-laterals.html


























Whiteman Osterman & Hanna, LLP is pleased to congratulate five of its partners who have been named Lawyers of the Year in the 27th edition of Best Lawyers in America. The designation is based on extremely high feedback among peers in the legal profession, as only a single lawyer in each practice area and community is honored with the distinguished award.

ROBERT SCHOFIELD areas of expertise include public and private sector labor and employment issues, education law, and general litigation, as well as State Court practice. Schofield is a past President of the Albany County Bar Association, the Albany County Bar Foundation and the NY Capital Chapter of the Labor and Employment Research Association, in addition to serving as a board member of many other legal and community organizations.

RICHARD CIRINCIONE’S practice is concentrated in the area of estate planning and he handles all phases of the administration of estates and trusts, including the preparation of estate tax returns and fiduciary accountings. Cirincione is an AV Preeminent rated attorney by Martindale-Hubbell®, and has been included in The Best Lawyers in America® since 2013, and Super Lawyers® since 2015. He is a frequent lecturer for continuing education programs for the Trusts and Estates section of the New York State Bar Association.

JOHN PRIVITERA is active in all areas of environmental law including land use, environmental litigation, enforcement, citizen suits, regulatory affairs, compliance matters, hazardous wastes and natural resource damages. He formerly served as Assistant Attorney General in the Environmental Protection Bureau of the New York State Department of Law.

BRUCE J. WAGNER is chair of the firm’s Matrimonial & Family Law Department. This is Wagner’s second recognition as “Lawyer of the Year,” having received

the same designation for 2012. He has been listed in every edition of The Best Lawyers in America since 1999. Wagner has also been named in every publication of New York Super Lawyers-Upstate since 2007, and 2020 marks his fifth consecutive year of inclusion in Super Lawyers’ Top 25 Hudson Valley listing.

Hodgson Russ, a business-focused law practice with local offices in Albany and Saratoga Springs, recently coordinated a volunteer effort of more than 20 local employees to help clean and revitalize the buildings and grounds at Yaddo.

Attorneys, legal assistants and paralegals spent the afternoon of October 8th weeding flower beds, painting windows and trim, catching and transporting Koi from their outdoor pond to their indoor winter location, and assisting with other seasonal tasks that would normally be taken care of by Yaddo staff.

Yaddo, located on a sprawling 400-acre estate adjacent to the thoroughbred racetrack in Saratoga, is a retreat that offers residencies to artists from all nations and backgrounds working in a range of disciplines. Roughly 50 percent of artists invited to work on the storied grounds come from New York City—Yaddo keeps an office in midtown. However, due to the outbreak of COVID-19, it had to close its doors this past spring, furlough more than half of its employees, and will remain closed through the end of the year.

Nolan Heller Kauffman is proud to announce that 2020 New York Super Lawyers Upstate Edition has recognized three HYPERLINK “https://nhkllp.com/home/” Nolan Heller Kauffman LLP attorneys.

JUSTIN A. HELLER – Business Litigation & Creditor/Debtor Rights.

MADELINE H. KIBRICK KAUFFMAN – Business/Corporate Law & Creditor/Debtor Rights.

FRANCIS J. BRENNAN – Business Litigation & Bankruptcy Law.

Super Lawyers is a rating service of outstanding lawyers, from more than 70 practice areas, who have attained a high degree of professional achievement and peer recognition. The rigorous candidate selection process includes independent research, peer nominations and peer evaluations. Only the top 5% of attorneys in Upstate New York receive this yearly Super Lawyers recognition.

The National Board of Trial Advocacy (“NBTA”) is pleased to announce that it has recertified Patrick J. Higgins, Esq. of The Law Offices of Patrick J. Higgins, PLLC as a civil trial advocate through 2025. The recertification process requires demonstration of substantial trial experience, submission of judicial and peer references as to competency, attendance of continuing legal education courses, and proof of good standing. Further information on the NBTA can be found at www.nbtalawyers.org

E. Stewart Jones Hacker Murphy, LLP is pleased to announce that Julie Nociolo, Esq. has been included in the 2021 Edition of Best Lawyers: Ones to

Watch. “Best Lawyers: Ones to Watch” recognizes lawyers who are earlier in their careers for their outstanding professional excellence in private practice in the United States. Attorney Nociolo practices in the following areas: Federal & State Criminal Defense, White Collar Investigations & Defense, Title IX & Student Defense, Professional Licensing Defense, Civil Rights Plaintiff’s Litigation and Appeals. •

BENCH & BAR IN THE NEWS


The good news about eating takeout food is that there does not seem to be any evidence of takeout food spreading Covid. Let’s hope that continues. We seem to have gone

from having lots of extra time at the beginning of the Covid lockdown to being extra busy lately so takeout provides a welcome relief from cooking every day.

Here are some general rules about takeout to remember:

• Most servings are large so plan on stretching the food you order for another meal or split it with a family member;

• You can take advantage of eating at home by adding your own salad or vegetable which are frequently lacking or in small quantities for takeout food;

• Check the sides menu for extra veggies;

• Ordering a dish with beef is tempting but its best to go for fish, tofu, beans or chicken.

Is there a “best” or “better” kind of place to get takeout? Let’s look at some options;

PIZZA

Bad news: It’s cheap and fast but the cheese is full of saturated and salt and there’s probably more salt in the crust and sauce.

Make it better- add veggies as toppings, stay away from pepperoni, sausage etc., ask for less cheese (oh my!) and stop at a few slices. Add a salad!

MEXICAN

Bad news There’s plenty of saturated fat in the cheese, beef and sour cream and plenty of calories in the large flour tortillas and fried items like empanadas.

Make it better: Order tacos because they are smaller, indulge in guacamole which supplies good fat, fiber and nutrients, salsas are great and can be used to dress salads, try the beans and rice which are usually side dishes- beans are great for you. Add a salad!

CHINESE, THAI, JAPANESE

First, I am not trying to imply that these cuisines are similar, just that there are some choices that might be similar when choosing food.

Bad news: Sodium levels are usually high in Chinese and Japanese food because of soy sauce, there are many deep fried items in all cuisines which add tons of calories, rice can add plenty of calories too, many items are meat- focused because that’s what Americans want.

Make it better: Include at least 1 veggie only dish like Szechuan string beans or stir fried snow peas, choose dishes are are veggie, not meat focused, for Chinese food- ask for the veggies with a white sauce that has no soy sauce so much lower in sodium, consider tofu or fish instead of meat, limit how much rice you pile on.

BOWL FOOD

Bad news: Grain bowls can contain lots of calories, dressings are frequently overdone, croutons and pita crisps add unnecessary refined flour items.

Make it better: Ask for half grains, half greens (dark greens are best), get dressing on the side so you can limit the amount, ask for nuts or seeds for crunch, ask for avocado instead of cheese.

ITALIAN

Bad news: Portions can be huge, cheeses can add lots of bad fat, calories and sodium, white flour pasta is just not very nutritious, sausage and meatballs contains bad fat and are calorie laden.

Make it better: Order a chicken or fish dish with a pasta portion on the side which is smaller. Greens and beans, which are usually an appetizer, can be a main dish! Minestrone soup is great too. Tomato sauce is healthy so pile it on but bolognese - not so much. And please stay away from the sausage, which is full of saturated fat and sodium. •

TAKING IN TAKEOUTCan we still eat healthy? by Ann Lapinski Esq. • [email protected]

CHINESE VEGETABLE STIR FRY1 pound baby boy choi, Swiss chard, or Chinese cabbage - chop or slice as needed1 clove garlic, minced ( I use a microplane grater for the garlic and ginger)1 tsp. Ginger, minced1-2 Tbsp. Oil

Sauce

1/2 cup water1/2 tsp. Kosher salt1 tsp. Sugar2 tsp. Cornstarch1 tsp. Sherry1/2 tsp. Chinese roasted sesame oilCombine all ingredients and mix thoroughly before adding to stir fry.

Using a wok or large frying pan, bring garlic and ginger to a sizzle. Add veggie and stir fry a few minutes. Add sauce and cook until sauce is bubbly and thick. Serve immediately.


In September 2000, the Albany County Bar Association established the Diversity Internship Program as a catalyst to increasing diversity in private practice law firms throughout the NY Capital District. For almost

two decades the Diversity Internship Program has connected Albany Law School students with law firms creating meaningful internship experiences, as well as developing an array of networking and educational opportunities for student participation. The program continues to thrive with more firms participating each year and a growing number of applicants applying. We are very proud of our interns this past academic year for taking the initiative to be strategic with their budding law careers and we congratulate our graduating alums.

Diversity Internship Program StudentsFall 2019 - Spring 2020

Halima BegumAlbany Law School: Class of 2020

Hometown: Sylhet, Bangladesh

Undergraduate: Fordham University, Bronx, NY

Law Firm Internship: O’Connell & Aronowitz (Fall & Spring 2020)

Albany Law School, Class of 2020

COVID-19 REFLECTIONS: HALIM BEGUM

What is one of your greatest disappointments (academically, professionally, or personally) resulting from the COVID-19 pandemic?I’m disappointed in people who are not taking social distancing seriously. I have a lot of friends and family members in the medical field. Three out of five people that I know tested positive, but they are doing well and staying home. My cousin, who did not get tested but works at Albany Medical Center and has a pregnant wife and three kids at home, continues going to work everyday; and it makes me so upset that he’s putting his and his family’s health on the line while people are out socializing.

What is something new that you have learned about yourself or life generally as a result of the pandemic?I learned that I manage stress a lot better than I thought and that I manage my time really well.

What advice do you have for society in response to the COVID-19 as we prepare for life beyond the pandemic?When quarantine ends, remember how it felt to be stuck at home and embrace your life by living it to the fullest!

Jalen CrawfordAlbany Law School: Class of 2020

Hometown: Bronx, NY

Undergraduate: SUNY, University at Albany, NY

Law Firm Internship: Bond, Schoeneck, & King, PLLC (Fall 2018 & Spring 2019) and Wilson Elser (Fall 2019 & Spring 2020)

Anisha GhoshAlbany Law School: Class of 2020

Hometown: Slingerlands, NY

Undergraduate: Northeastern University, Boston, MA

Law Firm Internship: Nixon Peabody LLP (Fall 2018) and

McNamme Lochner P.C. (Spring 2020)

Charlene JosephAlbany Law School: Class of 2020

Hometown: Brooklyn, NY

Undergraduate: St. John’s University, Queens, NY

Law Firm Internship: Farrell Fritz, P.C. (Spring 2019) and Jackson Lewis

P.C. (Fall 2019 & Spring 2020)

Fabrice K. MichelAlbany Law School: Class of 2020

Hometown: Uniondale, NY

Undergraduate: Siena College, Loudonville, NY

Internship: Carter Conboy (Spring and Fall 2019) and Greenberg

Taurig LLP (Spring 2020)

Georgia SackeyAlbany Law School: Class of 2020

Hometown: Bronx and Albany, NY

Undergraduate: Binghamton University, Binghamton, NY

Internship: Whiteman Osterman & Hanna LLP (Fall 2018) and Nixon

Peabody LLP (Fall 2019 & Spring 2020)

Elizabeth Sonia Bennett Albany Law School (Alumni): Class of 2020

Hometowns: The Bronx and Honduras

Undergraduate: SUNY Plattsburgh, Plattsburgh, NY

Law Firm Internship: Jackson Lewis P.C. (Fall 2018)

Jennifer CruzAlbany Law School (Alumni): Class of 2020

Hometown: Islandia, New York

Undergraduate: Stony Brook University, New York

Law Firm Internship: McNamee Lochner P.C. (Fall 2018)

Kyle IshmanAlbany Law School (Alumni): Class of 2020

Hometown: Troy, NY

Undergraduate: Syracuse University, Syracuse, NY

Law Firm Internship: E. Stewart Jones Hacker Murphy LLP (Spring 2019)

Class of 2020 Diversity Internship Alumni


Jessica Ventura Albany Law School: Class of 2020

Hometown: Brentwood, Long Island, NY

Undergraduate: Marist College, Poughkeepsie, NY

Internship: O’Connell and Aronowitz (Fall 2018 & Spring 2019) and

Hodgson Russ (Fall 2019 & Spring 2020)

Patrick BenajminAlbany Law School: Class of 2021

Hometown: Los Angeles, CA

Undergraduate: University of California, Merced, CA

Internship Law Firm: Farrell Fritz, P.C. (Fall 2019)

Shellee DanielAlbany Law School: Class of 2021


Undergraduate: Oakwood University, Huntsville, AL

Internship Law Firm: Schiller, Knapp, Lefkowitz & Hertzel, LLP

(Fall 2019)

AbiDemi DonovanAlbany Law School: Class of 2021

Hometown: Kingston, Jamaica

Undergraduate: Bard College, Annandale-on-Hudson, NY

Internship Law Firm: Mack & Associates PLLC (Spring 2020)

Doris Stacey GamaAlbany Law School: Class of 2021

Hometown: Garden Grove, CA

Undergraduate: Arizona State University, Tempe, AZ

Internship: Rivkin Radler LLP (Fall 2019 & Spring 2020)

Albany Law School, Class of 2021 Taire HerasmeAlbany Law School: Class of 2021



Internship Law Firm: Shenker, Russo and Clark LLP (Fall 2019)

Krystal L. MacharieAlbany Law School: Class of 2021

Hometown: Spring Valley, NY

Undergraduate: University of Albany (SUNY), Albany, NY

Internship: Shenker, Russo, & Clark, LLP (Spring 2020)



Alicia Johnson Albany Law School: Class of 2021 (Graduating Dec. 2020)

Hometown: New York City, NY


Internship Law Firm: Bond, Schoeneck, & King (Fall 2019) Whiteman Osterman & Hanna (Spring 2020)

COVID-19 REFLECTIONS: ALICIA JOHNSON

What is one of your greatest disappointments (academically, professionally, or personally) resulting from the COVID-19 pandemic? Myself and two other classmates were scheduled to compete at Brooklyn Law School for their Jerome Prince Moot Court competition, but this event was cancelled due to the Covid-19 pandemic. This was a huge disappointment because we spent a lot of time writing the appellate brief for this competition and we were excited about bringing home the championship to ALS. I was also disappointed that my internship with Whiteman had to be cut short due to the COVID-19 pandemic—I was very excited to continue working in the corporate practice group and the labor/employment practice group.

What advice do you have for society in response to the COVID-19 as we prepare for life beyond the pandemic? Take nothing for granted. I would never have imagined a world in which going outside is “dangerous” and simple things like going grocery shopping is “risky.” I loved going out to eat with friends and watching movies, and unfortunately, am unable to do these things. I will never take these things for granted again.

Amanda Sun DemmaAlbany Law School: Class of 2021

Hometown: Wellesley, MA

Undergraduate: University at Albany, SUNY, Albany, NY

Internship: E. Stewart Jones Hacker Murphy LLP (Spring 2020)

COVID-19 REFLECTIONS: AMANDA SUN DEMMA

What is one of your greatest disappointments (academically, professionally, or personally) resulting from the COVID-19 pandemic? My summer internship had to become fully remote. Although I am grateful for maintaining employment during this difficult time, I would have enjoyed meeting my supervisors and colleagues in person.

What is something new that you have learned about yourself or life generally as a result of the pandemic? I’ve surprisingly learned how much I enjoy quarantining; it offers additional time with my dog that I wouldn’t have had otherwise.

What advice do you have for society in response to the COVID-19 as we prepare for life beyond the pandemic? Practice mindfulness every moment you can. It’s easy to believe the world is falling apart, when you don’t appreciate where we’ve come from and what we have.


Syeda ZahraAlbany Law School: Class of 2021

Hometown: Buffalo, NY

Undergraduate: SUNY, University at Buffalo, Buffalo, NY

Internship: Bond, Schoeneck, and King PLLC (Spring 2020)

COVID-19 REFLECTIONS: SYEDA ZAHRA

What is one of your greatest disappointments (academically, professionally, or personally) resulting from the COVID-19 pandemic? My greatest disappointment from the COVID-19 pandemic is the business decisions and choices made by certain employers and companies.

What is something new that you have learned about yourself or life generally as a result of the pandemic? Due to the pandemic, I have learned that I really enjoy interacting with others and have learned not to take anything for granted.

What advice do you have for society in response to the COVID-19 as we prepare for life beyond the pandemic?

For life beyond the pandemic, I personally think that innovation and ability to adjust to circumstances, however dire, is extremely important.

Meghna SrikanaAlbany Law School: Class of 2021

Hometown: Columbus, OH

Undergraduate: Case Western Reserve University, Cleveland, OH

Internship: Farrell Fritz, P.C. (Spring 2020)

COVID-19 REFLECTIONS: MEGHNA SRIKANA

What is one of your greatest disappointments (academically, professionally, or personally) resulting from the COVID-19 pandemic? I think that my greatest disappointment is the limitation of the pandemic. I was sad to have my spring internship shortened and am concerned that this may also effect my summer plans.

What is something new that you have learned about yourself or life generally as a result of the pandemic? I learned that I rely on body language when conversing with people. Even though technology has advanced, video chatting lacks this ability to read body language and has affected how I interact with people.

What advice do you have for society in response to the COVID-19 as we prepare for life beyond the pandemic? I think that the pandemic really provided me with perspective on who we are as people and what we truly believe. I would advise people to slow down and enjoy the little things in life. In addition, I would ask people to always consider other perspectives and be respectful of people’s differences regardless of the situations that we are faced with.

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Direct: (315) 724-8657Mobile: (315) 725-3119

[email protected]

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PROUD SPONSOR OF THE ALBANY COUNTY BAR ASSOCIATION

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) 724-8657Mobile: (315) 725-3119

[email protected]

Creating Settlement Plans That Work For Our Clients.

PROUD SPONSOR OF THE ALBANY COUNTY BAR ASSOCIATION

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The views expressed in the letters and columns reflect the opinions of the authors and may not reflect the views of the Association, its Officers, Directors or Members.

Opposing viewpoints are always welcome and can be emailed to: [email protected].